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Supreme Court Rules In Cord Case

The Montana Supreme Court has addressed the trial of David Joseph Cord, who was sentenced in 2019 to 40 years in prison with 35 years suspended for the charge of felony sexual assault. The Supreme Court announced a reversed ruling.

A status hearing regarding the case is scheduled in Roosevelt County District Court on Wednesday, Nov. 16, to determine if the case will be retried.

The lack of a factual finding by the jury regarding the victim’s age was a key element in the Supreme Court’s decision.

The ruling noted, “Importantly, while the State’s theory of the case may have been that H.B. did not consent or agree to Cord’s sexual contact — a misdemeanor — the State charged Cord and obtained a conviction under a felony without the jury being instructed on age disparity — an additional element of the offense ... the jury was never instructed that age disparity was an element of the offense.

“We conclude that the failure to instruct on an element of the offense was a plain or obvious error that affected Cord’s constitutional right to due process and trial by jury and that the error prejudicially affected the fundamental fairness or integrity of Cord’s trial. We exercise plain error review and reverse Cord’s conviction for sexual assault.”

In the appellant’s reply brief, it was noted that the State was required to prove Cord acted knowingly, it was required to prove Cord knew H.B. was under the age of 16. The court’s failure to provide an instruction on the age disparity necessarily undermined the fundamental fairness of the proceedings.

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