State v. Adair
| Decision Date | 15 December 1978 |
| Docket Number | No. 12374,12374 |
| Citation | 587 P.2d 1238,99 Idaho 703 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Dennis ADAIR, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Darrel W. Aherin, Lewiston, for defendant-appellant.
Wayne L. Kidwell, Atty. Gen., Lynn E. Thomas, Deputy Atty. Gen., James F. Kile, Asst. Atty. Gen., Boise, for plaintiff-respondent.
Defendant-appellant, Dennis Adair, appeals from a verdict, judgment of conviction and sentence on a charge of forcible rape. Sentenced to serve a maximum indeterminate term of 25 years, he appeals both the conviction and the sentence. The primary issue is whether the admitted intercourse was consensual or forcible.
The prosecution's evidence at trial showed the following: after an evening of moderate to heavy drinking in the company of her parents, 1 the prosecutrix left her father's home shortly after 1:30 a. m. for the clubhouse of a Lewiston motorcycle club. She had previous familiarity with both the clubhouse and its members. The prosecutrix testified that 10 or 15 minutes after her arrival at the clubhouse,
A. There was this girl and she come running out of the bedroom out of this one room off the kitchen.
Q. When was this?
A. This was not too long after I got there.
Q. And what can you tell what you observed at that time?
A. Well, I heard some screaming and crying and I didn't really, you know, pay much attention to it because I didn't really know what was going on, you know.
Q. And then what happened?
A. This girl come running out of there and she asked this Bruce Taylor to take her home and he said he wasn't going to take her home so she took off running out of the door.
Shortly thereafter the prosecutrix and Adair left the clubhouse together in search of this woman. While they were driving around, the prosecutrix was told by Adair that he would like to have sex with her. She refused.
They returned to the clubhouse. Sometime later, Adair stated sexual intercourse was about to take place and she was to be part of it. She was picked up bodily by Adair and two other club members and carried through the kitchen and into the bedroom where they threw her down on a bed. In the bedroom Adair and another club member, Daniel Whinery, forcibly removed her jeans and underpants. Following this Adair had intercourse with her in the presence of Whinery and three other members. According to her testimony, intercourse came about as a result of his hitting, choking and threatening her. She testified that he repeatedly hit her head against the wall, that he hit her in the face with his fist a couple times and then chewed off her earring. She also testified that when Adair was finished, Whinery took Adair's place on the bed, but a well-placed kick brought about his retreat. Then, left alone, she put on her jeans, found her glasses and wig, and left the clubhouse in tears, arriving at her father's house between 4:00 and 4:30 a. m.
Adair testified on his own behalf that the encounter was a mutually consensual act of intercourse and that he did not use force or threat of force.
The admitted act of intercourse was testified to by two other witnesses, Daniel Whinery for the State, under a grant of immunity from prosecution, and Dan Bolen for the defendant. The gist of their stories was that they saw no hitting, choking or other violent behavior toward the prosecutrix, who they said appeared to consent.
Adair first attacks the sufficiency of the evidence to support his conviction on the grounds that the testimony of the complaining witness was not corroborated to the extent required by prior Idaho cases. 2
The rule as to corroboration of the complaining witness in sex crime cases was summarized in State v. Elsen, 68 Idaho 50, 54, 187 P.2d 976, 978 (1947), as follows:
If the character or reputation of the prosecutrix for truth and chastity is unimpeached, and her testimony is not contradictory nor inconsistent with the admitted facts of the case, and is not inherently improbable nor incredible, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Either will suffice. If, however, her character or reputation for truth and chastity, or either, is impeached, or her testimony is contradictory or is inconsistent with the admitted facts of the case, or is inherently improbable or incredible, then there must be direct evidence corroborating her testimony.
The Court went on to explain the type of evidence required in cases in which the prosecutrix has been impeached:
(T)his case requires evidence other than the testimony of the prosecutrix which in and of itself, and without the aid of her testimony, Tends to support her testimony that the offense was committed, and which makes it Appear probable that the accused was the perpetrator.
No hard and fast rule can be laid down on the subject of corroboration. Each case must depend upon its own merits and surrounding circumstances. State v. Bowker, 40 Idaho 74, 231 P. 706.
Id. at 55, 187 P.2d at 978 (emphasis added).
In the later case of State v. Goodrick, 95 Idaho 773, 775, 519 P.2d 958, 960 (1974), the Court was careful to point out that "(t)he use of the phrase 'direct evidence' in the (Elsen ) summarization is not sustained by holdings of those cases, if the phrase is construed to mean 'testimonial evidence' as opposed to 'circumstantial evidence.' " Adair argues that because the prosecutrix's reputation for chastity was impeached by testimony admitting prior acts of intercourse with other men, under the rule of Elsen and Goodrick, corroboration by independent evidence is required.
The following facts and circumstances all tend to support the complaining witness' testimony that she was forced to submit to intercourse with Adair. Both of her parents testified that she arrived home dirty, disheveled, bruised and hysterical. The physician who examined the prosecutrix testified that she had numerous bruises, was somewhat tender in the chest and had some small hemorrhages in the whites of her eyes of a type caused by contact of a blunt object with the eye. The police detective who investigated the case photographed her; he testified to observing bruises on the prosecutrix's face and arm, and the pictures he took clearly showed bruises around the left eye and a large bruise on the inside of the upper portion of her right arm. A jury could properly find that such evidence corroborates her testimony that force was used by Adair. Moreover, one of the club members, Daniel Whinery, testified that in events prior to the intercourse, the prosecutrix made a protest to the onlooking group of men which the jury could believe indicated her fear that she was expected to engage in intercourse with not just Adair, but the entire club membership. Adair himself corroborated Whinery's statement that there was such talk:
A. We were small talking but nothing, nothing that I would remember. She right after we got in there let's see we either we were either in the process of undressing or were undressed and some people standing around the doorway and she said something to the effect of, "You don't expect me to take everybody on; do you?" or something like that, and I replied, "No, nobody does," you know, "this is between you and me."
Adair argues that because Whinery was an accomplice, his testimony must be corroborated. However, the victim of a rape and an accomplice of the defendant may corroborate each other. State v. Wilson, 93 Idaho 194, 457 P.2d 433 (1969). Corroboration of an accomplice need only connect the accused with the crime, may be slight, need only go to one material fact, and may be entirely circumstantial. State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963). Here the victim's testimony coincides with that of the accomplice as to the occurrence of the act of intercourse, the time and place of the act, and some of the surrounding circumstances. This is sufficient. Moreover, we note also that the record does not necessarily compel a conclusion that Whinery was an accomplice. Other than that he testified to helping Adair carry the prosecutrix to the door of the bedroom which Whinery dismissed as horseplay at that point he gave no testimony tending to show that he used force or made threats in order that Adair might gain his objective. Whinery's presence during the intercourse had by Adair does not appear to mount to his being a threat to the prosecutrix, as expressed by conduct and acts. State v. Lewis, 96 Idaho 743, 749, 536 P.2d 738, 744 (1975).
Adair points to conflicts between the testimony of the prosecutrix and that given by Whinery. While it is true that there are major conflicts and contradictions, the record reveals that the accomplice and the prosecutrix also gave fairly similar testimony as to some of the things that occurred and some of the things that were said on the night in question. The fact that their testimony conflicted on the crucial issue of force versus consent does not mean that the remaining corroborative testimony had to be discounted or ignored by the jury. To the contrary,
(t)he mere fact that the testimony of witnesses in a case is sharply conflicting only raises questions as to the credibility of the witnesses and the weight to be given to their testimony. These are matters which are exclusively for the jury to determine.
State v. Gee, 93 Idaho 636, 639, 470 P.2d 296, 299 (1970). The remainder of Adair's corroboration argument amounts to a contention that the State is required to prove its case independently of the prosecutrix's testimony, and that each piece of evidence must independently lead to an inference that a rape was committed by the accused before it is of any value as corroboration. The rule in Idaho is not nearly so stringent or demanding. All of the bits and pieces of evidence may, of course, be taken and considered together by the jury. State v. Tope, 86 Idaho 462, 387 P.2d 888 ...
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