                            No.   90-572

          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
               Plaintiff and Appellant,

                                                       JUN f 1 1991
GERRY VAN ROBINSON,
               Defendant and Respondent.              LJSmith
                                                  CLERK OF SUPREME COURT
                                                     STATE OF MONTANA




APPEAL FROM:   District Court of the Sixteenth Judicial District,
               In and for the County of Rosebud,
               The Honorable Joe L. Hegel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Hon. Marc Racicot, Attorney General; Jennifer
               Anders argued, Asst. Atty. General, Helena, Montana
               John S. Forsythe argued, County Attorney, Forsyth,
               Montana
          For Respondent:
               Marcey Femling Schwarz argued, Schwarz Law Firm,
               Billings, Montana



                                       Submitted: MaY 2 r 1991
                                           Decided: June 11, 1991
Filed:



                              Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
     On   February    28,   1990, the   State    of   Montana   filed   an
Information charging the defendant, Gerry Van Robinson, with three
counts of sexual assault in violation of 5 45-5-502, MCA, and one
count of sexual intercourse without consent in violation of
3 45-5-503, MCA.     The alleged victim of the acts charged was the
defendant's adopted daughter, S.L.R.            On July 9, 1990, the
defendant entered into a plea bargain agreement with the County
Attorney for Rosebud County, and pursuant to that agreement, pled
guilty to sexual intercourse without consent and to two counts of
sexual assault.      The defendant was sentenced to 20 years in the
Montana State Prison for each conviction of sexual assault, and 40
years in the State Prison for his conviction of sexual intercourse
without consent.     The sentences were to run concurrently and all
but the first 60 days of his sentence were suspended. The District
Judge attached a number of conditions to the defendant's suspended
sentence.
     The State has appealed from the sentence imposed on the
defendant, and raises the following issue on appeal:
     Did the District Court err when it applied the exception found
in 3 46-18-222 (5), MCA, to the mandatory two-year sentence for
sexual intercourse without consent?
     We affirm the District Court.
                        FACTUAL BACKGROUND

     The incidents which form the bases for the charges against the
defendant occurred between June 1989 and December 1989.     During
that period he was alleged to have assaulted his adopted daughter,
who was less than 14 years of age, by fondling her breasts and
genitalia.   He was also accused of digital intercourse with the
same minor on at least one occasion.   He admitted committing these
acts and other similar acts over a longer period of time.
     On September 6 and 7, 1990, a lengthy sentencing hearing was
conducted by the District Court. As a result of that hearing, the
District Judge made findings of fact which have not been challenged
by the State on appeal. The following is a summary of those facts
found to be true by the District Court:
     The defendant is genuinely remorseful for his conduct and is
willing to do whatever is necessary to assist the victim and her
family. He has moved out of the family home, ceased communicating
with the victim, and has enrolled in a certified sex offender
treatment program.
     Based upon the nature of the defendant's sexual offenses and
the strong external controls placed on the defendant through the
intensive supervision program that he is currently under, the
District Court found that he was unlikely to reoffend during
treatment and that outpatient treatment would have the greatest
likelihood of preventing him from reoffending in the future.
     The District Court found that neither the victim nor the
victim's mother wanted the defendant in prison, and that his
imprisonment could     be   harmful   to   the victim's   chances   for
successful therapy and the family's economic survival. Sending the
defendant to prison would result in the immediate cessation of his
financial contributions to the victim and her family, necessitating
a loss of home and probable bankruptcy.      The victim and her family
would have to go on welfare for which the State of Montana would
have to pay.   In addition, the District Court found that without
the defendant's contributions to the cost of counseling for the
victim, the State would have to pay for the victim's counseling,
the family's counseling, and the defendant's sex offender treatment
program.
     Finally, the District Court found that while it would cost the
State approximately $18,000 per year to keep the defendant in
prison, the prison is currently overcrowded with more inmates than
it has beds.   That overcrowded condition would make it difficult
for the prison to provide the kind of rehabilitative treatment that
the defendant needs.
     While all but 60 days of the defendant's prison term were
suspended, the District Court did attach a number of conditions to
the suspension of that sentence.      Some of those conditions are as
follows:
     1.    The defendant was placed under the supervision of the
Bureau of Adult Probation and Parole and subjected to their rules
and regulations.
     2.    The defendant was required to enroll in and successfully
complete a sex offender treatment program, including follow-up
treatment for the entire 40 year term of his sentence.
     3.    The defendant was required to register with local law
enforcement officials as a convicted sex offender pursuant to
5 46-18-254, MCA.
     4.    The defendant was prohibited from working anywhere that
children are present, and was ordered to avoid contact with his
family, unless it was first approved by his therapist and parole
officer.
     5.    The defendant was required to pay for all counseling and
therapy expenses he incurs, as well as the expenses for therapy and
counseling of the victim and her family.
     6.    The   defendant was   ordered   to   obtain   and   maintain
satisfactory employment and to provide regular support to his
family.
     7.    The defendant was ordered to abstain from usage of any
mood-altering substances, and required to submit to urinalysis
periodically to assure his compliance with this condition.
     The plea bargain agreement, which was signed by the defendant
and the Rosebud County Attorney, and pursuant to which defendant
entered his guilty plea, contains the following provision:
                                 5
     In exchange for the entry of pleas of guilty to the
     charges alleged, the State agrees to make no
     recommendation as to the sentencing on this matter.
     In spite of that provision, the State has appealed that
portion of the District Court's sentence which was imposed for
violation of   §   45-5-503, MCA.   That statute provides, in relevant
part, as follows:
     (1) A person who knowingly has sexual intercourse
     without consent with a person of the opposite sex commits
     the offense of sexual intercourse without consent. .    ..

     (3) (a) If the victim is less than 16 years old and the
     offender is 3 or more years older than the victim or if
     the offender inflicts bodily injury upon anyone in the
     course of committing sexual intercourse without consent,
     he shall be imprisoned in the state prison for any term
     of not less than 2 years or more than 40 years and may
     be fined not more than $50,000, except as provided in
     46-18-222.
     It is undisputed that the defendant's victim was under the age
of 16 and that he was more than three years older than she.       It is
also undisputed that the only portion of 5 46-18-222, MCA, which
is arguably applicable as an exception to the two-year minimum
sentence requirement found in 5 45-5-503, MCA, is subparagraph (5).
That statute provides as follows:
     All mandatory minimum sentences prescribed by the laws
     of this state and the restrictions on deferred imposition
     and suspended execution of sentence prescribed by
     subsections (4), (5), and (6) of 46-18-201, 46-18-221(3),
     46-18-224, and 46-18-502(3) do not apply if:
     (5) where applicable, no serious bodily injury was
     inflicted on the victim unless a weapon was used in the
     commission of the offense.
     The State argues that the            introductory language "where
           has been inserted into 5 46-18-222 (5), MCA, because the
applicablev1
legislature intended that that subsection apply to some offenses
and not others.   The State contends, and we agree, that if this
Court were to apply subsection (5) to        anv crime where "no serious
bodily injury occur red,^ the language "where applicablev1
                                                         would be
rendered superfluous and without meaning.
     The State acknowledges that the 1977 legislative history for
this statute is devoid of any discussion regarding the crimes that
might be exempted from minimum sentences.           However, the State
suggests that this exception should be limited to those crimes such
as robbery (5 45-5-401, MCA), and aggravated assault (5 45-5-202,
MCA), where the threat of or infliction of bodily injury are
essential elements of the crime. Since the threat of or infliction
of bodily injury are not essential components of the offense of
sexual intercourse without consent, the appellant concludes that
it is not in the category of crimes which are subject to the
exception found in   §   46-18-222 ( 5 ) , MCA.
     One problem with the appellant's argument is that the threat
of or infliction of bodily harm is not always an element of
robbery.   Section 45-5-401, MCA, provides that:
     (1) A person commits the offense of robbery if in the
     course of committing a theft he:
          (a) inflicts bodily injury upon another;
          (b) threatens to inflict bodily injury upon any
     person or purposely or knowingly puts any person in fear
     of immediate bodily injury; or
          (c) commits or threatens immediately to commit any
     felony other than theft.
(Emphasis added.)
     Conversely, the threat of or infliction of bodily harm may be
an element of the crime of sexual intercourse without consent.
Section 45-5-501, MCA,        provides the   following definition of


     As used in 45-5-503 and 45-5-505, the term "without
     consentw means:
           (1) the victim is compelled to submit by force or
     by threat of imminent death, bodily injury, or kidnapping
     to be inflicted on anyone; or
           (2) the victim is incapable of consent because he
     is:
          (a) mentally defective or incapacitated;
          (b) physically helpless; or
          (c) less than 16 years old.
     It is clear that the crimes of robbery and sexual intercourse
without consent may or may not involve the threat of or actual
infliction of bodily harm.
     The State also points out that          9   45-5-503(3)(a),   MCA,
increases the maximum penalty in those cases where the victim is
under 16 years of age,   or   where bodily injury is inflicted on the
victim.   The State argues that it would be inconsistent for the
legislature to increase the penalty under one section of the code
where I1bodily injury occurs,I1 and then to waive the minimum prison
term in a subsequent section where no Itseriousbodily injury was
inflicted on the victim.I1
     The language of 5 46-18-222(5), MCA, is of little assistance
to this Court in our effort to determine the legislaturelsintent.
It is obvious that the exception does not apply to crimes that have
no victim, nor does it apply to crimes where violence, or the
threat of violence, are never an element of the crime.     However,
beyond that general conclusion, nothing can be said with certainty
about the intended scope of the statute's application.
     We conclude that our decision in this case is controlled by
our recent decision in State v. Goodwin, - St.Rep.           (Mont.
1991).   In that case, while discussing the same issue, we
concluded:
    We agree that in reconciling these two provisions there
    is at least an ambiguity regarding the meaning of "where
    applicable" in those cases where the victim is under the
    age of 16 (therefore the threat of or infliction of harm
    is not an element of the crime), or where some injury
    less than "serious bodily injuryIr has been inflicted on
    the victim. However, if the legislature had intended
    this exception to minimum sentences to be limited to
    certain crimes, it had it within its power to clearly
    state the crimes to which the section was applicable.
    By doing so, the legislature could have made its
    intention clear.    It did not do so, and under these
    circumstances our duty is clear. We must interpret the
    criminal statute in a way most favorable to the private
    citizen against whom it is sought to be enforced, and
    against the state which authored it.
    The District Court and this Court are compelled to follow
    the classic rule of construction of criminal statutes
    which is succinctly set forth as follows:
          Penal statutes are construed with such
          strictness as to safeguard the rights of the
          defendant.   If the statute contains patent
          ambiguity and admits of two reasonable and
          contradictory   constructions, that      which
          operates in favor of a party accused under its
          provisions is to be preferred.       Moreover,
          penal statutes are not to be extended in their
          operation to persons, things, or acts not
          within their descriptive terms, or the fair
          and clear import of the language used.
          Nothing can be read into penal statutes by
          implication.
             73 Am.Jur. 2d Statutes 5 295.

Goodwin, - St.Rep. -,            (Mont. 1991).
     In summary, we conclude as we did in Goodwin, that since the
threat of or infliction of bodily harm may, depending on the
circumstances, be an element of the offense of sexual intercourse
without consent, it is reasonable to conclude that the exception
to the minimum sentence found at        46-18-222 (5), MCA, when no
llserious
        bodily injury was inflicted on the victim" is applicable
to that offense. Any ambiguity regarding the applicability of this
exception must be resolved in favor of the defendant.
     We affirm the sentence of the District ~ourh.                    j
                                                                      r
                                                                          J"



We Concur:


AY     chief Justic
