and Submitted: February 13, 2019
FROM: District Court of the Fourth Judicial District, In and
For the County of Missoula, Cause No. DC 15-605 Honorable
Karen S. Townsend, Presiding Judge
Appellant: Chad Wright, Appellate Defender, Koan Mercer
(argued), Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Mardell
Ployhar (argued), Assistant Attorney General, Helena,
Montana, Kirsten Pabst, Missoula County Attorney, Suzy
Boylan, Brian Lowney, Deputy County Attorneys, Missoula,
Jeremiah Shea Justice
Appellant Nathaniel J. Lake appeals the Judgment of the
Fourth Judicial District Court, Missoula County, finding Lake
guilty of attempted sexual intercourse without consent, a
felony, in violation of § 45-5-503, MCA. We address the
following issue on appeal:
Whether the District Court erred by applying
Montana's Rape Shield Law to exclude evidence of the
presence of unidentified sperm cells that remained on
B.J.'s underwear after laundering when Lake sought to
introduce such evidence to rebut the State's explanation
that laundering accounted for the absence of Lake's DNA
on the underwear.
We reverse and remand for further proceedings consistent with
AND FACTUAL BACKGROUND
In 2012, B.J. met Lake while she was volunteering at the
Union Gospel Mission (Mission) in Missoula. Lake was a
homeless individual who lived near the river in McCormick
Park in Missoula. Prior to the instant charges, Lake had been
homeless in Missoula for over a decade.
As a volunteer, B.J. took an interest in helping Lake obtain
social services to acquire a home. From 2012 to 2014, B.J.
took Lake to appointments to obtain housing and mental health
services, worked with Lake to improve his hygiene, washed and
brought him additional clothes and bedding, and occasionally
paid for hotel rooms for Lake to stay in during winter
weather. B.J. and her family also attended Lake's
mother's funeral in early 2014.
B.J. testified that in the spring of 2014, Lake began
exhibiting sexual behavior toward her for the first time.
During the first instance, B.J. alleged that Lake pinned her
up against some bushes near his camp, proceeded to grind on
her, exposed his penis, and touched her breasts. B.J.
testified that she later confronted Lake about the incident,
and Lake repeatedly apologized. Despite the incident, B.J.
testified that she continued to help Lake because she felt
like she had invested too much time to give up on him,
especially considering the recent death of his mother and his
general lack of a support system.
By June 2014, Lake obtained an apartment through B.J.'s
assistance. B.J. helped Lake furnish it with her family,
friends, and the help of the Mission. B.J. visited Lake's
apartment once or twice a week to bring him food and to check
up on him. B.J. testified that in November 2014, Lake
initiated a second incident where he backed B.J. up against a
door, grinded up against her, and exposed himself. Despite
this second incident, B.J. testified she did not stop helping
Lake because she believed Lake did not get out of his
apartment regularly, and he lacked a support system.
B.J. testified she entered counseling for depression based on
the two prior incidents with Lake. Around February 2015, B.J.
told her husband about the incidents. B.J. testified that her
husband immediately asked that she cease all contact with
Lake. Despite her husband's request, B.J. continued
helping Lake and checking up on him at his apartment.
B.J. testified that in July 2015, she visited Lake at his
apartment and noticed that he had stopped bathing and washing
his clothes, and that his apartment was dirty and smelled.
During the visit, B.J. testified that Lake allegedly pulled
on her arm and tried to put her into a closet. B.J. resisted
and got away from Lake. In August 2015, after Lake allegedly
left a series of threatening phone messages at her office,
B.J. broke off her association with Lake. B.J. and her
husband subsequently obtained a restraining order against
Lake. B.J. additionally testified that she stopped
volunteering at the Mission to avoid seeing Lake.
In early October 2015, B.J. encountered Lake while she was
walking along a river bank near McCormick Park during her
lunch break. B.J. and Lake talked briefly before parting. The
next day, B.J. returned to McCormick Park. After being
approached by Lake, B.J. conversed with him again. B.J. did
not report either encounter as a violation of the restraining
On October 12, 2015, B.J. went back to McCormick Park for a
third time. B.J. testified that she went to the park to tell
Lake that she would not be returning, and he would not see
her again. Upon arriving, B.J. testified that she went down
to Lake's camp. She testified that she then decided to
sit down on Lake's blanket because of a foot injury. B.J.
testified that Lake, after commenting on her appearance,
attempted to pull her shirt off. B.J. alleged that Lake then
backed her up against a log, pulled her pants down just below
her hips, placed his penis inside her underwear, and thrusted
until he ejaculated on her underwear. B.J. testified that
after Lake ejaculated, she pulled up her pants and quickly
left. B.J. testified that she went home, showered, and washed
her clothes. B.J. testified she returned to McCormick Park
for a fourth time later that day and yelled at Lake.
On October 13, 2015, B.J. went to the Missoula Crime Victim
Advocacy Office and filed a police report. She then went to
the First Step Resource Center in Missoula to obtain
antibiotics but chose not to have a sexual assault
examination done at that time. A few days later, B.J.
returned to First Step and underwent a genital examination.
B.J.'s examiner testified that B.J. had tenderness in one
genital area, and increased redness and tenderness in
another, which the examiner determined was a "possible
On October 14, 2015, Missoula Police Department Detective
Robert Franke interviewed Lake. Franke testified that Lake
acknowledged seeing B.J. during the last few days when she
came down to the river but denied he had sexually assaulted
her. Franke testified Lake suggested B.J. had made up the
allegations because of past incidents of him rejecting her
Missoula police collected B.J.'s underwear and submitted
it for testing at the Montana State Crime Lab (Crime Lab).
The Crime Lab discovered sperm cell evidence and skin cells
on the underwear and determined the sperm cell evidence was a
mixture of a major profile from an unknown male and a minor
profile from which no conclusions could be made. The Crime
Lab concluded the major profile did not match Lake's DNA.
The Crime Lab additionally determined the skin cells were a
mixture of a major profile that matched B.J.'s DNA and a
minor profile that could not be sourced. B.J.'s ...