State v. Bauer1/15/2002
7, 229 Mont. 472, 7, 2 P.3d 242, 7; State v. Olson (1997), 286 Mont. 364, 371, 951 P.2d 571, 575-76. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141. The credibility of witnesses and the weight to be given to their testimony are determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Olson, 286 Mont. at 371, 951 P.2d at 576 (citing State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686). If evidence conflicts, it is within the province of the trier of fact to determine which will prevail. Olson, 286 Mont. at 371, 951 P.2d at 576. This Court has held repeatedly that a conviction for a sex offense may be based entirely on the uncorroborated testimony of the victim. Olson, 286 Mont. at 372, 951 P.2d at 576; State v. Gilpin (1988), 232 Mont. 56, 70, 756 P.2d 445, 453); State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458. "Only in those rare cases where the story of a witness is so inherently improbable or is so nullified by material self-contradiction that no fair-minded person could believe it may we say no firm foundation exists for the verdict based on it." Maxwell, 198 Mont. at 503, 647 P.2d at 351 (quoting State v. Gaimos (1916), 53 Mont. 118, 126, 162 P. 596, 599).
Bauer argues that the evidence produced at trial was insufficient to support the jury's verdict of guilty on one count of incest. Amanda's testimony served as the basis for conviction and Bauer asserts Amanda's story was inherently incredible due to internal contradictions. Specifically, Bauer claims a discrepancy in Amanda's testimony on direct examination and cross-examination concerning the number of times Bauer had sexual intercourse with her on December 24, 1999. Bauer also points out that Amanda testified she left her apartment on Christmas Eve and sought out a friend who lived nearby, but that the friend testified that she did not move to the apartment near Amanda until after the Christmas holidays. And finally, Bauer notes Amanda testified she called her mother on the telephone on Christmas Eve, when she actually called her mother during the events of January 21, 2000.
Contrary to Bauer's contentions, however, we note no inconsistency in the essential elements of Amanda's pre-trial statements and her trial testimony. The trial transcript reveals that the prosecution failed to ask Amanda during direct questioning about the second rape on Christmas Eve, and her testimony on cross-examination regarding this second violation remains consistent with her pre-trial statements. While Amanda may have exhibited some confusion at trial about details involved in the two incidents of December 24 and January 21, she testified very clearly that her father engaged in sexual intercourse with her on December 24. Although Bauer testified that the sexual acts did not occur, the jury determined that Amanda's version of the December 24 incident was more credible, and its verdict reflects that determination.
To establish the essential elements of the offense of incest, the State was required to prove that Bauer knowingly had sexual contact or sexual intercourse with a descendant. Section 45-5-507(1), MCA. Bauer does not dispute that Amanda is his natural daughter, and does not contend that Amanda failed to testify that Bauer had sexual contact with her. We conclude the evidence presented was substantial and the District Court did not abuse its discretion by denying Bauer's motion for a directed verdict.
ISSUE 2
Did the District Court abuse
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