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                                                                No. 98-528



                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             1999 MT 196N




STATE OF MONTANA,

Plaintiff and Respondent,



v.



PAUL THUNDER BELCOURT,



Defendant and Appellant.




APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

Honorable John W. Larson, Judge Presiding.




COUNSEL OF RECORD:


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For Appellant:



Edmund F. Sheehy, Cannon & Sheehy, Helena, Montana



For Respondent:



Honorable Joseph P. Mazurek, Attorney General; Micheal S. Wellenstein,

Assistant Attorney General, Helena, Montana



Fred R. Van Valkenburg, County Attorney, Missoula, Montana




Submitted on Briefs: July 22, 1999

Decided: August 19, 1999



Filed:




__________________________________________

Clerk




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Chief Justice J. A. Turnage delivered the Opinion of the Court.

    1. ¶Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal
       Operating Rules, the following decision shall not be cited as precedent but shall be
       filed as a public document with the Clerk of the Supreme Court and shall be
       reported by case title, Supreme Court cause number, and result to the State Reporter
       Publishing Company and to West Group in the quarterly table of noncitable cases
       issued by this Court.
    2. ¶Paul Thunder Belcourt appeals his conviction before the Fourth Judicial District
       Court, Missoula County, of the offenses of sexual intercourse without consent and
       intimidation. We affirm.

                                                                 ISSUES

    1. ¶ 1. Did the District Court err in denying Belcourt's request for instructions on the
         lesser included offense of misdemeanor sexual assault on the charge of sexual
         intercourse without consent?
    2.   ¶2. Did the District Court err in denying Belcourt's request for instructions on the
         lesser included offense of misdemeanor assault on the charge of intimidation?
    3.   ¶3. Did the District Court err in allowing an emergency room nurse to testify
         regarding whether the victim in this case demonstrated behavior consistent with a
         person who had been raped?
    4.   ¶4. Did the District Court commit plain error by admitting evidence of the knife and
         sap Belcourt carried on the evening of the offenses but did not use in the
         commission of the offenses?
    5.   ¶5. Is there sufficient evidence to support Belcourt's conviction for intimidation?

                                                          BACKGROUND

    1. ¶The victim in this case, S.V., is Belcourt's former girlfriend. The couple dated from
         the summer of 1997 to the following November. Although the relationship between
         them had deteriorated, Belcourt and S.V. continued to see each other periodically
         after they discontinued dating. One such meeting occurred on December 25, 1997,
         and resulted in Belcourt physically abusing S.V. for the first time. The couple had
         no further contact until the morning of December 30, 1997, when the events relevant
         to this appeal occurred.

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   2. ¶S.V. paged Belcourt several times on December 29, 1997, attempting to discuss
        with him his reasons for hitting her on December 25, 1997. At approximately 4:00 a.
        m., S.V. received a telephone call from one of Belcourt's friends, advising her that
        Belcourt was drunk and on the way to her house. Belcourt arrived at S.V.'s almost
        immediately thereafter.
   3.   ¶ According to his usual custom, Belcourt was carrying a 9 millimeter pistol, a boot
        knife and a black leather sap on his person that evening. Upon entering S.V.'s home,
        Belcourt gave her the pistol, which was loaded, and S.V. removed the cartridge from
        the weapon.
   4.   ¶The couple then talked for awhile on S.V.'s couch before engaging in vaginal and
        anal sexual intercourse, to which S.V. consented. Following this, Belcourt requested
        that S.V. perform oral sex on him, and she refused. Belcourt then forced S.V. to
        perform oral sex on him.
   5.   ¶Subsequently, S.V. went to her bedroom to get dressed and use the bathroom. She
        attempted to call one of Belcourt's friends to come get him. The friend, however, did
        not answer, and S.V. left a message on his answering machine. Belcourt took the
        phone from S.V. and threw it down the hallway.
   6.   ¶S.V. next went into her bedroom to lie down. Belcourt followed S.V. into the
        bedroom, where he forced her to have vaginal sexual intercourse with him. During
        this encounter, S.V. began screaming and Belcourt started hitting and then choking
        her. Belcourt left S.V.'s bedroom and returned to the living room. At some point,
        Belcourt replaced the cartridge in his 9 millimeter pistol and got dressed.
   7.   ¶At trial, S.V. testified that she wanted to leave her home with her infant son but
        was too afraid to attempt leaving by the door in the living room where Belcourt was
        sitting and so remained in her bedroom. Shortly thereafter, S.V. either received or
        placed another phone call from a telephone in her bedroom. Hearing the call,
        Belcourt returned to the bedroom and tore the telephone out of the wall.
   8.   ¶Shortly thereafter, Belcourt decided to leave. S.V. testified that before leaving her
        residence, Belcourt threatened her not to call the police or he would kill her and not
        to "put her friends on him" or he would "shoot his way through."
   9.   ¶Once Belcourt had gone, S.V. removed herself and her son to her mother's house a
        few houses away. S.V.'s mother called 911 and the Missoula County Sheriff's
        Department responded to the call. Police eventually found Belcourt sleeping in the
        back of a friend's car a few blocks away. The pistol, knife, and sap were found
        hidden under the steps to the friend's house where Belcourt was found.
 10.    ¶Belcourt was arrested and charged with the offenses of sexual intercourse without
        consent and intimidation. He was tried by a jury and convicted on both charges.

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        This appeal follows.

                                                           DISCUSSION

   1. ¶ 1. Did the District Court err in denying Belcourt's request for instructions on the
        lesser included offense of misdemeanor sexual assault on the charge of sexual
        intercourse without consent?
   2.   ¶Belcourt argues that the District Court erred in refusing his request for jury
        instructions on the lesser included offense of misdemeanor sexual assault on the
        charge of sexual intercourse without consent. At trial, Belcourt testified that all of
        the sexual intercourse between S.V. and himself during the morning of December
        30, 1997, was consensual and that the only thing to which S.V. protested was the
        infliction of several "hickeys" on her person. Based on this evidence, Belcourt
        argues, a rational jury could have found him guilty of misdemeanor sexual assault in
        inflicting the "hickeys" but not guilty of sexual intercourse without consent, and that
        the District Court therefore improperly rejected his request for instructions on the
        lesser included offense.
   3.   ¶We review jury instructions in a criminal case to determine if the instructions, as a
        whole, fully and fairly instruct the jury on the law applicable to the case. State v.
        Robbins, 1998 MT 297, ¶ 27, 292 Mont. 23, ¶ 27, 971 P.2d 359, ¶ 27. As a basic
        rule, trial courts are required to instruct a jury on every issue or theory that is
        supported by the evidence. Robbins, ¶ 28. Upon request, a criminal defendant is
        entitled to a lesser included offense instruction if any evidence exists in the record
        that would allow the jury to rationally find the defendant guilty of the lesser but not
        the greater offense. Robbins, ¶ 28.
   4.   ¶Under § 45-5-502, MCA, a person who knowingly subjects another person to any
        sexual contact without consent commits the offense of sexual assault. The evidence
        in this case does not entitle Belcourt to an instruction on the lesser included offense
        of sexual assault, because Belcourt's claim that all of the sexual intercourse between
        S.V. and himself was consensual, if believed, would have precluded a conviction for
        sexual assault as well as a conviction for sexual intercourse without consent. An
        instruction on a lesser included offense is not necessary when the defense's
        evidence, if believed, would require a complete acquittal. State v. Schmalz, 1998
        MT 210, ¶ 23, 290 Mont. 420, ¶ 23, 964 P.2d 763, ¶ 23. We hold therefore that the
        District Court did not err in refusing Belcourt's request for jury instructions on the
        lesser included offense of misdemeanor sexual assault.
   5.   ¶2. Did the District Court err in denying Belcourt's request for jury instructions on

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        the lesser included offense of misdemeanor assault on the charge of intimidation?
   6.   ¶At trial, Belcourt testified that he did not threaten to kill S.V. if she reported him to
        the police, but he did admit to slapping and choking her prior to leaving her
        residence. Belcourt argues that this testimony, if believed, supports a conviction for
        misdemeanor assault for causing S.V. to be in reasonable apprehension of bodily
        injury, but does not support a conviction for intimidation, because he made no threat
        of bodily injury.
   7.   ¶Belcourt's admitted actions in slapping and choking S.V. did not constitute part of
        the criminal conduct giving rise to Belcourt's intimidation charge and were not
        alleged in the Information as grounds to support that charge. Moreover, Belcourt's
        argument that the District Court erred in not permitting his offered instruction is
        premised on the assumption that the offense of assault constitutes a lesser included
        offense to the charge of intimidation. However, Belcourt provides no reasoning or
        authority with which to support such an assumption.
   8.   ¶This failure is fatal and, without more, is sufficient cause for us to decline to
        address the issue. It is not this Court's obligation to formulate arguments or locate
        authorities for the parties in support of their positions on appeal. See Johansen v.
        State, Dept. of Natural Resources, 1998 MT 51, ¶ 24, 288 Mont. 39, ¶ 24, 955 P.2d
        653, ¶ 24. We therefore hold that the District Court did not err in refusing Belcourt's
        proposed jury instruction on the lesser included offense of assault on the charge of
        intimidation.
   9.   ¶3. Did the District Court err in allowing an emergency room nurse to testify
        regarding whether the victim in this case demonstrated behavior consistent with a
        person who had been raped?
 10.    ¶At trial, the District Court allowed the State to present the testimony of Linda
        Longacre, the registered nurse who examined S.V. in the emergency room of a local
        hospital after the events of December 30, 1997. Part of this testimony included
        whether, in Longacre's opinion, S.V.'s presentation and demeanor during this
        examination was consistent with that of a person who had been subjected to
        nonconsensual sexual intercourse.
 11.    ¶Belcourt argues that this testimony involved the witness's opinion with regard to
        the credibility of the victim of this case, and was therefore improperly allowed
        pursuant to State v. Hanson (1997), 283 Mont. 316, 323, 940 P.2d 1166, 1170. The
        State responds that this issue was not properly preserved for appeal because
        Belcourt failed to object to the introduction of this testimony on those grounds at
        trial. We agree with the State.
 12.    ¶The record reveals that Belcourt objected to the introduction of Longacre's opinion

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       as to the presentation of S.V. at the time of her examination based on Longacre's
       lack of qualifications to render such an opinion. The District Court sustained the
       objection on those grounds and permitted the State to lay more foundation with
       regard to the witness's qualifications. The State did so, and the testimony was
       admitted over Belcourt's objection.
 13.   ¶Under Rule 103(a)(1), M.R.Evid., in order to preserve an objection to the
       admission of evidence for purposes of appeal, the objecting party must make a
       timely objection and state specific grounds for the objection. To be timely, the
       objection must be made as soon as the grounds for the objection become apparent.
       Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234 (citing
       McCormick on Evidence, § 52 at p. 126 (3d Ed. 1984)). An objection to the
       introduction of evidence is sufficiently specific if it is accompanied by a reasonably
       definite statement of the grounds for the objection. Kizer, 251 Mont. at 207, 824
       P.2d at 234. Failure to make a timely and specific objection constitutes a waiver of
       the right to claim error on appeal and results in the evidence being treated the same
       as any other admissible evidence. Kizer., 251 Mont. at 207, 824 P.2d at 234. We
       hold that Belcourt's failure to object to this testimony on the grounds that he now
       asserts on appeal precludes further review of this issue by the Court.
 14.   ¶4. Did the District Court commit plain error by admitting evidence of the knife and
       sap Belcourt carried on the evening of the offenses but did not use in the
       commission of the offenses?
 15.   ¶At trial, the State introduced evidence of the knife and sap carried by Belcourt on
       the night of December 30, 1997, and recovered by law enforcement officers at the
       time of his arrest. Belcourt argues that the introduction of these items infringed upon
       his right to a fair trial because they were not relevant to the charges for which he
       was tried and were by their very nature prejudicial in the eyes of the jury. Although
       Belcourt concedes that the introduction of these items was not objected to at trial, he
       nevertheless asserts that his conviction should be overturned as a result of the
       introduction of these items under the plain error doctrine of appellate review.
 16.   ¶The State responds that the doctrine of plain error review is not applicable in this
       case because Belcourt has failed to demonstrate any fundamental constitutional right
       implicated by the State's introduction of the knife and sap into evidence at trial.
       Rather, the State contends, Belcourt's argument is essentially one of relevancy under
       the rules of evidence and is therefore not entitled to appellate review absent a timely
       and specific objection to that evidence at trial. We agree.
 17.   ¶In State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, this Court stated:



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Given the history of our application of common law plain error review and application of
§ 46-20-701(2), MCA, in criminal cases, it is appropriate and necessary that we articulate
an understandable rationale and rule for this and future cases. While we acknowledge the
constraints of § 46-20-701(2), MCA, we also recognize our inherent power and paramount
obligation to interpret Montana's Constitution and to protect the various rights set forth in
that document. Accordingly, we hold that this Court may discretionarily review claimed
errors that implicate a criminal defendant's fundamental constitutional rights, even if no
contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-
701(2), MCA, criteria, where failing to review the claimed error at issue may result in a
manifest miscarriage of justice, may leave unsettled the question of the fundamental
fairness of the trial or proceedings, or may compromise the integrity of the judicial
process . . . . Moreover, given the legislature's obvious intention to restrict the use of plain
error review by its enactment of § 46-20-701(2), MCA, we will henceforth use our
inherent power of common law plain error review sparingly, on a case-by-case basis, and
we will invoke that doctrine only in the class of cases aforementioned. In so doing, we
reemphasize the necessity for contemporaneous objections to claimed error, and we
caution counsel that, except in the class of cases mentioned, the provisions of § 46-20-701,
MCA, will be applied in the absence of contemporaneous objection.



    1. ¶ Our review of the record reveals no fundamental constitutional right which was
       implicated by the introduction of the knife and sap into evidence. The plain error
       doctrine is therefore not applicable under the facts of this case. We decline to
       address this issue further on grounds that it was not properly preserved for appeal by
       a timely and specific objection at trial.
    2. ¶5. Is there sufficient evidence to support Belcourt's conviction for intimidation?
    3. ¶We review the sufficiency of the evidence to support a jury verdict in a criminal
       case to determine whether, after viewing the evidence in the light most favorable to
       the prosecution, any rational trier of fact could have found the essential elements of
       the crime beyond a reasonable doubt. State v. Lantis, 1998 MT 172, ¶ 32, 289 Mont.
       480, ¶ 32, 962 P.2d 1169, ¶ 32.
    4. ¶Section 45-5-203(1), MCA, defines the offense of intimidation as follows:

A person commits the offense of intimidation when, with the purpose to cause another to
perform or to omit the performance of any act, he communicates to another, under
circumstances which reasonably tend to produce a fear that it will be carried out, a threat
to perform without lawful authority any of the following acts:

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(a) inflict physical harm on the person threatened or any other person;



(b) subject any person to physical confinement or restraint; or

(c) commit any felony.

    1. ¶Belcourt argues that there is insufficient evidence to support his conviction for
         intimidation because the evidence at trial demonstrated that he did not threaten S.V.
         under circumstances which reasonably tended to produce a fear in her that the threat
         would be carried out. More particularly, Belcourt argues that it was S.V.'s testimony
         at trial that on December 30, 1997, she did not believe that Belcourt would really
         kill her and that as of the time of trial she was not afraid of him.
    2.   ¶We find this argument unpersuasive. S.V.'s statements to law enforcement officers
         on the morning of Belcourt's arrest indicate that S.V. had been afraid to report
         Belcourt to the authorities for fear of what he might do to her. Prior to trial, S.V.
         mailed a letter to Belcourt in jail in which she contradicted her earlier claims and
         stated that she did not believe that Belcourt would kill her if she called the police on
         him. However, at trial, S.V. testified that she did, in fact, believe on December 30,
         1997, that Belcourt would try to kill her if she reported him to the authorities and
         that her statements in the letter to Belcourt were not true.
    3.   ¶Although S.V.'s testimony with regard to her state of mind on the evening of
         December 30, 1997, was somewhat contradictory, additional evidence presented at
         trial supports the jury's finding that S.V. was in reasonable fear that Belcourt would
         carry out his threat against her. This evidence included the testimony of S.V.'s
         mother and members of the sheriff's department who conducted the initial interview
         with S.V., that S.V. appeared frightened and was reluctant to contact or talk to law
         enforcement officials because of her fear of Belcourt and what he might do to her.
    4.   ¶The jury's findings on this issue were dependent upon the weight and credibility to
         be accorded to the evidence before them. Such a determination is exclusively within
         the province of the finder of fact, and we will not disturb these findings on appeal.
         See State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94. We therefore hold
         that there was sufficient evidence to support Belcourt's conviction of intimidation.
    5.   ¶Affirmed.


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/S/ J. A. TURNAGE




We concur:



/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER




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