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 
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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 

Missoula, Montana. He advertised his business as HLS Massage, or 

“Healing Life’s Stress.” Stevens performed massages on a massage 

table in a small room in which only his clients and he were 

present. Stevens displayed his massage training diploma and 

business license in the room. 

¶7 After escorting his female clients to the massage room, 

Stevens would routinely hand them a sheet and step outside while 

they undressed. Some clients chose to fully undress while others 

would wear their undergarments. All would cover themselves with a 

sheet. Stevens would then knock on the door, ask the client if she 

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was ready and, if so, he would enter the room. The lights in the 

massage room were low, and Stevens played soft music during the 

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 

ailments. 

¶8 Prior to beginning the massage, Stevens typically asked his 

clients if there were any problem areas of the body upon which he 

should focus. Also, before or during the massage, Stevens 

sometimes requested that his clients tell him if he did anything 

they did not like. However, very little other conversation or 

“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 

remainder of the massage. 

¶9 On May 11, 1999, the State filed an Information charging 

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 fullbody massage from Stevens. She testified that she specifically told 

Stevens that she believed this entailed everything except her 

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57, 87, 119, 152; p. 3 state 

brief

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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 

for the next morning. The night before the second massage, Darlene 

took a Tylenol PM and was still “sleepy” when she arrived for the 

massage. 

¶11 During the first part of this massage, while laying on her 

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 

sensation of something inside her vagina. She opened her eyes and 

saw Stevens laying on top of her sucking on her breast. His 

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 

Stevens’ forehead and pushed him back. Upon her request, Stevens 

handed her a towel and left the room. After leaving, Darlene went 

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 

Stevens. She had confidence in Stevens, and she referred others to 

him. During her last massage with Stevens, she stated that she 

stayed awake while lying on her stomach. Although she was awake 

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and aware of her surroundings, she was numb and almost asleep. 

After she turned over onto her back, she fell asleep, but awoke 

when Stevens moved to another section of the massage table. Erin 

was not concerned or uncomfortable when she first awoke. She 

stated that she was awake, but in a “total relaxed state.” 

¶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 

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, 

thigh and vagina. All of the touching lasted approximately 10 

minutes. Erin stated that Stevens’ actions made her feel 

“horrible,” but her mind and body were frozen and she was scared to 

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 

and then left the room. As she was leaving, Stevens asked Erin if 

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. 

¶14 Jody testified that she received massages from Stevens for a 

sciatic nerve injury. She thought Stevens was very professional 

and thorough, and, over time, she increasingly trusted and felt 

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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 

massage as usual. Jody testified that during the massage, she fell 

into a deeply relaxed “dream state” or “sleep rem stage.” She 

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 

like. Jody understood this question to mean that she should tell 

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. 

Jody stated that she was aware of the sensation of Stevens 

massaging her breasts, and she stopped breathing. Stevens then 

kissed her stomach, and she became “glued to the table.” She “came 

out of the dream state” and Stevens was between her legs. Jody 

stated that Stevens proceeded to penetrate the outer lips of her 

vagina with his tongue. She also testified that, immediately after 

the incident, she was unsure if Stevens penetrated her vaginal 

canal. 

¶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 

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 

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jury convicted Stevens of sexual intercourse without consent 

against Jody. 

¶18 Jennifer testified that she received massages from Stevens on 

two occasions. During the first massage, Stevens was very 

professional, and she felt comfortable with him and began to trust 

him. As a result, she sought Stevens’ services a second time. The 

second massage began with her lying on her back, and Stevens 

massaged her breasts for about ten minutes. He then massaged her 

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 

[she] felt safe.” Jennifer reported the incident. The jury 

convicted Stevens of sexual assault against Jennifer. 

¶19 Elizabeth testified that she received massages from Stevens 

several times. She felt comfortable with Stevens, trusted him and 

entered a “relaxed state” while Stevens performed massages. During 

her last massage with Stevens, he asked Elizabeth to tell him if he 

did anything that made her uncomfortable. She thought the question 

was “completely out of the ordinary” and “alarming.” 

¶20 Shortly thereafter, Stevens, breathing heavily, began rubbing 

and pinching Elizabeth’s nipples. She felt Stevens’ erect penis 

against her upper arm. Elizabeth stated Stevens’ actions took her 

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 

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Stevens might rape her, lunged forward, picked up the sheet, 

covered herself and said, “Stop.” Stevens stopped his actions and 

finished the neck and facial portion of the massage. Elizabeth 

testified that she knew she was alone in the building with Stevens 

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. 

After the first massage, Tahra felt comfortable with Stevens, and 

she returned for her first full-body massage. After approximately 

one hour, Stevens told Tahra to turn over and he removed the sheet 

covering her body, leaving her completely exposed. Stevens 

massaged her breasts in what she described as a “groping session.” 

She stated that she trusted him and was not sure if the full-body 

massage was proceeding normally. Although she did not feel 

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 

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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 
10

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 

N.E.2d 506, 511). Comment [COMMENT97]: D brf 

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¶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. 

¶33 Stevens also argues that there was no evidence of “physically 

 helpless” as set forth in § 45-2-101(56), MCA. He states that all 

of the victims in this case were completely rational, sober, awake 

and able to communicate and respond. Stevens relies upon three 

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. 

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¶35 Alternatively, Stevens contends that even if the victims were 

“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 

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 

these were non-exclusive examples of “physically helpless.” The 

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. 

¶37 The State goes on to argue that “physically helpless” is not 

limited to victims who are sleeping or completely lack the mental 

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 

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involuntary drugged condition since the victims’ ability to 

appreciate what was happening was markedly diminished. 

¶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 

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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. 
15

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 

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 

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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 

relaxed “dream state” or “sleep rem stage,” but she was aware of 

the sensation of Stevens massaging her breasts. At this point, she 

“stopped breathing.” When Stevens kissed her stomach, she stated 

that she became “glued to the table.” Erin testified that she was 

awake and aware of her surroundings, but she was numb and almost 

asleep. Although at one point she did fall asleep, she awoke and 

was in a “total relaxed state.” Erin testified that she was aware 

of, and remembered, Stevens’ actions, and her body “froze” out of 

fear. 

¶47 The State compares Jody’s and Erin’s circumstances to those in 

Teicher. In Teicher, the victim was heavily sedated by her 

dentist and in an “extremely weakened condition” in which she had 

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 

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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 

“trace of fear” as in Haser. Admitting there was no direct 

evidence of a threat of bodily injury or rape, the State contends 

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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
19

(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 
20

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. 

¶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 

Comment [COMMENT125]: D 31
21

the contact “agreeable.” He also maintains no wrongdoing because 

when the victims asked him to stop, he did. 

¶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 

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 

Comment [COMMENT126]: D 34

Comment [COMMENT127]: D 34
22

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? 

¶66 At trial, the State asked two witnesses, Darlene and Janice, 

whether they believed Stevens’ conduct was illegal. Darlene 

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. 

Comment [COMMENT128]: St 40

Comment [COMMENT129]: Tr 44, 77 

Comment [COMMENT130]: Tr 43-44 
23

¶67 The State also questioned Darlene, over Stevens’ relevance 

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 

have a massage since the incident. Tahra responded that while she 

was “really leery” at first, she eventually got another massage. 

¶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. 

Comment [COMMENT131]: Tr 44-45 

Comment [COMMENT132]: Tr 181 

Comment [COMMENT133]: D 35
24

¶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 
25

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 
26

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 
27

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