Carey v. State

• Citation: 715 P.2d 244
• Decision Date: 07 March 1986
• Docket Number: No. 83-197,83-197
• Parties: Herman CAREY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 244

715 P.2d 244

Herman CAREY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-197.

Supreme Court of Wyoming.

March 7, 1986.

Rehearing Denied April 14, 1986.

Leonard D. Munker, State Public Defender, Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, and Ann Rochelle, Asst. Public Defender, Casper, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Div., John Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., for appellee.

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

THOMAS, Chief Justice.

The primary issue presented in this appeal is whether prejudicial error occurred because of the admission of prior bad acts on the part of the defendant in a prosecution for sexual assault. Collateral errors are asserted with respect to the failure to give lesser-included offense instructions, the sufficiency of the evidence, the exclusion of evidence concerning the sexual activities of the victim, and an abuse of discretion in sentencing. We conclude that no error occurred with respect to the trial of Herman Carey or the sentence which was imposed, and the judgment and sentence is affirmed.

In his brief Carey states the issues in this way:

"A. The Trial Court erred in admitting Appellant's acquittal on a prior sexual assault charge from Arizona as a prior bad act under Rule 404(b), Wyoming Rules of Evidence:

"1. The evidence was irrelevant.

"2. The prejudicial value of the evidence outweighed its probative value. Comments by the prosecutor regarding the acquittal as being a finding of 'not guilty' but not a finding of 'innocence' were prejudicial and constituted prosecutorial misconduct.

"3. Appellant was deprived of his constitutional rights to be protected against double jeopardy and to be afforded due process and equal protection under the laws.

"4. Assuming arguendo that the evidence was admissible as a prior bad act, prior bad act testimony should parallel the confines of Rule 609, Wyoming Rules of Evidence.

"B. The Trial Court erred in admitting the dismissal of the Gillette, Wyoming misdemeanor assault charge against the Appellant as a prior bad act under Rule 404(b), Wyoming Rules of Evidence:

"1. The evidence was irrelevant.

"2. The prejudicial value of the evidence was outweighed by its probative value.

"3. Appellant was denied due process and equal protection under the laws.

"4. Assuming arguendo that the evidence was admissible as a prior bad act, prior bad act testimony should parallel the confines of Rule 609, Wyoming Rules of Evidence.

"C. Evidence of the victim's sexual conduct subsequent to the alleged crime should have been admitted.

"D. The Trial Court erred in its refusal to give Appellant's jury instructions on lesser-included offenses.

"E. There was insufficient evidence as a matter of law upon which the jury could convict the Appellant.

"F. The Trial Court's sentence of Appellant to twenty to twenty-five (20-25) years in the Wyoming State Penitentiary was improper and violative of Appellant's constitutional rights."

The State of Wyoming, in its brief, states the issues to be:

"I. Did there exist a legitimate basis for the court's determination that the evidence of the other sexual assaults was relevant and admissible?

"II. Did the fact that the defendant was acquitted of the 1978 rape charge implicate the double jeopardy clause and thereby render the evidence inadmissible?

"III. Did the prosecution's closing remarks rise to the level of plain error?

"IV. Was the evidence sufficient for conviction?

"V. Is the evidence concerning [the victim's] conduct after the alleged rape incompetent and irrelevant?

"VI. Are the offenses of second degree sexual assault, third degree sexual assault, attempted sexual assault, assault and battery lesser included offenses of sexual assault in the first degree?

"VII. Did the trial court abuse its discretion in sentencing appellant to twenty (20) to twenty-five (25) years?"

Herman Carey and his co-defendant, Kent Seeley, took the victim to a mobile home owned by Seeley early one morning. The three of them went into the mobile home with the victim accompanying Carey and Seeley volitionally but somewhat reluctantly. When they were inside Carey locked the door which they had entered and advised the victim that they were going to have some fun. Carey initiated sexual overtures, and the victim pleaded a need to go to the bathroom. She attempted to lock Carey out, but he held the door so that she could not, and she was unable to leave through the bathroom window. She then sought to escape through the other entry to the mobile home while Carey momentarily was distracted. He had removed her shoes and jeans, and she was unclad from the waist down. Carey overtook her, grabbed her by the hair, put his hand over her mouth to stifle her screams, and forcibly drug her back into the mobile home. In the process she struck her head on the trailer right by the door and a laceration was inflicted.

The victim testified that Carey started choking her and pushing her down on the floor, and he then had sexual intercourse with her. Following that the co-defendant, Seeley, had sexual intercourse with her, and Carey then had sexual intercourse a second time. Carey and Seeley then took the victim to her sister's home where she lived.

The victim had been in the company of Carey, Seeley, and a female co-worker of the victim from late in the evening the previous night. They had been drinking and dancing at bars and clubs in the Casper area. Afterwards they parted company, but the co-worker could not get her vehicle started after stopping for gas. Carey and Seeley were still in the vicinity, and they pushed the co-worker's vehicle to her residence with Seeley's pickup. The co-worker had a dispute with her boyfriend at her residence, and the four of them drove around briefly and returned to the co-worker's residence. After attempting to calm the co-worker down the victim decided to see if Seeley and Carey would drive her home. It was then that they took her to Seeley's mobile home.

We shall discuss the errors assigned by Carey in the following categories:

The admission of evidence of prior bad acts;

The exclusion of evidence of sexual conduct on the part of the victim;

The failure to give lesser-included offense instructions;

The sufficiency of the evidence; and

The claim of abuse of discretion in sentencing.

In response to a motion in limine and a motion to limit cross-examination, both submitted by Carey, the trial court ruled prior to the trial that the prosecution could not introduce any evidence of prior bad acts pursuant to Rule 404(b), W.R.E., in its case in chief. At that time the court indicated that such evidence might be admissible on cross-examination or rebuttal if Carey were to testify. The evidence in question related to a prior accusation of rape in Arizona pursuant to which Carey had been tried twice. The jury in each instance was unable to reach a verdict, and the trial judge in Arizona then granted a motion for judgment of acquittal. Other evidence related to an assault on a female in Gillette in 1982 similar to a mugging attack. The charges in Gillette ultimately were dismissed. Carey did testify in his own behalf, and the trial court then permitted the prosecution to inquire into these other matters on cross-examination and to present witnesses to rebut the denials by Carey of the bad acts.

Carey contends that the admission of the bad act occurring in Arizona which resulted in a judgment of acquittal violates the constitutional protection against double jeopardy and infringes upon his constitutional right to due process. For this point he relies upon State v. Perkins, Fla., 349 So.2d 161 (1977). The court in that case espoused a collateral estoppel theory and held that the admission of an acquittal is improper because the acquittal resolved in defendant's favor the issue of fact which then was presented as a prior bad act. A judgment of acquittal entered after two juries are unable to reach a decision is distinguishable from the holding in State v. Perkins, supra. In Carey's instance the judgment of acquittal demonstrates only that Arizona was unable to prove every element of the charged offense to the satisfaction of each and every juror beyond a reasonable doubt. This is quite different from a verdict of a jury of not guilty, and Carey has failed to show how his judgment of acquittal really settled in his favor any facts in issue in his case.

In this instance the factual issue was whether the victim consented. Carey testified that the victim voluntarily consented to sexual intercourse. The victim testified that she did not. The evidence with respect to the prior situations in Arizona and Gillette is relevant with respect to Carey's motive, knowledge and intent as those factors relate to the question of consent and also as to Carey's credibility.

Considerable deference is given to the ruling of the trial court with respect to admissibility of evidence. Bishop v. State, Wyo., 687 P.2d 242, 244 (1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985); Vasquez v. State, Wyo., 623 P.2d 1205, 1208 (1981); Hatheway v. State, Wyo., 623 P.2d 741, 743 (1981); Key v. State, Wyo., 616 P.2d 774 (1980). To overturn a ruling admitting evidence the burden is upon an appellant in a criminal case to demonstrate an abuse of discretion. Bishop v. State, supra, 687 P.2d at 244; Ortega v. State, Wyo., 669 P.2d 935 (1983); Grabill v. State, Wyo., 621 P.2d 802, 811 (1980). Unless there is no legitimate basis for the ruling admitting evidence we will uphold the district court. Bishop v. State, supra, 687 P.2d at 244; Ortega v. State, supra, 669 P.2d at 935; Vasquez v. State, supra, 623 P.2d at 1208; Hatheway v. State, supra, 623 P.2d at 743.

The general rule, which is followed in Wyoming, is that prior bad acts...