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State v. Lerman

Supreme Court of Montana

January 9, 2018

STATE OF MONTANA, Plaintiff and Appellee,
RANDALL LEE LERMAN, Defendant and Appellant.

          Submitted on Briefs: October 25, 2017

         District Court of the Fifth Judicial District, In and For the County of Beaverhead, Cause No. DC 14-3605 Honorable Katherine M. Bidegaray, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellant Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

          Jed C. Fitch, Beaverhead County Attorney, Dillon, Montana


          Beth Baker, Justice.

         ¶1 The State charged Randall Lerman, a licensed massage therapist, with Sexual Intercourse Without Consent after he rubbed a female client's genitals during a massage treatment session. A Beaverhead County jury convicted Lerman. Lerman appeals his conviction, arguing that the State did not present sufficient evidence to prove the elements of penetration and force. We affirm.


         ¶2 Lerman was a licensed massage therapist in Dillon, Montana. Over the course of two months, Kelsey Stoker attended four massage therapy appointments with Lerman to help alleviate lower back pain. During her appointments, Stoker left on her undergarments, which included a cap-sleeved spandex undershirt and spandex shorts that went almost to her knees.

         ¶3 The fourth appointment took place on the evening of November 11, 2014. Stoker and Lerman were the only two people in the office building at the time. Stoker testified that during the appointment Lerman did not cover her exposed body parts with a blanket as he did during the previous appointments. He also pulled her bottom undergarments down to her knees, something he had not done before. Stoker testified that Lerman pulled her top down, exposing her breasts, and massaged her breasts and nipples with both hands. Stoker reported that she said nothing at this point, but "shut down" and "was scared to death" that Lerman "could do much more if I tried to fight back."

         ¶4 Lerman next massaged Stoker's buttocks, the backs of her thighs, and her groin. Stoker testified that she told Lerman she was not comfortable when he was rubbing her upper thigh. Lerman, however, continued with the massage and inserted his fingers into Stoker's vagina. Stoker testified that she "told him that was too much and it was time to stop." Stoker testified that after removing his fingers Lerman apologized and stated, "When I'm working on you and your body, it makes it so difficult to keep my mind in the right place and focused on massaging."

         ¶5 Lerman then began rubbing Stoker's lower back, but after a short amount of time he returned to her groin area and began to rub her clitoris. Stoker testified that she felt stuck because she "had told him to stop once and he hadn't stopped so [she] didn't know what could happen next." Lerman rubbed her clitoris for three to four minutes until Stoker orgasmed. Lerman then stated, "There we go. We got it. We got it, " and patted Stoker on the buttocks. The massage continued without further event for twenty more minutes. Stoker testified that she felt threatened and feared that if she stood up to Lerman she "had no chance" because he was so much larger than her. Stoker testified that she was 115 to 120 pounds at the time of the incident.

         ¶6 Stoker left Lerman's office and called her stepfather and husband as she drove across town to the church where her husband was in class. Her stepfather told her that she needed to write down what had happened to her and call the police. Stoker wrote down her account on an envelope and called the police from the church parking lot, where she met her husband. The police took her statement at the church and then brought her to the station for an additional interview. Later that same night, the police brought Lerman into the police station for questioning. On December 9, 2014, the county attorney filed an Information with the District Court charging Lerman with Sexual Intercourse Without Consent.

         ¶7 Stoker's husband and stepfather both testified at trial that Stoker was emotionally distraught and crying immediately after the massage. Her stepfather testified that when he saw her a couple of days later she was still devastated and could hardly talk to him. She could not sleep and was having nightmares. Her stepfather also testified that after the incident she could hardly leave the house and was afraid to go out and do things. He noted that she was "depressed in her demeanor" and ...

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