State v. Whitcher

• Decision Date: 29 April 1991
• Docket Number: No. 90-343,90-343
• Citation: 810 P.2d 751,248 Mont. 183
• Parties: STATE of Montana, Plaintiff and Respondent, v. Leon Lloyd WHITCHER, Defendant and Appellant.
• Court: Montana Supreme Court

Page 751

810 P.2d 751

248 Mont. 183

STATE of Montana, Plaintiff and Respondent, v. Leon Lloyd WHITCHER, Defendant and Appellant.

No. 90-343.

Supreme Court of Montana.

Submitted on Briefs March 28, 1991.

Decided April 29, 1991.

Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.

Marc Racicot, Atty. Gen., Joseph E. Thaggard, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty., Charles Bradley, Deputy County Atty., Billings, for plaintiff and respondent.

GRAY, Justice.

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 twenty-two) 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 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," if N.H. was "the same" as Angie, and if N.H. would "open 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 "routine questions."

At trial, the principal witnesses offered varying and sometimes conflicting accounts of the events which followed N.H's 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 Angie. 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 "almost done with the questions." 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 "he hurt me" and that "Matt" 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." 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 "Matt" 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 "buzzed" 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 "massively 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....