No. 81-429 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

GREGORY KENT MAXWELL, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone 

Honorable William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Allen Beck argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dorothy BlcCarter, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Klaus Richter argued, Deputy County Attorney, 

Billings, Montana 

Submitted: February 26, 1982 

Decided: June 28, 1982 

ju~.~ 2 8 1982 Filed. 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant appeals his conviction in Yellowstone County 

District Court, of sexual intercourse without consent. 

Defendant raises several issues. First, he argues that 

his conviction is unsupported by substantial evidence. This 

claim is based on the assertion that the testimony of the 

complaining witness is so inherently incredible that it is 

unworthy of belief as a matter of law. He also claims that 

his alibi defense entitles him to a reversal as a matter of 

law. Second, he claims that the jury was guilty of misconduct during deliberations by improperly considering facts 

not in evidence and by disregarding competent scientific 

evidence. Third, he claims that the jury foreperson, because 

of her aggravated diabetic condition, was compelled to 

surrender her honest conviction that the defendant was 

innocent. We affirm. 

On November 13, 1980, the victim's sister reported to 

the Yellowstone County Sheriff's Department that the victim 

had been sexually assaulted. Deputies arrived at the 

victim's residence near Ballentine to investigate and she 

was taken to a Billings Hospital for treatment of a number 

of superficial cuts inflicted during the attack. 

The evening following the attack, the victim gave the 

police a statement containing her first version of the 

crime. She stated that, while hanging clothes outside her trailer 

home during the afternoon, she was grabbed from behind by 

a very large, fat, red haired man who forced her into a 

barn located on the property. She stated that her attacker 

had large bumps on his face and a very peculiar voice. The 

attacker then ripped and cut off her clothes with a hunting 
knife and forced her to perform oral sex twice. The victim 

stated that both times the attacker removed his penis from 

her mouth and "it went" all over her face and hair. The 

attacker cut her repeatedly with the knife and threatened 

her life if she told anyone of the attack, and then fled. 

After waiting in the barn for a considerable time, she 

returned to her house, threw her clothes in the garbage can 

and took several baths. She finally called her sister in 

Hardin, requesting that she come to her house because she 

had been hurt. The sister called the police shortly after 

she arrived at the victim's house. 

On November 14, the day after the attack, the victim 

again gave police a statement which was substantially the 

same as the one given the day before. Sometime after this, 

the victim was shown a number of photographs by the police. 

From five photographs, the victim selected two that she felt 

were similar to the man she had described. One of these 

individuals was questioned by the police, but no charges 

were filed. 

On November 24, the victim called Detective Ellis, and 

asked to speak with him concerning the attack and ~etective 

Ellis drove to her house. During this interview, the victim 

substantially changed her story about when, where, and how 

the crime took place, and identified her assailant as Greg 

Maxwell, a person whom she had met on one occasion about one 

month before the attack. She recanted her previous statements, 

saying that she gave false information out of fear that 

Maxwell would seek revenge if she reported him to the police. 

On the same day, the victim gave another account of the 

attack. 
While doing her laundry at about 7:45 a.m., she answered 

a knock on her door. She recognized the defendant, invited 

him inside, and offered him a cup of coffee. When she 

turned to make the coffee, the defendant grabbed her from 

behind and forced her at knifepoint into the bedroom. He 

cut away her clothes and twice forced her to perform oral 

sex, and cut her repeatedly with the knife. Her account 

also left the police with the impression that Maxwell had 

ejaculated, although she had not expressly stated this. 

Maxwell was arrested on the afternoon of November 24 

and charged with sexual intercourse without consent. When 

first questioned as to his whereabouts on November 13, 

Maxwell stated that he was either at home in Billings, or at 

work on the Crow Reservation. Maxwell gave permission to 

search his truck and a hunting knife was found. At trial, 

the victim stated that the knife was "similar" to the one 

used in the attack, but she was unable to positively identify 

it, because she had not seen the handle of the knife used in 

the attack, The defendant's knife was admitted at trial 

without objection. 

During the investigation, the police learned that 

Maxwell suffered from a condition known as "retrograde 

ejaculation" which prevented him from emitting any ejaculate. 

This caused Detective Ellis some concern because the victim's 

account had left him with the impression that the attacker 

had twice ejaculated on her face and hair. When questioned 

by Ellis, the victim explained her previous statement, 

saying that she was not aware of any ejaculate. She further 

explained that she actually meant to say that her attacker 

had rubbed his penis on her face and hair. Because her face 

had been cut, she felt "something sticky" on her face which 

may have been her own blood. She also stated that she had never 
previously had oral sex, and had never seen semen. 

The victim testified that the assault took place at 

approximately 7:45 a.m. The defendant relied on alibi and 

the victim's prior inconsistent statements to impeach her. 

Maxwell's girlfriend testified that he was still in bed 

in their apartment when she left for work at 6:30 a.m. 

Maxwell testified that he arose at about 7:00 or 7:30 a.m. 

and made coffee while reviewing a booklet from the Builder's 

Exchange. (He is a self-employed drywaller and frequently 

relies on the Builder's Exchange in finding jobs.) Defendant 

testified that at about 8:20 a.m., he talked on the telephone 

with his brother, Tom Branstatter, concerning a possible 

hunting trip. His brother confirmed the 8:20 a.m. telephone 

call. Defendant testified that he talked with his brother 

£cr approxinately 30 minutes, an4 after the call, he 

continued reviewing the Builder's Exchange booklet. 

Defendant testified that at about 9:00 a.m., he left 

his apartment and went to the Builder's Exchange to look at 

specific sets of plans on which he intended to bid. On his 

arrival he found that these plans were not available, and he 

then went to visit his other brother, Ted Maxwell. He 

arrived at Ted Maxwell's home between 10:OO and 10:30 a.m., 

and remained there until close to 3:00 p.m. Both Ted Maxwell 

and Ted's wife testified to the defendant's presence in 

their home from approximately 10:OO a.m. to 3:00 p.m. 

SUBSTANTIAL EVIDENCE 

Defendant's time, other than his own testimony, is 

unaccounted. for between 6:30 a.m. and 8:20 a.m. Nor, of 

course, could Tom Branstatter be sure that defendant called 
him from home at 8:20 a.m. Nonetheless, defendant argues 

the uncontradicted testimony of his family and girlfriend 

established an alibi. He further argues that the testimony 

of the victim, was so inherently incredible that, as a 

matter of law, it cannot support the verdict. 

The jury is the sole judge of the credibility of a 

witness. Batchoff v. Craney (1946), 119 Mont. 157, 172 P.2d 

308. Although this case is especially troubling because of 

the victim's prior inconsistent statements, these inconsistencies 

do not make her testimony inherently incredible. "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." 

State v. Gaimos (1916), 53 Mont. 118, 162 P. 596 at 599. A 

conviction of sexual intercourse without consent may be 

based entirely on the uncorroborated testimony of the victim. 

State v. Metcalf (1969), 153 Mont. 369, 457 P.2d 453. See 

also, State v. Bouldin (1969), 153 Mont. 276, 456 P.2d 830, 

in which this Court stated: 

". . . disputed questions of fact and the 

credibility of witnesses will not be considered 

on appeal but that determination of such matters 

is within the province of the jury. As long as 

there is substantial evidence to support the 

verdict it will not be disturbed on appeal (citing 

cases). Here, the testimony of the prosecutrix 

and the surrounding circumstances constituted substantial evidence to support the conviction." 456 

P. 2d at 834-835. 

It is undisputed that the victim had suffered a violent 

physical assault. She was treated for many superficial 

lacerations that, in a11 probability, were not self-inflicted. 

The question was whether the defendant had assaulted her and 

whether he had raped her. The victim's first account differed 

greatly from her later account of the attack. The defense 
attempted to impeach her testimony with her first account of 

the attack. She admitted making the first statement, but 

explained that she gave the initial false account because of 

her fear that the defendant would seek revenge if she 

identified the defendant as her assailant. She testified 

that the defendant threatened her if she went to the authorities. 

It was for the jury to determine whether, because of her 

conflicting statements, she was worthy of belief. The jury 

was obviously satisfied with her explanation of her first 

statement. Her conflicting statements do not justify this 

Court to declare that her testimony is, as, a matter of law, 

unworthy of belief. 

The defendant's alibi witnesses could not account for 

his presence at the time of the assault, approximately 7:40 

a.m. His girlfriend was with him until 6:30 a.m., and he 

arrived at his brother's home at about 10:30 a.m. In fact, 

the jury was aware that the distance between Billings, where 

the defendant resided, and the home of the victim, could be 

travelled in 30 to 35 minutes. It is possible, therefore, 

that the jury could have accepted the testimony of the alibi 

witnesses and still have concluded that the defendant committed 

the crime. The jury was not required to disbelieve the 

testimony of the alibi witnesses in order to find defendant 

guilty. 

ALLEGED JURY MISCONDUCT 

The defendant next alleges that the jury acted improperly 

in considering a fact not in evidence and in disregarding 

competent scientific evidence. In support of this contention, 

the defendant offers the affidavit of the jury foreperson. 

The defendant contends that while the jury was considering 

the validity of the defendant's alibi during deliberations, 
one of the jurors allegedly stated that the Builder's 

Exchange opened at 8:30 a.m. The defendant contends that 

because there was no evidence to this effect introduced at 

trial, it was reversible error for that jury to rely upon 

such a fact. 

Alleged jury misconduct must affect a material matter 

in dispute and must prejudice the complaining party. Nelson 

v. C & C Plywood Corp. (1970), 154 Mont. 414, 465 P.2d 314; 

Schmoyer v. Bourdeau (1966), 148 Mont. 340, 420 P.2d 316. 

Here, the defendant has not alleged, and the record clearly 

shows, that the time at which the Builder's Exchange opened 

was not a material fact in dispute, and a new trial is 

not warranted. 

The defendant next alleges that the jury acted improperly 

in ignoring the testimony of the defendant's physician, Dr. 

Vermillion, and in relying instead upon the unfounded opinions 

of some of the jurors. Dr. Vermillion testified that the 

defendant's medical condition (retrograde ejaculation) made 

him incapable of ejaculation. The foreperson's affidavit 

stated that some of the male jurors expressed an opinion 

during deliberations that a person with retrograde ejaculation 

would still be capable of emitting some fluid during ejaculation. 

Under Rule 606(b), Mont.R.Evid., jury discussions 

concerning the personal beliefs of the jurors are prohibited 

from disclosure. This rule prohibits a juror from testifying: 

". . . as to any matter or statement occurring 

during the course of the jury's deliberations 

or to the effect of anything upon his or any 

other jurors' mind or emotions as influencing 

him to assent or dissent from the verdict or 

indictment or concerning his mental processes in 

connection therewith." 
The jury's discussion of the effect of retrograde 

ejaculation, should not be considered as a ground for new 

trial. Rule 606(b), is designed to insure the right to have 

a jury deliberate - in camera, free from "frivolous and recurrent 

invasions of that privacy by disappointed litigants." 

Advisory Committee Note to Federal Rule 606(b). The exceptions 

stated in this rule are exclusive, and are narrowly construed. 

Charlie v. Foos (1972), 160 Mont. 403, 503 P.2d 538. They 

apply primarily to instances of "outside" or "extraneous" 

influence upon the jury. Defendant has raised nothing in 

the juror deliberations which fall within an exception to 

Rule 606 (b). 

Aside from the fact that the alleged juror misconduct 

does not fall within a rule which provides relief, the 

record provides no basis to determine whether the jury 

rejected the testimony of the expert. In fact, the jury 

could have accepted the testimony of the victim, who denied 

telling the police officer that the defendant had ejaculated 

on her face. If so, the testimony of the expert that defendant 

suffered from retrograde ejaculation, would not have been a 

factor in the jurys' decision. Furthermore, instruction no. 

3 (offered by the State and not objected to by the defendant) 

told the jury that it was not bound to accept the opinion of 

an expert witness as conclusive. If the jury did not accept 

the testimony of an expert witness, it was at liberty to do 

so under this instruction. 

The diabetic condition of the jury foreperson, does 

not, under these facts, invalidate the jury verdict. The 

exceptions to Rule 606(b) on juror deliberations, relate to 

extraneous prejudicial influences which find their way into 

the jury room. The courts agree that these exceptions must 

also be narrowly construed. 
The alleged effect of juror's diabetic condition was 

known only after the jury had returned with its guilty 

verdict. During preliminary examination of the jurors the 

jury foreperson did not indicate her diabetes might hinder 

her performance as a juror. When the jury returned with its 

verdict, the foreperson was asked whether it had reached a 

verdict. She replied "yes;" and the jury was then individually 

polled. She, as well as the other jurors, stated that the 

verdict was her verdict. Again, she gave no indication that 

her diabetic condition had compelled her to change her vote. 

It is also possible that her condition may not have 

been as critical as the defense claims. The bailiff at the 

trial testified at defendant's motion for a new trial, and 

she testified as to her observations of the jury foreperson. 

The bailiff accompanied the foreperson and other jurors to 

dinner before the jury had reached a verdict. The foreperson 

sat next to her at dinner, and talked to other jurors while 

eating. She had received her insulin and gave the bailiff 

no indication that she was in distress or incapable of 

continuing deliberations after dinner. 

The great weight of case law and commentaries on this 

issue, indicates that a juror's physical, mental, and 

emotional condition is inherent in the verdict. The effect 

that such condition may have on an individual juror's vote 

is within the prohibition of Rule 606(b). In Mueller, 

Jurors Impeachment - of Verdicts and Indictments - in Federal 

Court Under Rule 606 (h) , 57 Neb.L.Rev. 920 (1975) , the 

author's survey of the law concludes that juror statements 

that they compromised their honest convictions due to "personal 

matters" in order to end deliberations, falls squarely 

within the prohibition of Rule 606(b). 
Courts have held that the mental and emotional processes 

of the jurors cannot be considered as a basis for retrial, 

even if such mental processes are the result of a physical 

illness. Rather, it is the juror's duty to bring his or her 

condition to the attention of the court before a verdict is 

reached. 

For example, in State v. Forsyth (Wash. 1975), 533 

P.2d 847, the criminal defendant moved for retrial due to 

the alleged misconduct of a juror in remaining on the jury 

when her illness rendered her incapable of continuing. The 

juror's affidavit stated that she was uncomfortable and 

distracted throughout the trial and deliberations. She 

further stated that, were it not for her illness and pressure 

from other jurors, she would not have voted for conviction. 

The Washington Court stated flatly that ". . . the effect of 

the jurors illness and the claimed pressure by other jurors 

may not be used to impeach that verdict." 533 P.2d at 851. 

The court reasoned that the effect of illness on a juror's 

vote inheres in the verdict, and is not subject to impeachment. Other state courts have adhered to this view, stating 

that the effect of fatigue, illness, or exhaustion on the 

jury deliberations cannot be used to impeach the verdict. 

Jones v. State (Okla. 1976), 554 P.2d 62; Gafford v. State 

(Alaska 1968), 440 P.2d 405; West v. State (Alaska 19661, 

409 P.2d 847. 

We therefore hold that the effect of the foreperson's 

diabetes upon her mental processes during deliberation falls 

within the prohibition of Rule 606(b). 

The judgment of the District Court is affirmed. 
We Concur: 

344,&kd lAAQ4p Chief Justlce 

Mr. Justice John C. Sheehy will file his written dissent 

at a later time.