                                                                                           08/22/2017


                                          DA 16-0513
                                                                                       Case Number: DA 16-0513


              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2017 MT 207N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

MARK KAPPS,

               Defendant and Appellant.



APPEAL FROM:           District Court of the Sixteenth Judicial District,
                       In and For the County of Fallon, Cause No. DC 15-001
                       Honorable and Nickolas C. Murnion, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana

                For Appellee:

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

                       Darcy Lynn Wassmann, Fallon County Attorney, Ole Olson, Special
                       Deputy County Attorney, Baker, Montana


                                                  Submitted on Briefs: July 12, 2017

                                                             Decided: August 22, 2017


Filed:

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

¶1    Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2    Mark Kapps (Kapps) appeals his convictions for Sexual Intercourse Without

Consent and Sexual Assault from the Sixteenth Judicial District Court, offering

comprehensive arguments related to the following assertions: (1) an improper unanimity

instruction subjected him to double jeopardy; (2) his trial counsel rendered ineffective

assistance; (3) the prosecutor committed plain error by vouching for witnesses; (4) the

District Court imposed improper sentencing conditions; and (5) reversal is required by

cumulative error.

¶3    Kapps and Miranda Thomas (Miranda) lived together in Plevna, Montana, with their

newborn son. Miranda worked as a housekeeper at the Sagebrush Inn in Baker, Montana,

which her sister, Stephanie Craig (Stephanie), managed. The Craigs—Stephanie, her

husband, and their children, C.C. (ten years old), M.C. (seven years old), and Z.C.—lived

in a home attached to the Sagebrush Inn. Miranda did not have a driver’s license, so Kapps

regularly drove her to work. On weekends when Kapps did not go to work, he would

frequently stay at the Craigs’ home with his son while Miranda worked.




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¶4     On August 3, 2014, Kapps spent the day at the Craig home while Miranda and

Stephanie worked. In the house with Kapps were his son, as well as M.C. and C.C. The

next day, M.C. told her brother, C.C., that Kapps had molested her. C.C. relayed this report

to Miranda, who asked M.C. if it could have been an accident. In response, M.C. “shook

her head no.” Miranda then reported M.C.’s disclosure to Stephanie, and Stephanie and

her husband reported it to law enforcement.

¶5     Law enforcement interviewed M.C. and Stephanie, and collected evidence from the

Craig home, including a blanket. M.C. was examined at the Billings Clinic emergency

room and later participated in a forensic interview with Child Protective Services. M.C.

reported that Kapps had penetrated her both vaginally and anally, had shown her his penis

and made her touch it until he ejaculated, and that the incidents had occurred about twenty

times. Kapps was charged with one count of Sexual Assault and one count of Sexual

Intercourse Without Consent, both allegedly occurring between December 26, 2013 and

August 4, 2014.

¶6     At trial, the State called M.C., C.C., Miranda, Stephanie, law enforcement officers

and crime lab employees as witnesses. M.C. testified that “[Kapps] stuck his hand down

my pants and he showed me his D.I.C.K.,” specifically, that he had touched her “private

area” both “outside and inside.” M.C. stated that Kapps had “tried to make [her] touch his

private area” and that “white stuff” had come out onto a blanket. She testified that these

incidents had occurred “[m]ore than once” and “a few times at his house and a lot at my

house” and that they had begun “when I was 7.” C.C. testified that he saw “[Kapps] st[i]ck

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his hands down [M.C.]’s pants” on August 3, 2014 when peering through a pile of boxes,

and that M.C. had disclosed the event to him the next day. An employee of the State Crime

Lab testified that the “major component” of the sperm sample taken from the collected

blanket matched Kapps’ DNA profile. The jury found Kapps guilty on both felony charges.

¶7    Kapps argues that the District Court’s unanimity instruction did not provide

sufficient specificity, and should have informed the jury that Kapps could not be convicted

of both Sexual Assault and Sexual Intercourse Without Consent for the same incident.

Kapps argues that, based on the instruction given, he was subjected to double jeopardy.

Kapps’ defense counsel did not object to the instructions, stating he had reviewed them

with Kapps and had “no issues.” Thus, Kapps requests that we exercise plain error review

and reverse his conviction.

¶8    Plain error review is exercised “sparingly,” on a “case-by-case basis,” and requires

the defendant:

      (1) show that the claimed error implicates a fundamental right and (2) firmly
      convince this Court that failure to review the claimed error would result in a
      manifest miscarriage of justice, leave unsettled the question of the
      fundamental fairness of the trial or proceedings, or compromise the integrity
      of the judicial process.

State v. Crider, 2014 MT 139, ¶ 30, 375 Mont. 187, 328 P.3d 612 (internal quotations

omitted).

¶9    Jury Instruction No. 7 incorporated the unanimity language we suggested in State v.

Weaver, 1998 MT 167, ¶ 39, 290 Mont. 58, 964 P.2d 713, stating “it is necessary for the

prosecution to prove beyond a reasonable doubt the commission of a specific act or acts

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. . . . [Y]ou must unanimously agree upon the commission of the same specific act or acts.”

Jury Instruction No. 9 added that “[e]ach count charges a distinct offense. You must decide

each count separately.” Finally, the State articulated this standard in its closing argument:

       The last instruction I want to talk about briefly is that um, the Defendant is
       alleged to have done this more than once, ladies and gentlemen, so you have
       to agree on the—on the act before you can find him guilty [of] this right?
       You have to say it happened on—at least once maybe before August 3rd or
       more than once before August 3rd but you have to all be talking about kinda
       the same act so if you all agree it happened on that Sunday before that would
       be one act, you could find him guilty of either sexual assault or sexual
       intercourse without consent on that day and then you can go and say there
       was probably another act if it was beyond a reasonable doubt another act,
       you find him guilty of sexual assault of that act, okay? That’s how it works.

Accordingly, we conclude that failure to exercise plain error review of this issue will not

implicate Kapps’ fundamental rights, or undermine the fundamental fairness of the

proceeding.

¶10    Kapps’ argument regarding the jury instructions is, in large part, a challenge to the

sufficiency of the evidence necessary to convict him of the two separate felony charges. A

defendant need not raise an objection to the sufficiency of the evidence in the trial court to

preserve the issue for appellate review. State v. Skinner, 2007 MT 175, ¶ 21, 338 Mont.

197, 163 P.3d 399. We review such questions “to determine whether, after reviewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond reasonable doubt.” City of Helena v.

Strobel, 2017 MT 55, ¶ 8, 387 Mont. 17, 390 P.3d 921. M.C. testified that Kapps had

touched her both inside and outside of her private area and made her touch him for his

sexual gratification. She also testified that such incidents had “happened a few times at his
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house and a lot at my house.” Viewed in the light most favorable to the prosecution, M.C.’s

testimony provided sufficient evidence to convict Kapps of both Sexual Intercourse

Without Consent and Sexual Assault. “The jury is the sole judge of the credibility of a

witness,” State v. Maxwell, 198 Mont. 498, 503, 647 P.2d 348, 351 (1982), and evidence

presented by one witness whom the jury believes is sufficient for the proof of any fact in a

case. State v. Merrick, 2000 MT 124, ¶ 13, 299 Mont. 472, 2 P.3d 242. We conclude there

was sufficient evidence for the jury to return convictions on both felonies.

¶11    Kapps also asserts that plain error was committed by the prosecutor during closing

argument by improperly “vouching” for witnesses when stating Kapps was not telling the

truth, while M.C. was, and by rhetorically asking the jury if Kapps’ explanation was

reasonable. Kapps’ attorney did not object to the statements. A review of the record

reveals that the comments were brief, and we conclude that the exercise of plain error

review is not necessary to protect the fundamental fairness of the proceedings or Kapps’

fundamental rights. Crider, ¶ 30.

¶12    Kapps alleges ineffective assistance of counsel (IAC) on numerous grounds,

including failure of his attorney to adequately prepare for trial, failure to object, general

trial error, and errors in sentencing. An IAC claim must be capable of resolution by review

of the record, and we must be able to determine “why” counsel did or did not act a certain

way. State v. Howard, 2011 MT 246, ¶ 21, 362 Mont. 196, 265 P.3d 606. Any claims of

IAC that require information beyond the record for resolution cannot be addressed on

appeal, but may be pursued in a postconviction relief proceeding. From the record, we

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conclude it is unclear why Kapps’ counsel took or failed to take the actions Kapps alleges

as error. Accordingly, such claims cannot be addressed here, but may be raised in a

postconviction proceeding.

¶13    Finally, Kapps alleges that five conditions of his sentencing are improper. First,

Kapps argues that Conditions 30 and 31, which bar Kapps—absent permission from his

parole officer and therapist—from possessing any material that “describes or depicts

human nudity, the exploitation of children, consensual sexual acts, non-consensual sexual

acts, [and] sexual acts involving force or violence” and bars viewing television shows or

motion pictures “geared toward his/her sexual offending cycle, or as a stimulus to arouse

deviant thoughts or fantasies (i.e., shows based on sexualization of underage girls or boys,

etc.),” are unconstitutional limits on his First Amendment rights. Second, Kapps argues

that Conditions 32, 33, and 40, which bar internet access and owning devices with access

to online services without permission of his parole officer and therapist, and prohibit

owning a phone with video, picture, or internet access, are unrealistic and unduly

burdensome in today’s technological world.

¶14    Montana law gives judges latitude to impose conditions on an offender’s sentences

that are “reasonably related to the objectives of rehabilitation and the protection of the

victim and society.” Section 46-18-202(1)(g), MCA; see also State v. Burch, 2008 MT

118, ¶ 23, 342 Mont. 499, 182 P.3d 66 (holding authority to impose a sentence must be

“authorized by a specific grant of statutory authority”). Such a condition may impact a

“civil or constitutional right” as a “necessary condition of the sentence directed toward the

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objectives of rehabilitation and the protection of society.” Section 46-18-801(1), MCA.

Restrictions that impact a fundamental right must be subject to strict scrutiny, requiring the

State “show that the restriction furthers a compelling governmental interest and is narrowly

tailored to achieve that interest.” State v. Guill, 2011 MT 32, ¶ 67, 359 Mont. 225, 248

P.3d 826. “Rehabilitation and the protection of the victim and society are compelling

governmental interests.” Guill, ¶ 68. The District Court’s reasoning that the conditions

“have a nexus to the offense and are necessary for the protection of the public and

rehabilitation of the Defendant” is a proper basis for imposition of Conditions 30 and 31.

¶15    Kapps does not raise a constitutional challenge to Conditions 32, 33, and 40, but

rather argues that they are “overly broad and impractical given technology’s necessity in

modern life.” The internet restrictions correspond to the subject matter restrictions of

Conditions 30 and 31. Condition 40 does not prohibit Kapps from owning a cellular phone

outright, but one that has internet access or the ability to make and/or store pictures and

videos. Further, we note that Conditions 32 and 33 both have exceptions allowing Kapps’

parole officer and therapist to authorize Kapps to have devices that access the internet, in

their discretion. This ensures that Conditions 32 and 33 are not overly broad. Facially,

these conditions are reasonable and appropriate limitations, given the crimes for which

Kapps was convicted.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. In the




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opinion of the Court, this case presents questions controlled by settled law or by the clear

application of applicable standards of review. There is no cumulative error.

¶17    Affirmed.


                                                 /S/ JIM RICE



We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR




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