10/25/2022
DA 21-0137 Case Number: DA 21-0137
IN THE SUPREME COURT OF THE STATE OF MONTANA
2022 MT 211
STATE OF MONTANA,
Plaintiff and Appellee,
v.
SHELBY BRYAN RAGNER,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC-19-189-B Honorable Rienne H. McElyea, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
William Boggs, Attorney at Law, Missoula, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana
Marty Lambert, Gallatin County Attorney, Bjorn Boyer, Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: September 7, 2022
Decided: October 25, 2022
Filed:
__________________________________________ Clerk Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Shelby Bryan Ragner (Ragner) appeals from a January 25, 2021 District Court order
sentencing Ragner to 10 years in Montana State Prison, with four years suspended. We
affirm.
¶2 We restate the issues on appeal as follows:
Issue One: Whether the District Court properly applied Montana’s rape shield statute in excluding evidence concerning the victim’s sexual conduct.
Issue Two: Whether the instructions provided by the District Court fully and fairly instructed the jury regarding the mental state applicable to charges of sexual intercourse without consent.
Issue Three: Whether the District Court’s absence of a specific unanimity instruction resulted in reversible plain error.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On May 19, 2019, the State charged Ragner with aggravated sexual intercourse
without consent (ASIWC). The charges followed an interview on March 18, 2019,
between C.M., the victim, and Detective Amy Ross (Ross) of the Montana State University
Police Department.
¶4 On March 8, 2019, C.M. and Ragner both joined a group of friends for a night of
drinking and dancing. Ragner had previously told members of that group he found C.M.
attractive. C.M. did not have romantic feelings toward Ragner. In the course of visiting
multiple bars, C.M. and the other women in the group became intoxicated. Ragner had
“too much” to drink but comparatively less so than the women. At various points in the
2 evening, Ragner came into unwanted physical contact with C.M. In response, C.M. told
one of her friends not to leave her alone with Ragner.
¶5 A designated driver picked up the group up later that night and returned everyone
to the same spot to sleep. C.M. and Ragner ended up on different parts of an L-shaped
couch. At some point in the night, C.M. woke up with Ragner on her legs and his fingers
inside of her vagina. When C.M. attempted to move upon discovering Ragner’s penetrative
act, she found herself unable to do so and “lost consciousness again.”
¶6 In contrast, Ragner recalls the two of them engaging in “sexual talk” prior to any
sexual acts. During this conversation, Ragner told C.M. that she was too drunk to consent
to any sexual activity. C.M. “kept insisting, kissing, and grabbing him,” and generally
initiating physical contact. Ragner wanted to say “yes” to C.M.’s sexual advances “but []
felt it was the wrong thing to do.” The pair then made out and digital and oral intercourse
occurred.
¶7 On March 9, 2019, C.M. woke up to her alarm and left for work. Once at work, she
noticed soreness, sharp pains in her vaginal area, and bite marks along her thighs. C.M.
informed her manager that she had been sexually assaulted. C.M. left work and drove to
her mother’s home. The pair went to the hospital in Ennis. A sexual assault examination
performed by Dr. Davenport of the Madison Valley Health Center detected bruising and
pain, bite marks, and vaginal pain. Dr. Davenport also detected injuries to C.M.’s vagina
and cervix and attributed those to some sort of forceful penetration.
¶8 Also on March 9, 2019, C.M. texted a friend who had attended the party. The texts
referred to fragments of memories from the prior night. C.M. disclaimed any romantic
3 interest in Ragner and stated that even after having had alcohol her feelings toward men do
not change. She specified that she did not consent to any sexual activity they engaged in.
And C.M. also sent a text that read, “I’m really embarrassed. Like really, what the hell.
How is it that this has happened to me three times now. Jesus, I need to quit drinking, at
least around men…” During a pretrial interview, C.M. told defense counsel that on the
two occasions alluded to in her text string she felt that her boyfriends had been sexually
coercive while they were intoxicated. C.M. stated that she was not unconscious during the
two occasions. She recalled that her boyfriends took advantage of her use of alcohol, in
part, to pressure her to have sex.
¶9 The State filed a motion in limine to exclude the above quoted portion of the text
exchange between C.M. and her friend related to the prior incidents of related sexual
encounters. At an October 19, 2020 status conference, defense counsel reported that an
evidentiary hearing would not be necessary for the court to rule on the motion. On October
20, 2020, the first day of trial, Ragner filed a written objection to the motion, and the
District Court heard oral argument. The motion was granted.
¶10 Following the settlement of jury instructions, the District Court declined to use the
knowingly definition offered by the defense counsel. The court defined knowingly having
sexual intercourse with another as “when the person is aware of his or her conduct,” and
instructed the jury that “[a] person who knowingly has sexual intercourse with another
person without consent commits the offense of sexual intercourse without consent.”
Ragner did not object to the District Court’s consent instructions. Ragner did not request
a specific unanimity instruction on “without consent” versus “incapable of consent.”
4 ¶11 On the charge of ASIWC, the jury found Ragner not guilty. On the lesser included
charge of sexual intercourse without consent, the jury found Ragner guilty. The District
Court sentenced Ragner to ten years in prison with four years suspended.
STANDARD OF REVIEW
¶12 We review evidentiary rulings for an abuse of discretion, which occurs “when a
district court acts arbitrarily without conscientious judgment or exceeds the bounds of
reason, resulting in substantial injustice.” State v. Daffin, 2017 MT 76, ¶ 12, 387 Mont.
154, 392 P.3d 150. To the extent a court’s evidentiary ruling is based on an interpretation
of a constitutional right, our review is de novo. State v. Hoff, 2016 MT 244, ¶ 11, 385
Mont. 85, 385 P.3d 945 (citing State v. Patterson, 2012 MT 282, ¶ 10, 367 Mont. 186, 291
P.3d 556).
¶13 A review of a district court’s jury instructions in a criminal case assesses whether
the instructions, when considered as a whole, fully and fairly instructed the jury on the law
applicable to the case. State v. Daniels, 2019 MT 214, ¶ 26, 397 Mont. 204, 448 P.3d 511.
Even if an instruction error did occur, this Court will not reverse on such a claim unless it
also finds that the district court abused its discretion in a way that prejudicially affected a
defendant’s substantial rights. State v. Kaarma, 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d
609.
¶14 The occurrence of substantial injustice resulting from a court acting arbitrarily
without employment of conscientious judgment or beyond the bounds of reason means that
the court abused its discretion. State v. Weldele, 2003 MT 117, ¶ 72, 315 Mont. 452, 69
P.3d 1162 (citation omitted).
5 ¶15 Claims of errors implicating a criminal defendant’s fundamental constitutional
rights may receive plain error review, even if no contemporaneous objection was made.
State v. Lackman, 2017 MT 127, ¶ 9, 387 Mont. 459, 395 P.3d 477. This Court will
exercise plain error review in cases where failing to review the claimed error may result in
a manifest miscarriage of justice, may leave questions of fundamental fairness unsettled,
or may compromise the integrity of the judicial process. Lackman, ¶ 9.
DISCUSSION
¶16 Issue One: Whether the District Court properly applied Montana’s rape shield statute in excluding evidence concerning the victim’s sexual conduct.
¶17 Ragner contends that the District Court improperly applied Montana’s rape shield
statute to exclude a portion of C.M.’s text messages. He relies on State v. Colburn, 2016
MT 41, ¶ 25, 382 Mont. 223, 366 P.3d 258, to argue that the District Court had a legal
obligation to perform a balancing test between the defendant’s constitutional right to
present a defense and a victim’s rights under the statute.
¶18 Montana’s rape shield statute calls for the exclusion of evidence concerning the
sexual conduct of the victim, with few exceptions. Section 45-5-511(2), MCA. The first
statutory exception applies where the victim’s past sexual conduct with the offender is at
issue. Section 45-5-511(2), MCA. The second statutory exception applies where evidence
of specific instances of the victim’s sexual activity to show the semen, pregnancy, or
disease is at issue. Section 45-5-511(2), MCA. This Court has identified two other
exceptions: evidence related to a victim’s prior false accusations of sexual assault if the
offered evidence can be narrowed to the issue of the complaining witness’ veracity; and,
6 evidence of the victim’s sexual conduct if it is probative of the witness’ state of mind,
motive, or biases with respect to making the more current accusations. State v. Hansen,
2022 MT 163, ¶ 14, 409 Mont. 495, 515 P.3d 799.
¶19 In Colburn, we acknowledged that prior to a district court applying the rape shield
statute to exclude evidence, the court should consider whether the evidence is relevant and
probative; whether the evidence is merely cumulative of other admissible evidence; and,
whether the probative value of the evidence is outweighed by its prejudicial effect.
Colburn, ¶ 25. These factors prevent the automatic exclusion of evidence that can be
narrowed to the issue of the complaining witness’ veracity. Notably, this list is entirely
devoid of mandated weights that a district court must apply and lacks any mention of
explicit triggers that would prevent the application of the rape shield statute.
¶20 Our subsequent decisions have interpreted Colburn as establishing guidelines for
district courts to follow to prevent the arbitrary or mechanistic application of the rape
shield. See Hansen, ¶ 14 (citing Colburn for the proposition that the rape shield statute
does not apply absolutely); State v. Walker, 2018 MT 312, ¶ 56, 394 Mont. 1, 433 P.3d 202
(using the factors set forth in Colburn as a framework to assess whether the rape shield
statute had been mechanically applied). Where district courts have followed those
guidelines, we have upheld decisions to admit evidence covered by the rape shield statute
only where an exception applies. See Hansen, ¶ 22; Walker, ¶ 56.
¶21 We upheld the district court’s application of the rape shield in Walker based on its
methodical review of the factors favoring the exclusion and admission of the evidence in
question. Walker, ¶¶ 57-58. The district court inquired into the evidence in question,
7 provided the parties with opportunities to explain their respective cases for and against the
exclusion of that evidence, and considered the merits of each of those explanations.
Walker, ¶¶ 57-58.
¶22 Here, the District Court followed similar steps. After the State filed its motion in
limine to exclude a portion of the text, the District Court held a status conference—during
which defense counsel stated that the court need not have an evidentiary hearing prior to
ruling on the motion. Defense counsel had another opportunity to argue for the inclusion
of the evidence when, on the first day of trial, it filed a written objection to the State’s
motion. And defense counsel had the chance to argue its points further when the court
heard oral argument on the State’s motion. The District Court then granted the State’s
motion in an order that summarized its consideration of the arguments made by both sides
and its evaluation of the applicable case and statutory law.
¶23 Though, as Ragner asserts, the excluded evidence may have been “reliable” and
“highly probative,” the District Court considered those aspects before properly applying
the rape shield statute to exclude the evidence. Ragner claims that C.M. opened the door
to the admission of the evidence by testifying to her lack of interest in Ragner when she
was sober and stating that such feelings would not change while under the influence of
alcohol. However, nothing in the record suggests she had a romantic interest in either of
the two men referred to in the excluded text.
¶24 Even if the evidence were as probative as Ragner regards it, the blanket reception
of all reliable and highly probative evidence in cases such as this one would result in the
circumvention of laws designed to protect the legitimate interests of the victim. State v.
8 Van Pelt, 247 Mont. 99, 104, 805 P.2d 549, 552-53 (1991). The purpose of the rape shield
statute is to prevent the trial from becoming a trial of the victim. State v. MacKinnon, 1998
MT 78, ¶ 35, 288 Mont. 329, 957 P.2d 23. The District Court fulfilled that purpose by
making a fact-intensive inquiry, weighing the reliability of the evidence and the possibility
of that evidence having a prejudicial effect on the victim, and then reaching a reasoned
decision.
¶25 Issue Two: Whether the instructions provided by the District Court fully and fairly instructed the jury regarding the mental state applicable to charges of sexual intercourse without consent.
¶26 Section 45-5-503(1), MCA, defines the offense of sexual intercourse without
consent as “[a] person who knowingly has sexual intercourse with another person without
consent or with another person who is incapable of consent[.]” This definition was
provided to the jury as Instruction 16.
¶27 The District Court also provided the jury with following definition of consent as
Instruction 6:
“Consent” means words or overt actions indicating a freely given agreement to have sexual intercourse or sexual contact and is further defined but not limited by the following: a. An expression of lack of consent through words or conduct means there is no consent or that consent has been withdrawn; b. A current or previous dating or social or sexual relationship by itself or the manner of dress of the person involved with the accused in the conduct at issue does constitute consent; and c. Lack of consent may be inferred based on all the surrounding circumstances and must be considered in determining whether a person gave consent.
¶28 The District Court rejected Ragner’s proposed jury instruction to define
“knowingly,” with respect to the “without consent” element, as “the person is aware that 9 the circumstance exists.” The District Court instead instructed the jury that “knowingly,”
with respect to the totality of the elements of the crime of sexual intercourse without
consent, as “the person is aware of his or her conduct.”
¶29 Ragner faults the District Court for failing to instruct the jury “as to the critical
mental element” of ASIWC. Ragner claims that his defense was prejudiced by the given
jury instructions because—he alleges—the instructions directed the jury’s attention away
from whether Ragner knew C.M. did not consent to the intercourse and relieved the State
of proving beyond a reasonable doubt that Ragner knew C.M. did not consent.
¶30 A district court has broad discretion in formulating and approving jury instructions.
Kaarma, ¶ 27 (citation omitted). A district court’s function during trial is to instruct the
jury accurately and to correctly state the law applicable in the case. Daniels, ¶ 34 (citation
omitted).
¶31 Ragner argues for a heightened standard for review of district court jury instructions.
He interprets State v. Azure, 2005 MT 328, 329 Mont. 536, 125 P.3d 1116, as requiring a
district court to specify a definition of “knowing” for every distinct kind of element in a
crime. Azure offers no such rule. Relatedly, he cites State v. Lambert, 280 Mont. 231,
236-37, 929 P.2d 846, 849-50 (1996) in support of an alleged obligation on district courts
to not omit any of the specific definitions of “knowingly” related to a crime.
¶32 Ragner’s interpretation of Azure diverges from the actual holding. The Azure Court
simply repeated our determination that courts must determine which of the four definitions
of “knowingly” is applicable to the case and instruct the jury accordingly. Azure, ¶ 20.
10 ¶33 Ragner also misstates the rule set forth by the Lambert Court. The Court applied
§ 45-2-103(4), MCA, to reverse a district court’s application of a definition of knowingly
that would lead to unfair results in criminal endangerment cases. Lambert, 280 Mont. at
236-37, 929 P.2d at 849-50. Section 45-2-103(4), MCA, states that “[i]f the statute
defining an offense prescribes a particular mental state with respect to the offense as a
whole without distinguishing among the elements of the offense, the prescribed mental
state applies to each element.” The district court instructed the jury that a defendant need
only be “aware of his conduct” to “knowingly” act. Lambert, 280 Mont. at 237, 929 P.2d
at 850. We reversed on that instruction reasoning that if criminal endangerment applied in
cases where the defendant merely appreciated their conduct, rather than where the
defendant was aware of a high probability that the conduct in which he was engaging would
cause a substantial risk of death or serious bodily injury to another, then even driving a car
could be criminal. Lambert, 280 Mont. at 236, 929 P.2d at 849.
¶34 We do not find that the District Court acted arbitrarily or beyond the bounds of
reason. The District Court properly used its discretion and followed the statutory
requirements of § 45-2-103(4), MCA, by instructing the jury to apply an appropriate
definition of knowingly.
¶35 Issue Three: Whether the District Court’s absence of a specific unanimity instruction resulted in reversible plain error.
¶36 Though Ragner failed to preserve the issue below, he asks this Court to apply plain
error review to the District Court’s general unanimity instruction. He alleges that the
District Court’s instruction violated his constitutional right to a unanimous verdict because
11 the instruction did not require all of the jurors to agree whether C.M. was incapable of
consenting or whether she did not affirmatively consent.
¶37 Criminal verdicts must be unanimous. Mont. Const. Art. II; State v. Wells, 2021
MT 103, ¶¶ 17-20, 404 Mont. 105, 485 P.3d 1220. Doubts about the unanimity of a verdict
implicates the fundamental fairness of the trial. State v. Dasen, 2007 MT 87, ¶ 39, 337
Mont. 74, 155 P.3d 1282. Here, the District Court provided a general instruction that all
jurors must agree on the verdict.
¶38 District courts must give specific unanimity instructions when a single criminal
statute creates multiple crimes in order to prevent jurors from potentially finding the
defendant guilty of two different crimes. Wells, ¶ 17. For instance, in State v. Weldy, 273
Mont. 68, 77-78, 902 P.2d 1, 6-7 (1995), we required a specific unanimity instruction with
respect to a felony assault statute, § 45-5-202, MCA, that created separate offenses: one
required a person to cause bodily injury with a weapon; the other required a person to cause
reasonable apprehension of bodily injury with a weapon. By contrast, in Kills on Top v.
State, 273 Mont. 32, 55-56, 901 P.2d 1368, 1383 (1995), we did not require such an
instruction after determining that a multi-part criminal statute, aggravated kidnapping,
§ 45-5-303(1)(c), MCA, described alternative means of satisfying the common element of
a single crime. However, the Court acknowledged that it may have reached a different
decision had the appellant demonstrated that the alternatives were “so morally disparate as
to represent inherently separate offenses.” Kills on Top, 273 Mont. at 56, 901 P.2d at 1384.
¶39 Here, the District Court instructed the jury as Instruction 17:
12 To convict the Defendant of sexual intercourse without consent, the State must prove the following elements: 1. That the Defendant had sexual intercourse with C.M.; AND 2. That the act of sexual intercourse was without C.M.’s consent; AND 3. That the Defendant acted knowingly. If you find from your consideration of all the evidence that all of these elements have been proved beyond a reasonable doubt, then you should find the Defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.
¶40 The District Court provided a general instruction requiring that the jury
unanimously find Ragner guilty of the stated elements. It did not need to provide a separate
unanimity instruction. Section 45-5-503(1), MCA, provides for alternative means of
satisfying the consent element but Ragner fails to demonstrate that the two means of having
sexual intercourse absent the affirmative consent of the victim are so morally disparate as
to represent inherently separate offenses.
¶41 Ragner mischaracterizes § 45-5-503(1), MCA, as a single criminal statute that
creates multiple crimes. Section 45-5-503(1), MCA, criminalizes conduct where “[a]
person [] knowingly has sexual intercourse with another person without consent or with
another person who is incapable of consent[.]” Ragner relies on the “or” in the subsection
to support his contention that the statute actually contains two different crimes contingent
upon the reason for the absence of the victim’s freely given agreement to have sexual
intercourse.
¶42 Neither the text of § 45-5-503(1), MCA, nor the definitions underlying the key
provisions of that subsection support Ragner’s contention that the “or” bifurcates the
13 subsection into two different crimes. We previously concluded that the presence of an “or”
is not determinative as to whether a statute creates two different crimes. See Kills on Top,
273 Mont. at 55-56, 901 P.2d at 1383-84. The inclusion of these two clauses in the same
subsection supports the conclusion that, in referring to sexual intercourse with another
person without consent and to sexual intercourse with another person who is incapable of
consent, the subsection described alternative means of satisfying the absence of freely
given consent. The law criminalizes intercourse without freely given consent.
¶43 The District Court properly instructed the jury by delivering a general unanimity
instruction. We decline to exercise plain error review.
CONCLUSION
¶44 We affirm the District Court’s decision to apply the rape shield law to exclude a
portion of C.M.’s texts. We conclude that the District Court’s jury instructions fully and
fairly instructed the jury on the applicable law. We do not identify any basis for reversal
based on plain error arising from the District Court’s general unanimity instruction.
¶45 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ INGRID GUSTAFSON /S/ JIM RICE