IN THE SUPREMECOIJRTOF THE STATE OF MONTANA
1989

STATE OF MONTANA, Plaintiffand Respondent,-vsALEXANDER COIJRVILLE, Defendantand Appellant.

APPEAL FROM: TheDistrict Court of the Twentieth Judicial District, In and for the County of Lake, TheHonorableC.F. McNei3, Judgepresidinq.

COUNSEL OF RECORD:

ForAppellant: Benjamin R. Anciaux,Polson,Montana

For Respondent:

Hon. Marc Racicot,Attorney General, Helena, Montana Betsy Brandborg,Asst. Atty. General, Helena LarryNistler, CountyAttorney;Mark Stermitz, Deputy CountyAttorney, Polson,Montana 

### 5

Submitted: Jan. 12, 1989 Decided: February

IClerkMr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Alexander Courville was convicted of aggravated burglary and sexual intercourse without consent in the Twentieth Judicial District, Lake County. Courville appeals the conviction of aggravated burglary. The issues on appeal are stated as follows: 1. Whether the trial court erred by not directing a verdict in favor of defendant on the aggravated burglary charge;and 2. Whether the trial court erred by not allowing defendant to introduce evidenceat trial of thevictim'spa.st crimes,wrongs and other acts? We affirm. T. 

### B. was awakened in the upstairs bedroom of her home at about 4:00 a.m. on the morning of August 22, 1987,by a noise downstairs. She went downstairs in her nightgown and found Courville in her house, sitting on her couch with his shoesoff. T. B. recognized Courville immediately because he had been an acquaintanceof the family for many years. T. R. noticed that Courville was obviously upset and appeared to have been drinking. He pleaded with T. 

### B. to stay and talk to him because he was upset. T. El. explained tohim that shewas sick, shehad been at thehospital earlier to get a shot of Demerol forher severe migraineheadache, she was tired from the drug and needed to go back to bed. The trial testimony conflicted at thispoint as towhether or not T. B. actually told Courville to get out of the house. However, Courville stood up and began walking. T. B. assumed he was walking toward the door to leave, and she went upstairs,returning tobed. T. R. was awakened again in a short time by Courville sittinq on her bed and shaking her awake. Her two-year-oldson was in bed with her. The testimony again conflicted at this point as towhere Courvillewas andwhatdialoguepassed between them. 

### T. B. gave slightly different accounts of this. She appeared confused at trial, and hermemory was not strong due to the ensuing events, her drowsiness, and the effect of thedrug. However, T. B. testified that she turned her back to Courville and dozed off again. She was awakened the next time by Courville choking her and yelling at her. He choked her several times and demanded that she strip so that he could have sex with her. She refused and was choked again. She testified that under fear for her life, she undressed. Shepersuaded him not tohave intercoursewith her,but while she was naked Courville fondled her entire body and put his fingers inher vagina and rectum. T. 

### B. attempted to leave the bedroom forvarying excuses, but Courville followed her through the house and twice took her back to the bedroom to repeat this process. Finally,at about 7:00 a.m. T. B. was able to get out of the house with her son and another child shewasbabysitting,under the

excuse of needing to take the other child home to her mother and needing to get on the road for a trip theyhad planned to Glacier Park. T. B. went straight to Vanessa Jones's house, the mother of the child she was babysitting. Vanessa testified that T. R. appeared on her doorstep about 7:00 a.m. with the kids and was shaking and totally upset. Her throat, chest and arms were coveredwith bruises. T. B. related the entire story to Vanessa, who alsoknewCourville. Vanessa persuaded 

### T. R. to get some sleep atVanessa's house and encouraged her to turnCourville in to thepolice. Five days later, Vanessa went to the Polson Police Department with this story and gave a statement. to thepolice. The next day, T. R. came in herself and related the story. T. B. was still quite bruised and her injuries were photographed by the investigating officer. However,T. B.'s version of the eventsvaried slightly at trial from the story she related to the police thatday. Originally, T. B. gave a statement that she told Courville several times to go home and get out of the house and the next thing she rememberedwas waking up to him choking her. At trial, she cou3.d not remember specifically telling him to leave,but rather justunderstood that he was leaving when she told him she was sick and he got up and walked toward thedoor. Additionally,T. B. later remembered

some intervening events in her bedroom between her falling asleep the first time and when Courville firstbegan choking her. However, she testified unequivocally that she did not invite him into the house, nor the bedroom, she did not encourage him, she did not want to have sex with him and she did not consent to his acts. All accounts of the story reveal the fact that Courvillethreatenedher: "Ifyoudon't do it, I'll kill you," and "Vanessa will find you dead here tomorrow" and "you keep your mouth shut about this or I'll

comeback and hurtyou again." Courville was charged by information on September 11, 1987,with sexual intercourse without consent and aggravated burglary. Prior to trial, the Statemade motions in limine to exclude evidence of T. B.'s sexual conduct and history of her criminal record. Both motions were unopposed by defense counsel and were granted by the judge. The jury returned a verdict of guilty on both counts in February 1988, and Courville was sentenced to twenty years with none suspended for Count I, sexual intercourse without consent, and twenty years with ten suspended on Count 11, burglary, with anadditional ten years for aggravated burglary, all to run consecutively. Courville does not appeal his conviction on Count 

### I. Courville appeals the trial court ruling that T. B.'s character had not been put in issueby her own inconsistent statements, thus prohibiting his use of "other bad acts" evidence against her, and denyinq his motion for a directed verdict on the burglary charge.

I. Character evidence is generally inadmissible. Rule 404(a),M.R.Evid. However, Rule 608,M.R.Evid., doespermit character evidence under specific circumstances: when the witness's character for truthfulness has been put in issue and then only if the offered evidence goes to the witness's veracity. But specific instances ofmisconduct of a witness for the purpose of attacking the witness's credibility may not be proved by extrinsic evidence. Rule 608(b)

# . Rule 609 specifically prohibits admission of evidence that a witness has been convicted of a crime for purposes of attacking the credibility of the witness. See for discussion, State 

### v. Sloan (Mont. 1989), P.2d 

## , 46 St.Rep. 214, 216. In this case, the defendant argued that the victim's inconsistencies in some of the details of her story put her characterat issue. He thuswanted toprove shewas untruth

### ful with testimony, some from other witnesses, that she had been accused of stealing money from Vanessa at one time and thatT. B. herselfhad a criminal record. However,counsel's efforts were misguided on this issue. This testimony is not probative of truthfulness, and T. R.'s characterwas not put. at issue. The judge properly ruled that the door was not open to this sort of testimony.We decline to rule that an inconsistent statement in a victim's account of the sexual assault on her automatically puts her character in issue, thus opening the door for evidence of any past misconduct. The ruling of the trial court to that effectwas not an abuse of discretion. In State v. Maxwell (1982), 198 Mont. 498, 647 P.2d 348, we held that inconsistencies in a victim's statements regarding sexual intercourse without consent do not necessarily render her testimony inherently incredible. The jury is to remain the fact finder and the proper body to weigh the credi-bilityof eachwitness: Only in those rarecaseswhere the story told is so inherently improbable or is sonullifiedbymaterial self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for the verdict based upon it. Maxwell, 647P.2d at 351. Under these circumstances, defense counsel is not allowed to attack the victim's character in general, but rather is allowed to impeach thewitness' testimonybased on her prior inconsistent statements. Counsel impeached in this

case and the jurywas left to weigh her credibility in light of all disputed details. The jury always has an easy remedy for incredible testimony: they are free to reject it. Obviously, in this
case,the jury did not rejectT. B.'s testimony. Rather, the jury concluded that T. B. was worthy of belief despite her inconsistencies. Rulings on evidence are Left to the sound discretionof the trial judge andwill notbe overturned on appeal absent a showing that the trial judge abused his discretion. Cooper

v. Roston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978.Courville has not made that showing. We affirm the lower court's denial of "otherbad acts"t-estimony.

Courville also contends that the State's case-in-chief

was deficient on the elements of burglary and, thus, it was an abuse of discretion for the trial court not to direct a verdict in favor of Courville on that count. We disagree. Section 45-6-204, MCA, defines burglary as follows: (1) A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein. 

## * * 

## * Burglary is aggravated if the perpetrator inflictsbodily injury to anyperson during his entry, crime or flight thereafter. "Enters or remains unlawfully" is defined in 45-6-210, MCA, which reads in pertinent part: "A person. enters or remains unlawfully

# ... when he is not licensed, invited or otherwiseprivileged to do so." This statute is worded in the disjunctive; thus evidence that Courville either entered 

### - or remained unlawful-l-l.7 with an intent to commit an offense thereinwarrants denial of hismotion. The testimony at trial conflicted as towhether or not T. B. locked her door that night. However, it 

### is clear that Courville entered her house without permission to do so. His unlawful entry coupled with his further felony conduct satisfied the State's hurd-enof proving every element of theburglary charge. A verdict of acquittalmay be directed in favor of the defendant only if - no evidence exists upon which to base a g~i!t:~verdict. See State v. Matson (Mont..1987), 736 P.2d971, 44 St.Rep. 874; State v. Whitewater (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664; and 546-16-403,MCA. The foregoing testimony of T. 

### B. regarding Courville's entrywas sufficient for the case togo to the jury. Courville's motionwas properly denied. Courville further argued that even if he actually entered unlawfully,he was invited to remain on the premises, thus negating any criminal conduct. Trial testimony conflicted as to whether T. B. invited Courville to sleep downstairs on her couch that night becausehe was obviouslyupset and needed aplace to stay. T. B. testified that shedid not mind if he stayed on her couch but did not specifically remember inviting him. Even had the jury found that T. B. may have invited Courville to sleep downstairs on her couch, that invitation certainly did not include going up to her bedroom in order to choke and sexually assault her. Such conduct exceeds any reasonableprivilege and the trial court properly let the burglary charge go to the jury for determination. See also Statev. Manthie (1982), 197Mont. 56, 641 P.2d 491; State v. Watkins (1974), 163 Mont. 491, 518 P.2d 259 ("when a person exceeds the limits of his privilege



# . ..he thereby transforms his original invited presence into a trespass that can form the basis of a burglary charge. ) Based on the foregoing evidence, Courville fails to convince this Court that the trial court committed error. Judgmentaffirmed.We concur: