State of Montana v. Kenneth Raymond Tipton

Summary

The Montana Supreme Court reversed Kenneth Raymond Tipton’s convictions for indecent exposure to a minor and sexual abuse of children. The court held that trial counsel provided record-based ineffective assistance by failing to challenge the ex post facto application of the indecent-exposure statute to conduct occurring before its effective date. The court also held that the ex post facto application of the amended sexual-abuse statute required reversal and remand for a new trial rather than acquittal.

Holdings

1. Trial counsel provided record-based ineffective assistance by failing to object to the State's addition of the 2015 conduct to Count I under a statute that was not yet effective and imposed a substantially more severe penalty. The error prejudiced Tipton because the jury could have based the conviction on either the 2015 or 2016 incident, and the verdict did not identify which incident supported the conviction.
2. The ex post facto application of the amended statute required reversal of Counts II and III, but not acquittal. Because the convictions resulted from defective charging documents and an error in the proceedings, the proper remedy was remand for a new trial.

Questions Presented

1. Whether trial counsel provided ineffective assistance by failing to challenge the ex post facto application of the post-October 2015 indecent-exposure statute to the alleged July 2015 conduct.
2. Whether the ex post facto application of the October 2017 version of Montana Code § 45-5-625(1)(c) to the conduct underlying Counts II and III required acquittal or a new trial.

Disposition

reversed_and_remanded