State v. Hamernick

545 P.3d 666

414 Mont. 307

2023 MT 249

STATE of Montana, Plaintiff and Appellee,

v.Bryce Caleb HAMERNICK, Defendant and Appellant.

DA 21-0372

Supreme Court of Montana.

Submitted on Briefs: August 23, 2023

Decided: December 27, 2023

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC-2019-353, Honorable John W. Larson, Presiding Judge

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

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

Justice Jim Rice delivered the Opinion of the Court.

₃₀₉1 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 ralieving 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 a ₃₁₀guilty 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 ₃₁₁behavioral 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 time he touched her, he continued to assert that each interaction began with S.’s consent. Under cross-examination, Hamernick insisted that "every time she told [him] no, [he] stopped right away."

¶6 On July 7, 2018, both Hamernick and S. worked the closing shift at the restaurant. After closing, around 10:30 p.m., S. accompanied Hamernick to the restaurant’s storage building across the street, where Hamernick would enter supply orders. S. sat in a chair while Hamernick entered the order. Hamernick and S. provided differing accounts of what happened thereafter.

¶7 In S.’s retelling, after entering the order, Hamernick approached S., knelt in front of her, and then began touching her thigh, breasts, and neck. S. turned her head away to avoid Hamernick’s attempts to kiss her.

When S. tried to move away, Hamernick forced her hips down into the chair. S. kept telling Hamernick "no" and that she "had to go home." Hamernick asked S. if she was sure, telling her he thought she "wanted it anyways." Hamernick kept telling S. that she was not serious and that she was "joking" when she said "no." Hamernick forced S. to touch his penis with her hand. He removed her clothing, turned her to face away from him, and pushed her down on a table. When S. felt Hamernick’s penis between her legs, she tried to push him away using her hand. When S. felt Hamernick penetrate her vagina with his penis, she yelled at him to stop. Hamernick asked her if she "really wanted" him to stop. Throughout the encounter, S. tried to stand up and kept telling Hamernick she had to leave. She recalled that she somewhat "froze", and was not sure what to do. Eventually, Hamernick stopped. He apologized to S., telling her he felt as if he "just raped" her.

¶8 Conversely, Hamernick, under examination by his counsel, testified the interaction began with a "quiet moment" before he told S. "I really want to kiss you right now," to which she responded to by "giggl[ing]" and saying, "I bet you won’t." When he went to kiss her lips, she turned away but "put her neck out." He then asked if she wanted to be kissed, to which she again "giggled." Hamernick described this portion of the interaction as "kind of a game." He then kissed her ₃₁₂neck and S. "start[ed] to grab [his] arms … kind of pull[ed] [him] into her," which Hamernick described as "obviously reciproca[l]."

¶9 Hamernick continued to kiss S.’s neck and began "touching her knee and the inside of her thigh." Hamernick stated S. then "open[ed] her legs a little bit" so he "beg[an] to rub her vagina through her clothing." Hamernick "could tell that she was very into it." While Hamernick reached into S.’s clothing to "touch her vagina around her panties," S. was "saying yes and saying [his] name" and "enjoying herself." Hamernick testified, he "absolutely" could not have been "confused" about what S. wanted at this point because she was reciprocating and "never said stop" and "never pushed [him] away." When the two relocated for comfort, S. "had a big smile on her face " After asking for S.’s permission, to which she "said ‘uh-huh’ and moved her head up and down as a yes," Hamernick "took out [his] penis … lead her hand over [it]" and she "proceeded to give [him] a hand job." According to Hamernick, S. was then "smiling," "giggling," and "look[ed] like she [was] having a good time."

¶10 S. then stood up, mentioned that it was late, and "shuffled" around Hamernick to leave. Hamernick "pulled her into [his] body" and asked in a whisper whether she was sure she did not have more time—to which she responded, "I suppose." Hamernick then fold S. that he wanted to have sex with her. S. verbally responded with "an affirmative yes." They then moved to a nearby table and, with S.’s assistance, Hamernick undressed her to her underwear. Hamernick "began to rub the tip of [his] penis against her vagina" and Hamernick offered that S. was "having a good time, without a doubt." However, when Hamernick then began to "put [him]self inside her," S. "stiffen[ed] up" and said "no, not that." Hamernick then returned to his previous action of rubbing his penis in "her clit area," but S. then stated she did not "want any of this anymore," at which point, Hamernick claimed he "immediately back[ed] off." S. gathered her clothes and began to leave. Hamernick asked her what had happened, and S. responded she was not sure, but that they "shouldn’t have done that" and it’ "was too far." S., upon Hamernick’s prompting, said he had not done anything wrong, but that she should have "stopped it a lot sooner." They then parted ways.

¶11 S. testified that, at home, she could not sleep, "felt dirty," and wanted to "erase what had happened." After talking with her former boyfriend about the incident, S. contacted the police. In the following days, S. was medically evaluated, and bruising was found consistent with having been pushed down into a chair. The morning after the incident, police took Hamernick to the station for questioning. At ₃₁₃Hamemick’s residence, police found an apology letter in which Hamernick expressed regret to S. over betraying her. In his initial accounts to police, Hamernick expressed regret and repeatedly ex- plained what had occurred. He opined that S. may have felt violated because when she stopped his attempt at vaginal sex, he understood her rejection as specific to vaginal sex, and thus he continued his prior action, of rubbing his penis against her clitoris. About a year later, the State charged Hamernick with SIWOC.

¶12 Hamernick requested an instruction that defined the mental state of "knowingly" as being "aware that [the] sexual intercourse was without consent." The District Court declined this instruction and gave two instructions offered by the State, that "[a] person acts knowingly with respect to the element of sexual intercourse when the person is aware of his conduct"...