                                                                                           August 10 2012


                                           DA 11-0444

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2012 MT 172



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

RALPH LEON FOX,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC-07-012(B)
                        Honorable Katherine R. Curtis, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Colin M. Stephens, Jordan Kilby, Smith & Stephens, P.C.,
                        Missoula, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Matthew T. Cochenour,
                        Assistant Attorney General, Helena, Montana

                        Ed Corrigan, Flathead County Attorney, Travis Ahner, Lori Adams,
                        Deputy County Attorneys, Kalispell, Montana



                                                    Submitted on Briefs: June 12, 2012

                                                                Decided: August 10, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     In January 2007, Ralph Fox was charged in the Montana Eleventh Judicial District

Court with two counts of felony sexual assault against minor females, CS (Count I) and

HS (Count II). In July 2007, a federal grand jury handed down an indictment in the

United States District Court charging Fox with three felony offenses: sexual exploitation

of children, receipt of child pornography and possession of child pornography. Fox was

convicted of all charges, and in October 2008, he was sentenced to federal prison for 110

years. Subsequently, Fox moved to dismiss the State action against him on the ground of

double jeopardy.

¶2     The District Court dismissed one count of sexual assault against Fox, and he was

convicted of the remaining count. Nevertheless, the court sentenced Fox to two fifty-year

sentences—one for each count of sexual assault—and five years for failing to register as

a sex offender. The fifty-year sentences were to run concurrently with each other and

with the federal sentence.    The five-year sentence was to run consecutively to the

fifty-year sentences for assault but concurrently with the federal sentence. Fox appeals,

arguing the District Court erred when it sentenced him to a term of fifty years for the

dismissed assault charge. He also claims the court erred when it denied his motion to

dismiss the remaining assault charge. We affirm in part and remand in part.

                                          ISSUE

¶3     A restatement of the issues on appeal is:

¶4     Did the District Court illegally sentence Fox to fifty years for a dismissed sexual

assault charge?


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¶5     Did the District Court err in denying Fox’s motion to dismiss the remaining sexual

assault count?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶6     Following an approximate eleven-year incarceration in California after being

convicted of committing lewd and lascivious acts upon a seven-year-old female, Fox was

discharged in July 1996 and, shortly thereafter, he and his wife moved to Flathead

County, Montana. Fox did not register as a sexual offender as required by law.

¶7     Fox met the children involved in this case at some time between mid-2004 and

early 2005, and quickly ingratiated himself with the family. CS and HS’s parents, who

met Fox through a trusted friend and childcare provider, believed that Fox had been

physically abused as a child and, as a result, was childlike with the mentality of a

fourteen-year old. They allowed their daughters to spend time with him and his wife at

Fox’s home and on outings away from home. The parents frequently were not present

during these visits.

¶8     The record reflects that during 2005 and 2006, while HS was between six and

eight years old, Fox showed her pornographic images of children on his computer.

Additionally, he took photographs of her in various stages of undress and while nude.

Fox instructed HS not to tell anyone about the pictures. When the girls were questioned

by their mother in early January 2007, HS told her mother about the computer pictures,

the photographs Fox had taken of her, and the physical contact she had with Fox. She

described performing oral sex on Fox and Fox kissing her on her lips and rubbing his

finger “through her privates.”


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¶9     CS, who was 10 when she met Fox, told her mother that on numerous occasions

Fox had squeezed, patted and slapped her buttocks outside of her clothing and that he had

“cupped her naked breasts with his hands.” She also revealed that he had shown her

pornographic pictures of children on his computer and encouraged her to pose the way

the children in the pictures posed. The girls’ mother immediately contacted Flathead

County law enforcement. The Flathead County Sheriff’s Department arrested Fox on

January 5, 2007, and charged him with two counts of felony sexual assault—one count

for assault of CS, and one for assault of HS. In a separate criminal action, Fox was

charged with failure to register as a sex offender. Fox was appointed defense counsel and

at arraignment on January 25, 2007, Fox entered a plea of not guilty to both counts of

sexual assault.

¶10    On July 19, 2007, a federal grand jury in Montana handed down a three-count

indictment charging Fox with sexual exploitation of children, and receipt and possession

of child pornography. Following a March 10, 2008 bench trial, Fox was found guilty of

all counts. On October 3, 2008, Fox was sentenced to fifty years on the exploitation

charge, forty years for receipt of child pornography, and twenty years for possession of

child pornography. These sentences were ordered to run consecutively and totaled 110

years in federal prison.

¶11    On January 29, 2009, Fox moved to dismiss his State criminal charges. He argued

that the federal prosecution involved the same victims and the same conduct; therefore,

§ 46-11-504, MCA, the “double jeopardy statute,” barred State prosecution for the same

offenses. Initially, the District Court denied Fox’s motion to dismiss. Fox promptly filed


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a correction and clarification of his position. He also changed his plea and entered into a

plea agreement whereby he pled guilty to the failure to register charge and to Count II,

the sexual assault charge pertaining to HS. He pled guilty by way of an Alford plea1 to

sexual assault against CS.

¶12    After reviewing Fox’s clarification of position, the District Court concluded the

federal exploitation conviction paralleled the State sexual assault charge involving HS,

raising double jeopardy concerns. The court therefore dismissed Count II. However, the

District Court concluded that the federal exploitation charge did not arise out of any

transaction involving CS. The District Court therefore denied Fox’s request to dismiss

the sexual assault charge pertaining to CS. Fox subsequently moved to withdraw his

guilty pleas.

¶13    Before ruling on Fox’s motion to withdraw his guilty pleas, the District Court

conducted a hearing, issued judgment and pronounced sentence. In its February 1, 2010

Judgment and Sentence, the District Court sentenced Fox to fifty years for Count I, fifty

years for Count II, and five years for failing to register. The fifty-year sentences were to

run concurrently with each other and with the federal sentence. The five-year sentence

was to run consecutively to the fifty-year sentences and concurrently with the federal

sentence. As a result, Fox was sentenced to serve fifty-five years in State prison followed

by the remainder of his federal sentence to be served in a federal facility.



1
  An Alford plea is a guilty plea entered into by a defendant in connection with a plea bargain,
without actually admitting guilt. North Carolina v. Alford, 400 U.S. 25, 35, 91 S. Ct. 160, 166
(1970); Black’s Law Dictionary 71 (Bryan A. Garner ed., 7th ed., West 1999).


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¶14    Fox appeals the District Court’s judgment and sentence.        He argues that the

District Court erred by not dismissing Count I. He maintains that the charges in Count I

were incorporated into his federal charges and therefore jeopardy had attached with the

federal conviction and the State charges should have been dismissed. Fox also asserts

that the District Court pronounced an illegal sentence when it sentenced him to fifty years

for Count II which the court had previously dismissed.

                                STANDARD OF REVIEW

¶15    We review criminal sentences longer than one year for legality only. State v. Holt,

2011 MT 42, ¶ 7, 359 Mont. 308, 249 P.3d 470. The Court reviews the denial of a

motion to dismiss in criminal cases de novo to determine whether the district court’s

conclusions of law are correct. State v. Sidmore, 286 Mont. 218, 223, 951 P.2d 558, 562

(1997).

                                       DISCUSSION

¶16    Did the District Court illegally sentence Fox to fifty years for a dismissed sexual
       assault charge?

¶17    In its October 19, 2009 Order and Rationale on Reconsideration of Motion to

Dismiss, the court, relying upon State v. Neufeld, 2009 MT 235, 351 Mont. 389, 212 P.3d

1063, indisputably dismissed Count II. The District Court therefore erred in imposing a

sentence on this dismissed criminal charge. Accordingly, we remand to the District

Court for correction of the illegal provision. State v. Heafner, 2010 MT 87, ¶ 11, 356

Mont. 128, 231 P.3d 1087 ([W]hen a portion of a sentence is illegal, [this Court will]

remand to the district court to correct the illegal provision.”).



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¶18    Did the District Court err in denying Fox’s motion to dismiss the remaining sexual
       assault count?

¶19    Fox argues that because he was convicted in federal court of sexual exploitation of

children and possession of child pornography, jeopardy attached as a result of his federal

conviction, and the State could not prosecute him under § 46-11-504, MCA, for the same

behavior. Section 46-11-504, MCA, provides, in relevant 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 subsequent prosecution is based on an offense arising out of the
       same transaction. . . .

Thus, under this statute, Fox’s State prosecution is barred if:

   (1) his conduct constitutes an offense within the federal jurisdiction where his first
       prosecution occurred and it constitutes an offense in the State jurisdiction where
       his second prosecution was pursued;

   (2) he was convicted or acquitted in the federal prosecution; and

   (3) his State prosecution is based on an offense arising out of the same transaction.

See State v. Tadewaldt, 277 Mont. 261, 922 P.2d 463 (1996), superseded by statute as

stated in Heddings v. State, 2011 MT 228, 362 Mont. 90, 265 P.3d 600. All three factors

must be met for the statute to operate as a bar to a subsequent prosecution. Clearly the

second factor of the test is met as it is undisputed that Fox was convicted in the federal

prosecution. We therefore focus our analysis on the remaining factors and on the case

upon which both parties rely, Neufeld.

¶20    In Neufeld, Neufeld, age 28, was charged in State court with the offense of sexual

intercourse without consent with a thirteen-year-old female.        Before his State trial


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commenced, Neufeld was indicted and convicted by guilty plea of the federal offense of

sexual exploitation of children. He was sentenced to 262 months in federal prison.

Neufeld, ¶ 1. The sentencing guidelines prescribed a sentence between 121 and 151

months but allowed for an enhanced sentence because the victim was between twelve and

sixteen years old at the time. Neufeld, ¶ 6. Neufeld subsequently moved to have his

State charges dismissed on the ground of double jeopardy. The District Court granted the

motion and the State appealed. Neufeld, ¶ 1. The question before this Court on appeal

was whether § 46-11-504, MCA, barred Neufeld’s prosecution on the State sexual

intercourse without consent charge. Neufeld, ¶ 2.

¶21    Analyzing the case under the three-factor test set forth in Tadewaldt, we stated:

              The first factor of the test is satisfied when both jurisdictions have
       authority to prosecute for the same conduct. In order to demonstrate that
       jurisdiction existed in both courts, the same conduct must subject a
       defendant to the possibility that he could be convicted of an “equivalent
       offense” in each jurisdiction. 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.

Neufeld, ¶ 14. (Internal citations omitted.)

¶22    The Neufeld Court also noted the statutory definition of “same transaction” as used

in the third factor of the Tadewaldt test. “Same 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.



                                          8
¶23    After analyzing the legal definitions of sexual exploitation of children and sexual

intercourse without consent, we determined that the State’s prosecution of Neufeld was

barred because the State sought to punish Neufeld for the “same sexual contact with the

same minor” for which he had been punished in federal court. Neufeld, ¶ 17. We also

noted that the charging documents in both the federal court and the state court referenced

“the same time and the same sexual conduct with the same victim.” Neufeld, ¶ 19.

¶24    On the basis of Neufeld, Fox argues that the federal charge of sexual exploitation

of children is equivalent to the charge of sexual assault, and that the State charges are

therefore barred under § 46-11-504, MCA. Fox seeks to downplay Neufeld’s continued

reference to the “same minor” or “same victim” by arguing that his conduct against CS

and HS was the same; therefore, he posits, conviction and punishment of that conduct in

federal court as it pertained to HS insulated him from conviction and punishment for the

same conduct against CS in State court. He maintains that his sexual conduct with HS

and CS involved taking photographs of both girls, touching them inappropriately and

showing them pornographic and sexually explicit photographs of children. While he

acknowledges that “HS is the victim in the federal case, the charges in the federal case

include the same conduct that Fox engaged in with both sisters.” He therefore asserts that

both the federal and state courts had jurisdiction over the offenses and that his conviction

in federal court arose from the same transaction as his conviction in State court.

¶25    The State counters that while the charge against Fox for sexual exploitation of HS

in federal court may be equivalent to the State’s initial charge against Fox for sexual

assault of HS, it is not equivalent to the sexual assault charge against CS. The State notes


                                          9
that the District Court dismissed the sexual assault charge as it pertained to HS because

Fox had been convicted and punished in federal court for the same conduct. The State

correctly observes, however, that “the only jurisdiction to ever charge Fox with an

offense based on his conduct toward [CS] is the State of Montana.”

¶26   We conclude Fox has not satisfied the third factor of the Tadewaldt test. As noted

above, the same transaction consists of “a common purpose or plan that results in the

repeated commission of the same offense . . . upon the same person.”              Section

46-1-202(23), MCA. The transactions upon which Fox was convicted in federal court

involved HS and HS only. The State charges of which Fox was convicted involved CS

and CS only. Therefore, the two prosecutions did not cover “the same time and the same

sexual conduct with the same victim,” as was the case in Neufeld. Neufeld, ¶ 17.

Because the third factor of the Tadewaldt test has not been met, Fox’s federal prosecution

interposes no bar to the State’s prosecution of Fox for his conduct toward CS.

                                    CONCLUSION

¶27   For the foregoing reasons, we remand this matter to the District Court for

correction of the illegally-imposed sentence pertaining to Count II.      We affirm the

District Court’s denial of Fox’s motion to dismiss Count I.



                                                       /S/ PATRICIA COTTER




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We concur:


/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
/S/ BETH BAKER




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