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Date: 11-20-2020

Case Style:


Case Number: 2020 MT 279

Judge: Jim Rice


Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Stephanie Robles, Assistant
Attorney General, Helena, Montana

Kirsten H. Pabst, Missoula County Attorney, Jennifer Clark, Deputy
County Attorney, Missoula, Montana

Defendant's Attorney:

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Missoula, MT - Criminal defense lawyer represented defendant Michael Joseph Howard with appeals the revocation of his suspended sentence by the Fourth Judicial District Court, Missoula County.

¶2 In 2011, pursuant to a plea agreement, Howard pled guilty to Aggravated Assault,
a felony, and Endangering the Welfare of a Child, a misdemeanor. The District Court
committed Howard to the Department of Corrections for fifteen years, with ten years
suspended, for the felony assault, to be served concurrently with a six-month sentence to
the county detention facility for the misdemeanor endangerment conviction.
¶3 Howard was initially placed at the Treasure State Correctional Training Center, and
later moved to the Great Falls Transition Center, but following a facility revocation for
program violations, he completed the unsuspended portion of his sentence at Montana State
Prison. Howard was released to serve the suspended portion of his sentence under
supervision by the Missoula Probation and Parole in December 2015. It was alleged that,
in October 2017, Howard began an eight-month period in which he failed to update his
address with the Sexual or Violent Offender Registry.
¶4 In April 2018, an informant turned over a phone to authorities, claiming it belonged
to Howard and contained child pornography. Detective Katie Peterson examined the
contents of the phone and found what she described as photos of nude children posed in
“adult erotica” positions, which she concluded was “very clearly child pornography.”
Peterson obtained a search warrant for Howard’s Google Photos account and, while waiting
for a return on the warrant, interviewed Howard on May 15, 2018, during which Howard
acknowledged that he “had some images on his Google Photos account.”
¶5 On May 21, 2018, the Missoula County Attorney filed a petition for revocation of
Howard’s suspended sentence. The petition alleged that Howard had violated condition
number eight of the Conditions on Probation or Parole, to act as a good citizen and comply
with all laws and ordinances, in two ways: by failing to update his address with the Sexual
or Violent Offender Registry (Count I); and by committing Sexual Abuse of Children
(Count II). Howard denied both violations.
¶6 Howard was criminally charged with failing to register on the same day as the
evidentiary hearing on the revocation petition, March 20, 2019. He had not yet been
charged with sexual abuse of children, although an investigation was ongoing.1
Peterson, who had experience investigating crimes involving child pornography, was the
only witness who testified. According to Peterson, Howard downplayed his foray into
child pornography, describing it as “kind of 80s, B movie, erotic stuff” that resembled the
work of controversial photographers Jock Sturgis and Sally Mann. However, Peterson
conducted limited research and could not verify the images on Howard’s phone came from

1 As explained by Howard, with docket citations, he was ultimately charged with sexual abuse of
children on May 17, 2019, and thereafter entered a global plea agreement wherein he pled guilty
to failure to register, and the sexual abuse charge was dismissed. At the close of evidence in the
revocation hearing, the District Court took judicial notice, without objection, of the State’s Motion
and Affidavit for Leave to File Information regarding Howard’s Failure to Register as a Sexual or
Violent Offender. This was the only time during the evidentiary hearing that Howard’s failure to
register was addressed.
those photographers, believing the images on Howard’s phone to be much more sexual,
and not artistic, in nature. On cross-examination, Howard’s attorney showed Peterson
photographs from these photographers’ portfolios, and Peterson opined that the photos
were “not at all” similar to the ones found on Howard’s phone, noting a “very, very clear
age difference” as well as a difference in the backgrounds and poses. She noted the
photographs on Howard’s phone were “very crudely done” compared to those found in the
portfolios, detailed the body figures and poses of the girls in those photographs, and
estimated that the nude girls depicted therein to be nine to eleven years old. Because
Peterson had determined the images on Howard’s phone to be child pornography, they
were considered contraband and copies were not introduced into the record.
¶7 The District Court found by a preponderance of the evidence that Howard had
committed non-compliance violations of the probationary conditions of his sentence.
Therefore, the Montana Incentives and Interventions Grid for Adult Probation & Parole
was not applied. The District Court revoked Howard’s suspended sentence and
resentenced him. Howard appeals.
¶8 The District Court’s statutory interpretation is a question of law that we review for
correctness. State v. Oropeza, 2020 MT 16, ¶ 14, 398 Mont. 379, 456 P.3d 1023 (citing
State v. Duong, 2015 MT 70, ¶ 11, 378 Mont. 345, 343 P.3d 1218). Whether a district
court was authorized to take a specific action is a question of law subject to de novo review.
State v. Graves, 2015 MT 262, ¶ 12, 381 Mont. 37, 355 P.3d 769 (citing State v. Stiffarm,
2011 MT 9, ¶ 8, 359 Mont. 116, 250 P.3d 300).
¶9 We review a district court’s decision to revoke a suspended sentence to determine
whether a district court’s “decision was supported by a preponderance of the evidence in
favor of the State, and if so, whether the court abused its discretion.” Oropeza, ¶ 14 (citing
State v. Goff, 2011 MT 6, ¶ 13, 359 Mont. 107, 247 P.3d 715). A district court abuses its
discretion when it “acts arbitrarily without employment of conscientious judgment or
exceeds the bounds of reason, resulting in substantial injustice.” State v. Burke, 2005 MT
250, ¶ 11, 329 Mont. 1, 122 P.3d 427 (citing State v. Weldele, 2003 MT 117, ¶ 72, 315
Mont. 452, ¶ 72, 69 P.3d 1162).
¶10 Was the District Court’s sentence revocation supported by sufficient evidence,
particularly, that Howard had violated the conditions of supervision by engaging in
a new criminal offense?
¶11 In Oropeza, we discussed revisions to the sentence revocation process enacted by
the Legislature in 2017, which “effectively bifurcated probation and parole condition
violations into either compliance or non-compliance violations.” Oropeza, ¶ 6 (citing
§ 46-18-203(7) through (12), MCA). Compliance violations “no longer result in automatic
revocation[,]” and the offender is first subject to the appropriate response under the
Montana Incentives and Intervention Grid (MIIG). Oropeza, ¶ 6. Non-compliance
violations include “a new criminal offense, possession of a firearm, harassing a victim or
someone close to the victim, absconding, and failure to complete sex offender treatment.”
Oropeza, ¶ 6 (citing § 46-18-203(11)(b)(i)-(v), MCA). Non-compliance violations are not
subject to MIIG procedures and may be addressed directly through revocation proceedings.
Oropeza, ¶ 7; § 46-18-203(7)(a), MCA. “At the hearing, the prosecution shall prove, by a
preponderance of the evidence, that there has been a violation” of a term or condition of
the sentence. Section 46-18-203(6)(a), MCA. Here, the State contended that Howard had
engaged in behavior constituting new criminal offenses, which are non-compliance
¶12 Howard first argues proof was lacking that he engaged in a new criminal offense
because “the petition to revoke was filed and the evidentiary hearing was conduct[ed]
before Howard was charged with either new offense” of failure to register or sexual abuse
of children, and that these offenses would be sufficient for revocation only “if they are
charged and a conviction is obtained.” Noting that the Legislature used the term “offense”
rather than “conduct” within § 46-18-203(11)(b)(i), MCA (2017), Howard argues this
Court needs to determine whether the statute now requires “strictly convictions” to permit
revocation “for new criminal activity,” or, at a minimum, introduction of sufficient
evidence at the revocation hearing to establish “that he committed a new criminal offense.”
In response, the State acknowledges that “[a] court is required to determine, based on the
evidence presented at the revocation hearing, whether the probationer has engaged in
conduct that constitutes a new offense,” but that a requirement of conviction would be
contrary to the lesser burden of proof in a revocation proceeding, and “would also be
impractical, given the significant delay that often occurs in criminal proceedings.”
¶13 Howard’s arguments largely fail to incorporate the fundamental nature of a
revocation proceeding. “[A] probation violation proceeding is civil” and is based upon
“later conduct that constitutes a violation of the conditions of a suspended sentence.” State
v. Roberts, 2010 MT 110, ¶ 13, 356 Mont. 290, 233 P.3d 324. “[R]evocation of a
suspended sentence indicates a determination by the court that the purposes of
rehabilitation are not being served by the suspension. . . . The fact that the later charges
were dropped after the revocation decision does not affect the character of the revocation
hearing.” State v. Watts, 221 Mont. 104, 107, 717 P.2d 24, 26 (1986) (affirming revocation
of sentence where kidnapping and assault charges that formed the basis of the revocation
petition were later dropped by the State). Thus, conduct by the respondent that supports a
new criminal charge or offense can also form the basis of the revocation petition, which
must be proven by a preponderance of the evidence to establish a violation, but which may
be demonstrated even if the criminal charges are dismissed. This is not the same proof
necessary to obtain a conviction of the offense. These principles were not revised by the
2017 legislation. See Clark Fork Coal. v. Tubbs, 2016 MT 229, ¶ 31, 384 Mont. 503, 380
P.3d 771 (“where a section of a statute has been amended but certain words have been left
unchanged, we must accord the untouched provisions the meaning they had when they
were originally incorporated into the statute”).
¶14 Howard next argues that the State did not introduce sufficient evidence to establish
that he had committed sexual abuse of children, and thereby violated the condition of his
sentence requiring that he comply with all state laws. He notes the State did not introduce
the photographs from his phone because they were considered contraband, and thus the
District Court “was not able to decide for itself whether the photographs were pornographic
or artistic in nature.” Consequently, Howard asserts, “[t]he only evidence on which the
district court could have based its decision to revoke [his] suspended sentence for
committing the new offense of sexual abuse of children was Detective Peterson’s personal
assessment that these photographs were pornographic and not artistic in nature.”
¶15 Section 45-5-625(1)(e), MCA, provides that “[a] person commits the offense of
sexual abuse of children if the person . . . knowingly possesses any visual or print medium,
including a medium by use of electronic communication in which a child is engaged in
sexual conduct, actual or simulated[.]” For purposes of the statute, sexual conduct is
defined as any “depiction of a child in the nude or in a state of partial undress with the
purpose to abuse, humiliate, harass, or degrade the child or to arouse or gratify the person’s
own sexual response or desire or the sexual response or desire of any person.” Section
45-5-625(5)(b)(ii), MCA.
¶16 Detective Peterson, who had experience in the investigation of child pornography,
provided detailed and explicit testimony about the photographs she had discovered on
Howard’s phone. She testified the photographs were of children between the ages of “nine
and eleven,” that they were posed in “adult erotica” positions meant for “clear exhibition
of the genitals on the children,” and that Howard admitted that he possessed and had
accessed the photographs. Peterson related Howard’s explanations about the photographs,
such as his comment that he had “kept it pretty light as far as child pornography goes,” and
her strong contradiction to his expressed view that his photographs were similar to the
photographs taken by the photographers whose work Howard said he admired. The District
Court was able to witness Peterson’s review of photographs from these artists’ portfolios
and hear her differentiation of their work from the photographs found on Howard’s phone.
We conclude there was sufficient evidence for the District Court to determine the State had
proven by a preponderance of the evidence that Howard had committed sexual abuse of
children. The Rules of Evidence do not apply to revocation proceedings. State v. Pedersen,
2003 MT 315, ¶ 20, 318 Mont. 262, 80 P.3d 79 (citing In re Meidinger, 168 Mont. 7, 15,
539 P.2d 1185, 1190 (1975)). The proceeding was fundamentally fair, and the District
Court did not abuse its discretion. Peterson, ¶ 20.
¶17 Because we conclude the District Court did not err by determining that Howard
violated a sentencing condition by committing sexual abuse of children, we do not reach
the asserted violation of failing to register. “A single violation of the terms and conditions
of a sentence is sufficient to support a court’s revocation of that sentence.” State v. Cook,
2012 MT 34, ¶ 23, 364 Mont. 161, 272 P.3d 50 (citation omitted).

Outcome: Affirmed.

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