No. 88-547
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
ERIC HARRIS CATES,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial,
In and for the County of Musselshell,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ira Eakin arg.ued, Billings, Montana
For Respondent :
Won. Marc ~acicot, Attorney General, Helena, Montana
Paul D. Johnson argued, Asst. Atty. General, Helena
Mark Murphy argued, Asst. Atty. General, Helena
Floyd A. Brower, Golden Valley County Attorney; Gerry
~iggins,special Deputy County Attorney, Ryegate,
Montana
submitted: November 7, 1989
Decided: February 9, 1990
Filed:
I
Clerk
Justice ~ i l l i a mE. Hunt, Sr., delivered the Opinion of the
Court.
A jury empaneled in the District Court of the Fourteenth
Judicial District, Musselshell County, found Eric Harris
Cates, guilty on one count of sexual intercourse without
consent with Janey Doe in violation of S 45-5-503, MCA, and
guilty on a separate count of sexual assault upon Robby Roe
in violation of § 45-5-502, MCA. The District Court
sentenced defendant to fourteen years for sexual intercourse
without consent and fourteen years for sexual assault to be
served concurrently. The court suspended seven years of each
sentence subject to certain conditions and defendant was
given credit for time served. Defendant was designated a
non-dangerous offender for the purpose of parole release.
Defendant appeals his conviction for sexual intercourse
without consent. Defendant did not appeal his conviction for
the sexual assault on Robby Roe. We vacate and reverse
defendant's conviction for sexual intercourse without consent
with Janey Doe on the grounds of insufficiency of evidence.
The two issues raised on appeal are:
1. Whether sufficient evidence pertaining to the
elements of 5 45-5-503, MCA, supported the jury's guilty
verdict of the offense of sexual intercourse without consent.
2. Whether the District Court erred in admitting
hearsay statements made by a three-year-old child to her
psychotherapist where the child was found incompetent to
testify.
From September to November of 1987, defendant and his
wife, Kathleen Harris, were employed as babysitters for a
three-year-old girl, referred to as "Janey Doe," and a five-
year-old boy, referred to a "Robby Roe." While Kathleen
actually took care of the children, defendant had access to
them during his lunch hour.
On November 18, 1987, Janey said to her mother, "my
vagina hurts." Janey's mother examined her and discovered
that Janey had a thick glob of mucous in the vaginal area,
that her vagina was streaked with blood resembling blood
blisters on both sides, and that she had a raw looking bruise
in her vagina. The following day, Janey's mother took her to
be examined by a pediatrician. The pediatrician diagnosed
Janey's injuries as consistent with evidence of sexual
molestation.
On February 26, 1988, defendant was charged by
information on Count I with sexual intercourse without
consent in violation of S 45-5-503, MCA, or, in the
alternative, with sexual assault in violation of § 45-5-202,
MCA, against Janey, and on Count I1 with sexual assault in
violation of S 45-5-502, MCA, against Robby. Defendant's
wife was similarly charged and separate trials were ordered.
On June 27, 1988, defendant filed a motion in limine
requesting the District Court to exclude out-of-court
statements made by the children to any witness. On July 1,
1988, a hearing was conducted concerning the motions. During
the hearing, the District Court concluded that Janey was not
competent to be a witness at trial after she declined to
speak to the ~istrictCourt judge both in open court and in
chambers. The court found that she was "mute out of fear."
Robby was found to be a competent witness.
A jury trial commenced on July 8, 1988. Several
witnesses testified including Janey's mother, Janey's
pediatrician and Robby. Janey's mother testified that Janey
said her "vagina hurts" and that Janey had been consistently
complaining about soreness for six to eight weeks. She also
testified that she examined Janey and then took her to the
pediatrician. Janey's pediatrician testified that Janey's
vagina looked fine externally but internally there were
i n j u r i e s s u c h a s b r u i s e s and a b r a s i o n s . She s t a t e d t h a t from
t h e medical evidence:
[ J a n e y ] h a s had some b l u n t , p e n e t r a t i n g t y p e t r a u m a
d i r e c t l y t o t h a t [inner] area. I t means t h a t t h e r e
has not been any fall or hit or anything
a c c i d e n t a l l y t h a t was done t o h e r . T h i s a r e a had
t o be opened up a n d had t o h a v e b e e n i n j u r e d by
o p e n i n g h e r up.
The p e d i a t r i c i a n t e s t i f i e d t h a t , i n h e r o p i n i o n , t h e i n j u r i e s
had been c a u s e d w i t h i n a week o f J a n e y ' s e x a m i n a t i o n and t h a t
she diagnosed J a n e y ' s i n j u r i e s a s c o n s i s t a n t with evidence of
sexual molestation.
Robby t e s t i f i e d t h a t d u r i n g l u n c h - t i m e , E r i c "played t h e
touch game" touching Robby's penis and putting "his hand
... up my b u t t . " He further testified t h a t h e saw ~ r i c
touch Janey's vagina " [ a ] l o t of times."
A f t e r concl.usion o f t h e evidence, the court instructed
the jury that, should it find defendant g.uilty of either
s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t o r s e x u a l a s s a u l t , h e must
b e found n o t g u i l t y o f t h e o t h e r . On J u l y 1 2 , 1988, t h e j u r y
returned a verdict of guilty on Count I for sexual
i n t e r c o u r s e w i t h o u t c o n s e n t i n v i o l a t i o n o f S 45-5-503, MCA,
a n d n o t g u i l t y o f s e x u a l a s s a u l t u n d e r S 45-5-502, MCA, for
his offense against Janey. D e f e n d a n t was found g u i l t y on
Count I1 f o r s e x u a l a s s a u l t i n v i o l a t i o n o f S 45-5-502, MCA,
f o r h i s o f f e n s e a g a i n s t Robby.
The c o u r t s e n t e n c e d d e f e n d a n t t o f o u r t e e n y e a r s i n t h e
Montana S t a t e P r i s o n on e a c h c o u n t t o r u n c o n c u r r e n t l y . Seven
years of each sentence was suspended subject to certain
conditions. D e f e n d a n t was g i v e n c r e d i t f o r t i m e s e r v e d and
d e s i g n a t e d a non-dangerous o f f e n d e r f o r t h e p u r p o s e o f p a r o l e
release. Defendant a p p e a l s h i s c o n v i c t i o n on Count I f o r
sexual intercourse witho.ut consent under S 45-5-503, MCA.
The first issue r a i s e d on a p p e a l i s w h e t h e r there is
s u f f i c i e n t evidence of t h e elements of S 45-5-503, MCA, to
support the jury's guilty verdict of the offense of sexual
interco.urse without consent.
Defendant was convicted of sexual intercourse without
consent under S 45-5-503, MCA, which provides in part:
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 under B 45-2-101(61), MCA, as:
[The] penetration of the vulva, anus, or mouth of
one person by the penis of another person,
penetration of the v,ulva or anus of one person by
any body member of another person, or penetration
of the vulva or anus of one person by any foreign
instrument or object manipulated by another person
for the purpose of arousing or gratifying the
sexual desire of either party. -
Any penetration,
however slight, is sufficient. (Emphasis added.
Defendant argues that while there is medical evidence
that Janey was penetrated, there is not sufficient credible
evidence, that it was - who committed the act of
he
penetration. Establishing penetration is an essential
element to proving sexual intercouse without consent.
The standard of review in such a case is:
[Wlhether the evidence, viewed in the light most
favorable to the prosecution, is sufficient to
permit any rational trier of fact to find that the
elements of the offense were established beyond a
reasonable doubt.
State v. Lundblade (1986), 221 Mont. 185, 187, 717 P.2d 575,
577. Here, the evidence is not sufficient to establish that
it was defendant who committed the act of penetration. while
Robby did testify that he saw defendant touch Janey's vagina
"[a] lot of times" he never testified to what he meant by the
statement and this Court cannot infer that he was describing
an act of penetration.
The jury specifically fo.und defendant not guilty of the
charge of sexual assault with Janey . Therefore, defendant
cannot be retried on that charge. Defendant did not appeal
his conviction for the sexual assault upon Robby Roe.
Because of our holding on the first issue, we need not
discuss the second issue of whether the District Court erred
in admitting hearsay statements made by a three-year-old
child to her psychotherapist where the child was fou.nd
incompetent to testify.
We vacate and reverse defendant's conviction for sexual
intercourse without consent with Janey Doe on the gro.unds of
insufficiency of evidence.
&+A
J
Justlce
sitting for
Justice Fred J. Weber dissenting:
Our basic issue is whether there is substantial evidence
to support the conviction. The test has been stated as
follows:
A conviction cannot be overturned when the evi-
dence, viewed in the light most favorable to the
prosecution would allow - rational trier of fact
any
to find the essential elements of the crime beyond
a reasonable doubt. Jackson v. Virginia (1979),
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.
560, 573; State v. Godsey (1982), 202 Mont. 100,
656 P.2d 811, 39 St.Rep. 2354, 2358. If the record
shows any substantial evidence to support the
judgment, the presumption is in favor of such
judgment . State v. Shurtliff (1981), 195 Mont.
213, 635 P.2d 1294, 1296, 38 St.Rep. 1798, 1800.
State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100.
In addressing this issue, the majority has improperly focused
on the lack of direct proof demonstrating that defendant was
the one who penetrated the child's vagina. I dissent to
point out that direct proof of penetration by the defendant
was not necessary to conviction. Further, circumstantial
evidence pointing to defendant's penetration was established.
The majority opinion cites Lundblade as authority that
the evidence in the present case is insufficient to convict.
However, -
Lundblade is distinguishable and is not good author-
ity in the present case. In Lundblade there was no evidence
of penetration, an element of the offense. In the present
case, penetration was definitely established. The
pediatrician testified that Janey's vagina had recently been
opened up, causing injuries consistent with sexual
molestation. The only issue was the identity of the
perpetrator.
The present case is more closely analogous to State v.
Pendergrass (1978), 179 Mont. 106, 586 P.2d 691, - remand,
on
189 Mont. 127, 615 P.2d 201 (1980). In Pendergrass 11,
defendant made a similar challenge to the sufficiency of the
evidence to prove sexual intercourse without consent. Noting
that "there is no question that a rape occurred," the
majority in Pendergrass then detailed the evidence which
tended to prove Pendergrass committed the crime. This Court
found sufficient evidence to convict in the testimony that
defendant's red pickup was parked near the convenience store
where the offense occurred, a witness saw a man closely
resembling defendant in the store; the defendant's blood type
matched that of the perpetrator.
As in Pendergrass, here there is no question that a rape
(sexual intercourse without consent) had occurred. The only
question is the identity of the perpetrator. The evidence
established that defendant was with Janey during his lunch
hour on many occasions. Robby testified that he saw
defendant touch Janey's vagina a lot of times. Robby also
testified that defendant played the touch game and put his
hand up his [Robby Is] butt. I conclude that the evidence
here more closely identifies the defendant as being the
perpetrator because of his action which at least constituted
sexual assault. In contrast, the evidence in Pendergrass did
not establish any such close connection. Nonetheless in
Pendergrass this Court stated:
'I. . .
This Court remains ever mindful of one
fundamental rule--that questions of fact must be
determined solely by the jury, and that given a
certain legal minimum of evidence, this Court on
review will not substitute its judgment for that of
the jury . . ."
Pendergrass, 615 P.2d at 205.
My conclusion is further strengthened by Montana's
statutory definition of "sexual intercourse." As noted in
the majority opinion, a penetration of the vulva by any body
member falls within the definition of sexual intercourse.
The statute further states that ''[alny penetration, however
slight, is sufficient." (Emphasis added.) In view of this
broad definition, Robby's testimony as to defendant's touch-
ing Janey's vagina is actually strong evidence that he pene-
trated her.
I would affirm the conviction.