No. 85-184
I N THE SUPREFE COURT O THE STATE O MONTANA
F F
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS-
F A K GEORGE KESTNER, J R . ,
R N
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f F l a t h e a d ,
The H o n o r a b l e M i c h a e l Keedy, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Sherlock & Nardi; P a t r i c k D. Sherlock argued,
K a l i s p e l l , 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 , Helena., Montana
P a t r i c i a S c h a e f f e r a r g u e d , A s s t . A t t y . G e n e r a l , Helena
Ted 0 . Lympus, County A . t t o r n e y , K a l i s p e l l , Montana
Submitted: December 4 , 1 9 8 5
Decided: January 27, 1986
Filed:
C
Clerk
M r . J u s t i c e Frank B. Morrison, Jr. d e l i v e r e d t h e Opinion of
t h e Court.
Defendant Frank Kestner, Jr. appeals his November 1,
1984, j u r y c o n v i c t i o n i n t h e D i s t r i c t C o u r t o f t h e E l e v e n t h
Judicial District on two counts of sexual assault. We
r e v e r s e and remand f o r a new t r i a l .
O J a n u a r y 1 4 , 1984, d e f e n d a n t e x e r c i s e d a t Second Wind
n
Rec Center in K a - l i s p e l l , Montana, where h e was a member.
About 7:00 p.m., d e f e n d a n t went t o t h e p o o l a r e a t o s w i m l a p s
and soak i n t h e h o t t u b . Among numerous o t h e r s i n t h e p o o l
a.rea w e r e S . M. (Count I ) and C . B. (Count 11) , b o t h a g e 1 2 ,
and M. N. (Count 111) and R . L. (Count IV) , b o t h a g e 15.
A f t e r swimming f o r a w h i l e , S . M. and C . B. went t o soak
i n t h e hot tub. Defendant and s e v e r a l o t h e r s were a l r e a d y i n
t h e t u b , which was 6 ' 4 " i n d i a m e t e r and c o u l d h o l d up t o 1 2
people. S . M. s a t n e x t t o d e f e n d a n t , w i t h C . B. next t o her.
Both S. M. and C . B. t e s t i f i e d t h a t d e f e n d a n t was s t a r i n g a t
them w i t h "weird" eyes. S. M. felt a hand on h e r inner
thigh, which s h e b e l i e v e d t o be d e f e n d . a . n t l s , s o s h e jumped
out of t h e hot tub. S. M. having l e f t , d e f e n d a n t and C. B.
w e r e now s e a t e d n e x t t o e a c h o t h e r . C. B. t e s t i f i e d she then
f e l t something r u b b i n g h e r i n n e r t h i g h n e a r t h e e l a s t i c o f
her swim s u i t . A t f i r s t s h e t h o u g h t it was b u b b l e s from t h e
water j e t s , b u t t h e n r e a l i z e d it was t h e hand o f d e f e n d a n t ,
s o s h e jumped o u t , r a n o v e r t o S. M. and t h e y b o t h jumped i n
t h e swimming p o o l . S. M. and C . B. t e s t i f i e d t h a t defendant
was t h e o n l y one c l o s e enough t o have touched them i n such a
manner.
Defendant t e s t i f i e d t h e o n l y t o u c h i n g o f e i t h e r o f t h e s e
g i r l s t h a t he r e c a l l s was p u t t i n g h i s hand momentarily on C .
B.'s back to get her attention in order to strike up a
conversation. She t h e n junped from t h e t u b . Defendant g o t
out of t h e h o t t u b s h o r t l y t h e r e a f t e r a.nd went o v e r by t h e
s h a l l o w end o f t h e p o o l . H e saw C . B. and S . M. i n t h e pool,
jumped i n and from a d i s t a n c e o f a few f e e t t o l d C. B. she
was e x c e p t i o n a l l y beau.tifu1. Defendant had recently been
doing sketches and drawings, and testified that he was
interested i n C. B.'s beauty from a n artistic stand.point.
A l i t t l e while later, a s d e f e n d a n t was f l o a t i n g i n t h e
h o t t u b w i t h h i s l e g s o u t s t r e t c h e d , M. N. entered the tub,
and n o t seeing defendant's legs, s h e t r i p p e d and f e l l o n t o
him. M. N. t e s t i f i e d t h a t i n t h e p r o c e s s o f h e l p i n g h e r u p ,
defendant touched her buttocks and breasts. Defendant
t e s t i f i e d t h a t he was n o t aware h e had t o u c h e d h e r i n t h o s e
a r e a s , b u t i f h e had it was c e r t a i n l y u n i n t e n t i o n a l . M. N.
sat next t o defendant and felt a hand on h e r t h i g h , with
f i n g e r s rubbing h e r i n t h e vaginal a r e a . She moved away from
defendant, and then R. L. entered t h e pool, also tripping
over defendant's legs. R. L. testified that defendant
touched her on the breast as she got up, and that upon
s i t t i n g n e x t t o him, s h e f e l t d e f e n d a n t ' s hand on h e r i n n e r
thigh with his fingers rubbing her vaginal area. R. L.
g r a b b e d M. N. and t h e y jumped o u t o f t h e h o t t u b . Defendant
denied having any c o n t a c t w i t h R. L., e x c e p t t o h e l p h e r up
when s h e f e l l .
M. N. and R. L. jumped i n t o t h e p o o l , where a s h o r t t i m e
later they saw defendant swimming towards them, so they
jumped o u t q u i c k l y a n d went back t o t h e h o t t u b . In the hot
t u b , M. N. and R . L. o v e r h e a r d S . M. and C. B. discussing a
s i m i l a r i n c i d e n t , s o t h e y a l l went i n t o t h e d r e s s i n g room f o r
further discussion. The g i r l s d e c i d e d t o t e l l t h e c l e r k a t
t h e f r o n t desk about t h e i n c i d e n t s . A s they w e r e attempting
t o d o t h i s , d e f e n d a n t came t o t h e d e s k t o c h e c k o u t . A t the
same t i m e , one o f t h e g i r l s ' m o t h e r came i n , a n d upon f i n d i n g
out what had happened, threatened defendant. Defendant,
thereupon l e f t t h e r e c c e n t e r . The d e s k c l e r k informed t h e
g i r l s t h a t d e f e n d a n t had been a r e g u l a r f o r some t i m e , and
that their accusations were false. Sometime during the
e n s u i n g week, C. B. ' s mother phoned t h e p o l i c e and r e p o r t e d
what had a l l e g e d l y happened t h a t n i g h t .
On January 26, 1984, Officer Don Hossack of the
K a l i s p e l l P o l i c e Department o b t a i n e d s t a t e m e n t s from S. M.
and C . B. about t h e a l l e g e d i n c i d e n t s . A formal complaint
a l l e g i n g two c o u n t s o f s e x u a l a s s a u l t was f i l e d F e b r u a r y 3 ,
1984. The l a s t names o f M. N. and R. L. w e r e n o t o b t a i n e d
u n t i l l a t e r and t h e i r s t a t e m e n t s were t a k e n F e b r u a r y 3 , 1984;
two a d d i t i o n a l c o u n t s o f s e x u a l a s s a u l t were f i l e d a g a i n s t
d e f e n d a n t on F e b r u a r y 1 5 , 1984.
The trial was held October 30 and 31, 1984. Eight
witnesses t e s t i f i e d a t t r i a l : t h e v i c t i m s , M.N. ' s m o t h e r ,
O f f i c e r Hossack, defendant, and d e f e n d a n t ' s w i f e . The j u r y
r e t u r n e d a v e r d i c t o f g u i l t y on c o u n t s II and I V (C. B. and
R. I,.), and n o t g u i l t y on c o u n t s I and I11 (S. M. and M. N.).
Defendant was s e n t e n c e d t o t h r e e y e a r s on c o u n t 11, and f i v e
y e a r s on c o u n t I V , w i t h f o u r y e a r s o f t h e f i v e y e a r s e n t e n c e
suspended.
O appeal,
n defendant raises five issues; we find the
i s s u e s can be c o n s o l i d a t e d a s f o l l o w s :
(1) Whether t h e D i s t r i c t C o u r t e r r e d i n n o t g r a n t i n g t h e
d e f e n d a n t s e p a r a t e t r i a l s on e a c h o f t h e c o u n t s , o r i n t h e
a l t e r n a t i v e , c o n s o l i d a t i n g a l l o f t h e c o u n t s i n t o one c h a r g e .
(2) Whether t h e r e was s u f f i c i e n t e v i d e n c e t o send t h e
case to the jury and support a verdict of g u i l t y on two
counts.
( 3 ) Whether t h e D i s t r i c t C o u r t e r r e d i n i n s t r u c t i n g t h e
jury concerning t h e d e f i n i t i o n of sexual a s s a u l t .
Defense counsel filed a motion to consolidate all four
counts into one count, or in the alternative to allow
separate trials on each count.
Section 46-11-404(2), MCA, provides:
(2) The court in which the case is
triable, in the interests of justice and
for good cause shown, may in its
discretion, order that the different
offenses or counts set forth in the
indictment, information, or complaint be
tried separately or divided into two or
more groups and each of the groups tried
separately. An acquittal of one or more
counts shall not be considered an
acquittal of any other count.
Section 46-11-404(4), MCA provides:
(4) If it appears that a defendant or
the state is prejudiced by enjoinder of
related prosecutions or defendants in a
single charge or by joinder of separate
charges or defendants for trial, the
court may order separate trials, grant a
severance of defendants, or provide any
other relief as justice may require.
The district judge denied the motion to grant separate
trials for each count, finding that judicial economy favored
a single trial and that defendant had made no showing of
prejudice by the joinder of all counts for trial. A rea-ding
of the record supports the district judge's ruling and
reveals no showing of prejudice by defendant. In State v.
Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 305, this Court
upheld the district court's ruling that two separate charges
of deviate sexual conduct should be tried in one trial:
... We find no prejudice to defendant that
outweighs considerations of judicial economy.
Additionally, the State argues persuasively that
the effect of two separate trials on the young
victims of these crimes should be considered. Each
would potentially be a witness in both trials and
be compelled to appear and testify twice.
We find the Phelps rationale to be especially persuasive
in the present case where there were four young victims.
The district judge also denied defendant's motion to
consolidate the four counts into one count, and stated that
"would be tantamount to the outright dismissal of three (3)
such counts." A reading of S $ 46-11-404 (2) and (4), MCA,
shows the trial judge is granted discretion in whether to
consolidate counts or order separate trials. There has been
no showing the trial judge abused his discretion, nor that
defendant suffered prejudice. Had the counts been separately
tried defendant would have risked introduction of the other
charges as similar acts or similar crimes evidence.
Defendant asserts there was insufficient evidence to
send the case to the jury and to support a guilty verdict on
two of the counts. We disagree. At the close of the State's
case, defense counsel moved that the charges be dismissed for
the following reasons: (1) there were others i n the hot tub
.
who could have touched the girls; (2) the girls did not see
defendant's hand on their thighs or vaginal areas; and
(3) the State did not show defendant knowingly assaulted
these girls to satisfy his sexual desires. The district
judge denied the motion. We find substantial evidence in the
record to uphold the district judge's decision to send the
case to the jury.
C. B. and R. L. testified that only defendant was near
enough to touch them while in the hot tub, and although they
couldn't see defendant's hands, they knew it was his hand
touching them in the water. Defendant admitted that M. N.
and R. L. tripped and fell onto him, and that he patted C. B.
on the back and later told her she was exceptionally
beautiful. C. B. and R. L. both testified defendant rubbed
them on or near the vaginal area.
The testimony of the girls is substantial evidence
creating a jury issue. Credibility of defendant and the
girls was for the jury to decide. A directed verdict or
motion to dismiss should only be granted where there is no
substantial evidence on which a jury could base a conviction.
State v. Doney (Mont. 1981), 636 P.2d 1377, 1381, 38 St.Rep.
1707, 1711.
Defendant also argues the State presented no evidence
that he knowingly assaulte6 the girls to satisfy his sexual
desires. We agree with the State that the girls' testimony
is substa.ntia1 evidence from which to infer defendant's
intent. Intent is a fact question for the jury, and it is
well-settled that the jury may infer intent from defendant's
acts. State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d
1009, 1015.
Finally, defendant asserts the District Court erred in
instructing the jury concerning the definition of sexual
assault. Specifically, defendant argues jury instruction no.
11, taken from State v. Weese (Mont. 19801, 616 P.2d 371, 37
St.Rep. 1620, gives an overly broad meaning to the sexua.1
assault statute, S 45-5-502, MCA. Instruction no. 11 given
to the jury reads as follows:
The term "sexual or other intimate parts
of another" is intended to be given broad
application and is not intended to
restrict the crime to a touching of the
genitalia or female breast and includes
intimate impositions upon the victim.
[Instruction No. 11; State v. Weese.]
The trial transcript shows that defense counsel objected
to this instruction, and argued that the Weese instruction
did not apply to the facts of this case.
In Weese, the defendant rubbed the chest and belly of a
9 year old girl, and offered her money so that he could
continue. The district judge found no evidence of sexual
contact and dismissed the sexual assault charge. This Court
reversed the dismissal and found the defendant ' s conduct
amounted to prohibited sexual contact. In discussing S
45-5-502 (I), MCA, we said:
It appears to us that the policy behind
our sexual assault statute is to
criminalize and punish sexual or intimate
impositions that do not inv01~7e
penetration /cf. section 45-5-503 (sexual
intercourse without consent) and 45-5-505
(deviate sexual conduct)/ ; but which
express a societal concern for such
impositions because they provoke outrage,
disgust or shame in the victim. The
enhanced punishment for this offense when
committed on a victim less than 16 years
old by an offender 3 or more years older
indicates an increased legislative
concern for child victims.
The Commission Comment to the sexual
assault statute bears out this
legislative purpose. To like effect, see
Model Penal Code, section 207.6,
Comments.
Use of the terms "sexual or other
intimate parts" indicates that the
legislature did not intend or restrict
the crime to touching of the genitalia of
either sex or a touching of a female's
breast, but instead intended to give the
terms a broader application. In keeping
with the focus of sexual assault statutes
on the outrage, disgust or shame
engendered in the victim, other courts
have held that the term "intimate parts"
in such statutes include the buttocks (In
the Matter of David M. (1978), 93 Misc.2d
545, 403 NYS2d 178) , the hips (Matter of
Welfare of Adams (1979), 24 Wash.App.
517, 601 P.2d 995), and the prepubsecent
chest of a 7-year old girl (State v.
Turner (1978), 33 0r.App. 157, 575 P.2d
1007).
In view of the purpose of the statute and
interpretations by other courts of the
term "sexual or other intimate parts" in
similar statutes, we construe the rubbing
of the belly and chest of a 9-year old
girl by an adult male for the purpose of
gratifying his sexual desires as
prohibited sexual contact within the
meaning of the statute. Here the fact
that defendant lifted the girl's shirt to
make the contact and offered her money to
be allowed. to continue is evidence that
his purpose was gratification of his
sexual desires.
616 P.2d at 373, 374, 3 7 St.Rep. at 1622, 1623.
The holding of Weese is that touching is not limited to
"sexual parts" and under the facts of the case a jury issue
was created under the statute. The court's language
utilizing the phrase intimate imposition is far too broad for
a jury instruction. "Intimate impositionr' can be construed
to encompass staring, or the touching of another's knee or
shoulder; the term shifts the focus from the defendant's
conduct to the sensitivity of the victim. Accordingly, if it
is unclear what type of contact constitutes sexual assault,
it becomes exceedingly difficult to determine whether a
defendant had any sexual intent underlying the contact.
Instruction no. 10 gave the definition of sexual contact
under S 45-2-101 (60), MCA:
Sexual contact means 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.
We find this statutory statement of what constitutes
sexual contact to be adequate without embellishment. Under
the facts of this ca-se, including testimony that defendant
had touched the breasts, buttocks, and vaginal areas of the
victims, there was a jury issue under the sta.tute. However
understandable the District Court's action in borrowing from
the Weese opinion, we cannot allow the conviction to stand
under an instruction that could punish innocent conduct.
Here the jury could have found an "intimate imposition" for
sexual arousal if they believed only the acts described by
the defendant took place. The instruction is overbroad and
requires a new tria.1.
We do not overrule Weese. Under the facts of Weese and
the facts of this case a jury issue was created under
S 45-2-101 ( 6 0 ) , MCA. However, nothing broader than the
s t a t u t e i t s e l f should be given a s an i n s t r u c t i o n .
W e r e v e r s e t h e judgment o f t h e D i s t r i c t C o u r t a n d remand
f o r a new t r i a l .
2r)i
W e concur:
ief Justice
/ -
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Justices C. .