Brown v. State, 86-148

• Court: United States State Supreme Court of Wyoming
• Citation: 736 P.2d 1110
• Docket Number: No. 86-148,86-148
• Parties: Walter Joe BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Decision Date: 15 May 1987

Page 1110

736 P.2d 1110

Walter Joe BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-148.

Supreme Court of Wyoming.

May 15, 1987.

Wyoming Public Defender Program, Leonard D. Munker, Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Allen C. Johnson, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellant Walter Joe Brown was convicted by a Uinta County jury of incest and sentenced to the penitentiary for a term of not less than fifty-nine months nor more than sixty months. In this appeal he urges three issues:

"I

"Whether the district court committed error allowing testimony concerning prior bad acts of Appellant.

"II

"Whether the district court committed error by allowing the testimony of Dr. Reisinger concerning the truthfulness of the complaining witness.

"III

"Whether the district court abused its discretion in sentencing Appellant to a term of 59 to 60 months in the Wyoming State Penitentiary."

We will affirm.

By an amended information appellant was charged with sexual intrusion or sexual contact, with his fifteen-year-old daughter, in violation of § 6-4-402(a) and (b), W.S.1977 (Cum.Supp.1985) which provides in pertinent part:

"(a) A person is guilty of incest if he knowingly commits sexual intrusion, as defined by W.S. 6-2-301(a)(vii), or sexual contact, as defined by W.S. 6-2-301(a)(vi), with an ancestor or descendant or a brother or sister of the whole or half blood. * * *

* * *

* * *

"(b) Incest is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both."

At trial the victim testified that appellant, her father, had sexual intercourse with her four times and had touched her sexually without intercourse approximately twenty times. The victim could not remember the exact date of the last incident of sexual intercourse, but narrowed it down to a Monday, either the 12th or 19th of August, 1985. She fixed the time of the week as being a Monday because her mother attended art classes on Mondays.

She further testified that she did not immediately tell anyone about the incestuous relationship because she thought it was supposed to be a secret and was afraid. The victim testified that she was fifteen years of age at time of trial and that her father initiated sexual activity with her when she was eleven years old.

Over the objection of appellant the victim's half-sister testified that appellant had committed incest upon her and described a course of conduct involving sexual intercourse or sexual contact over a period of several years. This witness is the adopted daughter of appellant and the half-sister of the victim. The victim's half-sister further testified that when she was about six years old her adoptive father started to sexually abuse her, and first had sexual intercourse with her about two years later.

I

Appellant contends that the testimony of the victim and her half-sister implicating him in prior sexual abuse was improperly admitted into evidence and that Rules 403 and 404, Wyoming Rules of Evidence, prohibit such testimony.

Rule 404, W.R.E., provides, in part:

"(a) Character evidence generally.--Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

" * * *

"(b) Other crimes, wrongs, or acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) ¹ Elliott v. State, Wyo., 600 P.2d 1044 (1979), a sexual assault case, is similar to the case before us. In that case the victim's older sister testified regarding three prior instances of sexual assault involving appellant, the victim's stepfather, and herself. There we said:

"Our analysis of cases from other jurisdictions leads to the conclusion that in recent years a preponderance of the courts have sustained the admissibility of the testimony of third persons as to prior or subsequent similar crimes, wrongs or acts in cases involving sexual offenses. Among the grounds relied upon for the admissibility of such evidence is that it is admissible to show motive or to show plan, with various phrases being used by the courts to describe those concepts. [Citations.]

"We note that in cases involving sexual assaults, such as incest, and statutory rape with family members as the victims, the courts in recent years have almost uniformly admitted such testimony. [Citations.] The description of the events by the victim's sister here, together with the testimony of the victim, persuades us that the conduct described was sufficiently similar to pass the test of relevancy under Rule 404(b), W.R.E., and was admissible for the purpose of proving the motive of the appellant.

"According to these other courts, the remoteness of the other conduct is a factor to be considered in determining the question of relevancy. In this instance the testimony of the older sister described a time frame of not more than three years prior to this instance, which would not inhibit admissibility of her testimony as involving acts that are too remote.

"As we have indicated, some courts in comparable circumstances have relied upon the common design or plan manifested by the similarity of the prior crimes, wrongs, or acts to justify their admissibility. That reasoning well might fit these circumstances. The conduct described by the witnesses was sufficiently similar to meet that requirement as set forth in the decisions of other courts. In this particular instance, however, we conclude that admissibility of the evidence is justified as proof of motive. In Valerio v. State, Wyo., 429 P.2d 317 (1967), we cited several cases as having held that 'testimony about one's previous criminal activity can be introduced in the current trial if the purpose of such introduction is to establish identity, guilty knowledge, intent or motive.' * * * " Id., at 1047-1048.

See also, Watson v. State, 180 Ga.App. 82, 348 S.E.2d 557 (1986).

In State v. Stevens, 93 Idaho 48, 454 P.2d 945, 950 (1969), the court said:

" * * * Motive is generally defined as that which leads or tempts the mind to indulge in a particular act. 21 Am.Jur.2d Crim.Law § 85, p. 166; Black's Law Dictionary (Rev. 4th ed.). It is distinguishable from intent, which is the purpose to use a particular means to effect a certain result. People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1901). * * *"

In a case such as the one before us, intent is not an issue to be established by the testimony of the older sister. Motive obviously could be. As the New York Court of Appeals said:

" 'Motive,' * * * is an inducement, or that which leads to tempt the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt." People v. Lewis, 275 N.Y. 33, 9 N.E.2d 765, 768 (1937).

See also, People v. Elkhatib, Colo., 632 P.2d 275 (1981); State v. Segotta, 100 N.M.App. 18, 665 P.2d 280 (1983); Rodriguez v. State, Tex.Cr.App., 486 S.W.2d 355 (1972). In this latter case the court said:

"The term motive is used to express different concepts. As used here, motive refers to an emotion that would provoke or lead to the commission of a criminal offense. Evidence to show motive is the circumstantial evidence that would appear to cause or produce the emotion. When it is said that evidence going to show motive is admissible, it is meant that the circumstantial evidence is admissible that would appear to cause or produce the emotion that would in turn provoke or incite the commission of the criminal offense. See 1 Wigmore, Evidence, § 117 at 558 (3d ed. 1940) and 2 McCormick and Ray, § 1534 at 382 (2d ed. 1956)." Id., at 358.

Incest involves aberrant sexual behavior--it is a type of sexual deviancy that is difficult to understand. Therefore, a trier of fact might well wonder what would motivate the accused to behave in such bizarre manner. The evidence of prior sexual acts then was probative under the motive exception because of the unusual sexual behavior involved. It seems, however, that motive is usually thought of as the reason the crime was committed. If motive equates to reason, then perhaps appellant's motive for having sexual relations with his younger daughter was that the older daughter was no longer available and the younger daughter was now taking her place. The older daughter's testimony would be admissible for this purpose.

If the accused had a predilection to deviant sexual practices with young female relatives, it would not be unreasonable for the trier of fact to determine that he had a motive to commit the acts complained of by the victim in this case.

Consistent with our holding in Elliott, we determine the admission of testimony regarding conduct of appellant described by the victim and her older sister was justified as proof of motive and was sufficiently similar to meet the relevancy requirements of Rule 404(b).

Here, appellant first sexually assaulted the victim and her sister when they were children. He first assaulted both girls by sexual contact; after a year or more he subjected them to sexual intercourse and to oral sex. Appellant told both girls that he was engaging them in sexual relations to show them how much he...