State v. Hamilton – 2009 MT 235

Around 2002, then 28 year old Neufeld began having sexual intercourse with then 13 year old K.B.  Neufeld videotaped himself with K.B. and photographed the girl in sexual poses and performing sexual acts.  K.B.’s father discovered some of the photos, contacted the police, and Neufeld was arrested.  He was charged with sexual intercourse without consent in state District Court, and with sexual exploitation of children, receipt of child pornography, and possession of child pornography in federal court.  He pled guilty to the federal charges of sexual exploitation of children and possession of child pornography, and received a sentencing enhancement because the offense involved the commission of a sexual act on a minor.

After his federal conviction, Neufeld moved to dismiss the state charges based on § 46-11-504(1), MCA, which provides in pertinent part:

When conduct constitutes an offense within the jurisdiction of any state or federal court, a prosecution in any jurisdiction is a bar to a subsequent prosecution if:

(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction:

The majority ruled that “the prohibited conduct in this case [sexual exploitation of children] necessarily included sexual intercourse with a minor.”  Neufeld, ¶ 17.  And that “under the facts of this case the offenses of sexual exploitation of children and sexual intercourse without consent are equivalent.”  Id. at ¶ 17.

Justice Rice concurred, noting his belief that only the sentencing enhancement triggered the provisions of § 46-11-504, MCA, arguing that the federal offense of sexual exploitation of children did not necessarily include sexual intercourse.