Distinct Penetrations, Distinct Crimes: State v. Foster Establishes Clear Test for Multiple Sexual-Offense Charges and Limits on Presence-of-Defendant Error

Introduction

State v. Donald Edward Foster, 2025 MT 132, presented the Montana Supreme Court with two recurring but unsettled criminal-procedure problems:

When a single night’s episode of sexual violence contains several different penetrations, may each act support a separate charge under the “same transaction” statute (§ 46-11-410, MCA) without violating double-jeopardy or lesser-included-offense rules?
Does a defendant’s temporary absence from an in-chambers conference dealing with newly discovered evidence require automatic reversal, or can the error be deemed harmless when the defendant promptly ratifies the resulting decision?

The Court’s unanimous opinion, authored by Justice Katherine Bidegaray, affirms Foster’s multiple convictions and in doing so formulates a two-part precedent:

Separate sexual penetrations—distinguished by body part, location, or sufficient temporal break—constitute separate “transactions” permitting multiple charges.
Exclusion of a defendant from a pre-empanelment, in-chambers evidentiary discussion is a critical stage, but the error is harmless when the defendant is immediately informed, consents, and no prejudice materialises.

Summary of the Judgment

Foster was convicted of five sex-offense counts (three completed, two attempted) plus two aggravated kidnappings arising from one continuous ordeal inflicted on his adoptive mother and 18-year-old guest. On appeal he argued:

Ineffective assistance of counsel (IAC) for failing to object that the five sex counts were impermissibly multiplicative under § 46-11-410, MCA.
Plain-error violation of his due-process right to be present at the in camera discussion of a cellmate’s letter alleging admissions.

The Supreme Court affirmed:

Counsel was not ineffective; each charge required proof of a distinct act (oral, anal-1, anal-2, attempted vaginal-1, attempted vaginal-2) and was therefore separately chargeable.
The in-chambers conference was indeed a “critical stage” but Foster’s prompt ratification and the State’s later decision not to use the contested evidence rendered the omission harmless; no structural error occurred.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984): Governs IAC claims. The Court applied the two-prong (deficient performance & prejudice) and disposed of Foster’s claim at the first prong.
State v. Geren, 2012 MT 307: Recognised that separate “transactions” can occur with the same victim in the same place when factually distinct. Foster relies heavily on Geren to validate multiple charges.
State v. Valenzuela, 2021 MT 244: Reiterated the exceptions in § 46-11-410, MCA and the test for included offenses.
State v. Charlie, 2010 MT 195: Addressed a defendant’s absence from a conference on newly discovered evidence; held error harmless after post-event ratification. Charlie is the linchpin for the Court’s harmless-error analysis.
State v. Zitnik, 2023 MT 131 & State v. Bird, 2002 MT 2: Both emphasise the right to presence; but Zitnik labelled an ex-parte jury communication structural, whereas the Court distinguished Foster’s case as pre-empanelment and curable.
State v. Carney, 219 Mont. 412 (1986): Cited to show jeopardy attaches only when the jury is impaneled and sworn.

Legal Reasoning

1. Same-Transaction / Multiple-Charge Issue

The Court parsed § 46-11-410, MCA: multiple charges from the same transaction are allowed unless one offense is included in the other.
“Sexual intercourse” is statutorily defined by the penetrated body part (§ 45-2-101(68)). Thus, oral, anal, and vaginal penetrations are separate factual elements.
Evidence showed clear breaks—different rooms (basement bedroom, upstairs bedroom), intervening threats, positional changes—creating discrete acts.
Because each count required proof of a different penetration (or attempt) no charge was lesser-included; therefore counsel had nothing valid to object to and was not deficient.

2. Presence-of-Defendant Issue

The in-chambers meeting concerned newly discovered evidence and potential continuance, satisfying the “reasonably substantial relation” test for a critical stage.
No express waiver preceded Foster’s exclusion, so a right was violated.
Applying Charlie, the Court conducted harmless-error review: Foster was informed immediately, explicitly agreed to the continuance, and ultimately the evidence at issue was never offered. Thus no actual prejudice.
Because the jury had not yet been sworn, double-jeopardy arguments predicated on mid-trial continuance failed.

Impact of the Decision

The opinion crystallises two doctrinal points likely to influence Montana litigation and perhaps other jurisdictions with similar statutes:

Charging Strategy in Sexual-Offense Cases: Prosecutors now have clear authority to charge each distinct penetration— even within a short temporal window—as a separate felony. Defense counsel must prepare for multiplicative exposure and cannot rely on the “same transaction” defence absent near-simultaneous, undifferentiated acts.
Narrowing Structural-Error Doctrine: Although the Court re-affirmed that an evidentiary conference is a “critical stage,” it refused to label the absence structural when subsequent ratification and non-use of the evidence neutralise prejudice. Trial judges may rely on this precedent to cure inadvertent absence errors through prompt on-the-record consultation.
IAC Jurisprudence: The decision underscores that counsel’s performance is judged against objective legal merit; failing to raise a futile multiplicity objection is not deficient. Expect appellate courts to cite Foster when disposing of similar IAC claims at Strickland’s first prong.

Complex Concepts Simplified

“Same Transaction” (§ 46-11-410, MCA)
Montana allows prosecutors to charge every offense arising from “the same transaction,” but a defendant cannot be convicted of two crimes if one is wholly contained in the other (lesser-included). The Court holds that different penetrations require different facts, so they are not “included.”
Lesser-Included Offense
A crime is lesser-included when you can prove it with a subset of the facts needed to prove the greater crime. Because oral, anal, and vaginal penetrations involve distinct anatomical facts, proof of one does not prove the others.
Critical Stage
Any point in the proceedings where the defendant’s input could affect strategy or outcome (e.g., plea negotiations, evidentiary rulings, jury communications). Absence may be reversible error.
Structural vs. Harmless Error
• Structural: defects so profound that automatic reversal is required (e.g., no counsel, biased judge).
• Harmless: error occurred, but the appellate court is convinced beyond a reasonable doubt it did not influence the verdict.
Ineffective Assistance of Counsel (Strickland)
Two-step test: (1) Was counsel’s performance objectively unreasonable? (2) Did the error affect the outcome? Both must be proven for relief.

Conclusion

State v. Foster provides a pivotal clarification that separate anatomical penetrations—even within one uninterrupted period of captivity—constitute separate offenses under Montana law. This eliminates ambiguity for prosecutors and defense attorneys alike about the viability of multiplicity objections in sex-crime trials. Simultaneously, the Court tightens the boundaries of structural error by holding that a defendant’s brief, curable absence from a pre-empanelment conference is subject to—and here survived—harmless-error scrutiny. Together, these holdings strengthen doctrinal coherence in Montana’s criminal jurisprudence and serve as persuasive authority for other jurisdictions grappling with overlapping sexual-offense charges and presence-of-defendant errors.