12/02/2025
DA 24-0473 Case Number: DA 24-0473
IN THE SUPREME COURT OF THE STATE OF MONTANA
2025 MT 275
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAY DEE DAVISSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DC-21-19 Honorable Robert J. Whelan, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Colin M. Stephens, Stephens Brooke, P.C., Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana
Matthew Enrooth, Butte-Silver Bow County Attorney, Butte, Montana
Submitted on Briefs: September 3, 2025
Decided: December 2, 2025
Filed:
__________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Jay Dee Davisson (Davisson) appeals from his June 17, 2024 Judgment and Order
of Commitment following a jury verdict of guilty of one count of sexual intercourse
without consent (SIWOC), in violation of § 45-5-503, MCA, in the Second Judicial District
Court, Butte-Silver Bow County. We affirm.
¶2 Davisson raises two issues on appeal, which we restate as follows:
Issue One: Whether the District Court committed plain error by providing a jury instruction which included an erroneous definition of “knowingly.”
Issue Two: Whether Davisson’s counsel was ineffective for stipulating to the incorrect mental state instruction.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On July 27, 2020, 15-year-old T.K. and two friends, teenaged H.R. and
twenty-year-old Brylee Lewis (Lewis), left a Butte, Montana, house party, where they had
been drinking and smoking marijuana, to find someone old enough to purchase more
alcohol for them. They found 45-year-old Davisson, the father of a mutual friend, who
was living in a hotel in Rocker, Montana. Davisson purchased the girls a 24-pack of
alcoholic malt beverages. T.K. had never met Davisson prior to this night.
¶4 Several days later, after midnight on August 2, 2020, T.K., H.R., and Lewis were
again drinking at a house party in Butte. Lewis, joined by T.K., took a walk away from
the party to avoid an ex-boyfriend. Lewis later testified that she was “pretty drunk” when
she left the party with T.K., who was also at that point intoxicated. A vehicle flashed its
lights at the girls, and T.K. approached. She recognized the driver as Davisson. Lewis
asked Davisson, who she believed was also “probably intoxicated,” to drive them to a gas
2 station for more alcohol. He drove them again to Rocker. All three entered the store.
Lewis and T.K. returned to the car to wait for Davisson. T.K. remembered sitting in the
back seat. Davisson returned with a bottle of whiskey, from which T.K. took a drink. After
leaving the gas station in Rocker, Davisson drove the girls back to Butte.
¶5 From here, T.K.’s memories become vague. She could not recall telling Davisson
her age. She recalled Davisson and Lewis inviting her to sit up front with them during the
drive back to Butte, which she did. She remembered feeling intoxicated. She recalled
taking another drink of whiskey before Lewis grabbed her thigh and pulled her onto her
lap. After that moment, T.K. remembered nothing else until she woke up the next morning.
¶6 During the drive, Lewis remembered the conversation shifting to “sexual” topics
and remembers both Davisson and T.K. touching her. Lewis and T.K. became physical,
and Lewis digitally penetrated T.K.1 Lewis remembered Davisson began touching T.K.
and he tried “to put his penis in her[,]” but she could not recall if they had sex in the car or
if Davisson ejaculated. Lewis’s memories were hazy; she recalled she was still wearing
pants, but not a shirt. Lewis claimed T.K. was not wearing a shirt and, at some point, her
pants were removed. She remembered Davisson also digitally penetrated T.K. Davisson
remained fully clothed. Lewis asked Davisson to take her home, which he did. She tried
to convince T.K. to stay with her, but Lewis was worried she would be unable to assist
T.K. up the stairs to her apartment due to the intoxicated state of both girls. Upon dropping
Lewis off at her apartment, T.K. and Davisson left together.
1 Lewis was legally an adult but was granted immunity for her contact with T.K. in exchange for her testimony.
3 ¶7 After dropping Lewis off at her apartment, Davisson returned to his hotel in Rocker
with T.K. Security camera footage from the hotel played at trial shows Davisson arriving
at 5:37 a.m. Hotel cameras recorded Davisson walking around the hotel before moving his
car to a side door. He moved his car to several other parking locations, with intervening
entries and exits from the hotel, until eventually parking near a side entrance. At 6:48 a.m.,
he was recorded carrying T.K. into the hotel. T.K., as seen on the surveillance video, was
completely limp, barefoot, and her face and head were covered with a dark-colored shirt.
Davisson later recalled T.K. appearing severely intoxicated and taking her clothes off
before leaving her to sleep on the bed. Before leaving the hotel that morning, Davisson
left T.K. a note with his name and phone number as well as a toothbrush and $30 in cash
for a cab back to Butte.
¶8 T.K. remembered waking up around 2:00 p.m., wearing neither pants nor
underwear. The shirt she was wearing was not hers. She was confused and scared. Having
lost her cell phone, she called Davisson using the hotel phone but could not recall the details
of their conversation other than telling him to “essentially F off.” A hotel employee who
interacted with T.K. remembered her being “very emotional” when she came to the lobby
to wait for a cab. A cab took T.K. to Lewis’s apartment in Butte, where one of Lewis’s
neighbors gave T.K. a ride to her car. T.K. returned to her home, where her father was
upset after she had failed to return home the previous night. T.K. then went to H.R.’s
house, but H.R. was not home. T.K. waited there. At this point, T.K. was feeling soreness
in “[her] vagina and [her] bottom.” When H.R.’s mother, Terri Jo, returned to H.R.’s
house, she convinced T.K. to go with her to the hospital.
4 ¶9 At the hospital, T.K. was taken to a room to wait for a Sexual Assault Nurse
Examiner (SANE). She began vomiting. Her head “was just pounding really, really bad.”
Terri Jo, unable to accompany an unrelated minor into the examination room, called T.K.’s
parents, who came to the hospital. A SANE nurse administered a rape kit, took photos of
T.K. genitals, and performed DNA swabs of T.K.’s vagina and anus. The SANE nurse
testified that T.K.’s genitals were sensitive to the touch. The SANE nurse also took photos
of “fresh, new bruise[s]” on T.K.’s wrist and inner thigh. Both DNA swabs matched
Davisson’s DNA with a statistical probability of 1 in 15.6 nonillions. T.K. was positive
for THC and the results detected methamphetamine in her system. The toxicology report
did not indicate alcohol. Given the elapsed time between when T.K. stopped drinking and
the administration of the test, this was not an unexpected result and would not rule out
T.K.’s admitted consumption of alcohol during the previous night. T.K. denied using
methamphetamine.
¶10 Lewis initially told law enforcement that T.K. told Davisson she was 20 years old
but admitted this was a lie in her trial testimony. However, Lewis testified at trial that T.K.
and H.R. had told Davisson their true age when he first purchased alcohol on July 27 for
them. She also told investigators that T.K. appeared to have “blacked out” from
intoxication.
¶11 Detective Joshua Stearns (Det. Stearns) interviewed Davisson, who recalled his first
meeting with the girls on July 27 and his belief that they were 20 years old. He further
claimed T.K. represented herself to be 24 years of age on a social media account and that
she also had a fake ID. He recalled T.K. whispering in his ear that she was 20 years old.
5 He believed that T.K. was older than 16 based on the way she was “sexually acting,” being
out late at a party and intoxicated, and his perception that she was more sexually mature
than Lewis. Davisson claimed he was shocked at learning T.K.’s real age. Davisson’s
recollection of the events of August 2 to Det. Stearns involved him leaving a bar to go to a
friend’s house, at which point he encountered B.L. and T.K. who asked him for a ride. He
claimed he had been drinking and probably should not have been driving. He recalled
having sex with T.K. in his car and ejaculating.
¶12 The State charged Davisson with SIWOC. During trial, the State advanced a
two-pronged theory of the case: that T.K. was incapable of consent due to her age and that
her intoxication rendered her physically helpless. Davisson did not testify. Davisson’s
attorney and the State stipulated to, relevant here, the following jury instruction: “A person
acts knowingly when the person is aware that there exists the high probability that a
person’s conduct will cause a specific result.” The jury returned a verdict finding Davisson
guilty of SIWOC. The jury, through a special verdict form, specifically found that
Davisson was guilty beyond a reasonable doubt of SIWOC because T.K. was under the age
of 16 and that he was guilty beyond a reasonable doubt because T.K. was incapacitated.
Davisson now appeals.
STANDARDS OF REVIEW ¶13 We generally do not review issues raised for the first time on appeal, but when a
defendant asserts an error implicating a fundamental right, we may choose to invoke plain
error review where failing to review the claimed error may result in a manifest miscarriage
of justice, may leave unsettled the question of the fundamental fairness of the trial or
6 proceedings, or may compromise the integrity of the judicial process. State v. Deveraux,
2022 MT 130, ¶ 21, 409 Mont. 177, 512 P.3d 1198 (citing State v. Favel, 2015 MT 336,
¶ 13, 381 Mont. 472, 362 P.3d 1126).
¶14 We review jury instructions given by a district court for abuse of discretion.
Deveraux, ¶ 20. Our review concerns whether the instructions, taken as a whole, fully and
fairly instruct the jury as to the applicable law. Deveraux, ¶ 20 (citation omitted). “‘If the
instructions are erroneous in some aspect, the mistake must prejudicially affect the
defendant’s substantial rights in order to constitute reversible error.’” Deveraux, ¶ 20
(quoting State v. Gerstner, 2009 MT 303, ¶ 15, 353 Mont. 86, 219 P.3d 866).
¶15 Ineffective assistance of counsel claims are mixed questions of law and fact which
we review de novo. State v. Secrease, 2021 MT 212, ¶ 9, 405 Mont. 229, 493 P.3d 335.
DISCUSSION
¶16 Issue One: Whether the District Court committed plain error by providing a jury instruction which included an erroneous definition of “knowingly.”
¶17 Davisson’s attorney stipulated to a jury instruction providing the result-based
definition of knowingly. Davisson now asks this Court to exercise plain error review and
reverse his conviction for SIWOC on the basis that, by providing the jury with the
result-based definition of knowingly, the District Court violated his right to due process
and relieved the State of its burden to prove each element of SIWOC.
¶18 Failure to object at trial generally constitutes a waiver of the right to seek appellate
review and this Court generally does not review issues raised for the first time on appeal.
Deveraux, ¶ 38 (citations omitted). However, this Court may, in its discretion, review an
7 unpreserved error under the “narrow exception of plain error review.” Deveraux, ¶ 38. We
apply it sparingly, on a case by case basis, in situations where, considering the totality of
the circumstances of each case, the defendant 1) has demonstrated that the asserted error
implicates a fundamental right and 2) firmly convinces this Court that a failure to review
the asserted error would result in a manifest miscarriage of justice, may leave unsettled the
question of the fundamental fairness of the trial or proceedings, or may compromise the
integrity of the judicial process. Deveraux, ¶ 21 (citation omitted).
¶19 “A person who knowingly has sexual intercourse with another person without
consent or with another person who is incapable of consent commits the offense of sexual
intercourse without consent.” Section 45-5-503(1), MCA. A person is incapable of giving
consent when the person is “incapacitated[,]” “physically helpless[,]” or “less than 16 years
old.” Section 45-5-501(1)(a)(i), (ii), (iv), MCA. We have previously held the
conduct-based definition of “knowingly” is the correct jury instruction in a SIWOC case.
State v. Rowe, 2024 MT 37, ¶ 31, 415 Mont. 280, 543 P.3d 614; Deveraux, ¶ 32; see also
Gerstner, ¶ 29. “Knowingly,” under § 45-5-503(1), MCA, applies to “sexual intercourse”
and “without consent,” and requires a conduct-based definition; that is, “a person acts
knowingly with respect to conduct or to a circumstance . . . when the person is aware of
the person’s own conduct or that the circumstance exists.” Section 45-2-101(35), MCA;
see also Rowe, ¶ 31 (quoting Gerstner, ¶ 27) (“The conduct-based instruction is the most
appropriate since ‘[i]t is the particularized conduct of making sexual contact that the
[SIWOC] statute makes criminal.’”).
8 ¶20 Here, the District Court indeed submitted the incorrect “result” definition of
“knowingly” to the jury and should have provided the “conduct” definition. The incorrect
jury instruction implicated Davisson’s fundamental rights to a fair trial, thus satisfying the
first prong of our plain error analysis. Deveraux, ¶ 37.
¶21 However, whether the incorrect instruction merits reversal of Davisson’s conviction
turns on whether Davisson was prejudiced by the incorrect instruction. In arguing the
incorrect instruction prejudiced him, Davisson relies on State v. Hamernick, 2023 MT 249,
414 Mont. 307, 545 P.3d 666. There, the district court segmented the offense of SIWOC
into two elements (“has sexual intercourse” and “without consent”) and ascribed different
mental state instructions for each, supplying the jury with the “conduct-based definition of
knowingly” for “has sexual intercourse” and the “high-probability-of-a-fact definition of
knowingly” for “without consent.” Hamernick, ¶ 18. Hamernick had testified in his own
defense, admitting he had engaged in sexual intercourse but denying any “aware[ness] his
conduct was against [the alleged victim’s] will.” Hamernick, ¶ 20. This Court reversed
Hamernick’s conviction on the basis the district court had erred by providing the
“high-probability-of-a-fact” definition of “knowingly” for the element of “without
consent” rather than the conduct-based definition. Hamernick, ¶ 27 (citing Deveraux,
¶ 20). By providing such an instruction, the court improperly lessened the State’s burden
of proving “Hamernick knew his sexual conduct with [the victim] was without her consent”
to proving his mere “aware[ness] of a high probability” the victim did not consent to sexual
intercourse. Hamernick, ¶ 23. In reversing Hamernick’s conviction, we concluded the
lighter burden of proof created by the incorrect jury instruction prejudiced the defendant’s
9 rights because, even if the jury believed Hamernick’s testimony regarding an encounter he
believed was consensual, the incorrect instruction could allow the jury to find he “should
have been aware of the high probability of the fact that [the victim] had not consented to
his sexual advances.” Hamernick, ¶¶ 20, 27.
¶22 Nonetheless, an incorrect jury instruction on its own does not constitute prejudice.
Deveraux, ¶ 41. In Deveraux, in addition to delineating the proper “knowingly” definition
for SIWOC, we also considered an incorrect jury instruction defining “consent.” Deveraux,
¶ 27. Devereaux did not object to a jury instruction that utilized the 2017 definition of
consent rather than the correct 2013 definition in effect at the time Deveraux committed
SIWOC. Deveraux, ¶ 35. Under the correct 2013 formulation, the State would have
needed to prove “Deveraux used force to compel [the victim] to submit to sexual
intercourse,” in contrast to the 2017 definition which reduced the state’s burden by not
requiring the State prove force. Deveraux, ¶ 35. Still, we declined to exercise plain error
review of his conviction “because the evidence and arguments presented at trial, despite
the incorrect instruction, nonetheless required the jury to resolve the requisite factual issue
of whether Deveraux had used force.” Deveraux, ¶ 40. The court there heard extensive
testimony regarding Deveraux’s “infliction, attempted infliction, or threatened infliction of
bodily harm” and “numerous instances of forceful, violent intercourse against [the
victim’s] will.” Deveraux, ¶ 40. Ultimately, the incorrect instruction did not prejudice
Deveraux. Deveraux, ¶ 41.
¶23 Here, the State presented evidence Davisson had sex with T.K. despite knowing she
was 15 years old and, perhaps most importantly, that T.K.’s intoxication rendered her
10 incapable of consent. Hotel footage showed Davisson waiting an hour before carrying an
obviously physically helpless T.K. into his hotel through a discreet side entrance. The jury
further heard T.K. testifying to not remembering anything after she ended up in Lewis’s
lap. Lewis likewise testified to the severity of T.K.’s intoxication. There is no dispute that
T.K. had been drinking heavily in the lead up to Davisson having sex with her. Similar to
Deveraux, the evidence and arguments presented at trial required the jury to resolve
whether Davisson was aware T.K. could not consent due to her age and intoxication. The
jury inferred, from all the facts and circumstances of the case, that the defendant engaged
in sexual intercourse without the victim’s consent. Hamernick, ¶ 26. By use of a special
verdict form, the jury found that under either theory offered by the State, Davisson was
guilty of both SIWOC based on T.K.’s intoxication and because Davisson knew she was
under 16 years of age. We conclude that, from the evidence presented, the jury rendered
its verdict based upon evidence presented that Davisson knowingly engaged in sexual
intercourse with T.K. despite an awareness she was incapable of consent either due to her
age or incapacitation. See Deveraux, ¶ 40. Thus, Davisson was not prejudiced by the
incorrect jury instruction, which “still considered the right issue in spite of the wrong
instruction.” Deveraux, ¶ 41. Accordingly, we decline to exercise plain error review of
the incorrect instruction because we are not firmly convinced that declining to do so would
affect the fairness, integrity, or public reputation of judicial proceedings.2
2 Davisson has filed a Notice of Supplemental Authority directing this Court’s attention to our November 12, 2025 decision State v. Pierce, 2025 MT 257, ___ Mont. ___, ___ P.3d ___. However, in Pierce the defendant proposed the correct “knowingly” jury instruction but the State’s incorrect proposed instruction prevailed. Pierce, ¶ 15. We were not required to exercise plain
11 ¶24 Issue Two: Whether Davisson’s counsel was ineffective for stipulating to the incorrect mental state instruction.
¶29 In the alternative, Davisson asserts he was denied effective assistance of counsel on
the basis his attorney should not have stipulated to the erroneous jury instruction. Criminal
defendants are guaranteed effective assistance of counsel. Whitlow v. State, 2008 MT 140,
¶ 10, 343 Mont. 90, 183 P.3d 861 (citing U.S. Const. amend. VI; U.S. Const. amend. XIV;
Mont. Const. art. II, § 24). To succeed on an ineffective assistance of counsel claim, the
defendant must prove two elements. Whitlow, ¶ 10 (quoting Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). First, the defendant must prove that
counsel’s performance was deficient. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.
Second, the defendant must prove that this deficient performance prejudiced their case.
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. If the defendant fails to satisfy one of the
Strickland prongs, there is no need to address the other prong. Whitlow, ¶ 11. An attorney’s
performance is measured for deficiency by “whether counsel’s conduct fell below an
objective standard of reasonableness measured under prevailing professional norms and in
light of the surrounding circumstances.” Whitlow, ¶ 20.
¶30 Here, we have already determined Davisson was not prejudiced by the incorrect jury
instruction. We likewise decline to find prejudice to Davisson due to his attorney
stipulating to that same incorrect jury instruction. Given the substantial evidence presented
at trial regarding T.K.’s incapacity, including testimony of Det. Stearns relating to
error review to reach the issue. Pierce, ¶ 19. Here, based on the evidence in this case, we decline to exercise plain error review to reach the same error that occurred in Pierce, although we acknowledge the similarity between the cases.
12 Davisson’s admission to having sexual intercourse with her,3 Davisson cannot demonstrate
a reasonable probability that, but for counsel’s error, the results of his trial would have been
different. Deveraux, ¶ 42 (citation omitted).
CONCLUSION
¶25 Davisson cannot demonstrate he was prejudiced by the incorrect jury instruction
and we thus decline to exercise plain error review of the incorrect jury instruction. Absent
a showing of prejudice, we likewise decline to find Davisson’s counsel was deficient. His
conviction is affirmed.
¶26 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ CORY J. SWANSON /S/ KATHERINE M. BIDEGARAY /S/ BETH BAKER /S/ INGRID GUSTAFSON
3 Davisson did not object to this testimony at trial and does not challenge the admission of Det. Stearns’s summary of his investigatory interview as plain error or the result of ineffective assistance of counsel now on appeal. We similarly do not address counsel’s decision to not object here.