State v. T. Johnson

1 01/10/2023
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IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 21-0326
DA 21-0326
FILED
STATE OF MONTANA,
JAN 10 2023
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Plaintiff and Appellee,
v. ORDER
TIMOTHY JOHNSON,
Defendant and Appellant.
Timothy Johnson appeals his Eighteenth Judicial District Court sentence in Gallatin
County Cause No. DC-20-229C for one count of Sexual Intercourse Without Consent. The
State moves this Court for an order supplementing the record. Johnson opposes the State's
motion.
The State seeks to add to the record two documents, an affidavit and an information,
from a separate cause number involving Johnson—DC-20-252A. The documents detail the
State's two charges against Johnson for Sexual Abuse of Children, based on Johnson's
alleged distribution and possession of child pornography. The State ultimately dismissed
these two charges as part ofJohnson's agreement to plead guilty to a single count of Sexual
Intercourse Without Consent in the case now on appeal.
The State argues that because the District Court referenced Johnson's dismissed child
pomography charges during sentencing, those charging documents should be part of the
record on appeal. Johnson counters that the District Court did not rely on those documents
and that our review should be bound by the record in cause number DC-20-229C alone.
This Court's review is based on records and information before the District Court at
the time of its decision. In a direct appeal, this Court does not consider evidence outside the
record made before the trial court. See, e.g., State v. Azure, 2002 MT 22, ¶ 38,
308 Mont. 201, 41 P.3d 899 (citations omitted). Based on our review of the sentencing
transcripts and orders, we conclude that the District Court did not rely on the DC-20-252A
charging documents when it sentenced Johnson for Sexual Intercourse Without Consent in
DC-20-229C. The court stated in its Reasons for Sentence that it considered the
Pre-Sentence Investigation Report, Psychosexual Risk Assessment, and all other information
in the court file. All these items are available in the record that Johnson has presented to this
Court. Although the State mentioned the dismissed charges during Johnson's sentencing
hearing, the court did not. As it stands, the record is sufficient to enable the Court to rule
upon the issues raised. M. R. App. P. 8(2). There is no indication that the record contains
erroneous or accidental omissions. M. R. App. P. 8(6).
IT IS THEREFORE ORDERED that the motion to supplement the record is
DENIED. The State's exhibits are rejected and shall not be made part of the record.
The Clerk is directed to provide a copy of this Order to counsel of record.
DATED this I b day of January, 2023.
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