State v. S. Ragner ( 2022 )


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  •                                                                                            10/25/2022
    DA 21-0137
    Case Number: DA 21-0137
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    
    2022 MT 211
    STATE OF MONTANA,
    Plaintiff and Appellee,
    v.
    SHELBY BRYAN RAGNER,
    Defendant and Appellant.
    APPEAL FROM:           District Court of the Eighteenth Judicial District,
    In and For the County of Gallatin, Cause No. DC-19-189-B
    Honorable Rienne H. McElyea, Presiding Judge
    COUNSEL OF RECORD:
    For Appellant:
    William Boggs, Attorney at Law, Missoula, Montana
    For Appellee:
    Austin Knudsen, Montana Attorney General, Tammy K Plubell,
    Assistant Attorney General, Helena, Montana
    Marty Lambert, Gallatin County Attorney, Bjorn Boyer, Deputy County
    Attorney, Bozeman, Montana
    Submitted on Briefs: September 7, 2022
    Decided: October 25, 2022
    Filed:
    __________________________________________
    Clerk
    Chief Justice Mike McGrath delivered the Opinion of the Court.
    ¶1        Shelby Bryan Ragner (Ragner) appeals from a January 25, 2021 District Court order
    sentencing Ragner to 10 years in Montana State Prison, with four years suspended. We
    affirm.
    ¶2        We restate the issues on appeal as follows:
    Issue One: Whether the District Court properly applied Montana’s rape shield
    statute in excluding evidence concerning the victim’s sexual conduct.
    Issue Two: Whether the instructions provided by the District Court fully and fairly
    instructed the jury regarding the mental state applicable to charges of sexual
    intercourse without consent.
    Issue Three: Whether the District Court’s absence of a specific unanimity
    instruction resulted in reversible plain error.
    FACTUAL AND PROCEDURAL BACKGROUND
    ¶3        On May 19, 2019, the State charged Ragner with aggravated sexual intercourse
    without consent (ASIWC). The charges followed an interview on March 18, 2019,
    between C.M., the victim, and Detective Amy Ross (Ross) of the Montana State University
    Police Department.
    ¶4        On March 8, 2019, C.M. and Ragner both joined a group of friends for a night of
    drinking and dancing. Ragner had previously told members of that group he found C.M.
    attractive. C.M. did not have romantic feelings toward Ragner. In the course of visiting
    multiple bars, C.M. and the other women in the group became intoxicated. Ragner had
    “too much” to drink but comparatively less so than the women. At various points in the
    2
    evening, Ragner came into unwanted physical contact with C.M. In response, C.M. told
    one of her friends not to leave her alone with Ragner.
    ¶5     A designated driver picked up the group up later that night and returned everyone
    to the same spot to sleep. C.M. and Ragner ended up on different parts of an L-shaped
    couch. At some point in the night, C.M. woke up with Ragner on her legs and his fingers
    inside of her vagina. When C.M. attempted to move upon discovering Ragner’s penetrative
    act, she found herself unable to do so and “lost consciousness again.”
    ¶6     In contrast, Ragner recalls the two of them engaging in “sexual talk” prior to any
    sexual acts. During this conversation, Ragner told C.M. that she was too drunk to consent
    to any sexual activity. C.M. “kept insisting, kissing, and grabbing him,” and generally
    initiating physical contact. Ragner wanted to say “yes” to C.M.’s sexual advances “but []
    felt it was the wrong thing to do.” The pair then made out and digital and oral intercourse
    occurred.
    ¶7     On March 9, 2019, C.M. woke up to her alarm and left for work. Once at work, she
    noticed soreness, sharp pains in her vaginal area, and bite marks along her thighs. C.M.
    informed her manager that she had been sexually assaulted. C.M. left work and drove to
    her mother’s home. The pair went to the hospital in Ennis. A sexual assault examination
    performed by Dr. Davenport of the Madison Valley Health Center detected bruising and
    pain, bite marks, and vaginal pain. Dr. Davenport also detected injuries to C.M.’s vagina
    and cervix and attributed those to some sort of forceful penetration.
    ¶8     Also on March 9, 2019, C.M. texted a friend who had attended the party. The texts
    referred to fragments of memories from the prior night. C.M. disclaimed any romantic
    3
    interest in Ragner and stated that even after having had alcohol her feelings toward men do
    not change. She specified that she did not consent to any sexual activity they engaged in.
    And C.M. also sent a text that read, “I’m really embarrassed. Like really, what the hell.
    How is it that this has happened to me three times now. Jesus, I need to quit drinking, at
    least around men…” During a pretrial interview, C.M. told defense counsel that on the
    two occasions alluded to in her text string she felt that her boyfriends had been sexually
    coercive while they were intoxicated. C.M. stated that she was not unconscious during the
    two occasions. She recalled that her boyfriends took advantage of her use of alcohol, in
    part, to pressure her to have sex.
    ¶9     The State filed a motion in limine to exclude the above quoted portion of the text
    exchange between C.M. and her friend related to the prior incidents of related sexual
    encounters. At an October 19, 2020 status conference, defense counsel reported that an
    evidentiary hearing would not be necessary for the court to rule on the motion. On October
    20, 2020, the first day of trial, Ragner filed a written objection to the motion, and the
    District Court heard oral argument. The motion was granted.
    ¶10    Following the settlement of jury instructions, the District Court declined to use the
    knowingly definition offered by the defense counsel. The court defined knowingly having
    sexual intercourse with another as “when the person is aware of his or her conduct,” and
    instructed the jury that “[a] person who knowingly has sexual intercourse with another
    person without consent commits the offense of sexual intercourse without consent.”
    Ragner did not object to the District Court’s consent instructions. Ragner did not request
    a specific unanimity instruction on “without consent” versus “incapable of consent.”
    4
    ¶11    On the charge of ASIWC, the jury found Ragner not guilty. On the lesser included
    charge of sexual intercourse without consent, the jury found Ragner guilty. The District
    Court sentenced Ragner to ten years in prison with four years suspended.
    STANDARD OF REVIEW
    ¶12    We review evidentiary rulings for an abuse of discretion, which occurs “when a
    district court acts arbitrarily without conscientious judgment or exceeds the bounds of
    reason, resulting in substantial injustice.” State v. Daffin, 
    2017 MT 76
    , ¶ 12, 
    387 Mont. 154
    , 
    392 P.3d 150
    . To the extent a court’s evidentiary ruling is based on an interpretation
    of a constitutional right, our review is de novo. State v. Hoff, 
    2016 MT 244
    , ¶ 11, 
    385 Mont. 85
    , 
    385 P.3d 945
     (citing State v. Patterson, 
    2012 MT 282
    , ¶ 10, 
    367 Mont. 186
    , 
    291 P.3d 556
    ).
    ¶13    A review of a district court’s jury instructions in a criminal case assesses whether
    the instructions, when considered as a whole, fully and fairly instructed the jury on the law
    applicable to the case. State v. Daniels, 
    2019 MT 214
    , ¶ 26, 
    397 Mont. 204
    , 
    448 P.3d 511
    .
    Even if an instruction error did occur, this Court will not reverse on such a claim unless it
    also finds that the district court abused its discretion in a way that prejudicially affected a
    defendant’s substantial rights. State v. Kaarma, 
    2017 MT 24
    , ¶ 7, 
    386 Mont. 243
    , 
    390 P.3d 609
    .
    ¶14    The occurrence of substantial injustice resulting from a court acting arbitrarily
    without employment of conscientious judgment or beyond the bounds of reason means that
    the court abused its discretion. State v. Weldele, 
    2003 MT 117
    , ¶ 72, 
    315 Mont. 452
    , 
    69 P.3d 1162
     (citation omitted).
    5
    ¶15    Claims of errors implicating a criminal defendant’s fundamental constitutional
    rights may receive plain error review, even if no contemporaneous objection was made.
    State v. Lackman, 
    2017 MT 127
    , ¶ 9, 
    387 Mont. 459
    , 
    395 P.3d 477
    . This Court will
    exercise plain error review in cases where failing to review the claimed error may result in
    a manifest miscarriage of justice, may leave questions of fundamental fairness unsettled,
    or may compromise the integrity of the judicial process. Lackman, ¶ 9.
    DISCUSSION
    ¶16    Issue One: Whether the District Court properly applied Montana’s rape shield
    statute in excluding evidence concerning the victim’s sexual conduct.
    ¶17    Ragner contends that the District Court improperly applied Montana’s rape shield
    statute to exclude a portion of C.M.’s text messages. He relies on State v. Colburn, 
    2016 MT 41
    , ¶ 25, 
    382 Mont. 223
    , 
    366 P.3d 258
    , to argue that the District Court had a legal
    obligation to perform a balancing test between the defendant’s constitutional right to
    present a defense and a victim’s rights under the statute.
    ¶18    Montana’s rape shield statute calls for the exclusion of evidence concerning the
    sexual conduct of the victim, with few exceptions. Section 45-5-511(2), MCA. The first
    statutory exception applies where the victim’s past sexual conduct with the offender is at
    issue. Section 45-5-511(2), MCA. The second statutory exception applies where evidence
    of specific instances of the victim’s sexual activity to show the semen, pregnancy, or
    disease is at issue. Section 45-5-511(2), MCA. This Court has identified two other
    exceptions: evidence related to a victim’s prior false accusations of sexual assault if the
    offered evidence can be narrowed to the issue of the complaining witness’ veracity; and,
    6
    evidence of the victim’s sexual conduct if it is probative of the witness’ state of mind,
    motive, or biases with respect to making the more current accusations. State v. Hansen,
    
    2022 MT 163
    , ¶ 14, 
    409 Mont. 495
    , 
    515 P.3d 799
    .
    ¶19    In Colburn, we acknowledged that prior to a district court applying the rape shield
    statute to exclude evidence, the court should consider whether the evidence is relevant and
    probative; whether the evidence is merely cumulative of other admissible evidence; and,
    whether the probative value of the evidence is outweighed by its prejudicial effect.
    Colburn, ¶ 25. These factors prevent the automatic exclusion of evidence that can be
    narrowed to the issue of the complaining witness’ veracity. Notably, this list is entirely
    devoid of mandated weights that a district court must apply and lacks any mention of
    explicit triggers that would prevent the application of the rape shield statute.
    ¶20    Our subsequent decisions have interpreted Colburn as establishing guidelines for
    district courts to follow to prevent the arbitrary or mechanistic application of the rape
    shield. See Hansen, ¶ 14 (citing Colburn for the proposition that the rape shield statute
    does not apply absolutely); State v. Walker, 
    2018 MT 312
    , ¶ 56, 
    394 Mont. 1
    , 
    433 P.3d 202
    (using the factors set forth in Colburn as a framework to assess whether the rape shield
    statute had been mechanically applied).        Where district courts have followed those
    guidelines, we have upheld decisions to admit evidence covered by the rape shield statute
    only where an exception applies. See Hansen, ¶ 22; Walker, ¶ 56.
    ¶21    We upheld the district court’s application of the rape shield in Walker based on its
    methodical review of the factors favoring the exclusion and admission of the evidence in
    question. Walker, ¶¶ 57-58. The district court inquired into the evidence in question,
    7
    provided the parties with opportunities to explain their respective cases for and against the
    exclusion of that evidence, and considered the merits of each of those explanations.
    Walker, ¶¶ 57-58.
    ¶22    Here, the District Court followed similar steps. After the State filed its motion in
    limine to exclude a portion of the text, the District Court held a status conference—during
    which defense counsel stated that the court need not have an evidentiary hearing prior to
    ruling on the motion. Defense counsel had another opportunity to argue for the inclusion
    of the evidence when, on the first day of trial, it filed a written objection to the State’s
    motion. And defense counsel had the chance to argue its points further when the court
    heard oral argument on the State’s motion. The District Court then granted the State’s
    motion in an order that summarized its consideration of the arguments made by both sides
    and its evaluation of the applicable case and statutory law.
    ¶23    Though, as Ragner asserts, the excluded evidence may have been “reliable” and
    “highly probative,” the District Court considered those aspects before properly applying
    the rape shield statute to exclude the evidence. Ragner claims that C.M. opened the door
    to the admission of the evidence by testifying to her lack of interest in Ragner when she
    was sober and stating that such feelings would not change while under the influence of
    alcohol. However, nothing in the record suggests she had a romantic interest in either of
    the two men referred to in the excluded text.
    ¶24    Even if the evidence were as probative as Ragner regards it, the blanket reception
    of all reliable and highly probative evidence in cases such as this one would result in the
    circumvention of laws designed to protect the legitimate interests of the victim. State v.
    8
    Van Pelt, 
    247 Mont. 99
    , 104, 
    805 P.2d 549
    , 552-53 (1991). The purpose of the rape shield
    statute is to prevent the trial from becoming a trial of the victim. State v. MacKinnon, 
    1998 MT 78
    , ¶ 35, 
    288 Mont. 329
    , 
    957 P.2d 23
    . The District Court fulfilled that purpose by
    making a fact-intensive inquiry, weighing the reliability of the evidence and the possibility
    of that evidence having a prejudicial effect on the victim, and then reaching a reasoned
    decision.
    ¶25    Issue Two: Whether the instructions provided by the District Court fully and fairly
    instructed the jury regarding the mental state applicable to charges of sexual
    intercourse without consent.
    ¶26    Section 45-5-503(1), MCA, defines the offense of sexual intercourse without
    consent as “[a] person who knowingly has sexual intercourse with another person without
    consent or with another person who is incapable of consent[.]” This definition was
    provided to the jury as Instruction 16.
    ¶27    The District Court also provided the jury with following definition of consent as
    Instruction 6:
    “Consent” means words or overt actions indicating a freely given
    agreement to have sexual intercourse or sexual contact and is further defined
    but not limited by the following:
    a. An expression of lack of consent through words or conduct means
    there is no consent or that consent has been withdrawn;
    b. A current or previous dating or social or sexual relationship by
    itself or the manner of dress of the person involved with the accused
    in the conduct at issue does constitute consent; and
    c. Lack of consent may be inferred based on all the surrounding
    circumstances and must be considered in determining whether a
    person gave consent.
    ¶28    The District Court rejected Ragner’s proposed jury instruction to define
    “knowingly,” with respect to the “without consent” element, as “the person is aware that
    9
    the circumstance exists.” The District Court instead instructed the jury that “knowingly,”
    with respect to the totality of the elements of the crime of sexual intercourse without
    consent, as “the person is aware of his or her conduct.”
    ¶29    Ragner faults the District Court for failing to instruct the jury “as to the critical
    mental element” of ASIWC. Ragner claims that his defense was prejudiced by the given
    jury instructions because—he alleges—the instructions directed the jury’s attention away
    from whether Ragner knew C.M. did not consent to the intercourse and relieved the State
    of proving beyond a reasonable doubt that Ragner knew C.M. did not consent.
    ¶30    A district court has broad discretion in formulating and approving jury instructions.
    Kaarma, ¶ 27 (citation omitted). A district court’s function during trial is to instruct the
    jury accurately and to correctly state the law applicable in the case. Daniels, ¶ 34 (citation
    omitted).
    ¶31    Ragner argues for a heightened standard for review of district court jury instructions.
    He interprets State v. Azure, 
    2005 MT 328
    , 
    329 Mont. 536
    , 
    125 P.3d 1116
    , as requiring a
    district court to specify a definition of “knowing” for every distinct kind of element in a
    crime. Azure offers no such rule. Relatedly, he cites State v. Lambert, 
    280 Mont. 231
    ,
    236-37, 
    929 P.2d 846
    , 849-50 (1996) in support of an alleged obligation on district courts
    to not omit any of the specific definitions of “knowingly” related to a crime.
    ¶32    Ragner’s interpretation of Azure diverges from the actual holding. The Azure Court
    simply repeated our determination that courts must determine which of the four definitions
    of “knowingly” is applicable to the case and instruct the jury accordingly. Azure, ¶ 20.
    10
    ¶33    Ragner also misstates the rule set forth by the Lambert Court. The Court applied
    § 45-2-103(4), MCA, to reverse a district court’s application of a definition of knowingly
    that would lead to unfair results in criminal endangerment cases. Lambert, 
    280 Mont. at 236-37
    , 
    929 P.2d at 849-50
    . Section 45-2-103(4), MCA, states that “[i]f the statute
    defining an offense prescribes a particular mental state with respect to the offense as a
    whole without distinguishing among the elements of the offense, the prescribed mental
    state applies to each element.” The district court instructed the jury that a defendant need
    only be “aware of his conduct” to “knowingly” act. Lambert, 
    280 Mont. at 237
    , 
    929 P.2d at 850
    . We reversed on that instruction reasoning that if criminal endangerment applied in
    cases where the defendant merely appreciated their conduct, rather than where the
    defendant was aware of a high probability that the conduct in which he was engaging would
    cause a substantial risk of death or serious bodily injury to another, then even driving a car
    could be criminal. Lambert, 
    280 Mont. at 236
    , 
    929 P.2d at 849
    .
    ¶34    We do not find that the District Court acted arbitrarily or beyond the bounds of
    reason.   The District Court properly used its discretion and followed the statutory
    requirements of § 45-2-103(4), MCA, by instructing the jury to apply an appropriate
    definition of knowingly.
    ¶35    Issue Three: Whether the District Court’s absence of a specific unanimity
    instruction resulted in reversible plain error.
    ¶36    Though Ragner failed to preserve the issue below, he asks this Court to apply plain
    error review to the District Court’s general unanimity instruction. He alleges that the
    District Court’s instruction violated his constitutional right to a unanimous verdict because
    11
    the instruction did not require all of the jurors to agree whether C.M. was incapable of
    consenting or whether she did not affirmatively consent.
    ¶37    Criminal verdicts must be unanimous. Mont. Const. Art. II; State v. Wells, 
    2021 MT 103
    , ¶¶ 17-20, 
    404 Mont. 105
    , 
    485 P.3d 1220
    . Doubts about the unanimity of a verdict
    implicates the fundamental fairness of the trial. State v. Dasen, 
    2007 MT 87
    , ¶ 39, 
    337 Mont. 74
    , 
    155 P.3d 1282
    . Here, the District Court provided a general instruction that all
    jurors must agree on the verdict.
    ¶38    District courts must give specific unanimity instructions when a single criminal
    statute creates multiple crimes in order to prevent jurors from potentially finding the
    defendant guilty of two different crimes. Wells, ¶ 17. For instance, in State v. Weldy, 
    273 Mont. 68
    , 77-78, 
    902 P.2d 1
    , 6-7 (1995), we required a specific unanimity instruction with
    respect to a felony assault statute, § 45-5-202, MCA, that created separate offenses: one
    required a person to cause bodily injury with a weapon; the other required a person to cause
    reasonable apprehension of bodily injury with a weapon. By contrast, in Kills on Top v.
    State, 
    273 Mont. 32
    , 55-56, 
    901 P.2d 1368
    , 1383 (1995), we did not require such an
    instruction after determining that a multi-part criminal statute, aggravated kidnapping,
    § 45-5-303(1)(c), MCA, described alternative means of satisfying the common element of
    a single crime. However, the Court acknowledged that it may have reached a different
    decision had the appellant demonstrated that the alternatives were “so morally disparate as
    to represent inherently separate offenses.” Kills on Top, 
    273 Mont. at 56
    , 
    901 P.2d at 1384
    .
    ¶39    Here, the District Court instructed the jury as Instruction 17:
    12
    To convict the Defendant of sexual intercourse without consent, the
    State must prove the following elements:
    1. That the Defendant had sexual intercourse with C.M.;
    AND
    2. That the act of sexual intercourse was without C.M.’s consent;
    AND
    3. That the Defendant acted knowingly.
    If you find from your consideration of all the evidence that all of these
    elements have been proved beyond a reasonable doubt, then you should find
    the Defendant guilty.
    If, on the other hand, you find from your consideration of all the
    evidence that any of these elements has not been proved beyond a reasonable
    doubt, then you should find the Defendant not guilty.
    ¶40    The District Court provided a general instruction requiring that the jury
    unanimously find Ragner guilty of the stated elements. It did not need to provide a separate
    unanimity instruction. Section 45-5-503(1), MCA, provides for alternative means of
    satisfying the consent element but Ragner fails to demonstrate that the two means of having
    sexual intercourse absent the affirmative consent of the victim are so morally disparate as
    to represent inherently separate offenses.
    ¶41    Ragner mischaracterizes § 45-5-503(1), MCA, as a single criminal statute that
    creates multiple crimes. Section 45-5-503(1), MCA, criminalizes conduct where “[a]
    person [] knowingly has sexual intercourse with another person without consent or with
    another person who is incapable of consent[.]” Ragner relies on the “or” in the subsection
    to support his contention that the statute actually contains two different crimes contingent
    upon the reason for the absence of the victim’s freely given agreement to have sexual
    intercourse.
    ¶42    Neither the text of § 45-5-503(1), MCA, nor the definitions underlying the key
    provisions of that subsection support Ragner’s contention that the “or” bifurcates the
    13
    subsection into two different crimes. We previously concluded that the presence of an “or”
    is not determinative as to whether a statute creates two different crimes. See Kills on Top,
    
    273 Mont. at 55-56
    , 
    901 P.2d at 1383-84
    . The inclusion of these two clauses in the same
    subsection supports the conclusion that, in referring to sexual intercourse with another
    person without consent and to sexual intercourse with another person who is incapable of
    consent, the subsection described alternative means of satisfying the absence of freely
    given consent. The law criminalizes intercourse without freely given consent.
    ¶43    The District Court properly instructed the jury by delivering a general unanimity
    instruction. We decline to exercise plain error review.
    CONCLUSION
    ¶44    We affirm the District Court’s decision to apply the rape shield law to exclude a
    portion of C.M.’s texts. We conclude that the District Court’s jury instructions fully and
    fairly instructed the jury on the applicable law. We do not identify any basis for reversal
    based on plain error arising from the District Court’s general unanimity instruction.
    ¶45    Affirmed.
    /S/ MIKE McGRATH
    We Concur:
    /S/ JAMES JEREMIAH SHEA
    /S/ LAURIE McKINNON
    /S/ INGRID GUSTAFSON
    /S/ JIM RICE
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