No. 94-414

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Larry W. Moran, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Anne H. Watson, Watson & Watson, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Cregg W.

Coughlin, Assistant Attorney General, Helena,

Montana

Mike Salvagni, County Attorney; Martin Lambert,

Deputy County Attorney, Bozeman, Montana

Filed:

Submitted on Briefs: May 12, 1995

Decided: August 8, 1995
Justice Fred J. Weber delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Eighteenth

Judicial District, Gallatin County and the District Court ' s

Sentence and Judgment. We affirm.

Five issues were raised on appeal:

I . Did sufficient evidence exist to support the jury verdict?

II. Did the District Court err in admitting into evidence the

substance of a 911 call?

III. Did the District Court err in allowing the State to use

defendant's silence, in reference to consensual sexual intercourse,

during his interrogation by the West Yellowstone police as evidence

against defendant?

IV. Did the District Court err in declining to review testimony

with the jury at the jury's request?

V. Did the District Court err in defendant's sentencing?

In May of 3.991, complainant, Betsy Baker (Betsy), and her

boyfriend moved to West Yellowstone and worked at various jobs.

They lived in a small trailer behind the Wagon Wheel Apartments.

Betsy testified that, on the evening of August 24, 1991, she

and her boyfriend ate dinner and then consumed several drinks at a

local bar. Ultimately, the boyfriend was found to be driving while

under the influence (DUI) and arrested. Betsy testified she did

not know what happened to her boyfriend after he got out of the

truck. She was advised by onlookers that he had been arrested.

Both defendant and Betsy testified to the fact that defendant

approached Betsy and offered to drive her truck home. Betsy

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agreed. Defendant walked with Betsy to her landlords' (the

Hitzlers) house. Defendant did not enter the Hitzlers' house but

remained outside searching for keys Betsy had dropped on the way to

the house. Betsy testified that she discussed with the Hitzlers

her concerns about her boyfriend's arrest. The Hitzlers testified

Betsy was clearly drunk at the time.

Betsy and defendant testified, as Betsy left the Hitzlers'

house, defendant pulled up in his own car, told Betsy he had found

her keys, and offered her a ride back to the trailer. Defendant

followed Betsy into her trailer. Betsy testified that she allowed

defendant to stay but told him he could sleep either on the bed or

on the couch and she would stay on the other because they were not

sleeping together. Betsy testified that defendant told her that

was fine.

Betsy then testified she was awakened when she felt someone

penetrating her vagina from behind her. She said she "dove off of

the bed" and yelled at defendant to "just get the fuck out of

here." Betsy testified defendant told her to "hold on" and calm

down, but she kept yelling for him to get out. Before he left,

Betsy said she asked him, "Did we make love?" Defendant replied,

"I didn't mean to hurt you," then ran out the door. Betsy said she

wrapped a blanket around herself and sat on the floor crying. At

about 5:00 a.m., people who lived close by testified that they

heard persistent crying.

Betsy testified that shortly after defendant left, someone

knocked on her door and she asked him to call the police. A West

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Yellowstone police dispatcher said someone called 911 on the night

in question and told the dispatcher a woman in a trailer behind the

Wagon Wheel was screaming, could hardly speak, and thought she may

have been raped. The caller would not give his name nor his

location. Later, it was discovered he was a seasonal worker and he

was not found nor called as a witness.

The police officer (Officer Burns) testified that, as he

approached the trailer, he heard a woman crying loudly. He knocked

on the door and saw Betsy on the floor holding a blanket tightly

and crying hysterically. He said he recognized her from the

earlier DUI stop and arrest. After Betsy calmed down, she told

Officer Burns that a man offered to drive the truck home after the

arrest and that she had been raped. Officer Burns locked the

trailer and transported Betsy to the police department.

Officer Burns located defendant based on Betsy's description

of defendant's car. Officer Burns said he asked defendant what had

happened that night and was told by defendant, "What, nothing

happened." When Officer Burns told defendant he knew something

happened, he testified defendant admitted that he was with a girl

and had given her a ride home but that was all. Officer Burns said

he again told defendant there Was more that had happened.

Defendant then told Officer Burns he approached the girl after her

boyfriend was arrested, offered his assistance, and drove her

pickup to her trailer. Defendant also told Officer Burns about

Betsy losing her keys and going to visit the other people.

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Officer Burns said defendant told him that when he and Betsy

got to the trailer, she offered to let him sleep in the bed, but

that he declined, telling Betsy, "No, that's your bed. 1'11 sleep

on the couch." Defendant told Officer Burns that Betsy was with

him on the bed and she began touching him. Defendant claimed they

fell asleep and that "[nlothing really happened after that."

Officer Burns asked defendant what happened in the bed; but he said

defendant became evasive. Officer Burns then advised defendant of

his rights and the interview ended.

On August 25, 1991, defendant was booked and detained at the

West Yellowstone, Montana, police station. Betsy and defendant

were both taken to Bozeman for a rape examination. Two nonmotile

sperm, biologically consistent with defendant, were found in Betsy.

Defendant was released after providing police with his permanent

address, telephone number, and social security number. On October

15, 1993, defendant was arrested for the offense of sexual

intercourse without consent in violation of § 45-5-503, MCA.

Defendant was tried before a jury on March 7-10, 1994.' He

testified on his own behalf at trial. He claimed that, as he drove

Betsy home, she sat directly next to him in the truck and placed

her hand on his leg. He also claimed she gave him a hug and kissed

him affectionately when he said he would go look for her keys.

Defendant then testified as to how Betsy and he had finally gone to

sleep together and that he awoke when Betsy's hand was fondling his

groin area. He testified that, after about ten or fifteen minutes

of foreplay, intercourse took place.

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He alleged, afterwards, she caressed his face with her

fingers, but suddenly stopped when she felt his mustache. He

claimed Betsy got up, went to the bathroom, then came out and asked

him, "Can I ask you a question?" Defendant told her, "Well, sure."

Defendant then testified that Betsy asked, "Did we just make love?"

He said "Well, of course we did." Defendant claimed Betsy got a

couple of tears in her eyes, then calmly suggested he should leave.

Defendant testifi.ed that he got dressed, returned to his friend's

apartment, and went to sleep.

On March 10, 1994, the jury found defendant guilty of Sexual

Intercourse Without Consent. He was sentenced on June 8, 1994, to

twenty years' imprisonment with five years suspended. For purposes

of parole eligibility, defendant was designated a dangerous

offender. From the final judgment, defendant appeals.

Issue I

Did sufficient evidence exist to support the jury verdict?

Section 45-5-503(l), MCA, states I' [al person who knowingly has

sexual intercourse without consent with another person commits the

offense of sexual intercourse without consent. . . .'I

Defendant claims the State failed to prove all of the

necessary elements of the alleged crime beyond a reasonable doubt.

Defendant admits he knowingly had sexual intercourse with Betsy.

However, defendant argues he was led to believe Betsy fully

consented to such intercourse.

"Without consent" as used in 5 45-5-503, MCA, is defined by §

45-5-501(l), MCA. Section 45-5-501(l), MCA states:

6
(1) . the term "without consent" means:

(b) the victim is incapable of consent because he

is:

(i) mentally defective or incapacitated;

(ii) physically helpless;

. . .

Defendant argues the State failed to prove Betsy was incapable

of appreciating or controlling her own conduct at the time of

sexual intercourse or even earlier the previous evening. Defendant

restates various testimony alleging Betsy made numerous thoughtful

decisions while in the company of defendant. From this testimony,

defendant concludes Betsy clearly possessed the capacity to

consent, and to say "no" to sexual intercourse even though later

she regretted that course of action.

Defendant further argues the evidence does not support the

State's claim that Betsy was physically helpless, and therefore

incapable of consenting. Section 45-2-101(51), MCA, states

'I( [plhysically helpless' means that a person is unconscious or is

otherwise physically unable to communicate unwillingness to act."

Defendant contends this Court has never determined "sleep" to be

physical helplessness and should not set such a precedent here. In

any event, defendant alleges Betsy was clearly not asleep because

she was physically active during intercourse.

The State contends defendant's arguments concerning Betsy's

capacity to consent or say "no" has nothing to do with the facts of

this case. The State argues its case is in no way based upon a

theory that Betsy was too drunk to make a wise choice about having

sex with defendant. The State contends the evidence established

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that Betsy was "passed out"--in other words, unconscious. Betsy

testified she told defendant he could sleep in the bed or on the

couch, but they would not be sleeping together. Betsy then passed

out on the bed, and defendant removed her pants and underwear and

took advantage of her unconscious state. The State concludes there

was sufficient evidence in the record to show Betsy was physically

helpless and could not have consented; therefore, the jury

correctly found defendant guilty of sexual intercourse without

consent pursuant to § 45-5-503, MCA.

"In reviewing a jury verdict in a criminal case, the proper

inquiry is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. (Citations omitted.) 'I State v. Little (1993), 260 Mont.

460, 477, 861 P.2d 154, 165. In the light most favorable to the

prosecution, the record fully supports the State's claim that Betsy

passed out the night of August 24, 1991; and that defendant,

knowing Betsy to be unconscious, penetrated her vagina without her

consent.

Defendant's contention, that no evidence exists as to Betsy's

mental incapacitation, physical helplessness, or defendant's

knowledge of such at the time of sexual intercourse, is incorrect.

Betsy testified she had laid on her bed fully clothed that night

and "passed out." She then testified she was awaken by someone

penetrating her vagina. In Little, we stated fl [wle have held

repeatedly that convictions for sexual intercourse without consent
and sexual assault are sustainable based entirely on the

uncorroborated testimony of the victim. (Citations omitted.) (I

Little, 861 P.2d at 165. Here, we have further testimony from both

the Hitzlers and Officer Burns that Betsy was obviously under the

influence of alcohol on the night in question.

"The credibility of witnesses and the weight to be assigned to

their testimony are to be determined by the trier of fact, and

disputed questions of fact and credibility will not be disturbed on

appeal." State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d

334, 336. Additionally, in State v. Losson (1993), 262 Mont. 342,

350, 865 P.2d 255, 260, we stated, "The jury decides the facts and

who to believe."

We conclude, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt. We therefore hold sufficient evidence existed to support

the jury verdict.

Issue II

Did the District Court err in admitting into evidence the

substance of a 911 call?

In State v. Hall (19901, 244 Mont. 161, 169, 797 P.2d 183,

188, we stated 'I [ilt is well established that the District Court

has latitude of discretion in passing on the admissibility of

evidence. [Citations omitted]. The District Court's determination

of the admissibility of evidence is subject to review only for

abuse of discretion. [Citations omittedl."

9
The District court permitted west Yellowstone Police

Dispatcher Helene Rightenour to testify regarding the contents of

the emergency 911 telephone call she received on the morning of

August 25, 1991. Rightenour testified:

It was a male caller and he said that there was a woman

screaming at 421 Gibbon at a little trailer behind the

Wagon Wheel Apartments. There was a truck parked out

front that had two bicycles on the top. And he had gone

over there and the woman was hardly able to speak, but

she asked him to call the police, that she thought she

might have been raped.

At trial, defendant objected to the District Court allowing

the dispatcher to testify as to the substance of the call.

Defendant argues the testimony consisted of prejudicially harmful

descriptions by the dispatcher of the caller's description of

Betsy's behavior and requests. Defendant contends it was double

hearsay, and doubly unreliable.

Rule 801(c), M.R.Evid., defines hearsay as "a statement, other

than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter

asserted."

Defendant argues the present-sense impression exception to the

hearsay rule (Rule 803(l), M.R.Evid.) does not apply because the

dispatcher was too far removed from Betsy to testify as to her

present-sense impression. Defendant further argues the excited

utterance excepti.on does not apply because the dispatcher is not

relating an event or condition, but is testifying to the caller's

description of the event. Defendant concludes none of these

exceptions apply. Thus, he contends the District Court abused its

10
discretion in allowing the prejudicial testimony of the 911 caller

as evidence.

The State argues "double hearsay" is not per se inadmissible.

Rule 805, M.R.Evid., provides hearsay within hearsay is not

excluded under the hearsay rule "if each part of a combined

statement conforms with an exception to the hearsay rule provided

in these rules." The State asserts the caller's statement was not

hearsay, under Rule 801(c), M.R.Evid., because it was not offered

to prove the truth of the matters asserted. The caller's statement

was offered to prove the time of the victim's allegation of rape

and the reason the police officer arrived at her trailer at 5:ll

a.m. We have closely examined the entire record in this case,

however, and cannot find any support for the State's statement in

that regard. The prosecutor did not contend before the District

Court that the dispatcher's testimony regarding the contents of the

911 call was not hearsay because it was merely being offered to

prove the time of the victim's allegation of rape and the reason

for the officer being sent to her trailer. To the contrary, the

prosecutor argued that the testimony was admissible under

exceptions to the hearsay rule, thereby implicitly conceding that

the testimony washearsay. Moreover, it was not on that basis that

the trial court allowed the testimony. The State's argument that

the testimony was not hearsay is being raised for the first time on

appeal; therefore, we will not address that argument further.

The State then argues that Betsy's statements to the caller

fit within several exceptions to the hearsay rule. Betsy was

11
crying hysterically, asked for the police and claimed she thought

she had been raped. Her statements reflected an excited utterance,

her present-sense impression, and her then existing state of mind,

emotion, sensation, and physical condition--all within the hearsay

exclusion exceptions under Rule 803, M.R.Evid.

While we concur with the State's statement that double hearsay

is not per se inadmissible, the double hearsay rule does not apply

here. The record does not support the State's contention that the

caller's statement was admissible because it was not hearsay and

the police dispatcher was too far removed to testify as to what

Betsy said to the 911 caller. The 911 caller is the one who

witnessed Betty's excited utterance, and her then existing state of

mind, emotion, sensation, and physical condition. Therefore, the

caller was the only one who could testify to what Betsy said and to

his present-sense impression of her when she made the statement.

We hold the District Court erred in admitting into evidence

the substance of the 911 call. However, we have stated "[t]he

admission of improper evidence is not grounds for reversal unless

there is a reasonable possibility that the evidence may have

contributed to the conviction. [Citation omitted] .'I State v. Matt

(1991), 249 Mont. 136, 145, 814 P.2d 52, 58. All of the basic

elements--that Betsy was screaming and had asked the caller to call

the police because she thought she had been raped--were established

without question by other testimony properly admitted at trial. As

a result, while the admission of the testimony was not proper, we

12
conclude it is not reversible error because it did not contribute

to the conviction.

We hold that the admission into evidence of the substance of

the 911 call was harmless error under these facts.

Issue III

Did the District Court err in allowing the State to use

defendant's silence, in reference to consensual sexual intercourse,

during his interrogation by the West Yellowstone police as evidence

against defendant?

Defendant argues the State's improper comment on defendant's

right to remain silent solemnizes the silence into evidence against

defendant in direct violation of his Fifth and Fourteenth Amendment

rights under the United States Constitution. Defendant did not

waive his Miranda rights, thereby assuming he had the right to

remain silent under the Fifth Amendment.

Defendant alleges statements referencing his silence did not

distinguish between post- and pre-Miranda warnings. Thus, he

asserts these statements, in their entirety, were improper under

Doyle v. Ohio (1976), 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240,

where we held "the use for impeachment purposes of petitioners'

silence, at the time of arrest and after receiving Miranda

warnings, violate[sl the Due Process Clause of the Fourteenth

Amendment."

The State contends defendant did not establish a Fifth

Amendment nor a Fourteenth Amendment violation. The State stresses

the fact defendant was not silent. He voluntarily gave statements

13
to Officer Burns. The State believes it properly used those

statements through careful cross-examination to expose defendant's

false testimony when he took the witness stand and gave a very

different account of the events leading to and during sexual

intercourse.

We agree with the State's contention. In this case, defendant

was cross-examined on statements he voluntarily made to Officer

Burns prior to his arrest and how his testimony at trial conflicted

with those statements. The fact that defendant's statements did

not include a reference to consensual sexual intercourse is not an

indication of silence of the type referred to in Doyle. W e

conclude the District Court did not abuse its discretion in

permitting the State's impeachment line of questioning. We

therefore hold the District Court did not err in allowing the State

to use defendant's silence, in reference to consensual sexual

intercourse, during his interrogation by the West Yellowstone

police as evidence against defendant.

Issue IV

Did the District Court err in declining to review testimony

with the jury at the jury's request?

During deliberation, the jury sent a written note to the

District Court inquiring as follows:

In reference to Officer Burns['] statements regarding the

conversation with suspect in vehicle in front of

apartment --

The question is "Did the defendant tell the officer that

he and Betsy had a conversation to the effect that" he

(the defendant) could either sleep on the bed or on the

couch and she on one or the other[?l

14
Upon receiving this request, the court consulted with counsel and

inquired of their positions. The court's answer to the jury's

inquiry read, "In the exercise of discretion the [cl ourt has

determined that it would be inappropriate to respond to the

question you have asked."

Defendant argues the District Court abused its discretion by

not responding to the jury's question. Defendant sets out portions

of Officer Burns' testimony which speak to the jury's inquiry.

Defendant contends the District Court committed reversible error by

disallowing that portion of Officer Burns' testimony to be replayed

for the jury during its deliberations as requested. Defendant

further argues the District Court erred when it failed to give to

the jury the instructions set forth in State v. Henrich (1994), 268

Mont. 258, 267, 886 P.2d 402, 408, which specifically deals with

requests from the jury about witness testimony.

Section 46-16-503(2), MCA, refers to the jury's conduct after

its retirement.

46-16-503. Conduct of jury after retirement--advice from

court.

(2) After the jury has retired for deliberation, if

there is any disagreement among the jurors as to the

testimony or if the jurors desire to be informed on any

point of law arising in the cause, they shall notify the

officer appointed to keep them together, who shall then

notify the court. The information requested may be

given, in the discretion of the court, after consultation

with the parties.

The State argues, and we have consistently held, that the

decision to replay testimony to the jury, or to refuse a request by

the jury to do so, lies within the sound discretion of the district

court. Henrich, 886 P.2d at 407; State v. Evans (1993), 261 Mont.

15
508, 511, 862 P.2d 417, 418; State v. Mayes (1992), 251 Mont. 358,

374, 825 P.2d 1196, 1206; State v. Harris (1991), 247 Mont. 405,

416-17, 808 P.Zd 453, 460; State v. Ulstad (19901, 246 Mont. 102,

104, 802 P.2d 1260, 1262. We will review a district court's

decision to allow or disallow a jury's request to replay trial

testimony to determine if the district court abused its discretion.

Henrich, 886 P.2d at 407.

After consulting counsel, the District Court commented,

"almost any time you respond to a question from the jury, you're

flirting with an error in the case." The District Court noted

Officer Burns' direct testimony was interrupted by other testimony.

He was brought back to the witness stand to complete his direct

examination, and to further testify under cross-examination

followed by redirect examination; thus, complicating reiteration of

his testimony. The court recognized the dangers of emphasizing the

testimony of one witness over another, as well as repeating

portions of testimony out of context. We, therefore, conclude the

District Court did not abuse its discretion in denying the jury's

request.

We hold the District Court did not err in declining to review

testimony with the jury at the jury's request.

Issue v

Did the District Court err in defendant's sentencing?

Defendant was sentenced to the Montana State Prison for a

period of twenty years, with five years suspended. He was ordered

to complete the sexual offender treatment program, classified as

16
being a dangerous offender, ordered to register as a sex offender,

and required to pay restitution to the West Yellowstone Police

Department and the Crime Victims' Compensation Bureau of the State

of Montana in the amount of $285.00.

Defendant contends the District Court, in setting his

sentence, failed to consider statutory requirements set forth in

§ 46-l&101(3), MCA. Defendant further contends the sentence is

cruel and unusual punishment under the Eighth Amendment to the

United States Constitution in that it is excessive punishment; and,

the court has denied defendant equal protection of the laws under

the Fifth and Fourteenth Amendments of the United States

Constitution.

The State argues 5 46-l8-101(3), MCA, does not require the

District Court to specifically identify each criterion in the

sentencing order, but requires sentences to be based "primarily" on

the criteria listed. District courts are required only to

specifically state, in open court and in the written judgment, the

reasons for a sentence. Sections 46-18-102 and -115(S), MCA. The

State asserts the court properly set forth, in both open court and

written judgment, the reasons it imposed such sentence.

In State v. Cope (1991), 250 Mont. 387, 399, 819 P.Zd 1280,

1287, we stated:

We review sentences for legality only. State v. Hurlbert

(19881, 232 Mont. 115, 756 P.2d 1110. The standard of

review on sentence legality is whether the district court

abused its discretion. State v. Lloyd (19841, 208 Mont.

195, 199, 676 P.2d 229, 231. We find no such abuse here,

since [defendant's] sentence is well within the statutory

limits. Questions of sentencing equity, on the other

hand, are to be presented to the Sentence Review

17
Division. Llovd, 676 P.2d at 231. If [defendant] wishes

to pursue his equity argument, he may do so in the

Sentence Review Division.

The above statement applies to these circumstances as well. The

sentence is within the guidelines set forth in § 45-5-503(2), MCA,

and is, on its face, neither excessive nor cruel. The District

Court properly set forth its reasons for the sentence at the

hearing and in its judgment; and those reasons did not manifest an

abuse of discretion

We, therefore, hold that the District Court did not err in

defendant's sentencing.

We concur:

18
Angust 8, 1995

CERTIFII CATE OF SERVICE

I hereby certify that the following certilied order was sent by United States mail, prepaid,

to the following named:

HON. JOSEPH P. Mp

Cregg W. Coughlin, A3

Justice Bldg.

Helena, MT 59620

ZUREK, Attorney General

;sistant

Mike Salvagni, County Attorney

Martin Lambert, Deputy

Law & Justice Center

615 S. 16th Ave.

Bozeman, MT 59715

WATSON & WATSON

502 South 19th Avenue

Bozeman, MT 59715

ED SMITH

CLERF

STATE OF MONTANA

; OF THE SUPREME COURT

-*.

Deputy