A Havre man convicted of sexually assaulting a 7-year-old girl in his care will be sentenced for a lesser term because the prosecution failed to meet state requirements for a greater sentence, a district judge ruled.
Edward Harold Ghostbear, born in 1977, is scheduled to be sentenced next Monday.
The prosecuting attorney said the state Attorney General’s office will appeal the order.
A jury convicted Ghostbear of a felony count of sexual assault Oct. 30, after a five-day trial.
The prosecution had asked for a sentencing enhancement because the victim was younger than 16 and Ghostbear more than three years older. That would have required a sentence of life in prison or a minimum of four years and maximum of 100 years.
Without the enhancement, the maximum sentence is six months for a first offense, or five years for a third or subsequent offense. Ghostbear, who moved to Havre from South Dakota, has no previous conviction in Montana and is not listed as a sex offender in South Dakota.
State District Judge Dan Boucher ruled that Ghostbear cannot be sentenced under the enhancement because, as required by state law, the jury did not in a separate finding conclude that the facts proved Ghostbear was more than three years older than the victim.
“The undersigned is uncomfortable with the result arising from the legal conclusions herein and the fact that the defendant is not subject to a sentence he quite possibly deserves, ” Boucher wrote in his conclusion. “However, the rule of law and rights of citizens facing criminal prosecution must prevail. ”
Broadwater County Attorney Karla Mae Bosse, who started prosecuting the case while deputy Hill County attorney, said in a voicemail Monday night the state will appeal Boucher’s order.
Bosse could not be reached for additional comments this morning.
The jury found Ghostbear not guilty of felony intercourse without consent, but found him guilty of a felony count of sexual assault.
Ghostbear molested the 7-year-old daughter of his girlfriend while he babysat the child in the basement of the Branded By Fires church, where he was staying while facing a felony charge of assaulting his girlfriend.
He pleaded guilty in a plea agreement to that charge, and Boucher sentenced him to five years with the Montana Department of Corrections with two years suspended.
Ghostbear is incarcerated in the Hill County Detention Center pending sentencing on the sexual assault conviction.
Boucher wrote that state law requires the charging documents to state the facts allowing a sentencing enhancement and to cite the state code being referenced for the enhancement, and that the jury, after finding the defendant guilty, also must find in a separate finding that the facts allowing the enhancement have been proven.
While the prosecution, despite amending the charges twice, never stated in the charges that Ghostbear was three years older than the victim, it did reference the proper statute and did not use “unfair surprise” as the defense argued, Boucher wrote.
However, he wrote, Montana law does require that the jury find, on a separate form, that the enhancing fact — that the victim was younger than 16 and the offender three or more years older — is proven beyond a reasonable doubt.
The prosecution did not submit a proposed jury form, and accepted the proposed jury form submitted by the defense, which did not include that language, Boucher wrote.
The state argued that the defendant created an “invited error” by proposing a verdict form that left out pertinent requirements, and “proposed the verdict form he is now contesting, ” Boucher noted.
He pointed out that the defense counsel, Public Defender Dan Minnis, conceded that the verdict form did not include the information needed for a jury to find enhancement facts, but that that was a “strategic decision” made when Minnis foresaw the argument that sentencing enhancements would be unconstitutional, adding that the prosecution could have objected to the verdict form.
Boucher found for the defense.
“Not only did the state fail to submit a proper verdict form of its own that directs the jury to make the necessary enhancement fact findings, it agreed to the use of defense counsel’s ‘deficient’ verdict form, ” he wrote. “The state is therefore at least equally culpable for inviting the alleged ‘error, ’ and if the defendant must bear the consequences, then so must the state. ”