08/22/2017
DA 16-0513
Case Number: DA 16-0513
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 207N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARK KAPPS,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Fallon, Cause No. DC 15-001
Honorable and Nickolas C. Murnion, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Darcy Lynn Wassmann, Fallon County Attorney, Ole Olson, Special
Deputy County Attorney, Baker, Montana
Submitted on Briefs: July 12, 2017
Decided: August 22, 2017
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), 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 Mark Kapps (Kapps) appeals his convictions for Sexual Intercourse Without
Consent and Sexual Assault from the Sixteenth Judicial District Court, offering
comprehensive arguments related to the following assertions: (1) an improper unanimity
instruction subjected him to double jeopardy; (2) his trial counsel rendered ineffective
assistance; (3) the prosecutor committed plain error by vouching for witnesses; (4) the
District Court imposed improper sentencing conditions; and (5) reversal is required by
cumulative error.
¶3 Kapps and Miranda Thomas (Miranda) lived together in Plevna, Montana, with their
newborn son. Miranda worked as a housekeeper at the Sagebrush Inn in Baker, Montana,
which her sister, Stephanie Craig (Stephanie), managed. The Craigs—Stephanie, her
husband, and their children, C.C. (ten years old), M.C. (seven years old), and Z.C.—lived
in a home attached to the Sagebrush Inn. Miranda did not have a driver’s license, so Kapps
regularly drove her to work. On weekends when Kapps did not go to work, he would
frequently stay at the Craigs’ home with his son while Miranda worked.
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¶4 On August 3, 2014, Kapps spent the day at the Craig home while Miranda and
Stephanie worked. In the house with Kapps were his son, as well as M.C. and C.C. The
next day, M.C. told her brother, C.C., that Kapps had molested her. C.C. relayed this report
to Miranda, who asked M.C. if it could have been an accident. In response, M.C. “shook
her head no.” Miranda then reported M.C.’s disclosure to Stephanie, and Stephanie and
her husband reported it to law enforcement.
¶5 Law enforcement interviewed M.C. and Stephanie, and collected evidence from the
Craig home, including a blanket. M.C. was examined at the Billings Clinic emergency
room and later participated in a forensic interview with Child Protective Services. M.C.
reported that Kapps had penetrated her both vaginally and anally, had shown her his penis
and made her touch it until he ejaculated, and that the incidents had occurred about twenty
times. Kapps was charged with one count of Sexual Assault and one count of Sexual
Intercourse Without Consent, both allegedly occurring between December 26, 2013 and
August 4, 2014.
¶6 At trial, the State called M.C., C.C., Miranda, Stephanie, law enforcement officers
and crime lab employees as witnesses. M.C. testified that “[Kapps] stuck his hand down
my pants and he showed me his D.I.C.K.,” specifically, that he had touched her “private
area” both “outside and inside.” M.C. stated that Kapps had “tried to make [her] touch his
private area” and that “white stuff” had come out onto a blanket. She testified that these
incidents had occurred “[m]ore than once” and “a few times at his house and a lot at my
house” and that they had begun “when I was 7.” C.C. testified that he saw “[Kapps] st[i]ck
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his hands down [M.C.]’s pants” on August 3, 2014 when peering through a pile of boxes,
and that M.C. had disclosed the event to him the next day. An employee of the State Crime
Lab testified that the “major component” of the sperm sample taken from the collected
blanket matched Kapps’ DNA profile. The jury found Kapps guilty on both felony charges.
¶7 Kapps argues that the District Court’s unanimity instruction did not provide
sufficient specificity, and should have informed the jury that Kapps could not be convicted
of both Sexual Assault and Sexual Intercourse Without Consent for the same incident.
Kapps argues that, based on the instruction given, he was subjected to double jeopardy.
Kapps’ defense counsel did not object to the instructions, stating he had reviewed them
with Kapps and had “no issues.” Thus, Kapps requests that we exercise plain error review
and reverse his conviction.
¶8 Plain error review is exercised “sparingly,” on a “case-by-case basis,” and requires
the defendant:
(1) show that the claimed error implicates a fundamental right and (2) firmly
convince this Court that failure to review the claimed error would result in a
manifest miscarriage of justice, leave unsettled the question of the
fundamental fairness of the trial or proceedings, or compromise the integrity
of the judicial process.
State v. Crider, 2014 MT 139, ¶ 30,
375 Mont. 187,
328 P.3d 612 (internal quotations
omitted).
¶9 Jury Instruction No. 7 incorporated the unanimity language we suggested in State v.
Weaver,
1998 MT 167, ¶ 39,
290 Mont. 58,
964 P.2d 713, stating “it is necessary for the
prosecution to prove beyond a reasonable doubt the commission of a specific act or acts
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. . . . [Y]ou must unanimously agree upon the commission of the same specific act or acts.”
Jury Instruction No. 9 added that “[e]ach count charges a distinct offense. You must decide
each count separately.” Finally, the State articulated this standard in its closing argument:
The last instruction I want to talk about briefly is that um, the Defendant is
alleged to have done this more than once, ladies and gentlemen, so you have
to agree on the—on the act before you can find him guilty [of] this right?
You have to say it happened on—at least once maybe before August 3rd or
more than once before August 3rd but you have to all be talking about kinda
the same act so if you all agree it happened on that Sunday before that would
be one act, you could find him guilty of either sexual assault or sexual
intercourse without consent on that day and then you can go and say there
was probably another act if it was beyond a reasonable doubt another act,
you find him guilty of sexual assault of that act, okay? That’s how it works.
Accordingly, we conclude that failure to exercise plain error review of this issue will not
implicate Kapps’ fundamental rights, or undermine the fundamental fairness of the
proceeding.
¶10 Kapps’ argument regarding the jury instructions is, in large part, a challenge to the
sufficiency of the evidence necessary to convict him of the two separate felony charges. A
defendant need not raise an objection to the sufficiency of the evidence in the trial court to
preserve the issue for appellate review. State v. Skinner, 2007 MT 175, ¶ 21,
338 Mont.
197,
163 P.3d 399. We review such questions “to determine whether, after reviewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond reasonable doubt.” City of Helena v.
Strobel,
2017 MT 55, ¶ 8,
387 Mont. 17,
390 P.3d 921. M.C. testified that Kapps had
touched her both inside and outside of her private area and made her touch him for his
sexual gratification. She also testified that such incidents had “happened a few times at his
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house and a lot at my house.” Viewed in the light most favorable to the prosecution, M.C.’s
testimony provided sufficient evidence to convict Kapps of both Sexual Intercourse
Without Consent and Sexual Assault. “The jury is the sole judge of the credibility of a
witness,” State v. Maxwell, 198 Mont. 498, 503,
647 P.2d 348, 351 (1982), and evidence
presented by one witness whom the jury believes is sufficient for the proof of any fact in a
case. State v. Merrick,
2000 MT 124, ¶ 13,
299 Mont. 472,
2 P.3d 242. We conclude there
was sufficient evidence for the jury to return convictions on both felonies.
¶11 Kapps also asserts that plain error was committed by the prosecutor during closing
argument by improperly “vouching” for witnesses when stating Kapps was not telling the
truth, while M.C. was, and by rhetorically asking the jury if Kapps’ explanation was
reasonable. Kapps’ attorney did not object to the statements. A review of the record
reveals that the comments were brief, and we conclude that the exercise of plain error
review is not necessary to protect the fundamental fairness of the proceedings or Kapps’
fundamental rights. Crider, ¶ 30.
¶12 Kapps alleges ineffective assistance of counsel (IAC) on numerous grounds,
including failure of his attorney to adequately prepare for trial, failure to object, general
trial error, and errors in sentencing. An IAC claim must be capable of resolution by review
of the record, and we must be able to determine “why” counsel did or did not act a certain
way. State v. Howard,
2011 MT 246, ¶ 21,
362 Mont. 196,
265 P.3d 606. Any claims of
IAC that require information beyond the record for resolution cannot be addressed on
appeal, but may be pursued in a postconviction relief proceeding. From the record, we
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conclude it is unclear why Kapps’ counsel took or failed to take the actions Kapps alleges
as error. Accordingly, such claims cannot be addressed here, but may be raised in a
postconviction proceeding.
¶13 Finally, Kapps alleges that five conditions of his sentencing are improper. First,
Kapps argues that Conditions 30 and 31, which bar Kapps—absent permission from his
parole officer and therapist—from possessing any material that “describes or depicts
human nudity, the exploitation of children, consensual sexual acts, non-consensual sexual
acts, [and] sexual acts involving force or violence” and bars viewing television shows or
motion pictures “geared toward his/her sexual offending cycle, or as a stimulus to arouse
deviant thoughts or fantasies (i.e., shows based on sexualization of underage girls or boys,
etc.),” are unconstitutional limits on his First Amendment rights. Second, Kapps argues
that Conditions 32, 33, and 40, which bar internet access and owning devices with access
to online services without permission of his parole officer and therapist, and prohibit
owning a phone with video, picture, or internet access, are unrealistic and unduly
burdensome in today’s technological world.
¶14 Montana law gives judges latitude to impose conditions on an offender’s sentences
that are “reasonably related to the objectives of rehabilitation and the protection of the
victim and society.” Section 46-18-202(1)(g), MCA; see also State v. Burch, 2008 MT
118, ¶ 23,
342 Mont. 499,
182 P.3d 66 (holding authority to impose a sentence must be
“authorized by a specific grant of statutory authority”). Such a condition may impact a
“civil or constitutional right” as a “necessary condition of the sentence directed toward the
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objectives of rehabilitation and the protection of society.” Section 46-18-801(1), MCA.
Restrictions that impact a fundamental right must be subject to strict scrutiny, requiring the
State “show that the restriction furthers a compelling governmental interest and is narrowly
tailored to achieve that interest.” State v. Guill, 2011 MT 32, ¶ 67,
359 Mont. 225,
248
P.3d 826. “Rehabilitation and the protection of the victim and society are compelling
governmental interests.” Guill, ¶ 68. The District Court’s reasoning that the conditions
“have a nexus to the offense and are necessary for the protection of the public and
rehabilitation of the Defendant” is a proper basis for imposition of Conditions 30 and 31.
¶15 Kapps does not raise a constitutional challenge to Conditions 32, 33, and 40, but
rather argues that they are “overly broad and impractical given technology’s necessity in
modern life.” The internet restrictions correspond to the subject matter restrictions of
Conditions 30 and 31. Condition 40 does not prohibit Kapps from owning a cellular phone
outright, but one that has internet access or the ability to make and/or store pictures and
videos. Further, we note that Conditions 32 and 33 both have exceptions allowing Kapps’
parole officer and therapist to authorize Kapps to have devices that access the internet, in
their discretion. This ensures that Conditions 32 and 33 are not overly broad. Facially,
these conditions are reasonable and appropriate limitations, given the crimes for which
Kapps was convicted.
¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for noncitable memorandum opinions. In the
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opinion of the Court, this case presents questions controlled by settled law or by the clear
application of applicable standards of review. There is no cumulative error.
¶17 Affirmed.
/S/ JIM RICE
We concur:
/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
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