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: District Court of the Thirteenth Judicial 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 

Dennis Paxinos, Yellowstone County Attorney; 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 consent by jury trial in the District Court of 

the Thirteenth Judicial District, Yellowstone County. He appeals. 

We affirm. 

The sole issue on appeal is whether the evidence is sufficient 

to support the jury's verdict of guilty. 

On Friday, April 14, 1989, fourteen-year-old N.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 were Adam, Shannon (age fifteen), Wes Plum (age twentytwo) and the defendant (age thirty) . N. H. did not know the 

defendant, although she recognized him as the owner of the local 

video store. 

The group entered the defendant's car and went to a nearby bar 

to purchase some liquor. The defendant then drove the group to an 

abandoned house which he owned outside Shepherd. The group 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 

closet was located between the two rooms. Upon entering the closet 

from the room containing the pentagram, one could look into the 
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smaller room through a large hole in the common wall between the 

closet and the smaller room. 

After entering the house, everyone sat down in the larger room 

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 accompany him into the small room. The defendant left the 

door to the room open and Angie sat on a large pillow covered with 

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 she had ever belonged to a cult, if she was 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 I1open up to him. 

The defendant then instructed Angie to don a black robe, which 

she put on over her clothes. Shortly thereafter, Angie removed the 

robe and returned with the defendant to 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. She 
further 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 the defendant, but that she did 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 the pillow. With 

only a candle lighting the room, the defendant 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 

closet wall twice during 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 done with the question^.^^ N.H. then started screaming for 

Angie. 

Before Angie reached the room, the defendant told N.H. to sit 

up and quickly zipped his pants. The defendant told Angie upon her 

arrival that N.H. had consumed the entire bottle of schnapps and 
was drunk. He then left the'room. N.H. testified that she told 

Angie that Ithe hurt me1' and that "Matt1' had raped her. N.H. 

testified that she could not remember the defendant's name at that 

time and mistakenly referred to him as "Matt.I1 After she dressed 

and regained her composure, N. H. returned to the larger room where, 

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. The defendant did admit that he had 

previously practiced satanism, but denied that he intended for the 

party to assume a satanic nature. 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 intercourse with N.H. 

The other witnesses were not actually present in the small 

room during the incident but did offer testimony. Angie testified 

that N.H. was llbuzzedll but not drunk when she entered the small 

room. She testified that N.H. and the defendant were in the small 

room for approximately thirty minutes, but later admitted she told 

a detective investigating the case that they were in the room 

perhaps an hour and fifteen minutes. She also testified that she 
could hear voices from the 'small room and there was never any 

silence. Angie testified that, after Adam knocked on the wall 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 

testified N.H. did not tell her the defendant raped her, but rather 

that someone named Matt and also her father had 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 Itin between" intoxication and sobriety. 

According to Plum, N.H. "started freaking outl1 while 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 defendant had 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 the defendant leave the 

small room and, on his return, he heard the defendant state that 

N.H. had removed her 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 have N.H. put her clothes back on. Adam denied that 

he and the other males at the party belonged to a satanic coven or 

that defendant served as the high priest of that coven. When the 

prosecution presented a transcribed statement Adam 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's verdict 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 reasonable doubt. Jackson v. Virginia (1979) , 443 U. S. 307, 319, 

99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. 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, the victim is 

incapable of consenting to sexual intercourse if he or she is less 

than sixteen years 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 witnesses1 testimony 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. The weight 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 evidence 
7 

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 Court has consistently held that a conviction 

of sexual intercourse without consent is sustainable based entirely 

on the uncorroborated testimony of the victim. 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: