                                                                                          May 27 2014
                                          DA 13-0526

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 135



STATE OF MONTANA,

               Plaintiff and Appellant,

         v.

CHRISTINA NADINE NELSON, a/k/a
CHRISTINA NADINE MARK,

                Defendant and Appellee.


APPEAL FROM:           District Court of the Thirteenth Judicial District,
                       In and For the County of Yellowstone, Cause No. DC-12-759
                       Honorable G. Todd Baugh, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Timothy C. Fox, Montana Attorney General; Tammy K Plubell; Assistant
                       Attorney General; Helena, Montana

                       Scott Twito, Yellowstone County Attorney; Mary E. Cochenour, Special
                       Deputy Yellowstone County Attorney; Billings, Montana

                For Appellee:

                       Penelope S. Strong; Attorney at Law; Billings, Montana



                                                   Submitted on Briefs: April 9, 2014
                                                              Decided: May 27, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     The State appeals from the order of the Thirteenth Judicial District Court,

Yellowstone County, granting the motion of Christina Nelson (Nelson) to dismiss a

charge against her of Tampering with or Fabricating Physical Evidence, a felony, under

§ 45-7-207(1)(b), MCA. Nelson argued that the Information did not allege a cognizable

basis to find probable cause that the charged offense had occurred. We reverse and

remand after addressing the following issue:

¶2     Did the District Court err by dismissing the State’s charge of fabricating physical

evidence under § 45-5-207(1)(b), MCA?

                  FACTUAL AND PROCEDURAL BACKGROUND1

¶3     On August 10, 2012, at approximately 11 p.m., Nelson went to the Billings Clinic

to seek medical treatment. She reported to medical personnel that earlier in the day her

ex-boyfriend, A.S., had raped her. The hospital staff contacted law enforcement to report

the crime. Officer Richardson of the Billings Police Department went to the Clinic to

speak with Nelson. Nelson agreed to give a tape-recorded statement of the events that

transpired that day. On the recorded statement, Nelson recounted that she left work at

approximately 5:30 p.m. that evening. As she was walking through the parking lot, A.S.

approached her from behind and told her he missed her and wanted to be with her.

Nelson told A.S. to go away and tried to leave. A.S. slapped Nelson in the face, punched

her nine times in the stomach, and forced her into the back of his van.                  Nelson

1
  As no trial or other hearing has occurred in this case, the following recitation of facts is as
alleged by the State.
                                           2
remembered her pants being off and A.S. having sex with her. After A.S. “finished,” he

allowed her to leave the van. Nelson then got into her car and left. None of her

coworkers were around, and she did not believe anyone had witnessed the incident. After

departing in her vehicle, Nelson went to a bar to have a drink with a friend. After leaving

the bar, she arrived home at 7 p.m. Nelson and her husband, Miles Nelson (Miles), went

to the gym together. While at the gym, Nelson sat in the sauna and hot tub, and took a

shower. At approximately 10 p.m., Nelson told her husband about the rape, and he took

her to the Clinic.

¶4     At the Clinic, Nelson agreed to submit to a Sexual Assault Nurse Examination

(SANE) that is memorialized in a forensic medical report. Nelson signed a consent form

allowing medical personnel at the Clinic to obtain Nelson’s medical history and details of

the alleged attack; perform a physical examination; screen Nelson for pregnancy and

sexually transmitted diseases; collect evidence from her person relevant to the alleged

rape; photograph any physical injuries; and release all of this information and evidence to

law enforcement to facilitate a criminal investigation. Nelson also signed a separate

authorization allowing the Clinic to disclose private health care information to the

Billings Police Department for the purposes of a “police investigation.”

¶5     During the SANE, Nelson was curled up in the fetal position, teary-eyed and soft

spoken. Nelson told the nurse conducting the examination substantially the same story as

she had told Officer Richardson. When asked about the sexual intercourse she had

engaged in during the last five days, Nelson reported that she had engaged in sexual

                                         3
intercourse two days prior, on August 8, 2012, during which a condom was used. Nelson

told the nurse she was unsure whether or not A.S. had ejaculated. The nurse found moist

secretions in Nelson’s vaginal swabs. Law enforcement collected the vaginal swabs and

preserved them as evidence in the ongoing investigation.

¶6    On August 28, 2012, Detective Baum of the Billings Police Department

interviewed Nelson’s husband, Miles. He reported that when Nelson arrived home on

August 10, 2012, he did not observe any injuries to Nelson. Miles said that they went to

the gym together and returned home at about 8:30 p.m. At that point they engaged in

unprotected sexual intercourse, which Nelson initiated. Afterwards, he asked Nelson if

something was wrong. At that time, Nelson disclosed to him that A.S. had raped her

earlier that day. Nelson apologized for wanting to have sex, but said she just wanted to

forget about the rape. Nelson told Miles she only wanted to go to the hospital to get

tested for sexually transmitted diseases (STDs). However, according to the SANE report,

Nelson refused STD medications.

¶7    During the course of the investigation, Detective Baum obtained surveillance

videos of Nelson’s workplace parking lot.      The videos showed Nelson leaving the

building at the end of the day on August 10, 2012. Nineteen seconds after Nelson left the

building, Nelson’s friend and coworker, Sarah Kruger, also left the building. The video

shows both Nelson’s and Sarah’s vehicles leaving the parking lot at approximately

5:40 p.m. The video does not show anyone approaching Nelson after she exited the

building.

                                        4
¶8     Detective Baum interviewed A.S., who Nelson had accused of the crime, on

August 29, 2012, and September 5, 2012. A.S. reported that he was not in Billings on

August 10, 2012. He left Billings around 8:30 a.m. on August 9, 2012, and arrived in

Seattle around 11 p.m. that evening. A.S. provided receipts for purchases made on

August 9, 2012, in Billings and Missoula, as well as locations in Idaho and Washington.

A.S. stayed in Seattle until August 18, 2012. A.S. provided receipts for purchases made

in Washington between August 10 and 16, 2012. He also provided Detective Baum with

a photograph on his cellphone of a highway sign on August 9, 2012, showing he was 206

miles from Seattle.

¶9     Detective Baum also learned from the Office of Victim Services that Nelson had

previously submitted to four other SANEs, the results of which were in the possession of

law enforcement. Two of the examinations and resulting reports occurred in 2009, and

two occurred in April, 2012. One of the 2009 examinations, and both of the 2012

examinations occurred in Yellowstone County. In the two 2012 reports, Nelson had

reported to law enforcement that she had been assaulted at her residence on Lewis Street

in Billings, although the SANE reports indicated that Nelson reported the rapes had

occurred in dorm rooms at Rocky Mountain College. Law enforcement further learned

that in April 2012, Nelson reported that A.S. had allegedly raped her.

¶10    Detective Baum attempted to contact Nelson numerous times after first meeting

with her. On August 29, 2012, Nelson sent Detective Baum an email stating she no

longer wanted to pursue charges against A.S., and that she was revoking the medical

                                         5
release she signed at the Clinic. Nelson stated that she had signed the release while on

pain medication.

¶11   On December 18, 2012, the District Court granted the State’s motion for leave to

file an Information charging Nelson with one count of Tampering with or Fabricating

Physical Evidence, a felony, in violation of § 45-7-207(1)(b), MCA. The Information

alleged that Nelson,

      believing that an official proceeding or investigation was pending or about
      to be instituted, made, presented or used records, documents, or other
      things, particularly a forensic medical exam, patient medical disclosure
      authorizations, and other reports or statements to law enforcement officers
      and medical professionals, knowing them to be false and with the purpose
      to mislead law enforcement officers and/or medical professionals, who
      were engaged in the investigation.

¶12   Nelson requested a continuance of the first jury trial, scheduled for April 22, 2013,

and it was subsequently rescheduled for July 23, 2013. On June 17, 2013, Nelson filed a

motion to dismiss the charge, asserting that “the current charge of tampering with

physical evidence, embodied in the Information and supported by the Supporting

Affidavit, is insufficient as a matter of law, and thus the charge must be dismissed.”

Nelson argued in part that a person’s statement, even if recorded electronically or in

writing cannot meet the definition of “physical evidence” for purposes of violating the

statute. She also argued that nothing in the forensic examination was itself “false”—

specifically that Nelson’s vaginal secretions were not false.     The State opposed the

motion.




                                        6
¶13    On July 23, 2013, the District Court issued its order granting Nelson’s motion to

dismiss the charge. The court’s order dismissing the charge stated:

              It is not in dispute that [Nelson] lied to Billings Clinic and the
       Billings Police Department as to the identity of the perpetrator of the
       alleged rape. While it is unlikely that [Nelson] was raped or sexually
       assaulted at all, it is technically possible.

              So, if the State believes [Nelson] was raped or sexually assaulted,
       the charges against [Nelson] at least have an arguable basis. . . .

              However, it is apparent the State does not think [Nelson] was
       sexually assaulted or raped. . . .

              Obviously, the State believes [Nelson] to be untruthful about the
       August, 201[2], events of this case and probably about the 2009 and 2012
       reports, as well.

              This case turns on M.C.A., §45-7-207(1)(b). Sub-part (b) is the key:

                   “[ ] (b) makes, presents, or uses any record, document, or
       thing knowing it to be false [ ]”

              The evidence and arguments clearly establish that [Nelson] knew her
       allegations of sexual assault and rape were false. Further, by participating
       in the SANE Report, she helped make records and documents. However,
       since there was no sexual assault or rape as described by [Nelson], there
       was no physical evidence of the sexual assault or rape that she described.

              Even though [Nelson] was knowingly untruthful about events and
       arguably with the purpose to mislead, the SANE Report, itself, is not false
       or inaccurate and is only evidence of [Nelson’s] untruthfulness.

(Footnote omitted.) The order concluded that more specific statutes cover the charged

conduct such as “perjury, false swearing, unsworn falsification to authorities and false

reports to law enforcement.” The court granted the State 30 days to amend the charges

against Nelson. Instead, the State timely appealed the District Court’s decision.

                                         7
¶14    The State argues the District Court’s dismissal of the charge in this case is a

violation of the discretion afforded to prosecutors in charging decisions. It notes that all

of the possible charges referenced by the court as more appropriate under the

circumstances are misdemeanors, and given the “extreme measures” Nelson employed to

intentionally mislead the investigators, the prosecutor should be permitted to charge a

felony offense, if supported under the facts, “based upon the harm Nelson caused, the

potential harm she could have caused, and her culpability.” Specifically, the State claims

the court incorrectly interpreted § 45-7-207, MCA, by concluding that the charge could

only be brought if the State actually believed a rape occurred, and by too narrowly

defining the term “physical evidence.”

¶15    Nelson essentially concedes that the District Court erred in concluding a crime

must have been committed before § 45-7-207, MCA, can be violated.2 Nonetheless, she

urges this Court to uphold the dismissal under the “right result, wrong reason” appellate

rule, citing State v. Ellison, 2012 MT 50, ¶ 20, 364 Mont. 276, 272 P.3d 646; State v.

Marcial, 2013 MT 242, ¶ 10, 371 Mont. 348, 308 P.3d 69. She argues the evidence

alleged by the State in this case cannot be considered “false,” nor can it be considered

“physical evidence.”




2
  Nelson does not present argument supporting the District Court’s reasoning on this issue, and
states “[t]he District Court did rule that as no rape occurred, no physical evidence of such crime
was at issue. In so ruling it may have misapprehended the nature of false evidence.”
                                               8
                                 STANDARD OF REVIEW

¶16    We review a district court’s decision on a motion to dismiss in a criminal case de

novo. State v. Dugan, 2013 MT 38, ¶ 13, 369 Mont. 39, 303 P.3d 755. When the

dismissal is based upon the interpretation or construction of a statute, we review for

whether the district court’s interpretation or construction is correct. State v. Madsen,

2013 MT 281, ¶ 6, 372 Mont. 102, 317 P.3d 806 (citing State v. Brown, 2009 MT 452,

¶ 6, 354 Mont. 329, 223 P.3d 874).

                                      DISCUSSION

¶17    This Court construes a statute by reading and interpreting the statute as a whole

without isolating specific terms from the context, and “must account for the statute’s text,

language, structure and object.” State v. Triplett, 2008 MT 360, ¶ 25, 346 Mont. 383,

195 P.3d 819 (quotation omitted). We must attempt to give effect to the purpose of the

statute and avoid an absurd result. Triplett, ¶ 25. We thus evaluate the Tampering with

or Fabricating Physical Evidence statute. Section 45-7-207(1)(b), MCA, provides:

       A person commits the offense of tampering with or fabricating physical
       evidence if, believing that an official proceeding or investigation is pending
       or about to be instituted, the person: . . . makes, presents, or uses any
       record, document, or thing knowing it to be false and with purpose to
       mislead any person who is or may be engaged in the proceeding or
       investigation.

The annotator’s note explains:

       The purpose of this section is the protection of physical evidence. To this
       end, the section prohibits . . . the making or presentation of physical
       evidence known to be false. To establish the offense, it must be shown that
       the accused believed an official proceeding or investigation was pending or
       imminent and that he acted either with the purpose of impairing the
                                         9
      availability or verity of physical evidence or that he knowingly presented
      false evidence with the purpose of misleading. It should be noted that to
      complete the offense the accused need merely do the proscribed acts with
      the requisite mental state—he need not succeed . . . in misleading the
      investigation. The most significant differences between this section and
      prior law are the increase in scope to include investigations as well as trials
      and other formal proceedings and the increase in penalties from punishment
      as a misdemeanor to punishment by up to ten years.

¶18   Neither the statute nor the annotations provides support for the District Court’s

conclusion that § 45-7-207, MCA, is only applicable when the evidence at issue is related

to an actual, underlying crime. While a violation of the statute may be charged in cases

where the defendant is alleged to have covered up an actual crime, the language of the

statute only requires that a “proceeding or investigation” be pending. The annotator’s

note states that the statute was meant to broaden the scope of prior law by including

“investigations as well as trials and other formal proceedings.” It is irrelevant whether

the State believed that Nelson was actually assaulted because, as explained in the

annotator’s note, it is not necessary that the defendant charged by this statute actually

succeed in misleading the investigation.

¶19   State v. Clifford, 2005 MT 219, 328 Mont. 300, 121 P.3d 489, is instructive here.

In Clifford, the defendant was charged with tampering with or fabricating physical

evidence, along with other charges, for creating lewd and threatening letters that were

sent to various parties, including the defendant herself. The defendant was vocal in

accusing specific people of authoring the letters, and an investigation was conducted of

those she falsely accused, including a search of the accused’s home pursuant to a warrant.

Clifford, ¶¶ 9, 14. The investigation revealed evidence implicating the defendant as the
                                           10
source of the letters, and she was subsequently charged and convicted under § 45-7-207,

MCA. While no charges were filed against the falsely accused party, and the defendant

had not actually been threatened by anyone since she wrote the letters herself, the

conviction was upheld.

¶20   We considered whether a conviction under this statute is permissible when the

defendant was acquitted of the underlying crime in State v. Scheffer, 2010 MT 73, ¶ 2,

355 Mont. 523, 230 P.3d 462. Scheffer was questioned at the police station regarding

allegations of sexual intercourse without consent based upon the victim’s report that

Scheffer had inserted his fingers into her vagina. Scheffer, ¶¶ 3-6. The officer told

Scheffer they wanted to swab his fingers to test for the presence of the victim’s DNA, to

which Scheffer consented.     When the officer left the room to gather the swabbing

materials, Scheffer stuck his fingers “entirely in his mouth, moved them back and forth,

took them out, rubbed his hands together, and then wiped his fingers on his jeans.”

Scheffer, ¶ 8.   Scheffer was charged with sexual intercourse without consent and

tampering with or fabricating physical evidence. Scheffer, ¶ 9. The jury acquitted him of

sexual intercourse without consent, but convicted him of tampering. Scheffer, ¶ 12. On

appeal, we rejected Scheffer’s argument that it was a “practical impossibility” for him to

tamper with evidence of a non-existent crime, and that the jury “could not have logically

concluded that Scheffer attempted to tamper with evidence related to a rape that never

occurred.” Scheffer, ¶ 43.




                                        11
¶21    Thus, the statute may apply in cases where an investigation is pending or

imminent yet no underlying crime has actually been committed and no charges are

brought against a falsely accused party. Here, the State need only prove that Nelson

believed an investigation or official proceeding was about to be instituted, and that she

made or presented evidence that she knew to be false with the purpose to mislead the

investigation. Thus, we next examine whether the alleged conduct satisfies the remaining

statutory requirements.

¶22    The term “physical evidence” is not defined in the statute or anywhere else in the

code. “Evidence” is defined as “the means of ascertaining in a judicial proceeding the

truth respecting a question of fact, including but not limited to witness testimony,

writings, physical objects, or other things presented to the senses.” Section 26-1-101(2),

MCA. Nelson argues this provision recognizes “four distinct types of evidence,” and that

writings and witness statements cannot be considered “physical objects, or other things

presented to the senses.” She thus contends that when the statutes are read together, the

term “physical evidence” under § 45-7-207, MCA, specifically excludes oral statements,

whether or not recorded, as well as testimony and writings. However, such a narrow

construction of “physical evidence” would negate the purpose of the tampering statute

and is contradicted by our prior cases.

¶23    In State v. Staat, 251 Mont. 1, 822 P.2d 643 (1991), we upheld a conviction for

tampering with evidence when the defendant destroyed a note written by a homicide

victim. Similarly, in Clifford, we upheld the conviction of a defendant for manufacturing

                                          12
threatening letters while alleging that someone else had authored them. In both cases, the

documents were clearly writings, and undoubtedly constituted “physical evidence.” A

writing qualifies as a physical item or object that may be evidence. Similarly, a recorded

oral statement, which is necessarily “presented to the senses” when played,

§ 26-1-101(2), MCA, may be physical evidence in any particular case. Thus, rejecting

Nelson’s narrow interpretation of what may constitute “physical evidence,” we look to

the evidence at issue in this case.

¶24    Here, the State alleged that the “forensic medical exam, patient medical disclosure

authorizations, and other reports or statements to law enforcement officers and medical

professionals” were items of physical evidence that were made, presented, or used by

Nelson, knowing that they were false. Nelson argues that her oral statements to the

forensic nurse and to law enforcement cannot be considered “physical evidence” even

though they were documented in a written SANE report and tape recorded. She also

contends the tape recording of her statement by Officer Richardson, the SANE report

created by the forensic nurse, and the disclosure forms were not made, presented, or used

by her as the statute requires.

¶25    While Nelson’s oral statements to law enforcement and medical professionals may

not, by themselves, be “physical evidence,” Nelson went far beyond merely giving false

oral statements. Nelson presented herself for physical examination by a forensic nurse,

allowing the nurse to collect bodily evidence and photograph any injuries for use in the

sexual assault investigation. The vaginal swabs taken from Nelson were preserved as

                                        13
evidence of the alleged offense, and were potentially admissible as evidence in a trial

against A.S. This evidence was collected in this case as a result of Nelson’s oral

statements claiming she suffered a sexual assault, which cannot be viewed in isolation.

Because Nelson is charged with only one count of fabricating physical evidence, we

decline to address each specific statement given by Nelson, each form signed by Nelson,

and all documents or recordings made during the course of the investigation. Here it is

only necessary to focus on the physical evidence produced during the SANE, the

collection of which was prompted by Nelson’s statements and the documents she signed.3

¶26    Nelson offers several arguments for why the swabs cannot be considered “false”

for purposes of the statute. First, because it is not alleged that she altered them in some

way, she asserts they cannot be considered false “in any sense of that word.” Second,

because “she did not affirmatively state that A.S. ejaculated into her vagina, but rather

said she was unsure,” there can be no inference that she “tampered” with her own bodily

fluids by having intercourse before going to the hospital.          Nelson alleges that her

presentation of her body and its fluids “was true, and unimpaired by any obstructive acts

that might obliterate their integrity.”      Because the evidence collected was “fully

accurate,” A.S.’s “alleged innocence would have been supported by the proper analysis

of [Nelson’s] vaginal secretions.” Finally, she argues that the bodily fluids collected by


3
  Nelson argues that by only charging one count, the State did not provide fair warning of the
nature of the charged offense. She also makes a cursory argument that by not clearly defining
the elements of the crime, the statute is potentially void for vagueness. We decline to address
these arguments raised for the first time on appeal and without full briefing. M. R. App. P.
12(1)(f).
                                            14
the swabs “cannot be physical evidence, available for tampering, until and when they are

actually drawn for evidence in a criminal case,” citing State v. Peplow, 2001 MT 253,

307 Mont. 172, 36 P.3d 922.

¶27    Nelson’s arguments are unpersuasive. Although Nelson’s body and the samples

taken therefrom were not “false” in the sense of being forged or fabricated, they were

certainly false in what she represented them to be—evidence of a physical assault. She

presented herself for examination of an alleged rape by A.S. and represented that the

evidence found during the examination would be evidence of the alleged rape.

Importantly, she instigated unprotected sexual intercourse with her husband before going

to the hospital, thereby enhancing the possibility of the presence of fluids in her body,

and then falsely reported to the forensic nurse that her last consensual intercourse had

been two days prior, during which a condom was used. This misled the nurse to believe

that fluids found during the examination would be related to the alleged rape. Thus, the

evidence presented and collected was false for purposes of § 45-7-207, MCA. Nelson’s

qualified statement that she was “unsure” whether A.S. had ejaculated cannot shield

Nelson from these otherwise false statements.       Additionally, Nelson’s assertion that

proper analysis of this evidence would have exonerated A.S. of the alleged assault is

irrelevant under the statute, which looks to the defendant’s intentions, not her ultimate

success. As in Clifford, it is irrelevant that further investigation ultimately revealed the

accused party’s innocence.




                                         15
¶28   Finally, Nelson’s reliance on Peplow is misplaced. In Peplow, we considered

whether a defendant’s blood, while still in the body, could be considered “physical

evidence” of blood alcohol content such that the consumption of alcohol after a motor

vehicle accident could be deemed to be tampering with evidence. We concluded it could

not be considered physical evidence prior to the removal of a sample from the body.

Peplow, ¶ 26. We held that this conclusion would avoid the absurd result of “any driver

who eats, sleeps, or even receives medical treatment” after an accident being potentially

culpable for tampering with evidence. Peplow, ¶ 27. Here, even if we were to conclude

that the secretions swabbed from Nelson’s body were in “a state of biochemical flux,” as

blood in the veins is, Peplow’s rationale would nonetheless fail to apply because the

evidence had been removed from Nelson’s body, with her consent, and preserved for

later testing. These samples are thus “physical evidence” under any interpretation of

Peplow. Nelson’s presentation and the collection of the samples is sufficient to sustain

the charge.

¶29   We do not here decide whether Nelson is guilty, but rather, that under the facts as

alleged by the State, a rational trier of fact could find the essential elements of the

charged offense beyond a reasonable doubt. See State v. Rosling, 2008 MT 62, ¶ 35, 342

Mont. 1, 180 P.3d 1102.      As alleged, Nelson engaged in unprotected, consensual

intercourse with her husband immediately prior to going to the hospital. When she

arrived at the hospital she falsely reported that she had been raped and falsely told the

nurse that her last consensual intercourse had been two days prior, and that a condom had

                                       16
been used. Nelson agreed to participate in a SANE, during which the nurse collected

vaginal secretions indicating recent sexual intercourse that could have been consistent

with the rape allegation. The secretions were preserved as evidence. As the State

alleges, “Nelson used her own vaginal secretions, which were indicative of recent

intercourse, to mislead the nurse and law enforcement to believe that A.S. had raped her.”

Based on the State’s allegations, there are sufficient facts from which a rational trier of

fact could conclude that each element of the charged offense had been proven.

¶30    We reverse the District Court’s dismissal of the charge under § 45-7-207(1)(b),

MCA, and remand for further proceedings consistent with this opinion.



                                                 /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT




                                        17
