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 |
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.
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:
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:
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.
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:
(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:
* * * "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:
* * *"
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:
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:
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...
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