Gezzi v. State, 88-266

CourtUnited States State Supreme Court of Wyoming
Citation780 P.2d 972
Docket NumberNo. 88-266,88-266
PartiesPeter Anthony GEZZI, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
Decision Date27 September 1989

Leonard Munker, State Public Defender, Cheyenne, Wyoming Defender Aid Program: Gerald M. Gallivan, Director, and Samuel B. Benham, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., Cheyenne, Jo Messex Casey, Student Intern, Prosecution Assistance Program, Laramie, for appellee.


GOLDEN, Justice.

Anthony Gezzi (Gezzi) was convicted of two counts of immoral or indecent acts with his daughter, in violation of W.S. 14-3-105 (July 1986 Repl.). On appeal, he contends that the trial court erroneously admitted evidence of his prior bad acts involving earlier similar immoral or indecent acts with another of his daughters.

We affirm.

On Friday, December 4, 1987, the victim and daughter of Gezzi, seven-year old G.G., watched a good touch/bad touch film at school with her classmates. After the film, G.G. went to her regularly scheduled group counseling session with her counselor. While in session, G.G. revealed to her counselor that her father, Gezzi, had "bad touched" her or touched her private parts, and had been doing so since G.G. was in kindergarten. She stated that the latest incidents had occurred the previous Monday and Wednesday of that week, November 30 and December 2, 1987, when her father made her touch his penis, touched his penis to her and touched her with his hands between her legs. She further stated that her father had told her not to tell anyone because her mother and brothers would not love her anymore. After G.G. repeated her statements to the police and to the Department of Public Assistance and Social Services, Gezzi moved out of the family home. Following an investigation, on March 15, 1988, a criminal complaint was filed against Gezzi charging him with two counts of violating W.S. 14-3-105. 1

G.G. was examined by a pediatrician who concluded from the physical evidence, including scarring and thickening of the hymen and a larger than normal hymenal opening for a seven year old, that G.G. had been the victim of chronic sexual abuse, and that such physical symptoms could not have been caused by masturbation. A jury trial was held on June 7 through 10, 1988. At trial, a pediatrician for the defense testified that the physical evidence the first pediatrician relied on in making her conclusion could be consistent with but was inconclusive of sexual abuse, and could be consistent with masturbation. This pediatrician did not examine G.G.

Gezzi did not testify at trial; his counsel's theory of defense was that Gezzi was innocent of the crime charged. In so defending, his counsel attacked G.G.'s credibility by introducing evidence at trial indicating that G.G. had several behavioral problems, the most important of which were a propensity to lie, to make up stories about her family and to distort reality more than most children her age. Because of these acknowledged behavioral problems, after an in-chambers hearing the prosecution introduced the testimony of G.G.'s older sister, P.G. P.G. testified that Gezzi had sexually abused her for almost five years before she finally ran away from home. She stated that she had reported the sexual abuse, that her father admitted it, that the family went into counseling after the report, but that no charges were brought against him. Further evidence of the sexual abuse of P.G. was introduced through other witnesses. Gezzi objected to the introduction of this evidence of prior bad acts under W.R.E. 404(b), stating that the only purpose the prosecution could have in introducing it was to inflame the jury. The trial court disagreed, finding that the evidence was admissible on the issue of G.G.'s credibility.

On June 10, 1988, the jury found Gezzi guilty of two counts of immoral or indecent acts with a child, as proscribed by W.S. 14-3-105. The trial court entered judgment on August 6, 1988, sentenced Gezzi to two to three years on each count, suspended the sentence on the second count and imposed three years probation to be served at the end of the first sentence. This appeal followed.

Gezzi contends that P.G.'s testimony implicating him of prior sexual activity with her was inadmissible under W.R.E. 404(b). The rule provides:

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.

This rule generally prohibits the introduction of evidence of extrinsic acts that might adversely reflect upon the accused's character. Unquestionably, Wyoming is committed to applying the 404(b) general rule of exclusion in criminal cases. Elliott v. State, 600 P.2d 1044, 1047 (Wyo.1979). Yet, several exceptions to the exclusionary rule exist. The exceptions noted in Rule 404(b) under which evidence of other crimes may be admissible are not exhaustive, but rather are illustrative. United States v. Masters, 622 F.2d 83, 86 (4th Cir.1980); United States v. Beechum, 582 F.2d 898, n. 15 (5th Cir.1978) 2; Makinen v. State, 737 P.2d 345, 347 (Wyo.1987); Brown v. State, 736 P.2d 1110, 1111, n. 1 (Wyo.1987); Hopkinson v. State, 632 P.2d 79, 127 (Wyo.1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). "We have previously recognized exceptions to the 404(b) exclusionary rule other than those catalogued in the rule." Brown, 736 P.2d at 1111, n. 1. This recognition of exceptions apart from those suggested in the rule affords the trial courts greater discretion in the admission of such evidence. Consequently, in our review of a trial court's admission of similar acts evidence we look to see if there has been an abuse of that discretion in light of our previous decisions. Elliott, 600 P.2d at 1049.

As early as 1927, this court held that in the context of sexual offenses other similar acts of the defendant could be admitted if they involved the victim of the charged offense. Strand v. State, 36 Wyo. 78, 252 P. 1030 (1927) (in prosecution for rape of a ten-year old, the court properly admitted evidence of other acts of intercourse occurring between the victim and the accused to show "the lustful disposition and intent of the defendant.") See also State v. Quirk, 38 Wyo. 462, 268 P. 189 (1928) (citing Strand, for the rule of admission); and State v. Koch, 64 Wyo. 175, 189 P.2d 162 (1948) (citing Strand and Quirk for the general rule and noting that most jurisdictions permit such testimony to corroborate the victim's testimony of the offense charged or to prove identity of the perpetrator). In recent years we have expanded on the exceptions to Rule 404(b) in the context of sexual offenses and have permitted the admission of testimony of third persons as to other similar acts between themselves and the accused. 3 Brown; and Elliott. These cases, recognizing the nationally predominant trend towards admission of third party testimony of similar acts, are helpful to our determination here. 4 The facts in Brown and Elliott are virtually identical to those in the case before us. In Elliott, the defendant was charged with sexually assaulting his step-daughter; at trial the victim's older sister testified regarding three prior instances of sexual assault involving the defendant and herself. In Brown, the defendant was charged with incest with his natural daughter; at trial the victim's half-sister and adopted daughter of the defendant testified about a continuing course of conduct involving sexual intercourse or sexual contact between herself and the defendant occurring over a period of several years beginning when the half-sister was about six years old. In each case, the trial court admitted the testimony for the purpose of showing motive. Brown, 736 P.2d at 1113; Elliott, 600 P.2d at 1048. We said:considered are: (1) similarity of the crimes or acts; (2) nearness in time; (3) tendency of the evidence to establish a common scheme, plan, or system; and (4) whether the probative value of the evidence was outweighed by its prejudicial effect. The court noted that the acts need not be identical but only "sufficiently similar" to justify their admission, and that a five-year lapse of time between the charged act and the prior acts was not too remote (defendant was stepfather to the complaining victim through one marriage and stepfather of the prior victim through a previous marriage). The lack of opportunity caused the time lapse to be insignificant); State v. Gilpin, 756 P.2d 445 (Mont.1988) (admissible for general 404(b) purposes but must have: (1) notice to the defendant prior to trial of the intent to introduce such evidence; (2) an admonition to the jury of the evidence's limited purpose; and (3) a similar cautionary instruction); State v. Hoffmeyer, 187 Neb. 701, 193 N.W.2d 760 (1972) (intent or motive); Findley v. State, 94 Nev. 212, 577 P.2d 867 (1978) (intent, lack of mistake); State v. Johnson, 130 N.H. 578, 547 A.2d 213 (1988) (evidence of prior bad acts with victim allowed to show mode of operation and on question of coercion to show system of the crime, activity, identity, motive, and context); People v. Velasquez, 141 A.D.2d 882, 530 N.Y.S.2d 208 (2 Dept.1988) (state of mind); People v. Bagarozy, 132 A.D.2d 225, 522 N.Y.S.2d 848 (1 Dept.1987) (noting the general 404(b) exceptions of motive, intent, absence of mistake or accident, common scheme or plan and identity, the court admitted prior bad acts evidence to show the defendant's amorous design); State v. Thomas, 310 N.C. 369, 312 S.E.2d 458 (1984) (identity and in response to defense alibi); State v. Jackson...

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