State v. Davisson: No Automatic Reversal for Erroneous “Knowingly” Instructions in SIWOC Prosecutions

I. Introduction

In State v. J. Davisson, 2025 MT 275, the Supreme Court of Montana confronted a recurring problem in sexual offense trials: an incorrect jury instruction defining the mental state of “knowingly” in prosecutions for Sexual Intercourse Without Consent (SIWOC) under § 45-5-503, MCA.

The case arises from the conviction of Jay Dee Davisson for SIWOC involving a 15-year-old victim, T.K. The prosecution pursued two alternative theories: that T.K. was incapable of consent both because of her age (under 16) and because her intoxication rendered her physically helpless or incapacitated. At trial, the district court gave the jury the wrong statutory definition of “knowingly” – the result-based “high probability” definition – to which defense counsel stipulated.

On appeal, Davisson argued:

• that the erroneous mental-state instruction constituted plain error requiring reversal; and
• that his trial counsel rendered ineffective assistance by stipulating to the wrong instruction.

The Montana Supreme Court acknowledged that the instruction was legally incorrect and that it implicated Davisson’s fundamental right to a fair trial. Nevertheless, it affirmed the conviction, holding that under the evidence and arguments presented, the error did not prejudice Davisson and thus did not warrant relief under either plain error review or ineffective assistance of counsel standards.

The decision solidifies a significant doctrinal point: in SIWOC prosecutions, use of the wrong “result-based” definition of “knowingly” is not automatically reversible error; reversal depends on a showing of actual prejudice in the context of the trial record.

II. Summary of the Opinion

The Court, in an opinion by Justice McKinnon, reached three central conclusions:

1. The wrong “knowingly” definition was given. For SIWOC under § 45-5-503(1), MCA, the correct instruction is the conduct-based definition of “knowingly” (awareness of one’s conduct or of a circumstance), not the result-based “high probability” definition. The district court erred by instructing the jury that:

   “A person acts knowingly when the person is aware that there exists the high probability that a person's conduct will cause a specific result.”

2. No plain error relief. Although the erroneous instruction implicated a fundamental right and thus satisfied the first step of Montana’s plain error analysis, the Court held that Davisson failed to show prejudice: the evidence and arguments already required the jury to resolve the correct factual issue—whether he knew T.K. was incapable of consenting because of her age and incapacitation. The Court declined to exercise plain error review and refused to disturb the verdict.
3. No ineffective assistance of counsel. Applying Strickland v. Washington and Whitlow v. State, the Court held that, for the same reasons there was no prejudice under plain error review, Davisson could not establish prejudice under the second prong of the ineffective assistance test. Without prejudice, the Court did not need to reach whether counsel’s performance was deficient.

Accordingly, Davisson’s conviction for SIWOC was affirmed.

III. Factual and Procedural Background

A. Events Leading to the Charge

The facts relevant to the legal issues are stark and heavily supported by physical and testimonial evidence:

• In late July and early August 2020, 15-year-old T.K. and her friends, H.R. (also a minor) and 20-year-old Brylee Lewis, attended parties in Butte, Montana, where they consumed alcohol and marijuana.
• On July 27, 2020, the girls approached 45-year-old Jay Dee Davisson, father of a mutual friend, at a hotel in Rocker, to buy alcohol for them. Davisson purchased a 24-pack of alcoholic malt beverages.
• In the early hours of August 2, 2020, after another party, T.K. and Lewis left to avoid an ex-boyfriend and encountered Davisson, who again drove them to Rocker for alcohol and bought whiskey, which T.K. drank.
• T.K.’s memory of the drive back to Butte is fragmentary. She recalled moving to the front seat, feeling intoxicated, and ending up on Lewis’s lap. She remembered nothing else until waking up the following afternoon in Davisson’s hotel room.
• Lewis testified that she and T.K. became sexual in the car, that she digitally penetrated T.K., and that Davisson also digitally penetrated T.K. and attempted penile penetration. Lewis’s recollection was hazy due to her own intoxication; she was granted immunity for her conduct with T.K.
• Security footage showed Davisson returning to his Rocker hotel at 5:37 a.m. and, after moving his car multiple times, carrying a limp, barefoot T.K. into the hotel at 6:48 a.m. Her face and head were covered with a shirt; she appeared utterly physically helpless.
• Davisson later told law enforcement that T.K. appeared severely intoxicated, took off her clothes, and that he left her to sleep, leaving a note, money, and a toothbrush.

T.K. awoke around 2:00 p.m. in the hotel room:

• She was missing her pants and underwear and was wearing a shirt that was not hers.
• She felt confusion, fear, and physical soreness in her vagina and “bottom.”
• She called Davisson from the hotel phone, then left to seek help, ultimately going to a hospital at the urging of H.R.’s mother, Terri Jo.

At the hospital, a SANE nurse:

• documented fresh bruises on T.K.’s wrist and inner thigh;
• observed genital sensitivity consistent with recent sexual activity; and
• collected vaginal and anal swabs, both of which matched Davisson’s DNA, with an astronomically low probability of random match (1 in 15.6 nonillions).

Toxicology revealed THC and methamphetamine, but not alcohol, which the Court viewed as expected given the time lapse and did not treat as contradicting the evidence of heavy drinking. T.K. denied methamphetamine use.

B. The Investigation and Davisson’s Statements

Detective Joshua Stearns interviewed Davisson. According to Stearns’s testimony:

• Davisson claimed the girls had represented themselves as being in their twenties—at one point asserting T.K. said she was 20, and that her social media and a fake ID suggested she was 24.
• He stated that he believed T.K. was older than 16, based on her sexual behavior, intoxication, and maturity relative to Lewis.
• With respect to the August 2 incident, he admitted having sexual intercourse with T.K. in his car and ejaculating.

Significantly, Davisson did not testify at trial. His version of events reached the jury primarily through Det. Stearns’s summary of the interview—a point the Court notes he did not challenge on appeal.

C. The Trial, Jury Instructions, and Verdict

Davisson was charged with SIWOC under § 45-5-503(1), MCA. The State advanced a dual theory:

• that T.K. was incapable of consent because she was under 16 years old; and
• that T.K. was incapable of consent because her intoxication rendered her incapacitated and physically helpless.

Critical to the appeal, the parties stipulated to a jury instruction defining “knowingly” in result-based terms:

“A person acts knowingly when the person is aware that there exists the high probability that a person's conduct will cause a specific result.”

The jury found Davisson guilty of SIWOC. Through a special verdict form, it specifically found beyond a reasonable doubt:

• that Davisson committed SIWOC because T.K. was under 16 years of age; and
• that he committed SIWOC because T.K. was incapacitated.

On appeal, Davisson challenged the erroneous instruction under plain error and claimed ineffective assistance based on counsel’s stipulation to it.

IV. Legal Issues Before the Court

1. Issue One: Did the district court commit plain error, in violation of due process, by providing a jury instruction using an erroneous, result-based definition of “knowingly”?
2. Issue Two: Was Davisson’s trial counsel constitutionally ineffective for stipulating to the incorrect mental-state instruction?

V. Statutory and Doctrinal Framework

A. The SIWOC Statute and Incapacity to Consent

Section 45-5-503(1), MCA, provides:

“A person who knowingly has sexual intercourse with another person without consent or with another person who is incapable of consent commits the offense of sexual intercourse without consent.”

Under § 45-5-501(1)(a), MCA, a person is incapable of consent if the person is:

• “incapacitated”;
• “physically helpless”; or
• “less than 16 years old.”

Thus, the statute embraces both:

• Age-based incapacity (under 16); and
• Functional incapacity (incapacitated or physically helpless, typically from intoxication or other impairment).

B. Competing Definitions of “Knowingly”

Montana’s general definition statute, § 45-2-101(35), MCA, provides multiple contextual meanings of “knowingly.” Two are critical:

• Conduct-based/circumstance-based “knowingly” – applicable when the law concerns conduct or circumstances:

  A person acts knowingly “with respect to conduct or to a circumstance when the person is aware of the person's own conduct or that the circumstance exists.”

• Result-based “knowingly” – applicable when the law concerns a result:

  A person acts knowingly “with respect to the result of conduct when the person is aware that it is highly probable that the result will be caused by the person's conduct.”

In prior SIWOC cases, the Court has repeatedly held that the conduct-based definition is the correct one, because the crime centers on the defendant’s conduct of engaging in sexual intercourse and the circumstance that it is without consent or with an incapable person.

VI. Precedents Cited and Their Influence

A. State v. Gerstner (2009)

In State v. Gerstner, 2009 MT 303, 353 Mont. 86, 219 P.3d 866, the Court held that SIWOC is concerned with the “particularized conduct” of making sexual contact. Consequently, the conduct-based definition of “knowingly” is appropriate. This foundational holding directly informs Davisson’s conclusion that the district court erred by giving the result-based definition.

B. State v. Deveraux (2022)

In State v. Deveraux, 2022 MT 130, 409 Mont. 177, 512 P.3d 1198, the Court:

• reaffirmed that the conduct-based definition of “knowingly” applies to SIWOC; and
• confronted an erroneous jury instruction on the definition of “consent,” where the wrong statutory version—reducing the State’s burden by omitting a “force” requirement—was given.

Despite acknowledging error, the Court declined to exercise plain error review because the extensive trial evidence and arguments still required the jury to resolve the core factual question (whether Deveraux used force). Thus, the defendant could not show that the erroneous instruction produced a manifest miscarriage of justice.

Deveraux is the key template for the prejudice analysis in Davisson: an incorrect instruction, by itself, does not establish reversible error in the absence of prejudice.

C. State v. Rowe (2024)

In State v. Rowe, 2024 MT 37, 415 Mont. 280, 543 P.3d 614, the Court again stated that:

• “Knowingly,” under § 45-5-503(1), MCA, applies both to “sexual intercourse” and to “without consent,” and
• the correct definition is the conduct-based one from § 45-2-101(35), MCA.

Rowe reinforces the doctrinal baseline that the instruction given in Davisson was legally incorrect.

D. State v. Hamernick (2023)

State v. Hamernick, 2023 MT 249, 414 Mont. 307, 545 P.3d 666, is the case Davisson relied on most heavily. There, the district court:

• split the SIWOC offense into two elements (“has sexual intercourse” and “without consent”); and
• applied different mental-state definitions:
  • the correct conduct-based definition of “knowingly” to “has sexual intercourse,” and
  • the incorrect high-probability/result-based definition to “without consent.”

The defendant in Hamernick testified, admitting sexual intercourse but asserting he believed the encounter was consensual. The Court reversed the conviction, concluding that:

• the erroneous instruction improperly reduced the State’s burden; instead of having to prove that Hamernick knew the intercourse was without consent, the jury was told it was enough if he was merely aware of a high probability that the victim did not consent; and
• under the facts and defense theory, this difference was outcome-significant.

Hamernick thus stands as an example where a similar definitional error did require reversal because it directly undercut the defense theory and allowed conviction on a lower mens rea.

E. State v. Pierce (2025)

The Court also acknowledged its recent decision in State v. Pierce, 2025 MT 257, which Davisson cited in a Notice of Supplemental Authority. In Pierce:

• the defendant proposed the correct “knowingly” instruction;
• the State proposed the incorrect instruction; and
• the district court adopted the State’s incorrect version.

The Pierce record apparently involved preserved error (the Court “was not required to exercise plain error review”). In Davisson, by contrast, defense counsel stipulated to the incorrect instruction and raised no objection. The Court therefore analyzed the error under the more constrained plain error framework and, ultimately, declined to exercise that review.

F. Favel, Secrease, Whitlow, and Strickland

The Court’s standards of review and ineffective assistance framework came from:

• State v. Favel, 2015 MT 336 – confirming plain error is a “narrow exception,” applied sparingly when a fundamental right is implicated and the integrity or fairness of the proceedings is at stake;
• State v. Secrease, 2021 MT 212 – mixed questions of law and fact in ineffective assistance claims are reviewed de novo; and
• Whitlow v. State, 2008 MT 140, incorporating Strickland v. Washington, 466 U.S. 668 (1984) – setting out the familiar two-prong ineffective assistance test: deficient performance and prejudice.

VII. The Court’s Legal Reasoning in Davisson

A. Plain Error Review of the Erroneous “Knowingly” Instruction

1. The Plain Error Standard

The Court reiterated that plain error review is discretionary and “applied sparingly” (Deveraux, ¶ 21; Favel). Under the test:

1. The defendant must show that the asserted error implicates a fundamental right; and
2. The defendant must firmly convince the Court that failure to review the error would result in:
   • a manifest miscarriage of justice,
   • an unresolved question about the fundamental fairness of the proceedings, or
   • a compromise of the integrity of the judicial process.

2. Application to the “Knowingly” Instruction

The Court’s analysis unfolds in two steps:

1. Step One: Error and Fundamental Right.
   The Court held that the district court “indeed submitted the incorrect ‘result’ definition of ‘knowingly’” and should have given the conduct-based definition (¶ 20). Because mental state is an element of SIWOC and accurate instructions are crucial to the jury’s role, this error implicated Davisson’s fundamental right to a fair trial. The first prong of plain error analysis was therefore met.
2. Step Two: Prejudice and Manifest Injustice.
   The central question became whether the error prejudiced Davisson such that ignoring it would threaten the fairness or integrity of the proceedings. Here the Court distinguished Hamernick and aligned the analysis with Deveraux.

3. Distinguishing Hamernick

In Hamernick, the erroneous instruction directly intersected with the defendant’s consent-based defense:

• He admitted sexual intercourse but claimed he believed it was consensual.
• The improper “high probability” definition attenuated the State’s burden from “knew it was without consent” to “should have been aware of a high probability there was no consent.”
• Given this narrow factual dispute, the Court found genuine prejudice: the jury could have believed his testimony and still convicted under the lower standard.

In Davisson, by contrast:

• Davisson did not testify, so the jury did not hear a nuanced, consent-focused narrative from him.
• The prosecution’s theories were not centered on subtle issues of verbal or implied consent; they turned on:
  • T.K.’s age (15); and
  • her incapacity due to extreme intoxication and physical helplessness.
• Substantial, largely uncontroverted evidence showed:
  • Davisson’s prior interactions with T.K. and the other girls;
  • the level of T.K.’s intoxication; and
  • Davisson physically carrying an utterly limp T.K. into a hotel via a side entrance near dawn.

Given this record, the Court concluded the jury was necessarily focused on the crucial question: whether Davisson knew that T.K. was incapable of consent due to her age and incapacitation, not on a more attenuated “high probability” mental state. As in Deveraux, the error did not change what the jury had to decide.

4. Alignment with Deveraux: Error Without Prejudice

The Court explicitly adopted Deveraux’s approach: “an incorrect jury instruction on its own does not constitute prejudice” (¶ 22). Instead, the Court examined:

• the evidence of T.K.’s incapacity (surveillance video, physical condition, SANE findings, trial testimony);
• the evidence of Davisson’s knowledge (carrying a limp, unconscious minor into a hotel; his admitted sexual intercourse with her; testimony suggesting he knew her true age); and
• the arguments presented, which framed the case around her inability to consent, not around ambiguous consent in an otherwise functional adult encounter.

The Court emphasized:

“The evidence and arguments presented at trial required the jury to resolve whether Davisson was aware T.K. could not consent due to her age and intoxication.” (¶ 23)

And further:

“[T]he jury rendered its verdict based upon evidence presented that Davisson knowingly engaged in sexual intercourse with T.K. despite an awareness she was incapable of consent either due to her age or incapacitation.” (¶ 23)

The special verdict form—where the jury explicitly found Davisson guilty under both the age-based and intoxication/incapacity theories—reinforced this conclusion.

Thus, while the instruction was wrong in the abstract, the jury “still considered the right issue in spite of the wrong instruction” (Deveraux, ¶ 41). The Court was not “firmly convinced” that declining review would undermine fairness or integrity of the proceedings, and therefore declined to apply plain error.

B. Ineffective Assistance of Counsel

1. The Strickland / Whitlow Framework

Under Strickland as adopted in Whitlow:

1. The defendant must show deficient performance – counsel’s conduct fell below an objective standard of reasonableness under prevailing professional norms; and
2. The defendant must show prejudice – a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

If a claim fails on either prong, the Court need not address the other (Whitlow, ¶ 11).

2. Application to Davisson’s Counsel

Davisson argued his lawyer was ineffective for stipulating to the erroneous result-based “knowingly” instruction rather than requesting or insisting on the correct conduct-based definition.

The Court resolved the claim at the prejudice prong:

• It had already concluded under the plain error analysis that the erroneous instruction did not prejudice Davisson, because the evidence of age-based and intoxication-based incapacity—and of Davisson’s awareness—was overwhelming.
• Det. Stearns’s testimony included Davisson’s own admission to sexual intercourse, which Davisson did not challenge on appeal.
• Given “the substantial evidence presented at trial regarding T.K.’s incapacity,” the Court held Davisson could not “demonstrate a reasonable probability that, but for counsel’s error, the results of his trial would have been different.” (¶ 30)

Without prejudice, the Court did not need to decide whether stipulating to the wrong instruction fell below professional norms. The ineffective assistance claim therefore failed.

VIII. Impact and Future Implications

A. Reinforcing the Proper Mental-State Instruction for SIWOC

Davisson reaffirms, in line with Gerstner, Deveraux, and Rowe, that:

• SIWOC under § 45-5-503(1), MCA, is a conduct-and-circumstance-focused offense;
• “Knowingly” applies to both:
  • the act of engaging in sexual intercourse; and
  • the circumstance that it is without consent or with a person incapable of consent;
• Therefore, the conduct-based definition of “knowingly” (awareness of one’s conduct or of the circumstance) is the proper instruction; the result-based “high probability” instruction is wrong for SIWOC.

Trial courts and practitioners now have an even more robust line of authority warning against the use of the result-based definition in SIWOC cases.

B. No Per Se Reversal Rule for “Knowingly” Misdefinitions

The most significant doctrinal contribution of Davisson is its refusal to treat an erroneous “knowingly” instruction as structural or automatically reversible error. Instead, the Court insists on a:

• fact-intensive, record-based prejudice analysis – Was the jury effectively directed to decide the correct factual question despite the error?
• context-sensitive approach – In consent-focused “he said/she said” cases like Hamernick, the same error may be prejudicial; in cases like Deveraux and Davisson, where incapacity and knowledge are overwhelmingly supported, the error may be harmless.

Practically, this increases the burden on appellants: they must tie an instruction error to:

• the specific defense theory presented; and
• a plausible alternative verdict under correct instructions.

C. Interplay Between Plain Error and Ineffective Assistance

Davisson also illustrates how findings under plain error review can control ineffective assistance claims:

• Where an unobjected-to instruction is found non-prejudicial under plain error, it will often be impossible to establish Strickland prejudice from counsel’s failure to object or from stipulating to the instruction.
• This linkage forces defendants to show that the instructional error was both legally significant and outcome-determinative, regardless of whether framed as plain error or ineffective assistance.

Defense counsel should, nonetheless, object to or correct SIWOC mental-state instructions at trial. But Davisson warns that, in cases with overwhelming evidence of incapacity and knowledge, such errors may not produce reversals even when challenged later.

D. Clarifying the Role of Special Verdicts

The Court’s reliance on the special verdict—finding guilt under both the age-based and incapacitation theories—highlights the utility of special verdict forms in sexual offense cases:

• They clarify the jury’s reasoning and can bolster the appellate court’s confidence that a verdict rests on valid legal theories.
• They may also, however, make it harder for defendants to show prejudice from instructional errors, because the appellate court can see directly that the jury found multiple independent grounds for conviction.

IX. Complex Concepts Simplified

A. “Conduct-Based” vs. “Result-Based” “Knowingly”

Montana law uses “knowingly” in two main ways:

• Conduct-based knowingly: This applies when the law cares about what the person is doing or the situation they are in. A person acts knowingly if:
  • they are aware of what they themselves are doing; or
  • they are aware that a certain situation or circumstance exists.
  In SIWOC, this means:
  • the defendant knows he is having sexual intercourse; and
  • he knows that the other person is not consenting or is incapable of consenting (e.g., is unconscious, underage, or incapacitated).
• Result-based knowingly: This applies when the law focuses on the outcome of someone’s actions. A person acts knowingly if they are aware that it is highly probable their conduct will cause a particular result. This version is not appropriate in SIWOC because the law is not about “causing” a result (e.g., injury or death) but about engaging in prohibited conduct under certain circumstances.

B. Plain Error Review

Plain error review is a special, limited tool that allows an appellate court to consider serious errors even when:

• no objection was made at trial; and
• the issue is raised for the first time on appeal.

But it is used only when:

• a fundamental constitutional right is implicated; and
• ignoring the error would risk a miscarriage of justice or undermine the fairness and integrity of the system.

In Davisson, the Court said the error involved a fundamental right (accurate definition of an element) but did not threaten the overall fairness of the trial because the evidence overwhelmingly supported guilt under the proper legal standard.

C. Ineffective Assistance of Counsel

To prove ineffective assistance, a defendant must show:

1. Deficient performance – the lawyer made serious mistakes that a reasonably competent attorney would not have made; and
2. Prejudice – those mistakes mattered: there is a real (reasonable) chance the outcome would have been different without them.

Even if a lawyer arguably erred, if the evidence of guilt is overwhelming and the alleged error would not have changed the verdict, the court will not reverse the conviction.

D. Incapacity to Consent

Under Montana law, a person cannot legally consent to sexual intercourse when they are:

• under 16 years old; or
• incapacitated or physically helpless (e.g., unconscious, “blacked out,” or otherwise unable to understand or communicate consent).

In Davisson, the Court emphasized both:

• T.K.’s age (15), and
• her extreme intoxication and physical helplessness as shown by her limp state on video and her lack of memory.

X. Conclusion

State v. Davisson fits within and sharpens a developing line of Montana cases addressing mental-state instructions in SIWOC prosecutions. The Court unequivocally confirms:

• that SIWOC requires the conduct-based definition of “knowingly”; and
• that giving the result-based “high probability” definition is error.

Yet the decision’s lasting significance lies in its insistence that not every instructional error is reversible. Following Deveraux rather than Hamernick, the Court holds that appellate relief depends on a concrete showing of prejudice in light of the trial record. In cases where the evidence overwhelmingly demonstrates both incapacity (by age or intoxication) and the defendant’s awareness of that incapacity, a misdefinition of “knowingly” will not automatically justify reversal under plain error review or under the prejudice prong of ineffective assistance of counsel.

For trial courts, Davisson is a clear directive to use the correct conduct-based “knowingly” instruction in SIWOC cases. For defense counsel, it underscores the necessity of timely objections to faulty mental-state instructions and of building a record that shows how those errors realistically affected the verdict. For the broader law of sexual offenses in Montana, the case further entrenches a rigorous, evidence-driven approach to instructional error, placing the focus on whether the jury in fact decided the right question—even if it was told the law in imperfect terms.