Brown v. State, 4866

• Decision Date: 30 June 1978
• Docket Number: No. 4866,4866
• Citation: 581 P.2d 189
• Parties: Earl Allen BROWN, aka Earl Anderson Brown, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 189

581 P.2d 189

Earl Allen BROWN, aka Earl Anderson Brown, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4866.

Supreme Court of Wyoming.

June 30, 1978.

James P. Castberg, Park County Public Defender, Powell, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Asst. Atty. Gen., and Rick Anderson and George L. Simonton, Deputy County Attys., Park County, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellant was convicted of the crime of first degree rape ¹ in the District Court of Park County, Wyoming. In pursuit of this appeal he raises three contentions which are substantially as follows:

That the court erred in its failure to provide appellant with a bill of particulars and to allow discovery and inspection as was ordered by the court.

That the evidence was insufficient to sustain the verdict.

That there was a failure to prove that the prosecutrix was placed in sufficient fear Appellant filed a motion for bill of particulars and for discovery and inspection on April 20, 1977, and the court made an order on April 25 requiring that a bill of particulars be filed, and for discovery and inspection pursuant to Rules 9(d) and 18, W.R.Cr.P. Nothing further appears in the record showing any compliance with this order. Appellant, however, apparently never did call this omission to the trial court's attention, nor did he object to going to trial because of the failure to comply with this order. In an apparent effort to escape the consequences of this failure he now asserts that this was plain error under Rule 49(b), W.R.Cr.P. To bolster this claim of error he asserts that this failure allowed the introduction of evidence which is immaterial and served only to inflame the passion and prejudice of the jury; that it raised questions of the defendant's use of drugs; and alleges that the allusion to drug use, although objections were sustained, was highly prejudicial. He also complains of photographs of sexual material, immaterial to the issues and to which objection was sustained, and that this was wrongful introduction of an inflammatory subject. Appellant nowhere indicates to this court or to the trial court that he did not know or was not fully informed of the crime with which he was charged, nor does he assert he was surprised. Inasmuch as we have heretofore observed that a bill of particulars "is designed to make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial," Booth v. State, Wyo., 517 P.2d 1034, 1036, it is apparent that absent such surprise or claim that no prejudicial error was committed. Further, this contention was not called to the attention of the trial court and will not be considered, Hampton v. State, Wyo., 558 P.2d 504, 507-508, and cases cited.

to justify her lack of resistance or finding of lack of consent.

In connection with the failure to discover and the right to inspect, the appellant contents himself with this statement:

"The appellee failed to comply with the court's order and the appellant was therefore unable to totally avoid the references to drug abuse and pornography by appellee's witnesses."

In considering this claim of error, disposal might be made on the foregoing grounds. However, because appellant does make an argument or attempt to demonstrate prejudice and plain error, we will consider this matter. Appellant, in asserting such claim, assumes a definite burden of demonstrating among other things that a substantial right has been adversely affected, and failing in which we will not entertain such claim, Daellenbach v. State, Wyo., 562 P.2d 679, 681; Hampton v. State, supra. Appellant's position in this area hangs upon a tenuous thread. Although he argues that immaterial and prejudicial evidence was introduced which inflamed the passion and prejudice of the jury, it is notable that all objections were sustained thereto. The brief of appellant further does not allege or make any statement or assertion that defendant did not know of these photographs or the matters of the drugs about which complaint was made the drugs having been taken, by the way, from the billfold of defendant at the time of his arrest, and the film from the camera.

The questioning which appellant now alleges was prejudicial is contained in the testimony of Edward R. McAuslin, an investigator with the Riverton Police Department, that at the time of the arrest there was found among appellant's possessions a package of amphetamines. No objection or motion to strike this testimony was made. The only objection made to a following question was aimed at the witness's identification of these as being based upon the analysis by Jim Bonnel and that it was hearsay. Appellant did move and ask that this evidence be stricken and that the jury be advised to disregard it because the opinion was based upon hearsay. The court sustained this motion and directed the jury to disregard this testimony. No further motion was made with regard to the preceding testimony, nor was a mistrial requested. We must assume that in absence

of further objection this admonition satisfied counsel, Oldham v. State, Wyo., 534 P.2d 107, 111. Defendant's counsel further cross-examined him upon this matter and if there was error, exacerbated it. On redirect examination McAuslin was examined about a camera he had taken into possession at the time of the arrest. Objection was made and overruled that this was without the scope of redirect. McAuslin then testified that a roll of film in the camera was developed and the question was then posed if any picture had anything to do with "the subject of sex." An objection was immediately made and sustained thereto, and it stopped at this juncture. The record does not show that these pictures were ever seen by the jury or any other reference made thereto, and no objection based thereon or claim of prejudice was made by way of motion at that time, so that the court would have had no opportunity to rule and it cannot be raised, Hampton v. State, supra; Connor v. State, Wyo., 537 P.2d 715, 717.

SUFFICIENCY OF THE EVIDENCE

The second and third contentions of the appellant are so interrelated and their relationship is evident from their statement that they must be considered jointly.

Both in his brief and oral argument, appellant's counsel argues at length and sets out at least 11 alleged inconsistencies in prosecutrix's testimony and urges upon this court that there was not sufficient evidence to sustain the conviction. We view this as a most splendid argument to be directed to the fact finder inasmuch as it is entirely an attack upon the credibility of the complaining witness.

We have long recognized that the uncorroborated testimony of the prosecutrix will sustain a conviction of rape, Strand v. State, 36 Wyo. 78, 252 P. 1030, 1031; Tway v. State, 7 Wyo. 74, 50 P. 188, 189. As in other criminal cases, the credibility and weight of the testimony of the prosecutrix in a rape case is for the determination of the jury, as was clearly expressed in Blackburn v. State, Wyo., 357 P.2d 174, 180:

" * * * The credibility of the complaining witness was for the jury to determine."

Particularly this determination is not for this court, but for the jury, Martinez v. State, Wyo., 511 P.2d 105, 109; and the jury having resolved the conflicting testimony, this court cannot interfere even if we were to think the resolution improper, Fresquez v. State, Wyo., 492 P.2d 197, 202.

Appellant correctly sets out what we deem to be the sole issue herein as follows:

"Whether this act was consummated 'forcibly and without her consent.' "

A summarization of the evidence so far as necessary and applicable to the question raised must be made within the parameters of a rule oft recognized by this court. We accept the evidence of the prosecution as true and omit consideration of the evidence of the unsuccessful party which may be in conflict therewith, and further we must indulge every favorable inference which may be drawn therefrom, Evanson v. State, Wyo., 546 P.2d 412, 418; Harris v. State, Wyo., 487 P.2d 800, 801. The posture of this case makes it unnecessary to consider any evidence except that directly involved in the proof of non-consent and acquiescence on the part of the prosecutrix.

There is no dispute that these parties had sexual intercourse in Cody on the night of September 25, 1976. Defendant insists it was a joint venture of willing and consenting adults. Prosecutrix's version, which the jury accepted, is a story of a sexual encounter forced upon her against her will and without her consent. Appellant and prosecutrix were employed in Cody by Harry Jackson. On the evening of this date these parties went to...