516 P.2d 592 (Wyo. 1973), 4236, Gonzales v. State

• Docket Nº: 4236.
• Citation: 516 P.2d 592
• Opinion Judge: [9] MR. JUSTICE GUTHRIE DELIVERED THE OPINION OF THE COURT.
• Party Name: Julio GONZALES, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Attorney: [8] William R. Thatch, Lovell, for appellant. Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, Robert A. Gish, Co. Atty., Basin, for appellee.
• Case Date: December 11, 1973
• Court: Supreme Court of Wyoming

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516 P.2d 592 (Wyo. 1973)

Julio GONZALES, Appellant (Defendant below),

v.

STATE of Wyoming, Appellee (Plaintiff below).

No. 4236.

Supreme Court of Wyoming.

December 11, 1973

William R. Thatch, Lovell, for appellant.

Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, Robert A. Gish, Co. Atty., Basin, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This appeal is prosecuted from the judgment and sentence of the trial court based upon a finding of guilt of the crime of first degree rape alleged to have been committed by the defendant upon Evelyn Marie Boelter, after 2 a. m. on October 1, 1972, in Big Horn County. Since the prosecutrix was the only witness who testified as to this actual occurrence her testimony must be examined fully to make a disposition of this case.

She was at the time 33 years old, the mother of three children, and had been divorced at the time of the occurrence. She was working at a bar in Byron, having had experience in such work.

Defendant had come into the bar shortly before closing and had been drinking. Prosecutrix had served him drinks and had rolled dice with him a couple of times 'for the music' during this period. He had come to the bar with another man, who apparently had been drinking too much, and sometime prior to the time prosecutrix left the bar defendant asked her for a ride home. She advised him she did not take anyone home. When she left the bar to drive home defendant followed her and when she climbed into the driver's side of the car defendant went to the other side of the car and got in and repeated his request

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to be driven to Lovell. She again refused, although she said she was nervous and scared at the time and she made no further protest, nor did she seek help from the proprietor or any of the five other people in the bar and drove without stopping or signalling with the horn. On the way to Lovell defendant asked her what was wrong and inquired if she felt he was going to rape her or something. At a point approximately one mile from Lovell he told her to turn off on a side road, telling her his mother lived down the road. She stopped the car several times, asking to turn back, but he told her it was only a little way farther down the road. He asked her to stop 'to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car when he 'went to the bathroom' and made no attempt to leave. When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told...