Newsom v. State, 2189
| Decision Date | 03 April 1975 |
| Docket Number | No. 2189,2189 |
| Citation | 533 P.2d 904 |
| Parties | Thomas B. NEWSOM, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Herbert D. Soll, Public Defender, Lawrence J. Kulik, Asst. Public Defender, Anchorage, for appellant.
Avrum M. Gross, Atty. Gen., Juneau, Joseph D. Balfe, Dist. Atty., Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.
Before RABINOWITZ, C. J., CONNOR, BOOCHEVER and FITZGERALD, JJ., and DIMOND, Justice Pro Tem.
Newsom was convicted of rape. On this appeal he raises the following points: (1) that the grand jury indictment was invalid because based on insufficient evidence; (2) that it was prejudicial error for the trial court to allow the admission into evidence of the contents of a laundry bag Newsom had in his possession at the time of the alleged rape; and (3) that the sentence of imprisonment of 15 years imposed by the court was excessive.
The Grand Jury Indictment.
Three witnesses appeared before the grand jury. Embry, a Loomis Security Guard, making his rounds late one night, saw a woman, obviously intoxicated, walking in the vicinity of the Anchorage Cemetery. He also noticed that a man appeared to be following her, and becoming suspicious, he notified Police Officer Gonzales of this fact.
Gonzales came to the scene and turned on the floodlights of his police vehicle. Both he and Embry observed a man, who turned out to be Newsom, lying on top of a woman. The woman was unclothed below the waist, and Newsom's trousers were pulled down below his knees. Gonzales stated that he told Newsom to get off the woman and that the latter then 'disengaged his member from her.' When asked whether Newsom was penetrating the woman at the time, Gonzales: 'Well, the way he stood up, he got up on his knees, I could tell that he had penetration.' In addition, Gonzales said that the female victim told him that Newsom had raped her and told her if she didn't do what he wanted he would kill her.
The last witness was the female victim. She testified that Newsom had been following her and when he caught up with her he put his arms around her neck and took her into the cemetery, that he threatened to choke her if she didn't do what he wanted, that he took her clothes off, that she was too weak to fight, that he threw her to the ground, and that he had his hands around her neck and was on top of her.
At first the victim was reluctant to testify that Newsom had raped her. At one point she said that she didn't think 'that he did it.' Later, under examination by the state's attorney, she said that she didn't remember whether he did it or not. And then finally the following discourse took place, near the end of the Grand Jury proceeding, between the state's attorney and the victim:
Q. That is, did he complete the rape? If you so remember, I want you to tell us but if you don't remember, tell us you don't remember. Tell us why you don't remember, O.K.? Can you do that now? O.K., what do you remember about that?
A. He did rape me.
Q. Do you know that he penetrated you?
A. Um-hum.
Q. And why is it that you didn't want to tell me about it?
A. Because I-I don't like to tell everybody that.
Q. I see.
A. All these people watching me.
Q. Um-hum.
A. They're all looking at me.
Q. I can understand that.
When asked why she did not want to tell about it she said: 'Because I don't like to tell everybody that-all these people watching me-they're all looking at me.' Obviously, she was embarrassed and humiliated at having been raped, and this would adequately explain her initial reluctance to testify as to what actually happened.
Where there is a challenge to the sufficiency of the evidence supporting the Grand Jury indictment, the question to be determined
. . . is whether the evidence presented a sufficiently detailed account of criminal activity and the defendant's participation in this activity so that 'if unexplained or uncontradicted it would warrant a conviction of the person charged with an offense by the judge or jury trying the offense.' 1
The rule is satisfied in this case. AS 11.15.120 provides that 'a person who . . . has carnal knowledge of a female person, forcibly and against her will, . . . is guilty of rape.' The female victim in this case said at first she did not think that Newsom had raped her, then said she was not sure whether he had or not, and finally ended up upon further examination by stating that she had been raped by Newsom. But she explained this apparent contradiction because of her understandable embarrassment at having to admit before the people comprising the Grand Jury that she has been raped. Her testimony, supported by Officer Gonzales' testimony, if unexplained or uncontradicted by other evidence, would warrant a conviction of Newsom of the crime of rape. It was therefore sufficient to support the indictment.
The Contents of the Laundry Bag.
Appellant argues that the trial court committed prejudicial error in admitting into evidence the contents of a small laundry or ditty bag found in the possession of appellant at the time of the alleged rape. The bag contained two six-foot lengths of rope, a pair of black gloves, a woman's scarf, and five or six pairs of soiled women's panties.
After the testimony of the victim and the other material witnesses had been presented, this evidence was offered by the state, together with a knife and toy pistol also found in appellant's possession at the scene, for purposes of demonstrating appellant's state of mind and intent at the time. With reference to the offer of the panties in particular, counsel for the state indicated that
my argument is that if he had them with him, that he that particular night had a sexual head-of-steam, so to speak; and that having those, together with the fact that he came prepared with a knife and a gun and a six-foot piece of rope, all add up to-point to what type of a sexual head-of-steam he had.
Appellant objected to the relevancy of this evidence, and its potential inflammatory nature, arguing that the state could not sufficiently demonstrate any connection between the fact that appellant had been carrying these undergarments at the time and the likelihood that rape as opposed to consensual intercourse had occurred. 2 In response to this challenge, and in an effort to establish the probative value of this fact, the trial court required the state to substantiate the fact that such a connection existed. To this end the court accepted the state's offer of proof on the matter and allowed it to present-out of the presence of the jury-the expert testimony of Dr. Rollins, a qualified psychiatrist, on the question of the medical import of this evidence.
As is admitted by the state in its brief on appeal, the testimony of Dr. Rollins is less than totally dispositive. A review of his lengthy testimony reveals that he was markedly hesitant about many of his conclusions, admitting that absent considerably more information on appellant's psychological makeup he could not state with certainty the exact significance of appellant's carrying of the panties. He nevertheless indicated that as a medical conjecture this circumstance was closely related to 'some kind of sexual gratification', and probably indicated a form of fetishism. Moreover, a 'reasonable medical probability' existed that the carrying of these objects 'acted as a kindling or stimulant to sexual conduct'. The presence of the panties, however, did not 'in and of itself' automatically indicate a predisposition to effect forcible intercourse, and, assuming that the panties were indicative of fetishism, such fetishism might even be 'inconsistent' with an act of rape. The doctor also admitted that though as a juror he would consider the panties a material and significant fact, there was a risk that this information, considered alone, could be 'tremendously distorted' by the jury.
Dr. Rollins testified, however, that there was a 'distinct medical possibility' that one given to fetishism-which is indicative of sexual deficiency or aberration-would feel that sexual gratification with the opposite sex could not be obtained 'unless he takes it by force.' Moreover, considering the totality of the circumstances in the case rather than the presence of the panties in isolation, he said there was probably 'more than just coincidence' between the appellant's carrying of them and a claim of forcible rape. In fact, a significant connection between the two was probable.
Ultimately, in response to a specific inquiry propounded by the court, the doctor testified that the fact that appellant was carrying the panties, considered in the light of all the evidence, established a medical probability that it was 'more likely that rape rather than consensual intercourse occurred,' and that he was thereby led to the conclusion that 'this was a forced relationship.'
In closing, Dr. Rollins stated that although there was a possibility that the jury could distort the medical significance of this evidence, '. . . the risk of providing the material to the-to the jury, in my view, should be taken.
On the basis of this testimony the trial court concluded that a reasonable connection had been established between the presence of the panties and the commission of the crime charged, and that the evidence had been shown to have sufficient probative value to overcome any possible prejudicial effect from its admission. It thereupon ruled that the evidence was admissible. Appellant here asserts that this ruling was error, arguing both that the evidence was irrelevant and that its inflammatory nature outweighed any probative value it might have.
We have stated that
(i)n order to be admissible, evidence must be both relevant and material; it must be both probative of the proposition it was used to support, and supportive of an issue in the case. . . . In order to be relevant, evidence must simply make a proposition more probable than it...
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