                                 No. 88-547
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1990



STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
ERIC HARRIS CATES,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Fourteenth Judicial,
                 In and for the County of Musselshell,
                 The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                  Ira Eakin arg.ued, Billings, Montana
         For Respondent :
                 Won. Marc ~acicot, Attorney General, Helena, Montana
                 Paul D. Johnson argued, Asst. Atty. General, Helena
                 Mark Murphy argued, Asst. Atty. General, Helena
                 Floyd A. Brower, Golden Valley County Attorney; Gerry
                 ~iggins,special Deputy County Attorney, Ryegate,
                 Montana



                                    submitted: November 7, 1989
                                         Decided: February 9, 1990
Filed:


                                     I

                                    Clerk
Justice ~ i l l i a mE. Hunt, Sr., delivered the Opinion of the
Court.


     A jury empaneled in the District Court of the Fourteenth
Judicial District, Musselshell County, found Eric Harris
Cates, guilty on one count of sexual intercourse without
consent with Janey Doe in violation of S 45-5-503, MCA, and
guilty on a separate count of sexual assault upon Robby Roe
in violation of § 45-5-502, MCA.         The District Court
sentenced defendant to fourteen years for sexual intercourse
without consent and fourteen years for sexual assault to be
served concurrently. The court suspended seven years of each
sentence subject to certain conditions and defendant was
given credit for time served.    Defendant was designated a
non-dangerous offender for the purpose of parole release.
Defendant appeals his conviction for sexual intercourse
without consent. Defendant did not appeal his conviction for
the sexual assault on Robby Roe.      We vacate and reverse
defendant's conviction for sexual intercourse without consent
with Janey Doe on the grounds of insufficiency of evidence.
     The two issues raised on appeal are:
     1. Whether sufficient evidence pertaining to the
elements of 5 45-5-503, MCA, supported the jury's guilty
verdict of the offense of sexual intercourse without consent.
     2. Whether the District Court erred in admitting
hearsay statements made by a three-year-old child to her
psychotherapist where the child was found incompetent to
testify.
     From September to November of 1987, defendant and his
wife, Kathleen Harris, were employed as babysitters for a
three-year-old girl, referred to as "Janey Doe," and a five-
year-old boy, referred to a "Robby Roe."      While Kathleen
actually took care of the children, defendant had access to
them during his lunch hour.
     On November 18, 1987, Janey said to her mother, "my
vagina hurts."  Janey's mother examined her and discovered
that Janey had a thick glob of mucous in the vaginal area,
that her vagina was streaked with blood resembling blood
blisters on both sides, and that she had a raw looking bruise
in her vagina. The following day, Janey's mother took her to
be examined by a pediatrician.     The pediatrician diagnosed
Janey's injuries as consistent with evidence of sexual
molestation.
     On February 26, 1988, defendant was charged by
information on Count I with sexual intercourse without
consent in violation of S 45-5-503, MCA, or, in the
alternative, with sexual assault in violation of § 45-5-202,
MCA, against Janey, and on Count I1 with sexual assault in
violation of S 45-5-502, MCA, against Robby.      Defendant's
wife was similarly charged and separate trials were ordered.
     On June 27, 1988, defendant filed a motion in limine
requesting the District Court to exclude out-of-court
statements made by the children to any witness. On July 1,
1988, a hearing was conducted concerning the motions. During
the hearing, the District Court concluded that Janey was not
competent to be a witness at trial after she declined to
speak to the ~istrictCourt judge both in open court and in
chambers. The court found that she was "mute out of fear."
Robby was found to be a competent witness.
     A jury trial     commenced on July 8, 1988.     Several
witnesses   testified  including Janey's mother, Janey's
pediatrician and Robby. Janey's mother testified that Janey
said her "vagina hurts" and that Janey had been consistently
complaining about soreness for six to eight weeks. She also
testified that she examined Janey and then took her to the
pediatrician.   Janey's pediatrician testified that Janey's
vagina looked fine externally but internally there were
i n j u r i e s s u c h a s b r u i s e s and a b r a s i o n s .    She s t a t e d t h a t from
t h e medical evidence:
         [ J a n e y ] h a s had some b l u n t , p e n e t r a t i n g t y p e t r a u m a
        d i r e c t l y t o t h a t [inner] area.        I t means t h a t t h e r e
        has        not       been      any  fall   or       hit        or     anything
        a c c i d e n t a l l y t h a t was done t o h e r .         T h i s a r e a had
        t o be         opened up a n d had t o h a v e b e e n i n j u r e d by
        o p e n i n g h e r up.

The p e d i a t r i c i a n t e s t i f i e d t h a t , i n h e r o p i n i o n , t h e i n j u r i e s
had been c a u s e d w i t h i n a week o f J a n e y ' s e x a m i n a t i o n and t h a t
she diagnosed J a n e y ' s i n j u r i e s a s c o n s i s t a n t with evidence of
sexual molestation.
        Robby t e s t i f i e d t h a t d u r i n g l u n c h - t i m e ,    E r i c "played t h e
touch      game"      touching        Robby's        penis      and     putting        "his      hand
...       up my b u t t . "         He     further testified                t h a t h e saw ~ r i c
touch Janey's vagina " [ a ] l o t of times."
        A f t e r concl.usion o f           t h e evidence,          the court instructed
the    jury      that,      should       it    find     defendant           g.uilty of       either
s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t o r s e x u a l a s s a u l t , h e must
b e found n o t g u i l t y o f t h e o t h e r .          On J u l y 1 2 , 1988, t h e j u r y
returned         a    verdict         of      guilty       on       Count      I    for      sexual
i n t e r c o u r s e w i t h o u t c o n s e n t i n v i o l a t i o n o f S 45-5-503,          MCA,
a n d n o t g u i l t y o f s e x u a l a s s a u l t u n d e r S 45-5-502,               MCA,    for
his    offense        against       Janey.         D e f e n d a n t was     found g u i l t y on
Count I1 f o r s e x u a l a s s a u l t i n v i o l a t i o n o f S 45-5-502,                   MCA,
f o r h i s o f f e n s e a g a i n s t Robby.
        The c o u r t s e n t e n c e d d e f e n d a n t t o f o u r t e e n y e a r s i n t h e
Montana S t a t e P r i s o n on e a c h c o u n t t o r u n c o n c u r r e n t l y . Seven
years      of each        sentence         was     suspended          subject       to     certain
conditions.           D e f e n d a n t was g i v e n c r e d i t f o r t i m e s e r v e d and
d e s i g n a t e d a non-dangerous o f f e n d e r f o r t h e p u r p o s e o f p a r o l e
release.          Defendant         a p p e a l s h i s c o n v i c t i o n on Count I f o r
sexual      intercourse           witho.ut consent              under       S 45-5-503,          MCA.
        The     first      issue     r a i s e d on a p p e a l i s w h e t h e r        there     is
s u f f i c i e n t evidence of          t h e elements of            S 45-5-503,         MCA,     to
support the jury's guilty verdict of the offense of sexual
interco.urse without consent.
     Defendant was convicted of sexual intercourse without
consent under S 45-5-503, MCA, which provides in part:
     A person who knowingly has sexual intercourse
     without consent with a person of the opposite sex
     commits the offense of sexual intercourse without
     consent.
Sexual intercourse is defined under B 45-2-101(61), MCA, as:
     [The] penetration of the vulva, anus, or mouth of
     one person by the penis of another person,
     penetration of the v,ulva 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 desire of either party.                 -
                                       Any penetration,
     however slight, is sufficient.    (Emphasis added.
     Defendant argues that while there is medical evidence
that Janey was penetrated, there is not sufficient credible
evidence, that it was - who committed the act of
                          he
penetration.    Establishing penetration is an essential
element to proving sexual intercouse without consent.
   The standard of review in such a case is:
     [Wlhether the evidence, viewed in the light most
     favorable to the prosecution, is sufficient to
     permit any rational trier of fact to find that the
     elements of the offense were established beyond a
     reasonable doubt.
State v. Lundblade (1986), 221 Mont. 185, 187, 717 P.2d 575,
577. Here, the evidence is not sufficient to establish that
it was defendant who committed the act of penetration. while
Robby did testify that he saw defendant touch Janey's vagina
"[a] lot of times" he never testified to what he meant by the
statement and this Court cannot infer that he was describing
an act of penetration.
     The jury specifically fo.und defendant not guilty of the
charge of sexual assault with Janey  .   Therefore, defendant
cannot be retried on that charge. Defendant did not appeal
his conviction for the sexual assault upon Robby Roe.
     Because of our holding on the first issue, we need not
discuss the second issue of whether the District Court erred
in admitting hearsay statements made by a three-year-old
child to her psychotherapist where the child was fou.nd
incompetent to testify.
     We vacate and reverse defendant's conviction for sexual
intercourse without consent with Janey Doe on the gro.unds of
insufficiency of evidence.

                                             &+A
                                              J


                                         Justlce




               sitting for
Justice Fred J. Weber dissenting:


     Our basic issue is whether there is substantial evidence
to support the conviction.       The test has been stated as
follows:

     A  conviction cannot be overturned when the evi-
     dence, viewed in the light most favorable to the
     prosecution would allow - rational trier of fact
                              any
     to find the essential elements of the crime beyond
     a reasonable doubt.    Jackson v. Virginia (1979),
     443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.
     560, 573; State v. Godsey (1982), 202 Mont. 100,
     656 P.2d 811, 39 St.Rep. 2354, 2358. If the record
     shows any substantial evidence to support the
     judgment, the presumption is in favor of such
     judgment .  State v. Shurtliff (1981), 195 Mont.
     213, 635 P.2d 1294, 1296, 38 St.Rep. 1798, 1800.
State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100.
In addressing this issue, the majority has improperly focused
on the lack of direct proof demonstrating that defendant was
the one who penetrated the child's vagina.        I dissent to
point out that direct proof of penetration by the defendant
was not necessary to conviction.       Further, circumstantial
evidence pointing to defendant's penetration was established.
     The majority opinion cites Lundblade as authority that
the evidence in the present case is insufficient to convict.
However, -
         Lundblade is distinguishable and is not good author-
ity in the present case.     In Lundblade there was no evidence
of penetration, an element of the offense.      In the present
case,    penetration   was   definitely   established.     The
pediatrician testified that Janey's vagina had recently been
opened      up,    causing    injuries        consistent        with     sexual
molestation.         The   only   issue    was       the    identity    of   the
perpetrator.
       The present case is more closely analogous to State v.
Pendergrass (1978), 179 Mont. 106, 586 P.2d 691, - remand,
                                                 on
189 Mont.     127, 615 P.2d       201     (1980).          In Pendergrass 11,
defendant made a similar challenge to the sufficiency of the
evidence to prove sexual intercourse without consent.                    Noting
that     "there is    no   question     that     a    rape occurred,"        the
majority    in Pendergrass then detailed the evidence which
tended to prove Pendergrass committed the crime.                   This Court
found sufficient evidence to convict in the testimony that
defendant's red pickup was parked near the convenience store
where the offense occurred, a witness saw a man closely
resembling defendant in the store; the defendant's blood type
matched that of the perpetrator.
       As in Pendergrass, here there is no question that a rape
(sexual intercourse without consent) had occurred.                     The only
question is the identity of the perpetrator.                    The evidence
established that defendant was with Janey during his lunch
hour   on   many    occasions.        Robby    testified        that   he    saw
defendant touch Janey's vagina a lot of times.                     Robby also
testified that defendant played the touch game and put his
hand up his [Robby Is] butt.            I conclude that the evidence
here more     closely identifies the defendant as being              the
perpetrator because of his action which at least constituted
sexual assault.     In contrast, the evidence in Pendergrass did
not establish any       such close connection.           Nonetheless in
Pendergrass this Court stated:

     'I. .    .
              This Court remains ever mindful of one
     fundamental rule--that questions of fact must be
     determined solely by the jury, and that given a
     certain legal minimum of evidence, this Court on
     review will not substitute its judgment for that of
     the jury     . . ."
Pendergrass, 615 P.2d at 205.
    My     conclusion      is   further   strengthened    by   Montana's
statutory definition of "sexual intercourse."              As noted in
the majority opinion, a penetration of the vulva by any body
member falls within the definition of sexual intercourse.
The statute further states that ''[alny penetration, however
slight, is sufficient."          (Emphasis added.)   In view of this
broad definition, Robby's testimony as to defendant's touch-
ing Janey's vagina is actually strong evidence that he pene-
trated her.
     I would affirm the conviction.
