Submitted on Briefs: July 12, 2017
FROM: District Court of the Sixteenth Judicial District, In
and For the County of Fallon, Cause No. DC 15-001 Honorable
and Nickolas C. Murnion, Presiding Judge.
Appellant: Briana E. Kottke, Stack & Kottke, PLLC,
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar, Assistant Attorney General, Helena, Montana, Darcy
Lynn Wassmann, Fallon County Attorney, Ole Olson, Special
Deputy County Attorney, Baker, Montana.
Pursuant to Section I, Paragraph 3(d), Montana Supreme Court
Internal Operating Rules, this case is decided by memorandum
opinion and shall not be cited and does not serve as
precedent. Its case title, cause number, and disposition
shall be included in this Court's quarterly list of
noncitable cases published in the Pacific Reporter and
Mark Kapps (Kapps) appeals his convictions for Sexual
Intercourse Without Consent and Sexual Assault from the
Sixteenth Judicial District Court, offering comprehensive
arguments related to the following assertions: (1) an
improper unanimity instruction subjected him to double
jeopardy; (2) his trial counsel rendered ineffective
assistance; (3) the prosecutor committed plain error by
vouching for witnesses; (4) the District Court imposed
improper sentencing conditions; and (5) reversal is required
by cumulative error.
Kapps and Miranda Thomas (Miranda) lived together in Plevna,
Montana, with their newborn son. Miranda worked as a
housekeeper at the Sagebrush Inn in Baker, Montana, which her
sister, Stephanie Craig (Stephanie), managed. The
Craigs-Stephanie, her husband, and their children, C.C. (ten
years old), M.C. (seven years old), and Z.C.-lived in a home
attached to the Sagebrush Inn. Miranda did not have a
driver's license, so Kapps regularly drove her to work.
On weekends when Kapps did not go to work, he would
frequently stay at the Craigs' home with his son while
On August 3, 2014, Kapps spent the day at the Craig home
while Miranda and Stephanie worked. In the house with Kapps
were his son, as well as M.C. and C.C. The next day, M.C.
told her brother, C.C., that Kapps had molested her. C.C.
relayed this report to Miranda, who asked M.C. if it could
have been an accident. In response, M.C. "shook her head
no." Miranda then reported M.C.'s disclosure to
Stephanie, and Stephanie and her husband reported it to law
Law enforcement interviewed M.C. and Stephanie, and collected
evidence from the Craig home, including a blanket. M.C. was
examined at the Billings Clinic emergency room and later
participated in a forensic interview with Child Protective
Services. M.C. reported that Kapps had penetrated her both
vaginally and anally, had shown her his penis and made her
touch it until he ejaculated, and that the incidents had
occurred about twenty times. Kapps was charged with one count
of Sexual Assault and one count of Sexual Intercourse Without
Consent, both allegedly occurring between December 26, 2013
and August 4, 2014.
At trial, the State called M.C., C.C., Miranda, Stephanie,
law enforcement officers and crime lab employees as
witnesses. M.C. testified that "[Kapps] stuck his hand
down my pants and he showed me his D.I.C.K., "
specifically, that he had touched her "private
area" both "outside and inside." M.C. stated
that Kapps had "tried to make [her] touch his private
area" and that "white stuff" had come out onto
a blanket. She testified that these incidents had occurred
"[m]ore than once" and "a few times at his
house and a lot at my house" and that they had begun
"when I was 7." C.C. testified that he saw
"[Kapps] st[i]ck his hands down [M.C.]'s pants"
on August 3, 2014 when peering through a pile of boxes, and
that M.C. had disclosed the event to him the next day. An
employee of the State Crime Lab testified that the
"major component" of the sperm sample taken from
the collected blanket matched Kapps' DNA profile. The
jury found Kapps guilty on both felony charges.
Kapps argues that the District Court's unanimity
instruction did not provide sufficient specificity, and
should have informed the jury that Kapps could not be
convicted of both Sexual Assault and Sexual Intercourse
Without Consent for the same incident. Kapps argues that,
based on the instruction given, he was subjected to double
jeopardy. Kapps' defense counsel did not object to the
instructions, stating he had reviewed them with Kapps and had
"no issues." Thus, Kapps requests that we exercise
plain error review and reverse his conviction.
Plain error review is exercised "sparingly, " on a
"case-by-case basis, " and requires the defendant:
(1) show that the claimed error implicates a fundamental
right and (2) firmly convince this Court that failure to
review the claimed error would result in a manifest
miscarriage of justice, leave unsettled the question of the
fundamental fairness of the trial or ...