STATE v KESTNER

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No. 85-184 I N THE SUPREFE COURT O THE STATE O MONTANA F F 1986 STATE O MONTANA, F P l a i n t i f f and Respondent, -VS- F A K GEORGE KESTNER, J R . , R N D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f F l a t h e a d , The H o n o r a b l e M i c h a e l Keedy, Judge p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Sherlock & Nardi; P a t r i c k D. K a l i s p e l l , Montana. Sherlock argued, For Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , Helena., Montana P a t r i c i a S c h a e f f e r a r g u e d , A s s t . A t t y . G e n e r a l , Helena Ted 0 . Lympus, County A . t t o r n e y , K a l i s p e l l , Montana Submitted: Decided: December 4 , 1 9 8 5 January 27, Filed: C Clerk 1986 Morrison, Defendant Frank Jr. d e l i v e r e d t h e Opinion of Kestner, M r . J u s t i c e Frank B. t h e Court. Jr. appeals his November 1, 1984, j u r y c o n v i c t i o n i n t h e D i s t r i c t C o u r t o f t h e E l e v e n t h Judicial District on two counts of sexual assault. We r e v e r s e and remand f o r a new t r i a l . O J a n u a r y 1 4 , 1984, d e f e n d a n t e x e r c i s e d a t Second Wind n Rec Center About 7:00 K a - l i s p e l l , Montana, in and soak i n t h e h o t t u b . and M. N. h e was a member. d e f e n d a n t went t o t h e p o o l a r e a t o s w i m l a p s p.m., a.rea w e r e S . M. where Among numerous o t h e r s i n t h e p o o l (Count I ) and C . (Count 111) and R . (Count 11) , b o t h a g e 1 2 , B. (Count IV) , b o t h a g e L. A f t e r swimming f o r a w h i l e , S . M. i n t h e hot tub. 15. and C . B. went t o soak Defendant and s e v e r a l o t h e r s were a l r e a d y i n t h e t u b , which was 6 ' 4 " i n d i a m e t e r and c o u l d h o l d up t o 1 2 people. S . M. s a t n e x t t o d e f e n d a n t , w i t h C . B. Both S. M. and C . them w i t h B. "weird" next t o her. t e s t i f i e d t h a t d e f e n d a n t was s t a r i n g a t eyes. S. felt M. a hand on h e r inner which s h e b e l i e v e d t o be d e f e n d . a . n t l s , s o s h e jumped thigh, out of t h e hot tub. M. S. having l e f t , d e f e n d a n t and C. w e r e now s e a t e d n e x t t o e a c h o t h e r . C. B. B. t e s t i f i e d she then f e l t something r u b b i n g h e r i n n e r t h i g h n e a r t h e e l a s t i c o f her swim s u i t . water j e t s , A t f i r s t s h e t h o u g h t it was b u b b l e s from t h e b u t t h e n r e a l i z e d it was t h e hand o f d e f e n d a n t , and t h e y b o t h jumped i n s o s h e jumped o u t , r a n o v e r t o S. M. t h e swimming p o o l . S. M. and C . B. t e s t i f i e d t h a t defendant was t h e o n l y one c l o s e enough t o have touched them i n such a manner. Defendant t e s t i f i e d t h e o n l y t o u c h i n g o f e i t h e r o f t h e s e g i r l s t h a t he r e c a l l s was p u t t i n g h i s hand momentarily on C . B.'s back to conversation. get her attention She t h e n junped in order from t h e t u b . to strike up a Defendant g o t out of t h e h o t t u b s h o r t l y t h e r e a f t e r a.nd went o v e r by t h e s h a l l o w end o f t h e p o o l . jumped was H e saw C . B. and S . M. i n t h e pool, i n and from a d i s t a n c e o f a few f e e t t o l d C. e x c e p t i o n a l l y beau.tifu1. doing sketches interested and i n C. Defendant drawings, beauty B.'s A l i t t l e while later, and had recently testified from a n that artistic she B. been he was stand.point. a s d e f e n d a n t was f l o a t i n g i n t h e h o t t u b w i t h h i s l e g s o u t s t r e t c h e d , M. entered the tub, and n o t seeing defendant's him. N. t e s t i f i e d t h a t i n t h e p r o c e s s o f h e l p i n g h e r u p , M. defendant touched her legs, N. s h e t r i p p e d and f e l l o n t o buttocks and breasts. Defendant t e s t i f i e d t h a t he was n o t aware h e had t o u c h e d h e r i n t h o s e a r e a s , b u t i f h e had it was c e r t a i n l y u n i n t e n t i o n a l . sat next t o defendant and felt a hand f i n g e r s rubbing h e r i n t h e vaginal a r e a . defendant, over and then defendant's touched her on with g r a b b e d M. his L. legs. the s i t t i n g n e x t t o him, thigh R. breast on h e r t h i g h , L. as testified she got with up, also tripping that defendant and that upon s h e f e l t d e f e n d a n t ' s hand on h e r i n n e r fingers rubbing her vaginal area. and t h e y jumped o u t o f t h e h o t t u b . N. N. She moved away from entered t h e pool, R. M. denied having any c o n t a c t w i t h R. L., R. L. Defendant e x c e p t t o h e l p h e r up when s h e f e l l . M. N. and R. L. jumped i n t o t h e p o o l , where a s h o r t t i m e later they saw defendant swimming towards them, jumped o u t q u i c k l y a n d went back t o t h e h o t t u b . t u b , M. N. and R . L. o v e r h e a r d S . M. and C. B. so they In the hot discussing a s i m i l a r i n c i d e n t , s o t h e y a l l went i n t o t h e d r e s s i n g room f o r further discussion. The g i r l s d e c i d e d t o t e l l t h e c l e r k a t t h e f r o n t desk about t h e i n c i d e n t s . A s they w e r e attempting t o d o t h i s , d e f e n d a n t came t o t h e d e s k t o c h e c k o u t . A t the same t i m e , one o f t h e g i r l s ' m o t h e r came i n , a n d upon f i n d i n g out what had happened, threatened thereupon l e f t t h e r e c c e n t e r . defendant. Defendant, The d e s k c l e r k informed t h e g i r l s t h a t d e f e n d a n t had been a r e g u l a r f o r some t i m e , and that the their accusations e n s u i n g week, were false. Sometime during B. ' s mother phoned t h e p o l i c e and r e p o r t e d C. what had a l l e g e d l y happened t h a t n i g h t . O n January 26, 1984, Officer Don Hossack K a l i s p e l l P o l i c e Department o b t a i n e d s t a t e m e n t s and C . about t h e a l l e g e d i n c i d e n t s . B. a l l e g i n g two c o u n t s o f 1984. of the from S. M. A formal complaint s e x u a l a s s a u l t was f i l e d F e b r u a r y 3 , The l a s t names o f M. N. and R. L. w e r e n o t o b t a i n e d u n t i l l a t e r and t h e i r s t a t e m e n t s were t a k e n F e b r u a r y 3 , 1984; two a d d i t i o n a l c o u n t s o f s e x u a l a s s a u l t were f i l e d a g a i n s t d e f e n d a n t on F e b r u a r y 1 5 , 1984. The trial was held October witnesses t e s t i f i e d a t t r i a l : O f f i c e r Hossack, defendant, 30 and 31, 1984. t h e v i c t i m s , M.N. ' s m o t h e r , and d e f e n d a n t ' s w i f e . The j u r y r e t u r n e d a v e r d i c t o f g u i l t y on c o u n t s II and I V R. I,.), Eight and n o t g u i l t y on c o u n t s I and I11 (S. M. (C. B. and and M. N.). Defendant was s e n t e n c e d t o t h r e e y e a r s on c o u n t 11, and f i v e y e a r s on c o u n t I V , w i t h f o u r y e a r s o f t h e f i v e y e a r s e n t e n c e suspended. O appeal, n defendant raises five issues; we find the i s s u e s can be c o n s o l i d a t e d a s f o l l o w s : (1) Whether t h e D i s t r i c t C o u r t e r r e d i n n o t g r a n t i n g t h e d e f e n d a n t s e p a r a t e t r i a l s on e a c h o f t h e c o u n t s , o r i n t h e a l t e r n a t i v e , c o n s o l i d a t i n g a l l o f t h e c o u n t s i n t o one c h a r g e . (2) case Whether t h e r e was to the jury and s u f f i c i e n t e v i d e n c e t o send t h e support a verdict of g u i l t y on two counts. ( 3 ) Whether t h e D i s t r i c t C o u r t e r r e d i n i n s t r u c t i n g t h e jury concerning t h e d e f i n i t i o n of sexual a s s a u l t . Defense counsel filed a motion to consolidate all four counts into one count, or in the alternative to allow separate trials on each count. Section 46-11-404(2), MCA, provides: (2) The court in which the case is triable, in the interests of justice and for good cause shown, may in its discretion, order that the different offenses or counts set forth in the indictment, information, or complaint be tried separately or divided into two or more groups and each of the groups tried separately. An acquittal of one or more counts shall not be considered an acquittal of any other count. Section 46-11-404(4), MCA provides: (4) If it appears that a defendant or the state is prejudiced by enjoinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require. The district judge denied the motion to grant separate trials for each count, finding that judicial economy favored a single trial and that defendant had made no showing of prejudice by the joinder of all counts for trial. of the record supports the district judge's reveals no showing of prejudice by defendant. A rea-ding ruling and In State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 305, this Court upheld the district court's ruling that two separate charges of deviate sexual conduct should be tried in one trial: ... We find no prejudice to defendant that outweighs considerations of judicial economy. Additionally, the State argues persuasively that the effect of two separate trials on the young victims of these crimes should be considered. Each would potentially be a witness in both trials and be compelled to appear and testify twice. We find the Phelps rationale to be especially persuasive in the present case where there were four young victims. The district judge also denied defendant's motion to consolidate the four counts into one count, and stated that "would be tantamount to the outright dismissal of three (3) such counts." A reading of S $ 46-11-404 (2) and (4), MCA, shows the trial judge is granted discretion in whether to consolidate counts or order separate trials. There has been no showing the trial judge abused his discretion, nor that defendant suffered prejudice. Had the counts been separately tried defendant would have risked introduction of the other charges as similar acts or similar crimes evidence. Defendant asserts there was insufficient evidence to send the case to the jury and to support a guilty verdict on two of the counts. We disagree. At the close of the State's case, defense counsel moved that the charges be dismissed for the following reasons: (1) there were others i n the hot tub . who could have touched the girls; (2) the girls did not see defendant's hand on their thighs or vaginal areas; and (3) the State did not show defendant knowingly assaulted these girls to satisfy his sexual desires. judge denied the motion. The district We find substantial evidence in the record to uphold the district judge's decision to send the case to the jury. C. B. and R. L. testified that only defendant was near enough to touch them while in the hot tub, and although they couldn't see defendant's hands, they knew it was his hand touching them in the water. Defendant admitted that M. N. and R. L. tripped and fell onto him, and that he patted C. B. on the back beautiful. and later told her she was exceptionally C. B. and R. L. both testified defendant rubbed them on or near the vaginal area. The testimony of creating a jury issue. the girls is substantial evidence Credibility of defendant and the girls was for the jury to decide. A directed verdict or motion to dismiss should only be granted where there is no substantial evidence on which a jury could base a conviction. State v. Doney (Mont. 1981), 636 P.2d 1377, 1381, 38 St.Rep. 1707, 1711. Defendant also argues the State presented no evidence that he knowingly assaulte6 the girls to satisfy his sexual We agree with the State that the girls' testimony desires. is substa.ntia1 evidence intent. from which to infer defendant's Intent is a fact question for the jury, and it is well-settled that the jury may infer intent from defendant's State v. Jackson (1979), 180 Mont. 195, 205, 589 P.2d acts. 1009, 1015. Finally, defendant asserts the District Court erred in instructing the assault. jury concerning the definition of sexual Specifically, defendant argues jury instruction no. 11, taken from State v. Weese (Mont. 19801, 616 P.2d 371, 37 St.Rep. 1620, gives an overly broad meaning to the sexua.1 assault statute, S 45-5-502, MCA. Instruction no. 11 given to the jury reads as follows: The term "sexual or other intimate parts of another" is intended to be given broad application and is not intended to restrict the crime to a touching of the genitalia or female breast and includes intimate impositions upon the victim. [Instruction No. 11; State v. Weese.] The trial transcript shows that defense counsel objected to this instruction, and argued that the Weese instruction did not apply to the facts of this case. In Weese, the defendant rubbed the chest and belly of a 9 year old girl, and offered her money so that he could continue. The district judge found no evidence of sexual contact and dismissed the sexual assault charge. reversed the dismissal and This Court found the defendant ' s conduct amounted to prohibited sexual contact. In discussing S 45-5-502 (I), MCA, we said: It appears to us that the policy behind our sexual assault statute is to criminalize and punish sexual or intimate inv01~7e impositions that do not penetration /cf. section 45-5-503 (sexual intercourse without consent) and 45-5-505 (deviate sexual conduct)/ ; but which express a societal concern for such impositions because they provoke outrage, disgust or shame in the victim. The enhanced punishment for this offense when committed on a victim less than 16 years old by an offender 3 or more years older indicates an increased legislative concern for child victims. The Commission Comment to the sexual this assault statute bears out legislative purpose. To like effect, see Model Penal Code, section 207.6, Comments. Use of the terms "sexual or other intimate parts" indicates that the legislature did not intend or restrict the crime to touching of the genitalia of either sex or a touching of a female's breast, but instead intended to give the terms a broader application. In keeping with the focus of sexual assault statutes on the outrage, disgust or shame engendered in the victim, other courts have held that the term "intimate parts" in such statutes include the buttocks (In the Matter of David M. (1978), 93 Misc.2d 545, 403 NYS2d 178) , the hips (Matter of Welfare of Adams (1979), 24 Wash.App. 517, 601 P.2d 995), and the prepubsecent chest of a 7-year old girl (State v. Turner (1978), 33 0r.App. 157, 575 P.2d 1007). In view of the purpose of the statute and interpretations by other courts of the term "sexual or other intimate parts" in similar statutes, we construe the rubbing of the belly and chest of a 9-year old girl by an adult male for the purpose of gratifying his sexual desires as prohibited sexual contact within the meaning of the statute. Here the fact that defendant lifted the girl's shirt to make the contact and offered her money to be allowed. to continue is evidence that his purpose was gratification of his sexual desires. 616 P.2d at 373, 374, 3 7 St.Rep. at 1622, 1623. The holding of Weese is that touching is not limited to "sexual parts" and under the facts of the case a jury issue was created under the statute. The court's language utilizing the phrase intimate imposition is far too broad for "Intimate impositionr' can be construed a jury instruction. to encompass staring, or the touching of another's knee or shoulder; the term shifts the focus from the defendant's conduct to the sensitivity of the victim. Accordingly, if it is unclear what type of contact constitutes sexual assault, it becomes exceedingly difficult to determine whether a defendant had any sexual intent underlying the contact. Instruction no. 10 gave the definition of sexual contact under S 45-2-101 (60), MCA: Sexual contact means any touching of the sexual or other intimate parts of the person of another, for the purpose of arousing or gratifying the sexual desire of either party. We find this statutory statement of what constitutes sexual contact to be adequate without embellishment. Under the facts of this ca-se, including testimony that defendant had touched the breasts, buttocks, and vaginal areas of the victims, there was a jury issue under the sta.tute. However understandable the District Court's action in borrowing from the Weese opinion, we cannot allow the conviction to stand under an instruction that could punish innocent conduct. Here the jury could have found an "intimate imposition" for sexual arousal if they believed only the acts described by the defendant took place. The instruction is overbroad and requires a new tria.1. We do not overrule Weese. the facts of this case a Under the facts of Weese and jury issue was created under , S 45-2-101 ( 6 0 ) MCA. However, nothing broader than the s t a t u t e i t s e l f should be given a s an i n s t r u c t i o n . W e r e v e r s e t h e judgment o f t h e D i s t r i c t C o u r t a n d remand f o r a new t r i a l . 2r)i W e concur: / /qc/uhA,-7y,,~ Justice - ief Justices C. .

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