No. 01-422
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 181
STATE OF MONTANA,
Plaintiff and Respondent,
v.
HAROLD LEE STEVENS,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula,
Honorable Ed McLean, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Richard R. Buley, Tipp & Buley, Missoula, Montana
For Respondent:
Honorable Mike McGrath; Attorney General; Mark W. Mattioli,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, County Attorney; Suzy Boylan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: November 29, 2001
Decided: August 22, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 Harold Lee Stevens appeals from the Fourth Judicial District
Court’s judgment of conviction of three counts of sexual
intercourse without consent and three counts of sexual assault. We
affirm in part, reverse in part and remand for proceedings in
accordance with this opinion.
¶2 The following issues are presented on appeal:
¶3 (1) Was the evidence before the jury sufficient to sustain the
convictions of sexual intercourse without consent?
¶4 (2) Was the evidence before the jury sufficient to sustain the
convictions of sexual assault?
¶5 (3) Did the District Court err in admitting testimony
regarding whether the victims believed Harold Lee Stevens’ actions
constituted a crime and their subsequent emotional distress?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Harold Lee Stevens (Stevens) operated a massage business in Comment [COMMENT1]: Tr 298
Missoula, Montana. He advertised his business as HLS Massage, or Comment [COMMENT2]: Tr 90-
91
“Healing Life’s Stress.” Stevens performed massages on a massage Comment [COMMENT3]: Tr 58-
59
table in a small room in which only his clients and he were Comment [COMMENT4]: Tr 295
present. Stevens displayed his massage training diploma and Comment [COMMENT5]: Tr 35
Comment [COMMENT6]: Tr 65
business license in the room. Comment [COMMENT7]: Tr 35
Comment [COMMENT8]: Tr 91
¶7 After escorting his female clients to the massage room,
Comment [COMMENT9]: Tr 94-
95
Stevens would routinely hand them a sheet and step outside while
Comment [COMMENT10]: Tr 119
they undressed. Some clients chose to fully undress while others Comment [COMMENT11]: Tr 159
Comment [COMMENT12]: Tr 113
would wear their undergarments. All would cover themselves with a
Comment [COMMENT13]: Tr 35
sheet. Stevens would then knock on the door, ask the client if she Comment [COMMENT14]: Tr 94-
95
Comment [COMMENT15]: Tr 91
2
Comment [COMMENT16]: Tr 234
was ready and, if so, he would enter the room. The lights in the Comment [COMMENT17]: Tr 35
massage room were low, and Stevens played soft music during the
Comment [COMMENT18]: Tr 242
massage. Some clients covered their eyes with a small eye pillow.
Stevens’ clients testified at trial that they sought massages for
relaxation, stress relief, or to treat their physical injuries or
Comment [COMMENT19]: Tr 32,
ailments. 57, 87, 119, 152; p. 3 state
brief
Comment [COMMENT20]: Tr 159
¶8 Prior to beginning the massage, Stevens typically asked his eye pillow
Comment [COMMENT21]: Tr 95
clients if there were any problem areas of the body upon which he
Comment [COMMENT22]: Tr 112
should focus. Also, before or during the massage, Stevens Comment [COMMENT23]: Tr 111
Comment [COMMENT24]: Tr 33-
sometimes requested that his clients tell him if he did anything 35
Comment [COMMENT25]: Tr 238
they did not like. However, very little other conversation or Comment [COMMENT26]: Tr 255
“small talk” occurred during the massage. The massage usually
commenced with the clients lying on their stomachs, and then, at
Stevens’ request, they would turn over onto their backs for the
Comment [COMMENT27]: Tr 238
remainder of the massage. Comment [COMMENT28]: Tr
209-210
¶9 On May 11, 1999, the State filed an Information charging Comment [COMMENT29]: Tr 113
Stevens with three counts of sexual intercourse without consent,
three counts of misdemeanor sexual assault and one count of witness
tampering. Subsequently, the State filed an Amended Information
charging five counts of sexual intercourse without consent, one
count of attempted sexual intercourse without consent, five counts
of misdemeanor sexual assault and one count of witness tampering.
The case proceeded to trial on November 27, 2000.
¶10 At Stevens’ trial, Darlene testified that she sought a full-
body massage from Stevens. She testified that she specifically told
Stevens that she believed this entailed everything except her
3
breasts and genitals. She admitted, however, that she did not
remember making this statement to the police and a private
investigator after the incident. After the first massage, Darlene
felt comfortable with Stevens, and she made a second appointment
Comment [COMMENT30]: Tr 37
for the next morning. The night before the second massage, Darlene Comment [COMMENT31]: Tr 37
took a Tylenol PM and was still “sleepy” when she arrived for the
Comment [COMMENT32]: Tr 39
massage. Comment [COMMENT33]: Tr 34
Comment [COMMENT34]: Tr 49-
¶11 During the first part of this massage, while laying on her 53
stomach, Darlene fell asleep. Although she woke up when Stevens
asked her to turn over onto her back, she fell asleep again as
Stevens continued. She awoke a second time when she felt the
Comment [COMMENT35]: Tr 39
sensation of something inside her vagina. She opened her eyes and
saw Stevens laying on top of her sucking on her breast. His
Comment [COMMENT36]: Tr 39
fingers were inside of her vagina. Stevens had taken off his shirt
and he had an erection. Darlene noticed that the sheet that had
been covering her was set aside on a table. After a few seconds,
when Darlene realized what was happening, she put her hand on
Comment [COMMENT37]: Tr 40
Stevens’ forehead and pushed him back. Upon her request, Stevens
handed her a towel and left the room. After leaving, Darlene went
Comment [COMMENT38]: Tr 43
to the emergency room and reported the incident to the police. The
jury convicted Stevens of committing sexual intercourse without
consent against Darlene.
¶12 Erin testified that she received several massages from
Comment [COMMENT39]: Tr 210
Stevens. She had confidence in Stevens, and she referred others to
Comment [COMMENT40]: Tr 211
him. During her last massage with Stevens, she stated that she
stayed awake while lying on her stomach. Although she was awake
4
Comment [COMMENT41]: Tr 213
and aware of her surroundings, she was numb and almost asleep. Comment [COMMENT42]: Tr 212
After she turned over onto her back, she fell asleep, but awoke
Comment [COMMENT43]: Tr 224
when Stevens moved to another section of the massage table. Erin
was not concerned or uncomfortable when she first awoke. She
Comment [COMMENT44]: Tr 225
stated that she was awake, but in a “total relaxed state.” Comment [COMMENT45]: Tr 227
¶13 Soon thereafter Stevens started massaging Erin’s breasts and
nipples. She was aware of, and remembered, Stevens’ actions and
that Stevens did not threaten her. Nevertheless, Stevens’ behavior
Comment [COMMENT46]: Tr 215
surprised her and her body and mind “froze.” Stevens put his hand
inside Erin’s underwear and rubbed her clitoris, penetrating the
outer lips of her vagina. Stevens proceeded to lick her nipple,
Comment [COMMENT47]: Tr 217
thigh and vagina. All of the touching lasted approximately 10
Comment [COMMENT48]: Tr 217
minutes. Erin stated that Stevens’ actions made her feel Comment [COMMENT49]: Tr
224-227
“horrible,” but her mind and body were frozen and she was scared to Comment [COMMENT50]: Tr 216
Comment [COMMENT51]: Tr 217
do anything to stop him. The touching stopped after Stevens asked
if what he was doing was okay, and Erin responded, “no.” At that
point, Stevens got off of the table, quickly finished the massage
Comment [COMMENT52]: Tr 221
and then left the room. As she was leaving, Stevens asked Erin if Comment [COMMENT53]: Tr 219
she wanted this type of behavior to happen again. Erin responded
that she did not, but that she would return “just because [she]
wanted to get out of there.” Erin contacted the police a few hours
later. The jury concluded Stevens committed sexual intercourse
without consent against Erin.
Comment [COMMENT54]: Tr 229
¶14 Jody testified that she received massages from Stevens for a
Comment [COMMENT55]: Tr 235
sciatic nerve injury. She thought Stevens was very professional
and thorough, and, over time, she increasingly trusted and felt
5
Comment [COMMENT56]: Tr 235
comfortable with Stevens. She testified that during these massages
she would not fall completely asleep, but she would be “in a very
far away place.”
¶15 At her last massage with Stevens, he proceeded with the
Comment [COMMENT57]: Tr
massage as usual. Jody testified that during the massage, she fell 241, 245, 259
Comment [COMMENT58]: Tr 243
into a deeply relaxed “dream state” or “sleep rem stage.” She
Comment [COMMENT59]: Tr 238
stated that she wore an eye pillow. At one point, Stevens, as was
customary, asked Jody to inform him if he did something she did not
Comment [COMMENT60]: Tr 238
like. Jody understood this question to mean that she should tell
Comment [COMMENT61]: Tr 239
Stevens if he caused pain to a muscle during the massage.
¶16 After Jody turned onto her back for the second portion of the
massage, Stevens began to massage her breast area and her nipples.
Comment [COMMENT62]: Tr 260
Jody stated that she was aware of the sensation of Stevens Comment [COMMENT63]: Tr 261
Comment [COMMENT64]: Tr 240
massaging her breasts, and she stopped breathing. Stevens then
Comment [COMMENT65]: Tr
243-44
kissed her stomach, and she became “glued to the table.” She “came
Comment [COMMENT66]: Tr 262
out of the dream state” and Stevens was between her legs. Jody
stated that Stevens proceeded to penetrate the outer lips of her
Comment [COMMENT67]: Tr
vagina with his tongue. She also testified that, immediately after 264-65
the incident, she was unsure if Stevens penetrated her vaginal
Comment [COMMENT68]: Tr 259
canal. Comment [COMMENT69]: Tr 242
¶17 Although she was afraid, Jody did not respond to Stevens’
actions initially in order to avoid confrontation with him and a
possible further attack. After a few moments, Jody said, “this
Comment [COMMENT70]: Tr 244
isn’t a good idea,” and Stevens stopped, jumped off of the massage
table and apologized. Stevens finished the massage and left the
room. Jody reported the incident to the police the next day. The
6
jury convicted Stevens of sexual intercourse without consent
against Jody.
Comment [COMMENT71]: Tr 91
¶18 Jennifer testified that she received massages from Stevens on
Comment [COMMENT72]: Tr 93
two occasions. During the first massage, Stevens was very Comment [COMMENT73]: Tr 93
professional, and she felt comfortable with him and began to trust
Comment [COMMENT74]: Tr 93
him. As a result, she sought Stevens’ services a second time. The
Comment [COMMENT75]: Tr 95
second massage began with her lying on her back, and Stevens
Comment [COMMENT76]: Tr 96
massaged her breasts for about ten minutes. He then massaged her
Comment [COMMENT77]: Tr 107
pubic and buttocks areas without touching her vagina. She stated
she did not agree with Stevens’ actions and felt angry and
disgusted with herself for not leaving, but she did not voice her
concerns because she “just wanted out and wanted to go home where
Comment [COMMENT78]: Tr 98-
[she] felt safe.” Jennifer reported the incident. The jury 99
convicted Stevens of sexual assault against Jennifer.
Comment [COMMENT79]: Tr 152
¶19 Elizabeth testified that she received massages from Stevens
Comment [COMMENT80]: Tr 158
several times. She felt comfortable with Stevens, trusted him and Comment [COMMENT81]: Tr 155
entered a “relaxed state” while Stevens performed massages. During
her last massage with Stevens, he asked Elizabeth to tell him if he
Comment [COMMENT82]: Tr 161
did anything that made her uncomfortable. She thought the question
Comment [COMMENT83]: Tr 161
was “completely out of the ordinary” and “alarming.”
Comment [COMMENT84]: Tr 161
¶20 Shortly thereafter, Stevens, breathing heavily, began rubbing
Comment [COMMENT85]: Tr
and pinching Elizabeth’s nipples. She felt Stevens’ erect penis 161-62
Comment [COMMENT86]: Tr 162
against her upper arm. Elizabeth stated Stevens’ actions took her
Comment [COMMENT87]: Tr 162
by surprise. Stevens then peeled back the sheet covering Elizabeth
and pressed his hand on her pubic area and put his fingers between
her legs without penetrating her vulva. Elizabeth, believing
7
Stevens might rape her, lunged forward, picked up the sheet,
covered herself and said, “Stop.” Stevens stopped his actions and
Comment [COMMENT88]: Tr 164
finished the neck and facial portion of the massage. Elizabeth
testified that she knew she was alone in the building with Stevens
Comment [COMMENT89]: Tr 165
and that no one would hear her if she cried out. She believed it
would be unsafe to confront Stevens. Elizabeth promptly reported
the incident. The jury convicted Stevens of sexually assaulting
Elizabeth.
¶21 Tahra testified that she received two massages from Stevens.
Comment [COMMENT90]: Tr
After the first massage, Tahra felt comfortable with Stevens, and 172-73
Comment [COMMENT91]: Tr 175
she returned for her first full-body massage. After approximately
one hour, Stevens told Tahra to turn over and he removed the sheet
Comment [COMMENT92]: Tr 176
covering her body, leaving her completely exposed. Stevens
massaged her breasts in what she described as a “groping session.”
Comment [COMMENT93]: Tr 176
She stated that she trusted him and was not sure if the full-body
Comment [COMMENT94]: Tr 177
massage was proceeding normally. Although she did not feel Comment [COMMENT95]: Tr 184
Comment [COMMENT96]: Tr 185
physically threatened by Stevens, she testified she felt “like a
deer in headlights,” frozen, naked and vulnerable. Stevens stopped
massaging Tahra’s breast and, while massaging her legs, Tahra
testified that his finger brushed her clitoris four or five times
in rapid succession. At that point, Tahra said, “That’s enough.
I’m done.” Stevens responded, “Okay,” and abruptly left. The jury
acquitted Stevens of sexual intercourse without consent, but the
jury convicted him of sexual assault against Tahra.
¶22 Stevens was acquitted of the six other counts that the State
charged. Stevens appeals the sufficiency of the evidence
8
supporting the convictions described above as well as the admission
of portions of the victims’ testimony.
STANDARD OF REVIEW
¶23 The Court reviews 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. State v. Haser, 2001 MT 6, ¶ 18, 304 Mont. 63, ¶
18, 20 P.3d 100, ¶ 18 (citing State v. Berger, 1998 MT 170, ¶ 25,
290 Mont. 78, ¶ 25, 964 P.2d 725, ¶ 25).
¶24 We review a district court’s evidentiary rulings for an abuse
of discretion. State v. Osborne, 1999 MT 149, ¶ 14, 295 Mont. 54,
¶ 14, 982 P.2d 1045, ¶ 14. The district court has broad discretion
to determine whether evidence is relevant and admissible. Absent a
showing of an abuse of discretion, the trial court’s determination
will not be overturned. Osborne, ¶ 14.
DISCUSSION
¶25 (1) Was the evidence before the jury sufficient to sustain the
convictions of sexual intercourse without consent?
¶26 For purposes of our review, we note that the incident
involving Darlene occurred on July 3, 1996, and, thus, the 1995
versions of §§ 45-5-503, 45-5-501(2), and 45-2-101(56), MCA, apply.
As to the other sexual intercourse without consent incidents, the
1997 version of the statutes apply.
¶27 Under § 45-5-503, MCA, a person commits the offense of sexual
intercourse without consent if he or she “knowingly has sexual
9
intercourse without consent with another person.” Stevens claims
the State failed to prove the “without consent” element beyond a
reasonable doubt.
¶28 In relevant part, the term “without consent” is defined in §
45-5-501, MCA:
(a) the victim is compelled to submit by force against
himself or another; or
(b) the victim is incapable of consent because he is:
(i) mentally defective or incapacitated; [or]
(ii) physically helpless . . .
¶29 In pertinent part, the term “force” is defined in § 45-5-
501(2), MCA, as the infliction, attempted infliction, or threatened
infliction of bodily injury or the commission of a forcible felony
by the offender.
¶30 “Physically helpless” means that a person is unconscious or is
otherwise physically unable to communicate unwillingness to act.
Section 45-2-101(56), MCA. The Commission Comments regarding the
definition of “physically helpless” state:
This definition is used in conjunction with the new
section describing when a person is deemed to be
incapable of consenting to a sexual act. The term should
be compared to other states of incapacity defined in the
code such as “mentally defective” . . . and “mentally
incapacitated” . . . . Under this definition a person who
is paralytic or drugged to unconsciousness is deemed
helpless. The definition is taken directly from New York
law as is much of the new Chapter 5 of Title 45 on sexual
offenses.
¶31 Whether a victim is “physically helpless” at any given moment
is largely a question of fact for the jury to decide. People v.
Yankowitz (1991), 564 N.Y.S.2d 488, 489 (citing People v. Irving
(1989), 542 N.Y.S.2d 693, 694; People v. Teicher (N.Y. 1981), 422
Comment [COMMENT97]: D brf
N.E.2d 506, 511). 16
10
¶32 Stevens argues that there is no evidence that Stevens used any
force or the threat of force against the victims. Citing Haser, he
contends that surprise and fear do not equate with force.
Comment [COMMENT98]: D brf
¶33 Stevens also argues that there was no evidence of “physically 17
Comment [COMMENT99]: D brf
helpless” as set forth in § 45-2-101(56), MCA. He states that all 18
of the victims in this case were completely rational, sober, awake
Comment [COMMENT100]: D brf
and able to communicate and respond. Stevens relies upon three 28
Comment [COMMENT101]: D brf
18-19
New York cases in which alleged victims of sexual intercourse
without consent who could speak or verbally communicate in some
way, such as the victims here, were not considered “physically
helpless.” People v. Clyburn (1995), 623 N.Y.S.2d 448 (victim
afflicted with Huntington’s Chorea who could speak not “physically
helpless”); People v. Huurre (1993), 603 N.Y.S.2d 179 (profoundly
mentally retarded woman who could grunt and mumble not “physically
helpless”); and People v. Morales (1988), 528 N.Y.S.2d 286 (woman
unable to move her arms or legs due to muscular dystrophy not
“physically helpless” since she could speak).
¶34 Stevens also insists that, according to the plain language of
the “physically helpless” definition and the Commission Comments,
“physically helpless” does not equate to surprise, dream states,
dozing or any other condition less than someone who is unconscious
or paralytic. Stevens emphasizes that sleep is not part of the
definition of “physically helpless.” Citing State v. Graves (1995),
272 Mont. 451, 901 P.2d 549, Stevens argues that there is a
difference between sleeping and being unconscious.
11
Comment [COMMENT102]: D brf
¶35 Alternatively, Stevens contends that even if the victims were 27
“physically helpless,” there is no evidence that he knew they were
“unconscious or otherwise physically unable to communicate
unwillingness to act.”
¶36 In response, the State contends that the jury could have
reasonably determined that it proved “without consent” beyond a
Comment [COMMENT103]: St 23
reasonable doubt. It points out that, in addition to receiving the
“paralytic” and “drugged” examples of “physically helpless,” the
jury in this case was also instructed, without objection, that
Comment [COMMENT104]: St 25
these were non-exclusive examples of “physically helpless.” The Comment [COMMENT105]: St 24
State maintains that sleep is a temporary state of unconsciousness,
and, therefore, the Court should now hold that sleep can constitute
“physically helpless” under §§ 45-2-101 and 45-5-501(1)(b)(ii),
MCA.
Comment [COMMENT106]: St 27
¶37 The State goes on to argue that “physically helpless” is not
limited to victims who are sleeping or completely lack the mental
Comment [COMMENT107]: St 29
or physical capacity to communicate. It insists that the
“physically helpless” definition is broad enough to include an
individual who is, as a practical matter, physically unable or
powerless to stop what is happening due to an induced physical
condition and/or fear of bodily injury. In other words, the State
claims a victim need not be literally unable to consent. The State
emphasizes that it was within the jury’s province to determine
whether the victims were “physically helpless” and concludes that,
in this case, the jury could have reasonably concluded that the
sleepy and groggy condition Stevens induced was comparable to an
12
Comment [COMMENT108]: St
involuntary drugged condition since the victims’ ability to 31-32
appreciate what was happening was markedly diminished.
Comment [COMMENT109]: St 33
¶38 Up to this point, we have not directly addressed whether sleep
constitutes “physically helpless” for the purposes of §§ 45-2-
101and 45-5-501(1)(b)(ii), MCA. Indirectly, however, we have
concluded that sleeping victims could not consent to sexual
intercourse. In State v. Lundblade (1986), 221 Mont. 185, 717 P.2d
575, the victim testified that she was sound asleep and awoke to
find the defendant performing oral sex on her. Lundblade, 221
Mont. at 186-87, 717 P.2d at 576-77. The Defendant was convicted
of sexual intercourse without consent. While we reversed his
conviction after concluding that the State failed to prove the
“penetration” element of the offense, we held that a rational juror
could have properly found that the element of lack of consent was
proven beyond a reasonable doubt. Lundblade, 221 Mont. at 187, 717
P.2d at 577.
¶39 In Graves, the victim “passed out” on her bed after a night of
drinking, and she was awakened when she felt the defendant
penetrating her vagina. Graves, 272 Mont. at 457, 901 P.2d at 553.
The defendant was convicted of sexual intercourse without consent.
Similar to Stevens, the defendant in Graves argued that the Court
had not held that a sleeping victim was “physically helpless” and,
in any event, the victim was not asleep during intercourse.
Graves, 272 Mont. at 456, 901 P.2d at 553. We held that a rational
juror could have found the essential elements of sexual intercourse
13
without consent beyond a reasonable doubt. Graves, 272 Mont. at
457-58, 901 P.2d at 553.
¶40 Most recently, in Haser, a case in which sexual intercourse
without consent was alleged against a professional photographer, we
distinguished between victims who were sleeping and victims who
were awake for purposes of determining whether a person was
“physically helpless”:
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.”
Haser, ¶ 58.
¶41 Montana derived its definition of “physically helpless” from
the New York penal code. New York appellate courts construing the
“physically helpless” definition like Montana’s have held that
“[i]t is well settled that the definition of physically helpless is
broad enough to cover a sleeping victim.” People v. Sensourichanh,
737 N.Y.S.2d 670, 671-72 (citations omitted). This is the case
whether the sleep is drug induced or normally achieved. People v.
Copp (1996), 648 N.Y.S.2d 492, 493 (it is axiomatic that sleep is
the antithesis of awareness and renders one unable to make a
conscious choice whether the sleep is induced by drugs or normal
processes).
¶42 In the same vein, a Virginia court of appeals upheld a rape
conviction after construing a “physically helpless” definition
similar to Montana’s. Woodward v. Commonwealth (Va. Ct. App.
14
1991), 402 S.E.2d 244. It concluded that even if the sleeping
victim had some sensory perception during an attack, it did not
mean that she was not unconscious or “physically helpless.”
Woodward, 402 S.E.2d at 245-46. The court reasoned that “common
experience tells us that sleep is not an all or nothing condition.”
Woodward, 402 S.E.2d at 246.
¶43 Upon reviewing our prior case law as well that of New York and
Virginia, we now hold that a sleeping victim of sexual intercourse
without consent is “physically helpless” for purposes of §§ 45-2-
101 and 45-5-501(1)(b)(ii), MCA. The statutory definition of
“physically helpless” is broadly worded to encompass a person who
is sleeping since such a person is temporarily unconscious or is
otherwise physically unable to communicate unwillingness to act.
In other words, a sleeping victim cannot consent to sexual
intercourse. Whether a victim is indeed sleeping, and thus
“physically helpless,”is a fact question for the jury.
¶44 Here, Darlene testified that she took a Tylenol P.M. the night
before her second massage with Stevens. She also testified that
she fell asleep during the massage and awoke when she felt the
Comment [COMMENT110]: D 20
sensation of something inside her vagina. Stevens admits that
Darlene was asleep but argues that because she awoke when Stevens
asked her to turn over onto her back, “Obviously, she was not in a
very deep sleep.”
¶45 Even if Darlene had some sensory perception during Stevens’
acts, viewing the evidence in a light most favorable to the
prosecution, we hold that any rational trier of fact could have
15
found that Darlene was asleep, and thereby “physically helpless,”
when Stevens, admittedly, had sexual intercourse with her.
Credible evidence in the record supports the jury’s determination
that Stevens had sexual intercourse without consent with Darlene,
and we affirm Stevens’ conviction with respect to Darlene.
¶46 We cannot similarly conclude with respect to Jody and Erin.
Jody testified that during her massage, she fell into a deeply
Comment [COMMENT111]: Tr
relaxed “dream state” or “sleep rem stage,” but she was aware of 243
Comment [COMMENT112]: Tr
260
the sensation of Stevens massaging her breasts. At this point, she
Comment [COMMENT113]: Tr
261
“stopped breathing.” When Stevens kissed her stomach, she stated
Comment [COMMENT114]: Tr
240
that she became “glued to the table.” Erin testified that she was
Comment [COMMENT115]: Tr
243-44
awake and aware of her surroundings, but she was numb and almost
Comment [COMMENT116]: Tr
262
asleep. Although at one point she did fall asleep, she awoke and
Comment [COMMENT117]: Tr
259
was in a “total relaxed state.” Erin testified that she was aware Comment [COMMENT118]: Tr
242
of, and remembered, Stevens’ actions, and her body “froze” out of Comment [COMMENT119]: Tr
213
fear. Comment [COMMENT120]: Tr
212
¶47 The State compares Jody’s and Erin’s circumstances to those in Comment [COMMENT121]: Tr
224
Teicher. In Teicher, the victim was heavily sedated by her Comment [COMMENT122]: Tr
225
dentist and in an “extremely weakened condition” in which she had Comment [COMMENT123]: Tr
227
little control over her body. Teicher, 422 N.E.2d at 510. Here,
Jody and Erin were not sedated and, although frightened, they had
control over their bodies. As such, the State’s reliance on
Teicher is misplaced.
¶48 The circumstances of this case resemble those in Haser where
we rejected the State’s argument that “lulling” victims into a
state of mind analogous to intoxication or sleep was sufficient to
16
show “physically helpless.” See Haser, ¶¶ 56, 59. Like the
victims in Haser, Jody’s and Erin’s testimony indicates that they
were awake and sober during Stevens’ sexual acts. We are not at
liberty to read into the already thoroughly defined statutory term
“incapable of consent” such implicit notions as being “lulled” into
a “dream state” or “total relaxed state.” See Haser, ¶ 59.
¶49 Accordingly, we adhere to the distinction we drew in Haser
between sexual intercourse with victims who are asleep versus
victims who are awake, sober, and therefore conscious and otherwise
physically capable of communicating unwillingness to act. The
latter victims are not “physically helpless.”
¶50 Here, considering the evidence in a light most favorable to
the prosecution, we conclude that no rational trier of fact could
have found that Jody and Erin were “physically helpless” under §§
45-5-501(1)(b)(ii) and 45-2-101, MCA. While Jody and Erin were in
a relaxed or dream state during their massages, there is simply no
credible evidence in the record demonstrating that they were
unconscious or otherwise physically unable to communicate
unwillingness to act.
¶51 We also conclude that Jody and Erin were not compelled to
submit to Stevens’ actions by “force” as defined in § 45-5-
501(2)(a), MCA. The State claims that the “force” element was met
in this case because the women, who were too frozen, frightened and
“physically helpless” to resist, experienced more than just a
Comment [COMMENT124]: St
“trace of fear” as in Haser. Admitting there was no direct 35-36
evidence of a threat of bodily injury or rape, the State contends
17
the threat was implicit in Stevens’ sexually assaultive behavior.
¶52 While the State contends that Jody’s and Erin’s fear indicated
that Stevens implicitly threatened them, there exists no evidence
in the record that the victims’ fear was a result of Stevens’
infliction, attempted infliction or threatened infliction of bodily
injury. As such, there was no “force.” Haser, ¶ 51.
¶53 In sum, the State offered no evidence at Stevens’ trial that
Jody and Erin were incapable of consent due to “force” or being
“physically helpless.” Accordingly, without such evidence, a
rational trier of fact could not have found that the State proved
the essential element “without consent” beyond a reasonable doubt.
We therefore reverse that portion of the District Court’s judgment
determining that Stevens was guilty of the offense of sexual
intercourse without consent with respect to Jody and Erin.
¶54 However, on appeal, we may reduce the offense of which the
appellant was convicted to a lesser included offense. Section 46-
20-703(3), MCA. Whether sexual assault is a lesser included
offense of sexual intercourse without consent has not been
determined as a matter of law, and the issue is not before us now.
Yet, in resolving prior appeals, we have assumed for the purposes
of individual decisions that sexual assault is a lesser included
offense. State v. Black (1995), 270 Mont. 329, 891 P.2d 1162;
State v. Sheppard (1995), 270 Mont. 122, 890 P.2d 754; State v.
Ogle (1992), 255 Mont. 246, 841 P.2d 1133; State v. Sheppard
18
(1992), 253 Mont. 118, 832 P.2d 370; Lundblade, 221 Mont. at 188-
89, 717 P.2d at 578.
¶55 We recognize that the dissent in Black criticized this
approach. It reasoned that if it was assumed that sexual assault
was not a lesser included offense of sexual intercourse without
consent, the defendant in Black, who was never charged with sexual
assault and who was convicted in a bench trial, was not reasonably
appraised of the charges against him in violation of his due
process rights. Black, 270 Mont. at 339-41, 891 P.2d at 1168-69.
¶56 Here, unlike in Black, there is no question that Stevens was
reasonably appraised of the sexual assault charges lodged against
him. Stevens proposed a jury instruction, which the court gave
without objection, stating that the crime of sexual intercourse
“necessarily includes the lesser crime of sexual assault.” It also
stated that the jury could convict Stevens of sexual assault in the
event that it was not satisfied that he was guilty of sexual
intercourse without consent beyond a reasonable doubt. The verdict
form was drafted in accordance with this instruction. Indeed, the
jury reached a guilty verdict on the “lesser offense” of sexual
assault with respect to Tahra.
¶57 Stevens clearly wanted the jury to have the option of
convicting him of what he assumed was the lesser included offense
of sexual assault. Accordingly, for the purposes of this decision,
we will assume that sexual assault is a lesser included offense of
sexual intercourse without consent. Based upon our discussion
below, we hold that the State proved beyond a reasonable doubt
19
that, under § 45-5-502, MCA (1997), Stevens committed sexual
assault against Jody and Erin. We therefore modify the District
Court’s judgment by reducing the offense of which Stevens was
convicted to sexual assault pursuant to § 46-20-703(3), MCA.
¶58 (2) Was the evidence before the jury sufficient to sustain the
convictions of sexual assault?
¶59 A person who knowingly subjects another person to any sexual
contact without consent commits the offense of sexual assault.
Section 45-5-502(1), MCA (1997). At the time of the incidents in
this case, sexual contact was defined as “any touching of the
sexual or other intimate parts of the person of another for the
purpose of arousing or gratifying the sexual desire of either
party.” Section 45-2-101(65), MCA (1997). Unlike in the case of
sexual intercourse without consent, the term “without consent” is
undefined for purposes of sexual assault and, instead, has its
ordinary meaning. State v. Detonancour, 2001 MT 213, ¶ 64, 306
Mont. 389, ¶ 64, 34 P.3d 487, ¶ 64.
Comment [COMMENT125]: D 31
¶60 Stevens contends that there was insufficient evidence to
sustain the sexual assault convictions. Stevens does not contest
that “sexual contact” was proven beyond a reasonable doubt.
However, he argues that the State failed to prove Stevens
“knowingly acted without consent.” Essentially, Stevens claims
that since the victims in this case failed to “communicate” their
dissatisfaction when he initiated sexual contact during the
massage, he could not have possibly known that they did not find
20
the contact “agreeable.” He also maintains no wrongdoing because
when the victims asked him to stop, he did.
Comment [COMMENT126]: D 34
¶61 Incredibly, Stevens analogizes the facts of this case to a
dating scenario in which he describes a “young man” who,
progressively, touches a “young lady’s” back, thigh, breast and
pubic region without objection. Stevens states that the young man
should not later be charged with sexual assault because he should
have known that the young lady did not want to be touched on the
breast or pubic region. He asks, “Are we willing to say the young
man should go to jail because he was not a skilled enough mind
Comment [COMMENT127]: D 34
reader? There is no difference between the young man and Stevens.
The fact that Stevens is a masseuse makes no difference because
one’s profession is not a factor in the law.”
¶62 The State insists that Stevens inappropriately and
outlandishly characterizes obtaining a professional massage as a
“date.” The State maintains that while a dating person may
anticipate sexual touching, Stevens’ massage clients, with good
reason, did not. Moreover, the State emphasizes that the victims’
testimony that they “froze” out of fear indicated they did not
consent to Stevens’ sexual contact.
¶63 We agree. Analogizing a professional massage by a licensed
massage therapist with dating is ludicrous. Elizabeth, Jennifer,
Tahra, Jody and Erin were not Stevens’ dates. They were his
massage clients. Stevens’ failure to recognize the difference
between dating and providing a professional service to clients who
trusted him is alarming. Obviously, Stevens, as a professional
21
massage therapist, had no “implicit permission” to sexually touch
his clients until they told him to stop. The professional
relationship defined the limits that Stevens’ clients could expect,
and they did not expect to be sexually touched during their
massage. It does not take a “skilled mind reader” to realize this.
¶64 Viewing the evidence in a light most favorable to the
prosecution, we hold that any rational trier of fact could have
found that Stevens knowingly subjected Jennifer, Elizabeth Tahra,
Jody and Erin to sexual contact without consent. Credible evidence
in the record supports this determination. Accordingly, the jury
properly convicted Stevens of sexual assault against Jennifer,
Elizabeth and Tahra. Also, pursuant to § 46-20-703(3), MCA, we
conclude that Stevens committed sexual assault against Jody and
Erin.
¶65 (3) Did the District Court err in admitting testimony
regarding whether the victims believed Stevens’ actions constituted
a crime and their subsequent emotional distress?
Comment [COMMENT128]: St 40
¶66 At trial, the State asked two witnesses, Darlene and Janice, Comment [COMMENT129]: Tr
44, 77
whether they believed Stevens’ conduct was illegal. Darlene Comment [COMMENT130]: Tr
43-44
testified that at the time of the incident, she felt Stevens had
been unprofessional only, but eventually she felt his behavior was
criminal. Janice stated, “I don’t know that I could say to you
that I had sexual assault in my head, but I do think he did
something that he did not have a right to do.” Stevens objected on
relevance grounds.
22
Comment [COMMENT131]: Tr
¶67 The State also questioned Darlene, over Stevens’ relevance 44-45
objections, about effects the incident has had on her personal
relationships. She stated that her relationship with her husband
was affected. The State asked Tahra whether she had been able to
Comment [COMMENT132]: Tr
have a massage since the incident. Tahra responded that while she 181
was “really leery” at first, she eventually got another massage.
Comment [COMMENT133]: D 35
¶68 Stevens contends that all of this testimony was irrelevant and
designed to elicit passion and sympathy towards the victims and
prejudice toward Stevens. He claims that whether the victims
believed Stevens’ actions constituted a crime, whether the victims’
personal lives were affected and whether they were able to have
subsequent massages did not tend to prove any fact of the case. He
states that the irrelevant and highly prejudicial testimony biased
the jury.
¶69 The State, on the other hand, argues the testimony was
relevant because it tended to make the existence of a material
fact, lack of consent, more probable than it would have been
without the evidence. The State also points out that, at trial,
Stevens only objected on relevance grounds and cannot on appeal
bring a new claim that the testimony was more prejudicial than
probative under Rule 403, M.R.Evid. In any event, the State
insists that there is no reasonable likelihood that Stevens was
prejudiced considering the strength of the evidence involving
Darlene and considering Janice’s and Tahra’s equivocal answers to
the State’s questions and Stevens’ acquittals with respect to
Janice and Tahra.
23
¶70 Relevant evidence means evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence. Rule 401, M.R.Evid. Except as
otherwise provided, all relevant evidence is admissible. Rule 402,
M.R.Evid.
¶71 Here, we conclude that the testimony at issue was relevant and
admissible under Rules 401 and 402, M.R.Evid. Whether Darlene and
Janice contemporaneously thought that Stevens’ actions were
criminal or wrong tended to make the existence of a material
element, “without consent,” more likely than without the evidence.
Similarly, since sexual offenses commonly cause fear and distress,
Darlene’s and Tahra’s subsequent fears tended to make the existence
of lack of consent more probable than not.
¶72 Bearing in mind that the district court has broad discretion
to determine whether evidence is relevant and admissible, we hold
that the District Court in this case did not abuse its discretion
in admitting the challenged testimony.
¶73 We affirm in part and reverse in part and remand for
proceedings consistent with this opinion.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER
24
Justice Jim Rice concurring in part and dissenting in part.
¶74 I concur with the Court in affirming the conviction of sexual intercourse without
consent with respect to Darlene and the convictions of sexual assault with respect to Jennifer,
Elizabeth and Tahra. I further concur with the Court’s holding on the evidentiary question in
Issue 3. I dissent from the Court’s reversal of the convictions of sexual intercourse without
consent with respect to Jody and Erin, and therefore would not reach the issue of the lesser
included offense in regard to them.
¶75 The Court concludes that, under the statute, sexual
intercourse with a sleeping victim is “without consent,” but that
sexual intercourse with a victim in a “sleep-like” state is not
“without consent.” Thus, the Court affirms the conviction with
respect to Darlene, to whom the Court ascribes sleep but with “some
sensory perception,” but reverses the convictions with respect to
Jody, who was in a deep “sleep rem stage,” and Erin, who drifted in
and out of sleep, and, as the Court notes, was “almost asleep” when
violated. The Court thus ignores the admonition in Woodward v.
Commonwealth (Va. Ct. App. 1991), 402 S.E.2d 244, 246, that “common
experience tells us that sleep is not an all or nothing condition,”
which is painfully obvious here, and creates an artificial line at
sleep’s first moment that is neither realistic nor mandated by the
statutes. Contrary to the Court’s analysis, determining whether
the victim was “physically helpless” is not a question of “sleep
vs. awake”–terms which the statute does not mention–but rather,
whether a rational jury could find that the victim was “otherwise
25
physically unable” to refuse intercourse. I would find a rational
jury could, and did, so conclude from the evidence presented here.
¶76 The Court’s reliance on State v. Haser, 2001 MT 6, 304 Mont.
63, 20 P.3d 100, is misplaced. The Haser Court properly rejected
the State’s argument that the victims there had been lulled into a
state analogous to sleep or intoxication simply because the facts
were to the contrary. The Haser victims were fully alert and
participated in a photo shoot wherein they repeatedly responded to
the photographer-defendant’s instructions to change their pose.
The instructions to change positions were accompanied by Haser’s
inappropriate sexual touching. In this case, there was no such
“eyes wide open” participation by an alert victim. To the
contrary, the victims here were reclined comfortably in a room with
soft music playing, were deeply relaxed and had fallen into the
above-described sleep-like conditions. I thus disagree with the
Court’s conclusion that the “circumstances of this case resemble
those in Haser” and find that the State’s argument in this matter
to be substantially more compelling than it was in Haser.
¶77 The circumstances in this case more closely resemble those in
State v. Lundblade (1986), 221 Mont. 185, 717 P.2d 575, and State
v. Graves (1995), 272 Mont. 451, 901 P.2d 549, where we upheld jury
determinations that sexual intercourse with victims during their
respective conditions of sleep and intoxication was “without
consent” because of their physical helplessness. Further, as the
Court here acknowledges, and endorses by affirming the conviction
with respect to Darlene, even a sleeping victim with some sensory
26
perception can be found to be “physically helpless.” Consequently,
the Court, instead of attempting to apply a bright-line rule to
such variable states of consciousness, should recognize that
whether a victim is “otherwise physically unable” to communicate
her refusal is a matter of the victim’s particular consciousness
and is a factual question for the jury to determine.
¶78 Applying § 45-1-102(1), MCA, which, for purposes of penal
statutes, sets aside the common law rule that statutes are to be
strictly construed and requires penal provisions to be construed
according to the fair import of their terms with a view to effect
its object and to promote justice, I would reject the “how deep
must sleep be?” quagmire adopted by the Court and allow juries to
determine the victim’s consciousness in accordance with the terms
of the statute–whether the victim was “otherwise physically unable”
to refuse–based upon the facts of each case. “The state of the
victim’s physical helplessness at any given moment is largely a
question of fact . . . .” People v. Teicher (N.Y. 1981), 422 N.E.2d
506, 511. Viewing the evidence here in a light most favorable to
the prosecution, I conclude that the jury rationally could have
found the elements of the crime beyond a reasonable doubt,
including physical helplessness, and would affirm the convictions
of sexual intercourse without consent with respect to Jody and
Erin.
/S/ JIM RICE
27
State v. Stevens
Court: Montana Supreme Court
Date filed: 2002-08-22
Citations: 2002 MT 181, 53 P.3d 356, 311 Mont. 52
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