Lessard v. State

• Decision Date: 21 May 1986
• Docket Number: No. 85-75,85-75
• Citation: 719 P.2d 227
• Parties: Lonnie LESSARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 227

719 P.2d 227

Lonnie LESSARD, Appellant (Defendant), v.The STATE of Wyoming, Appellee (Plaintiff).

No. 85-75.

Supreme Court of Wyoming.

May 21, 1986.

Wyo. Public Defender Program: Leonard D. Munker, State Public Defender, Martin J. McClain, Appellate Counsel, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Darold W. Killmer, Legal Intern, Cheyenne, for appellee.

Before THOMAS, C.J., and ROONEY, ^*BROWN and CARDINE, JJ., and GUTHRIE, J., Retired.

THOMAS, Chief Justice.

The first issue presented in this appeal is whether a verdict finding Lonnie Lessard guilty of one count of sexual assault and one count of aggravated burglary must be set aside in view of the findings in the same verdict of not guilty with respect to two other counts of sexual assault which were alleged to be based upon the same transaction.A second issue is raised which asserts error in the admission of expert testimony concerning the reactions of victims of sexual assault.We hold that there is no error in the admission of the expert testimony and that the divergent findings in the jury's verdict are not a basis for any claim of error on appeal.The judgment and sentence entered by the trial court is affirmed.

Lessard was charged with three counts of sexual assault in the first degree in violation of § 6-2-302(a)(i) and (ii), W.S.1977(June1983 Rev.), ¹ and one count of aggravated burglary in violation of § 6-3-301(a) and (c)(ii), W.S.1977(June1983 Rev.).²

The case was tried to a jury which found Lessard guilty of the first count of first degree sexual assault and the count of aggravated burglary.By its verdict the jury found him not guilty of the second and third counts of first degree sexual assault.Lessard then was sentenced to 10 to 25 years on each of the counts of which he was convicted, with the sentences to run concurrently, and with credit given for time in custody awaiting trial.This appeal is taken from the judgment and sentence imposing the two concurrent terms of imprisonment.

In the Brief of the Appellant Lessard states the issues to be:

"1.Whether in light of Appellant's acquittal on two counts of first degree sexual assault, there exists insufficient evidence to support his conviction of one count of first degree sexual assault and one count of aggravated burglary.

"2.The Court erroneously permitted the introduction of an expert's testimony that [the victim's] behavior during the course of the alleged sexual assault as [the victim] related it to the expert was consistent with [the victim] having been sexually assaulted."

In its Brief of the Appellee the State of Wyoming sets forth the issues to be resolved in this way:

"I.There exists sufficient evidence to support appellant's conviction of one count of first degree sexual assault and one count of aggravated burglary.

"II.Admission of expert testimony was within the discretion of the trial judge and does not constitute grounds for reversal."

Lessard first met the victim when he and a friend of the victim and her husband stopped at the victim's residence for the purpose of borrowing money to buy alcoholic beverages.The victim loaned them the money, taking the friend's impact set and Lessard's tool box as collateral, and they left.The friend and Lessard, accompanied by Lessard's father, then returned to the victim's home with beer and whiskey.The victim's husband was out of town in connection with his employment, and she and her young child had other visitors, a married female friend and the friend's two children.The victim, her female friend and the three men played some parlor games and consumed alcoholic beverages until the three men manifested some unacceptable conduct.The women asked them to leave and they did so.

Two days later Lessard went back to the victim's home to repay the loan and retrieve the collateral which had been left with her.Lessard testified that the victim was apprised of the fact that he had no place to stay and that he had been sleeping in his car.He said that the victim invited him to stay at her house any time he needed a place to stay.In her testimony at the trial the victim controverted this claimed invitation.

The next day the victim and her infant child visited at the home of her husband's aunt and uncle.She returned to her residence that evening, put her infant child to bed, and made some phone calls, including a telephone call to her husband.She testified that she then locked the doors and the windows and went to bed at about 11:00 P.M.On that day Lessard traveled to Hardin, Montana, with his father, and on the trip back to Buffalo they were partying and drinking most of the way.They arrived in Buffalo late in the evening, and Lessard went to a friend's house where he drank some beer.Lessard then went on to the Buffalo Bar for a drink, and after that he went to JR's for drinking and dancing until some time after midnight.He then went back to the Buffalo Bar where he met a friend, and the two of them went to another woman's home where they were told to go away.

Following this Lessard went to the victim's home.Lessard's story, as related in his trial testimony, was that he drove to the victim's house, knocked on the door and rang the doorbell, but received no response to his efforts to summon someone to the door.He then tried the front door, and, having discovered that it was unlocked, he entered and hollered to announce his presence.He testified that ultimately he found the victim asleep in the bedroom, woke her up and asked permission to "crash" there.According to Lessard the victim granted permission; they spent some time visiting; one thing led to another; and they engaged in consensual intercourse but only one time.After that Lessard went into the kitchen for a drink of water, and he noticed that the kitchen window was broken.He offered to return later in the day and fix the window.Lessard testified that about 5:00 or 5:30 A.M. the victim asked him to leave so that the neighbors would not see his car and infer that he had spent the night.He said that they agreed that he would return later to repair the window, and the victim told him how to enter the house using a credit card to force the lock if he found the door to be locked.Lessard stated that he then left, but he did pause outside the house to inspect the window so that he would know what repair materials he would need and in the process he did touch the broken glass with his fingers.

The victim's account was entirely different.She said that she was first awakened by the cries of her infant child who was in bed beside her and that she discovered Lessard straddling her waist with one knee on each side of her.Lessard demanded that she remove her clothing, but she declined.Lessard then began to remove his clothing and she kicked him in the face.This caused him to lose his balance and fall away from the bed, but he recovered before she could get away.The victim testified that Lessard then told her that if she ever wanted to hold her infant son again she would do what he wanted.She testified that he initially attempted to force her to perform fellatio, but she gagged when his penis came in contact with her lips, and that he then forced her to submit to sexual intercourse which was painful for her because of recent cervical surgery.She testified that some 20 minutes later Lessard repeated the act of intercourse with her and that after approximately another 45 minutes he had sexual intercourse with her a third time.According to her testimony it was after this last assault that they went into the kitchen and discovered the broken window.She said that Lessard stayed in her home until about 5:45 A.M. and that he then told her he would return later.She admitted that she did ask him not to tell anyone that they had had sex.

Immediately after Lessard left the victim telephoned her husband's aunt and uncle who summoned the police.The police officers took the victim to the hospital for an examination which revealed that the victim indeed had experienced recent sexual intercourse.Upon investigation the police officers found Lessard's fingerprints on broken fragments of glass which were outside the victim's home.When Lessard returned to the house later in the morning the police were present pursuing their investigation, and Lessard told them that his fingerprints would be all over the window.Lessard was not arrested at that time although he did make a statement to the police officers.Still later in the day Lessard went to the police station as he had been instructed to do, and at that time he was arrested for the offenses which were charged in the information.

Lessard's argument in support of his first claim of error is complex and sophisticated.He acknowledges that in Clegg v. State, Wyo., 655 P.2d 1240(1982), this court dealt with a very similar situation in which there were findings of guilty of three counts of first degree sexual assault and findings of not guilty with respect to another three counts of first degree sexual assault.To avoid the result dictated by Clegg v. State, supra, the appellant turns to Amin v. State, Wyo., 695 P.2d 1021(1985), a case involving the propriety of instructions on lesser included offenses.In that casethis court held that a lesser included offense instruction need not be given in a case in which the evidence discloses that the defendant is guilty either of the greater offense charged or is not guilty at all.The justification for a refusal to give the lesser included offense instructions in such an instance is that it invites the jury to speculate or compromise.Lessard contends that in his case, as in Amin v. State, supra, the evidence discloses that he either was guilty of three counts of first degree sexual assault and the aggravated burglary or that he really did nothing wrong.He then...