IN THE SUPREME COIJRT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ALEXANDER COIJRVILLE,
Defendant and Appellant.
APPEAL FROM: The District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C.F. McNei3, Judge presidinq.
COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Polson, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Betsy Brandborg, Asst. Atty. General, Helena
Larry Nistler, County Attorney; Mark Stermitz, Deputy
County Attorney, Polson, Montana
5
Submitted: Jan. 12, 1 9 8 9
Decided: February
I
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Alexander Courville was convicted of aggravated bur-
glary and sexual intercourse without consent in the Twentieth
Judicial District, Lake County. Courville appeals the con-
viction of aggravated burglary.
The issues on appeal are stated as follows:
1. Whether the trial court erred by not directing a
verdict in favor of defendant on the aggravated burglary
charge; and
2. Whether the trial court erred by not allowing
defendant to introduce evidence at trial of the victim's p a . s t
crimes, wrongs and other acts?
We affirm.
T. B. was awakened in the upstairs bedroom of her home
at about 4:00 a.m. on the morning of August 22, 1987, by a
noise downstairs. She went downstairs in her nightgown and
found Courville in her house, sitting on her couch with his
shoes off. T. B. recognized Courville immediately because he
had been an acquaintance of the family for many years.
T. R . noticed that Courville was obviously upset and
appeared to have been drinking. He pleaded with T. B. to
stay and talk to him because he was upset. T. El. explained
to him that she was sick, she had been at the hospital earli-
er to get a shot of Demerol for her severe migraine headache,
she was tired from the drug and needed to go back to bed.
The trial testimony conflicted at this point as to whether or
not T. B. actually told Courville to get out of the house.
However, Courville stood up and began walking. T. B. assumed
he was walking toward the door to leave, and she went up-
stairs, returning to bed.
T. R . was awakened again in a short time by Courville
sittinq on her bed and shaking her awake. Her two-year-old
son was in bed with her. The testimony again conflicted at
this point as to where Courville was and what dialogue passed
between them. T. B. gave slightly different accounts of
this. She appeared confused at trial, and her memory was not
strong due to the ensuing events, her drowsiness, and the
effect of the drug.
However, T. B. testified that she turned her back to
Courville and dozed off again. She was awakened the next
time by Courville choking her and yelling at her. He choked
her several times and demanded that she strip so that he
could have sex with her. She refused and was choked again.
She testified that under fear for her life, she undressed.
She persuaded him not to have intercourse with her, but while
she was naked Courville fondled her entire body and put his
fingers in her vagina and rectum.
T. B. attempted to leave the bedroom for varying excus-
es, but Courville followed her through the house and twice
took her back to the bedroom to repeat this process. Final-
ly, at about 7 : 0 0 a.m. T. B. was able to get out of the house
with her son and another child she was babysitting, under the
excuse of needing to take the other child home to her mother
and needing to get on the road for a trip they had planned to
Glacier Park.
T. B. went straight to Vanessa Jones's house, the
mother of the child she was babysitting. Vanessa testified
that T. R . appeared on her doorstep about 7 : 0 0 a.m. with the
kids and was shaking and totally upset. Her throat, chest
and arms were covered with bruises. T. B. related the entire
story to Vanessa, who also knew Courville. Vanessa persuaded
T. R. to get some sleep at Vanessa's house and encouraged her
to turn Courville in to the police.
Five days later, Vanessa went to the Polson Police
Department with this story and gave a statement. to the
police. The next day, T. R . came in herself and related the
story. T. B. was still quite bruised and her injuries were
photographed by the investigating officer. However, T. B.'s
version of the events varied slightly at trial from the story
she related to the police that day.
Originally, T. B. gave a statement that she told
Courville several times to go home and get out of the house
and the next thing she remembered was waking up to him chok-
ing her. At trial, she cou3.d not remember specifically
telling him to leave, but rather just understood that he was
leaving when she told him she was sick and he got up and
walked toward the door. Additionally, T. B. later remembered
some intervening events in her bedroom between her falling
asleep the first time and when Courville first began choking
her.
However, she testified unequivocally that she did not
invite him into the house, nor the bedroom, she did not
encourage him, she did not want to have sex with him and she
did not consent to his acts. All accounts of the story
reveal the fact that Courville threatened her: "If you don't
do it, I'll kill you," and "Vanessa will find you dead here
tomorrow" and "you keep your mouth shut about this or I'll
come back and hurt you again."
Courville was charged by information on September 11,
1987, with sexual intercourse without consent and aggravated
burglary. Prior to trial, the State made motions in limine
to exclude evidence of T. B.'s sexual conduct and history of
her criminal record. Both motions were unopposed by defense
counsel and were granted by the judge. The jury returned a
verdict of guilty on both counts in February 1988, and
Courville was sentenced to twenty years with none suspended
for Count I, sexual intercourse without consent, and twenty
years with ten suspended on Count 11, burglary, with an
additional ten years for aggravated burglary, all to run
consecutively. Courville does not appeal his conviction on
Count I.
Courville appeals the trial court ruling that T. B.'s
character had not been put in issue by her own inconsistent
statements, thus prohibiting his use of "other bad acts"
evidence against her, and denyinq his motion for a directed
verdict on the burglary charge.
I.
Character evidence is generally inadmissible. Rul e
404 (a), M.R.Evid. However, Rule 608, M.R.Evid., does permit
character evidence under specific circumstances: when the
witness's character for truthfulness has been put in issue
and then only if the offered evidence goes to the witness's
veracity. But specific instances of misconduct of a witness
for the purpose of attacking the witness's credibility may
not be proved by extrinsic evidence. Rule 608 (b). Rule 609
specifically prohibits admission of evidence that a witness
has been convicted of a crime for purposes of attacking the
credibility of the witness. See for discussion, State v.
Sloan (Mont. 1989), P.2d , 46 St.Rep. 214, 216.
In this case, the defendant argued that the victim's
inconsistencies in some of the details of her story put her
character at issue. He thus wanted to prove she was untruth-
ful with testimony, some from other witnesses, that she had
been accused of stealing money from Vanessa at one time and
that T. B. herself had a criminal record. However, counsel's
efforts were misguided on this issue. This testimony is not
probative of truthfulness, and T. R.'s character was not put.
at issue. The judge properly ruled that the door was not
open to this sort of testimony.
We decline to rule that an inconsistent statement in a
victim's account of the sexual assault on her automatically
puts her character in issue, thus opening the door for evi-
dence of any past misconduct. The ruling of the trial court
to that effect was not an abuse of discretion. In State v.
Maxwell (1982), 198 Mont. 498, 647 P.2d 348, we held that
inconsistencies in a victim's statements regarding sexual
intercourse without consent do not necessarily render her
testimony inherently incredible. The jury is to remain the
fact finder and the proper body to weigh the credi-bility of
each witness:
Only in those rare cases where the story
told is so inherently improbable or is
so nullified by material self-contradic-
tions that no fair-minded person could
believe it may we say that no firm
foundation exists for the verdict based
upon it.
Maxwell, 647 P.2d at 351.
Under these circumstances, defense counsel is not
allowed to attack the victim's character in general, but
rather is allowed to impeach the witness' testimony based on
her prior inconsistent statements. Counsel impeached in this
case and the jury was left to weigh her credibility in light
of all disputed details.
The jury always has an easy remedy for incredible
testimony: they are free to reject it. Obviously, in this
case, the jury did not reject T. B.'s testimony. Rather, the
jury concluded that T. B. was worthy of belief despite her
inconsistencies.
Rulings on evidence are Left to the sound discretion of
the trial judge and will not be overturned on appeal absent a
showing that the trial judge abused his discretion. Cooper
v. Roston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978.
Courville has not made that showing. We affirm the lower
court's denial of "other bad acts" t-estimony.
Courville also contends that the State's case-in-chief
was deficient on the elements of burglary and, thus, it was
an abuse of discretion for the trial court not to direct a
verdict in favor of Courville on that count. We disagree.
Section 45-6-204, MCA, defines burglary as follows:
(1) A person commits the offense of
burglary if he knowingly enters or
remains unlawfully in an occupied struc-
ture with the purpose to commit an
offense therein.
* * *
Burglary is aggravated if the perpetra-
tor inflicts bodily injury to any person
during his entry, crime or flight
thereafter.
"Enters or remains unlawfully" is defined in
45-6-210, MCA, which reads in pertinent part: "A person.
enters or remains unlawfully ..
. when he is not licensed,
invited or otherwise privileged to do so."
This statute is worded in the disjunctive; thus evi-
dence that Courville either entered - remained unlawful-l-l.7
or
with an intent to commit an offense therein warrants denial
of his motion. The testimony at trial conflicted as to wheth-
er or not T. B. locked her door that night. However, it is
clear that Courville entered her house without permission to
do so. His unlawful entry coupled with his further felony
conduct satisfied the State's hurd-en of proving every element
of the burglary charge.
A verdict of acquittal may be directed in favor of the
defendant only if - evidence exists upon which to base a
no
g~i!t:~ verdict. See State v. Matson (Mont.. 1 9 8 7 ) , 736 P.2d
971, 44 St.Rep. 874; State v. Whitewater (Mont. 1981), 634
P.2d 636, 38 St.Rep. 1664; and 546-16-403, MCA. The forego-
ing testimony of T. B. regarding Courville's entry was suffi-
cient for the case to go to the jury. Courville's motion was
properly denied.
Courville further argued that even if he actually
entered unlawfully, he was invited to remain on the premises,
thus negating any criminal conduct. Trial testimony con-
flicted as to whether T. B. invited Courville to sleep down-
stairs on her couch that night because he was obviously upset
and needed a place to stay. T. B. testified that she did not
mind if he stayed on her couch but did not specifically
remember inviting him. Even had the jury found that T. B.
may have invited Courville to sleep downstairs on her couch,
that invitation certainly did not include going up to her
bedroom in order to choke and sexually assault her. Such
conduct exceeds any reasonable privilege and the trial court
properly let the burglary charge go to the jury for determi-
nation. See also State v. Manthie (1982), 197 Mont. 56, 641
P.2d 491; State v. Watkins (1974), 163 Mont. 491, 518 P.2d
259 ("when a person exceeds the limits of his privilege
.. . he thereby transforms his original invited presence
into a trespass that can form the basis of a burglary
charge. )
Based on the foregoing evidence, Courville fails to
convince this Court that the trial court committed error.
Judgment affirmed.
We concur: