The state is asking the Montana Supreme Court to find an exception to a ruling by the nation’s high court and set a decades-old child rape case for trial, now that DNA evidence has surfaced.
The case stems from the night of March 20, 1987, when a man climbed through the bathroom window of a Billings home, went upstairs and raped an 8-year-old three times. A Billings teenager, Jimmy Ray Bromgard, was convicted of the crime and spent 15 years in prison before DNA evidence exonerated him in 2002.
In 2014, the state’s DNA bank got a hit on the evidence from the 1987 rape when a Meagher County man, Ronald Dwight Tipton, submitted a DNA sample as part of a drug possession case.
In November 2015, Tipton was charged with three counts of sexual intercourse without consent in Yellowstone County District Court.
Judge Mary Jane Knisely was scheduled to hear the trial in December, but Tipton asked the Montana Supreme Court to order the charges dismissed, arguing the statute of limitations and the retroactive clauses of the U.S. and Montana constitutions bar him from being prosecuted today.
In a brief submitted Monday, an attorney with the Montana Attorney General’s Office disputes that.
C. Mark Fowler, representing the state, said a law allowing for prosecution of violent sex crimes when DNA evidence surfaces after the statute of limitations expires should apply. The Montana law was passed in 2007, but Fowler and Knisely, the district court judge, argue the law was intended to apply retroactively, covering the 1987 rape.
Fowler also said trying the case wouldn’t violate Tipton’s retroactive ex post facto rights. The case is being tried under punishments laid out in 1987, and not under Jessica's Law, which was passed in 2007 and stipulates harsher penalties for child rape.
Evidence from the 1987 rape has been maintained and witnesses are still available. The only piece of evidence that was destroyed were fingerprints from the home, Fowler noted.
“The key piece of evidence is DNA, and that DNA is a match to Ronald Dwight Tipton,” Fowler wrote.
Fowler also asks the Montana Supreme Court to find an exception to a ruling the U.S. Supreme Court made in 2003, in a case called Stogner v. California.
In that case, the U.S. Supreme Court struck down a California law because it violated the constitution’s ex post facto clause. The law had extended the statute of limitations for sex crimes against minors.
Fowler is arguing the Montana law seeks to “resurrect” for prosecution a much narrower category of cases — unsolved sex crimes where a conclusive DNA match has been identified — than what the California law involved. The California law did not deal with DNA evidence.
Fowler stressed that the victim and her family had reported the rape immediately, and but for Tipton’s 2014 drug case, the child rape case might never have gotten a DNA hit.
“Fairness for the victim dictates that this case proceed to trial,” Fowler wrote.