State v. Rogers

2007 MT 227, 168 P.3d 669, 339 Mont. 132, 2007 Mont. LEXIS 408
CourtMontana Supreme Court
DecidedSeptember 11, 2007
DocketDA 06-0131
StatusPublished
Cited by14 cases

This text of 2007 MT 227 (State v. Rogers) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rogers, 2007 MT 227, 168 P.3d 669, 339 Mont. 132, 2007 Mont. LEXIS 408 (Mo. 2007).

Opinions

JUSTICE RICE

delivered the Opinion of the Court.

¶1 Appellant Rusty Rogers (Rogers) was charged with two counts of felony sexual assault upon two child victims, in violation of § 45-5-502, MCA. The two children, L.W. and E.K., were four and six years old at the time of the assaults and were children of friends of the defendant. Rogers appeals his conviction by jury in the Eighteenth Judicial District Court, Gallatin County. We affirm.

¶2 Rogers raises the following issues on appeal:

¶3 1. Did the District Court abuse its discretion by denying Rogers’ challenge for cause of Juror Welter?

¶4 2. Did the District Court err when it denied Rogers’ motion for a directed verdict?

¶5 3. Did the District Court err by giving the jury a “dynamite” instruction?

¶6 4. Did the District Court impose an illegal sentence by failing to apply the statutory exception to the mandatory minimum sentence, and by sentencing Rogers based upon his lack of participation in a [134]*134court-ordered psychosexual evaluation?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 On February 14, 2005, the State of Montana filed an information charging Rogers with two counts of sexual assault upon two child victims, L.W. and E.K., in violation of § 45-5-502, MCA. The District Court conducted a jury trial on October 18 and 19, 2005, after which the jury found Rogers guilty of both counts. On appeal, Rogers takes issue with certain aspects of his trial, including voir dire proceedings, his motion for a directed verdict, an instruction given to the jury during their deliberations, and his sentencing.

¶8 During voir dire proceedings, prospective juror Bennie Welter revealed that it would be difficult for him to be an objective juror given that sexual assault of children was at issue. The following dialogue took place between Juror Welter and counsel for the State:

MS. HARRINGTON: All right. Let’s get to the issues in the case. This defendant has been charged with two counts of Sexual Assault alleged to have been committed on two separate girls.... Just knowing that this trial is going to involve issues of sexual assault upon a child, is there anyone who feels they cannot sit as a juror? Yes, sir?
JUROR WELTER: I have an 11-year old daughter of my own and I don’t, for lack of a better description, prefer to sit in that chair. I can’t be objective.
MS. HARRINGTON: There are a lot of emotions associated with that-that first confrontation with the issue of a child being molested. There are a lot of jurors here, prospective jurors who have kids. As a matter of fact, everybody with kids under the age of 25, why don’t you throw up your hands. Okay, almost everybody. Do you think that part of this process in determining whether or not the State can prove this case beyond a reasonable doubt should involve parents?
JUROR WELTER: I really don’t see how it can go without it.
MS. HARRINGTON: Okay. And that the goal of the process is, if proven guilty, convict him, keep him from doing it again, right?
JUROR WELTER: Yeah.
MS. HARRINGTON: But if we don’t, to keep somebody who has been accused, maybe wrongfully, from being convicted at a criminal trial. Is that fair? ... But the real question is, did it happen. Would you agree that that is a conclusion that you can’t come to until you’ve heard all the evidence in the case?
[135]*135JUROR WELTER: That would be true, yeah.
MS. HARRINGTON: And until you hear that evidence from the mouths of the witnesses on that witness stand, Mr. Rogers is presumed innocent of the charges against him.
JUROR WELTER: Supposed to be.
MS. HARRINGTON: Supposed to be. You have a-a gut feeling otherwise?
JUROR WELTER: Well, just the fact that kids are involved.
MS. HARRINGTON: All right. Let’s get back to the impartiality issue. Do you think that just because the defendant is sitting there, that he’s guilty of something?
JUROR WELTER: No.

¶9 After the State had completed its voir dire, defense counsel questioned Juror Welter as follows:

MS. MARSHALL: Now, Mr. Welter, I’m going to come back to you. You talked about having a daughter and how this is an emotional thing for you. Tell me what kinds of emotional components or emotional things you have with that. Tell me what about this case, what kind of gets your hackles up?
JUROR WELTER: My first thought when I heard what the case entails is-was my daughter and what I would have done had my daughter been in the same situation.
MS. MARSHALL: And I’m not looking for the reaction so much as if your daughter had come to you and said, somebody touched me inappropriately in my private area, what would you want to know, what would you do?
JUROR WELTER: I would want to know who and where this individual was.
MS. MARSHALL: And how would you investigate that?
JUROR WELTER: Confrontation.
MS. MARSHALL: In light of your feelings with your daughter, and it sounds like you have strong feelings about this particular subject, do you think that you could be fair to [Rogers] if you were chosen to be on the jury?
JUROR WELTER: I don’t know.
MS. MARSHALL: Do you think that-have you read about sexual assault?
JUROR WELTER: Somewhat.
MS. MARSHALL: How long have you felt strongly about this [136]*136issue?
JUROR WELTER: Since my daughter was born.
MS. MARSHALL: And are you likely to change your mind within the next week?
JUROR WELTER: I don’t know. I don’t think so.
MS. MARSHALL: And if the judge tells you, to be a juror on this case, you have to leave your opinion about your own daughter or your own circumstances at the door, and completely abandon it for the duration of the trial, you could-even if you could do it, it’d be very difficult, wouldn’t it?
JUROR WELTER: It’d be pretty difficult, yes.
MS. MARSHALL: And you could bring yourself to decide that perhaps [Rogers] didn’t do these acts, but it’d be really hard?
JUROR WELTER: Anything’s possible, yes.
MS. MARSHALL: So, you’d start out wanting to think that, yeah, he probably did this?
JUROR WELTER: More than likely.
MS. MARSHALL: And deciding against that would be pretty hard for you, wouldn’t it?
JUROR WELTER: It depends on what the case proves.

Counsel for Rogers then moved the District Court to dismiss Juror Welter for cause.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 MT 227, 168 P.3d 669, 339 Mont. 132, 2007 Mont. LEXIS 408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rogers-mont-2007.