Stambaugh v. State

• Decision Date: 18 July 1980
• Docket Number: No. 5247,5247
• Parties: Randy Lynn STAMBAUGH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1237

613 P.2d 1237

Randy Lynn STAMBAUGH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5247.

Supreme Court of Wyoming.

July 18, 1980.

Gerald M. Gallivan, Director, Wyoming Defender Aid Program, Laramie, Michael Schilling, App. Counsel, Wyoming Public Defender, Cheyenne and Mary Elizabeth Galvan, Student Intern, Wyoming Defender Aid, Laramie, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, Gay Vanderpoel, Asst. Atty. Gen., and Kenneth E. Stebner, Deputy County Atty., Sheridan County, Sheridan, for appellee.

Before RAPER, C. J, and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellant-defendant appeals from a judgment and sentence rendered on a jury verdict which found him guilty of two counts of aggravated assault and battery with a deadly or dangerous weapon in violation of § 6-4-506(b), W.S.1977, of two counts of sexual assault in violation of § 6-4-302(a)(ii), W.S.1977, and of one count of procuring a minor to engage in illicit sexual intrusion in violation of § 14-3-104, W.S.1977. He was sentenced: (1) to not less than 10 years nor more than 14 years on each count of assault and battery with a deadly or dangerous weapon; (2) to not less than 30 years nor more than 50 years for both counts of first degree sexual assault, " * * * said sentence being a consolidated sentence on the two counts. In the event the Supreme Court rules that a consolidated sentence on the two counts is not appropriate, then the Defendant is sentenced to not less than fifteen (15) years and not more than twenty-five (25) years on each of said counts"; and (3) to not less than 4 years nor more than 5 years on the count of procuring a minor child to engage in illicit sexual intrusion, said sentences to run consecutively.

Appellant alleged error: (1) in denying a motion for mistrial made immediately after the prosecuting witness referred to a statement made by appellant that he was going to discuss the incident with his parole officer We affirm.

and turn himself into the police; (2) in submitting the case to the jury on the charge of procuring a minor child to engage in illicit sexual intrusion under the facts established in the case; and (3) in imposing a single sentence on appellant for violation of the two counts of sexual assault instead of imposing separate sentences for each count.

The prosecuting witness testified that she and her five-year-old daughter spent several hours driving around Sheridan and environs with appellant on July 23, 1979 trying to cash a check received from the sale of some leather goods made by defendant and trying to find the maker of the check. At some point, appellant stopped the car near a cemetery at Big Horn. The prosecuting witness allowed her daughter to leave the car and play outside. She rejected appellant's efforts to embrace her, whereupon he placed a large butcher knife to her face and ordered her to remove her clothes except for her shirt, and to drink a beer. Later and at appellant's command, she called her daughter back to the car. Because the prosecuting witness was crying, appellant struck her in the face. They then drove to another place in the cemetery where appellant again struck her in the face and stabbed her in the upper left thigh. They then drove to the Wagon Box historical site near Story where appellant forced both her and her daughter to perform fellatio on him, and he forced her to perform cunnilingus on her daughter. However, she only pretended to do so. During each of these acts, the knife was on the car seat by appellant. Appellant then struck her again and stabbed her again in the leg near the knee. When another vehicle arrived on the scene, appellant ordered her to put on her clothes. They returned to Sheridan, and appellant allowed her to leave his car upon her assurances that she would not turn him in to the police.

REFERENCE TO PAROLE STATUS

On direct examination, prosecutrix was allowed to relate the events which occurred immediately after the assault. This lengthy relation ended as follows:

"So, then he brought us to town on the I-90, and as he was bringing us to town he said, 'I'll take you to the hospital to the emergency room,' and I said, 'No, just take us home.' I told him that I would tell my mom that I had ran into a door or I had gotten beaten up for something. He says that he was going to talk to his parole officer and tell him what happened, and after he talked to him he was going to go down to the police station to turn himself in

"Q. (Prosecuting attorney) Let me hold you up.

"MR. REDLE (defense attorney): May we approach the bench?

"THE COURT: Yes."

Defense counsel then complained about the reference to parole as showing the appellant to have been convicted previously and to have been in the penitentiary. In response to the court's inquiry as to whether or not he wanted that part of the testimony stricken and the jury instructed to disregard it, defense counsel responded: "I don't know if that would do any good * * * it would be better if there were not to be any instruction concerning that particular thing so we don't draw any attention to it." The court denied appellant's motion for a mistrial.

Rule 404(b), W.R.E. provides:

"* * * Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

This rule has been observed to be in substance a statement of long standing Wyoming case law. Sanville v. State, Wyo., 593 P.2d 1340 (1979). See Elliott v. State, Wyo., 600 P.2d 1044 (1979); Gabrielson v. State, Wyo., 510 P.2d 534 (1973).

However, such rule and law is subject to the proposition that improperly admitted evidence is not ground for reversal unless there is actual prejudice to the accused. ¹ Hamill v. State, Wyo., 602 P.2d 1212 (1979); Murdock v. State, Wyo., 351 P.2d 674 (1960); 24B C.J.S. Criminal Law § 1915(17). Such evidence is not actually prejudicial unless there is a reasonable possibility that in the absence of the error the verdict might have been more favorable to the accused. Nimmo v. State, Wyo., 603 P.2d 386 (1979); Reeder v. State, Wyo., 515 P.2d 969 (1973); Hoskins v. State, Wyo., 552 P.2d 342, rehearing denied 553 P.2d 1390 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977).

In this case, the statement was voluntarily made by a witness who was not familiar with the laws of evidence and who did not make the statement with intent to unfairly prejudice the accused; the statement was not elicited by the prosecution or made as a result of a deliberate action by the prosecution, and, in fact, resulted during an extended relation of events by the witness which relation was not objected to by the accused in an effort to confine the testimony to questions and direct answers; the accused refused an offer by the court to give cautionary instruction in an effort to cure the error; the statement was an oblique reference to prior criminal activity and was not a direct attack on the accused's character or reputation; the statement was not repeated or enlarged upon by the witness or the prosecution; and the evidence of the accused's guilt appears to be overwhelming ² apart from the statement. See Annotation: "Effect of voluntary statements damaging to accused, not proper subject of testimony, uttered by testifying police or peace officer." 8 A.L.R.2d 1013.

The language of the court, in United States v. Splain, 8th Cir. 1976, 545 F.2d 1131, 1133, is appropriate to the facts of this case:

"The general rule is that the Government is precluded from introducing evidence of defendant's other crimes or criminal conduct except in certain circumscribed and well-delineated situations. (Citations.) However, this rule is inapposite to the present case for several reasons. First the Government played no active role and exercised no bad faith in eliciting this information from Hartley. (Citations.) The Government did not attempt to introduce or exploit this evidence for the purpose of reflecting upon Splain's guilt. Second, the passing reference made by Hartley was not patently inculpatory, but was rather innocuous, and could not have had the likely effect of implanting prejudice in the jurors' minds. Third, any improbable taint which could have flowed from this evidence could have been cured by the refused cautionary instruction that the District Court offered to give. (Citations.) Counsel for Splain rejected the instruction and Splain can not now complain that the evidence may have prejudiced the jury. A cautionary instruction here would have erased any possible prejudice. The trial judge can not be faulted for any trial mishaps that he offers to and could correct. Moreover, the evidence of guilt in this case was overwhelming; therefore, there is little likelihood that the jury was affected by the passing comment. (Citations.) * * * "

See Hamill v. State, supra; State v. Warden, Mo.App., 591 S.W.2d 170 (1979); State v. Nettleton, 65 Wash.2d 878, 400 P.2d 301 (1965); United States v. Doby, 8th Cir. 1979, 598 F.2d 1137; State v. Johnson, 60 Wash.2d 12, 371 P.2d 611 (1962).

The error, if any, was harmless, and we do not find that the trial court abused its

discretion ³ in refusing to grant appellant's motion for a new trial.

PROPRIETY OF CHARGE UNDER § 14-3-104, W.S.1977

Count V of the information charged appellant with violation of § 14-3-104, W.S.1977 in that he "did unlawfully procure a five-year-old girl to engage in sexual intrusion." Section 14-3-104, provides:

"Anyone who solicits, procures or knowingly encourages anyone under the age of sixteen (16) years to engage in illicit sexual penetration or sexual intrusion as defined in W.S. § 6-4-203 (sic) is guilty...