Submitted on Briefs: July 24, 2019
FROM: District Court of the Nineteenth Judicial District, In
and For the County of Lincoln, Cause No. DC-14-82 Honorable
Matthew J. Cuffe, Presiding Judge.
Appellant: Chad Wright, Appellate Defender, Kristen L.
Peterson, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Jeffrey
M. Doud, Assistant Attorney General, Helena, Montana Marcia
Boris, Lincoln County Attorney, Libby, Montana
A Lincoln County jury found Hadley Gene Resh guilty of felony
sexual assault. The Nineteenth Judicial District Court
instructed the jury, without differentiating between the
charged offenses of sexual intercourse without consent and
sexual assault, that a person under the age of sixteen is
incapable of consent as a matter of law. Resh appeals,
claiming that his counsel was ineffective when he failed to
object to the instruction because the age of consent for
sexual assault was fourteen years old. We reverse and remand
for a new trial.
AND FACTUAL BACKGROUND
In March 2014, fourteen-year-old R.H. was living with her
father in Kalispell. Resh was married to R.H.'s mother,
and they had three children together. Even though Resh was
not R.H.'s biological father, she considered him her
father. She lived with Resh and his biological children until
she was ten years old.
Near the end of March 2014, R.H. was staying at Resh's
home to celebrate her half-sister's birthday. R.H. went
into Resh's bedroom where he was on his bed watching
television and drinking wine. R.H. had noticed that Resh had
been sad all day and wanted to see how he was doing. At some
point, Resh asked R.H. to get him another glass of wine. R.H.
went to the kitchen to get ice, returned to Resh's
bedroom, and filled his glass with wine from a box in the
bedroom. R.H. recalled filling Resh's glass more than
After filling Resh's glass the first time, R.H. changed
into a pair of Resh's boxers because her pajama bottoms
were too warm. R.H. stood next to Resh, who put his arm
around her and began "trailing" his fingers up and
down her upper thigh. R.H. said that is when she
"thought something was fishy, so [she] moved" and
got Resh his second drink. When R.H. came back, she sat on
Resh's bed next to him to watch a movie. Following a
funny scene in the movie, Resh commented that R.H. looked
pretty like her mother. R.H. testified that Resh told her,
"Stop looking at me that way," and R.H. responded
that she did not understand what he meant. R.H. said that she
was staring at Resh because it was nice to see him smile.
Resh then leaned into R.H. and kissed her intimately on the
lips and put his tongue inside her mouth. R.H. testified that
this made her feel uncomfortable and that it was not the kind
of kiss a father or stepfather should give his daughter. R.H.
told investigators that she did start to kiss Resh back
before asking herself, "Wait, what am I doing?"
R.H. said that she was feeling confused when she started
kissing him back. She stated, "I wanted to make him
happy, but I didn't know what that meant. So I just did
what he did; I didn't know what else to do. I didn't
know if I was supposed to get up and leave, if I was supposed
to just sit there and pull away, or if I was supposed to-I
R.H. said that they both fell back; she was laying down
straight and he was propped up leaning into her. While
kissing R.H., Resh began running his hand up and down
R.H.'s thigh. He was running his hands across the top of
the boxers R.H. was wearing. Eventually, Resh put his hands
under the boxers and R.H.'s underwear and inserted two
fingers into R.H.'s vagina. R.H. noticed that Resh got an
erection. R.H. testified that the sexual contact made her
feel very uncomfortable. She was "in shock" and did
not know how she was supposed to act. When later questioned
by an investigator, R.H. said, "My body was accepting
it. Like it felt like my body wanted it. Then I was like,
no." When asked to clarify what she meant when she said
her body wanted the contact, she stated that it moved in
rhythm with Resh. Ultimately, R.H. shifted position and moved
Resh's hand away, and the sexual contact stopped. Resh
began shaking his head and continually apologizing. R.H. told
him that it was okay and left the room. R.H. testified that
she said it was okay because she did not want Resh to
"beat himself up about it," and she just wanted to
get out of the room.
After R.H. left Resh's room, she went into the living
room and told her half-sister, K.R., that Resh made out with
her and "violated" her. K.R. testified that R.H.
appeared "nervous, shaky, not herself," and that
she cried. R.H. asked K.R. to go into Resh's bedroom to
retrieve her sweater because R.H. did not want to go back
into Resh's room. The following morning, Resh again
apologized and asked R.H. if she was okay.
R.H. eventually told her father and stepmother what happened,
and they reported it to police. Investigator Devin Kuntz
interviewed R.H. within approximately a month of the
incident. The State charged Resh in September 2014 with one
count of sexual intercourse without consent and with an
alternative count of sexual assault.
The case proceeded to a jury trial. During the settling of
jury instructions, the parties discussed the State's
proposed instruction on the element of "without
consent." It stated, "As used in these
instructions, the term 'without consent' means the
victim is incapable of consent by law because she is less
than 16 years old." The proposed instruction was drawn
from the applicable sexual intercourse without consent
statute and the Model Criminal Jury Instructions. Resh's
counsel did not ...