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NO.

93-006

IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA, Plaintiff and Respondent, -vs.PAUL MYRHOW, Defendant and Appellant.

APPEAL FROM:

District Court of the Fifth Judicial District, In and for the County of Jefferson, The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD: For Appellant: Gregory A. Jackson; Jackson & Rice, Helena, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General; Paul D. Johnson, Assistant Attorney General Helena, Montana Joseph E. Thaggard, Special Deputy Jefferson County Attorney, Helena, Montana

Submitted on Briefs: Decided: Filed:

July 1, 1993 December 6, 1993

Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the District Court of the Fifth Judicial District, Jefferson County, the Honorable Frank M. Davis presiding. Defendant Paul Myrhow (Myrhow) appeals the denial of Myrhow

his motion to dismiss for failure to state an offense.

contends that the State of Montana (State) granted him immunity from prosecution for deviate sexual conduct in exchange for his cooperation affirm. The issues are: 1. What was the scope of the agreement not to prosecute in the investigation of another sex offender. We

between the State and Myrhow? 2. Did the State grant Myrhow statutory immunity from

prosecution for providing information which was used to convict a sex offender? 3. Did the District Court err by ruling that Myrhow could be

convicted for deviate sexual conduct occurring prior to June 28, 1989? During his school days in Boulder, Montana, Myrhow was one of several sexual abuse victims of Douglas Marks, a Boulder school teacher. In 1984, Myrhow, then 18, complained to Jefferson County sexual conduct

Deputy Sheriff, D.D. Craft, about Marks' deviate with Myrhow and other adolescents.

Later in 1984 or 1985, Myrhow

approached Jefferson County Sheriff, Tom Dawson, with the same complaint. By June 1989, Marks had not been charged with any crimes. At 2

that time, Myrhow met with Dr. Phillip Pallister, a family friend, revealing that Marks had molested him for years. Marks from molesting other juveniles. and Myrhow met with Allen LeMieux, He wanted to stop

On June 23, 1989, Pallister the former Jefferson County

Attorney and another of Myrhow's friends.

After discussing Marks,

they arranged a June 26th meeting with Rick Moe, the superintendent of schools. The meeting with the superintendent prompted a meeting

with Jefferson County Attorney, Richard Llewellyn, on June 28, 1989. Attending that meeting were Myrhow, Pallister, LeMieux and

Llewellyn. What occurred during the June 28, 1989, meeting is in dispute. It is clear from the record that Myrhow, Pallister and Lemieux informed Llewellyn of their frustration with the progress of the Marks flared. investigation. According to Pallister and Lemieux, tempers

Myrhow wanted Marks' deviate sexual activities stopped.

He revealed his involvement with Marks and agreed to cooperate in the Marks investigation. too, was an offender. Myrhow agreed to furnish Llewellyn with a list of twenty to twenty-five victims' other victims, provided that he first secured the However, Myrhow never revealed that he,

permission and provided that he be granted immunity.

Llewellyn denies that Myrhow ever mentioned the word *'immunity** at the meeting; however, Pallister, Lemieux and Myrhow testified that Myrhow asked for immunity and Llewellyn granted the request. Although the grant was not reduced to writing, Llewellyn informed Myrhow that Myrhow would not as bank robberies or murders. 3
be

excused for serious offenses, such

In exchange for furnishing the list of names, Llewellyn agreed not to prosecute Myrhow for certain activities which Llewellyn doubted were even offenses. Those activities were: Myrhow's 1) Myrhow's

deviate sexual conduct with Marks; 2)

voyeurism--covertly

watching Marks perform deviate sexual acts with another adolescent; 3) Myrhow's conspiring to kill Marks by blowing him up with dynamite; 4) Myrhow's threatening Marks with a pistol; and 5)

Myrhow's breaking into the elementary school and placing a tape recorder in the nurses' quarters to record conversations between Marks and other children. At that meeting, Pallister voiced his concern that the

Jefferson County Sheriff had not vigorously investigated Marks in the past. Therefore, Llewellyn suggested the investigation be

turned over to the Montana Attorney General's office.

At no point

during that meeting or at any other time did Myrhow ever mention that he, too, males. Llewellyn next contacted Sheriff Dawson, who arranged a had committed sexual offenses against adolescent

meeting between Myrhow and Dan Skuletich of the Montana Department of Justice Criminal Investigation Bureau. Myrhow provided

Skuletich with a list of about twenty names of persons who may have been sexually involved with Marks, most of whom were now adults. Myrhow never mentioned to Skuletich that he was, at that
time,

sexually abusing adolescent males or that he had been granted any type of immunity. According "very to Skuletich, August the investigation was progressing Dawson and Skuletich were

slowly" in

1989. 4

interviewing people from Myrhow's list, but most were now adults and the statute of limitations on them had passed. Therefore, they

narrowed the focus of their investigation to younger persons on the list. persons. Marks. In so doing, Dawson developed a l'profilelV for younger

He created an independent list of potential victims of To derive this list, Dawson perused school yearbooks and

coordinated with the Departments of Family Services and Social and Rehabilitation Services.

While investigating Marks, Dawson received a phone call from Wanda Stout of the Department of Social and Rehabilitation

Services.

She provided Dawson with J.P.'s name, which Dawson added Also on Dawson's independent list were C.G., J.G.

to his profile. and L.G.

Myrhow did not provide Dawson with any of these names.

On October 17, 1989, Dawson and Skuletich interviewed J-P., who related his belief that L.G. had been sexually involved with Myrhow. This was the first time that the investigators had reason

to suspect that Myrhow himself may have been offending. J.P. indicated that J.G. and C.G. might also be sexually involved with Myrhow. Skuletich then interviewed L.G., who confirmed that Myrhow According to speaking

paid him to have sex at Myrhow's residence in 1988. L-G., J.G. was also in the house at that
time.

Before

with J.P. and L-G.,

Skuletich had never heard of J.G. or C.G., from

Myrhow or anyone else. Later that day, Skuletich and Dawson sheriff's office.
met

with Myrhow at the

Skuletich advised Myrhow of the allegations Because neither J.P. nor

against him. L.G.

Myrhow abruptly departed.

were molested by Marks,

Skuletich and Dawson decided to 5

separate the Marks investigation from the allegations against Myrhow. Neither Skuletich nor Dawson ever interviewed J.G. or
C.G.

Myrhow contacted Dawson in February 1990 to express his disappointment at the slow pace of the Marks investigation. At that
time,

Myrhow mentioned that he "could have" had sexual Dawson asked if Myrhow wanted to "Irm not sure if I

relations with adolescent males.

discuss the subject, to which Myrhow replied, have immunity."

Dawson suggested that Myrhow get an attorney, and

never again discussed immunity with Myrhow. Ray Mills, J.G.'s grandfather, approached Myrhow in Helena,

Montana, asking Myrhow to meet with him to discuss some personal matters involving J.G. on December 1, 1989. had molested J.G. Mr. Mills met with Myrhow and Dr. Pallister At that time, Mr. Mills learned that Myrhow

Mr. Mills told Myrhow and Dr. Pallister about Myrhow responded by writing a letter to the in which he

J.G. ' s legal problems. Fifth Judicial

District Court on J.G.'s behalf,

accepted partial blame for J.G. 's conduct and admitted that he had sexually victimized J.G. Mr. Mills contacted Donna Hale of Lewis and Clark Human

Services in December 1990, telling her that Myrhow had sexually molested J.G. Undersheriff allegations Tim She relayed this information to Jefferson County Campbell. Dawson then informed Campbell of the which Dawson and Skuletich had Prior to this time, no

concerning

Myrhow,

separated from the Marks investigation. investigation was focused on Myrhow. Campbell interviewed J.G. and C.G. Myrhow molested them.

They related when and how

C.G. testified that Myrhow began molesting 6

him in 1988, when he was in the eighth grade, through May 1990. C.G. recalled having oral sex with Myrhow after February 19, 1990, the day on which Marks was arrested. It was stipulated that J.G.

would testify that his sexual activity with Myrhow ended by the late fall of 1989, termination date. The State charged Myrhow by amended information with eight counts of deviate sexual conduct without consent. MCA. See 5 45-5-505, although he was uncertain of the exact

Each count involved Myrhow's sexual contact with males under Counts I through V involved J.G. Counts VI

sixteen years of age.

through VIII involved C.G. The five counts involving J.G. dates: III, occurred on the following

Count I, May 20, 1989; Count II, early August 1989; Count early October 1989; Count IV, October 1989; and Count V, The remaining three

between December 15 and December 24, 1989.

counts involving C.G. occurred on the following dates:

Count VI,

between July 1 and August 31, 1989; Count VII, between December 1, 1989, and January 31, 1990; and Count VIII, between May 1 and May 27, 1990. Myrhow moved to dismiss all charges. He alleged that the

prosecution granted him immunity and agreed not to prosecute him in exchange for providing information in the Marks investigation. The

District Court held an evidentiary hearing on November 27 and 29, 1991. On March 18, 1992, the District Court entered its findings and an order denying Myrhow's

of fact and conclusions of law, motion to dismiss.

On May 22, 1992, Myrhow pled guilty to all charges pursuant to 7

a plea bargain, the terms of which are not stated in the record. The District Court rejected the plea bargain and granted Myrhowls motion to withdraw his guilty pleas. On October 28, 1992, Myrhow Myrhow

withdrew his motion and his guilty pleas were reinstated.

received a deferred sentence of six years, implementation of which is stayed during this appeal. I What was the scope of the agreement not to prosecute between the State and Myrhow? Myrhow and the State recognize that Llewellyn contractually agreed not to prosecute Myrhow for the criminal acts which Myrhow communicated to Llewellyn during the June 28th meeting. An

agreement not to prosecute is generally enforceable and is governed by principles of contract law. 1985), 756 F.2d 708. United States v. Irvine (9th Cir.

The agreement may be express or implied. Additionally, as here, the contract may be The language of the agreement must be Irvine, 756

Section 28-2-103, MCA. oral.

See

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