### No. 14928 IN 

### THE SUPREME COURT OF THE STATE OF MONTANA 1980

STATE OF MONTANA, Plaintiff and Respondent,

FORREST JORDAN SMITH, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, Honorable Gordon Bennett, Judge presiding. Counsel of Record: For Appellant: Harold H. Harrison argued, Helena, Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena, Montana Chris Tweeten argued,Assistant Attorney General,

Helena, Montana Charles Graveley argued, County Attorney, Helena,

Montana

Submitted: February 19, 1980 Decided: 

## MAR2

## 7 

## lgaMr. ~ustice Gene B. Daly delivered the Opinion of the Court. Defendant was convicted inthe DistrictCourt of the FirstJudicial Districtof the crime of sexual intercourse without consent and was sentenced to ten years in the Montana StatePrison, with the lastnine years suspended. Defendant appeals from the above conviction and judgment. This case arose from 

### a complaint filedby Mary Rose Cloninger alleging that defendant forced her to engage in sexual intercourse in the earlymorning hours of August 

### 4, 1978. There 

### isno dispute that on thatmorning the defendant and the complainant engaged in sexual intercourse. The sole issue 

### attrialwas whether the act

### was committed without consent. Evidence taken during the trial revealed that the prosecutrix, a former barmaid, and defendant had known each other for a period of approximately ten years; that during their teenage years the prosecutrix had often telephoned defendant and 

### was familiar with defendant's voice on the telephone; thatduring those years they were on many occasions alone together; thatboth the prosecutrix and defendant

### were involved inrodeo activities 

### as were their respective families; thatdefendant had previously gone with the prosecutrix's younger 

### sister Carrie for about a year; that Carrie had never complained tothe prosecutrix of defendant making any untoward or insulting approaches toher; and that at the time of trialCarriewas stillquite friendlywith defendant and vehemently objected toher 

### sister's rape charges, as did other members of the family. With respect to the incident outof which the present



### case arose, the testimony of the prosecutrix indicates that between 3:30 and 4:00 a.m. on August 4, 1978, defendant

### telephoned the prosecutrix and told her that he was at a party and asked if shewould cook breakfast for him. She agreed to do so, and defendant arrived at her residence shortly thereafter. She had not dressed and was wearing only a light, clinging robe and nothing else. After breakfast the prosecutrix testified she offered to allow defendant to use a spare bedroom. She testified she did this because she knew defendant had to be atwork at 7:00 

### thatmorning at a location relatively close to the Cloninger residence. When shewas showing him to the room, the defendantmade a sexual advance at the prosecutrix, which she rebuffed. She then returned to her bedroom. A fewminutes later, defendant entered her bedroom and forcibly accomplished an act of sexual intercoursewith her. She testified that she screamed and struggled, but ceased her resistancebecause of fear for her safety. This fear stemmed in part from a previous incident where defendant had allegedly assaulted her physically for calling him a "son-of-a-bitch." Defendant's story is consistent with the prosecutrix's testimony up to the point where she offered to allow defendant to sleep ather house. According to defendant,he had been drinking in a bar for several hours and had then gone to a house party at the home of a friend. He testified that he considered himself to have been drunk. He called the prosecutrix because he desired some female companionship for the night, though he admitted that there were no previous instances of sexual relationsbetween them. He testified that he went over to the prosecutrix's house after his request for breakfast was granted. ~ccording to defendant,when Ms. Cloninger offered to allowhim to sleep at her house, she told him he could sleepanywhere he wanted to, and then she went tobed; that she didnot take him to any room; that he was completely familiar with the layout of the house; that 

### it would not have been necessary for her to show him the location of any room; that he took his shoes and socks off in the kitchen, went into the bedroom through a door thatwas open and lifted up the covers and crawled into bed beside her; that he 

### still had his shirtand pants on; that they started necking and he kissed her on the lips, neck, nipples and unzipped her bathrobe allthe way; that she offered no objection to any of this; that she did not cry or scream; that he took his clothes off in the course of which he unbuckled his belt and undid his buttons and zipper and pushed his pants down; that during allthat 

### timehe 

### was not holding her inany way except that he had his 

### armaround her; that she did not object or 

### resist inany way, nor did she ever tellhim to stop; that she responded tohim and he completed the sex act with her and she appeared to cooperate; thatwhen it

### was

over he 

### was laying beside her and they started talking; that theprosecutrix 

### was talking about her boyfriend Ed and stated that "after he went to college this fall that we could 

### start going out"; that defendant told her that he had never mentioned anything about going out together and thatwith this she became very angry and told defendant to "get the hell out of the house, you son-of-a-bitch"; thatwith respect to the doctor later finding a 

### littleredness around her 

### wrist that he did not hold her 

### wrist, pinch it or anything of that sort; and, that when he leftthe home of the prosecutrix thatmorning, he had no suspicion whatever that she would

accuse him of rape.The prosecutrix did not phone for help upon the departure of defendant but showered and went to a girlfriend's house, Diane Trankel, and from there, some 

### time 

### later, the authoritieswere called. The following issues arepresented to thisCourt for review: 1. Is the evidence sufficient to support the verdict? 2. Did the trial court 

### err inrefusing defendant's cautionary instruction that "the 

### crimeof sexual intercourse without consent iseasy tocharge and difficultto refute"? 3. Did the trialcourt err inrefusing to instruct the jury on the statutoryprohibition against introduction of the victim's prior sexual conduct? 

### 4. Did the trial court

### err inrefusing to instruct the jury thatknowledge of the victim's lack of consent 

### is an element of the offense of sexual intercourse without consent? 

### 5. Did the 

### trial court's instructions improperly "give undue prominence" to the State's case? 6. Did the trial court 

### err ingiving Instruction Nos. 7, 8, and 10 on the ground that the instructions

### were irrelevant to the issues and evidence presented? This case, like somany others, 

### is close. The very fact that the "consent" or the very case itself 

### ishotly contested and rests solely on the testimony of the prosecutrix

or one person and remains uncorroborated puts a hard burden

on the trialcourt insofar as a directed verdict is concerned,

or on thisCourt on sufficiency of evidence. The 

### lawis almost 

### as close as the facts in these matters. Initially, defendant alleges that the court erred in denying defendant's motion for 

### a directed verdict of acquittal. He contends thatvarious inconsistencies make theprosecutrix's version of the facts inherently improbable. The evidence was therefore insufficient to convict. Defendant submits that inthe trialof cases of alleged rape, the court should view evidence over and above the substantial evidence ruleapplicable inother cases todetermine whether

ornot evidence of the alleged crime 

### is inherently improbable. DeArmond v. State (0kla.Cr. 1955), 285 P.2d 236; State v. Shouse (1953), 57 N.M. 701, 262 P.2d 984; Statev. Richardson (1944), 48 N.M. 544, 154 P.2d 224. Defendant also cites Montana cases which support the inherently improbable test todetermine sufficiency of the evidence inrape cases. State v. Moe (1923), 68 Mont. 552, 219 P. 

### 803-; Statev. McIlwain (1921), 60 Mont. 598, 201 P. 270. The Statecontends there is nothing inherently improbable about the scenario presented by the prosecutrix. It argues that this case falls into the 

### class of cases typified by Statev. Peterson (1936), 102 Mont. 495, 59 P.2d 61, and Statev. Gaimos (1916), 53 Mont. 118, 162 P. 596, where the testimony of the prosecutrix, although impeached to an extent, was internally consistent and worthy of belief by a jury so inclined. Section 46-16-403, MCA, provides: "When, atthe close of the state's evidence or 

### atthe close of allthe evidence, the evidence 

### is insufficient to support a finding orverdict of guilty, the courtmay, on 

### its own motion or on the motion of the defendant, dismiss the action and discharge the defendant

# . . 

# ." The general rule inMontana appears tobe that a directed verdict of acquittal 

### isappropriate incriminal cases "only where the State failstoprove its case and there 

### isno evidence upon which a jury could base itsverdict." State

v. Yoss (1965), 146Mont. 508, 409 P.2d 452, 455. "Thedecision whether to dismiss the charge or direct a verdict of acquittal lieswithin the sound discretion of the trial court and willbe disturbed on appeal only when abuse 

### is shown." Statev. Just (1979), Mont. 

## , 602 P.2d 957, 

### -

Defendant's second contention is that the refusal of the trial court togive the cautionary instruction, "the charge of rape 

### is easilymade and difficulttorefute," especially where, ashere, the proof of lack of consent 

### rests entirelyon the uncorroborated testimony of the prosecutrix, 

### is reversible error. This Court faced a similar situation recently inState

v. Just, supra, wherein 

### we stated: "Instructions similar to the one above were offered inthe earlier cases of Statev. 

### Keeler (1916), 52 Mont. 205, 211, 156 P. 1080, 1081, and Statev. Mihalovich (1924), 69 Mont. 579, 585, 22 P. 695, 697. In each of those cases, thisCourt held that the trial judge's refusal to give the instruction was proper when there was nothing in 

### -- the record to suggest 

### -- thatthe prosecutrix was motivated

## by private malice or a desire forrevenge 

# . .

# . The 

### test for deter

## --- mining the propriety of giving an instruction such 

### as thatoffered defendant

### was set forth 

### --- inthe recent case of Statev. Ballew (19751, 

### -- -- 166 Mont. 270, 276, 532 P.2d407, 411: 

### '

# . . . it 

### is clear that refusals to give such an instruction

### willbe error only when some specific cause 

### is shown for distrusting the testimony of the complaining witness. Such causes might include manifest malice, desire 

## - for revenge, 

# or an absence of corroborating evidence tending to - 

### - - thefar+~ t~s~ified tobv the complain- support

## =-

## ---- --------- 

### _=- -- & ingwitness.'" 602 P.2d at964. (Emphasis added.) (Citationsomitted.) As pointed out above, thematter athand 

### is troublesome. This should alerta trialjudge toproceed with extreme caution, because the search for truth isgoing tobe elusive and difficult, and fundamental fairness 

### is not easily obtained under these kinds of circumstances. The reasons 

### are clearwhy 

### allavailablemeans be used to impress upon thejury thatuncorroborated testimony of one person todecide 

### a criminal cause 

### isnot the usual situation, even though acceptable by the 

### lawinthis cause, and that they should proceed fairlybut with additional caution in thiskind of matter. Here there was undisputed direct evidence that there had been more than casual trouble between these parties in the past when defendant allegedly struck the prosecutrix. The incidents, however, stemming from defendant's relationshipwith the prosecutrix's 

### sister, 

### were not based on drink

or sex, but on defendant's objection to being called a "sonof-a-bitch" by the prosecutrix upon two of the occasions. Defendant testified that after the sex actwas completed on the night of the alleged rape, the prosecutrix suggested a "going out together relationship," after her boyfriend "Ed" returned to college. Defendant stateshe demurred, and again, without any apparent fear of being beaten, she told him, "get the hell out of my house you sonof-a-bitch." There 

### isno question that these incidents, true or false, areproperly inthe record, together with some other impeachment on peripheral matters. Further, there 

### isno question that this evidence entitled defendant to the cautionary instruction. The evidence clearly

### meets the standard of private malice, desire for revenge and absence of corroboration on the criticalmatters of consent, allas required by Statev. Ballew (1975), 166 Mont. 270, 275-76, 532 P.2d 407, 410-11, and cases cited therein. Failure to give a cautionary instruction inthiskind of matter, as previously stated, 

### ismore serious than in the ordinary criminal causes and requires reversal.

### Therefore, the remainder of defendant's issues for review need not be considered. The judgment of the District Court is reversed, and the cause for a new trial,

/ 

### - Justice

We concur:

Mr. Chief Justice Frank I. Haswell, deeming himself disqualified, did not participate.Mr. Justice John Conway Harrison dissenting: I dissent. Inmy opinion themajority here improperly substitutes their opinion for that of the jury. Admittedly, the fact situation isunusual but that iswhat jurors are for and they, not thisCourt, heard the testimony, saw the 

### witnesses and were ina farbetter position toweigh the evidence. As to the giving of the precautionary instruction, I failto find the trial court inerrorwhen it follows the



### case 

### lawestablished inthis State. As recently as 

### last year 

### we upheld the refusal to give such an instruction in Statev. Just (1979), 

### -Mont

# . , 602 P.2d 957, 36 St.Rep. 1649. See also, State v. Ballew (1975), 166 Mont. 270, 532 P.2d 407. I find no need to search elsewhere for authority tooverturn this case when 

### we have, inmy opinion, ample authority to sustain the lower court.