Dinkens v. State
| Decision Date | 28 January 1976 |
| Docket Number | No. 7827,7827 |
| Parties | Delmar DINKENS, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Harry E. Claiborne, James J. Brown, and Annette R. Quintana, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, George E. Holt, Dist. Atty., H. Leon Simon, Chief Deputy Dist. Atty., and Elliott A. Sattler, Chief Deputy Dist. Atty., Consumer Affairs Div., Las Vegas, for respondent.
Early in the evening of August 10, 1973, a young teenage girl was walking home from a youth recreation center in Las Vegas where she had spent the previous two or three hours. At that time, she was considering whether to visit a classmate friend who worked at a concession stand at a public park several miles distant. Observing a small boy riding as a passenger in an approaching pickup truck, she thought the situation afforded her the opportunity to obtain safe transportation to the park and decided to make the visit. Delmar Dinkens, driver of the vehicle, observed the girl, noted her outstretched thumb, pulled the truck to the side of the road and offered her a ride. She accepted.
Once in the vehicle the trio drove to a motel where Dinkens ordered the boy out of the truck and told him to wait for his father. Out of earshot of the girl, Dinkens informed the boy that he was going to 'get that girl.' Alone with the girl, Dinkens drove in the general direction of her stated destination, Paradise Park. Engaging her in a conversation, he learned that she was nearly fourteen years old. Dinkens mentioned to the girl that he had difficulty hearing her and suggested that she sit closer to him to remedy that problem. Becoming inwardly apprehensive, she refused. Thereafter, it soon became apparent that Dinkens was not heading towards the park and the girl reached for the door handle in an attempt to escape. Dinkens grabbed her and pulled her to him. She cried, 'Please don't kill me', to which he replied, 'I'm just going to play with you for a little while.'
Dinkens parked his vehicle off the road and commenced to fondle his victim. Abruptly, she was ordered to disrobe and was forced to assume a prone position on the seat of the car. Dinkens thereupon engaged her in the act of sexual intercourse. Various attempts to penetrate her rectum in a similar manner proved futile. During the curse of the assault, Dinkens demanded that the girl give him 'a little head' and he thrust his penis towards her mouth. The girl resisted and, distracted by an approaching car, he temporarily abandoned that endeavor. After the car passed, Dinkens directed his vehicle to a more remote area where he engaged the victim once again in the act of sexual intercourse. Afterwards he apologized, told the girl to dress and ultimately released her in the vicinity of the park which had been her destination from the outset.
At Paradise Park she found that her friend had departed but was able to obtain a ride home from the mother of another girl. Frightened and nervous, she did not reveal her encounter with the strange man to her father but confided in her older sister. After her mother returned home from Indiana nine days later, the incident was reported to her and subsequently to the police. The arrest and prosecution of Dinkens followed.
For no explained or understandable reason the district attorney charged Dinkens with forcible rape, not statutory rape. NRS 200.365. The first, of course, requires a showing of forcible entry but a charge of statutory rape would have obviated any concern over the claim of Dinkens that the young girl consented to his sex acts. Dinkens was also charged in two counts with the infamous crime against nature and attempt to commit said crime for his efforts to engage in anal intercourse and to place his penis in the girl's mouth.
A jury verdict of not guilty was returned on the charge of anal intercourse and verdicts of guilty were returned on the charges of rape and attempted oral copulation. Thereafter, Dinkens was sentenced to serve two concurrent 20-year terms in the Nevada State Prison.
1. The principal issue raised by Dinkens on review is that the girl consented in the absence of fear of force or violence to the acts he commited upon her. His argument focuses on the evidence presented at trial as it relates to the element of force. He claims that the evidence is insufficient to support a conviction for forcible rape.
' Forcible rape' is defined in NRS 200.363 as 'carnal knowledge of a female against her will.' The statute does not require a showing that the defendant employed force to achieve his objective but only that the act was committed against the will of the victim. Physical force is not a necessary ingredient in the commission of the crime of rape. The crucial question is not whether the victim was 'physically forced' to engage in sexual intercourse but whether the act was committed without her consent. There is no consent where the victim is induced to submit to the sexual act through fear of death or serious bodily injury. State v. Denton, 101 Ariz. 455, 420 [92 Nev. 78] P.2d 930 (1966); State v. Thomas, 9 Wash.App. 160, 510 P.2d 1137 (1973).
Under the circumstances shown in this case it is apparent that the girl submitted because of fear. The requirements of force and fear are of a different and less degree for a child than a person of more mature years.
Here, the girl related that a few months prior to her encounter with Dinkens, a uniformed officer had told her that if she was approached by a person driving a red car she should submit to any demands he made of her. If she refused, she would be killed. That admonition was recalled when the girl realized that Dinkens was not driving towards her intended destination and was responsible for the plea for her life emitted at the instant Dinkens grabbed her and pulled her to him foiling her attempt to escape.
The young victim testified that she was forced to assume a lying position and was forced to maintain that position until the sexual act was...
To continue reading
Request your trial
-
State v. Rusk
...cert. denied, 444 U.S. 936, 100 S.Ct. 285, 62 L.Ed.2d 195 (1979); Kirby v. State, 5 Ala.App. 128, 59 So. 374 (1912); Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976); citing Hazel v. State, supra; State v. Herfel, 49 Wis.2d 513, 182 N.W.2d 232 (1971). See also Salsman v. Com., 565 S.W.2d 6......
-
State v. Woodruff
...497, 287 A.2d 299, cert. denied, 409 U.S. 1025, 93 S.Ct. 469, 34 L.Ed.2d 317 (1972); State v. Worthington, supra; Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976); Jones v. State, 85 Nev. 411, 456 P.2d 429 (1969); where it was not in private, e.g., United States v. Lemons, supra; Harris v.......
-
Stewart v. Legrand
...facts and attending circumstances would reasonably dictate as a manifestation of her opposition." Id. (citing Dinkens v. State, 92 Nev. 74, 78, 546 P.2d 228, 230 (1976)); see also Shannon v. State, 105 Nev. 782, 790, 783 P.2d 942, 947 (1989) (discussing that factors such as the victim's age......
-
Rusk v. State, 1249
...surrounding facts and all attending circumstances make it reasonable for her to do to manifest her opposition. See Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976); State v. Studham, 572 P.2d 700 (Utah 1977). See also Schrum v. Com., 219 Va. 168, 246 S.E.2d 893 (1978).2 Fell's Point is an ......
-
Narrative and jurisprudence in state courts: the example of constitutional challenges to sex conduct regulation.
...v. State, 1190 So. 2d 578 (Fla. 1966) (adult male convicted of attempt to commit fellatio with unidentified party). Dinkens v. State, 546 P.2d 228 (Nev. 1976) (adult male picked up a 13 year old female, drove her to a secluded spot, raped her, and attempted to get her to fellate him). Dixon......