State v. Graves

• Decision Date: 08 August 1995
• Docket Number: No. 94-414,94-414
• Citation: 272 Mont. 451,901 P.2d 549
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard L. GRAVES, Defendant and Appellant.
• Court: Montana Supreme Court

Page 549

901 P.2d 549

272 Mont. 451

STATE of Montana, Plaintiff and Respondent, v. Richard L. GRAVES, Defendant and Appellant.

No. 94-414.

Supreme Court of Montana.

Submitted on Briefs May 12, 1995.

Decided Aug. 8, 1995.

Anne H. Watson, Watson & Watson, Bozeman, for appellant.

Joseph P. Mazurek, Atty. Gen.; Cregg W. Coughlin, Asst. Atty. Gen., Helena, Mike Salvagni County Atty.; Martin Lambert, Deputy County Atty., Bozeman, for respondent.

WEBER, Justice.

This is an appeal from a jury verdict in the Eighteenth Judicial District, Gallatin County and the District Court's Sentence and Judgment. We affirm.

Five issues were raised on appeal:

I. Did sufficient evidence exist to support the jury verdict?

II. Did the District Court err in admitting into evidence the substance of a 911 call?

III. Did the District Court err in allowing the State to use defendant's silence, in reference to consensual sexual intercourse, during his interrogation by the West Yellowstone police as evidence against defendant?

IV. Did the District Court err in declining to review testimony with the jury at the jury's request?

V. Did the District Court err in defendant's sentencing?

In May of 1991, complainant, Betsy Baker (Betsy), and her boyfriend moved to West Yellowstone and worked at various jobs. They lived in a small trailer behind the Wagon Wheel Apartments.

Betsy testified that, on the evening of August 24, 1991, she and her boyfriend ate dinner and then consumed several drinks at a local bar. Ultimately, the boyfriend was found to be driving while under the influence (DUI) and arrested. Betsy testified she did not know what happened to her boyfriend after he got out of the truck. She was advised by onlookers that he had been arrested.

Both defendant and Betsy testified to the fact that defendant approached Betsy and offered to drive her truck home. Betsy agreed. Defendant walked with Betsy to her landlords' (the Hitzlers) house. Defendant did not enter the Hitzlers' house but remained outside searching for keys Betsy had dropped on the way to the house. Betsy testified that she discussed with the Hitzlers her concerns about her boyfriend's arrest. The Hitzlers testified Betsy was clearly drunk at the time.

Betsy and defendant testified, as Betsy left the Hitzlers' house, defendant pulled up in his own car, told Betsy he had found her keys, and offered her a ride back to the trailer. Defendant followed Betsy into her trailer. Betsy testified that she allowed defendant to stay but told him he could sleep either on the bed or on the couch and she would stay on the other because they were not sleeping together. Betsy testified that defendant told her that was fine.

Betsy then testified she was awakened when she felt someone penetrating her vagina from behind her. She said she "dove off of the bed" and yelled at defendant to "just get the fuck out of here." Betsy testified defendant told her to "hold on" and calm down, but she kept yelling for him to get out. Before he left, Betsy said she asked him, "Did we make love?" Defendant replied, "I didn't mean to hurt you," then ran out the door. Betsy said she wrapped a blanket around herself and sat on the floor crying. At about 5:00 a.m., people who lived close by testified that they heard persistent crying.

Betsy testified that shortly after defendant left, someone knocked on her door and she asked him to call the police. A West Yellowstone police dispatcher said someone called 911 on the night in question and told the dispatcher a woman in a trailer behind the Wagon Wheel was screaming, could hardly speak, and thought she may have been raped. The caller would not give his name nor his location. Later, it was discovered he was a seasonal worker and he was not found nor called as a witness.

The police officer (Officer Burns) testified that, as he approached the trailer, he heard a woman crying loudly. He knocked on the door and saw Betsy on the floor holding a blanket tightly and crying hysterically. He said he recognized her from the earlier DUI stop and arrest. After Betsy calmed down, she told Officer Burns that a man offered to drive the truck home after the arrest and that she had been raped. Officer Burns locked the trailer and transported Betsy to the police department.

Officer Burns located defendant based on Betsy's description of defendant's car. Officer Burns said he asked defendant what had happened that night and was told by defendant, "What, nothing happened." When Officer Burns told defendant he knew something happened, he testified defendant admitted that he was with a girl and had given her a ride home but that was all. Officer Burns said he again told defendant there was more that had happened. Defendant then told Officer Burns he approached the girl after her boyfriend was arrested, offered his assistance, and drove her pickup to her trailer. Defendant also told Officer Burns about Betsy losing her keys and going to visit the other people.

Officer Burns said defendant told him that when he and Betsy got to the trailer, she offered to let him sleep in the bed, but that he declined, telling Betsy, "No, that's your bed. I'll sleep on the couch." Defendant told Officer Burns that Betsy was with him on the bed and she began touching him. Defendant claimed they fell asleep and that "[n]othing really happened after that." Officer Burns asked defendant what happened in the bed; but he said defendant became evasive. Officer Burns then advised defendant of his rights and the interview ended.

On August 25, 1991, defendant was booked and detained at the West Yellowstone, Montana, police station. Betsy and defendant were both taken to Bozeman for a rape examination. Two nonmotile sperm, biologically consistent with defendant, were found in Betsy. Defendant was released after providing police with his permanent address, telephone number, and social security number. On October 15, 1993, defendant was arrested for the offense of sexual intercourse without consent in violation of § 45-5-503, MCA.

Defendant was tried before a jury on March 7-10, 1994. He testified on his own behalf at trial. He claimed that, as he drove Betsy home, she sat directly next to him in the truck and placed her hand on his leg. He also claimed she gave him a hug and kissed him affectionately when he said he would go look for her keys. Defendant then testified as to how Betsy and he had finally gone to sleep together and that he awoke when Betsy's hand was fondling his groin area. He testified that, after about ten or fifteen minutes of foreplay, intercourse took place.

He alleged, afterwards, she caressed his face with her fingers, but suddenly stopped when she felt his mustache. He claimed Betsy got up, went to the bathroom, then came out and asked him, "Can I ask you a question?" Defendant told her, "Well, sure." Defendant then testified that Betsy asked, "Did we just make love?" He said "Well, of course we did." Defendant claimed Betsy got a couple of tears in her eyes, then calmly suggested he should leave. Defendant testified that he got dressed, returned to his friend's apartment, and went to sleep.

On March 10, 1994, the jury found defendant guilty of Sexual Intercourse Without Consent. He was sentenced on June 8, 1994, to twenty years' imprisonment with five years suspended. For purposes of parole eligibility, defendant was designated a dangerous offender. From the final judgment, defendant appeals.

Issue I

Did sufficient evidence exist to support the jury verdict?

Section 45-5-503(1), MCA, states "[a] person who knowingly has sexual intercourse without consent with another person commits the offense of sexual intercourse without consent...."

Defendant claims the State failed to prove all of the necessary elements of the alleged crime beyond a reasonable doubt. Defendant admits he knowingly had sexual intercourse with Betsy. However, defendant argues he was led to believe Betsy fully consented to such intercourse.

"Without consent" as used in § 45-5-503, MCA, is defined by § 45-5-501(1), MCA. Section 45-5-501(1), MCA states:

(1) ... the term "without consent" means:

. . . . .

(b) the victim is incapable of consent because he is:

(i) mentally defective or incapacitated;

(ii) physically helpless;

. . . . .

Defendant argues the State failed to prove Betsy was incapable of appreciating or controlling her own conduct at the time of sexual intercourse or even earlier the previous evening. Defendant restates various testimony alleging Betsy made numerous thoughtful decisions while in the company of defendant. From this testimony, defendant concludes Betsy clearly possessed the capacity to consent, and to say "no" to sexual intercourse even though later she regretted that course of action.

Defendant further argues the evidence does not support the State's claim that Betsy was physically helpless, and therefore incapable of consenting. Section 45-2-101(51), MCA, states " '[p]hysically helpless' means that a person is unconscious or is otherwise physically unable to communicate unwillingness to act." Defendant contends this Court has never determined "sleep" to be physical helplessness and should not set such a precedent here. In any event, defendant alleges Betsy was clearly not asleep because she was physically active during intercourse.

The State contends defendant's arguments concerning Betsy's capacity to consent or say "no" has nothing to do with the facts of this case. The State argues its case is in no way based upon a theory that Betsy was too drunk to make a wise choice about having sex with defendant. The State contends the evidence established that Betsy was "passed out"--in other words, unconscious. Betsy testified she told defendant he could sleep in the bed or on the couch, but they would not be sleeping together. Betsy then passed out on the bed, and defendant removed her pants and underwear and took advantage of her unconscious state. The State...