Evans v. State

Citation655 P.2d 1214
Decision Date13 December 1982
Docket NumberNos. 5730,5736,s. 5730
PartiesMichael W. EVANS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). The STATE of Wyoming, Appellant (Plaintiff), v. Michael W. EVANS, Appellee (Defendant).
CourtUnited States State Supreme Court of Wyoming

Leonard D. Munker, State Public Defender, Cheyenne, for appellant in Case No. 5730 and for appellee in Case No. 5736.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Senior Asst. Atty. Gen. (argued), Cheyenne, for appellee in Case No. 5730 and for appellant in Case No. 5736.

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

BROWN, Justice.

In case No. 5730 a district court jury found appellant guilty of sexual assault in the first degree and determined that he was an habitual criminal. The trial court imposed a single sentence of life imprisonment. Appellant appeals from this judgment and sentence. In case No. 5736 the State filed a bill of exceptions saying that the trial judge should have imposed a separate sentence for each, the sexual assault conviction and the determination that appellant was an habitual criminal. The two cases were consolidated on appeal.

The issues in case No. 5730 are:

1. Was there sufficient evidence to sustain the jury's finding of guilt.

2. Did the trial court err in refusing appellant's requested Instruction "A."

3. Did the trial court properly admit testimony concerning a prior sexual assault committed by the appellant.

4. Do the Wyoming habitual criminal statutes create an irrebuttable presumption which violates constitutional principles of due process and the requirement that the state must prove every element of the crime beyond a reasonable doubt.

5. Do the Wyoming habitual criminal statutes constitute a legislative usurpation of judicial prerogative and discretion.

In case No. 5736 the issue is whether the imposition of a single sentence by the trial judge was proper.

We will affirm.

In the information, Count I, appellant was charged with sexual assault in violation of § 6-4-302(a)(i), W.S.1977. 1 Count II charged appellant with being an habitual criminal as defined in § 6-1-110, W.S.1977. 2

I

The victim testified that she knew appellant and that he came to her mobile home and forcibly raped her. Appellant admitted having sexual relations with the victim, but testified that it was with consent and that there was no force or intimidation. At the conclusion of the State's case in chief, appellant moved for a judgment of acquittal. The same motion was renewed at the close of appellant's case. He asserts that insufficient evidence was presented to allow the jury to find beyond a reasonable doubt that physical force or forcible confinement was applied. He also asserts that the evidence was insufficient to prove that the woman did not consent. He contends that it was error not to grant a judgment of acquittal.

The standard of review for the denial of a motion for judgment of acquittal is set out in Aragon v. State, Wyo., 627 P.2d 599, 602 (1981):

"Our responsibility in considering the propriety of a ruling on a motion for judgment of acquittal is the same as that of the trial court. [Citation.] The question raised is the sufficiency of the evidence to sustain the charge, which is a matter to be determined within the sound discretion of the trial court. [Citations.] In making that determination the district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. * * * It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. * * * "

Employing the elementary appellate rule set out above, the evidence we will consider is: Appellant forced his way into the victim's home. The victim believed appellant had a gun; he, in fact, was carrying a walking cane. The victim expressed her fear by screaming and begging not to be killed. Appellant forced the victim into a bedroom, pushed her into a bed, would not stop despite her pleas, grabbed her forcibly by the arms, told her to "shut up," told her that if she said anything to anyone about the incident he would kill her, and had sexual intercourse with her without consent. The victim expressed fear for her life during the assault.

Acquiescence or submission is not consent. Brown v. State, Wyo., 581 P.2d 189 (1978). A victim need not do more than her age, strength, surrounding facts, and all attending circumstances make it reasonable for her to do in order to manifest opposition. Tryon v. State, Wyo., 567 P.2d 290 (1977).

The evidence here of nonconsent is overwhelming. Appellant has failed to point out any deficiencies in the State's proofs, cite cases, or make argument in support of this assignment of error. If appellant has not brought deficiencies in proof to our attention, we will not make a detailed examination of the record to find them, nor will we search for error if it is not pointed out. Shaffer v. State, Wyo., 640 P.2d 88, 107 (1982).

II

Appellant's proposed Instruction A was refused by the court:

"In a case in which first degree sexual assault is alleged to have occurred, acquiescence in the alleged act or acts may be deemed to be non-consent, if such acquiescence is induced by fear. To be sufficient for this purpose, however, the fear must be based upon something of substance, and furthermore the fear must be of death or severe bodily harm. A woman cannot simply say, 'I was scared,' and thus transform an apparent consent into a legal non-consent which makes the man's act an offense punishable by imprisonment in the state penitentiary. She must have a reasonable apprehension of something real; her fear must be not fanciful but substantial."

Appellant cites no authority for his proposed Instruction A, nor does he make any cogent argument in support of giving such instruction. Before instructing the jury, the trial judge said to counsel for appellant, "I think you should state why you offered it, why you feel it was error for the court not to give it." Counsel then read proposed Instruction A in its entirety and cited Gonzales v. State, Wyo., 516 P.2d 592 (1973). Counsel did not explain to the court how the cited case applied to the proposed instruction.

Rule 31, W.R.Cr.P., provides "Instructions to the jury shall be given and objections thereto made at the time and in the manner provided for the giving of instructions and the making of objections thereto in the Wyoming Rules of Civil Procedure. Opportunity shall be given to make objections out of the hearing and presence of the jury. * * * "

Rule 51, W.R.C.P., is applicable to criminal proceedings. Bentley v. State, Wyo., 502 P.2d 203 (1972). Rule 51 provides in part:

" * * * No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. * * * "

The reason for the rule requiring distinct objections to instructions is to give the court a timely opportunity to correct instructional errors before it is too late. Downs v. State, Wyo., 581 P.2d 610 (1978); and Leitel v. State, Wyo., 579 P.2d 421 (1978). When an assignment of error is premised upon refusal to give an instruction, the record must contain a clear statement, explaining the grounds for the exception, sufficient to inform the trial judge of possible errors in his failure to give the instruction so that he may have an opportunity to correct instructional errors. Haley v. Dreesen, Wyo., 532 P.2d 399 (1975). Here appellant failed to comply with Rule 31, W.R.Cr.P., and Rule 51, W.R.C.P.

Furthermore, proposed Instruction A is improper in that it refers to "an offense punishable by imprisonment in the state penitentiary." If part of an instruction is erroneous, a trial judge may properly reject the entire instruction. He has no duty to excise objectionable portions of an instruction and rephrase it to properly state the law of the case. The duty of the trial court is discharged in criminal cases if it adequately instructs the jury on the general principles applicable in the case. Particular instructions must generally be requested, and unless such requested instructions are correct it is proper for the court to refuse to give them. State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 222 (1947).

The proposed instruction is also argumentative, and a court may properly refuse instructions which are argumentative or which unduly emphasize one aspect of a case. People v. McKenna, 196 Colo. 396, 585 P.2d 275, 281, 1 A.L.R. 4th 273 (1978).

III

The State called "D.J." as a witness in its case in chief. She testified that she had been raped by appellant about a year before the sexual assault charged in this case. 3 The two sexual assault incidents have certain similarities: (1) Appellant knew both victims; (2) both assaults took place in a private home when other people were in the house; (3) both assaults were in the same town; and (4) both victims were threatened with death.

Before trial appellant made a motion in limine. At the hearing on this motion, appellant's objection to "D.J.'s" testimony is not clear. Appellant explained generally to the court his understanding of the limitation of testimony under Rule 404, W.R.E.

At trial, before "D.J." testified, appellant was more specific. He said, "I would renew my objection. * * * At this point, Your Honor, his character (appellant) is not in issue. Under 4(a) [sic] there's got to be some showing that her testimony will be connected to this particular event." The State countered, explaining that "D.J.'s" testimony was offered to show similar conduct, motive and intent, and a course of conduct, or any similar act. Appellant did not object at trial to the testimony for the purposes...

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