NO. 94-113

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,

-vsMATTHEW C. FULLER,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Gary E. Wilcox, Chief Deputy Public Defender,

Billings, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General, Jennifer

Anders, Ass't Attorney General, Helena, Montana

Dennis Paxinos, Yellowstone County Attorney,

Billings, Montana

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p&q Submitted on Briefs:

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August 4, 1994

SEP a 5 1994 Decided: September 15, 1994

Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Matthew C. Fuller (Fuller) appeals his conviction of three

counts of attempted sexual assault, and the judgment entered

thereon, following a bench trial conducted in the Thirteenth

Judicial District Court, Yellowstone County. W e reverse,

concluding that the conviction is contrary to law.

The State of Montana (State) charged Fuller by information

with three counts of felony attempted sexual assault pursuant to

§§ 45-4-103 and 45-5-502, MCA. He subsequently was tried by the

District Court.

Testimony regarding the underlying facts was largely

undisputed. On November 25, 1992, Fuller drove from his home in

Roundup and parked outside an elementary school in Billings. At

approximately 3:00 p.m., as the school day ended, he followed three

young girls down Nutter Boulevard in his vehicle. Two of the

girls, L.S. and P.M., testified that Fuller first honked his horn

and made the comment "nice butt" in their general direction as he

drove by. A few minutes later he approached again, this time

driving on the wrong side of the street. According to L.S. and

P.M., Fuller then pulled up on the sidewalk directly alongside them

and stated "let's do it" while sticking out his tongue and licking

his lips.

The third girl, T-R., testified she heard a horn honk as the

three girls left the school area together. She first noticed

Fuller when he pulled up onto the Nutter Boulevard sidewalk: at

that point, T.R. started running and did not hear the comments

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about which the other girls testified. Contrary to the testimony

of L.S. and P.M., T.R. testified that Fuller's passenger, as

opposed to driver's, side wheels were pulled up on the sidewalk.

None of the girls testified that Fuller ever stopped the car,

opened his door, or reached out for them in any way.

Billings Police Detective Dave Hinkel also testified. Hinkel

related that, during a post-arrest interview, Fuller admitted that

"he was on the very edge of having a significant problem sexually

with children" and that he believed himself to be a pedophile.

The District Court announced its decision and findings orally

after the trial and adopted the State's Proposed Findings of Fact

and Conclusions of Law. It found Fuller guilty of the offenses as

charged. The court subsequently imposed sentence and entered

judgment. Fuller appeals.

The dispositive issue before us is whether the District

Court's finding that there was insufficient evidence to establish

a necessary element of the offense beyond a reasonable doubt

renders the conviction invalid as a matter of law.

Our usual standard of review following a criminal conviction

is whether, viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the

elements of the offense beyond a reasonable doubt. State v. Riley

(1992) I 252 Mont. 469, 470, 830 P.2d 549, 550; citing Jackson v.

Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d

560, 573. This case presents an issue relating to the fundamental

principle subsumed in this standard: that the prosecution must

establish each and every element of the charged offense by proof

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beyond a reasonable doubt. See Jackson, 443 U.S. at 316.

Fuller was convicted of attempted sexual assault. To be

guilty of the underlying offense of sexual assault, a person must

knowingly subject another person to llsexual contact" without

consent. Section 45-5-502, MCA. Sexual contact requires a

touching of the sexual or other intimate parts of the victim for

the purpose of arousing or gratifying the sexual desire of either

party. Section 45-2-101(60), MCA. An "attempt" requires proof

that the defendant, with the purpose of committing the underlying

offense, took any act toward commission of the offense. Section

45-4-103(l), MCA.

Here, the District Court found as follows during the oral

pronouncement of its decision:

In this particular case if an actual touching is a

required element, and arguably it is, then a not guilty

verdict is the only appropriate verdict because the

evidence does not show bevond a reasonable doubt that the

defendant intended to actuallv touch the victims.

(Emphasis added.) By adopting the State's proposed findings and

conclusions, the court also found:

[T]hat the evidence is sufficient to Drove the defendant

suiltv of the offense of Attempt Sexual Assault (Felony)

as alleged in Counts I, II, and III of the Information

Bevond A Reasonable Doubt.

(Emphasis added.) The District Court found Fuller guilty on all

three counts of felony attempted sexual assault.

Applying the statutory definitions of the offense of attempted

sexual assault to the District Court's first quoted finding, it is

clear that the court found insufficient evidence to establish that

Fuller acted with the purpose of committing the underlying offense

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of sexual assault. The trier of fact having found that the State

did not meet its burden on this necessary element of the offense of

attempted sexual assault, Fuller must be acquitted of the offense.

The State argues that we should consider the District Court's

findings in their entirety and divine the court's intent. The

State's position is that the court's statements, taken as a whole,

demonstrate the court's intent to find Fuller guilty and,

therefore, the conviction is legally supportable. Such an approach

would require us to speculate as to which "finding" should receive

the greater weight: we are not in a position to do so. More

importantly, we cannot proceed past the court's first quoted

finding. Our review must end when the district court, sitting as

the trier of fact, finds that an essential element of the offense

has not been established by proof beyond a reasonable doubt. See

Jackson, 443 U.S. at 316.

Reversed and remanded with instructions that a judgment of

acquittal be entered on all charges.

We concur: ----7

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