Manning v. Warden, Nevada State Prison, 12487
| Decision Date | 14 February 1983 |
| Docket Number | No. 12487,12487 |
| Citation | 99 Nev. 82,659 P.2d 847 |
| Parties | Benny R. MANNING, Appellant, v. WARDEN, NEVADA STATE PRISON, Respondent. |
| Court | Nevada Supreme Court |
Thomas E. Perkins, State Public Defender, and Michael K. Powell, Sp. Deputy Public Defender, Carson City, for appellant.
D. Brian McKay, Atty. Gen., Carson City, Mills B. Lane, Dist. Atty., and Edward B. Horn, Deputy Dist. Atty., Reno, for respondent.
This is an appeal from an order denying post-conviction relief to appellant Benny R. Manning. Manning was convicted of forcible rape and committing the infamous crime against nature upon a person under the age of eighteen. We shall consider three issues raised by Manning in this appeal.
Appellant first challenges the giving, over objection, of the following instruction: "Criminal intent can only be proven as a deduction from declarations or acts; when the acts are established, the natural and logical deduction is that the defendant intended to do what he did do."
Manning first contends that the giving of this instruction was a violation of NRS 47.230 which prohibits the judge from directing the jury to find a presumed fact against the accused.
The instruction is not violative of NRS 47.230 first, because it does not concern any of the elements essential to establish either offense, and second, because it is not phrased in mandatory terms.
Manning was convicted of two general intent crimes. The jury was not required to find any specific intent since the requisite mental state is said to be found in the doing of the acts which constitute the offense. See Boyd v. State, 572 P.2d 276 (Okl.Cr.App.1977). In order to convict Manning of forcible rape, the jury was required only to find that Manning had carnal knowledge of a female against her will. 1 In order to convict Manning of the infamous crime against nature upon a person under the age of eighteen, the jury was required to find that Manning had committed an act proscribed by former NRS 201.190, in this case cunnilingus or anal intercourse, upon a person under the age of eighteen.
The instruction in issue explains the concept of mens rea, "the absence of accident, inadvertence or casualty--a varying state of mind which is the contrary of an innocent state of mind ...." 2
In telling the jury that criminal intent can only be proven as a deduction from declarations or acts, the court merely restated NRS 193.200, namely that the "[i]ntention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused." The second clause of the instruction states that doing an act gives rise to the conclusion that the act was done intentionally.
The instruction reflects common experience. In so doing, it does not command the jury to find anything, but merely reminds the jury that most actions are not the result of mistake or inadvertence. The instruction thus did not violate NRS 47.230. Cf. Marshall v. State, 95 Nev. 802, 603 P.2d 283 (1979) ().
Appellant next argues that the giving of the instruction amounted to denial of his due process rights as announced in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Based on the foregoing analysis, we also reject this contention. 3 We therefore conclude that the trial court did not err in giving its instruction on general criminal intent. 4
We next consider whether the trial court erred by instructing the jury that consent was no defense to a charge of committing the infamous crime against nature. At the time of the alleged offense, NRS 201.190 proscribed both cunnilingus and anal intercourse, two acts which Manning allegedly committed on the complainant. Under the statute, consent was no defense to the charge, regardless of the age of the participants; however, age was an aggravating circumstance to be considered in determining the appropriate penalty. 5 Manning was convicted and sentenced under that portion of the statute concerning commission of sexual acts upon a person under the age of eighteen.
Manning urges that consent was a legitimate defense to the charge. He argues that since the complainant was seventeen years old, she was of sufficient age to consent to the act. The argument is premised on the fact that former NRS 200.365, in existence at the time of the offense, limited the crime of statutory rape to sexual intercourse committed with a female under the age of sixteen. Manning argues that the same age limit should apply to his alleged offense as well.
We disagree. The age of majority in this state is eighteen. NRS 129.010; see also NRS 62.010. The legislature was within its powers in enacting the statutory provisions applicable to appellant since protecting the health and morals of minors is a legitimate state interest. The fact the legislature chose the age of sixteen for consent to sexual intercourse in no way diminishes its authority to determine that all minors should be protected under NRS 201.190. 6
The third alleged error relates to reference by a prosecution witness to Manning's past criminal record. A police officer testified that after receiving a description of the crime from the complainant he had "come to an understanding or an idea of who the suspect might be in this particular case." The detective told the jury that he reached this conclusion when the victim said her assailant was a "young man by the name of Benny or Sid." The detective then testified that "when she mentioned Benny, I knew of Benny Manning myself." The detective further testified that based on his belief that the suspect was Benny Manning, he went to the identification division of the police department to obtain a mug shot. The inference from the detective's testimony is clearly that Manning had been engaged in some prior criminal activity.
Both parties agree that the test for determining a reference to criminal history is whether "a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity." Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373, 375 (1972). In applying this test, it appears that the jurors could have inferred previous criminal activity from either the reference to the mug shots or from the focus on Benny Manning as a suspect based upon the victim's description and the nature of the charge. The combined effect of the two statements would lead the jury to conclude Manning had a criminal record, probably sexual in nature. Cf. Gehrke v. State, 96 Nev. 581, 613 P.2d 1028 (1980) (); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979) (); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975) (); Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971) ().
The state concedes that in a majority of jurisdictions improper reference to criminal history is a violation of due process since it affects the presumption of innocence; the reviewing court therefore must determine whether the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). 7
Applying the Chapman standard to the facts of this case, we conclude, beyond a reasonable doubt, that the error is harmless with regard to the conviction of the infamous crime against nature. There was uncontradicted evidence of oral and anal intercourse involving Manning and the seventeen year old complainant. Since Manning claimed that the victim had consented and since consent was not available as a defense to the crime, there was a clear violation of former NRS 201.190. We hold under such circumstances the improper reference to Manning's criminal history was harmless.
We arrive at a different conclusion concerning the rape conviction. There appears to be no doubt that a variety of sexual activities took place between Manning and the complainant. A reading of the record does, however, reveal some serious questions relative to the forcible nature of the couple's encounter.
The evidence used to convict Manning came primarily from the complainant. She testified that Manning came to her apartment after midnight, apparently seeking marijuana. Manning had on previous occasions smoked marijuana at the apartment with the complainant and her boyfriend. The complainant testified that after Manning entered the apartment, he dragged her upstairs and forced her to participate in various sex acts.
The complainant testified that she had attempted to escape onto a balcony, but was apprehended just as she called for help. Although her neighbors were at home in the next apartment, they did not hear any sounds of a struggle. The complainant testified...
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