State v. Haser

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No. 99-693

IN THE SUPREME COURT OF THE STATE OF MONTANA

2001 MT 6

STATE OF MONTANA,

Plaintiff and Respondent,

v.

MICHAEL CARL HASER,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Edward P. McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Margaret L. Borg, Chief Public Defender, Leslie Ocks, Assistant Public Defender, Missoula, Montana

For Respondent:

Joseph P. Mazurek, Montana Attorney General, Ilka Becker, Assistant Montana Attorney General,
Helena, Montana; Fred Van Valkenburg, Missoula County Attorney, Kirsten LaCroix, Deputy Missoula
County Attorney, Missoula, Montana

Submitted on Briefs: December 21, 2000
Decided: January 30, 2001

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1 The Appellant, Michael Carl Haser (Haser), appeals from an order and a judgment
entered by the Fourth Judicial District Court, Missoula County. The order denied Haser's
motion to dismiss due to the alleged violation of his constitutional right to a speedy trial.
The judgment sentenced him to 40 years for one count of sexual intercourse without
consent, and a concurrent sentence of six months for one count of sexual assault. Haser
was found guilty of both counts following a jury trial. Haser argues that the District Court
erred by denying his motion to dismiss for lack of a speedy trial, and that the evidence
before the jury was insufficient to sustain a conviction for sexual intercourse without
consent.

¶2 We affirm in part and reverse in part.

¶3 Haser raises the following two issues:

1. Did the District Court err in denying Haser's motion to dismiss for lack of speedy
trial?

2. Was the evidence before the jury sufficient to sustain the conviction of sexual
intercourse without consent?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 At issue on appeal is whether Haser was afforded a speedy trial, and whether the
evidence was sufficient to sustain his conviction for sexual intercourse without consent
involving two victims. Thus, the underlying factual and procedural background detailing
the sexual assault conviction is not pertinent to our discussion and will be addressed
accordingly.

¶5 Haser operated a photography studio, Picture Perfect Studios, in Missoula, Montana, at
the time the alleged crimes of sexual intercourse without consent took place. Haser also
published a free monthly magazine, Missoula Magazine. The two victims, both females,
sought Haser's services as a professional photographer, specifically one who would take

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professional-modeling photos. Both victims were interested in pursuing modeling careers,
and one testified that she hoped that her photo would appear in Haser's magazine. One
victim paid for her photo session, and the other had the option to buy photos at a later date,
although Haser did not charge her for the session itself.

¶6 Each victim's account of Haser's conduct during the photo sessions is similar. Each
woman testified that she was alone in the studio with Haser during the scheduled
appointment. One victim testified that the session lasted six hours, and the other testified
that her session lasted two hours. It is undisputed that the victims understood that they
would pose before Haser wearing a variety of attire belonging to them or Haser, including
swimsuits, and that the "modeling" involved striking poses similar to those found in
fashion magazines.

¶7 What was not understood or disclosed prior to the photo sessions was Haser's insistence
that he be allowed to rub lotion or apply makeup to their bodies, including their bare
breasts. Haser similarly surprised the victims when he informed them that in order to
avoid "panty lines" they would not be permitted to wear underwear. Haser apparently
persuaded the victims that such conditions were necessary to improve the quality of the
photos. Both women removed their underwear upon Haser's request, and allowed him to
personally apply either lotion or makeup to their bare breasts.

¶8 Haser also repeatedly insisted that he had to adjust or re-position them in a particular
pose, which also involved his touching them. It was during these sudden and frequent
"adjustments" that one of his hands would slip under the women's clothing, rub between
their legs, and up against their pubic region. The testimony reveals that his explanation at
the time was that such interplay between his hand and the women's vaginal areas was
strictly for the sake of attaining the optimal pose which would produce high quality
photos. Haser does not deny now, on appeal, that his touching the two victims as described
at trial constituted "penetration" pursuant to Montana law governing the offense of sexual
intercourse without consent.

¶9 Neither victim abruptly ended the photo sessions due to Haser's conduct, however.
Apparently, the victims voiced little or no objection to Haser's conduct during their
respective sessions--due, apparently, to the suddenness of his actions and the resulting
surprise or shock. Rather, at the time of the incidents, the victims believed or were led to
believe that such treatment was incidental in the context of a professional model's photo
session, although both testified that they thought at the time, as well as afterward, that

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Haser's touchings were odd, disgusting, and made them uncomfortable. The two victims
testified that Haser's conduct elicited embarrassment, surprise, shock, anger, and fear.

¶10 Haser's conduct with the two foregoing victims was not limited to them alone. Rather,
the evidence indicates he routinely took similar liberties with other clientele. As a result of
one victim coming forward, which led to an extensive police investigation, Haser was
charged on November 12, 1997, with eleven counts of misdemeanor sexual assault in
violation of § 45-5-502, MCA, or, in the alternative, eleven counts of misdemeanor assault
in violation of § 45-5-201, MCA, and six counts of sexual intercourse without consent, in
violation of § 45-5-503, MCA. On December 3, 1997, Haser entered not guilty pleas to all
counts.

¶11 The State amended its information on December 22, 1997, increasing the number of
counts of sexual intercourse without consent to eight. Haser entered a not guilty plea to the
amended information on January 7, 1998.

¶12 On March 23, 1999, the State filed a second amended information, which consolidated
the prior multiple counts into two. Under Count I, the State charged Haser with sexual
intercourse without consent as a continuing course of conduct involving four victims, and
under Count II, the State charged him with misdemeanor sexual assault as a continuing
course of conduct involving 14 victims. Haser entered not guilty pleas to both counts.

¶13 Prior to trial, Haser filed a motion to dismiss for lack of a speedy trial. The District
Court denied his motion at the conclusion of a March 25, 1999 hearing, and issued an
opinion and order on April 1, 1999. Haser contended that the length of delay--502 days--
from the time the original charges were filed on November 12, 1997, until the scheduled
trial date of March 29, 1999, denied his constitutional right to a speedy trial. The court
concluded that the State was responsible for 276 days of the delay, and Haser was
responsible for the remaining 226 days. The court concluded that the defendant had failed
to demonstrate he had been prejudiced by the State's delay.

¶14 A jury trial commenced March 29, 1999. At the close of the State's case in chief,
which included testimony from the victims, the daughter of one victim, police
investigators, and an expert witness, Haser moved for a directed verdict on the ground that
the evidence presented was insufficient to take the matter to the jury. The court denied the
motion. Haser then called six witnesses, all women, to testify on his behalf. The witnesses
testified that they knew Haser and in the past had either worked for or modeled for him--or

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both. Their testimony was consistent in denying that Haser had ever engaged in
inappropriate conduct with them during modeling sessions. None of the witnesses testified
that they were present during the victims' photo sessions. None of the witnesses testified
that they knew any of the victims.

¶15 On April 5, 1999, the jury returned a guilty verdict on the first count, sexual
intercourse without consent, as applied to two of the four victims--meaning the jury found
Haser not guilty of committing the offense with two of the four victims. The jury also
returned a guilty verdict on the second count, sexual assault, committed on 11 different
victims. Two of these 11 victims were the alleged victims of the sexual intercourse
without consent charge that the jury found Haser not guilty of committing.

¶16 On June 2, 1999, the District Court sentenced Haser to 40 years with 20 suspended on
the first count, and to six months on the second count. The judgment was entered on
August 30, 1999. Haser appeals the denial of his motion to dismiss due to the violation of
his constitutional right to a speedy trial, and the judgment that sentenced him to 40 years
for the offense of sexual intercourse without consent.

STANDARD OF REVIEW

¶17 We recognize that the violation of a defendant's right to a speedy trial is a question of
constitutional law which requires that we review a district court's decision to determine if
it is correct. See State v. Taylor, 1998 MT 121, ¶ 18, 289 Mont. 63, ¶ 18, 960 P.2d 773, ¶
18 (citation omitted).

¶18 We review the sufficiency of evidence to support a conviction by viewing the
evidence in a light most favorable to the prosecution and then determining whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See State v. Berger, 1998 MT 170, ¶ 25, 290 Mont. 78, ¶ 25, 964 P.2d
725, ¶ 25 (citations and quotations omitted).

DISCUSSION

Issue 1.

Did the District Court err in denying Haser's motion to dismiss for lack of speedy
trial?

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¶19 Haser argues that the 276 day-delay attributable to the State pursuant to the District
Court's order was incorrectly calculated, and that the State's evidence failed to disprove
the presumption that he was prejudiced by the 502-day delay in this matter going to trial.
Therefore, he contends that the District Court erred when it denied his motion to dismiss.
We disagree.

¶20 Since 1972, we have reviewed claims that a speedy trial was denied in violation of the
Sixth Amendment to the U.S. Constitution, and Article II, Section 24, of the Montana
Constitution, based on the general guidelines established by the U.S. Supreme Court in
Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. See, e.g., City of
Billings v. Bruce, 1998 MT 186, ¶ 19, 290 Mont. 148, ¶ 19, 965 P.2d 866, ¶ 19 (citations
omitted).

¶21 The Barker test offers four criteria for a court's consideration: (1) the length of the
delay; (2) the reason for the delay; (3) the assertion of the right to a speedy trial by the
defendant; and (4) the prejudice to the defense. See Bruce, ¶ 19 (citing Barker, 407 U.S. at
530, 92 S.Ct. at 2192). As this Court emphasized in Bruce, however, the four factors
established by Barker "are necessarily general guidelines to be applied on a case-by-case
basis to the unique circumstances of each case." Bruce, ¶ 20 (quoting from Barker, 407 U.
S. at 533, 92 S.Ct. at 2193, that "these factors have no talismanic qualities; courts must
still engage in a difficult and sensitive balancing process").

¶22 Primarily at issue here is the fourth element, that Haser suffered prejudice due to the
delay. We stated in Bruce that prejudice sufficient for a dismissal can be established based
on any one or more of the following factors: (1) pretrial incarceration, (2) anxiety and
concern to the defendant, and (3) impairment of the defense. Bruce, ¶ 19 (citing Barker,
407 U.S. at 532, 92 S.Ct. at 2193). Of these concerns, the U.S. Supreme Court has stated
the following about their order of importance:

Of these, the most serious is the last, because the inability of a defendant adequately
to prepare his case skews the fairness of the entire system. If witnesses die or
disappear during a delay, the prejudice is obvious. There is also prejudice if defense
witnesses are unable to recall accurately events of the distant past. Loss of memory,
however, is not always reflected in the record because what has been forgotten can
rarely be shown.Barker, 407 U.S. at 532, 92 S.Ct. at 2193.

¶23 The District Court followed the three-part test in Bruce for determining prejudice, and

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concluded that (1) Haser had been released on his own recognizance prior to trial; (2)
Haser had not suffered any more "inordinate pretrial anxiety" than "any other defendant
charged with a felony" and as time passed and the publicity died down the "tension and
stress on the Defendant lessened;" and (3) Haser's defense was not "impaired or
prejudiced" by the delay, rather, the "State's witnesses have suffered on parts of their
recollection to the benefit of the Defendant."

¶24 Haser's first contention is that the court miscalculated the number of days of delay
attributable to the State, and therefore incorrectly analyzed the "reason for the delay"
prong of the four-part Barker test. We conclude that this argument is without merit.

¶25 As this Court has stated, once the delay attributable to the State exceeds 275 days,
speedy trial analysis is triggered and prejudice is presumed. See Bruce, ¶ 56. Thus,
because 276 days of the 502-day delay were allocated to the State, the burden shifted to
the State to demonstrate that Haser had not been prejudiced by the delay. See Bruce, ¶ 56.
If the State satisfied its burden of demonstrating that Haser had not been prejudiced by the
delay, the burden would have shifted to him to show that he had been prejudiced. See State
v. Hardaway, 1998 MT 224, ¶ 23, 290 Mont. 516, ¶ 23, 966 P.2d 125, ¶ 23. This is one of
the primary functions of the "reason for delay" prong: to conclusively establish a burden
shift for the determination of prejudice. Here, whether the delay attributable to the state
(1)
was 276 days or 418 days (as Haser argues), the State nevertheless bore the initial
burden of showing that the delay did not cause Haser prejudice. Neither party contests this
burden shift, and we conclude that the District Court did not error in assigning the burden
to the State.

¶26 Further, Haser suggests the alleged 418 days of delay attributable to the State "may
have been intentional rather than mere institutional delay." We agree that the
constitutional question of a speedy trial is primarily designed to protect the accused from
oppressive tactics of the prosecution, and that a showing that the delay was an intentional
device to harass or gain tactical advantage over the accused rather than ordinary
"institutional delay" is another primary function of the "reason for delay" prong of the
Barker test. See State v. Heffernan (1991), 248 Mont. 67, 73, 809 P.2d 566, 569 (citing
Barker, 407 U.S. at 529, 92 S.Ct. at 2191). Institutional delays, on the other hand, weigh
less heavily against the State in the Barker balancing process than intentional delays
resulting from oppressive tactics. See Heffernan, 248 Mont. at 73, 809 P.2d at 570
(citation omitted).

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¶27 On appeal, Haser does not support his shadow of an innuendo with reference to any
evidence or authority. We conclude that there was no showing by Haser, or any other
evidence, that the State intentionally delayed his trial to harass him or to gain some tactical
advantage over him. We agree with the State that the reason for its delay here was purely
institutional in nature. See Heffernan, 248 Mont. at 73, 809 P.2d at 570.

¶28 Finally, this Court has never established a threshold number of days that conclusively
establishes the denial of the right to speedy trial without the necessary finding of prejudice
to the defendant. See Bruce, ¶ 56 (citing Doggett v. United States (1992), 505 U.S. 647,
112 S.Ct. 2686, 120 L.Ed.2d 520). Although encouraging the District Court to entertain
such a threshold, Haser does not suggest that this Court should do so now here on appeal,
in light of his claim of error.

¶29 We conclude, therefore, that the District Court did not err in determining that, due to
the length of the institutional delay attributable to the State, the State carried the initial
burden of rebutting the presumption that Haser had been prejudiced by the delay.
Therefore, we turn our attention to the issue of prejudice.

¶30 Of the three factors that a court considers under the "prejudice to the defense" prong
of the Barker test, Haser and the State agree that the first, "pretrial incarceration," is not at
issue.

¶31 As for the next factor, "anxiety and concern to the defendant," Haser contends that the
State essentially offered no evidence to rebut the presumption of prejudice--other than
what amounted to the State calling upon its own investigators to opine that they were not
aware of any anxiety or concern by Haser. Haser argues that "the detectives had neither
the opportunity, the qualifications, nor the inclination to determine whether the defendant
endured anxiety and concern during the 500 days he awaited trial."

¶32 This Court has previously stated, however, that since it is nearly impossible for the
State to prove that anxiety and concern do not exist, the State's burden to show a lack of
anxiety becomes "considerably lighter in the absence of more than marginal evidence of
anxiety." State v. Williams-Rusch (1996), 279 Mont. 437, 452, 928 P.2d 169, 178
(citations omitted).

¶33 Here, the State asserted through testimony and exhibits that to the best of its
knowledge Haser had not undergone any treatment or otherwise suffered any extreme

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distress due to pretrial anxiety or concern, and that he appeared to be maintaining
employment and could continue to pursue business ventures related to the field of
photography. We conclude that the District Court did not err in determining that, based on
this evidence, the State met its burden in rebutting the presumption that Haser experienced
prejudicial "anxiety and concern," during the 500-day delay before trial sufficient to
warrant a dismissal.

¶34 In turn, we agree with the State that the anxieties expressed by Haser in rebuttal at his
motion to dismiss hearing were clearly attributable to the fact that as a proprietor of a
business that held its doors open to the general public, he stood charged of sexual crimes
involving a substantial number of customers who sought his professional services. That
these charges would directly and adversely impact his business as well as his reputation in
the community speak far more to the nature of the crimes themselves than the delay in
commencing the trial--whether that delay was 276, 391, or 418 days. We conclude that, at
best, Haser presented marginal evidence of prejudicial anxiety and concern that can be
attributed to the institutional delay in going to trial.

¶35 The third and final consideration under the element of prejudice, "impairment of the
defense," which is the most important, focusses primarily on a defendant's ability to
adequately prepare his case. Specifically, we look at whether the delay directly affected
the defendant's ability to call witnesses on his own behalf--those who can be located and
accurately recall events--and whether the delay directly diminished and impeded the
defendant's own ability to present any other evidence, or develop a particular theory or
line of defense. See Bruce, ¶ 71-73; State v. Keating (1977), 285 Mont. 463, 475-76, 949
P.2d 251, 259.

¶36 The State, in this instance, argues it sufficiently rebutted the presumption that the
institutional delay in this matter impaired Haser's ability to prepare his defense. In sum,
the State argued to the District Court that it had provided Haser all discoverable materials
that could assist his defense and that none of his witnesses would provide exculpatory
evidence. The State also argued that it had not impaired Haser's ability to assert an
affirmative defense on account of any delay in this matter. On appeal, the State correctly
states that Haser offered no evidence at the speedy trial hearing to restore the presumption
of prejudice on this basis, and asserts that no such argument has been made here.

¶37 Haser does not argue that any of his witnesses were unavailable due to the delay. He
does not dispute that all of his witnesses supplied character testimony only, or that not one

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of his witnesses were present during any of the victims' photo sessions, or that not one of
his witnesses knew or had had any contact with any of the victims. Thus, their memory of
witnessed events would be marginal at best. As the District Court stated, witnesses for the
State--i.e., the victims of the alleged offenses--were far more susceptible to memory loss.

¶38 Further, Haser has not contested here on appeal the State's assertion that it timely
provided him with discoverable information concerning its witnesses and their statements,
materials seized during the search of his business, and any statements he may have made.
Likewise, Haser has not suggested that any such delay in this matter affected his ability to
establish a defense, such as the affirmative defense of "alibi," which he alluded to in the
omnibus hearing in early 1998, and in his February 27, 1998 motion to dismiss. In sum,
Haser has not presented any argument, let alone evidence, that due to the State's delay in
this matter he was not afforded an ample opportunity to review the State's case against
him, refresh his own recollection of events, develop his theory of the case, or establish a
credible affirmative defense.

¶39 Finally, we observe that the focus of Haser's prejudice argument centers on the
"anxiety and concern" factor. Restated, Haser's argument on appeal regarding the factor of
"impairment of defense" is that the State failed to meet its burden and, therefore, he is
relieved of his burden to present evidence of prejudice in rebuttal. We disagree, and
conclude that Haser's ability to prepare his defense was not prejudiced by the delay in this
matter going to trial.

¶40 Accordingly, we affirm the order of the District Court denying Haser's motion to
dismiss for lack of a speedy trial.

Issue 2.

Was the evidence before the jury sufficient to sustain the conviction of sexual
intercourse without consent?

¶41 Haser does not deny that any of the alleged conduct occurred, which includes various
accounts of his hand, thumb, or fingers penetrating each victim's vaginal region. He does
not deny that he deceived the women into submitting to conduct that obviously exceeded
the reasonable boundaries of what constitutes a model's photo session with a professional
photographer. In Haser's brief to this Court he blatantly admits that he used the same "it's
all for the pictures" and "panty line" ploys on both victims to get them to remove their

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underwear, that it was "certainly misleading" for him to put his hand between one of the
victim's legs "up to her vaginal area under the guise of showing her how to pose," and that
both victims fell for his deceptions "hook, line and sinker."

¶42 Instead, Haser focusses this Court's scrutiny of his conviction on the statutory element
"without consent," contending that neither victim was "compelled to submit by force" or
(2)
was "incapable of consent" as required under the governing statutes.

¶43 The State counters by arguing that the victims in this instance were subject to what it
contends was "constructive force," or that force may be implied due to the sudden and
surprise nature of the "sexual attack," and, alternatively, both victims were physically
incapable of consenting because Haser abused his position of power and trust over the
young women, and lulled them into a state of vulnerability not unlike sleep or intoxication.

¶44 Under § 45-5-503, MCA, a person commits the offense of sexual intercourse without
consent if he or she "knowingly has sexual intercourse without consent with another
person." Under the general definitions provided under § 45-2-101, MCA, "sexual
intercourse" includes "penetration of the vulva . . . of one person by a body member of
another person . . ." and "any penetration, however slight, is sufficient." Accordingly, we
conclude that there was sufficient evidence presented at trial for a rational trier of fact to
find that Haser committed the essential element of "sexual intercourse" with the victims
beyond a reasonable doubt.

¶45 Under the definitions provided by § 45-5-501(1), MCA, which are expressly
applicable to the offense of sexual intercourse without consent under § 45-5-503, MCA,
the term "without consent" means:

(a) the victim is compelled to submit by force against the victim or another; or

(b) the victim is incapable of consent because the victim is:

(i) mentally defective or incapacitated; [or]

(3)
(ii) physically helpless . . .

Under § 45-5-501(2), MCA, the term "force" as used in subsection (1), sub-part (a),
means:

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(a) the infliction, attempted infliction, or threatened infliction of bodily injury or the
commission of a forcible felony by the offender; or

(b) the threat of substantial retaliatory action that causes the victim to reasonably
believe that the offender has the ability to execute the threat.

¶46 The instructions presented to the jury by the District Court followed the foregoing
statutory definitions. The jury was also instructed that "Resistance by the victim is not
required to show lack of consent" and that "Force, fear, or threat is sufficient alone to
show lack of consent." This set of instructions is a verbatim recital of § 45-5-511(5),
MCA, which provides provisions generally applicable to sexual crimes.

¶47 Under the general definitions of § 45-2-101, MCA, a person is "mentally
incapacitated" if he or she is "rendered temporarily incapable of appreciating or
controlling the person's own conduct as a result of the influence of an intoxicating
substance." Obviously, this definition has no application to the factual circumstances sub
judice. Under this same statute, a person is "physically helpless" when he or she is
"unconscious or is otherwise physically unable to communicate unwillingness to act." This
statutory definition was not presented to the jury in the court's instructions.

A. The use of "force" under § 45-5-501(1)(a), MCA.

¶48 The State concedes that Haser did not threaten either victim. Thus, in order to satisfy
the "compelled to submit by force" element of "without consent," under §§ 45-5-501 and
503, MCA, there must be evidence that Haser inflicted or attempted to inflict bodily
injury, or committed a forcible felony. Under the general definitions of § 45-2-101, MCA,
"bodily injury" is defined as "physical pain, illness, or an impairment of physical condition
and includes mental illness or impairment." Under the same statute, a "forcible felony"
means "a felony that involves the use or threat of physical force or violence against any
individual." The instructions presented to the jury did not include these statutory
definitions.

¶49 The testimony of the two victims, viewed in a light most favorable to the State,
indicates that they experienced shock, embarrassment, surprise, anger, and perhaps even a
trace of fear during the course of their respective photo sessions with Haser. The State has
not argued, pursuant to state law, that any of these responses are a species of pain, illness,

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or impairment inflicted by Haser in order to compel them to submit to his repeated acts of
digital penetration.

¶50 Instead, the State argues that this Court should follow other jurisdictions that have
construed the essential element of "force" to include "constructive force." See State v.
Brown (N.C. 1992), 420 S.E.2d 147, 150 (stating that the "requisite force may be
established either by actual, physical force or by constructive force in the form of fear,
fright, or coercion") (citation omitted).

¶51 Contrary to the State's argument, however, Montana's statutory scheme accounts for
"constructive force" pursuant to the amended version of § 45-5-501(2), MCA (amended in
1991), which provides that "force" includes threats of bodily injury or "substantial
retaliatory action." Thus, under the current law in Montana, actual physical force is no
longer necessary to satisfy the essential "submit by force" element of the offense of sexual
intercourse without consent. Again, as conceded by the State, there was no evidence
presented at trial that Haser, via his physical or verbal conduct, threatened either victim in
any manner. Mere chicanery simply cannot be construed as a form of force under our
governing statutes. Likewise, evidence that a victim is frozen in a state of shock or in a
state of fear--but not as a result of a threat or as a result of an attempted or actual infliction
of bodily injury or the commission of a forcible felony--is insufficient to establish that a
defendant did in fact use "force" to compel a victim's submission to sexual intercourse.
Thus, we conclude that Haser did not use "force" in compelling the victims to submit to
sexual intercourse.

¶52 The State also argues that this Court should equate "surprise" with "force," and again
turns our attention to case law from other jurisdictions. The State reasons that, due to
Haser's surprise "attacks," the victims were not afforded the opportunity to consent, and
therefore the use of force may be implied by the act of penetration itself. This argument
formed the basis of the State's closing argument to the jury that Haser used force: "If
you're surprised, then the force required to penetrate or the force required to touch is
sufficient to satisfy the force requirement." See State v. Adkins (Mo. 1926), 292 S.W. 422,
426 (stating that "illicit sexual connection" with a woman may be accomplished "through
surprise, when she is awake, but utterly unaware of his intention in that regard" and
therefore "force merely incident to penetration should be deemed sufficient force within
the meaning of the rape statute"). See accord People v. Borak (Ill.App.Ct. 1973), 301 N.
E.2d 1, 5 (citing Adkins and concluding that "force" in the statutory sense is present when
the victim is incapable of consenting to the sexual act involved because she has been given

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no opportunity to consent and that force is "implied when the rape or deviate sexual acts
proscribed by statute are accomplished under the pretext of medical treatment when the
victim is surprised, and unaware of the intention involved"). The prosecution's comments
to the jury, however, were not a correct statement of the law regarding the use of "force"
under our sexual intercourse without consent statutes.

¶53 In contrast to Montana's clear statutory definition of "force," the Illinois court decision
cited by the State recognized that its statutory requirement--that the proscribed sexual
intercourse must be committed "by force and against the will of the other person"--could
be present in certain circumstances "where no actual force is used," and where "no actual
violence is either committed or threatened." See Borak, 301 N.E.2d at 4-5. See also
Brown, 420 S.E.2d at 150 (stating that "'by force and against the will of the other person'
as used in N.C.G.S. § 14-27.5(a)(1) has the same meaning as it did at common law when it
was used to describe an element of rape" and that the element is present if the defendant
"uses force sufficient to overcome any resistance the victim might make").

¶54 In sum, the case law cited by the State, however compelling, simply does not comport
with Montana's clear legislative mandate that "force" must be related somehow to bodily
injury, the attempted infliction of bodily injury, or an actual threat of some kind. We
conclude that "surprise" penetration, alone, is insufficient to establish the essential element
of "without consent" under § 45-5-501(1)(a), MCA, which requires that the victim was
"compelled to submit by force."

¶55 Accordingly, we hold that there was insufficient evidence to support a conviction for
sexual intercourse without consent in that a rational trier of fact could not have properly
found that the essential element of "without consent," based on either victim being
"compelled to submit by force" pursuant to § 45-5-501(1)(a), MCA, had been proven
beyond a reasonable doubt.

B. "Incapable of consent" under § 45-5-501(1)(b), MCA.

¶56 The State next contends that implicit in the definition of "incapable of consent," under
§ 45-5-501(1)(b), MCA, is the notion that the victim must have an opportunity to consent
or to communicate a lack of consent, and suggests that Haser, as a professional
photographer, managed to exploit his position of trust with the young hopeful models and
thereby "lull" his victims into a state of mind analogous to intoxication or sleep, which
satisfy, respectively, the statutory requirements of being mentally incapacitated or

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physically helpless. See State v. Graves (1995), 272 Mont. 451, 457, 901 P.2d 549, 553
(victim "passed out" due to use of alcohol); State v. Lundblade (1986), 221 Mont. 185,
187, 717 P.2d 575, 577 (victim sound asleep and did not consent to sexual acts with
defendant); State v. Gould (1995), 273 Mont. 207, 221, 902 P.2d 532, 541 (sufficient
evidence for the jury to find beyond a reasonable doubt that victim was mentally
incapacitated due to intoxication).

¶57 The "incapable of consent" alternative under the "without consent" definition of § 45-
5-501, MCA, was not argued by the State in closing argument to the jury, but was
included in the jury instructions and recited to the jury by the District Court. As noted, the
statutory definition of "physically helpless," which is the only viable argument that the
victims here were "incapable of consent" under § 45-5-501, MCA, was not presented to
the jury.

¶58 Contrary to the State's argument, we conclude there is indeed a "logical difference"
between Haser's sexual intercourse with the two victims and sexual intercourse with a
sleeping or intoxicated victim. Namely, the victims here were awake and sober. Both were
therefore conscious and physically capable of communicating an unwillingness to act,
pursuant to §§ 45-5-501(1)(b)(ii) and 45-2-101, MCA, which defines "physically helpless."

¶59 Further, contrary to the State's encouragement, we are not at liberty to read into the
already thoroughly defined statutory term "incapable of consent" such implicit notions as
"opportunity to consent" or "awake and sober but unaware" to fit those circumstances
where the victim has been "lulled" by another person. See State v. Goodwin (1991), 249
Mont. 1, 22-23, 813 P.2d 953, 966 (quoting 73 Am.Jur.2d Statutes § 295). Although we
must construe the provisions of a penal statute "according to the import of their terms with
a view to effect its object and to promote justice" (see § 45-1-102(2), MCA), the
Legislature has provided specific definitions of the specific conditions that render a person
"incapable of consent" under § 45-5-501(1)(b), MCA--statutory definitions which are
noticeably absent from the State's argument here, and were not addressed by the State at
trial in its development of its theory of the case or incorporated in its instructions to the
jury.

¶60 We therefore conclude that there was insufficient evidence to support a conviction for
sexual intercourse without consent. We hold that a rational trier of fact could not have
properly found that the essential element "without consent" due to the victims being
"incapable of consent" pursuant to § 45-5-501(1)(b), MCA, had been proven beyond a

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reasonable doubt.

¶61 In sum, there was simply no evidence offered at Haser's trial that either victim was
compelled to submit to his digital penetration by "force" or that either victim was
"incapable of consent" because she was mentally incapacitated or physically helpless.
Accordingly, without such evidence, a rational trier of fact could not have found that the
essential element "without consent" had been proven by the State beyond a reasonable
doubt. We therefore reverse that portion of the District Court's judgment that determined
that Haser was guilty of the offense of sexual intercourse without consent.

¶62 Accordingly, the judgment of the District Court is affirmed in part, reversed in part,
and remand for further proceedings consistent with this opinion.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY

/S/ JIM REGNIER

/S/ W. WILLIAM LEAPHART

1. In its response brief to Haser's motion to dismiss, the State conceded that is was responsible for 391
days of delay.

2. Haser does not challenge his conviction for sexual assault involving a total of 11 women, all of whom
he similarly deceived with his self-described "it's all for the camera" scheme. Like the crime of "sexual
intercourse without consent" an element of sexual assault is "without consent." See § 45-5-502, MCA.
The definition of "without consent," provided under § 45-5-501, MCA, however, is expressly applicable
only to the offense of sexual intercourse without consent, § 45-5-503, MCA. The Legislature has not
similarly defined the term as used in the sexual assault statute. Regardless, Haser has not argued that his
sexual assault conviction should be reversed on the grounds argued under issue two.

3. The jury at Haser's trial was instructed on both subsection (a) and (b)(i)-(ii) of the "without consent"
definition, with the exception of the "mentally defective" requirement.

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