Capwell v. State

• Citation: 686 P.2d 1148
• Decision Date: 08 August 1984
• Docket Number: No. 83-210,83-210
• Parties: Christopher John CAPWELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1148

686 P.2d 1148

Christopher John CAPWELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-210.

Supreme Court of Wyoming.

Aug. 8, 1984.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Roger Fransen, Asst. Atty. Gen., for appellee; oral argument by Roger Fransen, Asst. Atty. Gen.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

This appeal is from appellant Christopher Capwell's conviction of attempted first degree sexual assault for which he was sentenced to a term of not less than five nor more than ten years.

We will affirm the conviction but remand for resentencing.

On December 21, 1982 appellant, Capwell, knocked on the door of the victim's apartment asking to speak to "John." The victim was home alone and informed Capwell that no one named John lived there. She then called her husband at work, who agreed to return home immediately. Capwell left but shortly thereafter returned to the apartment requesting again to speak to John. He broke into the apartment, cornered the victim, and told her to get undressed. When she refused, he grabbed her by the hair, pulled her to the floor, and began forcibly removing her clothes.

At this point the victim's husband and a friend, Tim Arnold, arrived at the apartment and saw Capwell kneeling over the partially nude victim. Capwell got up and left the apartment. The victim's husband and Mr. Arnold followed, keeping Capwell in view until he was arrested by a policeman who had responded to the husband's call.

Appellant could have been charged with attempted first or second degree sexual assault under §§ 6-4-314 and 6-4-302(a)(i), W.S.1977. Section 6-4-314, attempt, provided:

"Whoever perpetrates an assault or assault and battery upon anyone with intent to commit a sexual assault in the first or second degree, shall, upon conviction be imprisoned in the penitentiary not less than one (1) year nor more than five (5) years."

Section 6-4-302(a)(i), sexual assault in the first degree, provided:

"(a) Any actor who inflicts sexual penetration or sexual intrusion 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 or forcible confinement * * *."

The prosecution elected, however, to charge appellant with attempted first degree sexual assault by alleging an attempt under § 6-1-201(a)(i), W.S.1977, Cum.Supp.1982 ¹, to violate the provisions of § 6-4-302(a)(i), W.S.1977, supra.

By charging appellant under the general attempt statute, § 6-1-201(a)(i), supra, with attempted first degree sexual assault, rather than under the specific statute, § 6-4-314, supra, with attempted first or second degree sexual assault, the penalty to be imposed upon conviction ² was five to fifty years rather than one to five years. The question we must decide is whether attempted sexual assault in the first or second degree can be charged under either statute at the election of the State, or whether attempted sexual assault in the first or second degree can only be charged under § 6-4-314, W.S.1977, supra.

A statute making rape a crime was first adopted in Wyoming in 1899 with the enactment of § 4964, Revised Statutes of Wyoming, 1899, which provided:

"Whoever unlawfully has carnal knowledge of a woman forcibly and against her will, or of a woman or female child under the age of eighteen years, either with or without her consent, is guilty of rape, and shall be imprisoned in the penitentiary for a term not less than one year, or during life."

Attempted rape was not a crime until the adoption in 1911 of chapter 83, § 1 of the Session Laws of Wyoming, 1911 which provided:

"Whoever perpetrates an assault or assault and battery upon any female with intent to commit the crime of rape, shall, upon conviction, be imprisoned in the penitentiary not less than one year nor more than fifty years."

These statutes governing rape and attempted rape were simple, general statements of the common law. 65 Am.Jur.2d Rape § 2. They remained in effect until 1977 when the legislature undertook a comprehensive revision of the statutes pertaining to rape with the enactment of chapter 70 of the Session Laws of Wyoming, 1977. This revision substituted the term "sexual assault" for the term "rape," provided four degrees of sexual assault with a different penalty for each degree and adopted a specific statute, § 6-4-314, W.S.1977, supra, making attempted sexual assault in the first or second degree a crime punishable by imprisonment for a term of one to five years.

In 1981, the legislature adopted a general attempt statute which made an attempt to commit a crime unlawful. The attempt was accomplished by undertaking any act that was a substantial step toward the commission of the crime, § 6-1-201(a)(i), supra. The penalty for conviction of the attempt was the same as for the commission of the underlying crime, § 6-1-204, W.S.1977, Cum.Supp.1982, supra.

The State contends that the general attempt statute, being the later enactment, repealed by implication the specific statute relating to attempted first degree sexual assault, § 6-4-314, supra. We disagree.

"Repeals by implication are not favored * * * [and] the party so asserting bears 'the burden of demonstrating beyond question that the legislative body by its later action evinced an unequivocal purpose of effecting a repeal.' * * * What must be shown is that the latter statute is so repugnant to the earlier one that the two cannot stand together, or that the whole subject of the earlier statute is covered by the latter one having the same object, clearly intending to prescribe the only rules applicable to the subject." Nehring v. Russell, Wyo., 582 P.2d 67, 73 (1978).

Where the statutes being considered are a special statute and a general statute relating to the same subject, as in this case, the policy against implied repeals has special force, there being a presumption that the special or specific act was intended to remain in force as an exception to the general or broad act. Baltimore Nat. Bank v. State Tax Commission of Maryland, 297 U.S. 209, 56 S.Ct. 417, 80 L.Ed. 586 (1936).

We presume that the legislature enacts legislation with full knowledge of existing law and with reference to other statutes and decisions of the courts. Such legislation should, therefore, be construed in a way that creates a consistency and harmony within the existing law. Civic Ass'n of Wyoming v. Railway Motor Fuels, 57 Wyo. 213, 116 P.2d 236 (1941). Statutes should be construed in pari materia and if the special act is inconsistent with the general law, the provisions of the special act will control, Carpenter & Carpenter, Inc. v. Kingham, 56 Wyo. 314, 109 P.2d 463 (1941).

" * * * 'It is the general rule that where the general statute standing alone would include the same matter as the special act, and thus conflict with it, the special act will be considered as an exception to the general statute whether it was passed before or after such general enactment. Where the special statute is later, it will be regarded as an exception to or qualification of the prior general one; and where the general act is later the special statute will be considered as remaining an exception to its terms unless it is repealed in general words or by necessary implication.' " 2A Sutherland Statutory Construction (4th Ed.1973), p. 315.

It was clearly the intent of the legislature by its 1977 enactments to adopt fully comprehensive legislation dealing with sexual assault by providing for four degrees of sexual assault with different penalties as punishment for violation of each, and providing by specific statute punishment for attempted first or second degree sexual assault with the penalty for violation therein specified. In enacting the general attempt statute and the penalty provision, the legislature made no effort to repeal § 6-4-314, W.S.1977, supra, nor was the statute referred to, mentioned, or even considered. Had the legislature intended to repeal § 6-4-314, supra, it could have done so by express legislative enactment. Failure to repeal the statute is at least indicative of an intent that it remain in effect as an exception to the general attempt statute.

We conclude, therefore, that the later enactment of a general attempt statute evidences no intention on the part of the legislature to do other than provide that an attempt to violate an existing criminal statute, where the legislature has not already spoken with respect to that statute, is a crime. Thus, the general attempt statute is operative when applied to statutes where the legislature has not already spoken; and where the legislature has enacted a special statute making the attempt a crime, the special statute will prevail. This construction gives effect to both statutes and a policy that ambiguity concerning the application of criminal statutes should be resolved in favor of lenity. It is in conformance with

" * * * the principle that gives precedence to the terms of the more specific statute where a general statute and a specific statute speak to the same concern, even if the general provision was enacted later. [Citations] This guide to statutory construction has special cogency where a court is called upon to determine the extent of the punishment to which a criminal defendant is subject for his transgressions. In this context, the principle is a corollary of the rule of lenity, an outgrowth of our reluctance to increase or multiply punishments absent a clear and definite legislative directive." Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978).

For the reasons stated, we conclude that the enactment of § 6-1-201(a), supra, did...