No. 89-533

IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

STATE OF MONTANA, Plaintiff & Appellant,


### v. GERALD ROY THOMPSON, Defendant & Respondent.

APPEAL FROM: District Court of the Tenth Judicial District, In and for the County of Judith Basin The Hon. Peter J. Rapkoch, Judge presiding.

COUNSEL OF RECORD: For Appellant:

Mark Murphy, Assistant Attorney General, Helena, Montana Patti Powell, Assistant Attorney General, Helena, Montana Sarah Arnott, Judith Basin County Attorney, Stanford,Montana

For Respondent: Torger Oaas, Attorney at Law, Lewistown,Montana

Submitted on briefs: February 22, 1990
Filed: Decided: May 24, 1990Justice John C. Sheehy delivered the Opinion of the Court.

OnMay 25,1989, thedefendant Gerald Roy Thompsonwas charged with two counts of sexual intercoursewithout consentand one count of sexual assault. Subsequently, Thompsonmoved todismiss Counts I and I1 of the information, those counts charging defendant with sexual intercourse without consent. Thompson moved to dismiss Counts Iand I1of the information on the specificground that the probable cause affidavit was insufficient. On September 1, 1989, the District Court, Tenth Judicial District, Judith Basin County, granted Thompson's motion and dismissed Counts I and I1 of the information for lackofprobable cause inthe supporting affidavit. The State now appeals the District Court. We affirm. The State raised the following issue on appeal: Did the District Court err when it granted defendant's motion to dismiss Counts I and I1 of the information charging defendant with sexual intercourse without consent for failure to state offenses? The defendant, Gerald Roy Thompson, the principal and boys basketball coach at Hobson High School, was accused of two counts of sexual intercourse without consent, and one count of sexual assault. This appeal only concerns the two counts of sexual intercourse without consent. The information, filed with the DistrictCourt,alleged thedefendantcommitted thecrimeof sexual intercourse without consent,and stated the following: Count IOn orbetween September, 1986and January, 1987 inJudith Basin County,Montana thedefendant knowinglyhad sexual intercourse without consentwith aperson of theopposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in an act of oral sexual intercourse. Count I1 On or between February, 1987 and June, 1987 in Judith Basin County, Montana thedefendant knowinglyhad sexual intercourse without consent with aperson of theopposite sex; namely Jane Doe, by threatening Jane Doe that she would not graduate from high school and forced Jane Doe to engage in act of oral sexual intercourse. The affidavits filed in support of this informationcontained facts and allegations supporting the two counts of sexual intercourse without consent. In essence, they alleged that the threats I1causedJane Doe great psychological pain and fear." The Statecontended that fear of thepower of Thompson and his authority to keep her fromgraduating forcedJane Doe into silence until after she graduated from high school in June of 1987. On November 25, 1988,Jane Doe filed a letter with the Hobson School Board describing the activities against her by Thompson. After investigationsby both the schoolboard and theJudithBasin County prosecutorls office,theprosecutor filed an information onMay 25, 1989. The information charged Thompsonwith two counts of sexual intercourse without consent,both felonies in violation of 5 45- 5-503, MCA, and with one count of attempted sexual assault, a felony. Defendant filed a number of motions, requesting, among other things, amotion to dismiss Counts I and I1 of the information for lack of probable cause in the supporting affidavit. The DistrictCourt granted Thompson's motion, due to the fact the State failed tomeet the element of "without consent1'under 5 45-5-501, MCA. I Did the District Court err when it granted defendant's motion to dismiss Counts I and I1 of the information charging defendant with sexual intercourse without consent for failure to state offenses? We agree with the District Court that the facts in the information, inregardstoCounts I and 11, fail to stateoffenses. Thecode of criminal procedures requiresthat an affidavitbe filed for application for leave to file an information. State v. Renz (Mont. 1981), 628 P.2d 644, 645. The affidavit must include sufficient facts to convince a judge that there is probable cause to believe the named defendant may have committed the crime described in the information. Section 46-11-201, MCA. If there is no probable cause, the District Court lacks jurisdictionto try the offense. Statev. Davis (1984), 210Mont. 28, 30, 681P.2d 42, 43. This Court has held that a showing of mere probability that defendant committed the crime charged is sufficient for establishing probable cause to file a criminal charge. Judges, when receiving probable cause affidavits, should use their common
sense in determiningwhetherprobable causeexists. Renz, 628P.2d at 645; State v. Hamilton (1980), 185 Mont. 522, 532, 605 P.2d 1121, 1127, cert. denied 447 U.S. 924 (1980); State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255.The allegations in the affidavit, however, do not indicate a probability that Thompsoncommittedthecrimeof sexual intercourse without consent. Thompson was charged with two counts of alleged sexual intercourse without consent under 5 45-5-503, MCA. Section 45-5- 503,MCA, states the following: A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercoursewithout consent 

# . 

# .. The phrase ttwithout consenttt--the key element of the crime- -has a very specific definition in Montana's criminal code. This phrase is defined in 5 45-5-501, MCA, which states in pertinent part:As used in 45-5-503 and 45-5-505, the term Itwithout consenttt means: (i) the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone; 

# . . 

# . Section 45-5-501, MCA, makes it clear that the element of ttwithoutconsentt1is satisfied if submission of the victim is obtained either by force or by threat of imminent death, bodily injury

## , or kidnapping. other circumstances relating force

or threat eliminate consent under the statute. Thompson challenged the probable cause affidavit in the District Court, contending it failed to state any fact or circumstance showing that Jane Doe's submission to an alleged act of sexual intercourse was obtained by force or by any of the threats listed in 5 45-5-501, MCA. In contrast, the State argues thatThompsonts actions constitute sexualintercoursethrough forceor threats. The District Court, in its opinion and order, agreed with Thompsonls contentions, and found that the facts in the affidavit supportingthe information failed to show the element of I1without consent.I1 Inreaching this conclusion,theDistrictCourt first considered whether or not there were facts or circumstances in theprobable cause affidavit to indicate that submission to the alleged act of sexual intercoursewithout consentwas obtained Ifby force.I1 In order to determinewhether Thompson forced Jane Doe to submit to the sexual act, the District Court had to define the phrase I1byforcef1 since there is no definition contained in the Montana Criminal Code. The District Court in its order defined force as follows: The word l1forcel1is used in its ordinary and normal connotation: physical compulsion, the use or immediate threat of bodily harm, injury. Next,theDistrictCourt examined the informationandprobable

cause affidavit to determine if there were any facts or circumstances constituting force. The District Court found that "forcewas not alleged in the information nor in the affidavit in support of it. In contrast,the State argues the ~istrict Court's definition of force is too limited. The State, relying on Raines v. State

(Ga. 1989), 382 S.E.2d 738, 739,argues that intimidation and fear may constitute force. The State also contends that Thompson, in his position of authority as the principal, intimidated Jane Doe into the alleged acts. Furthermore,the State argues the fear and apprehension of Jane Doe show Thompsonused force againsther. Weagree with the State that Thompson intimidated Jane Doe; however,

we cannot stretchthedefinitionof forceto include intimidation, fear, or apprehension. Rather, we adopt the District Court's definition of force. Other jurisdictions, such as California, have expanded the definition of force, beyond its physical connotation. People v. Cicero (1984), 157 Cal.App.3d 465, 204 Cal.Rptr. 582. The California Supreme Court adopted the following reasoning to expand the word force:



# .. . the fundamental wrong at which the law of rape is aimed is not the application of physical force that causesphysical harm. Rather, the law of rapeprimarily guards the integrity of a women's will and the privacy of her sexuality from an act of intercourse undertaken without her consent. Because the fundamental wrong is the violation of a woman's will and sexuality, the law of rape does not require that llforcell cause physical harm. Rather, in this scenario, "force1' plays merely a supportingevidentiary role, as necessary only to ensure an act of intercourse has been undertaken against a victim's will. Cicero, Cal

# . Rptr. The ~aliforniaSupreme Court's definition of the word force is too broad under Montana's definition of the crime. Until the legislature adoptsadefinition fortheword llforcell, wemust adopt the ordinary and normal definition of theword as set forth by the District Court. The State in its information and accompanying affidavit complain that Thompson deprived Jane Doe of consent to the sexual act by threatening that he would prevent her from graduating from high school. The threat required in 5 45-5-501, MCA, is "a threat of imminentdeath,bodily injury,or kidnapping to be inflicted onanyone 

# . . ." The District Court found that something more than

a threat is necessary to satisfy the statutory requirement. A threat one will not graduate from high school is not one of the threats listed under 5 45-5-501,MCA. The State argues that the definition "threat of bodily injuryn1includes psychological impairment. Unfortunately, the statute sets forth bodily injury, not psychological impairment. A threat that eventually leads to psychological impairment is not sufficient under the statute. The statute only addresses the results of three specific kinds of threats, and psychological impairment is not one of them. The State urges this Court to adopt thedefinitions of threat set forth in 5 45-2-101(68), MCA. Section 45-2-101(68), MCA, has

no application in regard to the crimeof sexual intercoursewithout consent. Section 45-5-501, MCA, plainly and succinctly lays out the types of threats necessary to make the victim act "without consent. Under 5 45-5-501, MCA, the threat also must be of "imminent death, bodily injury, or kidnapping. Thompson s threats cannot be considered imminent. Thealleged sexual act and threat occurred in December of 1986. Jane Doe graduated from Hobson High School in June of 1987. Clearly, Thompson's alleged threats were not imminent. Peppered throughout the State's brief is the contention that "under Montana law the issue of consent is a fact question, and therefore a question for the jury to decide." The State is correct, the jury is theproper trier of facts in regard to issuessuch as consent. However, in this case, the State's information and probable cause affidavit have failed to set forth any facts or circumstance to show that the alleged act of sexual intercourse

were within the statute defining the elements of the crime. So, the issue in this case is not whether the jury was denied its role

as trierof the facts,but whether theState sufficientlyset forth facts or circumstances to show the element of "without consent.

### " The courtproperly granted defendant's motion to dismiss for lack of probable cause. This case is one of considerabledifficulty forus, as indeed itmust have been for theDistrict Court judge. The alleged facts, if true, showdisgusting acts of taking advantage of ayoungperson by an adult who occupied a position of authority over the young person. If we could rewrite the statutes to define the alleged acts here as sexual intercoursewithout consent,we would willingly do so. Thebusiness of courts,however, is to interpret statutes, not to rewrite them, nor to insert words not put there by the legislature. With a good deal of reluctance, and with strong condemnation of the alleged acts,we affirm the District Court.

Justice fWe Concur: