Submitted on Briefs: October 25, 2017
Court of the Fifth Judicial District, In and For the County
of Beaverhead, Cause No. DC 14-3605 Honorable Katherine M.
Bidegaray, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Moses Okeyo,
Assistant Appellant Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy K
Plubell, Assistant Attorney General, Helena, Montana
Fitch, Beaverhead County Attorney, Dillon, Montana
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.
AND FACTUAL BACKGROUND
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.
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."
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."
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.
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.
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 ...