No. 81-112
IN THE SUPREME COURT OF THE STATE OF MONTANA
THE STATE OF MONTANA,
Plaintiff and Appellant,
FLOYD WAYNE WHITE WATER,
Defendant and Respondent.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Lake.
Honorable John Henson, Judge presiding.
Counsel of Record:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Richard P. Heinz, County Attorney, Polson, Montana
For Respondent:
K. M. Bridenstine, Polson, Montana
Submitted on briefs: June 10, 1981
Decided: October 13, 1981
D-
Clerk
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.
The State appeals an order by the Lake County District
Court dismissing a charge of sexual intercourse without
consent. The State's principal evidence against the defendant
consisted of a statement allegedly made by the complaining
witness shortly after the alleged crime. At trial, the
complaining witness disputed the accuracy of that statement
by giving a different version of the facts. The District
Court dismissed the charge at the end of the State's case on
the ground that there was insufficient evidence to support a
conviction. The sole issue on appeal is whether in a criminal
case an alleged prior inconsistent statement should be
submitted to the jury for consideration as substantive
evidence of an essential element of the charged crime where
the accuracy of that statement is repudiated at trial.
The defendant, Floyd Wayne White Water, was charged by
information on January 22, 1980, with the offense of sexual
intercourse without consent arising from an incident involving
his former stepdaughter, Rhonda Rene Simmons a/k/a Rhonda
White Water, age 15 at the time of this incident. The
defendant had been recently divorced from Rhonda's mother,
Belva White Water, but sporadically continued to live in
Belva's home. Early in the morning on December 14, 1979,
Rhonda awakened the defendant and then went into the kitchen
to warm herself near a wood stove. The defendant soon
joined her, but what occurred at this point is in dispute.
Shortly after the defendant joined Rhonda in the kitchen,
Rhondals mother, Belva, entered the room and saw the defendant
with his hand in Rhonda's underwear.
Later that day Belva reported to the Lake County
Attorney's Office that the defendant had been sexually
molesting her daughter. Rhonda, who has a learning disability,
was taken from the special high school she attended in
Dixon, Montana, and was transported to the Lake County
Sheriff's Office. In the presence of the sheriff and a
social worker, Rhonda was interviewed and a statement was
taken by the sheriff in his own handwriting. According to
that statement, the defendant had joined Rhonda near the
woodstove, placed his hand down the back of her pants, and
then moved his hand around to the front and penetrated her
vagina with his finger.
The defendant's jury trial on the charge of sexual
intercourse without consent began on December 8, 1980.
Belva White Water testified that she did not know the actual
contents of the sheriff's statement until the first day of
trial, and that when she had entered the kitchen she saw
only that the defendant had his hand down the back of Rhonda's
underwear.
Rhonda testified at trial that she was not satisfied
with the sheriff's statement because she felt the sheriff
"did not understand ... [what she told him, and] twisted
... [her statements] around a little bit here and there."
She stated that the defendant had placed his hand on her
"butt" next to her skin and then removed it when her mother
entered the room.
At the close of all the evidence the District Court
dismissed the information because the statement provided by
the sheriff was the only evidence upon which a conviction
could be based, and that Rhonda had repudiated that version
of the facts. Without that statement, the essential element
of penetration could not be proven in support of a charge of
sexual intercourse without consent. See, section 45-5-503,
MCA, and section 45-2-101 (55), MCA.
The State appeals that dismissal, contending that the
statement provided by the sheriff was properly admissible
for impeachment purposes, and therefore, it should have been
submitted to the jurors for their consideration as substantive
evidence. The State's position is that the jury should have
been allowed to consider both statements and decide which to
believe. The State further contends that this prior incon-
sistent statement alone is sufficient to support a conviction.
We find that the dismissal was properly granted. The
motion for dismissal in criminal cases is often referred to
as a motion to acquit or a motion for a directed verdict.
State v. French (1975), 166 Mont. 196, 531 P.2d 373. In
Montana, the decision whether to grant or deny a motion to
dismiss at the close of the State's case lies within the
sound discretion of the trial court (section 46-16-403, MCA)
and will be disturbed on appeal only when abuse of that
discretion is shown. State v. Smith (1980), Mont.
, 609 P.2d 696, 698, 37 St-Rep. 583, 586. Further, a
directed verdict should only be granted where there is no
evidence upon which the jury could base a verdict; that is,
the defendant is entitled to an acquittal if reasonable men
could not conclude from the evidence taken in a light most
favorable to the prosecution that guilt has been proved
beyond a reasonable doubt. State v. Perez (1952), 126 Mont.
15, 243 P.2d 309.
Although determining the reliability of a prior incon-
sistent statement is a matter within the trial judge's
discretion, he must nonetheless view the situation in light
most favorable to the prosecution. Here, the statement
allegedly taken from Rhonda Simmons, a girl with a learning
disability, was in the form of a document written by the
sheriff who had interviewed her. The record reveals that
Rhonda is somewhat susceptible to agree with suggestions
made to her when she cannot clearly verbalize her thoughts.
Although the interview was not recorded in any other manner,
a social worker witnessed it and testified that she heard
Rhonda make the statements to the sheriff. At trial and
under oath, however, Rhonda denied the veracity of the
prior, unsworn statement which the sheriff made in her
behalf.
In Montana, "sexual intercourse means penetration of
the vulva, anus, or mouth of one person by the penis of another
person, penetration - - - - - - - of one person by -
of the vulva or anus - any
body member - another person, or penetration of the vulva or
of
anus of one person by any foreign instrument or object mani-
pulated by another person for the purpose of arousing or
gratifying the sexual desire of either party." Section 45-2-
101(55), MCA. (Emphasis added.) Without Rhonda's testimony,
there is no evidence of one essential element of the offense
of sexual intercourse without consent: penetration. And
there are no other credible witnesses to establish that
element. Belva White Water stated under oath at trial that
she had no knowledge of whether penetration had indeed
occurred--all she saw upon entering the kitchen was that the
defendant removed his hand from Rhonda's underwear. The
statement from Rhonda taken by the sheriff was not one made
under oath. Although the interview was witnessed by a
state-employed social worker, who agreed with the sheriff's
version of Rhonda's statement, the circumstances under which
this prior statement was made tend to indicate its probable
unreliability. An unreliable prior inconsistent statement
should not be the sole, substantive evidence upon which a
jury should be allowed to base guilt.
Rule 801(d)(l)(A), Mont.R.Evid., provides that a prior
inconsistent statement by a witness will not be inadmissible
as hearsay so long as the witness testifies at trial and is
subject to cross-examination. The Commission Comment to
this rule unequivocally explains that an admissible prior
inconsistent statement constitutes substantive evidence.
Although Montana's Rule 801(d) (1)(A) differs from the
federal rule from which it was derived, the Advisory Committee's
Note to the federal rule (see 56 F.R.D. 183, 296) also
indicates that prior inconsistent statements are intended to
be considered as substantive evidence, stating that:
"In many cases, the inconsistent statement is
more likely to be true than the testimony of
the witness at the trial because it was made
nearer in time to the matter to which it relates
and is less likely to be influenced by the
controversy that gave rise to the litigation.
The trier of fact has the declarant before it
and can observe his demeanor and the nature of
his testimony as he denies or tries to explain
away the inconsistency. Hence, it is in as good
a position to determine the truth or falsity of
the prior statement as it is to determine the
truth or falsity of the inconsistent testimony
given in court. Moreover, [it] will provide a
party with desirable protection against the
'turncoat' witness who changes his story on the
stand and deprives the party calling him of
evidence essential to his case."
Before Congress passed federal Rule 801(d) (1)(A),
concern was expressed that this rule might permit convictions
to be obtained solely on the basis of evidence of prior
inconsistent statements. In a footnote to Senate Committee
Report No. 1277, 93d Cong., 2d Sess., at 16, n. 21, it was
stated:
"It would appear that some of the opposition
to this Rule is based on a concern that a
person could be convicted solely upon evidence
admissable under this Rule. The Rule, however,
is not addressed to the question of the sufficiency
of evidence to send a case to the jury, but merely
as to its admissability. Factual circumstances
could well arise where, if this were the sole
evidence, dismissal would be appropriate."
We believe, furthermore, that a conviction supported
only by a prior inconsistent statement should not be allowed
to stand. Weinstein and Berger in their Commentary on the
Rules of Evidence state "Lilt is doubtful that in any but
the most unusual case, a prior inconsistent statement alone
will suffice to support a conviction since it is unlikely
that a reasonable juror could be convinced beyond a reason-
able doubt by such evidence alone." 4 Weinstein's Evidence
n. 53, at 801-73 (1975). The reporter for the Advisory
Committee that drafted Rule 801(d)(l)(A) stated in a letter
to a House subcommittee that ". . . if a judge were confronted
with a situation ... in which the entire case for the
prosecution was a prior inconsistent unsworn statement it
would be difficult indeed to see how he could avoid directing
a verdict." Blakey, Substantive - - Prior Inconsistent
Use of
Statements Under the Federal Rules - Evidence, 64 Ky.L.J.
of 3,
21 (1975).
In addition to this sufficiency limitation imposed by
Rule 801 (d)(1)(A), such evidence may be barred by due
process considerations regarding the reliability of the
evidence. In California v. Green (1970), 399 U.S. 149, 163-
64, n. 15, 90 S.Ct. 1930, 1938, n. 15, 26 L.Ed.2d 459, 500,
n. 15, the United States Supreme Court stated that due
process considerations may prevent convictions where a
reliable evidentiary basis is totally lacking. And, in Bridges
v. Wixon (1945), 326 U.S. 135, 153-54, 65 S.Ct. 1443, 1452,
89 L.Ed. 2103, 2115, the United States Supreme Court warned
agair~taILowing"men to be convicted on the unsworn testimony
of witnesses--a practice which runs counter to the notions
of fairness on which our legal system is founded." Bridges
involved a witness' statements received as substantive
evidence in a deportation proceeding although the statements
were no more than a stenographer's notes of an investigative
interview. The person alleged to have made the statements
denied their accuracy. The Supreme Court ruled that these
statements were received in error because they had not been
recorded under oath as required by the regulations of the
Immigration and Naturalization Service.
We also note that here a man's liberty is at stake, but
the evidence tending to establish his guilt is unreliable,
even when viewed in a light most favorable to the prosecution.
The question is not whether one sort of statement carries a
greater indicia of reliability than another, but rather,
whether the circumstances pursuant to which the prior statement
was given, coupled with the present availability of the
witness for observation and cross-examination under oath,
provide sufficient reliability for admitting that statement
as substantive evidence. Here, the circumstances are so
questionable they require that we affirm the trial court's
dismissal. Although the evidence might seem to support a
charge of sexual assault, that charge was not brought against
the defendant, and double jeopardy provisions of the federal
and Montana Constitutions prevent such a charge from now
being filed.
The order of the District Court granting the dismissal
is affirmed.
W e Concur:
Chief J u s t i c e
I Justices
0