Allan v. State, 7831
| Decision Date | 28 May 1976 |
| Docket Number | No. 7831,7831 |
| Parties | George L. ALLAN, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan Harris, Public Defender, Gary A. White and Stephen L. Huffaker, Deputy Public Defenders, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt Dist. Atty., and H. Leon Simon and Rimantas A. Rukstele, Deputy Dist. Attys., Las Vegas, for respondent.
A jury found the appellant, George L. Allan, Guilty of the infamous crime against nature committed upon the person of one under the age of 18 years. In accordance with the mandatory sentencing provision of NRS 201.190, subsection 1(a), 1 Allan was sentenced to life imprisonment in the state penitentiary with possibility of parole. He has appealed from his judgment of conviction, asserting several assignments of error.
On the evening of September 14, 1973, three minor boys, aged 16, 15, and 14, went to Allan's house trailer. Allan showed the boys a pornographic movie. During the movie, allan made advances toward the two older minors. After the movie, he committed acts of fellatio upon each of the older boys and asked them to commit said act upon him. They complied, and at the conclusion Allan masturbated in their presence. Allan was charged and found guilty of one crime only, i.e., the infamous act against nature, committed upon the oldest boy. At trial, both the older boys testified regarding the abovementioned events. Allan took the stand. He agreed that the three boys had come to his house trailer late in the evening; that he admitted them, but told them he was tried; and that he retired to his bedroom while they watched television. In the morning, Allan said, he found the three boys asleep in various parts of the trailer; he fixed them a breakfast, and they left. While Allan stated that he owned the pornographic movie that the boys claim he showed them, he claims that he never showed it to them. He flatly denied ever molesting the children at any time. Other defense witnesses testified as to his good character traits and that they would be willing to entrust their children in his care. In tebuttal, the State called a minor boy, aged 13 years, who testified that he had seen pornographic movies at Allan's home. A minor girl, aged 12, testified that Allan had shown her the same movie he had shown the three boys on the evening of September 14, 1973, and that Allan had then kissed her and fondled her thigns.
Allan's principal complaint on appeal is that the trial court committed prejudicial error by admitting into evidence acts other than the sole crime with which he was charged in the Information.
Allan first objects that it was error for the court to permit the boys to testify to the acts of fellatio committed by Allan on the boys, and such acts committed by them on him, except the sole act with which he was charged. He also contends that it was error to permit the boys to testify that he masturbated in their presence after the other sexual acts were completed, as such conduct is evidence of another crime, i.e., lewdness with a minor.
We do not agree. The testimony regarding the additional acts of fellatio, as well as the act of masturbation, was admissible as part of the res gestae of the crime charged. Testimony regarding such acts is admissible because the acts complete the story of the crime charged by proving the immediate context of happenings near in time and place. Such evidence has been characterized as the same transaction or the res gestae. 2
In California, the court ruled in People v. Thomas, 3 Cal.App.3d, 859, 83 Cal.Rptr. 879, 882, (1970), a case where the appellant was tried and convicted of eight different criminal counts, including rape and sodomy, that evidence concerning an additional sodomitical act not charged in the indictment but committed immediately after the offenses charged was properly received in evidence. The court, in affirming previous authority, held that when several crimes are intermixed or blended with one another, or connected such that they form an indivisible criminal transaction, and when full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.
We conclude, therefore, that, under the res gestae rule, testimony concerning the acts of fellatio, climaxed by Allan's final act of masturbation, were all admissible as part of the 'same transaction' committed by Allan on the evening in question.
We turn to consider the testimony of the minors called in rebuttal by the State. Allan flatly denied any wrongful acts with the three boys. Although he admitted ownership of the pornographic film, he said that he had never shown the movie to the minor boys. He claimed to be a virtuous man with great interest in children. He said he served as a Scout leader. Witnesses called in his behalf testified that they would be willing to leave their children in his care. In rebuttal, two minors testified that they had been invited into his motor home, and they had seen pornographic movies. The minor girl testified that, after the showing of the very film shown the boy upon whom the crime charged was committed, Allan kissed her and fondled her thighs. Though improper character witness rebuttal, this evidence was nevertheless admissible under subsection 2 of NRS 48.045, 3 as tending to show proof of a motive or a common plan or scheme wherein minors were lured to appellant's quarters and, after being 'conditioned' by the showing of his pornographic movies, subjected to his sexual desires. 4
Remaining assignments of error have been considered, and we find them meritless. Therefore, we affirm the judgment of the lower court.
Although I can concur in the result reached by my brethren, I suggest we should not re-institute use of the term 'res gestae,' which I believe the Nevada Evidence Code renders obsolete, and which I believe lacks utility. See: I J. Wigmore, Evidence, § 218 at 720--721 (3rd ed. 1940).
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Nolan v. Palmer
...with one another" that full proof by testimony of one crime could not be given without showing the others. Allan v. State, 92 Nev. 318, 321, 549 P.2d 1402, 1404 (1976). Thus, appellant failed to demonstrate that his counsel would have been able to demonstrate that the "joinder is so manifes......
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State v. Floody
...474 (Okla.Crim.App.1983) (act of sodomy performed immediately prior to rape admissible as part of "res gestae"); Allan v. State, 92 Nev. 318, 549 P.2d 1402, 1403 (1976) (in prosecution for performing fellatio with minors, evidence of other acts committed with the same boys admissible as par......
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Nolan v. State
...with one another” that full proof by testimony of one crime could not be given without showing the others. Allan v. State, 92 Nev. 318, 321, 549 P.2d 1402, 1404 (1976). Thus, appellant failed to demonstrate that his counsel would have been able to demonstrate that the “joinder is so manifes......
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McMichael v. State
...v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973); People v. Covert, 249 Cal.App.2d 81, 57 Cal.Rptr. 220 (1967); compare, Allan v. State, 92 Nev. 318, 549 P.2d 1402 (1976). Appellant contends that liberalization of the general rule of exclusion as to him results in undue prejudice because its ......