Gonzales v. State

• Decision Date: 11 December 1973
• Docket Number: No. 4236,4236
• Citation: 516 P.2d 592
• Parties: Julio GONZALES, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 592

516 P.2d 592

Julio GONZALES, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4236.

Supreme Court of Wyoming.

Dec. 11, 1973.

William R. Thatch, Lovell, for appellant.

Clarence A. Brimmer, Atty. Gen., Jerome F. Statkus, Asst. Atty. Gen., Cheyenne, Robert A. Gish, Co. Atty., Basin, for appellee.

Before PARKER, C. J., and McEWAN, GUTHRIE, McINTYRE, and McCLINTOCK, JJ.

Mr. Justice GUTHRIE delivered the opinion of the court.

This appeal is prosecuted from the judgment and sentence of the trial court based upon a finding of guilt of the crime of first degree rape alleged to have been committed by the defendant upon Evelyn Marie Boelter, after 2 a. m. on October 1, 1972, in Big Horn County. Since the prosecutrix was the only witness who testified as to this actual occurrence her testimony must be examined fully to make a disposition of this case.

She was at the time 33 years old, the mother of three children, and had been divorced at the time of the occurrence. She was working at a bar in Byron, having had experience in such work.

Defendant had come into the bar shortly before closing and had been drinking. Prosecutrix had served him drinks and had rolled dice with him a couple of times 'for the music' during this period. He had come to the bar with another man, who apparently had been drinking too much, and sometime prior to the time prosecutrix left the bar defendant asked her for a ride home. She advised him she did not take anyone home. When she left the bar to drive home defendant followed her and when she climbed into the driver's side of the car defendant went to the other side of the car and got in and repeated his request to be driven to Lovell. She again refused, although she said she was nervous and scared at the time and she made no further protest, nor did she seek help from the proprietor or any of the five other people in the bar and drove without stopping or signalling with the horn. On the way to Lovell defendant asked her what was wrong and inquired if she felt he was going to rape her or something. At a point approximately one mile from Lovell he told her to turn off on a side road, telling her his mother lived down the road. She stopped the car several times, asking to turn back, but he told her it was only a little way farther down the road. He asked her to stop 'to go to the bathroom' and took the keys out of the ignition, telling her she would not drive off and leave him. She stayed in the car when he 'went to the bathroom' and made no attempt to leave. When he returned he told her he was going to rape her and she kept trying to talk him out of it. He told her he was getting mad at her and then put his fist against her face and said, 'I'm going to do it. You can have it one way or the other.' She says he was mad because she was trying to talk him our of it, although there is no testimony as to exactly what was said or done during this period. After this threat he took off her shoes and when he said he'd take off her panties if she didn't, she took them off. Her clothes were in no manner torn and she did not know if her hair was mussed. She was in no manner bruised and, as she admits, she was never struck at any time. Sometime after turning off on the side road Kay Sigman, whom she knew and recognized, drove by, driving slowly. She did not honk or attempt to stop him or to attract his attention. She does not remember whether Sigman passed before defendant 'went to the bathroom' or after. Her testimony was that it was upon defendant's return that he made this threat. She knew defendant's temper and was scared of him because he had a quick temper. She had never taken a beating and did not want one. No other threats are mentioned. She says that it seemed like two to three times he performed the sexual acts upon her but did not remember. During this time she kept begging him to let her go home. He replied he would let her go when he was through. At least two hours later she took him to his mother's and stopped at her own home to check on two of her sons and then went to Cowley to the home of Wanda Meeks where her other boy was staying and where she first made this complaint and was interviewed by the deputy sheriff. Prosecutrix had what might be described as a casual and friendly relationship with the defendant. He had given her a jewel box which he had made for her and they had attended parties together and apparently had danced together.

To sustain her knowledge of his quick temper and violence she testified about an incident wherein defendant was alleged to have threatened to beat her if he ever heard she was on dope. The court at the time this testimony was given stated that it had 'no bearing whatsoever on the future threats,' with which we are inclined to agree, suggesting that it might even indicate a concern for her welfare. Another incident to demonstrate her knowledge of his temper was a specific incident in the bar where she worked which involved two men and a 'go-go girl.' This girl solicited help from defendant and he tried to help her. It had appeared to prosecutrix there was going to be a fight and she walked over and ordered the two men to leave and asked defendant to sit down. So far as this incident is described in the record we must assume he did sit down because it was pursued no further and there was no evidence of violence. There is, then, a reference made to the fact that he did not like hippies and when one came into the bar he got 'kind of mad.' Additionally prosecutrix testified he had come into the bar on one occasion badly bruised and she said he told her he had been in a fight but no further particulars appear. There is no mention of violence in this connection. This is not a firm basis upon which to sketch a man of violence and one who would inspire fear. It is further to be noted that Wanda Meeks, a close friend of prosecutrix who had known defendant eight to ten years, testified concerning several occasions when she had seen defendant and described him as acting like a gentleman and said he had never 'said or did anything out of the way to me,' nor had she seen him act in...