McArtor v. State

• Decision Date: 09 May 1985
• Docket Number: No. 84-22,84-22
• Parties: Ed McARTOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 288

699 P.2d 288

Ed McARTOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 84-22.

Supreme Court of Wyoming.

May 9, 1985.

Richard G. Miller and David B. Park, Casper, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen and Allen C. Johnson, Sr. Asst. Attys. Gen., for appellee.

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

ROONEY, Justice.

Appellant appeals from a conviction, after a trial to the court, of taking indecent liberties with a minor in violation of § 14-3-105, W.S.1977. Appellant was originally charged with several counts of indecent liberties, based on more recent alleged acts, but all charges except one were either dismissed, or appellant was found not guilty at trial. That count, upon which appellant was found guilty and sentenced to not less than one nor more than two years, concerned an act with a sixteen-year-old girl, in June of 1977; she testified that she and appellant engaged in consensual sexual intercourse.

Appellant raises two issues on appeal. First, appellant contends that there was insufficient evidence to support a finding that the incident occurred in Natrona County. Second, appellant contends that the trial court erred in determining that the appellant could be charged and convicted under § 14-3-105 because: (a) "child" as used in § 14-3-105 is a person under the age of sixteen; (b) criminal statutes should be strictly construed and any ambiguity resolved in favor of the appellant; (c) § 14-3-105 has been impliedly repealed by § 6-2-304, W.S.1977; and (d) § 6-2-304 is the more specific statute of the two, and a We affirm.

general statute must give way to a more specific statute on the same subject.

STATUTORY BACKGROUND

A review of the background of the two statutes is in order inasmuch as the issues involve alleged statutory inconsistencies; inasmuch as the pertinent law is that which was in effect at the time of the incident which occurred several years ago, in June of 1977; and inasmuch as legislative history is often determinative of legislative intent. State v. Stovall, Wyo., 648 P.2d 543 (1982); Padilla v. State, Wyo., 601 P.2d 189 (1979); Town of Clearmont v. State Highway Commission, Wyo., 357 P.2d 470 (1960).

Section 14-3-105, W.S.1977, now in effect and in effect since January 1, 1979, reads:

"Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both."

It was enacted as part of Chapter 25, Session Laws of Wyoming, 1978. The same enactment recited that:

"Upon becoming nineteen (19) years of age, an individual reaches the age of majority * * *." Section 14-1-101, W.S.1977.

The indecent liberties statute in effect when the incident occurred for which appellant was convicted, in June of 1977, read:

"It shall be unlawful for any person, including but not limited to parent, guardian or custodian knowingly to take immodest, immoral or indecent liberties with any such child or knowingly to cause or encourage any such child to cause or encourage another child to commit with him or her any immoral or indecent act.

"Any person who shall violate the provisions of this section shall be deemed guilty of a felony and upon conviction thereof shall be fined in any sum not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not to exceed ten (10) years, or by both such fine and imprisonment."

It was codified as § 14-28, W.S.1957, and enacted by § 8, Ch. 220, Session Laws of Wyoming, 1957 (Child Protection Act). The present statute omits specific reference to parents, guardians or custodians and it omits the word "such" modifying child. Section 7, the immediately preceding section of the Child Protection Act, made it a crime to solicit, procure or otherwise knowingly encourage "any female under the age of eighteen years to engage in illicit sexual intercourse." ¹ Accordingly, the words "any such child" in § 8 describe a "female under the age of eighteen years." The accepted rule of construction is that "such" refers to the character of that which immediately precedes it unless a contrary legislative intent is evidenced. Elementary School Districts 2, 3, and 10 of Campbell County v. District Boundary Board of Campbell County, Wyo., 454 P.2d 237 (1969); In re Tidball, 40 F.2d 560 (D.C.Wyo.1930). Inasmuch as the last antecedent to "such" child in § 8 of the Act is a "female under the age of eighteen years" in § 7 thereof, the legislative intent was obviously to have § 8 pertain to an age under eighteen years. Chapter 70, § 2, Session Laws of Wyoming, 1977, amended § 7 to make one guilty of a felony who solicits for, procures for, or knowingly encourages anyone "under the age of sixteen years to engage in illicit sexual penetration or sexual intrusion." Section 8 was not The sexual assault statute in effect at the time of this incident, was enacted in 1977 as part of Chapter 70 of the Session Laws of Wyoming, 1977, with an effective date of May 27, 1977--the month previous to that in which this incident occurred. It was originally codified as § 6-63.5 in W.S.1957, and it read:

then amended or included in Chapter 70 and, thus, remained as enacted in 1957 with "any such child" referring to a "female under the age of eighteen years."

"An actor who is at least four (4) years older than the victim and who inflicts sexual penetration or sexual intrusion on a victim under the age of sixteen (16) years is guilty of sexual assault in the fourth degree."

The penalty was fixed at imprisonment in the county jail for not more than one (1) year or, if previously convicted of a similar crime, at not less than one (1) nor more than five (5) years. Sexual intrusion and sexual penetration were defined to include that which was testified to by the victim in this case.

This section was slightly modified in 1982 and was numbered as § 6-2-304, W.S.1977. It was again amended in 1984 to read:

"(a) Except under circumstances constituting a violation of W.S. 14-3-105, an actor commits sexual assault in the third degree if:

"(i) The actor is at least four (4) years older than the victim and who inflicts sexual intrusion on a victim under the age of sixteen (16) years; or

"(ii) The actor is an adult and subjects a victim under the age of twelve (12) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim." (Emphasis added.) Session Laws of Wyoming, 1984, Ch. 44, § 2.

Although not presented as an issue in this case, the fact that the statute cited in the information was not a statute in existence at the time of the incident is not reversible error in this instance inasmuch as the indecent liberties statute cited ( § 14-3-105, W.S.1977) is very similar to the indecent liberties statute in effect at the time of the incident ( § 14-28, W.S.1957); inasmuch as the offense was otherwise sufficiently described to identify the statute alleged to have been violated; and inasmuch as appellant was not misled to his prejudice.

" * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for a reversal of a conviction. * * * " Rule 9(a), W.R.Cr.P.

See United States v. Wagstaff, 572 F.2d 270 (10th Cir.1978), and Sonnier v. United States, 314 F.2d 69 (4th Cir.1963).

SUFFICIENCY OF THE EVIDENCE

The victim twice testified that she was in Natrona County when the incident occurred. On cross-examination, her credibility was brought into question by her uncertainty as to the exact location of the county line. But the trier of fact gauged her credibility and made a determination that the incident occurred in Natrona County. This finding of venue was made on sufficient evidence. Brown v. State, Wyo., 581 P.2d 189 (1978). The trier of fact is the sole judge of the credibility of witnesses. McCormick v. Sewell, Wyo., 372 P.2d 481 (1962); Stock v. Roebling, Wyo., 459 P.2d 780 (1969). On appeal, we do not evaluate the evidence but only ascertain whether or not there was substantial evidence upon which the trier of fact made a finding. Culver v. Sekulich, 80 Wyo. 437, 344 P.2d 146 (1959). As often said, we accept as true the evidence of the successful party, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give the evidence of the successful party every favorable inference

                which may fairly and reasonably be drawn therefrom.   Farella v. Rumney, Wyo., 649 P.2d 185 (1982);  Foster Lumber Company, Inc. v. Hume, Wyo., 645 P.2d 1176 (1982);  Distad v. Cubin, Wyo., 633 P.2d 167 (1981).  We will not disturb the finding of the trial court that venue was in Natrona County
                

CONVICTION UNDER SECTION 14-3-105, W.S.1977 (SECTION 14-28, W.S.1957)

As noted supra, appellant contends that he was improperly charged and convicted under § 14-3-105, W.S.1977, for any one of four reasons:

(a) Appellant contends that the victim was over the age of sixteen and thus was not a "child" as the term was used in § 14-3-105, W.S.1977 ( § 14-28, W.S.1957).

The prime objective in construing a statute is ascertainment of legislative intent. Sanches v. Sanches, Wyo., 626 P.2d...