State v. Brown

410 Mont. 38

517 P.3d 177

STATE of Montana, Plaintiff and Appellee,

v.Joshua Aaron BROWN, Defendant and Appellant.

DA 21-0629

Supreme Court of Montana.

Submitted on Briefs: July 20, 2022

Decided: September 13, 2022

For Appellant: D. Michael Eakin, Daniel L. Minnis, Eakin & Berry, PLLC, Billings, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Bree Gee, Assistant Attorney General, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Billings, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 A Yellowstone County jury convicted Joshua Brown of Sexual Abuse of Children for sending text messages to his stepdaughter that encouraged her to engage in sexual conduct if he agreed to pay her cellular phone bill. Brown appeals his conviction, raising the following restated issues:

1. Whether the District Court should have instructed the jury that a violation of Privacy in Communications is a lesser-included offense of Sexual Abuse of Children.

2. Whether the State demonstrated probable cause for the charges and presented sufficient evidence to convict Brown as charged.

3. Whether the District Court should have found the Sexual Abuse of Children statute unconstitutional for vagueness or its mandatory minimum sentence to be cruel and unusual.

4. Whether the District Court failed to follow the statutory procedures for determining whether an exception to the mandatory minimum sentence applied under §§ 46-18-222(3) and -223(3), MCA.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On August 22, 2018, Brown engaged his twelve-year-old stepdaughter L.H. in a text message conversation. Brown and L.H.’s mother Carly, who were separated but not divorced at the time, had previously discussed Brown paying for L.H.’s cell phone bill for one year, and L.H. was aware of this possibility. Brown's initial text messages to L.H. appeared to pertain to L.H.’s cell phone bill; his messages, however, became increasingly predatory:

[Brown:] If you are my really good girl I will give you just about anything you want ...

[L.H.:] I just want money[ ]

[Brown:] You are amazing .. I want to give you like 1000$

[L.H.:] I wish lol¹

[Brown:] No for real ... What will you do for me?

[L.H.:] Idk²

...

[Brown:] What could you do? Something that would please me a lot, or something major ..

[L.H.:] Idk

...

[Brown:] I will say an idea . You promise I can trust you ... ?

[L.H.:] Sure

[Brown:] yes I can trust you? Don't say a word to anyone ever . Not one friend , no one but me and you right?

[L.H.:] What

[L.H.:] Ok

[Brown:] What we are talking about . No one can ever know ... right ?

[L.H.:] K

[L.H.:] Ya

[Brown:] You promise

[L.H.:] Yes

[Brown:] Nice I like you

[Brown:] Makes me want to come get you now and give you money ... lol

[L.H.:] No

[Brown:] Jk³

[L.H.:] Josh do you like me or something because your acting weird and I'm 13[ ]⁴ ...

[Brown:] Well I asked you if you could be a little bit naughty and you said yes[ ]

[Brown:] If it ...

[L.H.:] No I said idk

...

[Brown:] Is there anything you're kinda curious about or you would want to do for me ?

[L.H.:] No

... [Brown:] So I'm going to tell you my idea OK if it weirds you out you can tell me and I won't say anything like that again

[L.H.:] K but I'm not doing anything with you that's gross and your way older than me

[L.H.:] Plus your my moms husband so

...

[Brown:] Can I say ..?

[L.H.:] Yes

[L.H.:] K talk to you tmrw text me when you get the money

[Brown:] I was thinking you would look really amazing in a thong or really cool panties .. or nude of course .. and I know you're young BTW. But you are still beautiful . but it would be amazing to see you dancing or just laying on Your bed on your stomach and you just leave the door open a crack so I could see you?

[Brown:] Or leave the door unlocked and have a bunch of soap in your hair and eyes and I peaked [sic] in the shower on you? Never touch you at all ...

[Brown:] Uggh is that really bad ? Prob shouldn't have said that

[L.H.:] That's gross josh

[Brown:] Was just a thought ... lol I know sorry

[L.H.:] Don't talk to me again thanks

In the text messages that followed, Brown attempted to justify his behavior, first by telling L.H. he was "mostly joking" and just paying her a compliment. He then asked L.H. not to tell anyone, instructed her to erase the text messages, and said that the entire text message exchange was Carly's idea. After L.H. threatened to report him, he changed his story and said that the voice-text application on his cell phone transcribed the text messages incorrectly.

¶3 Carly reported the incident to the police, and the State charged Brown with Sexual Abuse of Children and attempted Sexual Abuse of Children, under §§ 45-5-625(1)(c) and 45-4-103, MCA. Brown moved to dismiss the charge on the grounds that the State lacked probable cause and that the Sexual Abuse of Children statute is unconstitutional, both facially and as applied to him. The District Court denied his motion. A Yellowstone County jury found Brown guilty of the offense, and the District Court sentenced him to 100 years with 90 years suspended, in accordance with the mandatory minimum sentence in § 45-5-625(4)(a)(i), MCA (2017).⁵

STANDARDS OF REVIEW

¶4 Because different standards of review apply to each issue Brown raises, we explain them in the discussion of his respective claims.

DISCUSSION

¶5 1. Whether the District Court should have instructed the jury that a violation of Privacy in Communications is a lesser-included offense of Sexual Abuse of Children.

¶6 Brown submitted a proposed jury instruction on the offense of "violation of a person's privacy in communications" as a lesser-included offense of "sexual abuse of children." He filed a point brief in support of the instruction, which the State opposed. The District Court heard argument from the parties at trial and denied Brown's proposed jury instruction, stating that the elements of the two offenses are "completely different."

¶7 "We review a district court's refusal to give a jury instruction on a lesser-included offense for an abuse of discretion."

State v. Freiburg , 2018 MT 145, ¶ 10, 391 Mont. 502, 419 P.3d 1234 (citations omitted). "Reversible error will occur only if the jury instructions prejudicially affect the defendant's substantial rights." Freiburg , ¶ 10 (citations omitted).

¶8 "A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense." Section 46-16-607(2), MCA. "[A] trial court must give a proposed lesser-included offense instruction when two factors are met: (1) as a matter of law, the offense for which the instruction is requested is a lesser-included offense of the offense charged; and (2) the proposed lesser-included offense instruction is supported by the evidence in the case." Freiburg , ¶ 13 (citations omitted); see also State v. Denny , 2021 MT 104, ¶ 27, 404 Mont. 116, 485 P.3d 1227. An "included offense" is an offense that:

(a) is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(b) consists of an attempt to commit the offense charged or to commit an offense otherwise included in the offense charged; or

(c) differs from the offense charged only in the respect that a less serious injury or risk to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

Section 46-1-202(9), MCA.

¶9 Under § 46-1-202(9)(a), MCA, "the term ‘facts’ refers to the statutory elements of the offenses, not the individual facts of the cases." State v. Fuqua , 2000 MT 273, ¶ 22, 302 Mont. 99, 13 P.3d 34. We use the test announced in Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180, 76 L.Ed. 306 (1932), to determine whether an offense is a lesser-included one under subsection (a). State v. Castle , 285 Mont. 363, 368, 948 P.2d 688, 691 (1997). "In other words, a lesser-included offense is one that is established by proof of the same or less than all the elements required to establish the commission of the offense charged." Denny , ¶ 29. If not, neither offense is "included" in the other. See State v. Fehringer, 2013 MT 10, ¶ 34, 368 Mont. 226, 293 P.3d 853 (holding that disorderly conduct is not a lesser included offense of partner or family member assault); State v. Weatherell , 2010 MT 37, ¶ 13, 355 Mont. 230, 225 P.3d 1256 (holding that sexual assault is not an included offense of partner or family member assault).

¶10 Brown argues that he was entitled to a jury instruction on the Privacy in Communications statute, § 45-8-213(1)(a), MCA, as a lesser-included offense of Sexual Abuse of Children, § 45-5-625(1)(c), MCA. He contends that, under the Blockburger test, a violation of the Privacy in Communications statute is an "included offense" of Sexual Abuse of Children pursuant to § 46-1-202(9)(a), MCA. Brown does not argue that either of the other subsections of § 46-1-202(9), MCA, applies.

¶11 A violation of Privacy in Communications, under § 45-8-213(1)(a), MCA, requires proof that a person:

(1) knowingly

(2) with the purpose to terrify, intimidate, threaten, harass, or injure

(3) communicates with a person by electronic communication and

(4) makes repeated lewd or lascivious suggestions.⁶

¶12 Sexual Abuse of Children, as provided for in § 45-5-625(1)(c), MCA, requires proof that a person:

(1) knowingly

(2) by any means of communication, including electronic

(3) encourages a child under 16 years of age to engage in sexual conduct, actual or simulated.⁷

The statute defines "sexual conduct" disjunctively, listing a number of alternatives that meet the definition, including, as pertinent here, the "lewd exhibition of the genitals, breasts, pubic or rectal area, or other intimate parts of any person." Section 45-5-625(5)(b)(i)(F), MCA.

¶13 Comparing the offenses, each requires an element of proof the other does not: a violation of the Privacy...