No. 89-533
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff & Appellant,
v.
GERALD ROY THOMPSON,
Defendant & Respondent.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Judith Basin
The Hon. Peter J. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark Murphy, Assistant Attorney General, Helena,
Montana
Patti Powell, Assistant Attorney General, Helena,
Montana
Sarah Arnott, Judith Basin County Attorney,
Stanford, Montana
For Respondent:
Torger Oaas, Attorney at Law, Lewistown, Montana
Submitted on briefs: February 22, 1 9 9 0
Decided: May 24, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
On May 25, 1989, the defendant Gerald Roy Thompson was charged
with two counts of sexual intercourse without consent and one count
of sexual assault. Subsequently, Thompson moved to dismiss Counts
I and I1 of the information, those counts charging defendant with
sexual intercourse without consent. Thompson moved to dismiss
Counts I and I1 of the information on the specific ground that the
probable cause affidavit was insufficient. On September 1, 1989,
the District Court, Tenth Judicial District, Judith Basin County,
granted Thompson's motion and dismissed Counts I and I1 of the
information for lack of probable cause in the supporting affidavit.
The State now appeals the District Court. We affirm.
The State raised the following issue on appeal: Did the
District Court err when it granted defendant's motion to dismiss
Counts I and I1 of the information charging defendant with sexual
intercourse without consent for failure to state offenses?
The defendant, Gerald Roy Thompson, the principal and boys
basketball coach at Hobson High School, was accused of two counts
of sexual intercourse without consent, and one count of sexual
assault. This appeal only concerns the two counts of sexual
intercourse without consent. The information, filed with the
District Court, alleged the defendant committed the crime of sexual
intercourse without consent, and stated the following:
Count I
On or between September, 1986 and January, 1987 in Judith
Basin County, Montana the defendant knowingly had sexual
intercourse without consent with a person of the opposite
sex; namely Jane Doe, by threatening Jane Doe that she
would not graduate from high school and forced Jane Doe
to engage in an act of oral sexual intercourse.
Count I1
On or between February, 1987 and June, 1987 in Judith
Basin County, Montana the defendant knowingly had sexual
intercourse without consent with a person of the opposite
sex; namely Jane Doe, by threatening Jane Doe that she
would not graduate from high school and forced Jane Doe
to engage in act of oral sexual intercourse.
The affidavits filed in support of this information contained
facts and allegations supporting the two counts of sexual
intercourse without consent. In essence, they alleged that the
threats I1caused Jane Doe great psychological pain and fear."
The State contended that fear of the power of Thompson and his
authority to keep her from graduating forced Jane Doe into silence
until after she graduated from high school in June of 1987. On
November 25, 1988, Jane Doe filed a letter with the Hobson School
Board describing the activities against her by Thompson. After
investigations by both the school board and the Judith Basin County
prosecutorlsoffice, the prosecutor filed an information on May 25,
1989. The information charged Thompson with two counts of sexual
intercourse without consent, both felonies in violation of 5 45-
5-503, MCA, and with one count of attempted sexual assault, a
felony.
Defendant filed a number of motions, requesting, among other
things, a motion to dismiss Counts I and I1 of the information for
lack of probable cause in the supporting affidavit. The District
Court granted Thompson's motion, due to the fact the State failed
to meet the element of "without consent1'under 5 45-5-501, MCA.
I
Did the District Court err when it granted defendant's motion
to dismiss Counts I and I1 of the information charging defendant
with sexual intercourse without consent for failure to state
offenses?
We agree with the District Court that the facts in the
information, in regards to Counts I and 11, fail to state offenses.
The code of criminal procedures requires that an affidavit be filed
for application for leave to file an information. State v. Renz
(Mont. 1981), 628 P.2d 644, 645. The affidavit must include
sufficient facts to convince a judge that there is probable cause
to believe the named defendant may have committed the crime
described in the information. Section 46-11-201, MCA. If there
is no probable cause, the District Court lacks jurisdiction to try
the offense. State v. Davis (1984), 210 Mont. 28, 30, 681 P.2d 42,
43. This Court has held that a showing of mere probability that
defendant committed the crime charged is sufficient for
establishing probable cause to file a criminal charge. Judges,
when receiving probable cause affidavits, should use their common
sense in determining whether probable cause exists. Renz, 628 P.2d
at 645; State v. Hamilton (1980), 185 Mont. 522, 532, 605 P.2d
1121, 1127, cert. denied 447 U.S. 924 (1980); State v. Miner
(1976), 169 Mont. 260, 264, 546 P.2d 252, 255.
The allegations in the affidavit, however, do not indicate a
probability that Thompson committed the crime of sexual intercourse
without consent.
Thompson was charged with two counts of alleged sexual
intercourse without consent under 5 45-5-503, MCA. Section 45-5-
503, MCA, states the following:
A person who knowingly has sexual intercourse without
consent with a person of the opposite sex commits the
offense of sexual intercourse without consent . ..
The phrase ttwithoutconsenttt--the
key element of the crime-
-has a very specific definition in Montana's criminal code. This
phrase is defined in 5 45-5-501, MCA, which states in pertinent
part:
As used in 45-5-503 and 45-5-505, the term Itwithout
consentttmeans:
(i) the victim is compelled to submit by force or by
threat of imminent death, bodily injury, or kidnapping
to be inflicted on anyone; . . .
Section 45-5-501, MCA, makes it clear that the element of
ttwithoutconsentt1is satisfied if submission of the victim is
obtained either by force or by threat of imminent death, bodily
injury , or kidnapping. other circumstances relating force
or threat eliminate consent under the statute.
Thompson challenged the probable cause affidavit in the
District Court, contending it failed to state any fact or
circumstance showing that Jane Doe's submission to an alleged act
of sexual intercourse was obtained by force or by any of the
threats listed in 5 45-5-501, MCA. In contrast, the State argues
that Thompsontsactions constitute sexual intercourse through force
or threats. The District Court, in its opinion and order, agreed
with Thompsonls contentions, and found that the facts in the
affidavit supporting the information failed to show the element of
I1withoutconsent.I1 In reaching this conclusion, the District Court
first considered whether or not there were facts or circumstances
in the probable cause affidavit to indicate that submission to the
alleged act of sexual intercourse without consent was obtained Ifby
force.I1 In order to determine whether Thompson forced Jane Doe to
submit to the sexual act, the District Court had to define the
phrase I1by forcef1since there is no definition contained in the
Montana Criminal Code. The District Court in its order defined
force as follows:
The word l1forcel1is used in its ordinary and normal
connotation: physical compulsion, the use or immediate
threat of bodily harm, injury.
Next, the District Court examined the information and probable
cause affidavit to determine if there were any facts or
circumstances constituting force. The District Court found that
"force was not alleged in the information nor in the affidavit in
support of it.
In contrast, the State argues the ~istrictCourt's definition
of force is too limited. The State, relying on Raines v. State
(Ga. 1989), 382 S.E.2d 738, 739, argues that intimidation and fear
may constitute force. The State also contends that Thompson, in
his position of authority as the principal, intimidated Jane Doe
into the alleged acts. Furthermore, the State argues the fear and
apprehension of Jane Doe show Thompson used force against her. We
agree with the State that Thompson intimidated Jane Doe; however,
we cannot stretch the definition of force to include intimidation,
fear, or apprehension. Rather, we adopt the District Court's
definition of force.
Other jurisdictions, such as California, have expanded the
definition of force, beyond its physical connotation. People v.
Cicero (1984), 157 Cal.App.3d 465, 204 Cal.Rptr. 582. The
California Supreme Court adopted the following reasoning to expand
the word force:
.. . the fundamental wrong at which the law of rape is
aimed is not the application of physical force that
causes physical harm. Rather, the law of rape primarily
guards the integrity of a women's will and the privacy
of her sexuality from an act of intercourse undertaken
without her consent. Because the fundamental wrong is
the violation of a woman's will and sexuality, the law
of rape does not require that llforcell cause physical
harm. Rather, in this scenario, "force1'plays merely a
supporting evidentiary role, as necessary only to ensure
an act of intercourse has been undertaken against a
victim's will.
Cicero, Cal .Rptr.
The ~aliforniaSupreme Court's definition of the word force
is too broad under Montana's definition of the crime. Until the
legislature adopts a definition for the word llforcell, must adopt
we
the ordinary and normal definition of the word as set forth
by the District Court.
The State in its information and accompanying affidavit
complain that Thompson deprived Jane Doe of consent to the sexual
act by threatening that he would prevent her from graduating from
high school. The threat required in 5 45-5-501, MCA, is "a threat
of imminent death, bodily injury, or kidnapping to be inflicted on
anyone . . ." The District Court found that something more than
a threat is necessary to satisfy the statutory requirement. A
threat one will not graduate from high school is not one of the
threats listed under 5 45-5-501, MCA. The State argues that the
definition "threat of bodily injuryn1 includes psychological
impairment. Unfortunately, the statute sets forth bodily injury,
not psychological impairment. A threat that eventually leads to
psychological impairment is not sufficient under the statute. The
statute only addresses the results of three specific kinds of
threats, and psychological impairment is not one of them.
The State urges this Court to adopt the definitions of threat
set forth in 5 45-2-101(68), MCA. Section 45-2-101(68), MCA, has
no application in regard to the crime of sexual intercourse without
consent. Section 45-5-501, MCA, plainly and succinctly lays out
the types of threats necessary to make the victim act "without
consent.
Under 5 45-5-501, MCA, the threat also must be of "imminent
death, bodily injury, or kidnapping. Thompson s threats cannot
be considered imminent. The alleged sexual act and threat occurred
in December of 1986. Jane Doe graduated from Hobson High School
in June of 1987. Clearly, Thompson's alleged threats were not
imminent.
Peppered throughout the State's brief is the contention that
"under Montana law the issue of consent is a fact question, and
therefore a question for the jury to decide." The State is
correct, the jury is the proper trier of facts in regard to issues
such as consent. However, in this case, the State's information
and probable cause affidavit have failed to set forth any facts or
circumstance to show that the alleged act of sexual intercourse
were within the statute defining the elements of the crime. So,
the issue in this case is not whether the jury was denied its role
as trier of the facts, but whether the State sufficiently set forth
facts or circumstances to show the element of "without consent."
The court properly granted defendant's motion to dismiss for lack
of probable cause.
This case is one of considerable difficulty for us, as indeed
it must have been for the District Court judge. The alleged facts,
if true, show disgusting acts of taking advantage of a young person
by an adult who occupied a position of authority over the young
person. If we could rewrite the statutes to define the alleged
acts here as sexual intercourse without consent, we would willingly
do so. The business of courts, however, is to interpret statutes,
not to rewrite them, nor to insert words not put there by the
legislature. With a good deal of reluctance, and with strong
condemnation of the alleged acts, we affirm the District Court.
Justice
f
We Concur: