                                                                                             July 1 2009


                                           DA 08-0448

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 225



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RICHARD DWAYNE ROWE, JR.,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. ADC 2008-18
                        Honorable Dorothy McCarter, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Jim Wheelis, Chief Appellate Defender; Roberta R. Zenker, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant
                        Attorney General, Helena, Montana

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



                                                    Submitted on Briefs: May 28, 2009

                                                                Decided: June 30, 2009

Filed:

                        __________________________________________
                                          Clerk
Justice Brian Morris delivered the Opinion of the Court.

¶1     Richard Dwayne Rowe, Jr. (Rowe), appeals from an order of the First Judicial District

Court, Lewis and Clark County, that imposed sentencing conditions limiting and supervising

Rowe’s contact with children under 15 years of age and requiring Rowe to register as a

violent offender. We affirm in part and reverse in part.

¶2     Rowe presents the following issues for review:

¶3     Whether the District Court properly imposed a sentencing condition that required

Rowe to have no contact with any person under the age of 15, unless accompanied by an

approved adult.

¶4     Whether the District Court properly required Rowe to register as a violent offender.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶5     Cassandra Levengood (Cassandra) left her 2 year old son, A.S., in the care of her

sister-in-law, Latasha Levengood (Latasha), on the afternoon of December 28, 2007.

Cassandra worked evenings. Latasha provided primary child care to A.S. Latasha had cared

for A.S. since he was three months old.

¶6     Cassandra knew of Latasha’s friendship with Tara Weller (Weller). She also knew of

Weller’s methamphetamine use. Cassandra told Latasha that Weller could not be at

Latasha’s house when Latasha cared for A.S. Latasha had agreed.

¶7     Weller arrived at Latasha’s trailer at approximately 5:30 p.m. on the evening of

December 28, 2007. Weller asked Latasha if she wanted to go to dinner at Applebee’s

restaurant. Latasha decided that she would go with Weller. Weller and Latasha took A.S.
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and Latasha’s two daughters to Weller’s trailer. They informed Weller’s boyfriend, Rowe,

that they needed a “girl’s night out” and that he needed to watch the children. Unbeknownst

to Cassandra, Latasha had allowed Rowe to care for A.S. approximately five times before

this particular evening.

¶8     Rowe quickly became frustrated with A.S. A.S. was getting into everything. Rowe

apparently attempted to call Weller and Latasha, but they would not answer their cell phones.

Rowe lost his temper with A.S. Rowe threw A.S. against the wall and fractured the back of

A.S.’s skull. Rowe picked up A.S. and shook him. Rowe also grabbed A.S. by the clothing

and yanked him to his feet.

¶9     Rowe took the children to Latasha’s trailer in the hope that Latasha’s roommates

would be there to watch them. Rowe pushed A.S. out the door as they walked out of

Weller’s trailer. A.S. struck his forehead on the top step and rolled down the rest of the

steps. Rowe picked up A.S. and shook him. Rowe left the children with Latasha’s

roommates. Rowe noticed A.S. “spacing out” in a chair and throwing up as he left to return

to Weller’s trailer.

¶10    Weller received a call from Rowe while she and Latasha waited for their food. Rowe

informed Weller that A.S. had fallen down the stairs and that Rowe needed them to come

home. Weller and Latasha left Applebee’s a few minutes before 7:00 p.m. They returned to

Latasha’s trailer and treated the contusion on A.S.’s forehead with an ice pack.

¶11    Latasha falsely informed Cassandra that A.S. had attempted to climb over a baby gate

and started to fall. Latasha explained that she had slipped and fallen on A.S. when she
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reached to catch him. Latasha claimed that A.S. had hit his head on the floor and had a

“goose egg” on his forehead.

¶12     Cassandra called her boyfriend, James Meixner (Meixner), who picked up A.S. at

Latasha’s trailer at approximately 9:30 p.m. Meixner observed the bump on A.S.’s head.

Meixner did not suspect a concussion or serious injury due to Latasha’s explanation of how

A.S. had been injured. Meixner took A.S. home and placed him in bed. Cassandra returned

home and also observed the bump on A.S.’s head. A.S. did not sleep well that night. A.S.

awoke every half-hour complaining that his head hurt.

¶13     Cassandra and Meixner noted the following morning that A.S. had severe bruising to

his face and torso. Cassandra contacted her pediatrician, Karen E. Cody, M.D. (Dr. Cody).

Dr. Cody examined A.S. Dr. Cody directed Cassandra to take A.S. to St. Peter’s emergency

room.       Dr. Cody observed that the numerous injuries that A.S. had sustained were

inconsistent with the explanation for how he had been injured.

¶14     The hospital staff discovered A.S.’s fractured skull. They discussed the possibility of

air lifting him to Great Falls. The staff did not know whether A.S.’s brain was bleeding or

swelling. The hospital staff reported A.S.’s injuries to law enforcement. Officer’s learned in

their investigation that A.S. had been in Latasha’s care at the time that he had received his

injuries.

¶15     Officers contacted Latasha and discovered that she had lied to Cassandra about how

A.S. had sustained his injuries. Officers contacted Rowe. Rowe admitted to the officers that

he had lied to Latasha about how A.S. had sustained his injuries. Rowe admitted to not
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providing medical care to A.S. after seeing the injuries and knowing he had caused A.S.

pain.

¶16     The State charged Rowe on January 11, 2008, with aggravated assault, a felony, in

violation of § 45-5-202(1), MCA, and criminal endangerment, a felony, in violation of § 45-

5-207, MCA. The State asserted that Rowe had satisfied the knowingly element of § 45-5-

207, MCA, by being dishonest with the child’s caretaker about the nature and the extent of

the injuries to A.S. and for causing a delay in A.S. receiving medical attention.

¶17     Rowe eventually entered an agreement with the State whereby he entered “guilty”

pleas to criminal endangerment, a felony, and negligent endangerment, a misdemeanor. The

court accepted Rowe’s pleas. The court ordered a pre-sentence investigation report (PSI)

and scheduled sentencing. The State requested that Rowe’s bond contain the condition that

“he not be around children under age 15 without adult supervision.” The State further

requested that Weller, now Rowe’s wife, could not provide the requisite adult supervision.

¶18     The court held Rowe’s sentencing hearing on June 13, 2008. The court received the

PSI, the mental health/psychosexual evaluation, and various letters submitted by the parties.

The court also heard witness testimony. Dr. Cody submitted a letter to the court explaining

that A.S.’s head injury had resulted in long term impairment. Dr. Cody asserted that A.S.’s

future physical activities would have to exclude football, soccer, and any activity that could

involve the possibility of additional head trauma. The court also heard testimony about how

A.S. had suffered serious emotional and behavioral problems from this incident.



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¶19    Melissa Lesmeister (Lesmeister) testified about the PSI that she and another probation

officer had submitted to the court. She knew of Rowe’s history from her previous work in

mental health. Lesmeister testified that Rowe had a difficult childhood that included mental

and physical abuse. She further testified that Rowe has had an ongoing anger problem.

Lesmeister noted that anger had been mentioned in most of Rowe’s diagnoses. Lesmeister

also reviewed information from the Center for Mental Health in Helena regarding Rowe’s

therapy since his release from jail. Lesmeister testified that it appeared that Rowe was not

willing to take responsibility for his actions.

¶20    Lesmeister knew of Rowe’s recent marriage to Weller and his new baby at home.

Lesmeister expressed concern about the infant’s safety around Rowe. She opined that the

frustration level that a new infant can bring into a home could manifest itself in another

violent outburst by Rowe. Lesmeister determined that a “building of frustration” triggered

Rowe’s assault on A.S. Lesmeister recommended placement in a pre-release center that

would allow Rowe parenting, anger management, supported living, the ability to gain part

time employment, and the ability to start making consistent restitution payments. Lesmeister

further recommended that a pre-release center would allow Rowe to be removed from a

home where there would be an infant until he could gain more appropriate skills.

¶21    Cathleen Zanto (Zanto), Rowe’s previous case manager, testified that pre-release

would remove Rowe from his support system. She believed that the incident occurred due to

Rowe voluntarily having stopped his medications approximately 2-3 weeks before the

incident. Rowe convinced Zanto that he underestimated his need to continue with his
                                                  6
medications. She also testified to Rowe’s commitment to improving his mental health and

addressing his anger issues. Zanto had no concerns about Rowe being around his child. She

believed that his support system, including herself and Weller’s parents, would prevent

Rowe from hurting his child. Zanto could not guarantee, however, that Rowe would not hurt

his child.

¶22    Dean Gregg, Ph.D. (Dr. Gregg), performed a psychological evaluation on Rowe. He

testified that Rowe had an average risk to re-offend. He further testified that Rowe’s

prognosis is “fair to good if he sticks with his treatment, classes that type of thing.” He also

testified, however, that Rowe did not understand the seriousness of his crimes. He initially

informed the court that he would defer to the Department of Child and Family Services

regarding whether Rowe should be able to parent his child. He later cautioned the court

about allowing Rowe around small children.

¶23    The court committed Rowe for felony criminal endangerment to the Department of

Corrections (DOC) for ten years, with five years suspended. The court sentenced Rowe for

misdemeanor negligent endangerment to the Lewis and Clark County jail for one year, with

all time suspended, and to run concurrently with the sentence imposed for the criminal

endangerment conviction. The court authorized the DOC to place Rowe into an appropriate

community-based program, facility, or State correctional institution.               The court

recommended that he complete a pre-release center program.

¶24    The court imposed a number of conditions. The two conditions pertinent to this

appeal are: 1) “the defendant shall have no contact with any individual under the age of
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fifteen (15) unless accompanied by an approved adult who is aware of the defendant’s

conviction and who is approved by his supervising officer and therapist,” and 2) “the

defendant shall register as a violent offender, pursuant to Section 46-23-504, and shall advise

law enforcement of his current address.” Rowe appeals.

                                STANDARD OF REVIEW

¶25    We review de novo the legality of a sentencing condition. State v. Corbin, 2008 MT

146, ¶ 4, 343 Mont. 211, 184 P.3d 287. We review the reasonableness of the challenged

condition to determine whether the sentencing court abused its discretion. Corbin, ¶ 4.

                                       DISCUSSION

¶26    Whether the District Court properly imposed a sentencing condition that required

Rowe to have no contact with any person under the age of 15, unless accompanied by an

approved adult.

¶27    Weller had been pregnant with Rowe’s child at the time that he attacked A.S. Rowe

and Weller married on March 6, 2008. Weller gave birth to their child the week of the

sentencing hearing. Much of the sentencing hearing pertained to Rowe’s contact with his

newborn baby.

¶28    Rowe argues that this sentencing condition effectively deprives him of his

fundamental right to parent his own child. Rowe cites to Matter of A.S.A., 258 Mont. 194,

197, 852 P.2d 127, 129 (1993), to argue that a natural parent’s right to the care and custody

of his or her child is a “fundamental liberty interest.” Rowe argues that the record fails to

support a compelling state interest that outweighs his fundamental right to parent his own
                                              8
child. Rowe contends that he completed parenting classes before the time of sentencing and

that he had been enrolled in anger management classes, coping skills classes, and a CP&R

class. Rowe points out that his child was not the victim in this case. Rowe argues that the

circumstances surrounding his own child differ vastly from those of the victim, thus

diminishing any reasonable necessity to infringe upon his constitutional right to parent his

child. Rowe points to Zanto’s testimony that she had counseled him for four years and that

she had no concerns about him being near his own child.

¶29    The child abuse and neglect statutes reflect the “tension between the need to ‘protect,

whenever possible, family unity’ and yet still ‘provide for the protection of children whose

health and welfare are or may be adversely affected and further threatened by the conduct of

those responsible for their care and protection.’” In re A.M., 2001 MT 60, ¶ 37, 304 Mont.

379, 22 P.3d 185. Section 41-3-102(2), MCA, provides that a parent is “a person

responsible for a child’s welfare.” A “substantial risk of physical or psychological harm to a

child by the acts or omissions of a person responsible for the child’s welfare” constitutes

child abuse and neglect. Section 41-3-102(7)(a)(ii) and (b)(i)(A), MCA; see In re J.A.B.,

1999 MT 173, ¶ 10, 295 Mont. 227, 983 P.2d 387. Threatened harm to a child’s health or

welfare means substantial risk of harm to the child’s health or welfare. J.A.B., ¶ 10.

¶30    Rowe participated in anger management for several years before the commission of

these crimes. Rowe voluntarily stopped taking his medications 2-3 weeks before this

incident.   Zanto opines that the incident occurred because Rowe had been off his

medications. Rowe has committed other incidents of violence, however, in addition to his
                                              9
attack on A.S. It is undisputed that Rowe has an anger problem. Rowe poses a substantial

risk of harm to his child. J.A.B., ¶ 10. The District Court did not abuse its discretion when it

imposed this sentencing condition. Corbin, ¶ 4.

¶31    Whether the District Court properly required Rowe to register as a violent offender.

¶32    Rowe pled guilty to felony criminal endangerment and misdemeanor negligent

endangerment. The court imposed the sentencing condition that Rowe register as a violent

offender pursuant to § 46-23-504, MCA. The State concedes, however, that this sentencing

condition exceeded the court’s statutory authority.

¶33    Section 46-23-502(10), MCA, provides that a violent offender is a person who has

been convicted of a violent offense. A violent offender status is determined purely by

statute. State v. Miller, 1998 MT 177, ¶ 41, 290 Mont. 97, 966 P.2d 721. Section 46-23-

502(13)(a), MCA, lists the “violent offenses” that require registration. Rowe’s offenses are

not included. The District Court lacked any statutory authority to require Rowe to register as

a violent offender.

¶34    We affirm in part, reverse in part, and remand for entry of an amended sentence

consistent with this Opinion.


                                                   /S/ BRIAN MORRIS

We Concur:


/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ JOHN WARNER
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/S/ PATRICIA COTTER




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