NO. 90-343 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vsLEON LLOYD WHITCHER, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable Russell K. Fillner,Judge presiding.

COUNSEL OF RECORD: For Appellant: Arthur J. Thompson, Thompson & Sessions,Billings, Montana For Respondent: Hon. Marc Racicot,Attorney General; Joseph E. Thaggard, ~ssistant Attorney General, Helena, Montana DennisPaxinos,Yellowstone CountyAttorney;Charles Bradley, Deputy County Attorney, Billings, Montana

Filed: Submitted on Briefs: PIarch 28, 1991 Decided: April 29, 1991

Clerk* Justice Karla 

### M. Gray delivered the Opinion of the Court.

The defendant, Leon Lloyd Whitcher, was convicted of sexual intercourse without consentby jury trial in theDistrict Court of theThirteenthJudicial District, Yellowstone County. He appeals. We affirm. The sole issue on appeal iswhether theevidence is sufficient to support the jury's verdict of guilty. On Friday,April 14, 1989, fourteen-year-oldN.H. agreed with a friend, Angie, age thirteen, to go to a party that night which had been primarily arranged between Angie and Adam, age seventeen. At approximately 11:50 p.m., N.H. and Angie met with four male individuals at the Huntley Bridge near Shepherd,Montana. These individuals wereAdam,Shannon (age fifteen),Wes Plum (agetwentytwo) and the defendant (age thirty)

# . N.H. did not know the defendant, although she recognized him as the owner of the local video store. Thegroup entered thedefendant'scarandwent toa nearbybar to purchase some liquor. Thedefendant then drove the group to an abandoned house whichhe owned outsideShepherd. Thegroup arrived at the house around midnight. A pentagram, a satanic symbol in the form of a five-sided star inside of a circle with an eye in the center of the star, was painted on the floor of a large room in the house. Adjacent to this room, and connected by a doorway, was a smaller room. A closetwas locatedbetween the two rooms. Upon enteringthe closet from the room containing the pentagram, one could look into the# r smaller room through a large hole in the common wall between the closet and the smaller room. After enteringthehouse,everyone satdown in the largerroom and began drinking. At some point, Adam produced two books concerning witchcraft and began talking about satanism. Approximately ten minutes later, the defendant instructed Angie to accompanyhim into the small room. Thedefendant left the door to the room open and Angie sat on a large pillow coveredwith

a blanket. Angie remained in the room for approximately fifteen minutes, during which time the defendant asked her questions one would ask a person seeking initiation into a satanic cult. He asked her if shehad everbelonged to a cult, if shewas a virgin, if she was ashamed of her body, if she wanted power, and if she would obey a "high priest." Additionally, the defendant asked Angie if N.H. was a !!shy or decent girl,11 if N.H. was "the same"

as Angie, and if N.H. would I1openup to him. Thedefendant then instructedAngie todon ablack robe,which sheput on overher clothes. Shortly thereafter,Angie removed the robeand returned with thedefendantto the other room. Angie then told N.H. to go into the small room with the defendant. The defendant told N.H. that he wanted to ask her some I1routine questions. At trial, the principal witnesses offered varying and sometimes conflicting accounts of the events which followed N.H1s entry into the small room. N.H. testified that when she entered the room she had consumed only one drink of peach schnapps. Shefurther testified she drank another three swallows of the liquor during the one and one-half hours which she estimated she spent in the room with thedefendant, but that shedid not get drunk during that time. N.H. claimed that when they entered the room, the defendant closed the door and told her to sit on thepillow. With only a candle lighting the room,thedefendant asked her questions similar to those he asked of ~ngie. The defendant then directed N.H. to don a black robe and turn herself in a movement which he said constituted the sign of a star. While she did so, the defendant told N.H. about a creature with a cat head and a human body which would act as her protector. When N.H. completed this movement, the defendant told her to remove all her clothing from beneath the robe. N.H. testified that she did as instructed because she was frightened. The defendant then instructed N.H. to lie on her back, pull her legs up to her chest, and stare at a pentagram painted on the ceiling. He then engaged in sexual intercourse with her without removing his clothes. According to N.H., Adam knocked on the closetwall twiceduring the incident and asked what was taking so long. The defendant stopped when Adam knocked on the wall the second time. At that point, the defendant told Adam that he was 'lalmost donewith the

### question^.^^ N.H. then started screaming for Angie. Before Angie reached the room,the defendant told N.H. to sit up and quickly zippedhispants. Thedefendant toldAngie uponher arrival that N.H. had consumed the entire bottle of schnapps andwas drunk. He then left the'room. N.H. testified that she told Angie that Ithehurt me1'and that "Matt1'had raped her. N.H. testified that she could not remember the defendant'sname at that time and mistakenly referred to him as "Matt.I1 After she dressed and regainedher composure,N.H. returned to the larger roomwhere, in anger, she proceeded to get drunk. The defendant offered a different account of the events of that night. He testified that he merely wished to chaperon Adam and Angie on their first date. Thedefendantdid admit thathehad previously practiced satanism,but denied that he intended for the party to assume a satanicnature. Although he admitted taking the two girls into the room and asking them questions related to initiation into satanic cults, the defendant claimed he did so to dispel their interest in the occult by scaring them. He denied that he told N.H. to don the robe or remove her clothes. He claimed that he left the room to use the bathroom; when he returned, N.H. had put on the robe. The defendant claimed N.H. then began screaming that "Matt1' had hurt her. He denied that he ever engaged in sexual intercoursewith N.H. The other witnesses were not actually present in the small

room during the incidentbut did offer testimony. Angie testified that N.H. was llbuzzedll but not drunk when she entered the small

room. She testified thatN.H. and thedefendantwere in the small

room forapproximately thirtyminutes, but lateradmitted she told a detective investigating the case that they were in the room perhaps an hour and fifteenminutes. She also testified that shecould hear voices from the 'small room and there was never any silence. Angie testified that,afterAdam knocked on thewall the second time, the defendant told her to come into the room because N.H. was hallucinating. When she entered the room,N.H. was naked except for the robe, was crying and was llmassively drunk." Angie testifiedN.H. did nottellher thedefendantrapedher,but rather that someone named Matt and also her fatherhad hurt her. Wes Plum testified that N.H. and the defendant were in the small room for about fifteen or twenty minutes and that when N.H. went into the room she was Itinbetween" intoxicationand sobriety. According to Plum,N.H. "started freaking outl1while still in the small room. He further admitted that he llprobablyll told a detective that shortly before she came out of the small room,N.H. had screamed that the defendanthad raped her. Adam testified that while N.H. and the defendant were in the small room, he went to the door of the room once and into the closet once and on one of these occasions he spoke with the defendant. Adam testified that he observed thedefendant leave the small room and, on his return,he heard the defendant state that N.H. had removedher clothing and put on a black robe while he was out of the room. The defendant then told Angie to come into the small room and haveN.H. put her clothesback on. Adam denied that he and the othermales at theparty belonged to a satanic coven or that defendant served as the high priest of that coven. When the prosecution presented a transcribed statementAdam had previously given to a detective in which he admitted the existence of such a

### coven and the defendant's roie in that coven, Adam denied making such statements to the detective. Adam did admit that the questions the defendant asked the two girls pertained to a "white

[satanic]mass,"which he described as an orgy. On Monday, April 17, 1989, N.H. 

### reported to one of her teachers at school that the defendant had raped her on the preceding Friday night. The defendant was subsequently arrested and charged by information with one count of sexual intercourse without consent and two counts of unlawful transactions with minors. The information was later amended to add an unrelated charge of sexual intercourse without consent. A jury heard the trial in this matter September 5 

### through September 8, 1989. The jury found the defendant guilty of the original three charges and not guilty of the unrelated charge of sexual intercourse without consent. The District Court sentenced the defendant to thirty years imprisonment, with ten years suspended. The defendant appeals only from his conviction of the offense of sexual intercourse without consent. Is the evidence sufficient to support the jury'sverdict of guilty? The standard of review of the sufficiency of the evidence for

a criminal conviction is whether, after reviewing the evidence in

a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt. Jacksonv. Virginia (1979)

## , 443U.

### S. 307,319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; Statev. Brown (1989),w r 

### 239 Mont. 453, 456, 781 P.2d '281,284. A person commits the offense of sexual intercourse without consent if that person (1)

### knowingly, (2)has sexual intercourse, (3) without consent, (4) with a person of the opposite sex. Section 45-5-503,MCA. Under § 

### 45-5-501(2)(c)

### ,MCA, thevictim is incapableof consenting to sexual intercourse if he or she is less than sixteenyears old. The defendant asserts that his conviction is based upon the testimony of the victim, N.H., whose testimony is wholly unsupported by the testimony of any other witness or by physical evidence. He argues that the victim's testimony is so inherently incredible that no rational trier of fact could find guilt beyond a reasonable doubt. We disagree. The defendant, the victim, and several other witnesses testified to the events which occurred during the night of April 14-15, 1989. Portions of the witnesses1testimony supported the victim's testimony; other parts contradicted it and supported the defendant's testimony. Only the defendant and the victim were present in the small room during the time at issue. Theweight of the evidence and the credibility of the witnesses is exclusively within the province of the trier of fact. When the evidence conflicts, the trier of fact determines which evidence shall prevail. State v. Lamping (1988), 231 Mont. 288, 

### 293, 752 P.2d 742, 746;Brown, 239 Mont. at 457, 781 P.2d at 284. The issue of sufficiency of the evidence in this case essentially boils down to the credibility of the evidence7 establishing the sexual intercourse element of the offense. Contrary to the defendant's assertion, the victim's testimony concerning this element is not uncorroborated. At least two witnesses admitted to hearing the victim scream that she had been raped and believed she was talking about the defendant. Furthermore, even if we characterized the victim's testimony as uncorroborated,this Courthas consistently held that a conviction of sexual intercourse without consent is sustainablebased entirely on theuncorroborated testimony of thevictim. Lamping, 231 Mont. at 293, 752 P.2d at 746; State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458. Here the jury weighed the credibility of the conflicting testimony and chose to believe the victim's version of the incident. We hold that,based on the evidence presented at trial,

a rational trier of fact could have found the defendant guilty of the offense of sexual intercourse without consent beyond a reasonable doubt. Affirmed.

, We concur: