No. 94-414
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Larry W. Moran, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anne H. Watson, Watson & Watson, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Cregg W.
Coughlin, Assistant Attorney General, Helena,
Montana
Mike Salvagni, County Attorney; Martin Lambert,
Deputy County Attorney, Bozeman, Montana
Submitted on Briefs: May 12, 1995
Decided: August 8, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a jury verdict in the Eighteenth
Judicial District, Gallatin County and the District Court ' s
Sentence and Judgment. We affirm.
Five issues were raised on appeal:
I. Did sufficient evidence exist to support the jury verdict?
II. Did the District Court err in admitting into evidence the
substance of a 911 call?
III. Did the District Court err in allowing the State to use
defendant's silence, in reference to consensual sexual intercourse,
during his interrogation by the West Yellowstone police as evidence
against defendant?
IV. Did the District Court err in declining to review testimony
with the jury at the jury's request?
V. Did the District Court err in defendant's sentencing?
In May of 3.991, complainant, Betsy Baker (Betsy), and her
boyfriend moved to West Yellowstone and worked at various jobs.
They lived in a small trailer behind the Wagon Wheel Apartments.
Betsy testified that, on the evening of August 24, 1991, she
and her boyfriend ate dinner and then consumed several drinks at a
local bar. Ultimately, the boyfriend was found to be driving while
under the influence (DUI) and arrested. Betsy testified she did
not know what happened to her boyfriend after he got out of the
truck. She was advised by onlookers that he had been arrested.
Both defendant and Betsy testified to the fact that defendant
approached Betsy and offered to drive her truck home. Betsy
2
agreed. Defendant walked with Betsy to her landlords' (the
Hitzlers) house. Defendant did not enter the Hitzlers' house but
remained outside searching for keys Betsy had dropped on the way to
the house. Betsy testified that she discussed with the Hitzlers
her concerns about her boyfriend's arrest. The Hitzlers testified
Betsy was clearly drunk at the time.
Betsy and defendant testified, as Betsy left the Hitzlers'
house, defendant pulled up in his own car, told Betsy he had found
her keys, and offered her a ride back to the trailer. Defendant
followed Betsy into her trailer. Betsy testified that she allowed
defendant to stay but told him he could sleep either on the bed or
on the couch and she would stay on the other because they were not
sleeping together. Betsy testified that defendant told her that
was fine.
Betsy then testified she was awakened when she felt someone
penetrating her vagina from behind her. She said she "dove off of
the bed" and yelled at defendant to "just get the fuck out of
here." Betsy testified defendant told her to "hold on" and calm
down, but she kept yelling for him to get out. Before he left,
Betsy said she asked him, "Did we make love?" Defendant replied,
"I didn't mean to hurt you," then ran out the door. Betsy said she
wrapped a blanket around herself and sat on the floor crying. At
about 5:00 a.m., people who lived close by testified that they
heard persistent crying.
Betsy testified that shortly after defendant left, someone
knocked on her door and she asked him to call the police. A West
3
Yellowstone police dispatcher said someone called 911 on the night
in question and told the dispatcher a woman in a trailer behind the
Wagon Wheel was screaming, could hardly speak, and thought she may
have been raped. The caller would not give his name nor his
location. Later, it was discovered he was a seasonal worker and he
was not found nor called as a witness.
The police officer (Officer Burns) testified that, as he
approached the trailer, he heard a woman crying loudly. He knocked
on the door and saw Betsy on the floor holding a blanket tightly
and crying hysterically. He said he recognized her from the
earlier DUI stop and arrest. After Betsy calmed down, she told
Officer Burns that a man offered to drive the truck home after the
arrest and that she had been raped. Officer Burns locked the
trailer and transported Betsy to the police department.
Officer Burns located defendant based on Betsy's description
of defendant's car. Officer Burns said he asked defendant what had
happened that night and was told by defendant, "What, nothing
happened." When Officer Burns told defendant he knew something
happened, he testified defendant admitted that he was with a girl
and had given her a ride home but that was all. Officer Burns said
he again told defendant there Was more that had happened.
Defendant then told Officer Burns he approached the girl after her
boyfriend was arrested, offered his assistance, and drove her
pickup to her trailer. Defendant also told Officer Burns about
Betsy losing her keys and going to visit the other people.
4
Officer Burns said defendant told him that when he and Betsy
got to the trailer, she offered to let him sleep in the bed, but
that he declined, telling Betsy, "No, that's your bed. 1'11 sleep
on the couch." Defendant told Officer Burns that Betsy was with
him on the bed and she began touching him. Defendant claimed they
fell asleep and that "[nlothing really happened after that."
Officer Burns asked defendant what happened in the bed; but he said
defendant became evasive. Officer Burns then advised defendant of
his rights and the interview ended.
On August 25, 1991, defendant was booked and detained at the
West Yellowstone, Montana, police station. Betsy and defendant
were both taken to Bozeman for a rape examination. Two nonmotile
sperm, biologically consistent with defendant, were found in Betsy.
Defendant was released after providing police with his permanent
address, telephone number, and social security number. On October
15, 1993, defendant was arrested for the offense of sexual
intercourse without consent in violation of § 45-5-503, MCA.
Defendant was tried before a jury on March 7-10, 1994.' He
testified on his own behalf at trial. He claimed that, as he drove
Betsy home, she sat directly next to him in the truck and placed
her hand on his leg. He also claimed she gave him a hug and kissed
him affectionately when he said he would go look for her keys.
Defendant then testified as to how Betsy and he had finally gone to
sleep together and that he awoke when Betsy's hand was fondling his
groin area. He testified that, after about ten or fifteen minutes
of foreplay, intercourse took place.
5
He alleged, afterwards, she caressed his face with her
fingers, but suddenly stopped when she felt his mustache. He
claimed Betsy got up, went to the bathroom, then came out and asked
him, "Can I ask you a question?" Defendant told her, "Well, sure."
Defendant then testified that Betsy asked, "Did we just make love?"
He said "Well, of course we did." Defendant claimed Betsy got a
couple of tears in her eyes, then calmly suggested he should leave.
Defendant testifi.ed that he got dressed, returned to his friend's
apartment, and went to sleep.
On March 10, 1994, the jury found defendant guilty of Sexual
Intercourse Without Consent. He was sentenced on June 8, 1994, to
twenty years' imprisonment with five years suspended. For purposes
of parole eligibility, defendant was designated a dangerous
offender. From the final judgment, defendant appeals.
Issue I
Did sufficient evidence exist to support the jury verdict?
Section 45-5-503(l), MCA, states I' [al person who knowingly has
sexual intercourse without consent with another person commits the
offense of sexual intercourse without consent. . . .'I
Defendant claims the State failed to prove all of the
necessary elements of the alleged crime beyond a reasonable doubt.
Defendant admits he knowingly had sexual intercourse with Betsy.
However, defendant argues he was led to believe Betsy fully
consented to such intercourse.
"Without consent" as used in 5 45-5-503, MCA, is defined by §
45-5-501(l), MCA. Section 45-5-501(l), MCA states:
6
(1) . the term "without consent" means:
(b) the victim is incapable of consent because he
is:
(i) mentally defective or incapacitated;
(ii) physically helpless;
. . .
Defendant argues the State failed to prove Betsy was incapable
of appreciating or controlling her own conduct at the time of
sexual intercourse or even earlier the previous evening. Defendant
restates various testimony alleging Betsy made numerous thoughtful
decisions while in the company of defendant. From this testimony,
defendant concludes Betsy clearly possessed the capacity to
consent, and to say "no" to sexual intercourse even though later
she regretted that course of action.
Defendant further argues the evidence does not support the
State's claim that Betsy was physically helpless, and therefore
incapable of consenting. Section 45-2-101(51), MCA, states
'I( [plhysically helpless' means that a person is unconscious or is
otherwise physically unable to communicate unwillingness to act."
Defendant contends this Court has never determined "sleep" to be
physical helplessness and should not set such a precedent here. In
any event, defendant alleges Betsy was clearly not asleep because
she was physically active during intercourse.
The State contends defendant's arguments concerning Betsy's
capacity to consent or say "no" has nothing to do with the facts of
this case. The State argues its case is in no way based upon a
theory that Betsy was too drunk to make a wise choice about having
sex with defendant. The State contends the evidence established
7
that Betsy was "passed out"--in other words, unconscious. Betsy
testified she told defendant he could sleep in the bed or on the
couch, but they would not be sleeping together. Betsy then passed
out on the bed, and defendant removed her pants and underwear and
took advantage of her unconscious state. The State concludes there
was sufficient evidence in the record to show Betsy was physically
helpless and could not have consented; therefore, the jury
correctly found defendant guilty of sexual intercourse without
consent pursuant to § 45-5-503, MCA.
"In reviewing a jury verdict in a criminal case, the proper
inquiry is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. (Citations omitted.) 'I State v. Little (1993), 260 Mont.
460, 477, 861 P.2d 154, 165. In the light most favorable to the
prosecution, the record fully supports the State's claim that Betsy
passed out the night of August 24, 1991; and that defendant,
knowing Betsy to be unconscious, penetrated her vagina without her
consent.
Defendant's contention, that no evidence exists as to Betsy's
mental incapacitation, physical helplessness, or defendant's
knowledge of such at the time of sexual intercourse, is incorrect.
Betsy testified she had laid on her bed fully clothed that night
and "passed out." She then testified she was awaken by someone
penetrating her vagina. In Little, we stated fl [wle have held
repeatedly that convictions for sexual intercourse without consent
and sexual assault are sustainable based entirely on the
uncorroborated testimony of the victim. (Citations omitted.) (I
Little, 861 P.2d at 165. Here, we have further testimony from both
the Hitzlers and Officer Burns that Betsy was obviously under the
influence of alcohol on the night in question.
"The credibility of witnesses and the weight to be assigned to
their testimony are to be determined by the trier of fact, and
disputed questions of fact and credibility will not be disturbed on
appeal." State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d
334, 336. Additionally, in State v. Losson (1993), 262 Mont. 342,
350, 865 P.2d 255, 260, we stated, "The jury decides the facts and
who to believe."
We conclude, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. We therefore hold sufficient evidence existed to support
the jury verdict.
Issue II
Did the District Court err in admitting into evidence the
substance of a 911 call?
In State v. Hall (19901, 244 Mont. 161, 169, 797 P.2d 183,
188, we stated 'I [ilt is well established that the District Court
has latitude of discretion in passing on the admissibility of
evidence. [Citations omitted]. The District Court's determination
of the admissibility of evidence is subject to review only for
abuse of discretion. [Citations omittedl."
9
The District court permitted west Yellowstone Police
Dispatcher Helene Rightenour to testify regarding the contents of
the emergency 911 telephone call she received on the morning of
August 25, 1991. Rightenour testified:
It was a male caller and he said that there was a woman
screaming at 421 Gibbon at a little trailer behind the
Wagon Wheel Apartments. There was a truck parked out
front that had two bicycles on the top. And he had gone
over there and the woman was hardly able to speak, but
she asked him to call the police, that she thought she
might have been raped.
At trial, defendant objected to the District Court allowing
the dispatcher to testify as to the substance of the call.
Defendant argues the testimony consisted of prejudicially harmful
descriptions by the dispatcher of the caller's description of
Betsy's behavior and requests. Defendant contends it was double
hearsay, and doubly unreliable.
Rule 801(c), M.R.Evid., defines hearsay as "a statement, other
than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter
asserted."
Defendant argues the present-sense impression exception to the
hearsay rule (Rule 803(l), M.R.Evid.) does not apply because the
dispatcher was too far removed from Betsy to testify as to her
present-sense impression. Defendant further argues the excited
utterance excepti.on does not apply because the dispatcher is not
relating an event or condition, but is testifying to the caller's
description of the event. Defendant concludes none of these
exceptions apply. Thus, he contends the District Court abused its
10
discretion in allowing the prejudicial testimony of the 911 caller
as evidence.
The State argues "double hearsay" is not per se inadmissible.
Rule 805, M.R.Evid., provides hearsay within hearsay is not
excluded under the hearsay rule "if each part of a combined
statement conforms with an exception to the hearsay rule provided
in these rules." The State asserts the caller's statement was not
hearsay, under Rule 801(c), M.R.Evid., because it was not offered
to prove the truth of the matters asserted. The caller's statement
was offered to prove the time of the victim's allegation of rape
and the reason the police officer arrived at her trailer at 5:ll
a.m. We have closely examined the entire record in this case,
however, and cannot find any support for the State's statement in
that regard. The prosecutor did not contend before the District
Court that the dispatcher's testimony regarding the contents of the
911 call was not hearsay because it was merely being offered to
prove the time of the victim's allegation of rape and the reason
for the officer being sent to her trailer. To the contrary, the
prosecutor argued that the testimony was admissible under
exceptions to the hearsay rule, thereby implicitly conceding that
the testimony washearsay. Moreover, it was not on that basis that
the trial court allowed the testimony. The State's argument that
the testimony was not hearsay is being raised for the first time on
appeal; therefore, we will not address that argument further.
The State then argues that Betsy's statements to the caller
fit within several exceptions to the hearsay rule. Betsy was
11
crying hysterically, asked for the police and claimed she thought
she had been raped. Her statements reflected an excited utterance,
her present-sense impression, and her then existing state of mind,
emotion, sensation, and physical condition--all within the hearsay
exclusion exceptions under Rule 803, M.R.Evid.
While we concur with the State's statement that double hearsay
is not per se inadmissible, the double hearsay rule does not apply
here. The record does not support the State's contention that the
caller's statement was admissible because it was not hearsay and
the police dispatcher was too far removed to testify as to what
Betsy said to the 911 caller. The 911 caller is the one who
witnessed Betty's excited utterance, and her then existing state of
mind, emotion, sensation, and physical condition. Therefore, the
caller was the only one who could testify to what Betsy said and to
his present-sense impression of her when she made the statement.
We hold the District Court erred in admitting into evidence
the substance of the 911 call. However, we have stated "[t]he
admission of improper evidence is not grounds for reversal unless
there is a reasonable possibility that the evidence may have
contributed to the conviction. [Citation omitted] .'I State v. Matt
(1991), 249 Mont. 136, 145, 814 P.2d 52, 58. All of the basic
elements--that Betsy was screaming and had asked the caller to call
the police because she thought she had been raped--were established
without question by other testimony properly admitted at trial. As
a result, while the admission of the testimony was not proper, we
12
conclude it is not reversible error because it did not contribute
to the conviction.
We hold that the admission into evidence of the substance of
the 911 call was harmless error under these facts.
Issue III
Did the District Court err in allowing the State to use
defendant's silence, in reference to consensual sexual intercourse,
during his interrogation by the West Yellowstone police as evidence
against defendant?
Defendant argues the State's improper comment on defendant's
right to remain silent solemnizes the silence into evidence against
defendant in direct violation of his Fifth and Fourteenth Amendment
rights under the United States Constitution. Defendant did not
waive his Miranda rights, thereby assuming he had the right to
remain silent under the Fifth Amendment.
Defendant alleges statements referencing his silence did not
distinguish between post- and pre-Miranda warnings. Thus, he
asserts these statements, in their entirety, were improper under
Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240,
where we held "the use for impeachment purposes of petitioners'
silence, at the time of arrest and after receiving Miranda
warnings, violate[sl the Due Process Clause of the Fourteenth
Amendment."
The State contends defendant did not establish a Fifth
Amendment nor a Fourteenth Amendment violation. The State stresses
the fact defendant was not silent. He voluntarily gave statements
13
to Officer Burns. The State believes it properly used those
statements through careful cross-examination to expose defendant's
false testimony when he took the witness stand and gave a very
different account of the events leading to and during sexual
intercourse.
We agree with the State's contention. In this case, defendant
was cross-examined on statements he voluntarily made to Officer
Burns prior to his arrest and how his testimony at trial conflicted
with those statements. The fact that defendant's statements did
not include a reference to consensual sexual intercourse is not an
indication of silence of the type referred to in Doyle.
W e
conclude the District Court did not abuse its discretion in
permitting the State's impeachment line of questioning. We
therefore hold the District Court did not err in allowing the State
to use defendant's silence, in reference to consensual sexual
intercourse, during his interrogation by the West Yellowstone
police as evidence against defendant.
Issue IV
Did the District Court err in declining to review testimony
with the jury at the jury's request?
During deliberation, the jury sent a written note to the
District Court inquiring as follows:
In reference to Officer Burns['] statements regarding the
conversation with suspect in vehicle in front of
apartment --
The question is "Did the defendant tell the officer that
he and Betsy had a conversation to the effect that" he
(the defendant) could either sleep on the bed or on the
couch and she on one or the other[?l
14
Upon receiving this request, the court consulted with counsel and
inquired of their positions. The court's answer to the jury's
inquiry read, "In the exercise of discretion the [cl ourt has
determined that it would be inappropriate to respond to the
question you have asked."
Defendant argues the District Court abused its discretion by
not responding to the jury's question. Defendant sets out portions
of Officer Burns' testimony which speak to the jury's inquiry.
Defendant contends the District Court committed reversible error by
disallowing that portion of Officer Burns' testimony to be replayed
for the jury during its deliberations as requested. Defendant
further argues the District Court erred when it failed to give to
the jury the instructions set forth in State v. Henrich (1994), 268
Mont. 258, 267, 886 P.2d 402, 408, which specifically deals with
requests from the jury about witness testimony.
Section 46-16-503(2), MCA, refers to the jury's conduct after
its retirement.
46-16-503. Conduct of jury after retirement--advice from
c o u r t .
(2) After the jury has retired for deliberation, if
there is any disagreement among the jurors as to the
testimony or if the jurors desire to be informed on any
point of law arising in the cause, they shall notify the
officer appointed to keep them together, who shall then
notify the court. The information requested may be
given, in the discretion of the court, after consultation
with the parties.
The State argues, and we have consistently held, that the
decision to replay testimony to the jury, or to refuse a request by
the jury to do so, lies within the sound discretion of the district
court. Henrich, 886 P.2d at 407; State v. Evans (1993), 261 Mont.
15
508, 511, 862 P.2d 417, 418; State v. Mayes (1992), 251 Mont. 358,
374, 825 P.2d 1196, 1206; State v. Harris (1991), 247 Mont. 405,
416-17, 808 P.Zd 453, 460; State v. Ulstad (19901, 246 Mont. 102,
104, 802 P.2d 1260, 1262. We will review a district court's
decision to allow or disallow a jury's request to replay trial
testimony to determine if the district court abused its discretion.
Henrich, 886 P.2d at 407.
After consulting counsel, the District Court commented,
"almost any time you respond to a question from the jury, you're
flirting with an error in the case." The District Court noted
Officer Burns' direct testimony was interrupted by other testimony.
He was brought back to the witness stand to complete his direct
examination, and to further testify under cross-examination
followed by redirect examination; thus, complicating reiteration of
his testimony. The court recognized the dangers of emphasizing the
testimony of one witness over another, as well as repeating
portions of testimony out of context. We, therefore, conclude the
District Court did not abuse its discretion in denying the jury's
request.
We hold the District Court did not err in declining to review
testimony with the jury at the jury's request.
Issue v
Did the District Court err in defendant's sentencing?
Defendant was sentenced to the Montana State Prison for a
period of twenty years, with five years suspended. He was ordered
to complete the sexual offender treatment program, classified as
16
being a dangerous offender, ordered to register as a sex offender,
and required to pay restitution to the West Yellowstone Police
Department and the Crime Victims' Compensation Bureau of the State
of Montana in the amount of $285.00.
Defendant contends the District Court, in setting his
sentence, failed to consider statutory requirements set forth in
§ 46-l&101(3), MCA. Defendant further contends the sentence is
cruel and unusual punishment under the Eighth Amendment to the
United States Constitution in that it is excessive punishment; and,
the court has denied defendant equal protection of the laws under
the Fifth and Fourteenth Amendments of the United States
Constitution.
The State argues 5 46-l8-101(3), MCA, does not require the
District Court to specifically identify each criterion in the
sentencing order, but requires sentences to be based "primarily" on
the criteria listed. District courts are required only to
specifically state, in open court and in the written judgment, the
reasons for a sentence. Sections 46-18-102 and -115(S), MCA. The
State asserts the court properly set forth, in both open court and
written judgment, the reasons it imposed such sentence.
In State v. Cope (1991), 250 Mont. 387, 399, 819 P.Zd 1280,
1287, we stated:
We review sentences for legality only. State v. Hurlbert
(19881, 232 Mont. 115, 756 P.2d 1110. The standard of
review on sentence legality is whether the district court
abused its discretion. State v. Lloyd (19841, 208 Mont.
195, 199, 676 P.2d 229, 231. We find no such abuse here,
since [defendant's] sentence is well within the statutory
limits. Questions of sentencing equity, on the other
hand, are to be presented to the Sentence Review
17
Division. Llovd, 676 P.2d at 231. If [defendant] wishes
to pursue his equity argument, he may do so in the
Sentence Review Division.
The above statement applies to these circumstances as well. The
sentence is within the guidelines set forth in § 45-5-503(2), MCA,
and is, on its face, neither excessive nor cruel. The District
Court properly set forth its reasons for the sentence at the
hearing and in its judgment; and those reasons did not manifest an
abuse of discretion
We, therefore, hold that the District Court did not err in
defendant's sentencing.
We concur:
18
Angust 8, 1995
CERTIFII CATE OF SERVICE
I hereby certify that the following certil ied order was sent by United States mail, prepaid,
to the following named:
WATSON & WATSON
502 South 19th Avenue
Bozeman, MT 59715
HON. JOSEPH P. MpZUREK, Attorney General
Cregg W. Coughlin, A3;sistant
Justice Bldg.
Helena, MT 59620
Mike Salvagni, County Attorney
Martin Lambert, Deputy
Law & Justice Center
615 S. 16th Ave.
Bozeman, MT 59715
ED SM ITH
CLERF; OF THE SUPREME COURT
STATE OF MONTANA
-*.
Deputy