Padilla v. State
| Decision Date | 19 October 1979 |
| Docket Number | No. 5079,5079 |
| Citation | 601 P.2d 189 |
| Parties | Mike PADILLA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, and Sky Phifer, Student Intern, Wyoming Defender Aid Program, Laramie, appeared on brief, and Phifer appeared in oral argument, for appellant.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., and Gay V. Bartels, Asst. Atty. Gen., appeared on brief, and Bartels appeared in oral argument, for appellee.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Appellant-defendant appeals from the judgment and sentence of the trial court rendered on a jury verdict of guilty of first degree sexual assault, accomplished by forcing a female, age 15 (herein referred to as "victim"), to commit the act of fellatio with him, in violation of § 6-4-302(a)(i), W.S.1977. 1 The information charged appellant and Paul Rodriguez with this crime in one count (Count II), and it charged them in another count (Count I) with a similar violation accomplished by forcing her to have sexual intercourse. Appellant was found not guilty of the charge in the count relating to sexual intercourse (Count I). Rodriguez pleaded guilty to a reduced charge and testified against appellant.
Appellant presents two contentions of error:
1. The verdict of acquittal as to Count I (forcible intercourse) is a finding of "no force" which finding negates an essential element of the conviction under Count II (forcible fellatio), because the proof as to force was identical under both counts.
2. The trial court committed reversible error by not allowing impeachment of the prosecutrix under Rule 613(a) by her testimony given at the preliminary hearing.
We affirm.
At the trial, appellant did not contest the fact that the acts complained of did occur. The defense was based on the contention that the acts were voluntary on the part of victim and not accomplished through force on the part of appellant. By its verdicts, the jury found the act of sexual intercourse to have been voluntary but the act of fellatio to have been accomplished through force.
At the outset, we note that there was evidence to sustain the finding of the use of force in the fellatio. Rodriguez testified that appellant "grabbed hold of her wrists and held her down"; and asked her to engage in the act of fellatio; that when she said she would not ; and that while the fellatio was occurring, she was kicking. He testified further:
This evidence is sufficient to support the jury finding of use of force in the act of fellatio, inasmuch as the standard by which we test the sufficiency of evidence on appeal of a criminal matter is that we examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and give the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Tucker v. State, Wyo., 594 P.2d 470 (1979).
We also note that there was sufficient evidence to sustain the finding of consent by victim to sexual intercourse by Rodriguez and appellant. They went to her home. She met them at the door in her nightgown. She went with them voluntarily into the bedroom, and accompanied each of them separately into the bathroom. She offered to expose herself to Rodriguez if he would expose himself to her. She asked each of them to have sexual intercourse with her. She took her own clothes off. She had previously talked to a third party about having sexual intercourse with appellant.
However, the principal question here presented to us is not whether the evidence is sufficient, but whether the finding of force in the act of fellatio was inconsistent with the finding of no force in the act of sexual intercourse.
The time came when Rodriguez was having sexual intercourse with victim on the bed. While this was happening, appellant began the act of fellatio with her in accordance with the previously set forth testimony of Rodriguez. Rodriguez further testified that appellant was still engaging in the act of fellatio with her when Rodriguez "got off from her" and that appellant thereafter had sexual intercourse with her. Victim's testimony confirmed this sequence of acts, but she contended that force was used in connection with Rodriguez's sexual intercourse with her and that it was used by appellant in connection with both his sexual intercourse and the fellatio with her.
Appellant argues that if force was used by appellant in the fellatio (as found by the jury), it carried forward and was present when he had sexual intercourse with her (contrary to the finding of the jury); and thus the verdicts were inconsistent. This argument is premised on the assumption that the sexual intercourse and fellatio were part of the same act or crime. Since this is not true, the argument is fallacious. Sexual intercourse and fellatio are two separate and distinct occurrences, and they are two separate and distinct crimes. Force is the antithesis of consent in this matter, and there is nothing inconsistent in one's consent to engage in sexual intercourse and in his or her refusal to engage in fellatio.
Prior to 1977, the crime of rape and the crime of sodomy were proscribed in separate statutes. Rape was defined:
Sodomy was defined:
"Whoever commits the abominable and detestable crime against nature, by having carnal knowledge of a man or beast; or who being a male carnally knows any man or woman through the anus, or in any other manner contrary to nature; and whoever entices, allures, instigates or aids any minor to commit masturbation or self-pollution, is guilty of sodomy, and shall be imprisoned in the penitentiary for not more than ten years." 3
This sodomy statute was judicially determined by the court of the state from which it originated to include fellatio and cunnilingus. Glover v. State, 179 Ind. 459, 101 N.E. 629 (1913); Young v. State, 194 Ind. 221, 141 N.E. 309 (1923).
In 1977, the Wyoming legislature saw fit to repeal these two statutes and to enact in lieu thereof §§ 6-4-301 through 6-4-314, W.S.1977. 4 In so doing, the legislature designated the former crimes of rape and sodomy as " sexual assault." It did away with sodomy as a crime per se and made it a crime only if accompanied by force or threats or under circumstances in which the victim's ability to consent was impaired. 5 It also set forth the definitions of the crimes of rape and sodomy in a single statute. Legislative intent may be determined through legislative history of a statute. Burnham Hotel Co. v. City of Cheyenne, 30 Wyo. 458, 222 P. 1 (1924); Miller v. Board of County Commissioners of County of Natrona, 79 Wyo. 502, 337 P.2d 262 (1959).
Nonetheless it cannot be said that such enactment made sexual intercourse and fellatio a part of one and the same act or crime. The legislative history which at one time made fellatio a crime whether or not accomplished by consent; the distinction through definition of the two terms; and the use of the disjunctive "or" and not the conjunctive "and" between "sexual intercourse" and "fellatio" by the legislature in defining "sexual penetration," 6 reflect the intention to distinguish between the crime of sexual assault by forcible sexual intercourse and the crime of sexual assault by forcible fellatio. When expressed in the disjunctive, two words, clauses, or phrases are coordinate and either is applicable to any situation to which its terms relate an alternative is indicated which requires separate treatment. Basin Electric Power Cooperative v. State Board of Control, Wyo., 578 P.2d 557 (1978); Matter of Adoption of Voss, Wyo., 550 P.2d 481 (1976).
The legislative intent to define sexual intercourse, cunnilingus, fellatio, analingus and anal intercourse as separate and distinct crimes is reflected by the language used in § 6-4-306(b), W.S.1977, which provides in part:
State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977), is in accord with the result we here reach under a similar statute.
By definition of the act of fellatio and that of sexual intercourse, the evidence necessary to prove one of these acts is obviously not the same evidence necessary to prove the other. See People v. Sharpe, Colo., 514 P.2d 1138 (1973); State v. Ware, 53 Ohio App.2d 210, 372 N.E.2d 1367 (1977).
The record as a whole supports the...
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...offer of proof is necessary so that this court may be adequately apprised of the nature of the excluded testimony. Padilla v. State, Wyo., 601 P.2d 189 (1979); Elliott v. State, Wyo., 600 P.2d 1044 (1979); Montez v. State, Wyo., 573 P.2d 34 (1977); Pack v. State, Wyo., 571 P.2d 241 (1977); ......
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