Story v. State, 85-158
| Decision Date | 17 June 1986 |
| Docket Number | No. 85-158,85-158 |
| Citation | 721 P.2d 1020,65 A.L.R.4th 1011 |
| Parties | John H. STORY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Gerald R. Mason (argued) and Van Graham, Mason & Twichell, Pinedale, for appellant (defendant).
A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Sylvia Lee Hackl (argued), Sr. Asst. Atty. Gen., and Thomas A. Maurer, Asst. Atty. Gen., for appellee (plaintiff).
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
Appellant, a physician, was convicted of six separate charges involving sexual assault of patients and sentenced to 12 to 15 years on each of three charges, 15 to 20 years on each of two charges, and 10 to 15 years on the final charge, the sentences to run concurrently. The questions presented for our determination in this appeal are whether there was sufficient evidence to sustain the conviction of first degree rape of TT; whether delay in charging the crimes deprived appellant of due process of law; whether error occurred in the admission of an out-of-court experiment, a tissue allegedly containing semen, and testimony of a rebuttal witness; whether there was error in evidentiary rulings, error in limiting cross-examination, surrebuttal, and evidence concerning appellant's theory of defense; and whether there was prosecutorial misconduct and error in instructions to the jury.
We reverse one of the convictions and affirm the other five.
Appellant, John H. Story, is a physician who was engaged in the general practice of medicine in Lovell, Wyoming. In his practice he did pelvic examinations of women in the examining room of his office. The pelvic examinations by appellant consisted of a visual examination of the vaginal tract with an instrument called a speculum and a manual check of the ovaries and uterus. Appellant performed the manual portion of the examination by inserting one to three fingers into the vagina while pressing on the abdomen with the other hand. During the examination the patient was undressed, lying on an examining table with her feet in stirrups, knees bent, and covered with a sheet. In this position the patient could Appellant was charged with forcible rape of HF, TT, WH, AT, CP, and EMc, in violation of § 6-63, W.S.1957, which provided in pertinent part:
see only the head and shoulders of Dr. Story as the examination was performed. It was during pelvic examinations that the crimes of which appellant was convicted occurred.
He was charged with forcible rape of EM, GJ, and AD, contrary to § 6-4-303(a)(vii), W.S.1977, which provided:
Appellant was found guilty of forcible rape of TT and CP contrary to § 6-63, W.S.1957, supra; guilty of a lesser-included offense, assault and battery with intent to commit rape, of HF, WH, and AT, contrary to the provisions of § 6-64, W.S.1957, which provided:
"Attempt to commit rape.--Whoever perpetrates an assault or assault and battery upon any female with intent to commit the crime of rape, shall, upon conviction, be imprisoned in the penitentiary not less than one year nor more than fifty years";
and guilty of second degree sexual assault of EM contrary to § 6-4-303(a)(vii), W.S.1977, supra. Appellant was found not guilty with respect to the charges of sexual assault of EMc, GJ, and AD.
The evidence in support of the convictions of sexual assault upon CP, HF, WH, AT, and EM demonstrated, with some minor variations, a pattern of action. Three of the victims testified that Dr. Story informed them that he would be using a new instrument, a round tube, to dilate them and facilitate the exam. He then inserted his penis into the vagina of all but one of the victims. All but one of the victims observed Dr. Story's erect penis out of his unzipped trousers. Some of the victims said Dr. Story exposed himself to them by moving to the side of the examining table. All but one of the victims said Dr. Story penetrated them. When asked about their feelings and why some had not resisted and had not reported what had happened, they said they trusted Dr. Story, that they were shocked, afraid, and did not want to talk about it.
Thus, WH testified:
AT stated:
CP, who lifted the sheet and observed Dr. Story, stated:
When CP was asked why she told no one other than her mother, she stated, "I was afraid * * * no one would believe me."
EM testified:
A rape conviction may be upheld upon the testimony of the victim alone. Brown v. State, Wyo., 581 P.2d 189, 191 (1978). In considering upon appeal the question of the sufficiency of evidence to support a jury verdict of guilty, we review the evidence, both direct and circumstantial, in a light most favorable to the State ascribing to that evidence all reasonable inferences that may fairly be drawn therefrom. Smith v. State, Wyo., 564 P.2d 1194, 1198 (1977). An inference is a process of reasoning by which a fact or proposition is deduced fairly and logically from other facts proven or admitted. An inference is truly evidence. The weight to which it is entitled depends upon the facts and circumstances of each particular case, and that is ordinarily for the jury. Kobielusz v. Wilson, Wyo., 701 P.2d 559 (1985). When considering sufficiency of evidence, we will not interfere with the jury's findings of fact and its resultant verdict if they are supported by any substantial evidence. Smith v. State, supra.
TT was a 15-year-old high school sophomore who, on April 17, 1968, visited Dr. Story because of abdominal pains with the onset of her menstrual cycle. She arrived after school, around 3:00 p.m., waited about an hour, then was taken to the examining room. She removed all her clothes and was sitting on the examining table when Dr. Story entered the room. At his instructions she lay down on the table, had her feet in the stirrups, and was draped tight across her knees for the examination. He began the examination by palpating her abdomen and inserting an instrument into her vagina so that he could see inside. She was then aware that he was examining her with a hand covered with a plastic glove which was followed by something she described as "different." With Dr. Story standing at the end of the table, she felt an object that she described as "very, very warm and soft and it was bare flesh * * * pushing inside of me." TT said it was very painful, and she began crying. Dr. Story then removed the object a little bit and pushed it in farther, and it hurt and she was crying and sobbing. He then pulled it back out and pushed it in again a little farther and suddenly she felt warm fluid go down her bottom. Dr. Story then grabbed the paper underneath her, ripped it, wadded it, and threw it into the garbage. He then wiped her off. As Dr. Story left the room, TT noted that he looked different than when he had entered because his shirt was straight and his pants were higher. As he left he said, "You did real good." "Q. Now then do you know what the object was that Dr. Story inserted in you that day?
TT, being 15 years of age, had never had a sexual experience nor had she seen a naked man. She did not know what a penis was and did not then know she had been sexually assaulted. She was aware, however, that the pelvic examination he had just performed was different than one Dr. Story had performed before. Approximately seven years later, TT was married and became aware that she had been assaulted by Dr. Story. In testifying she was asked:
Dr. Story testified that a...
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