NO. 90-343
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
LEON LLOYD WHITCHER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell K. Fillner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur J. Thompson, Thompson & Sessions, Billings,
Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Joseph E.
Thaggard, ~ssistant Attorney General, Helena,
Montana
Dennis Paxinos, Yellowstone County Attorney; Charles
Bradley, Deputy County Attorney, Billings, Montana
Submitted on Briefs: PIarch 28, 1991
Decided: April 29, 1991
Filed:
Clerk
*
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, Leon Lloyd Whitcher, was convicted of sexual
intercourse without consent by jury trial in the District Court of
the Thirteenth Judicial District, Yellowstone County. He appeals.
We affirm.
The sole issue on appeal is whether the evidence is sufficient
to support the jury's verdict of guilty.
On Friday, April 14, 1989, fourteen-year-old N.H. agreed with
a friend, Angie, age thirteen, to go to a party that night which
had been primarily arranged between Angie and Adam, age seventeen.
At approximately 11:50 p.m., N.H. and Angie met with four male
individuals at the Huntley Bridge near Shepherd, Montana. These
individuals were Adam, Shannon (age fifteen), Wes Plum (age twenty-
two) and the defendant (age thirty) . N. H. did not know the
defendant, although she recognized him as the owner of the local
video store.
The group entered the defendant's car and went to a nearby bar
to purchase some liquor. The defendant then drove the group to an
abandoned house which he owned outside Shepherd. The group arrived
at the house around midnight.
A pentagram, a satanic symbol in the form of a five-sided star
inside of a circle with an eye in the center of the star, was
painted on the floor of a large room in the house. Adjacent to
this room, and connected by a doorway, was a smaller room. A
closet was located between the two rooms. Upon entering the closet
from the room containing the pentagram, one could look into the
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smaller room through a large hole in the common wall between the
closet and the smaller room.
After entering the house, everyone sat down in the larger room
and began drinking. At some point, Adam produced two books
concerning witchcraft and began talking about satanism.
Approximately ten minutes later, the defendant instructed
Angie to accompany him into the small room. The defendant left the
door to the room open and Angie sat on a large pillow covered with
a blanket. Angie remained in the room for approximately fifteen
minutes, during which time the defendant asked her questions one
would ask a person seeking initiation into a satanic cult. He
asked her if she had ever belonged to a cult, if she was a virgin,
if she was ashamed of her body, if she wanted power, and if she
would obey a "high priest." Additionally, the defendant asked
Angie if N.H. was a !!shy or decent girl,11if N.H. was "the same"
as Angie, and if N.H. would I1openup to him.
The defendant then instructed Angie to don a black robe, which
she put on over her clothes. Shortly thereafter, Angie removed the
robe and returned with the defendant to the other room. Angie then
told N.H. to go into the small room with the defendant. The
defendant told N.H. that he wanted to ask her some I1routine
questions.
At trial, the principal witnesses offered varying and
sometimes conflicting accounts of the events which followed N.H1s
entry into the small room. N.H. testified that when she entered
the room she had consumed only one drink of peach schnapps. She
further testified she drank another three swallows of the liquor
during the one and one-half hours which she estimated she spent in
the room with the defendant, but that she did not get drunk during
that time. N.H. claimed that when they entered the room, the
defendant closed the door and told her to sit on the pillow. With
only a candle lighting the room, the defendant asked her questions
similar to those he asked of ~ n g i e . The defendant then directed
N.H. to don a black robe and turn herself in a movement which he
said constituted the sign of a star. While she did so, the
defendant told N.H. about a creature with a cat head and a human
body which would act as her protector. When N.H. completed this
movement, the defendant told her to remove all her clothing from
beneath the robe. N.H. testified that she did as instructed
because she was frightened.
The defendant then instructed N.H. to lie on her back, pull
her legs up to her chest, and stare at a pentagram painted on the
ceiling. He then engaged in sexual intercourse with her without
removing his clothes. According to N.H., Adam knocked on the
closet wall twice during the incident and asked what was taking so
long. The defendant stopped when Adam knocked on the wall the
second time. At that point, the defendant told Adam that he was
'lalmostdone with the question^.^^ N.H. then started screaming for
Angie.
Before Angie reached the room, the defendant told N.H. to sit
up and quickly zipped his pants. The defendant told Angie upon her
arrival that N.H. had consumed the entire bottle of schnapps and
was drunk. He then left the'room. N.H. testified that she told
Angie that Ithe hurt me1' and that "Matt1' had raped her. N.H.
testified that she could not remember the defendant's name at that
time and mistakenly referred to him as "Matt.I1 After she dressed
and regained her composure, N. H. returned to the larger room where,
in anger, she proceeded to get drunk.
The defendant offered a different account of the events of
that night. He testified that he merely wished to chaperon Adam
and Angie on their first date. The defendant did admit that he had
previously practiced satanism, but denied that he intended for the
party to assume a satanic nature. Although he admitted taking the
two girls into the room and asking them questions related to
initiation into satanic cults, the defendant claimed he did so to
dispel their interest in the occult by scaring them. He denied
that he told N.H. to don the robe or remove her clothes. He
claimed that he left the room to use the bathroom; when he
returned, N.H. had put on the robe. The defendant claimed N.H.
then began screaming that "Matt1'had hurt her. He denied that he
ever engaged in sexual intercourse with N.H.
The other witnesses were not actually present in the small
room during the incident but did offer testimony. Angie testified
that N.H. was llbuzzedll
but not drunk when she entered the small
room. She testified that N.H. and the defendant were in the small
room for approximately thirty minutes, but later admitted she told
a detective investigating the case that they were in the room
perhaps an hour and fifteen minutes. She also testified that she
could hear voices from the 'small room and there was never any
silence. Angie testified that, after Adam knocked on the wall the
second time, the defendant told her to come into the room because
N.H. was hallucinating. When she entered the room, N.H. was naked
except for the robe, was crying and was llmassivelydrunk." Angie
testified N.H. did not tell her the defendant raped her, but rather
that someone named Matt and also her father had hurt her.
Wes Plum testified that N.H. and the defendant were in the
small room for about fifteen or twenty minutes and that when N.H.
went into the room she was Itinbetween" intoxication and sobriety.
According to Plum, N.H. "started freaking outl1 while still in the
small room. He further admitted that he llprobablyll
told a
detective that shortly before she came out of the small room, N.H.
had screamed that the defendant had raped her.
Adam testified that while N.H. and the defendant were in the
small room, he went to the door of the room once and into the
closet once and on one of these occasions he spoke with the
defendant. Adam testified that he observed the defendant leave the
small room and, on his return, he heard the defendant state that
N.H. had removed her clothing and put on a black robe while he was
out of the room. The defendant then told Angie to come into the
small room and have N.H. put her clothes back on. Adam denied that
he and the other males at the party belonged to a satanic coven or
that defendant served as the high priest of that coven. When the
prosecution presented a transcribed statement Adam had previously
given to a detective in which he admitted the existence of such a
coven and the defendant's roie in that coven, Adam denied making
such statements to the detective. Adam did admit that the
questions the defendant asked the two girls pertained to a "white
[satanic] mass," which he described as an orgy.
On Monday, April 17, 1989, N.H. reported to one of her
teachers at school that the defendant had raped her on the
preceding Friday night. The defendant was subsequently arrested
and charged by information with one count of sexual intercourse
without consent and two counts of unlawful transactions with
minors. The information was later amended to add an unrelated
charge of sexual intercourse without consent.
A jury heard the trial in this matter September 5 through
September 8, 1989. The jury found the defendant guilty of the
original three charges and not guilty of the unrelated charge of
sexual intercourse without consent. The District Court sentenced
the defendant to thirty years imprisonment, with ten years
suspended. The defendant appeals only from his conviction of the
offense of sexual intercourse without consent.
Is the evidence sufficient to support the jury's verdict of
guilty?
The standard of review of the sufficiency of the evidence for
a criminal conviction is whether, after reviewing the evidence in
a light most favorable to the prosecution, any rational trier of
fact could have found 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.2d 560, 573; State v. Brown (1989),
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239 Mont. 453, 456, 781 P.2d '281, 284.
A person commits the offense of sexual intercourse without
consent if that person (1) knowingly, (2) has sexual intercourse,
(3) without consent, (4) with a person of the opposite sex.
Section 45-5-503, MCA. Under § 45-5-501(2) (c), MCA, the victim is
incapable of consenting to sexual intercourse if he or she is less
than sixteen years old.
The defendant asserts that his conviction is based upon the
testimony of the victim, N.H., whose testimony is wholly
unsupported by the testimony of any other witness or by physical
evidence. He argues that the victim's testimony is so inherently
incredible that no rational trier of fact could find guilt beyond
a reasonable doubt. We disagree.
The defendant, the victim, and several other witnesses
testified to the events which occurred during the night of April
14-15, 1989. Portions of the witnesses1 testimony supported the
victim's testimony; other parts contradicted it and supported the
defendant's testimony. Only the defendant and the victim were
present in the small room during the time at issue. The weight of
the evidence and the credibility of the witnesses is exclusively
within the province of the trier of fact. When the evidence
conflicts, the trier of fact determines which evidence shall
prevail. State v. Lamping (1988), 231 Mont. 288, 293, 752 P.2d
742, 746; Brown, 239 Mont. at 457, 781 P.2d at 284.
The issue of sufficiency of the evidence in this case
essentially boils down to the credibility of the evidence
7
establishing the sexual intercourse element of the offense.
Contrary to the defendant's assertion, the victim's testimony
concerning this element is not uncorroborated. At least two
witnesses admitted to hearing the victim scream that she had been
raped and believed she was talking about the defendant.
Furthermore, even if we characterized the victim's testimony as
uncorroborated, this Court has consistently held that a conviction
of sexual intercourse without consent is sustainable based entirely
on the uncorroborated testimony of the victim. Lamping, 231 Mont.
at 293, 752 P.2d at 746; State v. Maxwell (1982), 198 Mont. 498,
503, 647 P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369,
378, 457 P.2d 453, 458.
Here the jury weighed the credibility of the conflicting
testimony and chose to believe the victim's version of the
incident. We hold that, based on the evidence presented at trial,
a rational trier of fact could have found the defendant guilty of
the offense of sexual intercourse without consent beyond a
reasonable doubt.
Affirmed.
,
We concur: