                                                                                            July 16 2009


                                          DA 07-0639

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 235




STATE OF MONTANA,

              Plaintiff and Appellant,

         v.

GREGORY HILTON NEUFELD,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DC 06-0053
                        Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Hon. Steve Bullock, Montana Attorney General; Tammy K. Plubell,
                        Assistant Attorney General, Helena, Montana

                        Dennis Paxinos, Yellowstone County Attorney; Ann Marie McKittrick,
                        Deputy County Attorney, Billings, Montana

                For Appellee:

                        Nancy G. Schwartz, Attorney at Law, Billings, Montana


                                                    Submitted on Briefs: October 29, 2008

                                                               Decided: July 16, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice John Warner delivered the Opinion of the Court.


¶1    Gregory Neufeld was charged in the District Court of the Thirteenth Judicial

District, Yellowstone County, with the offense of sexual intercourse without consent.

However, before trial on the sexual intercourse without consent charge in the District

Court, he was indicted and convicted by his plea of guilty of the federal offenses of

sexual exploitation of children in violation of 18 U.S.C. § 2251, and possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), in the United States District

Court for the District of Montana.        As a result of his federal convictions, he was

sentenced to 262 months in federal prison. Neufeld then moved to dismiss the Montana

State charge claiming double jeopardy. The District Court granted his motion to dismiss.

The State appeals.

¶2    The issue before this Court is whether § 46-11-504, MCA, bars Neufeld’s

prosecution on the Montana sexual intercourse without consent charge.

¶3    In 2002 or 2003, Neufeld began having sexual intercourse with then 13-year-old

K.B. He was 28 years old at the time. The intercourse occurred intermittently until

Neufeld joined the army in January of 2005. Neufeld videotaped himself having sexual

intercourse with K.B. and he admitted that he would sometimes photograph K.B. in

sexual poses or performing sexual acts.

¶4    Neufeld joined the army. He asked K.B. to retrieve and destroy the sexually

explicit photographs he had left in storage. She destroyed some of the photographs but



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kept others. When her father discovered the photographs she had kept, he contacted the

police.

¶5        On January 19, 2006, the information charging Neufeld with sexual intercourse

without consent was filed in the Montana District Court. That same day he was charged

in federal court with violation of 18 U.S.C. § 2251, sexual exploitation of children, 18

U.S.C. § 2252A(a)(2), receipt of child pornography, and 18 U.S.C. § 2252A(a)(5)(B),

possession of child pornography.

¶6        In November 2006, Neufeld pled guilty to sexual exploitation of children and

possession of child pornography in federal court. He was sentenced considering the

federal sentencing guidelines. These guidelines prescribed a sentence between 121 and

151 months. However, his sentence was enhanced due to specific offense characteristics

because K.B. was 12 but not yet 16 years of age and the offense involved the commission

of a sexual act or sexual contact. The resulting sentencing range was 262-327 months. In

May 2007, Neufeld was sentenced to 262 months in federal prison.

¶7        The Montana information charged Neufeld with sexual intercourse without

consent committed in approximately 2002 or 2003 to 2004, alleging he had sexual

intercourse with K.B. on numerous occasions as a continuing course of conduct.

¶8        After he was convicted in federal court, Neufeld moved to dismiss the Montana

charge based on § 46-11-504(1), MCA, which reads in pertinent part:

          When conduct constitutes an offense within the jurisdiction of any state or
          federal court, a prosecution in any jurisdiction is a bar to a subsequent
          prosecution in this state if:
          (1) the first prosecution resulted in an acquittal or in a conviction and the
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         subsequent prosecution is based on an offense arising out of the same
         transaction;
¶9       The District Court granted Neufeld’s motion to dismiss, concluding that Neufeld’s

sexual conduct with the minor K.B. subjected him to prosecution for equivalent offenses

in both the United States and Montana courts and both prosecutions were based on the

same transaction.

¶10      A district court’s decision to grant or deny a defendant’s motion to dismiss a

charge on the basis of double jeopardy presents a question of law that this Court reviews

for correctness. State v. Cech, 2007 MT 184, ¶ 7, 338 Mont. 330, 167 P.3d 389.

¶11      We use a three-part test to determine whether a subsequent prosecution is barred

under § 46-11-504(1), MCA, as follows:

         (1) a defendant’s conduct constitutes an offense within the jurisdiction of
         the court where the first prosecution occurred and within the jurisdiction of
         the court where the subsequent prosecution is pursued;
         (2) the first prosecution resulted in an acquittal or a conviction; and
         (3) the subsequent prosecution is based on an offense arising out of the
         same transaction [as that term is defined in § 46-1-202(23), MCA].

Cech, ¶ 13 (quoting State v. Tadewaldt, 277 Mont. 261, 264, 922 P.2d 463, 465 (1996)).

¶12      All three factors must be met in order to bar subsequent prosecution. State v.

Gazda, 2003 MT 350, ¶ 12, 318 Mont. 516, 82 P.3d 20.

¶13      In this case, factor one and factor three of the test announced in Tadewalt are at

issue.

¶14      The first factor of the test is satisfied when both jurisdictions have authority to

prosecute for the same conduct. State v. Sword, 229 Mont. 370, 373, 747 P.2d 206, 208

(1987). In order to demonstrate that jurisdiction existed in both courts, the same conduct
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must subject a defendant to the possibility that he could be convicted of an “equivalent

offense” in each jurisdiction. Cech, ¶ 17 (citing Gazda, ¶ 14). It is not necessary that a

defendant be charged with identical offenses in both jurisdictions, only that his conduct

constitute an equivalent offense in both jurisdictions. Cech, ¶ 18.

¶15    18 U.S.C. § 2251 defines Sexual Exploitation of Children:

       (a) Any person who employs, uses, persuades, induces, entices, or coerces
       any minor to engage in, or who has a minor assist any other person to
       engage in, or who transports any minor in or affecting interstate or foreign
       commerce, or in any Territory or Possession of the United States, with the
       intent that such minor engage in, any sexually explicit conduct for the
       purpose of producing any visual depiction of such conduct or for the
       purpose of transmitting a live visual depiction of such conduct, shall be
       punished as provided under subsection (e), if such person knows or has
       reason to know that such visual depiction will be transported or transmitted
       using any means or facility of interstate or foreign commerce or in or
       affecting interstate or foreign commerce or mailed, if that visual depiction
       was produced or transmitted using materials that have been mailed,
       shipped, or transported in or affecting interstate or foreign commerce by
       any means, including by computer, or if such visual depiction has actually
       been transported or transmitted using any means or facility of interstate or
       foreign commerce or in or affecting interstate or foreign commerce or
       mailed.

¶16    In the Montana District Court, Neufeld was charged with violating § 45-5-503,

MCA, which reads:       “(1) A person who knowingly has sexual intercourse without

consent with another person commits the offense of sexual intercourse without consent.”

A person cannot consent to sexual intercourse if they are less than 16 years old. Section

45-5-501, MCA.

¶17    Although Neufeld was not charged with the identical offense in federal court as he

was in state court, Montana sought to punish him for the same conduct he has already

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been punished for in federal court. That is, in federal court Neufeld was convicted

because he persuaded, induced, enticed, or coerced a minor to engage in sexually explicit

conduct. The prohibited conduct in this case necessarily included sexual intercourse with

a minor, as well as creating a visual depiction of that conduct. Further, Neufeld’s federal

punishment was increased because his offense involved the commission of a sexual act or

sexual contact. Montana sought to punish him for sexually explicit conduct which

consisted of the same sexual contact with the same minor. In this instance, while the

elements of the charges actually brought in the United States and Montana courts were

not identical, under the facts of this case the offenses of sexual exploitation of children

and sexual intercourse without consent are equivalent. See Cech, ¶ 18. Factor one of the

test announced in Tadewalt is satisfied.

¶18    For purposes of factor three of the double jeopardy test announced in Tadewalt,

the offenses charged in different jurisdictions must arise out of the same transaction.

“Transaction” is defined in § 46-1-202(23), MCA, as:

       [C]onduct consisting of a series of acts or omissions that are motivated by:
       (a) a purpose to accomplish a criminal objective and that are necessary or
       incidental to the accomplishment of that objective; or (b) a common
       purpose or plan that results in the repeated commission of the same offense
       or effect upon the same person or the property of the same person.

See Gazda, ¶ 20.

¶19    In this case, the charging documents in both the United States Court and the

Montana District Court reference the same time and the same sexual conduct with the

same victim.    And, while the federal prosecution focused on pornography, both the

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federal and the Montana charges included, as a part of the offense, sexual contact with

K.B.

¶20    Neufeld was charged with equivalent offenses in both jurisdictions based upon

engaging in sexual intercourse with the minor child K.B. while videotaping the activity.

The crimes Neufeld was charged with are different, but the same conduct led to the

equivalent charges.     Offenses arise from the same transaction when a defendant’s

underlying conduct which gives rise to each prosecution is motivated by a purpose to

accomplish the same criminal objective. Gazda, ¶ 20. In this case, Neufeld’s criminal

objective was to engage in sexual contact with a minor, and in addition he recorded that

activity. His sexual contacts with that minor constitute a crime under both the Montana

statute and the federal statutes.

¶21    The District Court did not err in concluding that the Montana prosecution is barred

under § 46-11-504(1), MCA.

¶22    Affirmed.

                                                       /S/ JOHN WARNER
We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS



Justice Jim Rice, concurring.

¶23    I agree with the Court’s decision to affirm the District Court, but believe the

Court’s analysis is somewhat unclear. The Court states that “the prohibited conduct in
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this case necessarily included sexual intercourse with a minor.” Opinion, ¶ 17. However,

the federal offense of Sexual Exploitation of Children does not “necessarily include”

sexual intercourse. Under 18 U.S.C.A. § 2251, a person can commit that offense merely

by displaying images of the genital or pubic area. The Montana offense of Sexual

Intercourse without Consent requires “penetration of the vulva, anus, or mouth.” Section

45-2-101, MCA. The Court states “the charging documents” reference the same sexual

conduct, Opinion, ¶ 19, yet the federal indicting documents do not allege that Neufeld

committed sexual intercourse or penetration.

¶24   Rather, at his federal sentencing hearing, Neufeld admitted to the court that he had

engaged in a “sexual relationship” with K.B. when she was thirteen years old. The

United States District Court therefore enhanced Neufeld’s sentence because of this

admitted sexual activity with a minor. Thus, it was the enhancement of Neufeld’s

sentence which triggered the double jeopardy protections under § 46-11-504, MCA,

because at that point he was being punished for the same prohibited conduct for which he

was charged in State Court. Therefore, though the federal and Montana offenses where

different as originally charged, Neufeld’s federal sentence incorporated the same

prohibited conduct.


                                                      /S/ JIM RICE




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