State v. Bingham

Decision Date15 June 1989
Docket NumberNo. 16940,16940
Citation116 Idaho 415,776 P.2d 424
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Kurtis L. BINGHAM, Defendant-Appellant.
CourtIdaho Supreme Court

Don L. Harding, Soda Springs, for defendant-appellant.

Jim Jones, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

JOHNSON, Justice.

This is a criminal case in which Kurtis Bingham has appealed his convictions and sentences for statutory rape, lewd conduct with a minor and kidnapping in the first degree. Bingham has presented a multitude of issues. We have found most to be without merit. The issues that have enough merit to warrant discussion concern: (1) the failure of the trial court to grant Bingham an opportunity to have the victim examined by an expert witness to determine her competency and ability to receive and relate facts, (2) the admission of statements of the victim as excited utterances, (3) the admission of the opinion of a doctor on the question of whether penetration was with a penis, (4) the effectiveness of counsel in defending Bingham, (5) the refusal of the trial court to allow Bingham to call the victim as a witness at the hearing on his motion for a new trial, (6) the sentencing of Bingham for both rape and lewd conduct and (7) the excessiveness of the sentences. We affirm Bingham's convictions, his sentences for rape and kidnapping and the denial of his motion for a new trial. We vacate his sentence for lewd conduct on the ground that there is insufficient evidence in the record to establish that the acts alleged in the charge of lewd conduct occurred separately from the rape.

I.

THE BACKGROUND AND PRIOR PROCEEDINGS.

The victim in this case was a girl who was twelve years old at the time of the events in question. She was retarded and had the mental age of a five year old. On the July evening in question, the victim went with her older sister to visit a friend of the sister. While the sister was visiting with her friend, the sister asked the victim to go and sit in the car that was parked nearby. Instead, the victim wandered to an apartment house on the same street. There she encountered Bingham who was sitting outside his basement apartment drinking beer and listening to music that was playing in his apartment. Ten to fifteen minutes later the sister went looking for the victim. She heard loud music and what she thought were screams. By looking through a basement window that was partly obscured with curtains, she saw the lower portion of what she thought were a man's legs on a bed in Bingham's apartment. She thought the legs were pointed downward and were moving up and down. After going downstairs to knock on the door of Bingham's apartment, she returned to the window and saw what she thought was a nude man walking across the living room of the apartment. She then returned with three of her friends and knocked on the door of the apartment again. After a few minutes Bingham, wearing a pair of dark shorts, opened the door. From the doorway the sister could see the victim sitting on the bed with the bed covers pulled up to her chest. When the sister went to the bed, she found that the victim had no clothes on and was crying. The sister got the victim dressed and took her to the car. The sister's three friends testified at trial that Bingham told them that he thought the victim "was old enough."

Bingham testified at trial that the victim had asked him if she could listen to the music that was playing in his apartment, and that he said she could. He stated that about five minutes later he went inside, told the victim to leave and went into the bathroom. He said he had been in the bathroom for four or five minutes when he heard a loud banging on the door to his apartment. He maintained that he did not know that the victim went into the bedroom and that he did not have any sexual contact with her.

As the sister was taking the victim to the car, the victim was crying and shaking. A police officer arrived at the scene a short time later. The victim told the officer that she had gone downstairs with a "boy" to listen to music and that the boy had hit her and pushed her back. The officer then took the victim and her sister to the hospital so that the victim could be examined. The victim's mother arrived a few minutes later, and the officer resumed her questioning of the victim in the presence of the mother. The victim's mother testified at trial that the victim was upset when she arrived. The victim told the officer that the boy made her take her clothes off and that he took his clothes off. She told the officer that the boy had pushed her back and kissed her on the cheeks. She said the boy had squeezed and twisted her breasts. She indicated to the officer that the boy had touched her on her stomach, her thighs, her hips and around her genitals. She said the boy had laid on her and jumped on her. She told the officer that she had said "no," loudly several times. At trial the victim's mother corroborated what the officer said the victim had told her at the hospital.

At the hospital the victim was examined by a family doctor, Dr. Smith. The victim told Dr. Smith that a boy had laid on top of her. She said the boy had hurt her chest and her legs. She said the boy had made her take her clothes off. The doctor found a reddened or irritated area between the victim's vagina and her anus. The victim indicated that this area was very tender. The irritated area extended into the vaginal opening slightly, but did not extend as far as the hymen. Dr. Smith testified, without objection, that based on his examination of the victim and the history that she had given him that it was his opinion that there had been an "attempted penetration" of the victim's vagina. He testified that the most likely cause of this attempted penetration was a penis.

Dr. Smith also performed a rape evidence kit examination of the victim. After Bingham was arrested the following day, a rape evidence kit examination was conducted on him also. The clothing of both the victim and Bingham as well as the bed clothes were also examined. No evidence of rape was revealed from any of these examinations.

Prior to Bingham's trial his court-appointed attorney moved "for leave to employ a child psychologist or some other qualified person to examine [the victim] to evaluate and report on her ability and competency to receive impressions of facts and relate them accurately." The trial court denied the motion.

Before the selection of the jury began at the trial of this case, it was revealed the trial judge had represented the victim's mother several years before, while he was a practicing attorney. After a full disclosure of the nature of the trial judge's representation of the victim's mother, Bingham decided not to disqualify the trial judge.

The victim did not testify at Bingham's trial. Her mother and the investigating police officer were allowed to testify over Bingham's objection as to the statements that the victim had made to them concerning what happened to her in Bingham's apartment.

The jury found Bingham guilty of rape, lewd conduct with a minor and kidnapping in the first degree. Bingham objected to being sentenced for both rape and lewd conduct on the ground they were not separate acts. The trial court sentenced Bingham to ten-year indeterminate sentences on the rape and lewd conduct convictions, to be served concurrently, and retained jurisdiction for 120 days. Bingham received an indeterminate life sentence on the kidnapping conviction, to be served consecutively to the sentences for rape and lewd conduct. The trial court also retained jurisdiction as to the life sentence. Bingham was sent to the North Idaho Correctional Institution in Cottonwood so that he could participate in the sexual offender program there.

After the sentencing, Bingham secured new counsel before the review by the trial court following the expiration of the period of retained jurisdiction. Bingham then moved for a new trial. Among the grounds stated in the motion were newly discovered evidence and ineffective assistance of counsel.

At the conclusion of the period of retained jurisdiction, the trial court reduced Bingham's sentences to five years indeterminate on the rape and lewd conduct convictions, to be served concurrently, and to probation for life on the kidnapping conviction. The trial court denied Bingham's motion for a new trial. Bingham has appealed the convictions, the sentences and the denial of a new trial.

II.

DENIAL OF EXAMINATION OF VICTIM.

Bingham asserts that the trial court should have granted his motion for leave to employ a child psychologist or other expert to examine the victim and to report on her competency and ability to receive impressions of facts and to relate them accurately. Under the circumstances of this case, we conclude that the trial court did not abuse its discretion in denying this motion.

Bingham was determined to be an indigent person and counsel was appointed to represent him. Under I.C. § 19-852(a)(2) Bingham was entitled "to be provided with the necessary services and facilities of representation (including investigation and other preparation)." In State v. Olin, 103 Idaho 391, 395, 648 P.2d 203, 207 (1982), this Court provided the standard against which the trial court's decision to deny services and facilities of representation is to be measured:

It is thus incumbent upon the trial court to inquire into the needs of the defendant and the circumstances of the case, and then make a determination of whether an adequate defense will be available to the defendant without the requested expert or investigative aid. If the answer is in the negative, then the services are necessary and must be provided by the state. Such a review necessarily involves the exercise of the sound discretion of the trial court.

Bingham stated in his motion that the reason he was requesting leave to employ an...

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    ...defendant a right which was essential to his defense and which no court could or ought to permit him to waive.' " State v. Bingham 116 Idaho 415, 423, 776 P.2d 424, 432 (1989) (citations omitted). See also State v. Higgins, 122 Idaho 590, 596, 836 P.2d 536, 542 (1992). An alleged erroneous ......
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