People v. Coontz

• Decision Date: 21 July 1953
• Docket Number: Cr. 4974
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. COONTZ.

Page 694

259 P.2d 694

119 Cal.App.2d 276

PEOPLE v. COONTZ.

Cr. 4974.

District Court of Appeal, Second District, Division 2, California.

July 21, 1953.

Austin Clapp, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., and William E. James, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Appeal from conviction of a violation of section 288 of the Penal Code. As grounds for reversal appellant asserts the insufficiency of the evidence, errors in the admission of certain testimony, errors in refusing to give a requested instruction, and misconduct of the prosecuting attorney.

Evidence Sufficient

The case was tried October 30, 1952. The evidence furnished abundant proof of appellant's guilt. He was a licensed medical doctor, age 36 at the time of the incident and enjoyed a fair practice in a respectable community in Los Angeles County. The prosecuting witness was a thirteen-year-old by in the ninth grade. He will be referred to herein as Calvin. He first met appellant in November 1951. On April 19, 1952, he called at the doctor's home to do some housework at the latter's suggestion. It was about 1:00 p. m. on a Saturday. He had begun to remove burrs from a rug, when, because his eyes were watering, appellant directed him to lie down on a rug. As soon as a drug had been administered to the eyes, appellant covered them with tissue. Immediately the doctor pulled down the boy's jeans, fondled the latter's privates, embraced him and laid his hand on the organ of appellant. Some conversation ensued and appellant bit the witness and kissed him and caused him to have a consciousness of sexual feeling. Thereupon the doctor remarked about the work to be done and, as he left the room, Calvin continued to clean the rug. At his first opportunity he escaped through a side door and down the hill to the neighboring filling station where he telephoned his parents. His father called for him and as soon as Calvin was in the parental automobile he related the story given in his testimony, the giving of which the father verified. As further proof of the crime of April 19, Calvin was asked to tell of a previous visit to appellant's office when penicillin shots were injected into his hip. He testified that as that operation was performed the doctor's hand touched the private parts of his patient, 'just brushed by them.'

When Calvin's father arrived home he reported the experience of his son to the police. Officer Stonehouse testified that he set up a microphone in a radio cabinet in the corner of the father's living room and connected it with a wire leading into a rear bedroom where he had placed a tape recorder. By use of an ear-set monitor the conversation of Dr. Coontz and Calvin's father could be heard. The transcribed record of the conversation was played to the jury. It contained certain hesitancies and pauses following painful accusations, but no attempt to explain or deny Calvin's report.

There is nothing inherently improbable in Calvin's testimony. Appellant contends that the boy's testimony to the effect that appellant 'was on the side of me or on top of me' was 'something out of Barnum and Bailey'; that 'there was no testimony that an emission had occurred.' Such proof is not essential to a conviction for violating section 288. The only requirement is a touching with lustful intent. The assertion that Calvin's story is of an experience beyond the range of normal human experience is no argument to a reviewing court. The law lays upon the trial court the responsibility to find the facts of a controversy. Such finding will not be disturbed merely because the convicting testimony discloses unusual circumstances. To justify this court in excluding testimony of a witness who has been believed by a jury and the trial judge, the act of the accused must have been either physically impossible or the falsity of the testimony in proof of them 'must be apparent without resorting to inferences or deductions.' People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758, 759; Back v. Farnsworth, 25 Cal.App.2d 212, 219, 77 P.2d 295. Neither contradicted testimony nor that whose verity is under justifiable suspicion will justify the reversal of a conviction. The determination of the credibility of a witness and of the truth or falsity of the facts in issue are within the exclusive province of the trial court. (Ibid.)

To warrant the reversal of a judgment on the ground of perjury, the testimony attacked must be such as to shock the moral sense of the court. Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773, 780, 117 P.2d 850. If it fails to do so and its verity is suspected, the finding of the trial court is conclusive, except 'in those rare cases where it obviously appears that the testimony upon which the conviction was had is in and of itself, or when considered in conjunction with the undisputed facts of the case, so inherently improbable as to be impossible of belief, and therefore must be considered to be in effect no evidence at all.' People v. Van Perhacs, 20 Cal.App. 48, 51, 127 P. 1048, 1049. Such inherent improbability must plainly appear before 'the reviewing court should assume the functions of the trial jury.' People v. Lewis, 18 Cal.App. 359, 364, 123 P. 232, 234. The revolting character of testimony does not prove that it was inherently improbable that the accused was guilty. People v. Carlson, 73 Cal.App.2d 933, 939, 167 P.2d 812.

No Prejudicial Error In Rulings

Calvin was asked: 'Shortly after the first of the year, you say the doctor touched your privates?' Answer: 'Yes his hand just brushed by them.' The incident occurred while the doctor was giving the boy penicillin shots. Both on direct and cross-examination the circumstances were explained. The testimony related to an act between the doctor and the complaining witness and was proper for the jury's consideration as indicating the intent of appellant at the time of the crime charged. People v. Peete, 28 Cal.2d 306, 317, 169 P.2d 924. By...