State v. D. Cord

11/01/2022
DA 20-0259
Case Number: DA 20-0259
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 220NSTATE OF MONTANA,
Plaintiff and Appellee,
v.
DAVID JOSEPH CORD,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and For the County of Roosevelt, Cause No. DC-18-37
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Ryan Aikin, Aikin Law Office, PLLC, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Roy Brown, Assistant
Attorney General, Helena, Montana
Frank A. Piocos, Roosevelt County Attorney, Wolf Point, Montana
Submitted on Briefs: September 21, 2022
Decided: November 1, 2022
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 David Joseph Cord (Cord) appeals his conviction and sentence for felony sexual
assault, § 45-5-502, MCA, from the Montana Fifteenth District Court, Roosevelt County.
¶3 The following facts were elicited through witness testimony at trial. On
September 21, 2018, around 3:00 a.m., Anthony Bowland (Anthony) woke up to banging
on his door at his home in Culbertson and a “car racing off.” He got out of bed and saw
his wife, Brandy Bowland (Brandy), standing in the entryway after she had been out
drinking with Cord and Cord’s co-defendant, Dominic Moon (Moon). Anthony and
Brandy were separated and had not lived together for over two years. Brandy lived with
four of their six children, including H.B. Brandy was dating Jim Olson (Olson) at the time.
¶4 Olson was staying at Brandy’s house after he had fallen asleep in her bedroom
around 10:00 p.m. Olson woke up and heard the door open between 2:30 a.m. and 3:00
a.m. He assumed it was Brandy entering the house. He waited for Brandy to come into
the bedroom, but instead he saw Cord and Moon attempting to walk into the bedroom.
After seeing Olson in the bed, Cord and Moon retreated and stood in the hallway
“whispering” to each other. Olson got out of bed to confront them and told them to leave
because children were in the house, and they had school in the morning. Cord and Moon
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finally left the house five to ten minutes later and drove away in Brandy’s car. Olson was
upset that Brandy was still not home, so he left Brandy’s house to go to his own home after
she did not answer his phone calls.
¶5 Ten minutes after Olson left Brandy’s house, he returned because he had left his
work boots. Upon returning, Olson noticed that Cord and Moon were back at Brandy’s
house. Olson saw H.B. sitting in the living room awake with Cord and Moon. H.B.
testified that she was “woken up by [the] arguing” between Olson, Cord, and Moon. H.B.
left the couch and moved upstairs to Brandy’s bedroom since Olson had left and no one
else was in her mother’s bedroom. Olson retrieved his boots and left for a second time.
¶6 After H.B. went upstairs to sleep, she heard footsteps and assumed it was her mother
walking upstairs to go to bed. However, Cord and Moon entered Brandy’s bedroom where
H.B. was trying to sleep, and Cord jumped on top of H.B. while Moon held her arms down
and bit her neck. H.B. cried and told Cord and Moon to “get off me.” She told Cord to
stop, but Cord put his arm in her mouth so nobody in the house could hear her yell. Moon
did not touch any of H.B’s intimate body parts and walked away to the end of the bed,
where he sat. H.B. testified that it hurt, and she was in pain when Cord touched and
penetrated her vagina with his penis. She affirmed that she never pursued or wanted a
romantic relationship with Cord.
¶7 In the meantime, Anthony had driven Brandy to her house and arrived after Olson
had left for the second time. When they went inside, they heard “wrestling” and “creaking”
from upstairs. Brandy went upstairs to determine what the noise was and “hollered” loudly.
Cord came running down the stairs “holding his erect penis in his hand.” H.B. noted that
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Cord and Moon ran out of the bedroom “very fast, they wanted to get out of there.” Cord
was naked from the waist down and had left his pants, underwear, and shoes in Brandy’s
bedroom. Anthony punched Cord in his head, and Cord hit Anthony in his face before
Cord and Moon ran out the front door. After Cord and Moon left, Brandy and H.B. returned
downstairs. Anthony immediately called the Roosevelt Sheriff’s Department around
4:00 a.m.
¶8 A sergeant from the Sheriff’s Department arrived on the scene at 5:00 a.m. to take
Anthony’s statement. The sergeant did not take a statement from H.B. or transport her to
the hospital for an examination. He also did not collect evidence or take photographs of
the scene. The sergeant testified that H.B. was “reserved and quiet” and occasionally
giggled with her sister while he interviewed Anthony. Roosevelt County Sherriff’s Deputy
Patrick O’Connor interviewed Cord and Moon about the incident on two separate
occasions—Cord on November 5, 2018, and December 19, 2018, and Moon on September
27, 2018, and December 19, 2018.
¶9 The State charged Cord with Sexual Intercourse Without Consent (SIWC), a felony,
in violation of § 45-5-503, MCA, and, alternatively, with Attempted SIWC (Count I). The
State also charged Cord with Sexual Assault, a felony, in violation of § 45-5-502(1), MCA
(Count II). The Information recited a “Penalty” provision for both counts.1 The Penalty
for Count II provided:
1
We will not address the Penalty recited for Count I because Cord was acquitted on the SIWC
charge.
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Count II: Pursuant to § 45-5-502(3), if the victim is less than 16 years old
and the offender is 3 or more years older than the victim or if the offender
inflicts bodily injury upon anyone in the course of committing sexual
intercourse without consent, the offender shall be punished by life
imprisonment or by imprisonment in the state prison for a term not less than
4 years or more than 100 years and may be fined not more than $50,000.
The District Court conducted a jury trial and consolidated Cord’s trial with Moon’s trial
based on the State’s allegation that Moon was an accomplice to Cord’s SIWC charge.
¶10 At trial, neither Cord nor Moon testified. Nonetheless, the State called Deputy
O’Connor as a witness and provided him with transcripts of the defendants’ interviews.
On direct examination, the State read excerpts from the transcripts of the interviews into
evidence and asked Deputy O’Connor if he had read each statement correctly. Cord and
Moon objected to the State reading the transcripts and the State responded that the
transcripts showed alleged “inconsistencies” between the two defendants’ interviews. The
District Court allowed the direct examination to continue.2 Neither the transcripts of the
interviews nor recordings of the interviews were entered into the trial record or played for
the jury.
2
From the trial transcript, nearly 40 pages are dedicated to the State’s use of the interviews during
its direct examination of Deputy O’Connor. As an example, the State asks Deputy O’Connor
(In this excerpt, Cord is referred to as “D.C.” and Deputy O’Connor is referred to as “P.O.”):
Q Now let’s go to Joey Cords [sic] second interview. So again, this is the
second interview which took place on December 19, 2019. We will go to page 19,
lines 9 through 15 and then lines 27 through 28 onto page 20, lines 1 through 4. So,
page 19, line 9: P.O., “Alright in describing the lighting in the room, was pitch
black or could you guys see each other” D.C., “Yeah.” P.O., “Were the lights on?”
D.C., “The lights were on.” P.O., “The lights were on when you guys were in
there?” D.C., “MMhhh.” Deputy O’Connor did I read that one correctly?
A Yes.
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¶11 The record, however, demonstrates the interviews contained a significant number
of exculpatory statements. Cord and Moon both indicated that H.B. invited them inside
the house and that she “pulled” them upstairs. Moon told Deputy O’Connor that he was
“so intoxicated” from drinking with Brandy earlier that evening that he could not remember
the details of what happened between H.B. and Cord. Cord expressly denied having sexual
intercourse with H.B. in the interview. Moon told Deputy O’Connor that he knew “nobody
raped [H.B.]” and that when Brandy got home, H.B. said “Oh, somebody is here.” In the
interview, Cord said Brandy had been trying to get H.B. and him together for months. Both
Cord and Moon told Deputy O’Connor that H.B. and her mother had said H.B. was
16 years old and nearly 17. Moon said he had seen H.B. drinking and smoking cigarettes
with her mother and that he did not think Brandy would allow this if H.B. were only
15 years old. Finally, Cord told Deputy O’Connor that at the time of the interview, he
knew H.B. was 15, but at the time of the incident he thought H.B. was 16. Both Cord and
Moon were 24 years old at the time of the incident. Deputy O’Connor stated at trial that
Cord was born in 1994 and confirmed that H.B. was born in 2002.
¶12 The District Court provided the following verdict form, set forth in its entirety, to
the jury:
1. Did the State prove beyond a reasonable doubt that David Cord had
sexual intercourse with H.B. without consent?
YES ___ NO___
If you answered Yes, your verdict is Guilty.
If you answered No, please proceed to question 2.
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2. Did the State prove beyond a reasonable doubt that David Cord
committed the crime of “attempted” sexual intercourse with H.B. without
consent?
YES ___ NO___
If you answered Yes, your verdict is Guilty.
If you answered No, please proceed to question 2 [sic].
3. Did the State prove beyond a reasonable doubt that David Cord had
sexual contact with H.B. without her consent?
YES ___ NO___
The sexual assault charge thus omitted language at the bottom of the instruction—“If you
answered Yes, your verdict is guilty.”
¶13 The jury acquitted Cord of SIWC but determined that Cord “had sexual contact with
H.B. without her consent” in accordance with the third question on the verdict form. Moon
was acquitted of all charges.
¶14 Cord filed a Motion for a New Trial on October 10, 2019, and attached an affidavit
from his attorney, Terrance Toavs, attesting that a juror had informed Toavs that the jury
had requested from the bailiff that they be allowed to review the transcripts of the
defendants’ police interviews, but that the District Court declined to answer their request.
In his motion, Cord argued the District Court erred in denying the jury’s request without
informing counsel. Moreover, Cord argued the District Court should have provided the
transcripts to the jury because the State’s method of presenting the evidence was very
confusing. Cord argued he was prejudiced because the jury was clearly confused and had
“misconstrued” the evidence. The State contended that Cord was attempting to introduce
intrinsic juror information prohibited by M. R. Evid. 606 and that Cord never requested the
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interview transcripts or recordings be entered into evidence or played for the jury. The
District Court denied Cord’s motion, reasoning:
As far as the jury decision because jurors weren’t provided a copy of the
transcript. Transcripts generally aren’t allowed, you’re not allowed to
emphasize some testimony otherwise and, generally, as a general rule, the
Supreme Court frowns on letting transcripts into the jury room.
The District Court added, “The physical transcripts of the defendants’ interviews were
never entered into evidence by either party. As such, it would have been error for the Court
to admit them and for the jury to refer to them during deliberations.” In its Order denying
Cord’s motion for a new trial, the District Court held that the State’s use of the interview
transcripts during direct examination of Deputy O’Connor was permissible as prior
inconsistent statements and statements by a party opponent. The District Court sentenced
Cord to 40 years in prison, with 35 years suspended, and imposed a $50,000 fine.
¶15 Section 45-5-502, MCA, sets forth the offense of sexual assault and provides, in
pertinent part:
(1) A person who knowingly subjects another person to any sexual contact
without consent commits the offense of sexual assault.
(2) (a) On a first conviction for sexual assault, the offender shall be fined an
amount not to exceed $500 or be imprisoned in the county jail for a term not
to exceed 6 months, or both.
. . .
(3) If the victim is less than 16 years old and the offender is 3 or more years
older than the victim or if the offender inflicts bodily injury upon anyone in
the course of committing sexual assault, the offender shall be punished by
life imprisonment or by imprisonment in the state prison for a term of not
less than 4 years, unless the judge makes a written finding that there is good
cause to impose a term of less than 4 years and imposes a term of less than
4 years, or more than 100 years and may be fined not more than $50,000.
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¶16 On appeal, Cord makes several arguments. Cord did not preserve a claim for
instructional error. However, we conclude the failure to instruct the jury fully and
adequately on the age disparity required to convict under § 45-5-502(3), MCA, merits plain
error review and is dispositive of the remaining alleged errors.
¶17 The plain error doctrine allows this Court to discretionally review claims not
preserved at trial that implicate a criminal defendant’s fundamental rights. State v. George,
2020 MT 56, ¶ 4, 399 Mont. 173, 459 P.3d 854. We invoke plain error review “on a
case-by-case basis, according to narrow circumstances, and by considering the totality of
the circumstances.” State v. Williams, 2015 MT 247, ¶ 16, 380 Mont. 445, 358 P.3d 127.
We may review and correct an unpreserved assertion of error based upon a showing of:
(1) a plain or obvious error; (2) that affected a constitutional or other substantial right; and
(3) which prejudicially affected the fundamental fairness or integrity of the proceeding.
State v. Abel, 2021 MT 293, ¶ 4, 406 Mont. 250, 498 P.3d 199. For example, “[i]f a
defendant had the opportunity to object to a jury instruction at trial but failed to do so, we
will ordinarily not examine the issue unless it qualifies for plain error review.” State v.
Birthmark, 2013 MT 86, ¶ 11, 369 Mont. 413, 300 P.3d 1140. The remedy following
application of plain error review is reversal, in which this Court has the authority to “rectify
a trial court judgment that . . . leaves unsettled the question of the fundamental fairness of
the trial.” State v. Akers, 2017 MT 311, ¶ 20, 389 Mont. 531, 408 P.3d 142.
¶18 We can review whether the jury was fully and fairly instructed under the plain error
doctrine. “One of the fundamental principles of the criminal justice system is the
requirement that the State prove each element of a charged offense beyond a reasonable
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doubt.” State v. Price, 2002 MT 284, ¶ 33, 312 Mont. 458, 59 P.3d 1122. In State v.
Ghostbear, 2014 MT 192A, 376 Mont. 500, 338 P.3d 25, we held that the State was
required to prove the parties’ ages because age was one of the elements of the charged
offense under § 45-5-502(3), MCA. Because the jury in Ghostbear had been instructed
about the parties’ age disparity, this Court held:
Under the instructions as given, the jury’s verdict required the jury to find
the essential elements of sexual assault as charged in this case. Under the
instructions as given, the jury could not have returned the conviction without
determining as a matter of fact that the victim was under the age of 14 and
that Ghostbear was more than 3 years older. By following the instructions
and by returning a guilty verdict the jury necessarily found as facts the
respective ages of Ghostbear and the victim. This constitutes felony sexual
assault under § 45-5-502(3), MCA. The jury’s verdict reflects a finding of
the age disparity required by § 45-5-502(3), MCA.
Ghostbear, ¶ 14.
¶19 Indeed, the State concedes that the District Court erred when it failed to fully instruct
the jury that age disparity was an element of the offense. Cord’s constitutional rights of
due process and a trial by jury were jeopardized when his conviction rested upon a
determination by the jury that did not include all elements of the charged offense.
See United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310 (1995) (holding that the
constitutional guarantees to due process and a trial by jury “require criminal convictions to
rest upon a jury determination that the defendant is guilty of every element of the crime
with which he is charged, beyond a reasonable doubt”). When a jury is not instructed on
each element of the crime but nonetheless finds the defendant guilty of the crime charged,
the fundamental fairness of the proceeding is necessarily undermined.
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¶20 Moreover, we remain unconvinced that the jury instructions, considered as a whole,
fully and fairly instructed the jury on the applicable laws of the case. See State v. Kaarma,
2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609. Instructional error stems from the right to
trial by jury, the right to have the State prove every element of the offense, and the
presumption of innocence prior to conviction. State v. Daniels, 2019 MT 214, ¶ 32, 397
Mont. 204, 448 P.3d 511. When a district court commits a jury instructional error, it
hinders the jury’s ability to collectively consider the facts and circumstances in determining
guilt or innocence. City of Missoula v. Zerbst, 2020 MT 108, ¶¶ 23, 30, 400 Mont. 46, 462
P.3d 1219. Here, the relevant instructions are:
Instruction 29
Sexual Assault
A person who knowingly subjects another to any sexual contact without
consent commits the offense of sexual assault.
Instruction 31
Issues in Sexual Assault
To convict the Defendant of sexual assault, the State must prove the
following elements: 1. That the Defendant subjected H.B. to sexual contact;
AND 2. That the sexual contact was without H.B.’s consent; AND 3. That
the Defendant acted knowingly.
If you find from your consideration of 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 [sic] find from your consideration of the
evidence that any of these elements has not been proved beyond a reasonable
doubt then you should find the Defendant not guilty.
The only other relevant instructions were (1) Instruction 18, stating that H.B. was capable
of consenting to sexual contact because she was at least 14; and (2) Instruction 19,
providing that a person under 16 is incapable of consenting to sexual intercourse.
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¶21 Importantly, while the State’s theory of the case may have been that H.B. did not
consent or agree to Cord’s sexual contact–a misdemeanor under § 45-5-502(1), MCA—
the State charged Cord and obtained a conviction under § 45-5-502(3), MCA, a felony,
without the jury being instructed on age disparity—an additional element of the offense.
In Ghostbear, the jury was properly instructed on each element of § 45-5-502(3), MCA,
and, therefore, Ghostbear is distinguishable. Here, the jury was never instructed that age
disparity was an element of the offense.
¶22 We conclude that the failure to instruct on an element of the offense was a plain or
obvious error that affected Cord’s constitutional right to due process and trial by jury and
that the error prejudicially affected the fundamental fairness or integrity of Cord’s trial.
We exercise plain error review and reverse Cord’s conviction for sexual assault.
¶23 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶24 Reversed.
/S/ LAURIE McKINNON
We Concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ JIM RICE
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