State v. White Water
| Decision Date | 13 October 1981 |
| Docket Number | No. 81-112,81-112 |
| Citation | 194 Mont. 85,634 P.2d 636,38 St.Rep. 1664 |
| Court | Montana Supreme Court |
| Parties | The STATE of Montana, Plaintiff and Appellant, v. Floyd Wayne WHITE WATER, Defendant and Respondent. |
Mike Greely, Atty. Gen., Helena, Richard P. Heinz, County Atty., Polson, for plaintiff and appellant.
K. M. Bridenstine, Polson, for defendant and respondent.
The State appeals an order by the Lake County District Court dismissing a charge of sexual intercourse without consent. The State's principal evidence against the defendant consisted of a statement allegedly made by the complaining witness shortly after the alleged crime. At trial, the complaining witness disputed the accuracy of that statement by giving a different version of the facts. The District Court dismissed the charge at the end of the State's case on the ground that there was insufficient evidence to support a conviction. The sole issue on appeal is whether in a criminal case an alleged prior inconsistent statement should be submitted to the jury for consideration as substantive evidence of an essential element of the charged crime where the accuracy of that statement is repudiated at trial.
The defendant, Floyd Wayne White Water, was charged by information on January 22, 1980, with the offense of sexual intercourse without consent arising from an incident involving his former stepdaughter, Rhonda Rene Simmons a/k/a Rhonda White Water, age 15 at the time of this incident. The defendant had been recently divorced from Rhonda's mother, Belva White Water, but sporadically continued to live in Belva's home. Early in the morning on December 14, 1979, Rhonda awakened the defendant and then went into the kitchen to warm herself near a wood stove. The defendant soon joined her, but what occurred at this point is in dispute. Shortly after the defendant joined Rhonda in the kitchen, Rhonda's mother, Belva, entered the room and saw the defendant with his hand in Rhonda's underwear.
Later that day Belva reported to the Lake County Attorney's Office that the defendant has been sexually molesting her daughter. Rhonda, who has a learning disability, was taken from the special high school she attended in Dixon, Montana, and was transported to the Lake County Sheriff's Office. In the presence of the sheriff and a social worker, Rhonda was interviewed and a statement was taken by the sheriff in his own handwriting. According to that statement, the defendant had joined Rhonda near the wood stove, placed his hand down the back of her pants, and then moved his hand around to the front and penetrated her vagina with his finger.
The defendant's jury trial on the charge of sexual intercourse without consent began on December 8, 1980. Belva White Water testified that she did not know the actual contents of the sheriff's statement until the first day of trial, and that when she had entered the kitchen she saw only that the defendant had his hand down the back of Rhonda's underwear.
Rhonda testified at trial that she was not satisfied with the sheriff's statement because she felt the sheriff "did not understand ... (what she told him and) twisted ... (her statements) around a little bit here and there." She stated that the defendant had placed his hand on her "butt" next to her skin and then removed it when her mother entered the room.
At the close of all the evidence the District Court dismissed the information because the statement provided by the sheriff was the only evidence upon which a conviction could be based, and that Rhonda had repudiated that version of the facts. Without that statement, the essential element of penetration could not be proven in support of a charge of sexual intercourse without consent. See, section 45-5-503, MCA, and section 45-2-101(55), MCA.
The State appeals that dismissal, contending that the statement provided by the sheriff was properly admissible for impeachment purposes, and therefore, it should have been submitted to the jurors for their consideration as substantive evidence. The State's position is that the jury should have been allowed to consider both statements and decide which to believe. The State further contends that this prior inconsistent statement alone is sufficient to support a conviction.
We find that the dismissal was properly granted. The motion for dismissal in criminal cases is often referred to as a motion to acquit or a motion for a directed verdict. State v. French (1975), 166 Mont. 196, 531 P.2d 373. In Montana, the decision whether to grant or deny a motion to dismiss at the close of the State's case lies within the sound discretion of the trial court (section 46-16-403, MCA) and will be disturbed on appeal only when abuse of that discretion is shown. State v. Smith (1980), Mont., 609 P.2d 696, 698, 37 St.Rep. 583, 586. Further, a directed verdict should only be granted where there is no evidence upon which the jury could base a verdict; that is, the defendant is entitled to an acquittal if reasonable men could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proved beyond a reasonable doubt. State v. Perez (1952), 126 Mont. 15, 243 P.2d 309.
Although determining the reliability of a prior inconsistent statement is a matter within the trial judge's discretion, he must nonetheless view the situation in light most favorable to the prosecution. Here, the statement allegedly taken from Rhonda Simmons, a girl with a learning disability, was in the form of a document written by the sheriff who had interviewed her. The record reveals that Rhonda is somewhat susceptible to agree with suggestions made to her when she cannot clearly verbalize her thoughts. Although the interview was not recorded in any other manner, a social worker witnessed it and testified that she heard Rhonda make the statements to the sheriff. At trial and under oath, however, Rhonda denied the veracity of the prior, unsworn statement which the sheriff made in her behalf.
In Montana, "sexual intercourse means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual...
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