Kavanaugh v. State, s. 88-46

• Decision Date: 27 February 1989
• Docket Number: Nos. 88-46,88-47,s. 88-46
• Parties: Helen KAVANAUGH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Robert MARKLAND, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 908

769 P.2d 908

Helen KAVANAUGH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Robert MARKLAND, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Nos. 88-46, 88-47.

Supreme Court of Wyoming.

Feb. 27, 1989.

Steven R. Czoschke, Gillette, for appellants.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Sylvia Lee Hackl, Sr. Asst. Atty. Gen., for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY, and GOLDEN, JJ.

THOMAS, Justice.

The major issue presented in these combined appeals is whether the trial court abused its discretion in imposing the sentences that it did upon Kavanaugh for aiding and abetting sexual assault in the second degree and upon Markland for committing sexual assault in the second degree. Additional questions are presented by the appellants who challenge the sufficiency of the evidence to sustain the convictions and assert that the district court erred in refusing to grant their respective motions for a new trial based upon newly discovered evidence. We hold that the district court did not abuse its discretion in imposing the sentences, and we are satisfied that the evidence was sufficient to sustain the convictions. We also are satisfied that the district court did not abuse its discretion in denying the respective motions for new trial. We affirm the judgments and sentences of both appellants.

In his brief as appellant, Robert Markland (Markland) asserts the following issues:

"I. THE DISTRICT COURT ERRED IN FAILING TO GRANT PROBATION TO THE DEFENDANT AND THE DISTRICT COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO A TERM OF NOT LESS THAN TEN YEARS NOR MORE THAN LIFE IN THE WYOMING STATE PENITENTIARY.

"II. THE DISTRICT COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.

"III. THERE WAS NOT SUFFICIENT EVIDENCE PRESENTED AT TRIAL FOR THE JURY TO CONVICT THE DEFENDANT OF VIOLATION OF W.S. SECTION 6-2-303(a)(ii)."

In her brief of appellant, Helen Kavanaugh (Kavanaugh) asserts identical issues except that her statutory reference in Issue III is to § 6-1-201, W.S.1977, instead of § 6-2-203(a)(ii), W.S.1977. The State of Wyoming, as appellee, presented one brief responding to both appeals, and its articulation of the issues is:

"I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING APPELLANTS TO TERMS OF IMPRISONMENT?

"II. WHETHER THE TRIAL COURT PROPERLY DENIED APPELLANTS' MOTIONS FOR NEW TRIAL?

"III. WHETHER THE EVIDENCE IS SUFFICIENT TO SUSTAIN APPELLANTS' CONVICTIONS FOR SECOND DEGREE SEXUAL ASSAULT AND AIDING AND ABETTING SECOND DEGREE ASSAULT?

"IV. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY THAT CORROBORATION OF THE VICTIM'S TESTIMONY WAS NOT REQUIRED, AND WHETHER ANY SUCH ERROR WAS PREJUDICIAL?"

We commence our review with a consideration of the sufficiency of the evidence. It, of course, must be evaluated in the light of the charges upon which the appellants were convicted. Section 6-2-303, W.S.1977 (June 1983 Repl.), which Markland was convicted of violating provides, in pertinent part:

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

* * *

* * *

"(ii) The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution; * * *."

Kavanaugh's conviction was for a violation of § 6-1-201, W.S.1977 (June 1983 Repl.), which provides, in that part applicable here:

"(a) A person who knowingly aids or abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed, is an accessory before the fact.

"(b) An accessory before the fact:

* * *

* * *

"(iii) Upon conviction, is subject to the same punishment and penalties as are prescribed by law for the punishment of the principal."

The jury was instructed that the elements of sexual assault in the second degree are:

"1. The defendant Robert Markland inflicted sexual intrusion on [the victim]; and,

"2. The defendant Robert Markland caused submission of [the victim] by any means that would prevent resistance by a person of ordinary resolution; * * *."

With respect to the elements of the crime of aiding and abetting sexual assault in the second degree, the jury was instructed as follows:

"1. Offenses of sexual assault in the second degree were committed by Robert Markland; and

"2. The defendant Helen Kavanaugh knowingly and willfully counseled, encouraged, hired, commanded, or otherwise procured those offenses to be committed; * * *."

In determining whether there was sufficient evidence to sustain the convictions, we apply the rule set forth in Dangel v. State, 724 P.2d 1145, 1148 (Wyo.1986):

" '[T]his court is to examine all the evidence in the light most favorable to the state to determine if there is sufficient evidence to uphold the verdict. Broom v. State, 695 P.2d 640, 646 (Wyo.1985).' Aden v. State, Wyo., 717 P.2d 326 (1986) at 327."

This standard was followed in Johnston v. State, 747 P.2d 1132 (Wyo.1987), and Aden v. State, 717 P.2d 326 (Wyo.1986). See also Young v. State, 678 P.2d 880 (Wyo.1984); Harvey v. State, 596 P.2d 1386 (Wyo.1979). In doing so, we do not weigh the evidence, and we do not re-examine the credibility of witnesses, even if there is only one crucial witness as in this case. Johnston. That function is assigned to the jurors who, because they can observe the demeanor and composure of the witnesses, are in the best position to evaluate credibility and resolve conflicts in the testimony. Righter v. State, 752 P.2d 416 (Wyo.1988); Johnston; Broom v. State, 695 P.2d 640 (Wyo.1985); Russell v. State, 583 P.2d 690 (Wyo.1978); Janski v. State, 538 P.2d 271 (Wyo.1975).

The victim in this case was Kavanaugh's minor daughter, then age sixteen. Markland was forty years old and, at the time of the offense, was sharing a townhouse with Kavanaugh and her divorced sister. Kavanaugh had been living with Markland continuously for about twelve years. The victim had first come to live with them when she was about eight or nine years old. In October of 1986, she married, and she and her husband moved to Hawaii. In April of 1987, she sought permission to return to Gillette, and Markland and Kavanaugh agreed to that. Markland provided the funds for travel. He also paid for an abortion to terminate the victim's pregnancy.

With respect to the events resulting in these convictions, the victim testified that, about June 11 of 1987, Markland asked her to shower with him. She did so and, during their shower, he engaged in cunnilingus with her. This activity was consistent with the victim's acceptance of Markland's proposition that she should become his mistress and that he would furnish her a car if she did. After the shower incident, the victim advised Markland that she did not wish to continue the arrangement because she was not comfortable in doing so. Markland replied that her decision was okay, but she would not receive the car. Nevertheless, a few days later, after a struggle, Markland again engaged the victim in oral sex. That sexual activity resulted in vaginal intercourse between Markland and the victim. After this episode, the victim determined to leave the house, and she did so.

About a month later, she went to the business premises which Kavanaugh and Markland used and confronted them about retrieving her clothing and other belongings from their house. Kavanaugh and Markland refused and told the victim that these items were being held as collateral for money which they had advanced to her. The victim became angry and went to a friend's house where she told the story of sexual activities involving both Markland and Kavanaugh. The authorities then were notified, and criminal proceedings were initiated against Kavanaugh and Markland.

Markland denied the victim's allegations of sexual misconduct, and Kavanaugh denied any knowledge of any sexual contact. Their stance was that the victim had fabricated the story because she was not able to "get her way" and because they would not return her belongings.

At trial, evidence was introduced of a free sexual lifestyle prevailing in the household. That evidence disclosed that Markland and Kavanaugh frequently appeared nude around the house and often took showers together. The evidence also discloses that it was their custom to take nude photographs of each other, as well as other unclad acquaintances, and place them in the "family album." When the victim initially came to live with Markland and Kavanaugh, Markland required her to shower with him. Then nude photographs of her, often including one or the other of the appellants, also nude, appeared in the "family album." This sexual lifestyle continued as the victim matured, and her conduct and social development deteriorated so much that she was committed to the girl's school in Sheridan. After her release from the girl's school, she married an employee of Markland, and she and her husband went to live in Hawaii.

The testimony of the victim was sufficient to establish the element of sexual intrusion with respect to the charge against Markland. The circumstances surrounding the lifestyle in the house justify the finding that the victim's submission was the product of means that would prevent resistance in a person of ordinary resolution. Those circumstances produced a distorted perception of proper parent-child relations, proper sexual conduct, and induced the victim to conclude that this was normal behavior. Expert psychological testimony established that the victim considered appellants' behavior as normal. Part of her confusion in establishing the dates of sexual misconduct was attributable to her inability to identify sexual misconduct. In addition, Markland was an authority figure who had, in effect, assumed the role of a stepfather for a...