                                          No. 96-589

               IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

STEVEN J. LoPRESTI.

              Defendant and Appellant.



APPEAL FROM:         District Court of the Sixteenth Judicial District,
                     In and for the County of Custer,
                     The Honorable Kenneth R. Wilson, Judge presiding


COUNSEL OF RECORD:

              For Appellant:

                     Cynthia K. Thornton, Attorney at Law, Miles City, Montana

              For Respondent:

                     Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders,
                     Assistant Attorney General, Helena, Montana

                     Gary P. Bunke, Custer County Attorney, Miles City, Montana



                                                          Submitted on Briefs: April 10, 1997

                                                                      Decided: May 2 7 , 1 9 9 7
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.



       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Publishing Company.

       Steven Jude LoPresti (LoPresti) appeals from the judgment entered by the Sixteenth

Judicial District Court, Custer County, on jury verdicts finding him guilty of sexual

intercourse without consent and endangering the welfare of a minor. We affirm.

       The sole issue on appeal is whether there was sufficient evidence to support the jury's

guilty verdicts.

                                     BACKGROUND

       The incident forming the basis of the charges against LoPresti occurred on November

28, 1995, in LoPresti's apartment at the Red Rock Village Inn (Red Rock) in Miles City,

Montana, where he lived with this teenaged son and teenaged daughter, Christina. That

afternoon, Christina and her fourteen-year-old friend and classmate, J.D., walked from school

to the LoPresti apartment; J.D. was planning on spending the night there. Finding no one at

home, Christina and J.D. walked to a local martial arts studio where LoPresti's son was

taking lessons. After they left the studio, the girls either walked or were driven by LoPresti
to Christina's boyfriend's house. In any event, J.D. did not want to stay at the boyfriend's

house and either walked or rode with LoPresti back to the Red Rock.

       According to J.D., she and LoPresti drank beer at the Red Rock for approximately

twenty to thirty minutes before Christina and her boyfriend arrived. The three teenagers went

to Christina's bedroom, but J.D. returned to the living room where she and LoPresti

continued to drink beer.      LoPresti left for the store about that time and returned

approximately twenty minutes later with more beer. J.D. claims she and Christina drank

some beer with LoPresti before Christina left to walk her boyfriend home, leaving J.D. and

LoPresti alone in the apartment. Christina denied seeing J.D. with any beer.

       J.D. stated that LoPresti started making advances towards her, "one thing led to

another" and they ended up in LoPresti's son's room "having sex." A short time later,

Christina returned to the apartment and found the door locked. J.D. claimed that, after

repeated knocking, J.D. let Christina and the owner of the Red Rock, Dolly Moore (Dolly),

into the apartment once she had successfully "kicked [LoPresti] off [of her] and put on [her]

pants." Dolly's and Christina's versions of the events differed from J.D.'s and from each

other. Dolly stated that she unlocked the apartment door with her master key after noticing

Christina's attempt to enter the apartment and that, upon entering, she saw LoPresti coming

out of the bedroom tucking in his shirt; he looked "disheveled." J.D. came out shortly

thereafter. According to Dolly, Christina asked J.D. why she had not opened the door and
J.D. responded that she had been asleep. Dolly then left the apartment to find J.D.'s parents.

According to Christina, J.D. was sitting on the couch when Dolly let her into the apartment.

       About that time, LoPresti left the apartment and J.D. stated she and Christina

continued to drink beer. In the meantime, Dolly located J.D.'s mother, Laura Archeske

(Laura), and stepfather, Brad Baumann (Brad), at the Alta Club where Laura was playing

league pool. Dolly told Laura that "there was something going on" at the Red Rock and that

J.D. was drunk and wandering around the parking lot of the Red Rock with Christina. Laura

asked Brad to go to the Red Rock, pick up J.D. and take her home.

       Brad arrived at the Red Rock as J.D. and Christina were leaving the apartment; he

took J.D. home and put her to bed. Brad then returned to the Alta Club. When the pool

game ended, Laura and Brad went home. Laura got J.D. out of bed and a "heated argument"

ensued during which J.D. admitted to her mother that she had engaged in sexual intercourse

with LoPresti. Enraged, Laura told J.D. to get into their car to go to the police station and

to the hospital.

       LoPresti arrived before they left, however, wanting to know why J.D. had been picked

up early from his apartment. Laura directed J.D. back into the house and LoPresti followed.

Laura accused LoPresti of getting J.D. drunk and "screw[ing]" her; LoPresti denied the

accusations. Laura then grabbed LoPresti around the throat, released him and grabbed his

throat again. LoPresti continued to deny the accusations when J.D. said that he had better

tell Laura what had been going on because she had already done so. Laura claims that
LoPresti finally said "Yes, I did it, but you don't understand. Let me explain." Not interested

in an explanation, Laura started to grab LoPresti again. At that point, Brad pushed Laura

aside and hit LoPresti four or five times in the face. Laura then called 91 1, stating "Come

get [LoPresti] before I kill him." LoPresti later claimed that he was hit and knocked out, and

that he awakened to a gun being pointed at him. Laura and Brad both denied pointing a gun

at LoPresti.

       Three Miles City police officers were dispatched to Laura and Brad's residence. Once

the situation was assessed, one of the officers took J.D. aside and questioned her regarding

the incident. J.D. told him of three separate sexual acts with LoPresti at the Red Rock and

provided a list of the dates on which the acts had occurred. Laura then took J.D. to the local

hospital where she was examined by the emergency room doctor who conducted a general

physical examination and a detailed pelvic examination; he also collected samples of J.D.'s

vaginal fluids for microscopic examination. LoPresti subsequently was arrested and charged

by the State of Montana (State) with the offenses of sexual intercourse without consent, in

violation of 8 45-5-503, MCA, and endangering the welfare of children, in violation of 5 45-

5-622(2)(a)(i), MCA.

       During the trial, the jury heard five days of conflicting testimony from nearly thirty

witnesses. LoPresti testified on his own behalf and denied that he had had sexual intercourse

with J.D. or provided her with beer. The jury found LoPresti guilty of both of the charged
offenses and the District Court sentenced him to fifteen years at the Montana State Prison

with five years suspended. LoPresti appeals.



                                 STANDARD OF REVIEW

       Our standard in reviewing the sufficiency of the evidence to support a criminal

conviction is whether, after viewing the evidence in a light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. State v. Kelman (1996), 276 Mont. 253,258,915 P.2d 854,857 (citations

omitted). The credibility of witnesses and the weight to be given to their testimony are to be

determined by the trier of fact; disputed questions of fact and credibility will not be disturbed

on appeal. Kelman, 915 P.2d at 859 (citation omitted).

                                        DISCUSSION

                 Does sufficient evidence support the jury's guilty verdicts?

       LoPresti contends that there was insufficient evidence to convict him because the

State's case against him was entirely circumstantial and little physical evidence supported it.

As a result, he argues that the jury was obligated to accept the interpretation of the evidence

which pointed to his innocence. LoPresti's arguments are without merit.

       With regard to LoPresti's contention that the case against him was entirely

circumstantial, nothing could be further from the truth. Here, the victim testified that she had

sexual intercourse with LoPresti on the date in question. This testimony constitutes direct
evidence that LoPresti committed the offense of sexual intercourse without consent since,

as a minor, J.D. was incapable of giving her consent.      State v. Steffes (1994), 269 Mont.

214,235, 887 P.2d 1196, 1209; 5 45-5-501(1)(b)(iii), MCA. J.D. also testified that LoPresti

supplied her with beer on the date in question, thus providing direct evidence that LoPresti

endangered the welfare of a child by supplying an intoxicating substance to a person less

than 18 years old, in violation of 5 45-5-622(2)(a)(i), MCA.

       Nor is LoPresti's passing reference to the small amount of physical evidence

introduced on the sexual intercourse without consent charge helpful to his position. First, he

cites to no authority under which physical evidence of sexual intercourse without consent is

necessary to prove the case beyond a reasonable doubt. In any event, however, a pubic hair

was found on LoPresti's shirt which did not match the hair sample he had given but was

consistent with the victim's hair sample. Furthermore, the examining physician testified that

the condition of J.D.'s hymen was consistent with having had intercourse within the

preceding ten hours. Moreover, while no sperm or seminal fluid was found on the swabs

taken during J.D.'s physical examination and, similarly, no seminal fluid was found on the

bedding taken from the bed on which the intercourse allegedly took place, the lack of these

types of physical evidence was consistent with J.D.'s testimony that LoPresti did not

ejaculate and that intercourse was interrupted by Christina's knocking on the apartment door.

       Finally, LoPresti's theory that the jury in this case was required to construe the

circumstantial evidence in his favor is based on his mischaracterization of the evidence and
his misapplication of State v. Lucero (1984), 214 Mont. 334, 693 P.2d 51 1. As pointed out

above, the State's case was based largely on the victim's direct evidence regarding the

offenses charged; thus, the case against LoPresti was not entirely circumstantial.

Furthermore, in Lucero, we were addressing whether a given jury instruction relating to

circumstantial evidence was an accurate statement of the law. We relied on our earlier

conclusion in State v. Fitzpatrick (1973), 163 Mont. 220, 225, 516 P.2d 605, 609, that a

conviction in a case based &on circumstantial evidence could be justified only where

the facts and circumstances were entirely consistent with the theory of guilt a d inconsistent

with any other rational conclusion.   m, P.2d at 513. In that context, we determined
                                        693

that the instruction at issue correctly stated that

       if the circumstantial evidence was susceptible to two reasonable
       interpretations, one of which points to the defendant's guilt and the other to his
       innocence, it is the duty of the jury to adopt the interpretation which points to
       the defendant's innocence and reject that interpretation which points to his
       guilt.

Lucero, 693 P.2d at 513-14. It is clear that Lucero applies only where the case rests entirely

on circumstantial evidence; that is not the situation before us here. For that reason, the

question of whether the circumstantial evidence in this case was susceptible to two

reasonable interpretations such that the jury would have been required to adopt the

interpretation pointing to LoPresti's innocence does not arise here.

       In this case, the jury had before it the victim's direct testimony that she had sexual

intercourse with LoPresti on the date in question, the victim's admission to her mother and
Brad that the intercourse had occurred, and LoPresti's own admission in the presence of

Laura and Brad. The jury also heard testimony from another person to whom LoPresti

admitted that "he had sexual intercourse with [J.D.]," referred to her as "a friend of his

daughter's" and stated "[he] knew she was 14 . . . ." Physical evidence also supported the

State's case and circumstantial evidence abounded. With regard to the endangering the

welfare of a child charge, the victim provided direct evidence that LoPresti supplied her with

beer and Christina's boyfriend testified that he saw LoPresti and J.D. drinking beer together

that day.

       While LoPresti testified that he did not have intercourse with J.D. on the date in

question or any other date, and tried to establish at trial--as he argues here--that much of the

State's evidence was "suspect," these are matters which go to the weight of the evidence and

the credibility of the witnesses. Thus, they were matters within the province of the jury as

the trier of fact, not this Court. See Kelman, 915 P.2d at 859.

       Reviewing the evidence in a light most favorable to the prosecution, we conclude that

sufficient evidence exists from which the jury could find the essential elements of the

offenses charged beyond a reasonable doubt.

       Affirmed.
We concur:
