Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Kapps

Supreme Court of Montana

August 22, 2017

STATE OF MONTANA, Plaintiff and Appellee,
MARK KAPPS, Defendant and Appellant.

          Submitted on Briefs: July 12, 2017

         APPEAL 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.

          For Appellant: Briana E. Kottke, Stack & Kottke, PLLC, Missoula, Montana.

          For 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.



         ¶1 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 Montana Reports.

         ¶2 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.

         ¶3 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 Miranda worked.

         ¶4 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 enforcement.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.