State v. B. Hamernick

                                                                                              12/27/2023


                                          DA 21-0372
                                                                                          Case Number: DA 21-0372

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          

STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

BRYCE CALEB HAMERNICK,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC-2019-353
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Alexander H. Pyle, Assistant Appellate
                       Defender, Helena, Montana

                For Appellee:

                       Austin Knudsen, Montana Attorney General, Katie F. Schulz, Assistant
                       Attorney General, Helena, Montana

                       Kirsten H. Pabst, Missoula County Attorney, Ryan Mickelson, Deputy
                       County Attorney, Missoula, Montana



                                                   Submitted on Briefs: August 23, 2023

                                                              Decided: December 27, 2023


Filed:

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

¶1     Bryce Caleb Hamernick appeals his conviction of Sexual Intercourse Without

Consent (SIWOC) after a jury trial in the Fourth Judicial District Court. The jury was

instructed that, to reach a guilty verdict, it needed to find Hamernick was aware of the high

probability the victim did not consent to sexual intercourse.           Hamernick argues the

instruction improperly lowered the State’s burden of proof by relieving it from proving that

he knew his sexual conduct was without consent. We thus consider the following issue:

       Did the District Court err by instructing the jury that, to reach a guilty verdict, it
       needed to find Hamernick was merely aware of the high probability the victim did
       not consent to sexual intercourse?

¶2     We reverse and remand for further proceedings.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     S.1 was seventeen years old when she began working as a cashier at a Missoula

restaurant. Hamernick also worked at the restaurant and eventually took a management

position in which, when their shifts overlapped, he supervised S. At trial, S. testified that

she initially found Hamernick to be “friendly.” Her opinion changed, however, when

Hamernick began texting her about his sexual fantasies centered around her. S. texted

Hamernick that she found his behavior, as her boss, to be inappropriate, and did not want

him “hitting on [her].” Hamernick’s behavior could be cyclical: he would engage in the




1
  S. was eighteen years old at the time of the offense. While M. R. App. P. 10(6) does not require
anonymity, both Hamernick’s and the State’s briefs omit S.’s full name and initials because her
identity has not been publicized. Hamernick uses “S” and the State uses “Jane Doe,” and we utilize
“S.” herein.

                                                2
deleterious behavior, apologize to S. for not being able to “control [him]self,” profess he

would stop, but return to his ways soon thereafter. Hamernick maintained that, although

S. rebuffed his inappropriate text messages, she reacted positively to his advances in

person.

¶4     At trial, Hamernick testified he started “feeling more than just friendship” toward

S. in the winter of 2017. Further, despite S.’s repeated rejections, Hamernick explained he

continued to pursue S. because he “absolutely” desired a relationship with her. Some of

the restaurant employees expressed ambivalence towards the “light flirting” they described

between Hamernick and S., while others expressed discomfort regarding what they viewed

as Hamernick’s inappropriate interactions with S. while at work.

¶5     In the summer after her high school graduation, after she had turned eighteen years

of age, S. broke up with her boyfriend of almost two years. Hamernick testified that,

following the breakup, he and S. engaged in several consensual “physical interactions,”

including “necking.”     Hamernick relayed that S. would initially consent to these

interactions, but always “flip[ped] a switch” and would tell him “stop” or “no” or even

push him away, ending the interaction.         Despite her protestations that ended each

interaction, Hamernick maintained that “[w]ithout a doubt, [S.] was into it” up to that point.

Hamernick’s behavioral cycle continued after these physical interactions. After being

rebuffed during one such contact, Hamernick apologized to S. via text, stating he had

“misread [her] reactions.” In a June 17, 2018 text, Hamernick proclaimed he would “stop

forcing [him]self onto [her]” because she had “made [it] very clear” she did not want a

romantic relationship with him, but he nonetheless returned to his pursuit of S. While
                                              3
Hamernick testified S. would say “stop” or some variation of “I don’t want to do this”

every time he touched her, he continued to assert that each interaction began with S.’s

consent. Under cross-examination, Hamernick insisted that “every time she told [him] no,

[he] stopped right away.”

¶6    On July 7, 2018, both Hamernick and S. worked the closing shift at the restaurant.

After closing, around 10:30 p.m., S. accompanied Hamernick to the restaurant’s storage

building across the street, where Hamernick would enter supply orders. S. sat in a chair

while Hamernick entered the order. Hamernick and S. provided differing accounts of what

happened thereafter.

¶7    In S.’s retelling, after entering the order, Hamernick approached S., knelt in front of

her, and then began touching her thigh, breasts, and neck. S. turned her head away to avoid

Hamernick’s attempts to kiss her. When S. tried to move away, Hamernick forced her hips

down into the chair. S. kept telling Hamernick “no” and that she “had to go home.”

Hamernick asked S. if she was sure, telling her he thought she “wanted it anyways.”

Hamernick kept telling S. that she was not serious and that she was “joking” when she said

“no.” Hamernick forced S. to touch his penis with her hand. He removed her clothing,

turned her to face away from him, and pushed her down on a table. When S. felt

Hamernick’s penis between her legs, she tried to push him away using her hand. When S.

felt Hamernick penetrate her vagina with his penis, she yelled at him to stop. Hamernick

asked her if she “really wanted” him to stop. Throughout the encounter, S. tried to stand

up and kept telling Hamernick she had to leave. She recalled that she somewhat “froze”


                                             4
and was not sure what to do. Eventually, Hamernick stopped. He apologized to S., telling

her he felt as if he “just raped” her.

¶8     Conversely, Hamernick, under examination by his counsel, testified the interaction

began with a “quiet moment” before he told S. “I really want to kiss you right now,” to

which she responded to by “giggl[ing]” and saying, “I bet you won’t.” When he went to

kiss her lips, she turned away but “put her neck out.” He then asked if she wanted to be

kissed, to which she again “giggled.” Hamernick described this portion of the interaction

as “kind of a game.” He then kissed her neck and S. “start[ed] to grab [his] arms . . . kind

of pull[ed] [him] into her,” which Hamernick described as “obviously reciproca[l].”

¶9     Hamernick continued to kiss S.’s neck and began “touching her knee and the inside

of her thigh.” Hamernick stated S. then “open[ed] her legs a little bit” so he “beg[an] to

rub her vagina through her clothing.” Hamernick “could tell that she was very into it.”

While Hamernick reached into S.’s clothing to “touch her vagina around her panties,” S.

was “saying yes and saying [his] name” and “enjoying herself.” Hamernick testified he

“absolutely” could not have been “confused” about what S. wanted at this point because

she was reciprocating and “never said stop” and “never pushed [him] away.” When the

two relocated for comfort, S. “had a big smile on her face.” After asking for S.’s

permission, to which she “said ‘uh-huh’ and moved her head up and down as a yes,”

Hamernick “took out [his] penis . . . lead her hand over [it]” and she “proceeded to give

[him] a hand job.” According to Hamernick, S. was then “smiling,” “giggling,” and

“look[ed] like she [was] having a good time.”


                                             5
¶10    S. then stood up, mentioned that it was late, and “shuffled” around Hamernick to

leave. Hamernick “pulled her into [his] body” and asked in a whisper whether she was

sure she did not have more time—to which she responded, “I suppose.” Hamernick then

told S. that he wanted to have sex with her. S. verbally responded with “an affirmative

yes.” They then moved to a nearby table and, with S.’s assistance, Hamernick undressed

her to her underwear. Hamernick “began to rub the tip of [his] penis against her vagina”

and Hamernick offered that S. was “having a good time, without a doubt.” However, when

Hamernick then began to “put [him]self inside her,” S. “stiffen[ed] up” and said “no, not

that.” Hamernick then returned to his previous action of rubbing his penis in “her clit area,”

but S. then stated she did not “want any of this anymore,” at which point, Hamernick

claimed he “immediately back[ed] off.” S. gathered her clothes and began to leave.

Hamernick asked her what had happened, and S. responded she was not sure, but that they

“shouldn’t have done that” and it “was too far.” S., upon Hamernick’s prompting, said he

had not done anything wrong, but that she should have “stopped it a lot sooner.” They then

parted ways.

¶11    S. testified that, at home, she could not sleep, “felt dirty,” and wanted to “erase what

had happened.” After talking with her former boyfriend about the incident, S. contacted

the police. In the following days, S. was medically evaluated, and bruising was found

consistent with having been pushed down into a chair. The morning after the incident,

police took Hamernick to the station for questioning. At Hamernick’s residence, police

found an apology letter in which Hamernick expressed regret to S. over betraying her. In

his initial accounts to police, Hamernick expressed regret and repeatedly explained what
                                              6
had occurred. He opined that S. may have felt violated because when she stopped his

attempt at vaginal sex, he understood her rejection as specific to vaginal sex, and thus he

continued his prior action of rubbing his penis against her clitoris. About a year later, the

State charged Hamernick with SIWOC.

¶12    Hamernick requested an instruction that defined the mental state of “knowingly” as

being “aware that [the] sexual intercourse was without consent.” The District Court

declined this instruction and gave two instructions offered by the State, that “[a] person

acts knowingly with respect to the element of sexual intercourse when the person is aware

of his conduct” and that “[a] person acts knowingly with respect to the element of without

consent when the person is aware of a high probability that the sexual intercourse was

without consent.” (Emphasis added.) Under the latter instruction, the State argued

Hamernick was guilty even if his version of the incident was accepted. Hamernick was

found guilty, and the District Court sentenced him to a twenty-year prison sentence, with

fifteen years suspended, and a five-year parole restriction.

                               STANDARD OF REVIEW

¶13    “The standard of review for jury instructions is whether the instructions, as a whole,

fully and fairly instruct the jury on the law applicable to the case.” State v. Kirn, 

, 

, 

 (citing State v. Dunfee, 

, 

, 

). Accordingly, “[w]e review a trial court’s decision regarding jury

instructions for abuse of discretion.” Romo v. Shirley, 

, ¶ 62, 

,

. “We consider the instructions in their entirety and in connection with other

instructions given and evidence introduced at trial.” Romo, ¶ 62. “If the instructions are
                                             7
erroneous in some aspect, the mistake must prejudicially affect the defendant’s substantial

rights in order to constitute reversible error.” State v. Deveraux, 

,

, 

 (citing State v. Gerstner, 

, 

,

). Jury instructions that relieve the State of its burden to prove each element

of an offense violate a defendant’s right to due process. State v. Miller, 

, 

, 

.

                                      DISCUSSION

¶14    Did the District Court err by instructing the jury that, to reach a guilty verdict, it
       needed to find Hamernick was merely aware of the high probability the victim did
       not consent to sexual intercourse?

¶15    A person commits the offense of sexual intercourse without consent if “[the] person

. . . knowingly has sexual intercourse with another person without consent.” Section

45-5-503(1), MCA. “Consent” means “words or overt actions indicating a freely given

agreement to have sexual intercourse or sexual contact[.]” Section 45-5-501(1)(a), MCA.

“[A]n expression of lack of consent through words or conduct means there is no consent

or that consent has been withdrawn[.]” Section 45-5-501(1)(a)(i), MCA.

¶16    “When a criminal offense requires that a defendant act ‘knowingly,’ the [d]istrict

[c]ourt must instruct the jury on what the term ‘knowingly’ means in the context of the

particular crime.” State v. Azure, 

, 

, 

. “A

district court has broad discretion in formulating and approving jury instructions.” State v.

Ragner, 

, 

, 

 (citing State v. Kaarma, 

, 

, 

). “[C]ourts ordinarily read a phrase in a criminal

statute that introduces the elements of a crime with the word ‘knowingly’ as applying that
                                             8
word to each element.” Deveraux, ¶ 32 (quoting Flores-Figueroa v. United States, 

, 

 (2009)).

¶17    Section 45-2-101(35), MCA, provides three definitions for “knowingly”:

       [1)] A person acts knowingly with respect to conduct or to a circumstance
       described by a statute defining an offense when the person is aware of the
       person’s own conduct or that the circumstance exists.

       [2)] A person acts knowingly with respect to the result of conduct described
       by a statute defining an offense when the person is aware that it is highly
       probable that the result will be caused by the person’s conduct.

       [3)] When knowledge of the existence of a particular fact is an element of an
       offense, knowledge is established if a person is aware of a high probability
       of its existence.

These statutory definitions are commonly referenced in our opinions by short labels or

terms, including, respectively, the “conduct-based” definition, the “result-based”

definition, and the “high probability of a fact” definition. See Deveraux, ¶¶ 30-32; State v.

Secrease, 

, 

, 

; State v. Hovey, 

, 

, 

.

¶18    The District Court segmented the offense into two elements, “has sexual

intercourse” and “without consent,” and gave different instructions for each element. For

“has sexual intercourse,” the District Court instructed that Hamernick must be found

“aware of his conduct”—the conduct-based definition of knowingly.              For “without

consent,” the District Court instructed that Hamernick must be found “aware of a high

probability that the sexual intercourse was without consent”—the high-probability-of-a-

fact definition of knowingly. The court instructed further that “[t]he consent of [S.] is a

defense to the offense of sexual intercourse without consent.” This instruction reflects the
                                             9
2017 amendments to the definition of “consent,” which now provides that “consent means

words or overt actions indicating a freely given agreement to have sexual intercourse or

sexual contact.” Section 45-5-501(1)(a), MCA (2017). This legislative revision did not

change the language of the element itself, which remains “without consent,” and did not

revise the crime’s mental state of “knowingly.”2

¶19    Hamernick’s argument that the District Court’s “high probability of a fact”

instruction constituted error that prejudiced his defense necessarily requires a brief

summary of the above-described details to demonstrate his fact-based defense. According

to the testimony Hamernick provided at trial, during the initial physical contact that led to

the parties’ disrobing and to his attempt to engage in vaginal penetration, S. had been

“smiling,” “giggling,” “pulling [him] closer,” and did not verbalize lack of agreement. See

§ 45-5-501(1)(a), MCA (“consent means words or overt actions indicating a freely given

agreement”). This included a period after, according to Hamernick, he had received an

“affirmative yes” from S. that she would like to have sex, and he rubbed his penis against

her clitoris. Hamernick claimed S. was “reciprocating” during this period. It was not until

Hamernick began to penetrate S.’s vagina that he claims she “froze” and said, “no, not

that.” Hamernick contended he understood this response by S. to be specific to vaginal

intercourse, and so he returned to his prior action of rubbing his penis against her clitoris,

until S. stated she did not “want any of this anymore,” at which point, Hamernick said he


2
 These amendments to the SIWOC statute were made in Chapter 279, Laws of Montana (2017),
entitled in this regard as “An Act . . . Removing the Requirement of Force From the Definition of
‘Consent’[].”

                                               10
“immediately back[ed] off.” According to Hamernick, it was his failure to understand S.’s

words in response to his attempt at vaginal intercourse that prompted his feelings of guilt

when their intimacy abruptly terminated, and which led to his apology letter and initial

comments to the police.3

¶20    Hamernick does not dispute that he engaged in sexual intercourse with S., but denies

he did so with knowledge she was not consenting to the conduct; in other words, he claims

he was not aware his conduct was against her will. Noting that this Court has approved the

conduct-based definition of knowingly for SIWOC in several cases, and quoting Deveraux,

Hamernick argues that because “[f]or SIWOC, the prohibited particularized conduct

itself—engaging in sexual intercourse with another person without that person’s consent—

gives rise to the entire criminal offense,” the conduct-based definition for knowingly

should have been given in his case for all of the elements of the crime, not just the “has

sexual intercourse” element. Deveraux, ¶ 32 (italics in original). Hamernick contends that,

under the conduct-based definition of knowingly, the jury would have had a legal basis to

acquit him if they chose to believe his account, including his assertion that S. initially

consented to their intimate contact. However, he argues that, by departing from the

conduct-based definition approved in precedent and giving the high-probability-of-a-fact

definition of knowingly, the District Court lowered the State’s burden of proof of the

mental state from an awareness of S.’s consent to an awareness of only a “high probability”


3
 The State argues that admissions from Hamernick during cross-examination served to undermine
his version of the incident, but the jury was nonetheless entitled to believe those portions of his
detailed account it deemed to be credible.

                                                11
that, despite any initial indications by S., S. had not consented. Hamernick contends that

requiring the jury’s consideration of this lower bar permitted the State to argue he was

guilty even under his own version of the incident, and violated his right to due process.

The State argued that, “based on all of his words and actions,” Hamernick should have

been aware of the high probability of the fact that S. had not consented to his sexual

advances. As Hamernick’s briefing explains, “the State’s argument would be appealing

because it offered the jury a path to resolve the case without having to resolve conflicts

between S’s and Bryce’s accounts—by letting the jury assume the truth of Bryce’s account

but nonetheless to find him guilty.”

¶21    Where an offense criminalizes “particularized conduct,” a conduct-based

instruction is appropriate. Deveraux, ¶¶ 31-32; see also State v. Lambert, 

, 

 (1996) (considering which “knowingly” definition is proper for the

offense of criminal endangerment and holding, “[t]here being no particularized conduct

which gives rise to criminal endangerment, applying to that offense’s mental element the

definition of ‘knowingly’ that an accused need only be aware of his conduct is incorrect.”).

(Emphasis added.) We held in Deveraux that SIWOC is a conduct-based offense for which

the mental state of “knowingly” is properly defined as when the person is aware of his

conduct. Deveraux, ¶ 32. Deveraux had argued that because the element of sexual

intercourse itself is not criminalized by the statute, he could be convicted merely because

“he was aware he was engaging in that legal act with his then-wife,” and thus, he was

entitled to a “result-based” or “highly probable” instruction. Deveraux, ¶ 32. We rejected

the argument, explaining that “the prohibited particularized conduct” under the SIWOC
                                            12
statute was not merely awareness of sexual intercourse but “engaging in sexual intercourse

with another person without that person’s consent.” Deveraux, ¶ 32. (Emphasis in

original.) Then, with the application of “knowingly” to this conduct, this constituted “the

entire criminal offense.” Deveraux, ¶ 32. We further noted that we had repeatedly

approved the conduct-based instruction for SIWOC. Deveraux, ¶ 33. In Ragner, we noted

generally that, “[i]f the statute defining an offense prescribes a particular mental state with

respect to the offense as a whole without distinguishing among the elements of the offense,

the prescribed mental state applies to each element.” Ragner, ¶ 33 (citing § 45-2-103(4),

MCA).      There, we affirmed against the defendant’s challenge a conduct-based

“knowingly” instruction for SIWOC that provided “with respect to the totality of the

elements of the crime . . . the person is aware of his or her own conduct.” Ragner, ¶ 28

(internal quotations omitted). In Gerstner, we further explained that the result-based

“knowingly” instruction advocated by the Defendant decreased the State’s burden of proof:

“[h]ad the jury been instructed that, to convict, Gerstner only had to be aware of the high

probability that the contact was sexual in nature, the State’s burden of proof would have

been lessened.” Gerstner, ¶ 31; see also Gerstner, ¶ 29 (“The offense of sexual assault

requires that the accused knowingly make sexual contact with another.                It is the

particularized conduct of making sexual contact that the statute makes criminal.”).

¶22    The State argues the “high probability of a fact” definition of knowingly was

properly given because attaining another’s consent is “threshold event” that is more likened

to a “fact” than a “circumstance,” although no authority is cited for this proposition. The

State offers that Deveraux, Ragner, and Gerstner are distinguishable because, while they
                                              13
affirmed the use of the conduct-based definition of knowingly, they did not prohibit use of

a “high probability of a fact” definition. The State also cites to our approval of the “high

probability of a fact” definition in State v. Hovey. See Hovey, ¶ 21.

¶23    The State is correct that our cases affirming the conduct-based definition for sexual

crimes have not prohibited the instruction given here. Indeed, in Ragner, we reiterated the

general rule that “[a] district court has broad discretion in formulating and approving jury

instructions.” Ragner, ¶ 30. However, the State’s argument does not rebut the contention

that the prosecution’s burden of proof was reduced in this case. Gerstner, ¶ 31. The jury’s

legal basis for acquitting Hamernick, if he was believed factually, was seriously eroded by

the prosecution’s position, permitted by the instruction, that he was guilty under the law

even by his own version of the incident. Despite the language of the statute criminalizing

the act of knowingly engaging in sexual intercourse “without consent,” the State was

relieved of proving that Hamernick knew his sexual conduct with S. was without her

consent, instead needing to prove only that he was aware of “a high probability” of such.

Nor does the State’s argument address the troubling implications of permitting the use of

two differing mental state definitions, as essentially interchangeable alternatives, in

SIWOC prosecutions, a seemingly unfair double standard. More, if approved here, it

would seem the State could prosecute other kinds of cases with the lower-burden “high

probability” definition of knowingly.

¶24    Hovey, cited by the State, illustrates the distinctive use of the high-probability-of-

fact definition of knowingly. There, the defendant was charged with Sexual Abuse of

Children, under which he was alleged to have knowingly possessed photographs depicting
                                             14
minor children engaged in sexual conduct. Hovey, ¶ 4. The District Court gave a

conduct-based knowingly instruction for the element of the defendant’s awareness of

possessing the photos, but a “high probability of fact” knowingly instruction for the

element of defendant’s awareness that the models in the photographs were underage.

Hovey, ¶ 8. We upheld these instructions, reasoning that Sexual Abuse of Children was an

“offense of conduct” warranting a conduct-based knowingly instruction, while the “high

probability” instruction, which we described as a “fact-oriented instruction,” was

appropriate for the State’s obligation to prove the defendant’s awareness that the models

in the photographs were underage. Hovey, ¶¶ 20-21. The language of the mental state

statutes creates the distinction recognized in Hovey. The “high probability of a fact”

definition is to be used when “knowledge of the existence of a particular fact is an element

of the offense.” Section 45-2-101(35), MCA. (Emphasis added.) By the plain language,

this mental state definition is directed to a narrower factual issue than the conduct-based

definition of “aware[ness] of the person’s own conduct.” Section 45-2-101(35), MCA. It

would have been difficult or impossible for the State to prove the “particular fact” of the

ages of the unknown persons in the photographs possessed by the defendant in Hovey. Yet,

the existence of the photographic evidence of the models made it possible to assess the

probability of the defendant’s awareness of that particular fact and element—the models’

ages. For that reason, the “high probability” definition was properly utilized in Hovey to

address the fact-specific secondary mental state within the offense—Hovey’s claim that he

was unaware of the ages of the models.


                                            15
¶25    Here, however, there is no such “particular” fact question presenting a specific

secondary factual issue that would not properly fall within the conduct-based definition of

knowingly as “awareness of conduct.” “Without consent” is a critical and often contested

fundamental element of the crime. The mental state of “knowingly” may be proven, and

routinely is proven, by inference from the facts. See State v. Christensen, 

,

¶ 126, 

, 

 (“the jury may infer the requisite mental state from

what a defendant says and does, and from all the facts and circumstances involved”); see

also § 45-2-103(3), MCA (“The existence of a mental state may be inferred from the acts

of the accused and the facts and circumstances connected with the offense.”).

¶26    The crime of SIWOC is a conduct-based offense, necessitating an “awareness of

conduct” mental state instruction. Deveraux, ¶¶ 31-32. Under the language of the statute,

the crime does not consist of sexual intercourse with a high probability the other person

does not consent; rather, it is sexual intercourse with the awareness that it is without that

person’s consent, which may permissibly be inferred from all of the facts and

circumstances of the case. Christensen, ¶ 126; § 45-2-103(3), MCA. Thus, to determine

whether Hamernick is guilty of SIWOC, the question must be whether Hamernick was

aware of his conduct—that is, whether he knowingly had sexual intercourse with S. without

her consent.4


4
  Justice Baker’s Dissent states that Hamernick’s argument “suggests that S. telling Hamernick
‘no’ and ‘stop,’ even her trying to get away from him and expressing visible discomfort, would
not be enough to find that Hamernick knowingly raped her” and “effectively gives Hamernick a
pass to not comprehending the basics of consent.” Dissent, ¶ 38. However, that is not and has
never been the law, which we are simply reaffirming here. It is important to understand that, under
Hamernick’s version, these facts did not occur. But if the jury rejects Hamernick’s version, and
                                               16
¶27    We conclude that the District Court erred by giving the jury a high-probability-of-

a-fact definition of “knowingly” for the element of “without consent,” rather than a

conduct-based definition, and thus failed to “fully and fairly instruct the jury as to the

applicable law.” Kirn, ¶ 16. We further conclude the error, when considered in conjunction

with Hamernick’s trial testimony, Romo, ¶ 62, “prejudicially affect[ed] the defendant’s

substantial rights,” because it undermined his defense by improperly lowering the State’s

burden of proof. Deveraux, ¶ 20

¶28    Accordingly, we reverse the judgment of conviction and remand this matter for

further proceedings.


                                                       /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR

Justice Beth Baker, dissenting.

¶29    I would affirm the judgment because the District Court’s jury instructions fully and

fairly reflected the law applicable to this case and did not in any event prejudice

Hamernick’s substantial rights.



accepts S.’s version that these facts did occur, then it would be entitled to and could very well infer
from such circumstances that Hamernick—or any other defendant in like circumstances—was
aware that his conduct was without the victim’s consent, and he thus acted knowingly. See
Christensen, ¶ 126 (“the jury may infer the requisite mental state from what a defendant says and
does, and from all the facts and circumstances involved”). The point here is that, under the
instructions as given, the jury’s ability to find Hamernick not guilty even under his version of the
incident was seriously eroded.
                                                   17
¶30    Generally, “[i]f the statute defining an offense prescribes a particular mental state

with respect to the offense as a whole without distinguishing among the elements of the

offense, the prescribed mental state applies to each element.” Section 45-2-103(4), MCA.

As the Court recognizes, however, this language does not require a trial court to instruct

the same definition of the prescribed mental state for each element of an offense.

Depending on the nature of the offense, multiple instructions for “knowingly” may be

appropriate. See Hovey, ¶ 22. “A district court has broad discretion in formulating and

approving jury instructions.” Ragner, ¶ 30 (citing State v. Kaarma, 

, 

, 

).

¶31    In Hovey, the defendant argued that the existence-of-fact instruction regarding

knowledge that the pictures he downloaded depicted children rather than adults lowered

the State’s burden of proof because it did not need to convince the jury that the defendant

was “aware” that the “erotic models were children,” only that he was aware of a “high

probability” that the medium depicted children. Hovey, ¶¶ 12, 21. We concluded that the

court did not abuse its discretion, because the defendant “explicitly argued that he was

unaware of the ages of the models”—a specific fact within the offense. Hovey, ¶ 21. An

instruction addressing the defendant’s awareness of a high probability of that specific fact,

therefore, fully and fairly instructed the jury on the culpability necessary to convict.

Hovey, ¶ 21.

¶32    Hamernick did not dispute at trial that he engaged in sexual intercourse with S. His

defense was that he acted without knowledge of the element that made it criminal: lack of

consent. The District Court instructed the jury, in accordance with § 45-5-501(1)(a), MCA,
                                             18
that consent means “words or overt actions indicating a freely given agreement to have

sexual intercourse or sexual contact[.]” “[A]n expression of lack of consent through words

or conduct means there is no consent or that consent has been withdrawn[.]” Section

45-5-501(1)(a)(i), MCA. The court gave correct instructions on the elements of the

charged offense, including that the State had to prove beyond a reasonable doubt that

Hamernick “acted knowingly” when he had sexual intercourse with S. and that the act of

sexual intercourse was without her consent. The court instructed further that “[t]he consent

of [S.] is a defense to the offense of sexual intercourse without consent.” The 2017

statutory amendments reflected in these instructions make clear that, before engaging in

the act of sexual intercourse, both parties must affirmatively demonstrate a “freely given

agreement” to do so. Section 45-5-501(1)(a), MCA (2017).

¶33    The history of the parties’ relationship, even by Hamernick’s account, was that S.

would receive his advances to a point and then turn him away—in the words of the statute,

withdrawing her consent. She would communicate this through “words or conduct,”

§ 45-5-501(1)(a)(i), MCA, either by telling him he was being inappropriate or she did not

“want to do this” or by turning away from him or pushing him away. The key fact in

contention at trial was whether S. made a similar communication to Hamernick on the night

of July 7, 2018, before he put his penis in her vagina. This is not unlike the dispute in

Hovey, where the defendant argued he was “unaware” that the pictures he possessed

depicted children. Hovey, ¶ 21. We held that the trial court acted within its discretion

when it instructed the knowledge of the victims’ ages as an existence of fact: the defendant


                                            19
had to be aware of a high probability that the erotic models were underage. Hovey,

¶¶ 20-21.

¶34    Hamernick and S. gave materially different descriptions of their encounter, but he

acknowledged S.’s statements that she needed to leave and her vocalized protests to his

actions. The District Court had discretion to formulate jury instructions on the varying

factual elements within the charged offense that were appropriate to the evidence. Hovey,

¶ 22. There was no dispute that, at some point during their encounter, S. withdrew any

consent she had given. The evidence required the jury to determine when, as a matter of

fact, S. communicated to Hamernick through words or overt actions her lack of “a freely

given agreement” to engage in intercourse with him. “In determining how to instruct the

jury, the district court should take into consideration both the parties’ theories and the

evidence presented at trial.” Camen v. Glacier Eye Clinic, P.C., 

, ¶ 21, 

, ___ P.3d ___ (internal quotation and citations omitted). Considering the nature

of the evidence and Hamernick’s defense, the existence-of-fact instruction on lack of

consent was not an abuse of discretion. See Hovey, ¶ 21.

¶35    The Court agrees with Hamernick that Deveraux forbids any set of jury instructions

for sexual intercourse without consent other than mental state instructions for both “sexual

intercourse” and “without consent” that required the jury to find him aware of his conduct.

We did not reach this holding in Deveraux. We addressed whether a conduct-based

instruction allowed a lower burden than instructing the jury that “knowingly” meant being

aware the conduct was highly probable to cause a specific result. Deveraux, ¶ 30. We

rejected that contention, concluding that the offense of sexual intercourse without consent
                                            20
prohibits particularized conduct, not a specific result. Deveraux, ¶ 32. Our decision in

Deveraux spoke to two of the three possible definitions of “knowingly”; it did not address,

and certainly did not resolve, the question before us now—the application of the third

definition, when a specific fact is at issue in the case.

¶36    The Court also accepts Hamernick’s argument that Ragner prohibits the jury

instructions given in his case. In that case, we rejected the defendant’s argument that the

jury should have been instructed that knowingly as to “without consent” meant “the person

is aware that the circumstance exists.” Ragner, ¶¶ 28, 34. The court instead gave one

instruction “with respect to the totality of the elements of the crime of sexual intercourse

without consent, as ‘the person is aware of his or her conduct.’” Ragner, ¶ 28. We

concluded that courts must instruct on the applicable definitions of “knowingly” and that

the court did not abuse its discretion when it instructed on the awareness-of-conduct

definition for both elements. Ragner, ¶¶ 32, 34. If it has any bearing here, Ragner

illustrates our deference to the court’s discretion in formulating jury instructions; we said

nothing to mandate a specific instruction on the definition of “knowingly” in all sexual

intercourse without consent cases. Ragner, ¶¶ 31-32.

¶37    The Court’s stated concern that use of the instruction in this case could open the

door to “other kinds of cases” and potentially lower the State’s burden of proof is

speculative and unpersuasive. We have advised trial courts “that jury instructions should

be tailored to the facts of the case.” State v. Strain, 

, 

(1980). A court thus does not abuse its discretion when it instructs on the definitions of

the requisite mental state applicable to the case before it. Ragner, ¶ 34; Hovey, ¶¶ 20-21.
                                               21
In this situation, Hamernick contends the jury needed to be instructed that he was “actually

aware” that S. did not consent to sexual intercourse.        Hamernick admitted that he

recognized S.’s discomfort, that she said no, and that she asked him to stop. Hamernick

proposes that the instructions required the jury to convict even if it believed that when he

actually became aware that S. did not consent, he stopped.

¶38    Hamernick’s argument suggests that S. telling Hamernick “no” and “stop,” even her

trying to get away from him and expressing visible discomfort, would not be enough to

find that he knowingly raped her. The Court requires that a jury find he subjectively

understood S.’s words and conduct to mean she did not want sexual intercourse, not that

he should have known from her statements and body language that she did not consent.

This effectively gives Hamernick a pass to not comprehending the basics of consent under

§ 45-5-501(1)(a)(i), MCA. Hamernick testified at trial that he “absolutely” takes “consent

seriously.” Yet even if, as Hamernick believes, the encounter started out consensually, he

admits that S. clearly expressed through both her words and her conduct that any consent

he believed to have been given was withdrawn. See § 45-5-501(1)(a)(i), MCA. Hamernick

admitted at trial that S. was visibly uncomfortable and that she was saying “no,” though he

maintains it was “playful.” Hamernick also admitted that S. always was uncomfortable

with his sexual contact and repeatedly indicated that she did not want him touching her.

The question for the jury was to determine when Hamernick should have gotten the

message that there was no “freely given agreement.” Given that factual dispute, I would

conclude that the District Court did not abuse its discretion when it instructed the jury it

could convict Hamernick if it found he was aware of a high probability that S. did not
                                            22
consent to sexual intercourse. Taken as a whole, the instructions fully and fairly instructed

the jury as to the applicable law. Deveraux, ¶ 20.

¶39    Finally, I would conclude that the instruction did not in any event deprive

Hamernick of a fair trial by lowering the State’s burden to prove all elements of the offense

beyond a reasonable doubt, including proof that Hamernick acted knowingly. The Court

acknowledges that the jury would be permitted to infer from all the facts and circumstances

that Hamernick acted without S.’s consent. Opinion, ¶ 26. The difference between telling

the jury it could convict if it found from all the facts and circumstances that Hamernick

should have known—by a high probability—she did not consent versus telling the jury it

could infer Hamernick’s knowledge that she did not consent is immaterial to Hamernick’s

substantial rights. The instructions the court gave authorized the jury to acquit Hamernick

had it believed his testimony. The verdict shows it did not. This case should not have to

be retried. I dissent from the decision to reverse Hamernick’s conviction.


                                                  /S/ BETH BAKER


Justice James Jeremiah Shea and Justice Laurie McKinnon join in the dissenting Opinion
of Justice Baker.


                                                  /S/ JAMES JEREMIAH SHEA
                                                  /S/ LAURIE McKINNON

Justice Laurie McKinnon dissenting.

¶40    I write separately because it is my view there are two elements to SIWOC––

(1) sexual intercourse, and (2) without consent––and it was therefore appropriate to give a

                                             23
conduct-based instruction for the element of sexual intercourse and an existence-in-fact

instruction for the element of without consent. I would begin by asking whether the

legislature intended or understood a victim’s lack of consent to be part of the “conduct”

regulated by § 45-5-503, MCA, the SIWOC statute. I would answer that question no. In

my opinion, lack of consent is a separate element from the conduct element of the SIWOC

statute and the existence-of-fact based knowingly definition is required.

¶41    I acknowledge that my conclusion is to some degree in tension with our decision in

Deveraux, which held that “without consent” gave rise to the entire criminal offense.

However, the propriety of giving an additional “existence-of-fact” instruction for the

mental state of “knowingly” was not at issue in Deveraux; rather, the issue was whether

the court erred by giving a “conduct-based” instruction instead of a “result-based”

instruction. Deveraux, ¶ 29. We held, under the issues there raised, that SIWOC was

properly defined as a conduct-based offense for which the “knowingly” element was

satisfied if the person was aware of his own conduct. Deveraux, ¶ 32. That remains true,

in my opinion, as to the “act” element of SIWOC––sexual intercourse; that is, a person

must be aware of his conduct in having sexual intercourse. However, the remaining

element of SIWOC requires “without consent,” which I would conclude knowledge is

established if a person is “aware of a high probability” the circumstance or fact––consent–

is either lacking or withdrawn. Although I joined the opinion in Deveraux, I have come to

doubt its reasoning that “[f]or SIWOC, the prohibited particularized conduct itself––

engaging in sexual intercourse with another person without that person’s consent––gives

rise to the entire criminal offense, and requires only a conduct-based instruction.”
                                            24
Deveraux, ¶ 32. Instead, it is my view that the “conduct” or “act” requiring a conduct-based

instruction is the act of sexual intercourse; while the victim’s factual lack of consent

requires knowledge of a high probability of the fact’s existence. Thus, the jury was

correctly instructed by the District Court on the mental state of “knowingly” when the court

gave both a conduct-based instruction for “sexual intercourse” and an existence-of-fact

instruction for “without consent.”

¶42    My conclusion follows from the statutory definitions and text, which demonstrate

the legislature intended the “conduct” consist of the sexual acts themselves described in

the SIWOC statute, and the “without consent” element constituted an attendant fact or

circumstance. Montana’s general culpability provision specifies that “a person is not guilty

of an offense unless, with respect to each element described by the statute defining the

offense, a person acts while having one of the mental states of knowingly, negligently, or

purposely.” Section 45-2-103(1), MCA. As the SIWOC statute requires the mental state

of “knowingly,” the defendant must act “knowingly” with respect to each element

described by the statute. Section 45-2-101(35), MCA, sets forth three definitions of

“knowingly,” and provides:

       “Knowingly”––a person acts knowingly with respect to conduct or to a
       circumstance described by a statute defining an offense when the person is
       aware of the person’s own conduct or that the circumstance exists. A person
       acts knowingly with respect to the result of conduct described by a statute
       defining an offense when the person is aware that it is highly probable the
       result will be caused by the person’s conduct. When knowledge of the
       existence of a particular fact is an element of an offense, knowledge is
       established if a person is aware of a high probability of its existence.
       Equivalent terms, such as “knowing” or “with knowledge,” have the same
       meaning. (emphasis added).

                                            25
Depending on the facts and nature of the offense, multiple instructions for “knowingly”

may be needed to instruct the jury fully and fairly. Hovey, ¶ 22.

¶43    Turning to the statute at issue here, § 45-5-503, MCA, provides: (1) “A person who

knowingly has sexual intercourse with another person without consent or with another

person who is incapable of consent commits the offense of sexual intercourse without

consent.” The act described by the statute is “sexual intercourse.” “Sexual intercourse” is

defined in § 45-2-101(68)(a), MCA, and the legislature established a specific mental state

in its definition that requires the “act” be done, relevant here, with a specific purpose of

“arous[ing] or gratify[ing] the sexual response or desire of either party.”          Section

45-2-101(68)(a)(ii), MCA. “Consent” or “lack of consent” does not appear anywhere in

the language the legislature used in defining sexual intercourse and, further, there is no

requirement in the statute defining sexual intercourse that it be consensual or

nonconsensual.

¶44    “Consent” was also defined by the legislature. In 2017, the legislature significantly

revised the definition of consent which compels, in my opinion, an existence-of-fact

instruction for the element of without consent. The statute provides, in relevant part:

       the term “consent” means words or overt actions indicating a freely given
       agreement to have sexual intercourse or sexual contact and is further defined
       but not limited by the following:
               (i)    an expression of lack of consent through words or conduct
       means there is no consent or that consent has been withdrawn;
               (ii)   a current or previous dating or social or sexual relationship by
       itself or the manner of dress of the person involved with the accused in the
       conduct at issue does not constitute consent; and
               (iii) lack of consent may be inferred based on all of the surrounding
       circumstances and must be considered in determining whether a person gave
       consent.
                                             26
Section 45-5-501(1)(a), MCA. The statute, as in years past, continues to set forth those

persons incapable of giving consent based on age or incapacity. Section 45-5-501(1)(b),

MCA. It also sets forth other specific circumstances that present imbalanced power

dynamics in relationships where the victim is deemed legally incapable of consent. Section

45-5-501(1)(b)(v)-(xii), MCA. Section 45-5-511, MCA, additionally provides a defense

“[w]hen criminality depends on the victim being less than 16 years old, . . . [if the offender]

prove[s] that the offender reasonably believed the child to be above that age.” However,

“[t]he belief may not be considered reasonable if the child is less than 14 years old.”

Section 45-5-511, MCA.

¶45    The current consent statute has made significant progress in recognizing that

SIWOC occurs in a multitude of scenarios, relationships, and power imbalances––and the

legislature recognized the previous statutory requirement of force or threat of force was

ill-suited to the complexities of society and these complicated relationships. The statute

particularizes numerous circumstances where the victim is either incapable of consent or

factually has given or withdrawn consent. The language of the consent statute and its terms

and provisions are factually driven and factually specific. Montana’s consent statute

attempts to address these societal ills and the legislature’s efforts are inhibited by this

Court’s misplaced conclusion that only a conduct-based instruction applies in SIWOC

cases. More to the point, I am not persuaded that the legislature intended to permit

defendants to gratify their sexual desires by having sexual intercourse with nonconsenting

individuals as long as the defendant does not have knowledge that the individual does not

                                              27
consent––an inevitable result of applying the conduct-based definition of knowingly. The

Court’s holding makes mental state completely subjective and introduces a requirement of

“positive” knowledge that would make deliberate ignorance a defense. One with a

deliberate antisocial purpose in mind should not be allowed to shut his eyes to avoid

knowing what would otherwise be obvious to all. The existence-in-fact based instruction

for “knowingly” addresses a mental state in which the defendant is aware that the fact in

question is highly probable but consciously avoids enlightenment. It differs from the

conduct-based definition of knowingly only so far as necessary to encompass a calculated

effort to avoid the sanctions of the statute while violating its substance. Whether a

complainant has consented to sexual intercourse depends upon her manifestations of such

consent as reasonably construed.       If the conduct of the complainant under all the

circumstances should reasonably be viewed as indicating consent to the act of intercourse,

a defendant should not be found guilty because of some undisclosed mental reservation on

the part of the complainant. Through its revisions to the consent statute, the legislature has

taken significant action towards addressing the power dynamics and imbalances inherent

in a multitude of human relationships. I object to overriding these legislative efforts to

advance Montana’s consent statute into the twenty-first century by the Court making the

mental state of knowingly completely subjective and requiring the defendant have actually

known of the victim’s lack of consent, even though any reasonable person would have

known there was no consent.

¶46    The statutory definitions and text support the conclusion that the legislature would

have understood that a victim’s lack of consent in the SIWOC statute to be a circumstance
                                             28
or fact, and not part of the actor’s conduct. Therefore, the legislature did not intend a

conduct-based mental state be applied to lack of consent. I would conclude that for the

element of “without consent,” an existence-of-fact based mental state reflects the

legislature’s purpose in enacting the consent statute. I would affirm the District Court, not

only because it did not abuse its discretion under these facts, but because it instructed the

jury on mental state correctly as a matter of law.


                                                     /S/ LAURIE McKINNON




                                             29