State v. Pine

548 P.3d 390

413 Mont. 254

2023 MT 172

STATE of Montana, Plaintiff and Appellee, v. Seidel PINE, Defendant and Appellant.

STATE of Montana, Plaintiff and Appellee,

v.Seidel PINE, Defendant and Appellant.

DA 21-0202

Supreme Court of Montana.

Submitted on Briefs: June 28, 2023

Decided: September 19, 2023

APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DC-18-330, Honorable Robert J. Whelan, Presiding Judge

For Appellant: Chad Wright, Appellate Defender, Deborah S. Smith, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Christine Hutchison, Assistant Attorney General, Helena, Montana, Eileen Joyce, Butte-Silver Bow County Attorney, Kelli Johnson Fivey, Deputy County Attorney, Butte, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

₂₅₇¶1 A jury convicted Seidel Pine (Pine) in the Second Judicial District Court, Silver Bow County, of aggravated kidnapping, sexual intercourse without consent (SIWOC), and partner or family member assault (PFMA). Pine appeals.

¶2 We affirm and restate the. issues on appeal as follows:

1. Is Montana Code Annotated § 45-5-303(2), MCA, facially ₂₅₈unconstitutional because it permits a judge, rather than a jury, to find facts that reduce the maximum penalty?

2. Did the District Court abuse its discretion by designating Pine a level three sex offender?

3. Was Pine’s counsel ineffective for failing to argue the maximum sentence for kidnapping was 10 years based on mitigating factors and for failing to object to Pine’s level three sex offender designation?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 The charges in this case arose following a report from a female, K.R., who stated she had been in a relationship with Pine, and he had held her against her will while he sexually assaulted her, including nonconsensual sexual intercourse. Pine and K.R. were previously married and have four children together. In November of 2018, Pine and K.R. reconnected and traveled from Missoula to Butte in K.R.’s Jeep Cherokee (Jeep) to a house Pine was sharing with three other people. During their time in Butte, Pine and K.R. consumed alcohol and used methamphetamine with Pine’s roommates and friends.

¶4 K.R. and Pine partied in town for about two weeks without any problems. However, following an argument on November 17, during which Pine’s phone was broken, the relationship began to deteriorate. K.R. testified that she unintentionally broke Pine’s phone after swatting it out of his hand. Pine testified that K.R. intentionally broke his phone by slamming it on the street. Both agreed that after his phone was broken, Pine became angry and slashed one of K.R.’s tires. They continued to argue until law enforcement intervened after a neighbor called 911. The interaction did not result in any charges being brought and Pine and K.R. ultimately returned to Pine’s house after Pine replaced K.R.’s tire with a spare. Upon returning to Pine’s house, Pine took K.R.’s phone and car keys and forced her to remain in his room.

¶5 From November 17 to November 23, Pine forced K.R. to undress and remain naked and confined in Pine’s room. During this time, she was not allowed to shower or use the bathroom without Pine’s permission. Pine would sleep next to the bedroom door to prevent her from escaping. Pine denied that he ever forced K.R. to remain in the house and maintained that she was always free to leave. On November 23, K.R. and Pine left Pine’s house and traveled to Bozeman. On the way, they stopped at a gas station in Belgrade where Pine entered the store and K.R. remained in the Jeep. K.R. explained that Pine left the keys in the Jeep which enabled her to escape. However, she was pulled ₂₅₉over by law enforcement from Belgrade for having a broken tail light shortly after exiting the parking lot.

¶6 When Pine exited the gas station, he noticed K.R. had left with the Jeep and was not sure where she had gone. Pine observed "cop car lights going on and off’ down the road and walked towards them thinking it might be K.R. Upon arriving at the Jeep, Pine attempted to peer into K.R.’s window but was stopped by the officers. Both Pine and K.R. were detained and brought to the police station where K.R. made a statement. K.R. was allowed to return to her Jeep and Pine was later released to a homeless shelter. After returning to her Jeep, K.R. drove to a hotel and asked to use a computer so that she could message her sister on Facebook Messenger. While on Facebook Messenger she received a message from Pine stating "Where are you baby?" and promising to give her gas money to get back to Missoula if she would drive him back to Butte.

¶7 K.R. testified that she picked Pine up and they returned to Butte but that upon returning Pine again brought her into the house and forced her to strip naked. She stated that after their return to Butte, Pine was even angrier and he began using a "taser" on her.¹ She estimated that Pine used the stun gun on her around 50 times prior to her ultimate escape. K.R. testified that sometimes Pine would stun her quickly and other times he would press it against her skin longer. Pine denied K.R.’s claims and stated that while he did own a stun gun, it was also a flashlight and only the flashlight worked on the device.

¶8 On November 26, 2018, K.R. and Pine left the house to get food. While in the Jeep, K.R. opened a beer and started drinking. This apparently upset Pine. Pine smacked the beer out of K.R.’s hand, and K.R. testified she knew "[she] was probably going to get beat up pretty bad." K.R. attempted to grab the keys out of the ignition but because the Jeep was still in gear, she was unable to remove them. This made Pine even angrier and, fearing for her safety, K.R. grabbed the steering wheel and jerked it, hoping to cause an accident. The Jeep sideswiped another vehicle, but Pine did not stop. Instead, Pine told K.R. to remove her clothing and pulled off onto a secluded road. K.R. testified that she believed Pine might kill her and so complied.

¶9 After stopping on a secluded road, Pine told K.R. to get out of the Jeep and fix the tail light. As K.R. walked towards the back of the ₂₆₀Jeep, Pine came up to her and punched the side of her head—which caused K.R. to fall onto the snow-covered ground. Pine then proceeded to kick K.R. while she curled into a ball. He then used the stun gun on her, punched her, and used a knife to cut off portions of her hair. During trial, Pine admitted he "backhanded [K.R.] a couple times" after she caused the accident and he did kick her "two or three" times but denied using a stun gun on her or cutting her hair. K.R. testified that after Pine finished beating her, he drove to a new location where he pulled over and told K.R. to have sex with him while raising his hand as if to strike her. K.R. said she did not want to, but Pine told her to "[s]it your ass up and fucking get on" and that he was "going to take it" anyway. K.R. complied and got on top of Pine. However, Pine complained that she was making no effort or participating and so ordered K.R. to turn around and continued to sexually assault K.R. from behind and to have sexual intercourse with her. Throughout the assault, K.R. told Pine she did not want to participate, but he did not listen. Pine denied assaulting K.R. and maintained that the intercourse was consensual. Afterwards, Pine told K.R. to get dressed and he drove to a liquor store and bought vodka. K.R. described how Pine would use the stun gun in his pocket to scare and intimidate her into compliance by activating it so she would hear the "snapping noise," causing her to feel she could not leave.

¶10 Pine continued to confine K.R. in his home. On November 28, 2018, K.R. managed to borrow a phone from someone in the house and messaged her sister stating that she needed help and that she was trying to escape. That evening law enforcement came to the house but after announcing their presence everyone in the house remained silent and Pine ordered K.R. to be quiet and to go upstairs to his room. After law enforcement left, Pine opened the front door and told K.R. she could leave but he had the stun gun in his left pocket and a knife in his right pocket and K.R. believed that if she tried to leave, he "was going to tase me and stab me."

¶11 On November 29, 2018, K.R. made the decision she was going to escape or, if she could not leave, was "going to kill myself because I [didn’t] want [Pine] to have the satisfaction of taking my life." That morning, police came a second time to the residence, but Pine again prevented K.R. from answering the door. K.R. attempted to leave while Pine was busy helping one of his roommates who had locked her keys in her car. However, Pine noticed that K.R. was attempting to leave and brought her back into the house where he made her take her clothes off and put on "some really dingy clothes." Pine once again grabbed the stun gun and knife, opened the front door, and told her ₂₆₁that if she wanted to leave, she could. This time K.R. left and began walking down the street with Pine following behind her. While walking, she encountered a woman getting into her car and K.R. asked for a ride, but Pine got into the car as well. The woman took K.R. and Pine to Stokes Grocery store. K.R. testified that after the woman left, she began crying loudly in order to make a scene. Pine left and K.R. entered the store and asked the first person she met to call law enforcement. Pine was later arrested at his residence.

¶12 K.R. was taken to the hospital where she was examined by Nadine Eikbush, a registered nurse, and interviewed by Detective Sergeant Jeff Williams. Sergeant Williams testified K.R. was visibly upset and had several injuries, including a black left eye and braising. Nurse Eikbush testified K.R. had a large braise on her right posterior thigh and buttock area and broken skin all over her body. K.R. indicated the...