No. 85-482
I N THE SUPREME COURT O THE STATE OF MONTANA
F
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
CARL ROGER LUNDBLADE,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County of Rosebud,
The H o n o r a b l e A. B. M a r t i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Moses Law Firm; J a y F. L a n s i n g , B i l l i n g s , Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
R o b e r t F.W. S m i t h , A s s t . A t t y . G e n e r a l , H e l e n a
J o h n S. F o r s y t h e , County A t t o r n e y , F o r s y t h , Montana
S u b m i t t e d on B r i e f s : Jan. 9 , 1986
D e c i d e d : A p r i l 2 5 , 1986
Filed:
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Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a conviction of sexual inter-
course without consent, after a jury trial. We modify the
judgment of the District Court for Rosebud County.
Defendant raises several issues on appeal, but we find
the following issue dispositive:
Was the evidence before the jury sufficient to sustain
defendant's conviction of sexual intercourse without consent?
Defendant and the victim, and their respective families,
were acquaintances. At the time of the incident, the vic-
tim's husband was hospitalized. Defendant testified that he
and another man went to the victim's trailer sometime between
10 p.m. and midnight to find out how the victim's husband was
doing and ask the victim if she wanted some firewood. The
victim was in a bedroom with two of her sleeping children
when the visitors arrived. Defendant maintains that she
invited him in, and that he and the victim engaged in consen-
sual sexual acts in the bedroom until she became aware of the
other man's presence, at which time she became hysterical.
The victim contends that she awoke to find defendant perform-
ing oral sex on her, and that after a struggle, he left and
she went to the police.
Defendant was first tried before a jury on this charge
in May 1984. His conviction was overturned by this Court.
State v. Lundblade (Mont. 1984), 691 P.2d 831, 41 St.Rep.
2208. The grounds for that reversal were that his counsel
had not had adequate time to prepare for trial. A different
district judge presided over his second trial in April 1985.
This trial was also held before a jury. The defendant was
reconvicted at his second trial, and was sentenced to a term
of ten years at the Montana State Prison with three years
suspended.
Defendant was charged under S 45-5-503, MCA, sexual
intercourse without consent. The statute provides that "A
person who knowingly has sexual intercourse without consent
with a person of the opposite sex commits the offense of
sexual intercourse without consent." Sexual intercourse is
defined at § 45-2-101 (61), MCA, for purposes of this case as:
... penetration of the vulva ...
of
one person by any body member of another
person, ...Any penetration, however
slight, is sufficient.
Defendant argues that the elements of (1) lack of consent and
(2) penetration, were not proven. He moved the court for a
d-irectedverdict both at the close of the State's case and at
the close of trial. The court denied both motions.
Our standard of review on this issue is whether the
evidence, viewed in the light most favorable to the prosecu-
tion, is sufficient to permit any rational trier of fact to
find that the elements of the offense were established beyond
a reasonable doubt. Jackson v. Virginia (1979), 443 U.S.
307, 319, State v. Rodriguez (Mont. 1981), 628 P.2d 280, 283,
38 St.Rep. 578Fr 5781. "This familiar standard gives full
play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ulti-
mate facts." Jackson, 443 U.S. at 319.
The victim testified that she was sound asleep and did
not consent to sexual acts with defendant. Although the
defendant presented testimony which contradicted this part of
the victim's testimony, we conclude that a rational trier of
fact could properly resolve the conflicting testimony to find
that the element of lack of consent was proven beyond a
reasonable doubt. We therefore hold that there was suffi-
cient evidence of lack of consent to support the jury's
verdict.
The evidence as to penetration, however, does not meet
this standard. The only evidence which might be construed to
prove penetration is the victim's testimony that when she
awoke, the defendant was "performing oral sex on me" and that
"I was laying down and he had his arms over my legs and his
head between my legs." She was not asked to explain exactly
what she meant by these statements. While we recognize that
this is a delicate subject, that does not eliminate the
requirement that the State prove each element of its case
beyond a reasonable doubt. Our review of the victim's testi-
mony in the light most favorable to the prosecution does not
permit a conclusion that penetration of the vulva, no matter
how slight, was established beyond a reasonable doubt.
Because proof of penetration is a statutory requirement, we
must conclude that the prosecution failed. to prove a critical
element of the offense of sexual intercourse without consent.
We are therefore required to reverse defendant's conviction
of sexual intercourse without consent. Unfortunately this
establishes that the State failed to carefully examine and
prove each required element of the criminal offense charged.
If in fact there was no evidence of penetration available,
then a lesser offense should have been charged. On the other
hand, if there was evidence of penetration, it was required
to be presented in order to establish the charged crime.
We must conclude that it would be improper to remand the
case for retrial on the charge of sexual intercourse without
consent. The State had its opportunity to prove its case and
has failed to do so. Under tha.t circumstance, it would be a
violation of the constitutional protection against double
jeopardy if we remanded for new trial on the same charge.
State v. Furlong (Mont. 1984), 690 P.2d 986, 990, 41 St.Rep.
2096, 2101.
Because of our reversal of the conviction on the charge
of sexual intercourse without consent, it is not necessary
that we consider the issues of the district court's refusal
to give the Smith instruction or alleged due process viola-
tions in the sentence imposed.
Section 46-20-703, MCA, sets out the actions we may take
on review of a criminal appeal. Subsection (3) provides that
we may "reduce the offense of which the appellant was con-
victed to a lesser included offense." Although defendant was
not charged with sexual assault, the jury was instructed on
sexual assault as a lesser included offense to sexual inter-
course without consent. Neither side objected to this in-
struction. The elements of sexual assault, as set forth at
5 45-5-502, MCA, are 1) knowingly or purposefully subjecting
another 2) not one's spouse to 3) sexual contact 4) without
consent. Sexual contact is defined at S 45-2-101(60), MCA,
as "any touching of the sexual or other intimate parts of the
person of another for the purpose of arousing or gratifying
the sexual desire of either party." The record contains
evidence establishing all of the elements of sexual assault.
It was undisputedly established at trial that defendant's
acts were done knowingly. That defendant and the victim were
not married to each other is established by the testimony of
both. The element of sexual contact is established by the
victim's testimony that defendant had his arms over her legs
and his head between her legs and that he was performing oral
sex on her. The 'without consent' element is discussed
above. Defendant's own testimony establishes that the pur-
pose of the acts was arousal or gratification of sexual
desire. We t h e r e f o r e modify t h e judgment by r e d u c i n g t h e
o f f e n s e o f which d e f e n d a n t i s g u i l t y t o s e x u a l a s s a u l t .
This c a u s e i s remanded t o t h e d i s t r i c t c o u r t f o r t h e
e n t r y o f a judgment f i n d i n g t h e d e f e n d a n t g u i l t y o f t h e crime
o f s e x u a l a s s a u l t and f o r r e s e n t e n c i n g f o l l o w i n g t h e e n t r y of
judgment .
W e Concur:
Mr. Justice Frank R . Morrison dissents as follows:
I respectfully dissent to that portion of the majority
opinion which allows entry of judgment finding defendant
guilty of sexual assault without benefit of a jury trial.
This defendant has been twice convicted of sexual
intercourse without consent. There is absolutely no evidence
of penetration. The district court should have directed a
verdict in favor of the defendant at the conclusion of the
state's case.
Following the state's rest, the county attorney, in
arguing against a directed verdict in favor of defendant,
said:
She used the words sexual assault, but
she did testify on the witness stand that
there was penetration in response to my
question that he was licking her in the
vaginal area, and that she was awakened
a.nd it's a matter of record. The
testimony is that there was contact
between his tongue and her genital area.
This argument was not supported by the record. In fact,
the state's chief witness testified as follows:
Answer: Well, I was sleeping and all of a
sudden there was this man between my legs
and -- you know, performing oral sex on
me, and I said, "who is it", and he said,
"it's me", and then I said, "well, what
do you think you're doing", you know, and
I was -- I was really -- I was really
shocked and hurt and scared and he was
saying things to me like, "oh, lie down,
you'll enjoy this", and this kind of
crap, and then --
THE COURT: Can you speak up please, so we
can all hear you.
A. He was then -- he was pulling down my
panties and I was -- I had been -- I was
laying -- I had been laying down, and I
was sitting up and pulling my panties up
and I started cussing at him and that
sort of stuff, and I told him that he was
really disgusting and -- and he said --
he said, "you don't understand Mary, I
love you", and I just started cussing at
him some more, and then he said, "well, I
only came over here to check if you
needed some firewood and to find out how
Joe was doing."
The witness gave no other testimony with respect to
sexual intercourse or sexual assault.
The county attorney failed to ask any question of the
witness which would. indicate contact between the defendantfs
tongue and the witness's vaginal area. The only evidence
given by the witness was that defendant was performing oral
sex on her but she gave absolutely no testimony about what
this meant. In absence of some explanation there would have
to be a very well defined and understood meaning for the
term. There is not.
I note in passing that the testimony of defendant and
Steve Knight appears more credible than that of the state's
witness. However, the jury apparently chose to believe the
state's case and the weight of the testimony necessarily
resides with the jury.
Nevertheless, I agree with the majority opinion that
there is absolutely no evidence to take this case to the jury
on the crime charged. The crime of sexual assault was not
charged against the defendant but with the consent of
defendant's counsel, the court instructed the jury on sexual
assault. Apparently, defense counsel mistakenly thought that
sexual assault was a lesser included offense. It is not.
The majority opinion correctly notes that the elements
of sexual assault include "touching of the sexual or other
intimate parts of the person of another for the purpose of
arousing or gratifying the sexual desire of either party."
This is an element not required for conviction of the crime
charged. Sexual intercourse without consent simply requires
proof of knowledge or purpose, "penetration of the vulva",
and lack of consent. There are no other elements.
Therefore, sexual assault is clearly not a lesser included
offense.
In view of the fact that defense counsel encouraged the
court to give an instruction on sexual assault, defense
counsel could not now object to the giving of the
instruction. The weakness with the majority's position is
that the jury, in convicting defendant of sexual intercourse
without consent, did not find the necessary elements for a
conviction of sexual assault. The majority seems to gloss
this over by finding that the necessary gratification is
present in the defendant's testimony. However, the jury
apparently chose not to believe any of the defendant's
testimony but rather chose to believe that of the state's
witness.
I know of no case supporting an appellate court entering
iudgment of conviction in the absence of a jury finding the
essential elements of the crime. Had the jury improperly
convicted defendant of sexual intercourse without consent the
appellate court could enter a judgment of conviction on a
lesser included offense. The appellate court could enter
such a judgment because the elements of the lesser included
offense would all have been found by the jury in finding
defendant guilty of the more serious offense. That cannot be
done in this case because the elements for proving sexual
assault are different than for proving sexual intercourse
without consent.
I am at a loss to understand the county attorney
charging sexual intercourse without consent where there was
absolutely no evidence of penetration. If this case was to
he prosecuted it should have been prosecuted as a case of
sexual assault.
This Court should dismiss the charge of sexual
intercourse without consent. Jeopardy has attached. The
defendant should be released.