Britton v. State, 5617

• Decision Date: 21 April 1982
• Docket Number: No. 5617,5617
• Parties: Jack B. BRITTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 935

643 P.2d 935

Jack B. BRITTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5617.

Supreme Court of Wyoming.

April 21, 1982.

Robert W. Costin, Laramie, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., Allen C. Johnson, Senior Asst. Atty. Gen., Terry J. Harris, Legal Intern, Cheyenne, and Kennard F. Nelson, Deputy Albany County Atty., Laramie, for appellee.

BROWN, Justice.

Mr. Britton was convicted after a jury trial of violating § 6-4-302, W.S. 1977, first-degree sexual assault. He appeals from the conviction, alleging error in the trial court's failure to give a proposed instruction, and alleging error in the trial court's charge to the jury before deliberations were to begin.

We will affirm.

I

Appellant presented his proposed Instruction A both at pretrial conference and at the close of the evidence. The trial judge refused to give the proposed instruction, and appellant objected. He does not argue plain error on appeal, as he apparently thinks he adequately preserved his objection.

Rule 31, W.R.Cr.P., provides that the giving of instructions and lodging of objections thereto is to be done pursuant to Wyoming Rules of Civil Procedure. Rule 51, W.R.C.P., provides:

" * * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * * "

The rule exists so that the trial court has the opportunity to correct or clarify possibly erroneous instructions. Downs v. State, Wyo., 581 P.2d 610 (1978). Appellant objected to the trial judge's refusal to give his proposed Instruction A; however, he had a duty to make a specific legal objection if he wanted to preserve the issue for appeal, which he failed to do. Schwager v. State, Wyo., 589 P.2d 1303 (1979); and Leitel v. State, Wyo., 579 P.2d 421 (1978). The record is devoid of appellant's stating any grounds for the objection, and for that reason, the objection was inadequate. The plain error rule therefore applies on appeal. Ketcham v. State, Wyo., 618 P.2d 1356 (1980). Rule 49(b), W.R.Cr.P., provides that plain error or defects affecting substantial rights may be noted although they were not brought to the attention of the court.

The requirements for plain error are that the record must be clear as to what happened at the trial level, the error must involve a clear rule of law, and the facts of the case must clearly violate the rule. Once these requirements are met, the appellant still bears the burden of showing that a substantial right was adversely affected. Brown v. State, Wyo., 581 P.2d 189 (1978); and Daellenbach v. State, Wyo., 562 P.2d 679 (1977). The plain error rule, as this court has stated many times, is to be applied sparingly and only in exceptional circumstances. Ketcham v. State, supra; and Hampton v. State, Wyo., 558 P.2d 504 (1977). In this case there was no error at all, and certainly no clear violation of a clear rule of law.

Part of appellant's proposed Instruction A read:

"The State has offered evidence that the complaining witness, the female person involved, was forced to engage in sexual intercourse.

"The defendant has offered evidence that confirms the fact of intercourse and penetration with the complaining witness, but that she was willing and consented to this act." (Emphasis added.)

The trial judge correctly refused to give this instruction, which in effect would have told the jury how to decide the case. The instruction asserts that the ultimate factual question in this case, the question of the victim's consent, had already been proved, and the trial court would certainly have been invading the province of the jury had it given the instruction. As we said in Meyer v. Kendig, 641 P.2d 1235 (Wyo.1982), an opinion or evaluation of the ultimate issue to be decided by the jury is inadmissible, regardless of how it is presented. We can well see that a defendant would be delighted to have such an instruction given to the jury, it being the virtual equivalent of the granting of a motion for acquittal.

The rest of appellant's proposed Instruction A read:

"You are instructed that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, or where she is overcome by superior strength or paralyzed by fear.

"You are further instructed that all she is required to do is to resist until such time as she is convinced something of a more serious nature will happen; she is then given by law the right to submit.

"You are further instructed that fear must be of death or severe bodily harm and she must have a reasonable apprehension and her fear must not be fanciful, but substantial."

Appellant contends that failure to give proposed Instruction A was also error because the instructions must say that the victim has to be in fear of death or severe bodily harm before she may stop resisting the assault.

In addition to the fact that the first part of the instruction was incorrect, appellant overlooks the fact that the principles embodied in the latter part of his proposed Instruction A are covered by other instructions. Even had the whole instruction been correct, a trial court may refuse proposed instructions which are correct as long as the principles embodied in the requested instructions are covered by other instructions. Scheikofsky v. State, Wyo., 636 P.2d 1107 (1981); and Campbell v. State, Wyo., 589 P.2d 358 (1979). In this case, the trial court gave Instruction No. 6 on the statutory crime of sexual assault in the first degree, § 6-4-302, W.S. 1977. Part of that instruction read:

"(a) Any actor who inflicts sexual penetration on a victim commits a sexual assault in the first degree if:

"(i) The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force."

The trial court also gave Instruction No. 7 on the necessary elements of the crime, which read in pertinent part:

"3. The Defendant caused submission of * * * (the victim) through the actual application of physical force which was reasonably calculated to cause submission of * * * (the victim)."

These instructions speak to the objective standard which applies for the jury to assess the reasonableness of the victim's belief that an assailant is going to harm her. They accomplish the same purpose as does the latter part of appellant's proposed Instruction A. As we said in Heinrich v. State, Wyo., 638 P.2d 641 (1981), the jury must be instructed on the law in language it can understand. We also said there that an instruction which followed the statutory language of § 6-4-302, W.S. 1977, was sufficient to instruct the jury on force. Here, during cross-examination by defense counsel, the victim testified that she had been in fear of serious bodily harm. Further, there is no evidence in the record that the victim ever discontinued her resistance. Consequently, the proffered instruction could not have been given because it was not supported by any evidence. State v. Selig, Wyo., 635 P.2d 786 (1981).

II

The record showed that while the jury was deliberating, they sent a note to the judge:

" 'We need to know if reasonably calculated would include a thin-skulled doctrine, i.e.: If the force the Defendant used was less than he would or would have reasonably calculated to be necessary to rape a "normal victim "? Then: Since his "victim" could not resist in the same way, does this excuse him from first degree sexual assault?' "

The testimony showed that the victim had a bad back, and that after she was forced to lie on her back, she could not get back up, which apparently led the jury to ask the "thin-skulled" question. When the question was brought to the trial judge, he advised both counsel of it. He also informed counsel that he intended to have the bailiff tell the jury that he could not answer the question and that they would be bound by the instructions as given them. The judge then asked if that was satisfactory with counsel, and both replied that it was. The judge also asked appellant if that procedure was satisfactory with him, and appellant replied that it was. Appellant now claims that the question from the jury showed that it was confused and did not understand Instruction No. 10, which stated:

"Consent by the person assaulted is a defense to the charge of sexual assault in the first degree. The defense of consent involves two separate elements:

"1. That * * * (the victim) did voluntarily consent to the act by word or conduct; and

"2. That * * * (the victim) had the present ability to consent.

"Submission alone may not be consent.

"The State has the...