State v. Hamernick

414 Mont. 307

2023 MT 249

STATE OF MONTANA, Plaintiff and Appellee,

v.BRYCE CALEB HAMERNICK, Defendant and Appellant.

No. DA 21-0372.

Submitted on Briefs August 23, 2023.

Decided December 27, 2023.

2023 MT 249.

414 Mont. 307.

__P.3d__.

1. Criminal Law & Procedure – Appeals – Standards of Review – Abuse of Discretion – Reversible Error – Jury Instructions – Trials

The standard of review for jury instructions is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. Accordingly, the Montana Supreme Court reviews a trial court’s decision regarding jury instructions for abuse of discretion. The Supreme Court considers the instructions in their entirety and in connection with other instructions given and evidence introduced at trial. If the instructions are erroneous in some aspect, the mistake must prejudicially affect the defendant’s substantial rights in order to constitute reversible error.

2. Constitutional Law – Fundamental Rights – Procedural Due Process – Scope of Protection – Criminal Law & Procedure – Jury Instructions – Particular Instructions – Elements of Offense – Trials – Defendant’s Rights – Right to Due Process – Burdens of Proof – Prosecution

Jury instructions that relieve the State of its burden to prove each element of an offense violate a defendant’s right to due process.

3. Criminal Law & Procedure – Sexual Assault – Rape – Elements – Governments – Legislation – Interpretation

A person commits the offense of sexual intercourse without consent if the person knowingly has sexual intercourse with another person without consent. Mont. Code Ann. § 45-5-503(1). “Consent” means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact. Mont. Code Ann. § 45-5-501(1)(a). An expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn. § 45-5-501(1)(a)(i).

4. Criminal Law & Procedure – Jury Instructions – Particular Instructions – Elements of Offense – Governments – Legislation – Interpretation – Acts & Mental States – Mens Rea – Knowledge

When a criminal offense requires that a defendant act knowingly, the district court must instruct the jury on what the term knowingly means in the context of the particular crime. A district court has broad discretion in formulating and approving jury instructions. Courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word “knowingly” as applying that word to each element.

5. Criminal Law & Procedure – Acts & Mental States – Mens Rea – Knowledge – Governments – Legislation – Interpretation

The statutory definitions for “knowingly” in Mont. Code Ann. § 45-2-101(35) are commonly referenced in the Montana Supreme Court’s opinions by short labels or terms, including, respectively, the “conduct-based” definition, the “result-based” definition, and the “high probability of a fact” definition.

6. Criminal Law & Procedure – Jury Instructions – Particular Instructions – Elements of Offense

Where an offense criminalizes particularized conduct, a conduct-based instruction is appropriate.

7. Criminal Law & Procedure – Sexual Assault – Rape – Elements – Acts & Mental States – Mens Rea – Knowledge

The crime of sexual intercourse without consent is a conduct-based offense for which the mental state of “knowingly” is properly defined as when the person is aware of his conduct.

8. Criminal Law & Procedure – Criminal Offenses – Acts & Mental States – Mens Rea

If 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.

9. Criminal Law & Procedure – Trials – Judicial Discretion – Jury Instructions

A district court has broad discretion in formulating and approving jury instructions.

10. Criminal Law & Procedure – Acts & Mental States – Mens Rea – Knowledge

The “high probability of a fact” definition of “knowingly” is to be used when knowledge of the existence of a particular fact is an element of the offense. Mont. Code Ann. § 45-2-101(35). By the plain language, this mental state definition is directed to a narrower factual issue than the conduct-based definition of awareness of the person’s own conduct. § 45-2-101(35).

11. Criminal Law & Procedure – Sexual Assault – Rape – Elements

“Without consent” is a critical and often contested fundamental element of the crime of sexual intercourse without consent.

12. Criminal Law & Procedure – Acts & Mental States – Mens Rea – Knowledge – Evidence – Inferences & Presumptions – Inferences

The mental state of “knowingly” may be proven, and routinely is proven, by inference from the facts.

13. Criminal Law & Procedure – Sexual Assault – Rape – Elements – Evidence – Inferences & Presumptions – Inferences

The crime of sexual intercourse without consent is a conduct-based offense, necessitating an awareness of conduct mental state instruction. Under the language of the statute, the crime does not consist of sexual intercourse with a high probability the other person does not consent; rather, it is sexual intercourse with the awareness that it is without that person’s consent, which may permissibly be inferred from all of the facts and circumstances of the case. Mont. Code Ann. § 45-2-103(3).

Appeal from the District Court of Missoula County.

Fourth Judicial District Court, Cause No. DC-2019-353.

Honorable John W. Larson, Judge.

In a case in which defendant appealed his conviction of sexual intercourse without consent after a jury trial, the Supreme Court concluded that the district court erred by giving the jury a high-probability-of-a-fact definition of “knowingly” for the element of “without consent,” rather than a conduct-based definition, and thus failed to fully and fairly instruct the jury as to the applicable law; the Supreme Court further concluded the error, when considered in conjunction with defendant’s trial testimony prejudicially affected defendant’s substantial rights, because it undermined his defense by improperly lowering the State’s burden of proof.

Reversed and remaded.

JUSTICE BAKER dissented, joined by JUSTICES SHEA and McKINNON.

JUSTICE McKINNON dissented.

For Appellant: Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate Defender, Helena.

For Appellee: Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena; Kirsten H. Pabst, Missoula County Attorney, Ryan Mickelson, Deputy County Attorney, Missoula.

JUSTICE RICE delivered the Opinion of the Court.

¶1 Bryce Caleb Hamernick appeals his conviction of Sexual Intercourse Without Consent (SIWOC) after a jury trial in the Fourth Judicial District Court. The jury was instructed that, to reach a guilty verdict, it needed to find Hamernick was aware of the high probability the victim did not consent to sexual intercourse. Hamernick argues the instruction improperly lowered the State’s burden of proof by relieving it from proving that he knew his sexual conduct was without consent. We thus consider the following issue:

Did the District Court err by instructing the jury that, to reach aguilty verdict, it needed to find Hamernick was merely aware of the high probability the victim did not consent to sexual intercourse? ¶2 We reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 S.¹ was seventeen years old when she began working as a cashier at a Missoula restaurant. Hamernick also worked at the restaurant and eventually took a management position in which, when their shifts overlapped, he supervised S. At trial, S. testified that she initially found Hamernick to be “friendly.” Her opinion changed, however, when Hamernick began texting her about his sexual fantasies centered around her. S. texted Hamernick that she found his behavior, as her boss, to be inappropriate, and did not want him “hitting on [her].” Hamernick’s behavior could be cyclical: he would engage in the deleterious behavior, apologize to S. for not being able to “control [him]self,” profess he would stop, but return to his ways soon thereafter. Hamernick maintained that, although S. rebuffed his inappropriate text messages, she reacted positively to his advances in person.

¶4 At trial, Hamernick testified he started “feeling more than just friendship” toward S. in the winter of 2017. Further, despite S.’s repeated rejections, Hamernick explained he continued to pursue S. because he “absolutely” desired a relationship with her. Some of the restaurant employees expressed ambivalence towards the “light flirting” they described between Hamernick and S., while others expressed discomfort regarding what they viewed as Hamernick’s inappropriate interactions with S. while at work.

¶5 In the summer after her high school graduation, after she had turned eighteen years of age, S. broke up with her boyfriend of almost two years. Hamernick testified that, following the breakup, he and S. engaged in several consensual “physical interactions,” including “necking.” Hamernick relayed that S. would initially consent to these interactions, but always “flip[ped] a switch” and would tell him “stop” or “no” or even push him away, ending the interaction. Despite her protestations that ended each interaction, Hamernick maintained that “[w]ithout a doubt, [S.] was into it” up to that point. Hamernick’s behavioral cycle continued after these physical interactions. After being rebuffed during one such contact, Hamernick apologized to S. via text, stating he had “misread [her] reactions.” In a June 17, 2018 text, Hamernick proclaimed he would “stop forcing [him]self onto [her]” because she had “made [it] very clear” she did not want a romantic relationship with him, but he nonetheless returned to his pursuit of S. While Hamernick testified S. would say “stop” or some variation of “I don’t want to do this” every...