IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsALEXANDER COIJRVILLE, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C.F. McNei3, Judge presidinq. 

COUNSEL OF RECORD: 

For Appellant: 

Benjamin R. Anciaux, Polson, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Betsy Brandborg, Asst. Atty. General, Helena 

Larry Nistler, County Attorney; Mark Stermitz, Deputy 

County Attorney, Polson, Montana 

5 

Submitted: Jan. 12, 1989 

Decided: February 

I 

Clerk 
Mr. 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 evidence at trial of the victim's pa.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 

shoes off. T. B. recognized Courville immediately because he 

had been an acquaintance of 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 

to him that she was sick, she had been at the hospital earlier to get a shot of Demerol for her severe migraine headache, 

she was tired from the drug and needed to go back to bed. 

The trial testimony conflicted at this point as to whether 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 to bed. 

T. R. was awakened again in a short time by Courville 

sittinq on her bed and shaking her awake. Her two-year-old 
son was in bed with her. The testimony again conflicted at 

this point as to where Courville was and what dialogue passed 

between them. T. B. gave slightly different accounts of 

this. She appeared confused at trial, and her memory was not 

strong due to the ensuing events, her drowsiness, and the 

effect of the drug. 

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. 

She persuaded him not to have intercourse with her, but while 

she was naked Courville fondled her entire body and put his 

fingers in her vagina and rectum. 

T. B. attempted to leave the bedroom for varying 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 she was babysitting, under the 

excuse of needing to take the other child home to her mother 

and needing to get on the road for a trip they had 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 covered with bruises. T. B. related the entire 

story to Vanessa, who also knew Courville. Vanessa persuaded 

T. R. to get some sleep at Vanessa's house and encouraged her 

to turn Courville in to the police. 

Five days later, Vanessa went to the Polson Police 

Department with this story and gave a statement. to the 
police. 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 events varied slightly at trial from the story 

she related to the police that day. 

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 remembered was waking up to him choking her. At trial, she cou3.d not remember specifically 

telling him to leave, but rather just understood that he was 

leaving when she told him she was sick and he got up and 

walked toward the door. Additionally, T. B. later remembered 

some intervening events in her bedroom between her falling 

asleep the first time and when Courville first began 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 Courville threatened her: "If you don'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 

come back and hurt you again." 

Courville was charged by information on September 11, 

1987, with sexual intercourse without consent and aggravated 

burglary. Prior to trial, the State made 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 an 
additional 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 issue by 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. Rul e 

404 (a), M.R.Evid. However, Rule 608, M.R.Evid., does permit 

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 of misconduct 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 

character at issue. He thus wanted to prove she was untruthful with testimony, some from other witnesses, that she had 

been accused of stealing money from Vanessa at one time and 

that T. B. herself had a criminal record. However, counsel's 

efforts were misguided on this issue. This testimony is not 

probative of truthfulness, and T. R.'s character was 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 effect was 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-bility of 

each witness: 

Only in those rare cases where the story 

told is so inherently improbable or is 

so nullified by material 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, 647 P.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 the witness' testimony based on 

her prior inconsistent statements. Counsel impeached in this 

case and the jury was 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 reject T. 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 discretion of 

the trial judge and will not be 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 "other bad 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 inflicts bodily injury to any person 

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 otherwise privileged 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 therein warrants denial 

of his motion. The testimony at trial conflicted as to whether 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-en of proving every element 

of the burglary charge. 

A verdict of acquittal may 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.2d 
971, 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 entry was sufficient for the case to go to the jury. Courville's motion was 

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 because he was obviously upset 

and needed a place to stay. T. B. testified that she did 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 reasonable privilege and the trial court 

properly let the burglary charge go to the jury for determination. See also State v. Manthie (1982), 197 Mont. 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. 

Judgment affirmed. 
We concur: