Elliott v. State

Decision Date03 October 1979
Docket NumberNo. 5067,5067
Citation600 P.2d 1044
PartiesWilliam G. ELLIOTT, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
CourtWyoming Supreme Court

Robert B. Denhardt, Lander, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Gay V. Bartels, Asst. Atty. Gen., and Gary A. Barney, Deputy County and Pros. Atty., Fremont County, for appellee.

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

THOMAS, Justice.

The major question presented in this case is the admissibility in a trial for second degree sexual assault of testimony of an older sister of the victim concerning prior attempts of a similar nature involving her as a victim. Other issues are raised concerning the recitation by corroborative witnesses of the details of the reports made to them by the victim; the admissibility of testimony by the victim's mother that the victim was a truthful child; and other testimony by the victim's older sister to the effect that she left home the day following the assault because her prior experiences made her fearful of an assault upon her. We have concluded that no prejudicial error occurred, and we will affirm the judgment and sentence entered by the trial court.

The appellant was charged with a violation of § 6-63.3(a)(v), W.S.1957, adopted by ch. 70, § 1 of the Session Laws of Wyoming, 1977 (now § 6-4-303(a) (v), W.S.1977). The statute provides in pertinent part:

"(a) Any actor who inflicts sexual penetration or sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituted sexual assault in the first degree:

"(v) At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim;"

More specifically, the appellant was charged with willfully and feloniously inflicting sexual penetration, to wit: "sexual intercourse, without emission, on a victim, to-wit: (victim's name)" with the victim being 9 years of age at the time of the commission of the act and the appellant 32 years old at that time. In § 6-63.1(a)(ix), W.S.1957, adopted by ch. 70, § 1 of the Session Laws of Wyoming, 1977 (now § 6-4-301(a)(ix), W.S.1977) the following definition appears:

"(ix) 'Sexual penetration' means sexual intercourse, * * * with or without emission;"

After trial to a jury, the appellant was found guilty, and he then was sentenced to a term of not less than one nor more than two years in the Wyoming State Penitentiary. It is from that judgment and sentence that this appeal is taken.

The infant victim testified that the defendant (who then was married to the victim's mother) came home around 9 p. m. on the date of the charged offense. He told her to go to bed, and she did get ready and went to bed. She was wearing her pajamas and some underpants. She was half asleep when the defendant, attired in his underpants and a T-shirt, came in and told her to take off her clothes. She started crying, and did not acquiesce in his demand so he took off her clothes. After that he manipulated the victim's genitalia with his finger, and then with the victim lying on her back he stuck his penis in her and moved back and forth. She was crying and trying to push him off, but he did not immediately stop what he was doing. He later did desist and went over to his bed, and the victim put her pajamas on and went back to bed. She testified that he told her not to tell her mother or her sister and whenever she and a friend were at his place of employment she should get some money from him. She did not tell her mother what occurred the next day, but told her the following morning, which was Monday. She then was examined by two doctors, according to her testimony. The victim further testified that she had pain on Sunday morning, the day following the assault, and that when she went to the bathroom and wiped there was blood on the tissue and blood on her underpants, which were admitted into evidence. During the course of her testimony she also gave her age as 9 at the time of the alleged offense.

By way of corroboration in the State's case in chief, a police officer, the victim's mother, a physician's assistant, and a physician, all testified as to the victim's recitation or other information furnished to them of the circumstances reflected in her testimony quoted above. In addition, the physician's assistant testified that upon examination the labia or skin folds around the vagina were inflamed, were red, and that there was a small tear in the hymenal ring. The tear was approximately two millimeters. Swabs taken from the vaginal vault indicated that there had been bleeding in the vaginal area. The physician described a small laceration or not much more than a deep scratch in the mucosa at the entry to the vagina. He said this injury would bleed even though it was not very deep. Each of the witnesses who testified about the complaint of the victim or other information furnished to that witness went into some detail with respect to what the victim had told the witness or the information which was furnished.

The victim's mother was asked by the prosecuting attorney if the victim was a truthful child. At that time the following colloquy occurred:

"(Defense counsel): Objection, your Honor. This witness has not shown to be competent to make that testimony and it's self serving, hearsay; it's not according to the formal rules of showing character or reputation as it is known in the community. The truthfulness is not the issue in this case but rather the fact of chastity, virtue, sexual habits.

"THE COURT: Well, we are talking about a nine year old girl and this is her mother. Maybe she ought to know. Overruled.

"Q. (By (prosecuting attorney)): Please answer the question, (victim's mother).

"A. Yes, I think she's truthful."

The appellant testified in his own behalf. Essentially he denied the events about which the victim testified. In response to questioning by his counsel he stated that the reason why the victim would accuse him of this act was that he was the closest one there and the victim's mother and he were not getting along.

After the defense rested, the State called as a witness the victim's older sister. Over the objection of defense counsel, which we treat as based upon proper grounds, the older sister of the victim testified as to three prior instances involving the appellant and her. As to the first instance, which occurred when they lived in Jackson, Wyoming, in a home with two bedrooms, she testified he told her to go into the other bedroom and to take off her clothes. When she refused, he started to take them off himself, and then started playing with her. Then he tried to stick his penis into her, but she started screaming and kicking and ran away into the other bedroom, after which the appellant returned her to the bedroom where the assault had taken place and told her to put her clothes back on. Her account of the second instance was that it occurred in Gillette, Wyoming, when the family lived in a trailer. She testified that she was sleeping at night when appellant came home, awakened her, and told her to get into the back bedroom. She complied, and he told her to take off her clothes, which she did. Again he started playing with her and started to put his penis into her, but again he was unsuccessful because she started running all around the mobile home. Ultimately, she went back into the bedroom where appellant told her to put her clothes back on. The third instance occurred in the same trailer home. The older sister testified appellant told her to come into the house, and then told her to go into the back bedroom and take off her clothes. She refused, and he again told her to take them off, and got his knife out when she refused. At that time he told her to take off her clothes or else he would do something, but she was screaming, and her younger sister (the victim in this case) started banging on the door. The appellant then told the sister to get her clothes on and he then let the younger sister (victim) into the trailer.

On surrebuttal the appellant denied the acts testified to by the older sister. He assigned as the reason why she would so testify the same motivations as those of the victim, because the appellant and her mother were not getting along.

The appellant presents as issues for review the following claimed prejudicial errors:

1. The testimony of the older sister with respect to prior attempted sexual assaults on her.

2. The recitation of the hearsay details of the complaint made by the victim to each of the corroborative witnesses.

3. The testimony of the victim's mother that the victim was a truthful child coupled with the comment of the court that the mother ought to know whether she was a truthful child.

4. The testimony of the older sister that she left the home on the day following the assault on the victim because of her fear that the appellant would again assault her.

We deal with the issue of the testimony of the older sister as to prior sexual assaults in the context of Rule 404(b) and Rule 403, Wyoming Rules of Evidence. Rule 404(b), W.R.E., provides as follows:

"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Rule 403, W.R.E., provides as follows:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Wyoming unquestionably is committed to the general rule that...

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