NO. 94-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MATTHEW C. FULLER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Chief Deputy Public Defender,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Jennifer
Anders, Ass't Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana
E”jT Tj y-4
p&q Submitted on Briefs: August 4, 1994
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Decided: September 15, 1994
Filed: SEP a 5 1994
Justice Karla M. Gray delivered the Opinion of the Court.
Matthew C. Fuller (Fuller) appeals his conviction of three
counts of attempted sexual assault, and the judgment entered
thereon, following a bench trial conducted in the Thirteenth
Judicial District Court, Yellowstone County. We reverse,
concluding that the conviction is contrary to law.
The State of Montana (State) charged Fuller by information
with three counts of felony attempted sexual assault pursuant to
§§ 45-4-103 and 45-5-502, MCA. He subsequently was tried by the
District Court.
Testimony regarding the underlying facts was largely
undisputed. On November 25, 1992, Fuller drove from his home in
Roundup and parked outside an elementary school in Billings. At
approximately 3:00 p.m., as the school day ended, he followed three
young girls down Nutter Boulevard in his vehicle. Two of the
girls, L.S. and P.M., testified that Fuller first honked his horn
and made the comment "nice butt" in their general direction as he
drove by. A few minutes later he approached again, this time
driving on the wrong side of the street. According to L.S. and
P.M., Fuller then pulled up on the sidewalk directly alongside them
and stated "let's do it" while sticking out his tongue and licking
his lips.
The third girl, T-R., testified she heard a horn honk as the
three girls left the school area together. She first noticed
Fuller when he pulled up onto the Nutter Boulevard sidewalk: at
that point, T.R. started running and did not hear the comments
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about which the other girls testified. Contrary to the testimony
of L.S. and P.M., T.R. testified that Fuller's passenger, as
opposed to driver's, side wheels were pulled up on the sidewalk.
None of the girls testified that Fuller ever stopped the car,
opened his door, or reached out for them in any way.
Billings Police Detective Dave Hinkel also testified. Hinkel
related that, during a post-arrest interview, Fuller admitted that
"he was on the very edge of having a significant problem sexually
with children" and that he believed himself to be a pedophile.
The District Court announced its decision and findings orally
after the trial and adopted the State's Proposed Findings of Fact
and Conclusions of Law. It found Fuller guilty of the offenses as
charged. The court subsequently imposed sentence and entered
judgment. Fuller appeals.
The dispositive issue before us is whether the District
Court's finding that there was insufficient evidence to establish
a necessary element of the offense beyond a reasonable doubt
renders the conviction invalid as a matter of law.
Our usual standard of review following a criminal conviction
is whether, viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. State v. Riley
(1992) I 252 Mont. 469, 470, 830 P.2d 549, 550; citing Jackson v.
Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d
560, 573. This case presents an issue relating to the fundamental
principle subsumed in this standard: that the prosecution must
establish each and every element of the charged offense by proof
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beyond a reasonable doubt. See Jackson, 443 U.S. at 316.
Fuller was convicted of attempted sexual assault. To be
guilty of the underlying offense of sexual assault, a person must
knowingly subject another person to llsexual contact" without
consent. Section 45-5-502, MCA. Sexual contact requires a
touching of the sexual or other intimate parts of the victim for
the purpose of arousing or gratifying the sexual desire of either
party. Section 45-2-101(60), MCA. An "attempt" requires proof
that the defendant, with the purpose of committing the underlying
offense, took any act toward commission of the offense. Section
45-4-103(l), MCA.
Here, the District Court found as follows during the oral
pronouncement of its decision:
In this particular case if an actual touching is a
required element, and arguably it is, then a not guilty
verdict is the only appropriate verdict because the
evidence does not show bevond a reasonable doubt that the
defendant intended to actuallv touch the victims.
(Emphasis added.) By adopting the State's proposed findings and
conclusions, the court also found:
[T]hat the evidence is sufficient to Drove the defendant
suiltv of the offense of Attempt Sexual Assault (Felony)
as alleged in Counts I, II, and III of the Information
Bevond A Reasonable Doubt.
(Emphasis added.) The District Court found Fuller guilty on all
three counts of felony attempted sexual assault.
Applying the statutory definitions of the offense of attempted
sexual assault to the District Court's first quoted finding, it is
clear that the court found insufficient evidence to establish that
Fuller acted with the purpose of committing the underlying offense
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of sexual assault. The trier of fact having found that the State
did not meet its burden on this necessary element of the offense of
attempted sexual assault, Fuller must be acquitted of the offense.
The State argues that we should consider the District Court's
findings in their entirety and divine the court's intent. The
State's position is that the court's statements, taken as a whole,
demonstrate the court's intent to find Fuller guilty and,
therefore, the conviction is legally supportable. Such an approach
would require us to speculate as to which "finding" should receive
the greater weight: we are not in a position to do so. More
importantly, we cannot proceed past the court's first quoted
finding. Our review must end when the district court, sitting as
the trier of fact, finds that an essential element of the offense
has not been established by proof beyond a reasonable doubt. See
Jackson, 443 U.S. at 316.
Reversed and remanded with instructions that a judgment of
acquittal be entered on all charges.
We concur: ----7
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