State v. D. Ohl

                                                                                         12/13/2022


                                         DA 21-0242
                                                                                    Case Number: DA 21-0242

                IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         

STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DYLAN MIKKEL OHL,

              Defendant and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 20-294
                       Honorable Jason Marks, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                       Chad Wright, Appellate Defender, Carolyn M. Gibadlo, Assistant
                       Appellate Defender, Helena, Montana

               For Appellee:

                       Austin Knudsen, Montana Attorney General, Christine Hutchison,
                       Assistant Attorney General, Helena, Montana

                       Kirsten Pabst, Missoula County Attorney, Matt Jennings, Deputy
                       County Attorney, Missoula, Montana



                                                 Submitted on Briefs: October 12, 2022

                                                            Decided: December 13, 2022

Filed:

                       __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Dylan Mikkel Ohl (Ohl) appeals his conviction and judgment of guilty for the

offense of escape.

¶2     We affirm.

¶3     We restate the issues on appeal as follows:

       Issue One: Whether the District Court erred in denying Ohl’s motion to dismiss for
       insufficient evidence.

       Issue Two: Whether the District Court erred in declining to instruct the jury on
       criminal contempt as a lesser-included offense to escape.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     In May 2019, the State petitioned to revoke Ohl’s suspended sentence on a prior

conviction. Ohl admitted the violations and the District Court held a dispositional hearing

on June 17, 2020. Due to the COVID-19 pandemic, the court allowed Ohl to appear

remotely. The District Court imposed a new sentence of two years with the Department of

Corrections (DOC), and ordered him to report to his probation officer in two days. At the

State’s request, the court clarified that “technically, I don’t have any control over you

anymore because you’re now in the custody of the Department of Corrections,” stating that

Ohl was “at this point now, committed to the Department of Corrections.” The probation

officer averred that “[i]f you could just have him show up into the office by 5:30, I can

meet him there.” Ohl objected to the new deadline, and asked for an additional two days,

to which the court responded “if I had the ability to do that, I would. But, unfortunately, I




                                             2
don’t. So I’m gonna ask you to meet [the probation officer].” Ohl did not report to his

probation officer, and was arrested several months later.

¶5     The State charged Ohl with felony escape on June 18, 2020. Prior to trial, Ohl filed

an unopposed motion to include a jury instruction for criminal contempt as a

lesser-included offense. After the close of the State’s evidence at trial, Ohl moved to

dismiss for insufficient evidence, arguing that his actions did not meet the statutory

definition of escape.1 The District Court ultimately denied both of Ohl’s motions. The

jury returned a guilty verdict and the court sentenced Ohl to six years at the Montana State

Prison, all suspended. Ohl appeals.

                                 STANDARD OF REVIEW

¶6     We review denial of a motion to dismiss for insufficient evidence de novo for

correctness. State v. McWilliams, 

, 

, 

; State

v. Swann, 

, 

, 

. We review a trial court’s

refusal to give an instruction on a lesser-included offense for an abuse of discretion. State

v. Denny, 

, 

, 

. However, whether an

offense is lesser included is a question of law, which we review de novo. State v. Molenda,

, 

, 

.




1
  At trial, Ohl referred to his motion as one for a directed verdict. We have held that a motion for
a directed verdict is properly deemed to be a motion to dismiss for insufficient evidence pursuant
to § 46-16-403, MCA. State v. McWilliams, 

, 

, 

.
                                                 3
                                        DISCUSSION

¶7     Issue One: Whether the District Court erred in denying Ohl’s motion to dismiss for
       insufficient evidence.

¶8     Ohl argues that the District Court erroneously denied his motion to dismiss for

insufficient evidence by misinterpreting the relevant charging statute for the crime of

escape. To succeed on a motion to dismiss for insufficient evidence, a defendant must

show that, viewing the evidence in the light most favorable to the prosecution, a rational

trier of fact could not find the essential elements of the crime beyond a reasonable doubt.

State v. Cybulski, 

, 

, 

; § 46-16-403, MCA. Ohl

was charged with escape under § 45-7-306, MCA. Section 45-7-306(2), MCA, provides

in relevant part that a “person subject to official detention commits the offense of escape if

the person knowingly or purposely eludes official detention or fails to return to official

detention following temporary leave granted for a specific purpose or limited time.”

“Official detention” is defined to include “placement of a person in the legal custody of a

municipality, a county, or the state as a result of . . . a conviction for an offense or of having

been charged with an offense.” Section 45-7-306(1)(a), MCA. Neither “legal custody”

nor “elude[]” are defined under Title 45, MCA.

¶9     Ohl maintains that, despite his failure to report to his probation officer, he remained

in the “legal custody” of the State, as his “legal status” as a DOC commit did not change.

Ohl points to a Youth Court Act provision under Title 41, MCA, defining “legal custody,”




                                                4
for purposes of that Act, as a type of “legal status.”2 See § 41-5-103(30)(a), MCA (defining

“legal custody” as a “legal status created by order of a court” giving a person certain

specified rights and duties). Ohl contends that he did not (and, in fact, could not) elude

“placement . . . in the legal custody” of the DOC because he never changed his legal status

from that of a DOC commit following the District Court’s pronouncement of revocation of

his suspended sentence.

¶10    Ohl’s preferred interpretation of the escape statute would essentially make

§ 45-7-306(2), MCA, meaningless and without effect, rendering it virtually impossible to

commit escape by fleeing detention. Under Ohl’s view that escape requires effecting a

change in legal status, prison inmates who scaled the prison walls would not have

committed an escape—their legal status as a ward of the state would remain unchanged.

We will not adopt such an absurd and unreasonable result where reasonable interpretation

will avoid it. See § 1-3-233, MCA.

¶11    Here, a “contrary intention plainly appears” to application of the Youth Court Act

definition of “legal custody” to the escape statute. See § 1-2-107, MCA. We interpret

words and phrases “according to the context” and, operating under the presumption that

the Legislature does not pass meaningless legislation, “avoid any statutory interpretation

that renders any sections of the statute superfluous and does not give effect to all of the

words used.” Belk v. Mont. Dep’t of Envtl. Quality, 

, 

, 504



2
 Ohl points out that “[w]henever the meaning of a word or phrase is defined in any part of th[e]
code, such definition is applicable to the same word or phrase wherever it occurs, except where a
contrary intention plainly appears.” Section 1-2-107, MCA.
           

 (citing State v. Berger, 

, 

 (1993)); State v.

Brendal, 

, 

, 

; § 1-2-101, MCA (preferring a

construction that “if possible . . . will give effect to all” statutory provisions); § 1-2-106,

MCA. Statutory interpretation “must be reasonable,” § 1-3-233, MCA, and “should not

lead to absurd results if a reasonable interpretation would avoid it.” State v. Harrison, 

, 

, 

 (citing State v. Sommers, 

, 

, 

).

¶12    The escape statute’s legislative history is illuminative. See Stockman Bank of Mont.

v. Mon-Kota, Inc., 

, 

, 

 (“When the legislative

intent cannot be readily derived from the plain language, or when it is helpful to determine

the correct interpretation of the statute, we . . . look to legislative history.”). Prior to 1997,

the escape statute provided that a “person subject to official detention commits the offense

of escape if he knowingly or purposely removes himself from official detention or fails to

return to official detention following temporary leave granted for a specific purpose or

limited time.” Section 45-7-306(2), MCA (1995). “Official detention” was defined as:

       imprisonment which resulted from a conviction for an offense, confinement
       for an offense, confinement of a person charged with an offense, detention
       by a peace officer pursuant to arrest, detention for extradition or deportation,
       placement in a community corrections facility or program, supervision while
       under a supervised release program, participation in a county jail work
       program under 7-32-2225 through 7-32-2227, or any lawful detention for the
       purpose of the protection of the welfare of the person detained or for the
       protection of society.

Section 45-7-306(1), MCA (1995).




                                                6
¶13    During the 1997 Legislative session, House Bill 43 (HB 43), amending the escape

statute, was introduced at the request of the DOC. See H.B. 43, 55th Leg. 219 (Mont.

1997). The DOC presented testimony before the House Judiciary Committee arguing that

two recent Supreme Court rulings had necessitated amending the escape statute.

See Hearing on H.B. 43 Before the H. Jud. Comm., 55th Leg. Reg. Sess. Ex. 2 (Mont.

1997). In State v. Nelson, 

, 

 (1996), Montana State Prison

inmates were performing work on the Deer Lodge golf course under minimal, non-direct

supervision by a civilian golf-course employee when they became drunk and took a

golf-course-owned vehicle to Helena to purchase more alcohol, where they were

apprehended. The Supreme Court overturned the resulting felony convictions, holding that

the Deer Lodge golf course was not on the list of places constituting “official detention”

under § 45-7-306, MCA (1993), from which an inmate could commit felony escape.

Nelson, 

, 

. In State v. Roberts, 

, 

 (1996), the Court held that a prisoner’s failure to return from furlough did

not constitute an escape because the furloughed defendant similarly was not in any of the

enumerated locations from which a defendant could commit felony escape. The DOC

advocated for amendment of the definition of “official detention” to replace the laundry

list of locations with the “placement . . . in legal custody” language to avoid prison officials

needing to “study the statute before they dare take an inmate anywhere outside the prison

walls to determine if the place where they are taking the inmate is included in the escape

statute” and relieve the Legislature of the task of trying to “imagine every possible scenario



                                               7
of escape and include every conceivable place in the statute.” Hearing on H.B. 43, 55th

Leg. Reg. Sess. at Ex. 2.

¶14    During a committee hearing on the issue, HB 43’s sponsor stated that the bill revised

the definition of “official detention” so that “[i]f they are in custody for a felony, then it

would be felony escape.” Hearing on H.B. 43 Before the S. Jud. Comm., 55th Leg. Reg.

Sess. 6 (Mont. 1997). Likewise, the Department of Justice supported the amendment,

opining that:

       The 1997 proposed amendments are intended to clarify finally that any
       person who has been charged with or convicted of a felony who is under
       lawful custody of the state, county, or city (other than a probationer or
       parolee) is guilty of felony escape if he escapes from or fails to return to that
       custody following temporary leave granted for a specific purpose. The bill
       eliminates the laundry list of facilities from which an escape constitutes a
       felony and focuses instead on the fact of custody.

Hearing on H.B. 43, 55th Leg. Reg. Sess. at Ex. 3.

¶15    The amendment’s use of the term “legal custody” was clearly intended to merely

remove the necessity that an escape be launched from a particular location, now

criminalizing escapes regardless of whether they are commenced from a prison cell, a golf

course, or Pork Chop John’s. Far from making commission of the crime of escape a legal

impossibility, the legislative history demonstrates that the intent of the amended definition

of “official detention” as placement in “legal custody” was to close loopholes related to the

myriad of circumstances in which those with a legal status in the criminal justice system,

but not presently enclosed by physical walls, might seek to avoid abiding by the remaining

lawfully-imposed restraints on their freedom through physical evasion. The District Court



                                              8
did not err in declining to grant Ohl’s motion to dismiss for insufficient evidence on the

basis of Ohl’s proposed interpretation of § 45-7-306, MCA.

¶16    As part of his argument that the District Court erred when it denied Ohl’s motion to

dismiss for insufficient evidence, Ohl also states that the District Court “erroneously

defined elude” in jury instructions.       After hearing argument regarding statutory

interpretation of “official detention” as used in § 45-7-306, MCA, the District Court, over

Ohl’s objection, included a jury instruction defining “[e]luding” as “a person removing

themselves from physical custody or taking actions to avoid being placed in physical

custody.” On appeal, Ohl states that this instruction “changed the object of elude” from

legal to physical custody, contrary to the elements of the escape statute. Ohl does not

squarely make an independent assertion of error or statement of an issue appealed here

regarding jury instructions. Regardless, in light of Ohl’s argument before the trial court

that the term “legal custody” in § 45-7-306, MCA, could be read to essentially render

commission of the crime of escape a legal impossibility, and our contrary holding as set

forth above, we find that the given instructions as a whole fully and fairly instructed the

jury of the applicable law. See State v. Iverson, 

, 

, 

.

¶17    Issue Two: Whether the District Court erred in declining to instruct the jury on
       criminal contempt as a lesser-included offense to escape.

¶18    Ohl argues that the District Court erred in refusing to instruct the jury on criminal

contempt as a lesser-included offense of escape. Jury instructions must, as a whole, fully

and fairly instruct the jury on the law applicable to the case. State v. Erickson, 

                                           9
304 ¶ 21, 

, 

. A defendant is entitled to a lesser-included offense




                                                                            -
instruction if the offense, as a matter of law, constitutes an included offense of the charged

offense and there is sufficient evidence to support the lesser-included offense instruction.

Denny, ¶ 27; State v. Beavers, 

, 

, 

. This rule

helps avoid “the situation where the jury, convinced that the defendant is guilty of some

crime, although not necessarily the crime charged, convicts the defendant rather than let

his action go unpunished simply because the only alternative was acquittal.” State v.

Castle, 

, 

 (1997).

¶19     In determining whether an offense constitutes an included offense for purposes of

jury instructions, we follow the statutory definition of an “[i]ncluded offense” as an offense

that:

            (a) is established by proof of the same or less than all the facts required
        to establish the commission of the offense charged;

           (b) consists of an attempt to commit the offense charged or to commit an
        offense otherwise included in the offense charged; or

            (c) differs from the offense charged only in the respect that a less serious
        injury or risk to the same person, property, or public interest or a lesser kind
        of culpability suffices to establish its commission.

Section 46-1-202(9), MCA. See Beavers, ¶ 25. Ohl does not assert that criminal contempt

constitutes an attempted escape under subsection (b), therefore we address only subsections

(a) and (c) here.

¶20     Under subsection (a), Ohl must show that the offense of criminal contempt is

established by proof of the same or less than all the facts required to establish the

commission of the charged offense of escape. “[F]acts,” under § 46-1-202(9)(a), MCA,

                                              10
refer to the statutory elements of the charged offense, not the specific facts of the case at

hand. Molenda, ¶ 7; Beavers, ¶ 30. In essence, if it is possible to commit Crime A without

also committing Crime B, then Crime A is not an included offense of Crime B.

See, e.g., Molenda, ¶ 11 (noting that while the defendant in that particular case may have,

as a factual matter, committed an assault in addition to criminal endangerment, assault was

not, as a legal matter, an included offense of criminal endangerment because, by way of

“illustration,” a “person operating a motor vehicle while under the influence of alcohol

with a passenger asleep in the vehicle has committed the offense of criminal endangerment

despite not having committed any of the four definitions of assault”).

¶21    Here, the elements of escape, incorporating the statutory definition of “official

detention,” are that a defendant:

       (1) knowingly or purposely

       (2) eludes

       (3)

             (a) placement in government legal custody

             (b) to which the defendant is subject

             (c) as a result of being charged or convicted of an offense.

See § 45-7-306(2), MCA, (providing that a “person subject to official detention commits

the offense of escape if the person knowingly or purposely eludes official detention”);

§ 45-7-306(1)(a), MCA (defining “[o]fficial detention” as “placement of a person in the

legal custody of a municipality, a county, or the state as a result of . . . a conviction for an

offense or of having been charged with an offense”). In contrast, the elements of the

                                              11
criminal contempt statutory provision under which Ohl sought an instruction are that a

defendant:

       (1) knowingly engages in,

       (2) purposely disobeying or refusing,

       (3) any lawful process or other court mandate.

See § 45-7-309(1), MCA (“A person commits the offense of criminal contempt when the

person knowingly engages in any of the following conduct: . . . (c) purposely disobeying

or refusing any lawful process or other mandate of a court[.]”).

¶22    While the mental state requirements of the two statutes are indistinguishable, the

range of proscribed acts and accompanying concomitant status capable of constituting an

escape are far narrower than for a criminal contempt. It is possible to engage in any number

of acts disobeying or refusing a court mandate or lawful process under § 45-7-309, MCA,

that do not involve eluding placement in government legal custody to which one is subject

as a result of being charged or convicted of an offense (thereby constituting an escape).

For example, an attorney’s failure to appear at a court hearing could be a

knowing/purposeful refusal or disobedience of a court mandate constituting a criminal

contempt, but would not be a knowing/purposeful elusion of official detention, constituting

an escape. See, e.g., Cross Guns v. Eighth Judicial Dist. Court, 

, 

, 

 (upholding criminal contempt sanction where attorney’s failure

to appear at a hearing constituted disobedience of a lawful order of the court). A conviction

for criminal contempt cannot be established by proof of the same or fewer facts than those



                                             12
required for a conviction of escape, and criminal contempt is not an included offense of

escape under § 46-1-202(9)(a), MCA.

¶23    Turning to subpart (c) of the statutory definition of an included offense, we ask

whether criminal contempt differs from the offense of escape “only in the respect that a

less serious injury or risk to the same person, property, or public interest or a lesser kind of

culpability suffices to establish its commission.” Section 46-1-202(9)(c), MCA.

       Properly interpreted, subsection (c) provides that if the only difference
       between the two offenses is one of degree (be it risk, injury, culpability, or
       any combination thereof) then it can be a lesser included offense. If there are
       other differences between the two offenses (other than differences of degree)
       then it cannot qualify as a lesser included offense.

Molenda, ¶ 16.

¶24    For example, while the mental state of willful and wanton disregard may constitute

a lesser degree of culpability than the mental state of knowingly, additional “qualitative”

differences between criminal endangerment and reckless driving exist, as demonstrated by

the additional statutory requirement of driving a vehicle. See Molenda, ¶ 18 (citing

Beavers, ¶¶ 17, 29).

¶25    Here, Ohl argues that a court mandate is “less than” placement in legal custody and

that to elude is more egregious than to disobey. Assuming for the sake of argument that

disobeying or refusing a court mandate is less risky, injurious, or culpable3 than eluding

official detention, that is not the only difference between the two offenses. Additional

qualitative differences exist, as demonstrated by the additional requirement for escape that


3
  As noted above, the required mental state for criminal contempt and escape are essentially
indistinguishable.
                                              13
one “elude” “official detention,” as described above. Thus, criminal contempt is not an

included offense of escape under § 46-1-202(9)(c), MCA.

¶26    Ohl points to State v. Williams, 

, 

, 

, where we held that the State could not charge the same actions as both sexual assault

and sexual intercourse without consent, because, relying on the § 46-1-202(9), MCA,

definitions of “included offense,” we determined that “one offense [was] included in the

other” under Montana’s double jeopardy statute, § 46-11-410(2)(a), MCA. Analyzing the

§ 46-1-202(9)(a), MCA, definition of “included offense,” we determined that the facts of

one offense constituted a subset completely encompassed by the facts of the other.

See Williams, ¶¶ 25-27. Compare § 45-5-502, MCA (defining sexual assault as subjecting

another person to “sexual contact without consent”) and § 45-2-101(67), MCA (defining

“sexual contact”) with § 45-5-503(1), MCA (defining sexual intercourse without consent)

and § 45-2-101(68), MCA (defining “sexual intercourse”). We noted that the level of

egregiousness of the required conduct of sexual assault could be construed as “less

egregious” than the required conduct of sexual intercourse without consent. Williams, ¶ 26.

Here, as noted, the elements of criminal contempt are not equivalent to or a subset of the

elements of escape. While an individual cannot commit the crime of sexual intercourse

without consent without also taking actions constituting a sexual assault, one can commit

criminal contempt in a myriad of ways without also undertaking an escape. Moreover, as

discussed above, unlike sexual assault’s relationship to sexual intercourse without consent,

criminal contempt does not differ from escape only in the respect that it “involves less

egregious conduct.” See Williams, ¶ 26; § 46-1-202(9)(c), MCA.

                                            14
¶27    Because criminal contempt is not an included offense of escape under

§ 46-1-202(9), MCA, Ohl was not entitled to a lesser-included offense jury instruction and

we need not reach the question of whether there was evidence in the record that could

support a conviction under criminal contempt. The District Court did not err in declining

to provide the requested jury instruction.

                                      CONCLUSION

¶28    Ohl has failed to demonstrate on appeal that the District Court erred in denying his

motion to dismiss for insufficient evidence on the basis of his interpretation of the essential

elements of the crime of escape under § 45-7-306, MCA. Neither did the District Court

err in declining to provide the requested jury instruction for criminal contempt as a

lesser-included offense.

¶29    Affirmed.


                                                   /S/ MIKE McGRATH


We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR




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