dissent">Chief Justice HOWE,

dissenting:

T27 I dissent. I do not agree that the trial court misunderstood or misperceived either the facts or the law. Section 76-5-406.5(1)(a) provides that a defendant convict, ed of the crime to which Hammond pled guilty may be considered for probation to a residential abuse treatment center if, among other things, force was not used. In sentenc*781ing, the trial court clearly addressed the issue of force and found that it had been used in the commission of the erime. The court remarked:

I think there was force involved. I think the little girl said no ... I mean otherwise what does it matter ... if someone says, no? I believe that no means no.... This girl was [thirteen] years old and she said no and he chose to ignore it.

28 The trial court had before it the pre-sentence report in which the victim stated to the investigator that she repeatedly told the defendant "no," and that "she did not want to be doing this." She stated that the defendant tried to pull down her pants, and she told him "no" several times. As if her protestation was not sufficient, she additionally told the investigator that "she reached down and put her fingers in her belt loops to keep her pants up; however, defendant was able to pull down her pants anyway, along with her underwear."

129 It is true that at the sentencing hearing, the victim was not asked and did not comment on the use of force. However, that was not necessary. The trial court had before it the presentence report with the statements made by both the victim and defendant. In his statement, the defendant admitted that the victim said "no," but that he thought she said it jokingly. The majority does not explain why the trial court could not rely on the victim's statement to the presentence investigator. In many criminal cases, the trial court at sentencing must choose between divergent statements made by the victim and the defendant. Here, the trial court accepted the statement of the victim that the defendant used force, and this court should accept it as well.

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