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: MAR 2 7 lga 
Mr. ~ustice Gene B. Daly delivered the Opinion of the Court. 

Defendant was convicted in the District Court of the 

First Judicial District of the crime of sexual intercourse 

without consent and was sentenced to ten years in the Montana 

State Prison, with the last nine years suspended. Defendant 

appeals from the above conviction and judgment. 

This case arose from a complaint filed by Mary Rose 

Cloninger alleging that defendant forced her to engage in 

sexual intercourse in the early morning hours of August 4, 

1978. There is no dispute that on that morning the defendant and the complainant engaged in sexual intercourse. The 

sole issue at trial was 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; that during those years they were on many occasions alone together; that both the prosecutrix and defendant were involved in rodeo activities as were their respective families; that defendant had previously gone with the 

prosecutrix's younger sister Carrie for about a year; that 

Carrie had never complained to the prosecutrix of defendant 

making any untoward or insulting approaches to her; and that at 

the time of trial Carrie was still quite friendly with 

defendant and vehemently objected to her sister's rape 

charges, as did other members of the family. 

With respect to the incident out of 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 she would 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 at work at 

7:00 that morning at a location relatively close to the 

Cloninger residence. When she was showing him to the room, 

the defendant made a sexual advance at the prosecutrix, 

which she rebuffed. She then returned to her bedroom. A 

few minutes later, defendant entered her bedroom and forcibly 

accomplished an act of sexual intercourse with her. She 

testified that she screamed and struggled, but ceased her 

resistance because 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 at her 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 relations between 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 

allow him to sleep at her house, she told him he could sleep 
anywhere he wanted to, and then she went to bed; that she 

did not 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 that was open and lifted up 

the covers and crawled into bed beside her; that he still 

had his shirt and pants on; that they started necking and he 

kissed her on the lips, neck, nipples and unzipped her 

bathrobe all the 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 all that time he was not holding her in any way 

except that he had his arm around her; that she did not 

object or resist in any way, nor did she ever tell him to 

stop; that she responded to him and he completed the sex act 

with her and she appeared to cooperate; that when it was 

over he was laying beside her and they started talking; that 

the prosecutrix 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 that with this 

she became very angry and told defendant to "get the hell 

out of the house, you son-of-a-bitch"; that with respect to 

the doctor later finding a little redness around her wrist 

that he did not hold her wrist, pinch it or anything of that 

sort; and, that when he left the home of the prosecutrix 

that morning, 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 authorities were called. 

The following issues are presented to this Court for 

review: 

1. Is the evidence sufficient to support the verdict? 

2. Did the trial court err in refusing defendant's 

cautionary instruction that "the crime of sexual intercourse 

without consent is easy to charge and difficult to refute"? 

3. Did the trial court err in refusing to instruct the 

jury on the statutory prohibition against introduction of 

the victim's prior sexual conduct? 

4. Did the trial court err in refusing to instruct the 

jury that knowledge 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 in giving Instruction Nos. 

7, 8, and 10 on the ground that the instructions were irrelevant to the issues and evidence presented? 

This case, like so many others, is close. The very 

fact that the "consent" or the very case itself is hotly 

contested and rests solely on the testimony of the prosecutrix 

or one person and remains uncorroborated puts a hard burden 

on the trial court insofar as a directed verdict is concerned, 

or on this Court on sufficiency of evidence. The law is 

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 that various inconsistencies make the 
prosecutrix's version of the facts inherently improbable. 

The evidence was therefore insufficient to convict. Defendant submits that in the trial of cases of alleged rape, the 

court should view evidence over and above the substantial 

evidence rule applicable in other cases to determine whether 

or not evidence of the alleged crime is inherently improbable. 

De Armond v. State (0kla.Cr. 1955), 285 P.2d 236; State v. 

Shouse (1953), 57 N.M. 701, 262 P.2d 984; State v. Richardson 

(1944), 48 N.M. 544, 154 P.2d 224. Defendant also cites 

Montana cases which support the inherently improbable test 

to determine sufficiency of the evidence in rape cases. 

State v. Moe (1923), 68 Mont. 552, 219 P. 803-; State v. 

McIlwain (1921), 60 Mont. 598, 201 P. 270. 

The State contends 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 State v. Peterson (1936), 102 Mont. 495, 59 P.2d 61, 

and State v. 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, at the close of the state's evidence or 

at the close of all the evidence, the evidence 

is insufficient to support a finding or verdict 

of guilty, the court may, on its own motion or 

on the motion of the defendant, dismiss the action and discharge the defendant . . ." 

The general rule in Montana appears to be that a directed 

verdict of acquittal is appropriate in criminal cases "only 

where the State fails to prove its case and there is no 

evidence upon which a jury could base its verdict." State 

v. Yoss (1965), 146 Mont. 508, 409 P.2d 452, 455. "The 
decision whether to dismiss the charge or direct a verdict 

of acquittal lies within the sound discretion of the trial 

court and will be disturbed on appeal only when abuse is 

shown." State v. Just (1979), Mont. 

- 

, 602 P.2d 957, 

Defendant's second contention is that the refusal of 

the trial court to give the cautionary instruction, "the 

charge of rape is easily made and difficult to refute," 

especially where, as here, the proof of lack of consent rests 

entirely on the uncorroborated testimony of the prosecutrix, 

is reversible error. 

This Court faced a similar situation recently in State 

v. Just, supra, wherein we stated: 

"Instructions similar to the one above were offered in the earlier cases of State v. Keeler 

(1916), 52 Mont. 205, 211, 156 P. 1080, 1081, 

and State v. Mihalovich (1924), 69 Mont. 579, 

585, 22 P. 695, 697. In each of those cases, 

this Court held that the trial judge's refusal 

to give the instruction was proper when there 

was nothing -- in the record to suggest -- that the 

prosecutrix was motivated by private malice or 

a desire for revenge . . . --- The test for determining the propriety of giving an instruction 

--- 

such as that offered defendant was set forth 

-- in the recent -- case of State v. Ballew (19751, 

166 Mont. 270, 276, 532 P.2d407, 411: ' . . . it is clear that refusals to give such an instruction will be 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 

support - = the far+~ - -- -- t~s~ified --- ------ _=- to bv the complain- - - & 

ing witness.'" 602 P.2d at 964. (Emphasis 

added.) (Citations omitted.) 

As pointed out above, the matter at hand is troublesome. 

This should alert a trial judge to proceed with extreme 

caution, because the search for truth is going to be elusive 

and difficult, and fundamental fairness is not easily obtained under these kinds of circumstances. The reasons are 

clear why all available means be used to impress upon the 
jury that uncorroborated testimony of one person to decide a 

criminal cause is not the usual situation, even though 

acceptable by the law in this cause, and that they should 

proceed fairly but with additional caution in this kind 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 relationship with 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 act was completed on the night of the alleged rape, the prosecutrix 

suggested a "going out together relationship," after her 

boyfriend "Ed" returned to college. Defendant states he 

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 is no question that these incidents, true or 

false, are properly in the record, together with some other 

impeachment on peripheral matters. Further, there is no 

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 critical matters of consent, all as 

required by State v. Ballew (1975), 166 Mont. 270, 275-76, 

532 P.2d 407, 410-11, and cases cited therein. Failure to 

give a cautionary instruction in this kind of matter, as 

previously stated, is more 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. In my opinion the majority here improperly 

substitutes their opinion for that of the jury. Admittedly, 

the fact situation is unusual but that is what jurors are for 

and they, not this Court, heard the testimony, saw the witnesses and were in a far better position to weigh the evidence. 

As to the giving of the precautionary instruction, I 

fail to find the trial court in error when it follows the 

case law established in this State. As recently as last 

year we upheld the refusal to give such an instruction in 

State v. 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 

to overturn this case when we have, in my opinion, ample 

authority to sustain the lower court.