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State v. Old Bull

Supreme Court of Montana

October 10, 2017

STATE OF MONTANA, Plaintiff and Appellee,
KERSTYN JADE OLD BULL, Defendant and Appellant.

          Submitted on Briefs: August 9, 2017

         APPEAL FROM: District Court of the Twenty-Second Judicial District, In and For the County of Big Horn, Cause No. DC-15-18 Honorable Blair Jones, Presiding Judge

          For Appellant: Craig Kevin Shannon, Attorney at Law, Missoula, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Kraus, Assistant Attorney General, Helena, Montana Gerald "Jay" Harris, Big Horn County Attorney, Hardin, Montana


          James Jeremiah Shea Justice.

         ¶1 Defendant Kerstyn Jade Old Bull appeals from the sentence and judgment of the Twenty-Second Judicial District Court, Big Horn County. The District Court sentenced Old Bull to ten years in the Montana Women's Prison (MWP), parole restricted for the entire term, on her conviction for criminal endangerment in violation of § 45-5-207, MCA; and ten years in MWP, parole restricted for seven and one-half years, on her conviction for obstructing justice in violation of § 45-7-303, MCA, to be served consecutively to her criminal endangerment sentence.

         ¶2 We address the following issues:

Issue One: Whether the District Court erred by imposing a parole eligibility restriction on Old Bull's sentence for obstructing justice.
Issue Two: Whether the District Court erred by requiring Old Bull to register as a violent offender.


         ¶3 On March 2, 2015, Old Bull and her boyfriend Clint Hogan took Hogan's unresponsive six-year-old daughter, K.H., to Hardin Hospital. K.H. was then transported to Denver Children's Hospital where she died from her injuries. When interviewed separately, Hogan and Old Bull independently reported that K.H. was in good health when Hogan left to go to the store, that she was unresponsive when Hogan returned, and that she never regained consciousness. According to the Presentence Investigation Report (PSI) ordered by the District Court, Old Bull and Hogan waited roughly two hours before seeking medical attention for K.H. During the State's investigation into K.H.'s death, Old Bull told law enforcement that K.H. fell in the shower, which led to her injury. This account conflicted with the treating hospital assessment that K.H.'s injuries resulted from a traumatic forceful blow to the head and blunt force trauma that could not have been caused by an accidental fall. K.H. also "had evidence of both fresh and historical bruising over her entire body, consistent with habitual abuse." Old Bull later admitted that she provided false information to law enforcement regarding Hogan's involvement in the crime because she was scared to stand up to Hogan.

         ¶4 The State initially charged Old Bull with deliberate homicide of K.H. On November 13, 2015, the State amended these charges, pursuant to a plea agreement, to criminal endangerment and obstructing justice. Old Bull pled guilty to these charges. As part of the plea agreement, Old Bull admitted that she "engaged in conduct that created a substantial risk of death or serious bodily injury to another, specifically [K.H]." She also admitted to providing the police with false information regarding Hogan's role in K.H.'s death. At sentencing, Old Bull never disputed that K.H. died due to blunt force trauma; however, Old Bull did dispute whether she had been the cause of K.H.'s injury.

         ¶5 Due to what the District Court characterized as Old Bull's "heinous" conduct that resulted in K.H.'s death, the Court restricted Old Bull's parole eligibility for the entire ten-year sentence for criminal endangerment and for seven and one-half years of the consecutive ten-year sentence for obstructing justice. Hogan received a ten-year suspended sentence for obstructing justice during the investigation into K.H.'s death.

         ¶6 At Old Bull's sentencing, the District Court stated on the record-without distinguishing between the criminal endangerment charge and the obstructing justice charge-its rationale for the parole restrictions. The Court stated: "You have a child who is dead here; [she] has passed away. And there is evidence that this child endured habitual abuse. The Court will not turn a blind eye to that." The Court further stated that it could see no "justification for treating a child the way this child was treated or engaging in conduct that would allow for such treatment" and found it "appropriate . . . [to] impose an equally severe sentence." The Court also emphasized the lasting trauma to the family and community caused by K.H.'s death. Further, the District Court stated that the parole restrictions would ensure that Old Bull have access to programs while in MWP to help address anger and emotional issues and, therefore, have a chance at rehabilitation. The District Court specified that the ...

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