                                                                                            February 25 2014


                                           DA 12-0457

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2014 MT 49



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RANDY BILL RING,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, DDC 2011-57,
                        Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Deborah S. Smith, Clinical Professor, University of Idaho College of Law,
                        Legal Aid Clinic, Moscow, Idaho

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Tara Harris, Deputy
                        County Attorney, Helena, Montana


                                                     Submitted on Briefs: January 22, 2014
                                                                Decided: February 25, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1    Randy Bill Ring (Ring) appeals from the judgment of Montana First Judicial District

Court, Lewis and Clark County, following his jury conviction for incest in violation of

§ 45-5-507, MCA. We affirm in part, reverse in part and remand for further proceedings

consistent with this Opinion.

                                         ISSUES

¶2    We review the following issues:

             1.      Did the District Court abuse its discretion and correctly apply
      this Court’s decision in Anderson when it prohibited Ring from examining the
      victim out of the presence of the jury regarding alleged false accusations of
      sexual assault?

             2.     Did a jury instruction stating that intoxication is not a defense
      violate Ring’s right to due process, when he testified that he had taken
      prescription medication?

            3.      Did the District Court abuse its discretion when it denied Ring’s
      motion for a new trial based on an allegation of juror bias?

             4.      Did the District Court err when it imposed conditions of the
      sentence that imposed restitution in an unspecified amount and ordered Ring
      to pay for the cost of his incarceration?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On February 2, 2011, Ring’s then twenty-four-year-old daughter, S.H., was staying

with him with her two children, ages seven and two. S.H. does not own a car. S.H. had

come to stay with Ring after a falling out with her mother, with whom she had been staying

previously. Another woman and her eight-year-old daughter were also staying in Ring’s

three bedroom house at the time. Ring slept in one bedroom, while each woman shared a



                                            2
bedroom with her child or children. The other woman was out of town on February 2, but

her daughter was at Ring’s house.

¶4     S.H., Ring, and the children ate dinner, then watched television. S.H. drank some

liquor. Around 8:30 or 9:00 p.m., S.H. put the children to bed. After she had put the

children to bed, S.H. testified that Ring made her a Captain Morgan spiced rum and water in

a “regular-size bar” glass. Then, she went out to the garage and smoked about half a gram of

marijuana and a cigarette. When she returned to the house she testified she was “buzzed,”

but not incapacitated. She testified that Ring handed her a third, stronger, Captain Morgan

and water drink. She was sipping it, then chugged it after Ring made fun of her for drinking

it too slowly. After chugging the drink, S.H. testified, she was “pretty much black-out

drunk.” She testified that she got up and went to sleep in Ring’s bed because she did not

want to disturb her sleeping children. She “pretty much laid down and passed out” with all

her clothes on. She testified: “I remember waking up with—with him on top of me. . . .

And, like, I couldn’t move. And I didn’t want to scream or do anything because there were

kids in the house. I remember heavy breathing and him just kind of talking to himself.” S.H.

just laid there and “took it” because she was “blacked out” and he was too big to push off of

her. When “everything got finished” she went into her bedroom and, at 3:30 in the morning,

called people to come pick her up. Her brother came and picked her up at 8:00 a.m. the next

day. She showed him some text messages she received from Ring. The messages read:

       Why did u call patti to come get u at three thirty this morning

       U started it and it has been along time. If u did not what it to happen all u had
       to do is say no. I am sorry but it was just as much as me. I think this should
       be kept between us

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When she told her brother what had happened, he called the police.

¶5     Ring’s version of events differs. Ring is a veteran who suffers from pain, for which

he is prescribed medications. To manage his pain, he is prescribed one hydrocodone pill per

day and two Naproxen, twice a day. He testified that he was suffering from pain on

February 2, 2011, and also had a cold. Before he went to bed, around 11:30 p.m., he had

taken four hydrocodone pills, as well as three Naproxen and NyQuil Nighttime. He had been

taking Tylenol Cold—and some morphine—during the day. He testified that he never

poured S.H. any drinks. Instead, he testified that S.H. poured her third drink while she was

on the phone with her brother, and that he went to bed before S.H. did. He was wearing his

underwear and had put on the breathing machine he uses to treat his sleep apnea. After Ring

was asleep, he testified, S.H. came into the room. She woke him up, saying she was cold and

asking him to hold her. He said no. She slept on top of the covers with a blanket, initially,

but somehow ended up nude, under the covers. He testified that she initiated the sexual

contact, but also that he was asleep or barely aware at the time, and that he stopped the

contact as soon as he realized what was happening. The next day, when interviewed by a

detective, he admitted that he had intercourse with S.H..

¶6     Ring was charged by Amended Information with incest, a felony, in violation of

§ 45-5-507, MCA. Following a three-day jury trial, he was found guilty of the offense.

¶7     Before trial began, Ring’s counsel filed subpoenas duces tecum to discover evidence

related to past, allegedly false, accusations of rape S.H. had made against other men in her

life. The State filed a motion in limine to exclude such evidence on the grounds that it would


                                              4
not be admissible at trial. The discovery attempt uncovered a one-page, Child and Family

Services report written by a social worker, which referred to one such incident. The

allegations referred to in the report, which were not documented in any sort of detail, had not

been adjudicated or admitted to be false. On the day trial began, the District Court refused

Ring’s counsel’s request to question S.H. to locate documentation of any additional

accusations. The court further determined that the evidence pertaining to the documented

previous accusation was not admissible, pursuant to this Court’s decision in State v.

Anderson, 211 Mont. 272, 686 P.2d 193 (1984).

¶8     Over Ring’s objection, the District Court submitted to the jury an instruction

concerning the effect of being in an “intoxicated condition,” which essentially reiterated the

provisions of § 45-2-203, MCA. The jury instruction provided that intoxication from having

ingested “intoxicating substances” is not a defense to the mental state element of a crime.

The instruction, as permitted by §§ 45-2-203, 45-2-101(32) and 50-32-224(1)(a)(x), MCA,

specified that hydrocodone is an “intoxicating substance.”

¶9     Following Ring’s conviction by the jury, Ring’s counsel learned that one of the jury

members had been a victim of incest. The jury member had not disclosed her experience

during voir dire. Ring’s counsel moved for a new trial, arguing that the nondisclosure

amounted to intentional concealment. The court concluded that investigation of the issue

was necessary and conducted a hearing. The juror submitted a statement that Ring’s counsel

had never asked whether she had been a victim of incest, only whether she could hear the

case fairly and impartially. The juror felt that she could, in part because the incest she

experienced happened during childhood, whereas S.H. was an adult. In fact, she had initially

                                              5
doubted that Ring was guilty. The District Court denied Ring’s motion after considering the

juror’s statement and the voir dire transcript. The court observed that, because neither

counsel asked if any member of the jury pool was a victim of incest, the juror’s decision not

to disclose that history was not intentional concealment. In addition, she had shown no

indication of bias.

¶10    The District Court sentenced Ring to twenty years in the Montana State Prison,

imposing twenty-one “conditions” on his sentence. These conditions included requirements

that he pay “all future medical expenses that his victim can reasonably be expected to incur”

as a result of his conduct, as well as “all future costs of incarceration and medical costs while

incarcerated.”

¶11    Ring appeals.

                                STANDARDS OF REVIEW

¶12    This Court reviews a district court’s evidentiary rulings for an abuse of discretion.

Puccinelli v. Puccinelli, 2012 MT 46, ¶ 12, 364 Mont. 235, 272 P.3d 117. Notwithstanding

this deferential standard, however, judicial discretion must be guided by the rules and

principles of law; thus, our standard of review is plenary to the extent that a discretionary

ruling is based on a conclusion of law. Puccinelli, ¶ 12. In such circumstances, we review a

district court’s decision de novo, to determine whether the court interpreted the law correctly.

Puccinelli, ¶ 12.

¶13    We review jury instructions “to determine whether the instructions as a whole fully

and fairly instruct the jury on the applicable law.” State v. Myran, 2012 MT 252, ¶ 16, 366

Mont. 532, 289 P.3d 118 (quotation omitted). District courts are given broad discretion

                                               6
when instructing a jury and reversible error occurs only if the jury instructions prejudicially

affect the defendant’s substantial rights. Myran, ¶ 16. Statutes are presumed constitutional

and the challenger bears the burden of proving that the statute is unconstitutional beyond a

reasonable doubt; any doubts are resolved in favor of the statute. Myran, ¶ 16.

¶14    A district court’s ruling on a motion for a new trial and its decision as to the

impartiality of a jury should not be set aside unless there is an abuse of discretion. State v.

Dunfee, 2005 MT 147, ¶ 14, 327 Mont. 335, 114 P.3d 217. The trial court is in the best

position to observe the jurors and to decide the potential for prejudice when allegations of

juror misconduct are raised. State v. Rennaker, 2007 MT 10, ¶ 29, 335 Mont. 274, 150 P.3d

960. Thus, the trial court’s determination is given considerable weight by this Court and we

will defer to the trial court’s determination absent a showing of prejudice. Rennaker, ¶ 29.

¶15    This Court reviews criminal sentences for legality. State v. Mainwaring, 2007 MT 14,

¶ 7, 335 Mont. 322, 151 P.3d 53. “When reviewing sentences for ‘legality,’ one thing we

determine is whether the sentencing court had statutory authority to impose the sentence; in

other words, whether the sentence falls within the parameters set by the applicable

sentencing statutes.” Mainwaring, ¶ 7. This presents a question of law, which we review de

novo. Mainwaring, ¶ 7.

                                       DISCUSSION

¶16 1. Did the District Court abuse its discretion and correctly apply this Court’s
decision in Anderson when it prohibited Ring from examining the victim out of the presence
of the jury regarding alleged false accusations of sexual assault?

¶17    In Anderson, this Court held that evidence of similar sexual offenses claimed to have

been committed against the victim by other individuals is admissible if the offenses were

                                              7
proven or admitted to be false. Anderson, at 284-85, 686 P.2d at 200. Admissible evidence

of this nature is limited to that which may be narrowed to the issue of the complaining

witness’s veracity. Anderson, 211 Mont. at 284, 686 P.2d at 200. Evidence of prior charges

which may be true or false is inadmissible. Anderson, 211 Mont. at 284-85, 686 P.2d at 200.

Anderson also stated that, in order to establish whether there is sufficient support for the

contention that the prior allegations are false, a separate hearing outside the jury’s presence

should be held. Anderson, 211 Mont. at 285, 686 P.2d at 200. One purpose of this rule is to

avoid having the trial become “a trial of the victim.” See Anderson, 211 Mont. at 285, 686

P.2d at 200.

¶18    In State ex rel. Mazurek v. District Court of the Mont. Fourth Judicial Dist., 277

Mont. 349, 357, 922 P.2d 474, 479 (1996), we clarified that Anderson requires “that the

district court conduct a hearing outside the presence of the jury to determine whether there is

sufficient evidence to support the contention that the allegation was false.” We explained

that the hearing must address whether it is proper to question the witness regarding previous

accusations, as well as the admissibility of the corroborative evidence. Mazurek, 277 Mont.

at 358, 922 P.2d at 480. Mazurek adopts the direction articulated by the Nevada Supreme

Court that:

       In making such a determination, the defendant must establish, by a
       preponderance of the evidence, that (1) the accusation or accusations were in
       fact made; (2) that the accusation or accusations were in fact false; and (3) that
       the evidence is more probative than prejudicial. . . . If the defendant satisfies
       these three conditions, the trial court will authorize cross-examination of the
       complaining witness concerning the alleged false accusations.




                                               8
Mazurek, 277 Mont. at 358, 922 P.2d at 480 (quoting Miller v. State, 779 P.2d 87, 90 (Nev.

1989)).

¶19    Ring argues that the District Court refused his request to question S.H. about the

existence and veracity of previous allegations based on an incorrect reading of Anderson. As

the State points out, however, neither Anderson nor Mazurek suggested that a hearing can be

used to examine the complaining witness on the stand if there is no evidence that the witness

has made a prior false allegation. Anderson does not require the court to allow a party to

question the victim on the day of trial in order to locate potential evidence of past

accusations. The District Court did not abuse its discretion when it denied Ring’s request to

question S.H. on the day of trial in order to locate potential evidence.

¶20    The District Court correctly interpreted Anderson when it denied Ring’s request to

question S.H. after determining that, to the extent evidence of previous accusations existed, it

was inadmissible. Ring’s pretrial motion for discovery related to S.H.’s past allegations

yielded a single report. The court examined the report and determined that charges had not

been pressed and the report did not show whether the accusations were true or false.

Pursuant to our decision in Mazurek, it was Ring’s burden to establish that the accusations

were false. Ring did not do so. The District Court correctly interpreted our decision in

Anderson, and did not abuse its discretion, when it denied Ring’s request to question S.H.,

having determined the report regarding S.H.’s previous accusation did not show the

accusation was false and, therefore, was inadmissible.

¶21 2. Did a jury instruction stating that intoxication is not a defense violate Ring’s right
to due process, when he testified that he had taken prescription medication?


                                               9
¶22    Section 45-5-507(1), MCA, provides as follows:

       Incest. (1) A person commits the offense of incest if the person knowingly
       marries, cohabits with, has sexual intercourse with, or has sexual contact, as
       defined in 45-2-101, with an ancestor, a descendant, a brother or sister of the
       whole or half blood, or any stepson or stepdaughter.

Critically, the statute requires that, to be guilty of incest, an individual must have acted

“knowingly.” Section 45-2-101(35), MCA, provides that “a person acts knowingly with

respect to conduct or to a circumstance described by a statute defining an offense when the

person is aware of the person’s own conduct or that the circumstance exists.” Section

45-2-203, MCA, provides that, in most cases, intoxication may not be taken into account in

determining the existence of a mental state that is an element of an offense:

       Responsibility -- intoxicated condition. A person who is in an intoxicated
       condition is criminally responsible for the person’s conduct, and an intoxicated
       condition is not a defense to any offense and may not be taken into
       consideration in determining the existence of a mental state that is an element
       of the offense unless the defendant proves that the defendant did not know that
       it was an intoxicating substance when the defendant consumed, smoked,
       sniffed, injected, or otherwise ingested the substance causing the condition.

In Montana v. Egelhoff, 518 U.S. 37, 55, 116 S. Ct. 2013, 2023 (1996), the United States

Supreme Court held that § 45-2-203, MCA, reduced the State’s burden of proving an

offense, but did not violate a criminal defendant’s right to due process by eliminating the

requirement that the State prove each element of an offense.

¶23    Ring argues that the jury was precluded from fully taking into consideration Ring’s

mental state by the jury instruction pertaining to being in an “intoxicated condition” due to

consumption or ingestion of an “intoxicating substance.” The jury instruction read as

follows:


                                             10
       A defendant who is in an intoxicated condition is criminally responsible for
       his conduct and an intoxicated condition is not a defense to any offense and
       may not be taken into consideration in determining the existence of a mental
       state which is an element of the offense unless the defendant proves that he did
       not know that it was an intoxicating substance when he consumed or otherwise
       ingested the substance causing the condition. An intoxicating substance
       includes a controlled substance such as morphine and hydrocodone.

Ring argues that his case is distinguishable from cases involving voluntary intoxication, like

Egelhoff, because he was “following physician orders” when he ingested medication that

made him drowsy. He asserts that § 45-2-203, MCA, as applied to him, is unconstitutional

because it violates his state and federal constitutional rights of due process and his state

constitutional right to defend himself against criminal charges. The statute also, he alleges,

unconstitutionally eliminates the State’s burden of proof to establish that Ring knowingly

committed incest.

¶24    Ring’s argument suffers from the fatal flaw that he was not following physician orders

when he ingested four hydrocodone pills, combined with Naproxen, cold medicines and

possibly the lingering effects of morphine. He was prescribed one hydrocodone pill per day

for pain, as well as two Naproxen, twice a day. He had taken four times the dosage of

hydrocodone prescribed to him, in combination with several other medications. This case is

no different from any other case in which a criminal defendant chooses to become

intoxicated, commits a crime and is held accountable for his conduct, pursuant to § 45-2-203,

MCA. See e.g. Egelhoff, 518 U.S. at 56, 116 S. Ct. at 2023-24; State v. McCaslin, 2004 MT

212, 322 Mont. 350, 96 P.3d 722 (jury instruction based on § 45-2-203, MCA, did not shift

the burden of proving the mental state element to the defendant and did not violate the

defendant’s right to due process under the Montana Constitution); State v. Smith, 2005 MT

                                             11
325, 329 Mont. 526, 127 P.3d 353 (district court did not abuse its discretion in denying

defendant’s request for a jury instruction allowing consideration of defendant’s intoxication

in determining whether he acted with the requisite intent); State v. Belanus, 2010 MT 204,

357 Mont. 463, 240 P.3d 1021 (Section 45-2-203, MCA, did not violate defendant’s

fundamental right to defend, pursuant to the Montana Constitution, where defendant

presented evidence of his intoxication and no jury instruction based on the statute was

given); Myran, ¶ 28 (jury instruction mirroring the language of § 45-2-203, MCA, did not

violate defendant’s right to due process or to present a defense, where defendant fully

presented his defense, including evidence of intoxication, at trial).

¶25    Nor does applying the statute through a jury instruction of this type violate Ring’s

rights to due process or to defend himself against criminal charges. Section 45-2-203, MCA,

does not eliminate the State’s burden of proving each element of the charged offense beyond

a reasonable doubt, it simply reduces the burden by making it easier to bear. The United

States Supreme Court explained in Egelhoff, 518 U.S. at 55, 116 S. Ct. at 2023:

       [R]educing’ the State’s burden . . . [by excluding evidence of intoxication that
       might refute mens rea] is not unconstitutional, unless the rule of evidence
       itself violates a fundamental principle of fairness (which, as discussed, this one
       [(§ 45-2-203, MCA)] does not). We have rejected the view that anything in the
       Due Process Clause bars States from making changes in their criminal law that
       have the effect of making it easier for the prosecution to obtain convictions.

(Citation and quotation omitted). The Supreme Court concluded that the Due Process Clause

does not prohibit Montana from “disallowing consideration of voluntary intoxication when a

defendant’s state of mind is at issue.” Egelhoff, 518 U.S. at 56, 116 S. Ct. at 2024. This

Court has adhered to the principle set forth in Egelhoff and has rejected challenges to jury


                                              12
instructions based on § 45-2-203, MCA, on State constitutional grounds. See McCaslin

(rejecting challenge to § 45-2-203, MCA, under Montana’s Due Process clause, Article II,

Section 17, of the Montana Constitution); Myran (rejecting challenge to § 45-2-203, MCA,

based on contention that Montana’s Constitution provides a greater right to assert a defense

than its federal counterpart). We conclude that Ring’s case is controlled by Egelhoff and its

progeny. The jury instructions in this case fully and fairly instructed the jury as to the

applicable law, and no reversible error has been committed.

¶26 3. Did the District Court abuse its discretion when it denied Ring’s motion for a new
trial based on an allegation of juror bias?

¶27    It is within a district court’s discretion to grant a defendant a new trial “if required in

the interest of justice.” Section 46-16-702(1), MCA. We have consistently held that where

juror nondisclosure does not amount to an intentional concealment, and no further evidence

of bias is proven, there are no grounds for a new trial. Dunfee, ¶ 16; State v. Woods, 221

Mont. 17, 21, 716 P.2d 624, 627 (1986). In Woods, a burglary case, a juror was never asked

whether he had been a victim of burglary and did not disclose that he had been burglarized

three times. Woods, 221 Mont. at 21, 716 P.2d at 626-27. We held that the nondisclosure

was “inadvertent and unintentional” and found no grounds for reversal. Woods, 221 Mont. at

21, 716 P.2d at 627.

¶28    Similarly, in Dunfee, a juror answered every question asked of him in voir dire

truthfully, but did not reveal that he had been assaulted by the defendant’s brother. Dunfee,

¶ 17. At a hearing on the defendant’s motion for a new trial based on juror misconduct, the

juror testified under oath that he had no ill will towards the defendant and that he was a fair


                                               13
and impartial juror. Dunfee, ¶ 17. This Court remarked that “[o]ther than his speculation,

Dunfee has presented no evidence that the juror held any ill will toward him.” Dunfee, ¶ 17.

We held that the district court did not abuse its discretion in denying the defendant’s motion

for a new trial. Dunfee, ¶ 18.

¶29     The District Court, after holding a hearing on Ring’s motion for a new trial and

requesting supplemental briefing from the parties, cited Woods and Dunfee in concluding

that Ring had not established he was entitled to a new trial. The court noted that, as in

Woods, the juror in question was never asked whether she was an incest victim in voir dire,

so her failure to disclose that fact could not amount to intentional concealment. In addition,

the court reasoned, there was no evidence the juror had exhibited any bias or ill will towards

Ring.

¶30     On appeal, Ring does not challenge the District Court’s determination that the juror’s

failure to disclose her experience of incest did not amount to intentional concealment.

Instead, Ring distinguishes Woods on the basis that being a victim of a past sex crime

produces inherent bias. He argues that the juror lacked the capacity to determine whether

she could consider the case without bias.

¶31     We find the District Court’s disposition of Ring’s motion for a new trial well-

reasoned and decline Ring’s invitation to redefine our test for juror bias in the context of a

sex crime trial. As in Dunfee, Ring has shown no evidence beyond his own speculation that

the juror here held any bias or ill will towards him. As the District Court pointed out, she

“uniformly stated that she was unbiased and initially questioned whether Ring was guilty.”

Having been a victim of a sex crime does not produce inherent bias any more than having

                                              14
been a victim of a burglary or a physical assault does; the District Court correctly relied upon

our decision in Woods. The District Court did not abuse its discretion in denying Ring’s

motion for a new trial on grounds of juror misconduct.

¶32 4. Did the District Court err when it imposed conditions of the sentence that imposed
restitution in an unspecified amount and ordered Ring to pay for the cost of his
incarceration?

¶33    Ring alleges that several portions of his sentence are illegal and should be stricken

from the judgment. In State v. Heafner, 2010 MT 87, ¶ 11, 356 Mont. 128, 231 P.3d 1087,

we held that when a portion of a sentence is illegal, the proper practice is to remand to the

district court to correct the illegal conditions.




       a. Parole conditions

¶34    District courts have only the power to impose those parole conditions which are

specifically and explicitly authorized by statute. State v. Burch, 2008 MT 118, ¶ 36, 342

Mont. 499, 182 P.3d 66. Apart from those conditions set forth in the statute, the authority to

impose conditions on parole rests solely with the Board of Pardons and Parole (Board).

Heafner, ¶ 5. The Board may consider any conditions of parole imposed in excess of a

district court’s statutory authority as recommendations. See Heafner, ¶ 6. We have held that

where no part of a defendant’s sentence is suspended, conditions set forth in the sentence

may amount to conditions on parole. See State v. Gunderson, 2010 MT 166, ¶¶ 109-10, 357

Mont. 142, 237 P.3d 74.




                                               15
¶35       Ring argues that Conditions 2-14, 17-19, 21(A)-(L), (O) amount to conditions on

parole and are not authorized by statute. The State agrees. Because no portion of Ring’s

sentence is suspended, the conditions Ring challenges amount to conditions of parole and are

illegal under these circumstances. See Gunderson, ¶¶ 109-10. Consistent with our decision

in Heafner, ¶ 11, we therefore remand to the District Court to strike these conditions of

parole.     The District Court, in its discretion, may reinstate these “conditions” as

recommendations to the Board. See Heafner, ¶ 6.

          b. Restitution

¶36       Section 46-18-244, MCA, requires the sentencing court to “specify the total amount

of restitution that the offender shall pay.” We have held that this means a district court may

only order a defendant to pay a set amount of restitution, based on the evidence provided by

the State. Heafner, ¶ 7. Where the court has not specified the amount of restitution to be

paid, remand for further proceedings to determine an appropriate amount of restitution is an

appropriate remedy. See Heafner, ¶ 13.

¶37       The District Court’s judgment, in Condition 16, required Ring to pay “all future

medical expenses that his victim can reasonably be expected to incur as a result of the

defendant’s criminal conduct, including the cost of psychological counseling, therapy, and

treatment, in an amount to be determined by the Court’s restitution officer[.]” This order of

restitution does not meet the statutory requirement for specificity, as clarified in Heafner.

Accordingly, we remand so the District Court may strike this condition and, in its discretion,

conduct such proceedings as it deems necessary to order restitution in a specified amount.

          c. Future costs of incarceration

                                              16
¶38    The State concedes that Condition 20, requiring Ring to pay “all future costs of

incarceration and medical costs while incarcerated, pursuant to Section 7-32-2245” should be

stricken on remand. As the State concedes, § 7-32-2245, MCA, applies only to costs of

confinement in a “detention center” and cannot be applied to Ring’s incarceration in the

Montana State Prison. See § 7-32-2201, MCA (describing and defining “detention center”).

Accordingly, we remand to the District Court to strike this condition.

                                       CONCLUSION

¶39    We affirm the District Court’s determinations with regards to S.H.’s alleged past

accusations; the jury instruction pertaining to the effect of Ring’s intoxication; and Ring’s

motion for a new trial. We reverse and remand the sentence to the District Court for further

proceedings to (1) either strike Conditions 2-14, 17-19, 21(A)-(L), (O), or restate those

conditions as recommendations to the Board; (2) either strike Condition 16 pertaining to

restitution, or set restitution in a specified amount; and (3) strike Condition 20, pertaining to

Ring’s costs of incarceration.

¶40    Affirmed in part, reversed in part, and remanded for further proceedings consistent

with this Opinion.


                                                    /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE



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