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State v. Bullock

Supreme Court of Montana

July 25, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
RUSSELL WAYNE BULLOCK, Defendant and Appellant.

          Submitted on Briefs: May 3, 2017

         APPEAL FROM District Court of the Eighteenth Judicial District, In and For the County of Gallatin, Cause No. DC 13-186B Honorable Mike Salvagni, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana

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

          Marty Lambert, Gallatin County Attorney, Eric N. Kitzmiller, Chief Deputy County Attorney, Bozeman, Montana

          OPINION

          Laurie McKinnon, Justice

         ¶1 Russell Wayne Bullock (Bullock) appeals from his jury conviction for sexual intercourse without consent and burglary entered in the Eighteenth Judicial District Court, Gallatin County. With the exception of an incorrectly imposed user surcharge, we affirm Bullock's conviction. Bullock raises the following issues for review:

         1. Whether Bullock was denied his right to speedy trial.

         2. Whether the court erred when it allowed officers to read out loud from a transcript of Bullock's statements to refresh the witnesses' recollection.

         3. Whether the jury instruction for burglary, which did not define the elements of theft, should be reviewed under the plain error doctrine.

         4. Whether the court erred in imposing more than one user surcharge.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 On July 18, 2013, Bullock, who was in his mid-forties, met a group of young men and agreed to purchase alcohol for them. While they were driving, Bullock tickled one of the men, which made the men feel "creep[y]." When Bullock was in the liquor store, the young men concocted a plan to take Bullock out of town and abandon him. Bullock got back in the vehicle and the group drove south of town. There were several versions of what happened next. Bullock contends the young men beat him and left him in a ditch. The young men contend they convinced Bullock to help them look for a rope swing, but denied ever hitting Bullock. Regardless, the group left Bullock.

         ¶3 Bullock, very intoxicated and disoriented, walked to a nearby house where Amy W. (Amy) lived with her family, including her son, Alex, and eight-year-old daughter, A.W. Amy and her family had been to the county fair that evening and A.W. fell asleep in the car on their drive home. Amy allowed A.W. to continue to sleep in the back seat of the car while parked in the garage. Amy left the lights on in the garage and the door open to the house for A.W. The rest of the family went inside to bed. Amy thought she had closed the overhead garage door, but the door had not closed due to a container being in the way.

         ¶4 Alex was downstairs and heard A.W. screaming and saying "Ouch" and "stop it." He woke up Amy who told him to go check on A.W. Alex opened the door to the garage and saw a man wearing a shirt by the front of the car, but who was not wearing pants or underwear. The man appeared startled. A.W. came inside with a blanket wrapped around her and Alex locked the door to the garage behind them.

         ¶5 A.W. was catatonic. She stared blankly at walls, did not pay attention to Alex or Amy, and was unable to say where she was. She was covered in vomit. She had a blood spot in her right eye and was no longer wearing her shorts or underwear. Her clothing was later located on the garage floor. A.W. said little of what happened in the garage. She responded that someone had hurt her and that the man had covered her mouth when she screamed for help. The man told her that the people in the house were asleep and could not help her. During her interview with law enforcement, A.W. offered little information. At trial, A.W. again was unable to give much information. She declined to answer a question about what had happened in the garage, explaining it brought back bad memories and she did not want to talk about it. She affirmed a man she did not know was there, Alex had come to the door, and she went into the house with Alex.

         ¶6 Officers arrived at Amy's house and located Bullock passed out near a trailer in some tall grass. Officers arrested Bullock. Bullock maintained he did not know where he was and that he had been dumped there after being hit in the head with a bottle. Bullock was taken to the hospital and later that night released to Detective Tom Pallach (Detective Pallach). Detective Pallach interviewed Bullock after he was transported to the sheriff's department. During the ...


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