State v. Gilpin, No. 87-432

Docket NºNo. 87-432
Citation45 St.Rep. 863, 756 P.2d 445, 232 Mont. 56
Case DateJune 13, 1988
CourtUnited States State Supreme Court of Montana

Page 445

756 P.2d 445
232 Mont. 56
STATE of Montana, Plaintiff and Respondent,
Joel GILPIN, Defendant and Appellant.
No. 87-432.
Supreme Court of Montana.
Submitted on Briefs March 11, 1988.
Decided May 11, 1988.
Rehearing Denied June 13, 1988.

Page 446

[232 Mont. 58] Stephen C. Moses, Moses Law Firm, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Patricia J. Schaeffer, Asst. Atty. Gen. Harold F. Hanser, County Attorney, Billings, Donna Heffington, Deputy County Atty., for plaintiff and respondent.

WEBER, Justice.

This matter is on appeal from the District Court of the Thirteenth Judicial District, Yellowstone County, wherein a jury found Joel Gilpin guilty of two counts of sexual assault. We affirm.

Mr. Gilpin presents eight issues for review:

1. Did the District Court commit reversible error by denying defendant's motion for mistrial when the prosecution referred to certain statistics during voir dire?

2. Did the court err by admitting evidence of other crimes, wrongs, or acts?

3. Did the court err by denying defendant's motion to compel psychiatric examination of the victims?

4. Did the court err by denying defendant's motion to dismiss on grounds that the State failed to establish the element of "sexual contact"?

5. Did the court err by refusing three of defendant's offered instructions?

6. Was the evidence sufficient to convict the defendant?

7. Did the court err by admitting, at the sentencing hearing, evidence of other acts?

8. Did the court err by sentencing defendant to two consecutive terms?

In the early evening hours of October 31, 1986, Halloween night, the defendant Joel Gilpin and a friend were at the home of a female co-worker. She had to work until later that evening so Mr. Gilpin and the other man were helping her three children get ready for Halloween trick-or-treating.

The woman's 11 year old daughter testified that she and Mr. Gilpin were sitting on the downstairs couch and that no one else was in the room with them. She then testified as follows:

Q. And what happened first?

A. Well I was leaning over to get something, I think it was a blanket and then I felt his hand like on my back butt.

Q. On your back butt, where would that be.

[232 Mont. 59] A. My cheek.

A. Okay. And what was his hand doing?

A. Oh, was kind of like rubbing.

Q. What happened next?

A. Well then I sat back down and his hand was still there, he was like squeezing.

Q. Was his hand on the side of your butt then when you sat back down?

A. No, I was sitting on his hand like.

Q. So his hand was underneath your butt?

A. Yes.

Q. And what was he doing with his hand?

A. He was like squeezing.

Q. Squeezing what?

A. My butt.

Q. How did that make you feel?

A. It felt weird.

Q. What did you do?

Page 447

A. Well I couldn't really do anything because then he picked me up and put me on his lap.

Q. And when he put you on his lap, what did he do?

A. Well he had one hand on my butt and then one hand between my legs.

Q. Where between your legs, ...?

A. On my inner thigh.

Q. How far up or down on your inner thigh?

A. Well about five inches away from my vagina.

Q. Okay. What was he doing with his hand when he had his hand on your inner thigh?

A. He was rubbing and then he kind of like moved up.

Q. Toward your vagina?

A. Yeah.

Q. How did you feel about that?

A. It felt weird.

Q. What did you do, ...?

A. I got up and I went upstairs because someone called me or else the doorbell rang.

* * *

Q. When you were upstairs will you tell the jury what happened.

A. Well I was, I went and I just shut the door 'cause they were trick or treating and I don't know if anybody else was upstairs and [232 Mont. 60] then Joel came up from behind me and he like started at my waist and started coming up towards my breasts and he was saying stuff like he hardly ever gets to see me, and things.

* * *

Q. All right. And you said he was moving his hands up?

A. Uh huh.

Q. How far up did he move them?

A. Right under my breasts.

Q. What did you do?

A. Well I stepped on his toe and I left.

Q. Did you make any effort to push his hands down?

A. Yeah, I did, then he kept moving back up.

Q. And that's when you stepped on his toe?

A. Yes.

Q. And did you do it purposely or was it an accident?

A. Purposely.

Q. And why did you step on his toe?

A. So I could get away.

The 11 year old testified that, after getting away, she went downstairs again, sat down, and began whiting her shoes. She said that Mr. Gilpin came downstairs and went into the bathroom.

The girl's 12 year old sister testified that she had dressed in her costume, had put on her makeup, and was standing in front of the bathroom mirror when Mr. Gilpin came in and stood in the doorway. She testified that Mr. Gilpin asked her what she was going to be for Halloween. She testified, in part, as follows:

Q. Did you answer him?

A. Yes.

Q. What did you tell him?

A. A prostitute or hooker or whatever.

Q. Did he respond to that in any way?

A. Yes.

Q. What did he do?

A. He said he wishes he could be my first customer.

Q. Did he say that from the doorway where he was standing?

A. Yeah, and I think he kinda walked towards me.

* * *

Q. Where did he stand?

A. Behind me.

Q. Several feet behind you?

A. No.

[232 Mont. 61] Q. How close behind you?

A. So I could feel him.

Q. Did he say anything to you when he came and stood behind you?

A. He just kept repeating, "I wish I could be your first customer".

Q. Did you say anything back about that?

A. No.

Page 448

Q. Now when he stood behind you so that you could feel him saying he would like to be your first customer, do you know what he was doing with his arms?

A. Yes, he put them under my arms.

Q. Where were his hands?

A. On my breasts.

* * *

Q. What was he doing with his hands?

A. He was rubbing like.

Q. Now you were wearing your sweater at that time, right?

A. Yeah.

* * *

Q. When Joel did these things to you, ..., what did you do?

A. I tried to wiggle away.

Q. You tried to wiggle away?

A. Yes.

* * *

Q. Were you able to wiggle away?

A. Yeah.

Q. Okay. Did you then leave the bathroom?

A. I tried to.

Q. What happened?

A. He grabbed my arm.

Q. Where did he grab you?

A. On the wrist.

Q. And what did he do?

A. He just was saying no, no.

Q. Okay. Did he just let you stay out there at the end of his arm?

A. No, he kind of pulled me back again.

Q. What did you do then?

A. I told him that I thought I heard the doorbell ring.

She testified that during this time she was yelling, "help ... help me," to her 11 year old sister. Her sister heard the yelling but thought she was "joking around." Mr. Gilpin, however, let the 12 [232 Mont. 62] year old go when she said she heard the doorbell ring. She said she and her sister ran upstairs and "decided we would stick together the whole night." She explained, "We decided that so he wouldn't try anything on us, together we thought maybe he couldn't do anything when we were together."

Neither of the girls told anyone about these incidents that night. A week or so later, the 11 year old wrote a note to her mother, explaining the problems the girls had been having with Mr. Gilpin. She specifically described the bathroom incident between her older sister and Mr. Gilpin.

After receiving the note and discussing the matter with the girls, the mother eventually talked with a detective from the Billings Police Department. The mother and two girls each gave statements to the detective concerning the incidents. The girls also received counselling from a psychotherapist. The 11 year old saw the therapist twice, and the 12 year old saw her five or six times. The therapist was not called to testify at trial by either party.

Mr. Gilpin denied all of these allegations. At the conclusion of trial, the jury returned a verdict of guilty on both counts of sexual assault, Sec. 45-5-502, MCA. The District Court sentenced Mr. Gilpin to a term of four years imprisonment on each count, to be served consecutively.


Did the District Court commit reversible error by denying defendant's motion for mistrial when the prosecution referred to certain statistics during voir dire?

During voir dire, the deputy county attorney referred to a statistical probability that one in every five men and one in every three women have been molested before the age of eighteen. The defense objected that this was an offer of testimony. The court informed the prospective jurors that this was neither testimony nor evidence to be considered by them. The prosecution then asked if any of the potential jurors or people close to them had been victims of sexual abuse. At this point defense counsel moved the court to declare a mistrial. The court denied the motion.

The defense argues that the prosecution was attempting in voir dire to personalize information in the form of statistics for which there was never any testimony at trial. He claims the information [232 Mont. 63] tainted

Page 449

the entire jury panel. Mr. Gilpin does not present any evidence to support this allegation of prejudice.

The appellant must show by clear and convincing evidence, practically free from doubt, that the trial court's ruling on a motion for mistrial was erroneous. State v. Murray (Mont.1987), 741 P.2d 759, 762, 44 St.Rep. 1394, 1397. Although we are not convinced that the prosecutor's statements were either necessary or appropriate, we conclude that any taint created by those statements was remedied by the court's admonishment to the jury that the statements were not evidence and that only sworn testimony and tangible evidence could be considered. We hold that the record does not contain clear and convincing evidence that the trial court's ruling was erroneous.


Did the court err by admitting evidence of other crimes, wrongs, or acts?

Mr. Gilpin objects to certain testimony of the two victims which included descriptions of other prior incidents between himself and the...

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