State v. Lerman, 2018 MT 5 (Jan. 9, 2018) (Baker, J.) (5-0, aff’d)
Issue: Whether the state presented sufficient evidence to prove the elements of penetration and force in conviction for sexual intercourse without consent.
Short Answer: Yes.
Facts: Kelsey Stoker went to Randall Lerman, a licensed massage therapist in Dillon, for four appointments to help alleviate lower back pain. During her appointments, Stoker left on her undergarments, which included a cap-sleeved undershirt and spandex shorts that went almost to her knees.
At the fourth appointment, Lerman pulled her shorts down to her knees, and pulled her top down, exposing her breasts. He massaged her breasts and nipples, her buttocks, the back of her thighs, and her groin. He then inserted his fingers into Stoker’s vagina, at which point she told him to stop. Shortly after, he returned to massaging her groin area and began to rub her clitoris until Stoker had an orgasm. She was too frightened to say anything.
Upon leaving Lerman’s office, Stoker called her stepfather and husband as she drove across town. Both testified she was emotionally distraught and crying. She called the police and told them what had happened. Lerman was charged with sexual intercourse without consent.
Procedural Posture & Holding: After the state rested its case, Lerman moved to dismiss for insufficient evidence. The district court denied the motion, and the jury found Lerman guilty. The district court sentenced him to 40 years in prison, with 35 years suspended. Lerman appeals, and the Supreme Court affirms.
Reasoning: Lerman argues that without evidence of either bodily injury or threats of bodily injury, the state did not produce sufficient evidence of force to support a conviction. The state relied on both digital penetration and clitoral rubbing to prove penetration. Stoker testified that she objected to Lerman’s touching before each act. The outer portions of the vulva necessarily are penetrated, “however slight[ly],” when the clitoris is touched. Viewed in a light most favorable to the prosecution, a rational trier of fact could conclude that the totality of the circumstances communicated a threat to Lerman’s victim: the two were isolated in an empty office building after hours, Lerman was much larger than his victim, and Lerman persisted in his assault despite Stoker’s repeated objections.