State v. Boyd

• Decision Date: 18 August 1972
• Docket Number: No. 901,901
• Citation: 502 P.2d 315,84 N.M. 290,1972 NMCA 120
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Elmer Rheford BOYD, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 315

502 P.2d 315

84 N.M. 290

STATE of New Mexico, Plaintiff-Appellee, v. Elmer Rheford BOYD, Defendant-Appellant.

No. 901.

Court of Appeals of New Mexico.

Aug. 18, 1972.

Rehearing Denied Sept. 27, 1972.

Certiorari Denied Oct. 24, 1972.

William W. Head, Jr., Gallup, for defendant-appellant

David L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

WOOD, Chief Judge.

Defendant was convicted of rape, § 40A--9--2, N.M.S.A.1953 (Repl.Vol. 6), and sodomy, § 40A--9--6, N.M.S.A.1953 (Repl.Vol. 6). The appellate issue is the sufficiency of the evidence. Defendant claims that the testimony of the prosecutrix was (1) inherently improbable; (2) uncorroborated; and (3) the evidence did not point unerringly to the guilt of the defendant. The basis for these claims is State v. Shults, 43 N.M. 71, 85 P.2d 591 (1938), and State v. Armijo, 25 N.M. 666, 187 P. 553 (1920). State v. Shults, supra, states:

'In cases of common law rape, in the absence of such corroboration as out-cries, torn and disarranged clothing, wounds or bruises, or if there is long delay in making complaint; the evidence may be so inherently improbable as to be unsubstantial. In such cases, unless there is other testimony which points unerringly to the defendant's guilt, we will not uphold a conviction.'

State v. Armijo, supra, states:

'In this jurisdiction no corroboration of a prosecutrix for rape, by way of testimony of an independent character emanating from an outside source, is required in order to sustain a conviction. But the bald charge of a woman against a man in this regard, unsupported and uncorroborated by facts and circumstances pointing to the guilt of the accused, is insufficient to meet the requirement of the law that a verdict must be supported by substantial evidence.'

We discuss each of the three contentions of defendant but point out that the corroboration rule in rape cases is not applicable to the sodomy conviction. See State v. Borunda, 83 N.M. 563, 494 P.2d 976 (Ct.App.1972).

Asserted inherent improbability.

Defendant asserts that the prosecutrix' testimony is inherently improbable in three respects: (1) the time period involved; (2) certain prior inconsistent statements; and (3) asserted conflicts between her testimony and that of the examining physician.

The prosecutrix testified that she was raped twice by defendant and forced to commit an act of sodomy within a period of approximately thirty minutes. in addition, there was some conversation between the prosecutrix and defendant during this time. Defendant claims '. . . the occurrence of all of these events in a thirty minute period is inherently improbable, if not impossible.' The rule is that testimony is not inherently improbable unless what is claimed to have occurred could not in fact have occurred. State v. Soliz, 80 N.M. 297, 454 P.2d 779 (Ct.App.1969); see State v. Trujillo, 60 N.M. 277, 291 P.2d 315 (1955). We cannot say as a matter of law that the events described by the prosecutrix could not in fact have occurred during the period stated.

The prosecutrix, in two written statements to the police, first denied that any act of sodomy had occurred, and then failed to mention it. At trial she testified that defendant had forced her to commit an act of sodomy. She explained that her denial and her failure to mention it were the result of her embarrassment about it. The prosecutrix also failed to mention the act of sodomy to the examining physician.

Defendant claims that these inconsistencies render her testimony 'inherently improbable.' We do not agree. Under the definition stated above, we cannot say that the explanation given by the prosecutrix was not, in fact, true.

Defendant also claims that the testimony of the examining physician makes the prosecutrix' testimony improbable because '. . . it is not only inconsistent with the testimony of the prosecutrix, but tends to disprove her testimony. . . .' The doctor testified that he found no evidence of trauma or injury to the vagina; that such lack of trauma is unusual in a rape case; and that he found no other physical indication on the prosecutrix or her clothes that a rape had occurred. He further testified that he found sperm in the vagina but that they were all immotile The doctor concluded that it was an 'alleged rape.' Nothing in the doctor's testimony indicates that the alleged acts could not have occurred in fact.

The prosecutrix' testimony was not inherently...