                                                                                               02/28/2017


                                          DA 14-0592
                                                                                           Case Number: DA 14-0592

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2017 MT 40



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MELVIN LEE MADPLUME, JR.,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twentieth Judicial District,
                       In and For the County of Lake, Cause No. DC 13-143
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Chief Appellate Defender, Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                       Attorney General, Helena, Montana

                       Steven N. Eschenbacher, Lake County Attorney, Polson, Montana



                                                   Submitted on Briefs: January 25, 2017

                                                              Decided: February 28, 2017


Filed:

                       __________________________________________
                                         Clerk
Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1    Following a jury trial in the Twentieth Judicial District Court, Lake County,

Melvin Lee Madplume Jr. was convicted of deliberate homicide under the felony murder

rule, § 45-5-102(1)(b), MCA, and sentenced to life without parole. Madplume timely

appealed, arguing the District Court erred in admitting evidence of prior acts barred by

M. R. Evid. 404(b). Madplume also claims the District Court sentenced him to pay costs

of defense, prosecution, and jury selection without sufficient findings regarding his

ability to pay. We affirm the District Court’s evidentiary ruling, reverse the sentence to

pay costs, and remand for an inquiry into Madplume’s ability to pay.

                                            ISSUES

¶2    Madplume raises two issues on direct appeal:

     1. Did the District Court abuse its discretion in admitting evidence of
Madplume’s prior acts under M. R. Evid. 404(b) and 403?

      2. Did the District Court err in sentencing Madplume to pay costs of assigned
defense, prosecution, and jury selection without a sufficient inquiry into his ability to
pay?

                                       BACKGROUND

¶3    Madplume’s conviction stems from the May 25, 2013 death of his 28-year-old

cousin, Laurence Kenmille, at Wild Horse Hot Springs in Hot Springs, Montana. In its

initial charging documents, the State recited the details of a prior, uncharged incident

involving Madplume and another male cousin at Wild Horse. Madplume filed a motion

in limine to exclude from trial all evidence of the prior event. The District Court denied

Madplume’s motion and admitted the evidence as proof of motive, opportunity, intent,

                                            2
preparation, and plan. Because the District Court based its decision on a comparison of

the circumstances of Kenmille’s death and the prior incident, a brief explanation of each

event is required.

       A. Prior Incident

¶4     A week before Kenmille’s death, Madplume and Bassu Eneas (Bassu) went to

J.B.’s house to ask if he would drive them to Wild Horse. Like Kenmille, J.B. and Bassu

were both cousins of Madplume. At the time, Madplume and J.B. were 29 and 40 years

old, respectively, but Bassu was still a teenager. Madplume explained that he and Bassu

had been drinking and needed a sober driver to take them to the hot springs. J.B. agreed

to go with them in Madplume’s car, but Madplume ended up driving. At Madplume’s

insistence, J.B. consumed two shots of whisky and began drinking a beer on the way to

Wild Horse. When they arrived at Wild Horse, J.B. noticed that no one was working at

the front desk, which made him uncomfortable about going inside. Madplume insisted he

had reserved a room and led J.B. and Bassu to Room Four.

¶5     Room Four featured a private “plunge room” and sauna. The plunge room housed

a sunken, cement hot tub filled with water piped in from the hot springs. The tub was

situated against two walls in a corner of the room. A high metal railing wrapped around

the tub’s two open sides and down seven concrete steps into the tub. Because of the

railing, the steps were the only way in and out of the tub. A short ledge along one wall

provided the only seating available in the tub. In the corner of the plunge room opposite

the tub, a metal door with a glass window led to a small sauna.



                                            3
¶6     At first, J.B. was reluctant to get into the tub with Madplume and Bassu. A recent

surgery on his foot left him self-conscious and leery of getting an infection from the

water. Madplume, however, claimed to have a background in healthcare from working as

a CNA, and assured J.B. that the hot water would be good for his foot. When J.B. finally

joined Madplume and Bassu in the tub, Madplume began pestering J.B., asking to see his

foot up close. When J.B. relented, Madplume touched J.B.’s inner thigh, which J.B.

interpreted as a sexual advance and resisted, pushing Madplume away. Madplume then

told Bassu to leave the room. Once Bassu was gone, Madplume accused J.B. of leading

him on. J.B. got angry and tried to leave, but the combination of heat, alcohol, and the

foot surgery made him unsteady. Madplume blocked the steps out of the hot tub and

pushed J.B. back into the water multiple times. Eventually, J.B. pushed past Madplume,

put on his shoes, and left the room.

¶7     J.B. found Bassu outside and told him what had happened, warning him against

being alone with Madplume. Without cell service or other options to leave Wild Horse,

J.B. and Bassu had to rely on Madplume to get home. When Madplume offered to drive

them home, they accepted. The ride home began with Madplume speeding toward the

highway, drifting from side to side across the dirt road leading away from Wild Horse.

Upon reaching the highway, instead of turning left toward J.B.’s home, Madplume turned

right toward Hot Springs. After Madplume sped past a cutoff road to Ronan, J.B. started

getting mad again and demanded that Madplume pull over. When Madplume stopped,

J.B. got out and began walking toward a local convenience store. About 20 minutes later,



                                           4
Madplume returned and encouraged J.B. to get back in the car. J.B. climbed in, and after

more erratic driving, Madplume eventually took J.B. back to his home.

      B. Kenmille’s Death

¶8    Madplume had purchased two bottles of rum before heading to Kenmille’s

mother’s house for a late breakfast on May 25, 2013. At the time, Kenmille was staying

at his mother’s house.    After visiting with friends and family in the neighborhood,

Madplume, Kenmille and Youstah Eneas, Bassu’s 16-year-old brother, went to Wild

Horse. According to Wild Horse employees, the three men arrived around 3 p.m. and

had already begun partying and drinking the rum Madplume had brought.                 The

employees noted that Kenmille was particularly boisterous at first, but as the day went on

he became more inebriated and subdued. Later in the afternoon, a Wild Horse employee

noticed that Kenmille’s speech was slurred and he was leaning on walls for support.

Madplume, on the other hand, seemed normal.

¶9    At about 5 p.m., Madplume and company made their way to Room Four, the same

room where Madplume and J.B. had their altercation less than a week earlier. Madplume

and Kenmille put on swim trunks and got into the hot tub, but Youstah was feeling sick

and decided to wait in the lobby. Over the course of the evening, Youstah made several

trips back to Room Four to ask Madplume and Kenmille if they were ready to leave. The

second time Youstah checked in, Kenmille seemed barely awake; his eyes were closed

and his head was down, but above the water. Madplume assured Youstah that Kenmille

was all right and said they would be done soon.



                                            5
¶10      Back in the lobby, Youstah told one of the Wild Horse employees about

Kenmille’s state, and the employee said he would check on Kenmille and Madplume.

Youstah then went looking for something to eat and passed Room Four along the way.

He glanced through the window and saw Madplume hunched over, as if he was carrying

something. Youstah did not enter the room to see what Madplume was doing, but

continued his search for food until he had circled the building and arrived back in the

lobby.

¶11      The final time Youstah went back to the room, he saw Kenmille sitting naked next

to Madplume in the hot tub.        Madplume volunteered that they were all right and

everything was still fine, but Youstah started to worry when he noticed the water was

tinted red around Kenmille. He also saw the glass in the door to the sauna was broken

and shards of glass on the floor appeared to be speckled with blood.          Madplume

explained that Kenmille had slipped and fallen earlier, but assured Youstah that Kenmille

was fine—he was just faking being asleep. Youstah went back to the lobby and told one

of the employees to check on Kenmille.

¶12      Derek Smith was working at Wild Horse with his father, Dave Smith, on the day

Kenmille died. Derek responded to Youstah’s first request for someone to check on

Kenmille. On that visit, Derek entered the plunge room and asked if Madplume and

Kenmille needed anything. Derek noticed that Kenmille was in the corner of the hot tub,

leaning forward with his face in the water while Madplume sat next to him, patting his

back. Madplume said they did not need anything, and Derek left. At some point in the

afternoon, Dave reported hearing glass breaking in the direction of Room Four, as well as

                                             6
noise that he described as the sounds of men rough-housing and laughing. One of the

owners of Wild Horse walked by the room to see if the front window was broken, but did

not go inside the room to see if glass had broken elsewhere.

¶13   Derek also checked on Madplume and Kenmille after Youstah noticed blood on

the broken glass of the sauna door and what appeared to be blood in the tub around

Kenmille. During that check-in, Madplume asked if Derek would help pull Kenmille out

of the tub. At trial, Derek recalled that the tub’s water was murky, as if someone had

vomited in it. Madplume pushed Kenmille to a spot where Derek and Youstah could

reach over the tub’s railing and help pull Kenmille out. As they were moving Kenmille,

Madplume’s grip slipped and Kenmille’s face sank under the water, but Kenmille did not

appear to react. After they removed Kenmille from the tub, Derek noticed bruises on

Kenmille’s shins. Derek went back to the lobby to get his father’s help.

¶14   As Kenmille lay unresponsive on the floor next to the hot tub, blood began to pool

under the back of his head.      Confusion and panic set in.     After some discussion,

Madplume, Youstah, Derek and Dave decided to try to put Kenmille in Madplume’s car

to drive him to the hospital. That plan failed because Kenmille was taller than the car

was wide and his knees had become too stiff to bend. Someone then called 911 and

Youstah started CPR.

¶15   After the ambulance arrived and took Kenmille to the hospital in nearby Plains,

Madplume drove away with Youstah, ostensibly to follow the ambulance to the hospital.

When they arrived in Plains, however, Madplume drove past the hospital and into a

wooded area, speeding up along the way. Madplume was driving 90 miles per hour when

                                            7
they passed a police officer who had stopped another car on the side of the road. As they

approached Thompson Falls, Youstah threatened to grab the steering wheel and crash the

car if Madplume would not turn back toward Plains. Madplume finally turned the car

around, but on the way back to Plains, the officer they passed earlier caught up to them,

pulled them over, and arrested Madplume.

¶16    Kenmille’s body was sent to the state crime lab for a postmortem examination. In

addition to multiple blunt force injuries to the head, abdomen, and extremities, the

autopsy revealed hyperinflated lungs, fluid in the sphenoid sinus, and froth in Kenmille’s

airways.   Based on these findings, the medical examiner concluded Kenmille was

probably drowned violently. The medical examiner’s report also noted rectal bruises and

lacerations consistent with anal penetration.

¶17    The State initially charged Madplume with deliberate homicide and sexual

intercourse without consent, but later amended the charges to a single count of deliberate

homicide under the felony murder rule with sexual intercourse without consent as the

predicate offense. Before trial, Madplume moved to exclude evidence of his altercation

with J.B. pursuant to Rule 404(b), which generally bars evidence of prior bad acts. The

State responded that it intended to use the evidence to show Madplume’s motive,

opportunity, intent, preparation, and plan—all of which are uses specifically allowed by

Rule 404(b). After evaluating the similarities between the prior incident and the alleged

crime, the District Court determined that the evidence was admissible under Rule 404(b)

as proof of a modus operandi and denied Madplume’s motion.



                                                8
¶18   A jury convicted Madplume after a seven-day trial. The District Court sentenced

Madplume to life without possibility of parole and ordered Madplume to pay $33,634.29

in costs for assigned defense counsel, prosecution, and jury selection.        Madplume

objected to the sentence based on his inability to pay the costs. According to its written

judgment, the District Court “determined the ability to pay based on [Madplume’s] prior

work history earnings in prison and eligibility for tribal benefits.” Madplume timely

appealed both the imposition of costs and the admission of evidence of the prior incident

with J.B.

                                 STANDARDS OF REVIEW

¶19   District courts have broad discretion to determine the admissibility of evidence.

State v. Spottedbear, 2016 MT 243, ¶ 9, 385 Mont. 68, 380 P.3d 810. 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. Spottedbear, ¶ 9. To the extent an evidentiary ruling is based on a

district court’s interpretation of the Montana Rules of Evidence, our review is de novo.

Spottedbear, ¶ 9.

¶20   We review criminal sentences of more than one year of incarceration for legality,

considering whether the sentence adheres to the relevant sentencing statutes. State v.

Gable, 2015 MT 200, ¶ 6, 380 Mont. 101, 354 P.3d 566. In this context, our review is de

novo. Gable, ¶ 6.




                                            9
                                         DISCUSSION

¶21 1. Did the District Court abuse its discretion in admitting evidence of
Madplume’s prior acts under M. R. Evid. 404(b) and 403?

       A. Rule 404(b)

¶22    “Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.” M. R. Evid. 404(b). The

aim of Rule 404(b) is to ensure jurors do not impermissibly infer that a defendant’s prior

bad acts make that person a bad person, and therefore, a guilty person. State v. Dist.

Court of the Eighteenth Judicial Dist., 2010 MT 263, ¶ 47, 358 Mont. 325, 246 P.3d 415

(hereinafter “Salvagni”); see also State v. Aakre, 2002 MT 101, ¶ 12, 309 Mont. 403,

46 P.3d 64 (purpose of Rule 404 is “to prevent convictions that are merely based on a

jury finding that someone has a propensity to do certain things”).

¶23    Although not admissible to show bad character or propensity to commit the

charged offense, evidence of prior bad acts is admissible for other purposes such “as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” M. R. Evid. 404(b). The distinction between admissible and

inadmissible Rule 404(b) evidence turns on the intended purpose of the evidence, not its

substance. Salvagni, ¶¶ 47, 62–63. To prevent the permissible uses from swallowing the

general rule barring propensity evidence, the trial court must ensure that the use of Rule

404(b) evidence is “clearly justified and carefully limited.” Aakre, ¶ 12. Mere reference

to a permissible purpose is insufficient for admission of other acts evidence under Rule

404(b). Other acts evidence is admissible for a permissible Rule 404(b) purpose only if


                                            10
“the proponent [can] clearly articulate how that evidence fits into a chain of logical

inferences, no link of which may be the inference that the defendant has the propensity to

commit the crime charged.” State v. Clifford, 2005 MT 219, ¶ 48, 328 Mont. 300,

121 P.3d 489 (internal quotation omitted).

¶24    Madplume asserts the State merely raised the “magic pass words” motive,

opportunity, intent, preparation, and plan to provide cover for its true purpose of unfairly

painting him as a “homosexual predator.” Madplume further asserts that mere similarity

and nearness in time do not establish a permissible Rule 404(b) purpose for introducing

other acts evidence. However, while not necessary in every case or necessarily sufficient

alone for admissibility of prior bad acts evidence, evidence of the similar circumstances

of a charged offense and an uncharged act may be logically relevant to prove a

permissible Rule 404(b) purpose which may in turn give rise to the logical non-

propensity inference that the defendant committed the charged offense. Salvagni, ¶ 56.

For example, “the charged and uncharged acts must be uniquely similar when proving

identity” if “the prosecutor’s theory of logical relevance is modus operandi.” Salvagni,

¶ 60. The modus operandi theory of logical relevance is often used when the identity of

the perpetrator is in doubt and the prior acts are “‘so nearly identical in method as to

earmark them as the handiwork of the accused.’”          Salvagni, ¶ 60 (quoting State v.

Kordonowy, 251 Mont. 44, 49, 823 P.2d 854, 857 (1991)).

¶25    The facts of the present case raise no question about the identity of Kenmille’s

assailant—Madplume was the only other person in the room when Kenmille drowned.

Nevertheless, the District Court characterized the State’s purpose as follows:

                                             11
       The State intends to introduce the testimony of [J.B.] and [Bassu] to show
       Defendant’s motive, opportunity, intent, preparation, and plan in the sexual
       assault and death of Mr. Kenmille based on the similarity between the two
       alleged assaults, amounting to a modus operandi.

Although the District Court conflated the distinct concepts of motive, opportunity, intent,

preparation, and plan by merging them together under a broad interpretation of modus

operandi, we conclude the evidence of the J.B. incident was properly admitted for

purposes originally cited by the State.

¶26    The District Court noted several key similarities between the two events: on both

occasions Madplume directed the parties to the same private plunge room at Wild Horse;

on both occasions Madplume provided the alcohol and encouraged the alcohol use by

both victims; in both cases Madplume brought along a younger cousin to make the victim

feel more comfortable; in both cases Madplume maneuvered himself into intimate

proximity with an isolated victim; and on both occasions the alleged sexual contact and

altercations between Madplume and the victims took place while the younger cousin was

out of the room. The circumstantial similarity and nearness in time of the two events

were logically relevant to show Madplume’s common plan, motive, and intent.

¶27    In its closing argument, the State asserted that, wanting initially to hide his sexual

feelings towards J.B. and Kenmille, Madplume brought Bassu and Youstah along to

make J.B. and Kenmille feel comfortable. Madplume asserts that the State’s reasoning

was “designed to illicit [sic] fears about homosexual men physically assaulting straight

men.” Madplume also takes issue with the following remarks made during the State’s

closing argument:


                                             12
      When you start to listen to [J.B.’s] story and you look at what happened to
      [Kenmille] in that room, there’s a really simple, logical deduction here that
      helps you conclude beyond a reasonable doubt what happened. [Kenmille]
      wasn’t as lucky as [J.B.].

¶28   Madplume analogizes the State’s remarks to State v. Franks, 2014 MT 273,

376 Mont. 431, 335 P.3d 725. In Franks, the prosecution introduced testimony from an

alleged rape victim who said she came forward after reading a newspaper story about the

defendant facing unrelated child molestation charges. Franks, ¶ 17. The prosecution

claimed the purpose of the testimony was to show why the victim came forward.

Franks, ¶ 18. But when the defendant took the stand to explain that he was acquitted of

the other charges, the prosecution asked him a pointed question that implied he was a

“child molester who had simply gotten away with it.” Franks, ¶ 19. During closing

argument, the prosecutor also said the alleged victim was “lucky” that the unrelated

molestation charges were reported in the newspaper and rhetorically questioned “the

odds” of the defendant facing such accusations. Franks, ¶ 8. These remarks cast the

defendant as a child molester but provided little insight into whether he had committed

the charged offense. Franks, ¶¶ 18–19. We concluded that the prosecution’s use of the

other acts evidence exceeded the permissible, non-character purpose for which it was

admitted and instead created “the impression that [the defendant] was a habitual abuser of

children.” Franks, ¶ 22.

¶29   Rule 404(b) expressly authorizes the use of uncharged similar acts evidence to

prove that the accused committed the charged offense in accordance with a common plan.

Here, the State used the similar circumstances of the uncharged J.B. incident to show


                                           13
Madplume’s plan.      Just as he had done with J.B., Madplume invited Kenmille to

accompany him and a younger cousin to Wild Horse under the guise of drinking and

partying together. Just as he tried to do with J.B., Madplume carried out the same plan of

getting Kenmille intoxicated and isolating him in Room Four’s private hot tub so

Madplume could have sex with him. The State’s argument about Madplume’s purpose

for bringing a younger cousin along in each incident did not imply that all homosexual

men prey on straight men. Nor did the argument insinuate that homosexual men are

predisposed to sexually assaulting straight men. Rather, the State permissibly used the

similar uncharged act to show the steps in Madplume’s plan to have sex with Kenmille at

Wild Horse. Unlike Franks, where the prosecution used the other acts evidence to imply

the defendant had a propensity for child molestation, the logical chain connecting the J.B.

incident to Kenmille’s death did not involve an impermissible character or propensity

inference.

¶30    Rule 404(b) likewise permits other acts evidence to prove the defendant

committed both acts with a common motive or intent. Salvagni, ¶ 59. Under this theory,

       the uncharged act evidences the existence of a motive but does not supply
       the motive. . . . [T]he motive is cause, and the charged and uncharged acts
       are effects; that is, both acts are explainable as a result of the same motive.
       The prosecutor uses the uncharged act to show the existence of the motive,
       and the motive in turn strengthens the inference of the defendant's identity
       as the perpetrator of the charged act.

Salvagni, ¶ 59 (emphasis in original). Here, the circumstances of both events were

sufficiently similar and near in time to logically show a common motive and intent to

provide and encourage the victim’s use of alcohol in a private, scantily-clad, and intimate


                                             14
setting for the purpose of facilitating sex with an otherwise reluctant victim. This

evidence was logically probative of Madplume’s motive or intent to commit the predicate

sex offense which was an essential element of the charged offense. The evidence of the

J.B. incident was thus permissible under Rule 404(b) to identify Madplume as the

perpetrator of the charged offense. We therefore conclude that the District Court did not

abuse its discretion in admitting evidence of the uncharged J.B. incident to prove

Madplume’s plan, motive and intent to commit the sex offense predicate of the charged

offense of felony-murder deliberate homicide.

¶31    As an alternative to its Rule 404(b) analysis, the District Court determined the J.B.

incident was also admissible as habit evidence pursuant to Rule 406. Because the other

acts evidence was properly admitted under Rule 404(b), we decline to reach the District

Court’s alternate grounds for admission under Rule 406.

       B. Rule 403

¶32    “All relevant evidence is admissible, except as otherwise provided by constitution,

statute, these rules, or other rules applicable in the courts of this state.” M. R. Evid. 402.

Rule 403 provides that relevant evidence “may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” District courts have broad discretion to weigh the

relative probative value of evidence against the risk of unfair prejudice. State v. Stewart,

2012 MT 317, ¶ 68, 367 Mont. 503, 291 P.3d 1187.



                                             15
¶33    Probative evidence is generally prejudicial to one side or the other. State v.

Lamarr, 2014 MT 222, ¶ 19, 376 Mont. 232, 332 P.3d 258 (citing Stewart, ¶ 68).

Evidence rises to the level of being unfairly prejudicial only “if it arouses the jury's

hostility or sympathy for one side without regard to its probative value, if it confuses or

misleads the trier of fact, or if it unduly distracts from the main issues.” State v. Hicks,

2013 MT 50, ¶ 24, 369 Mont. 165, 296 P.3d 1149 (citing State v. Huether, 284 Mont.

259, 265, 943 P.2d 1291, 1295 (1997)).           Even if evidence is potentially unfairly

prejudicial, the Rule 403 balancing test favors admission—the risk of unfair prejudice

must substantially outweigh the evidence’s probative value. M. R. Evid. 403.

¶34    Twenty years ago, we acknowledged that there may be individuals on any given

jury who find the sexual preferences of a homosexual or bisexual person offensive. State

v. Ford, 278 Mont. 353, 362–63, 926 P.2d 245, 250 (1996). While perhaps less likely

today, the fact remains that some jurors may be so agitated by a person’s sexual

orientation that it distracts from the pertinent facts of the case. We have therefore

cautioned trial courts to safeguard against the potential prejudice a juror may feel toward

homosexual and bisexual individuals. City of Kalispell v. Miller, 2010 MT 62, ¶ 14,

355 Mont. 379, 230 P.3d 792.

¶35    Madplume asserts that J.B.’s testimony about the prior uncharged incident was

unfairly prejudicial because of the inherent societal prejudice against homosexuality. The

record indicates the District Court instructed the jury on three separate occasions that the

prior incident with J.B. was admissible only to prove Madplume’s motive, opportunity,

plan, or intent to commit the charged offense. The District Court thrice reminded the jury

                                            16
that Madplume was “not being tried for any other bad act” and could not “be convicted

for any other offense than that charged in this case.” We also note that Madplume’s

sexual orientation was highly probative of the underlying felony of non-consensual

sexual intercourse with another man. To the extent the admission of the prior incident

with J.B. implicated Madplume’s sexual preferences, the District Court had a reasonable

basis to conclude the evidence’s probative value outweighed the risk of unfair prejudice,

particularly as mitigated by the Court’s repeated limiting instructions to the jury. The

District Court therefore did not abuse its discretion in admitting the prior incident under

Rule 403.

¶36 2. Did the District Court err in sentencing Madplume to pay costs of assigned
defense, prosecution, and jury selection without a sufficient inquiry into his ability to
pay?

¶37    A district court may sentence a defendant to pay the costs of assigned counsel only

if the defendant can pay or will be able to pay those costs. Section 46-8-113(4), MCA.

A similar rule controls sentences to pay prosecution costs. Section 46-18-232(2), MCA.

These statutes require the court to “‘demonstrate a serious inquiry or separate

determination’ into the defendant’s ability to pay the fine.” State v. Moore, 2012 MT 95,

¶ 14, 365 Mont. 13, 277 P.3d 1212 (quoting State v. McLeod, 2002 MT 348, ¶ 34,

313 Mont. 358, 61 P.3d 126). This type of inquiry is particularly important before

sentencing a defendant to pay the costs of jury service pursuant to § 46-18-232(1), MCA.

Moore, ¶ 18. Due to the potential chilling effect a sentence to pay jury costs could have

on a defendant’s constitutional right to request a jury trial, trial courts must “scrupulously

and meticulously” determine the defendant’s ability to pay those costs. Moore, ¶ 18.

                                             17
¶38    Over Madplume’s objection, the District Court imposed costs associated with

assigned defense counsel, prosecution, and jury selection. During the sentencing hearing,

the District Court reasoned that Madplume could pay the costs with “earnings in the

Montana State Prison that can be allocated for restitution and perhaps, as indicated by the

State, any payments from the Tribe to which he’s entitled.” The District Court’s written

judgment explained that its determination of Madplume’s ability to pay was “based on

[his] prior work history earnings in prison and eligibility for tribal benefits.”

¶39    On appeal, the State explains that the District Court’s references to Tribal

payments and benefits were based on statements Madplume made in his first interview

with an investigator on May 26, 2013. During that interview, Madplume said he and

Kenmille had talked about taking a trip after they each received a $10,000 payment from

the Confederated Salish and Kootenai Tribes. At the time, Madplume said the Tribes

would make the payments “pretty soon.” Madplume’s pre-sentence investigation report,

dated April 2, 2014, indicates he had some outstanding student loan debt, but no income

or assets.

¶40    The record before us does not reflect an adequate inquiry into Madplume’s ability

to pay. Before it imposed defense, prosecution, and jury costs, the District Court was

required to consider whether the record contained particularized, non-speculative facts

that indicated Madplume had a reasonable ability to pay the assessed costs. If the record

lacked those facts, the District Court should have asked Madplume directly and made a

record of Madplume’s ability to pay. See § 46-8-113(3), MCA (“In any proceeding for

the determination of whether a defendant is or will be able to pay the costs of counsel, the

                                              18
court shall question the defendant as to the defendant's ability to pay those costs . . . .”).

The pre-sentence investigation report gives no indication that Madplume could pay the

levied costs. Nor does the record indicate the District Court asked Madplume directly

about his ability to pay. Moreover, the Tribal payments cited by the State and the District

Court seem to be supported by nothing more than speculative small talk between

Madplume and Kenmille.

¶41    The State encourages us to apply the doctrine of implied findings to fill the holes

in the District Court’s broad findings. Under that doctrine, we may logically imply

findings necessary to the determination if they are supported by facts in the record and

consistent with more generally articulated findings of the district court. Gable, ¶ 18

(affirming general finding of ability to pay based on general reference to sufficient assets

without reference to specific assets). The record before us does not contain sufficient,

non-speculative information about Madplume’s assets or income to apply the doctrine of

implied findings. We therefore conclude that the District Court erred in imposing costs

based on purely speculative information about Madplume’s ability to pay.

                                      CONCLUSION

¶42    We affirm the District Court’s ruling on the admission of evidence related to

Madplume’s prior altercation with J.B. Madplume’s conviction stands. Because the

record provides no basis for determining Madplume’s ability to pay costs of assigned

defense counsel, prosecution, and jury selection, we reverse only that portion of his

sentence and remand for the District Court to conduct the appropriate inquiry.



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                           /S/ DIRK M. SANDEFUR


We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JIM RICE




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