State v. R. Grana

2022 MT 65N, 506 P.3d 1034

Opinion

03/29/2022

DA 21-0275 Case Number: DA 21-0275

IN THE SUPREME COURT OF THE STATE OF MONTANA 2022 MT 65N

STATE OF MONTANA,

Plaintiff and Appellee

v.

RAFAEL BENJAMIN GRANA,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADC-2020-133 Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Brent Flowers, Beebe & Flowers, Helena, Montana

For Appellee:

Austin Knudsen, Montana Attorney General, Cori Losing, Assistant Attorney General, Helena, Montana

Leo Gallagher, Lewis and Clark County Attorney, Joshua Nemeth, Deputy County Attorney, Helena, Montana

Submitted on Briefs: March 2, 2022

Decided: March 29, 2022

Filed:

c ir-641.—if __________________________________________ Clerk Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2 Rafael Benjamin Grana appeals from his conviction in a bench trial for indecent

exposure in violation of § 45-5-504(1)(b), MCA, in the First Judicial District Court, Lewis

and Clark County. Grana raises three issues on appeal. First, he argues there was

insufficient evidence he intended to expose his genitals, an essential element of the crime.

Second, the court deprived him of his right to a fair trial by admitting and relying on

evidence of his prior convictions for indecent exposure prohibited under M. R. Evid.

404(b). And finally, he argues reversal is required because the District Court held a bench

trial without a written waiver of his right to a jury trial. We affirm.

¶3 The State charged Grana with indecent exposure after he was witnessed

masturbating in his vehicle in the parking lot outside a women’s dormitory on the campus

of Carroll College. The information alleged Grana “knowingly or purposely exposed his

penis to S.N., under circumstances to which the person knows the conduct is likely to cause

affront or alarm in order to arouse or gratify his own sexual response or desire.” At trial,

Grana contended there was no evidence he intended to expose his penis to S.N. specifically,

rather S.N.’s testimony demonstrated he did not know she was sitting in the vehicle next

2 to him. The District Court rejected this argument as the statute does not require the State

to prove intent toward a specific victim. The court concluded the State’s inclusion of a

specific victim in the information did not add a new element the State was required to

prove. The court found Grana guilty and sentenced him to the Montana State Prison for 5

years.

¶4 We review de novo a district court’s denial of a defendant’s motion to dismiss for

insufficient evidence. State v. Erickson, 2014 MT 304, ¶ 20, 377 Mont. 84, 338 P.3d 598.

The grant of a motion to dismiss for insufficient evidence is appropriate “if, viewing the

evidence in the light most favorable to the prosecution, there is not sufficient evidence

upon which a rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt.” State v. McAlister, 2016 MT 14, ¶ 6, 382 Mont. 129, 365 P.3d 1062.

We review a court’s evidentiary decisions for an abuse of discretion. State v. Forsythe,

2017 MT 61, ¶ 13, 387 Mont. 62, 390 P.3d 931.

¶5 On appeal, Grana refines his argument the State presented insufficient evidence of

intent, contending that simply because his penis was capable of being viewed does not

mean he intended to expose it. Grana argues the District Court’s reliance on State v.

Ommundson, 2008 MT 340, ¶ 16, 346 Mont. 263, 194 P.3d 672, was misplaced as the

defendant in that case was nude outside in a public park, but Grana was in his private

vehicle and his genitals were not easily visible.

¶6 Circumstantial evidence alone is sufficient to sustain a conviction. Ommundson,

¶ 16. Circumstantial evidence is evidence “which tends to establish a fact by proving

3 another and which, though true, does not of itself conclusively establish the fact but affords

an inference or presumption of its existence.” Section 26-1-102(1), MCA.

¶7 The District Court correctly found circumstantial evidence supported its conclusion

Grana purposely or knowingly exposed his genitals, as Grana was seen masturbating in his

vehicle in a busy parking lot next to a busy sidewalk during a time of year when classes

were in session at the college. His vehicle did not have tinted windows. Grana

intentionally elected to expose his penis “in such a place and time” that it was certain

another would be able to view it. Ommundson, ¶ 20. These facts while not directly

evidencing Grana’s intent, afford “an inference or presumption” Grana purposely or

knowingly exposed his genitals.

¶8 Similar to his argument before the District Court, Grana also contends the

information charged him with knowingly or purposely exposing his genitals to S.N. and

because of this he devoted his defense to discrediting S.N.’s testimony. He alleges the

State changed its theory at trial from this specific intent to expose himself to S.N. to a more

general intent to expose himself to other members of the public. Grana contends this

change in theory should have required the State to amend its information, and such

amendment should not have been allowed because it substantially prejudiced his defense.

¶9 Section 46-11-401(1), MCA, requires a criminal charge to “be a plain, concise, and

definite statement of the offense charged” and under § 46-11-401(2), MCA, an information

must include “the names of the witnesses for the prosecution, if known.” An information

“must contain ‘a statement of facts constituting the offense charged in ordinary and concise

4 language in such manner as to enable a person of common understanding to know what

was intended.’” State v. Kern, 2003 MT 77, ¶ 31, 315 Mont. 22, 67 P.3d 272 (quoting

State v. Paine, 61 Mont. 270, 273, 202 P. 205, 205 (1921)).

¶10 The State charged Grana with an offense under § 45-5-504(1)(b), MCA. Under this

subsection of the statute, the State is required to establish (1) Grana knowingly or purposely

exposed his genitals; (2) under circumstances he knew were likely to cause affront or

alarm; and (3) he did so to “arouse or gratify [his] own sexual response or desire.” Section

45-5-504(1)(b), MCA; see also Ommundson, ¶ 12.

¶11 We agree with the District Court the identification of S.N. in the information did

not add a new element to the offense the State was required to prove at trial. The

information adequately informed Grana of the charge against him. S.N. was the

complaining witness and was among the category of people Grana intended to expose

himself to by masturbating in a public parking lot. The State’s focus at trial on Grana’s

intention to masturbate in a public setting and thus expose himself to members of the public

did not require it to amend the information, as § 45-5-504(1)(b), MCA, does not require

the State to prove Grana intended to expose himself to a particular victim.

¶12 Grana next argues the District Court admitted evidence of his prior convictions in

violation M. R. Evid. 404(b). Grana contends the State lacked any evidence of his intent

to expose his genitals in this case and it sought judicial notice of his prior convictions for

the impermissible character inference that if Grana did it before, he must have done it again.

5 To support his contentions, Grana points out the State did not elaborate as to how the

factual circumstances of his prior convictions might establish intent in this case.

¶13 M. R. Evid. 404(b) prohibits courts from admitting evidence of other crimes “to

prove the character of a person in order to show action in conformity therewith.”

¶14 At the end of trial, the State asked the District Court to take judicial notice of

Grana’s prior convictions for indecent exposure, as those convictions “go toward his

knowledge.” The State offered copies of those judgments. The District Court expressed

skepticism of this theory, explaining this Court had “said [in Ommundson] you could

attribute knowledge or impute knowledge to the defendant given . . . the circumstances

under which the act occurred.” The court told the State it was “not inclined to allow the

state to introduce the other crimes to show conformity of his behaviors here. I’m not sure

that the state needs that given the facts of this particular case.” The State clarified “for the

record” it “was not intending to admit [the evidence] for that purpose,” but “strictly for the

purpose of knowledge.” After this discussion, the State presented its closing arguments

and did not reference the prior convictions. Copies of the previous judgments are not

included in the record. The court did not reference the prior convictions in its December 17,

2020 Finding of Fact, Conclusions of Law and Order, explaining its decision.

¶15 It is clear from this record the District Court did not admit evidence of Grana’s prior

convictions for indecent exposure. Rather, it denied the State’s motion as the court did not

think the State needed that evidence to show knowledge given the facts of this case. It is

also clear the State recognized its motion had been denied after the court stated it was “not

6 inclined” to allow the State to introduce the evidence, as the State sought to clarify its

argument “for the record” using the past tense—“the state was not intending to admit it for

that purpose.” The State then moved into its closing arguments without further discussion.

The District Court did not violate M. R. Evid. 404(b), because the record shows it did not

admit or give any consideration to evidence of Grana’s prior convictions.

¶16 Finally, Grana argues the case must be reversed because the record does not contain

a written waiver of his right to a jury trial as required under § 46-16-110(3), MCA. Grana

did not raise this issue in the District Court.

¶17 Failure to object in the trial court generally constitutes a waiver of the right to raise

an issue on appeal. See State v. Polak, 2021 MT 307, ¶ 9, 406 Mont. 421, 499 P.3d 565.

This Court “may undertake review of an unpreserved assertion of error under the plain

error doctrine in situations that implicate a defendant’s fundamental constitutional rights

when failing to review the alleged error may result in manifest miscarriage of justice, leave

unsettled the question of the fundamental fairness of the proceedings, or compromise the

integrity of the judicial process.” Polak, ¶ 9. “Invoking plain error review to reverse a

conviction is a discretionary decision this Court uses sparingly on a case-by-base basis.”

Polak, ¶ 9.

¶18 While Grana states the standard this Court uses to invoke plain error review in his

standard of review, he does not explain how this standard is met in his three-paragraph

argument. Grana has failed to present any evidence the alleged error may result in manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of the

7 proceedings, or compromise the integrity of the judicial process. In fact, Grana’s counsel

stated during his opening argument, “[t]he reason we chose a bench trial in this, your

Honor, is because this is almost entirely a legal argument.” The same attorney represents

Grana on appeal. Grana has not met his burden of proving reversal under plain error review

is warranted.

¶19 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶20 Affirmed.

/S/ INGRID GUSTAFSON

We concur:

/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ DIRK M. SANDEFUR