State v. Couch

• Decision Date: 21 August 1981
• Docket Number: No. 17127,17127
• Parties: STATE of Utah, Plaintiff and Respondent, v. Michael COUCH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 89

635 P.2d 89

STATE of Utah, Plaintiff and Respondent, v. Michael COUCH, Defendant and Appellant.

No. 17127.

Supreme Court of Utah.

Aug. 21, 1981.

John T. Caine, Ogden, for defendant and appellant.

David L. Wilkinson, Earl F. Dorius, Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

A jury found defendant guilty of aggravated sexual assault, forcible sodomy, and kidnaping, and he was sentenced to concurrent terms of five years to life, one to five years, and five years respectively. On appeal, he argues: (1) that there was insufficient evidence of kidnaping; (2) that the sodomy conviction should be set aside because the trial judge refused the jury's request to define a term of common usage; and (3) that all three convictions should be set aside because the trial court refused to admit a juror's post-trial affidavit impeaching the jury's verdict. All statutory citations are to Utah Code Annotated, 1953, as amended, except where otherwise noted.

With one exception, identified below, defendant does not contest the facts on appeal. The prosecutrix and two friends were employed at a fast-food stand in Evanston, Wyoming. At various times during their late afternoon and evening shift, defendant came to the establishment and engaged them in conversation. The girls requested that he purchase liquor for them, which he did, and after work the four met in a motel room and had a drinking party. In the early morning hours, when the prosecutrix was too intoxicated to walk, defendant insisted on driving the girls to their homes in Wanship, Utah, and surrounding areas, some 50 miles distant, in prosecutrix's car. He said that he had a friend who would drive him back to Evanston. The girls finally agreed, although one of them had consumed no alcohol and was capable of driving.

Defendant drove prosecutrix's two companions to their homes. He then drove past Defendant opened the door, pushed prosecutrix out, and ordered her to take off her clothes. When she refused, he began to pull her hair and rip at her clothes. Prosecutrix attempted to fight off defendant by kicking and hitting him. She momentarily got free of him and ran to the car, but defendant caught the car door before she could close and lock it. Defendant then pushed her into the rear seat, forcibly removed her clothing, asked her if she wanted to live, and began choking her with her belt. She testified that she "couldn't breathe for quite a while." Defendant proceeded to put his mouth first on her breast, then on her vagina, and then to rape her. Defendant then drove the car with the prosecutrix to Evanston, where he got out at a motel, and prosecutrix drove home to Utah.

prosecutrix's house without stopping. Prosecutrix said, "Stop, this is where I live," but defendant replied, "You've got to take me to the freeway so my friend can pick me up so I can hitchhike back to Evanston." He then drove onto the freeway and asked prosecutrix if she thought she could drive back from Coalville, to which she replied that she could. Defendant drove past Coalville. When they reached Echo, he asked her if she could drive back from Echo. She again replied in the affirmative. Then he asked if she would take him to Evanston. Although she said "No," defendant "just kept going." Soon he turned off the freeway and drove the car down a dirt road, stopping in a deserted place.

I. THE MEANING OF KIDNAPING

Defendant argues that his act of detaining prosecutrix was merely incidental to the crime of aggravated sexual assault and in effect a lesser included offense that should not be the basis for a separate conviction. ¹

Because kidnaping statutes typically do not specify the duration of time or the circumstances under which the victim must be detained or how far the victim must be transported for a kidnap to occur, a literal application of such statutes could transform virtually every rape and robbery into a kidnaping as well. A defendant convicted of both kidnaping and what can be termed a "host crime" would in many cases receive a significantly heavier sentence than if only the host crime had been charged.

Mindful of this result, many courts have reassessed kidnaping statutes during the past two decades. Some jurisdictions have adhered to the traditional view that any detention or asportation, however slight or however closely related to another crime, is sufficient to support a kidnaping conviction. ² Other courts have limited the application of kidnaping statutes to instances of "true kidnaping," where the kidnaping is not merely incidental or subsidiary to another crime but has independent significance. ³

In contrast to some broader kidnaping statutes that have invited extensive judicial pruning, our Utah statute expressly limits the circumstances under which a detention will constitute kidnaping. Section 76-5-301 states in pertinent part:

(1) A person commits kidnaping when he intentionally or knowingly and without authority of law and against the will of the victim:

(a) Detains or restrains another for any substantial period ; or

(b) Detains or restrains another in circumstances exposing him to risk of serious bodily injury ; ... (Emphasis added.)

Subject to statutory exceptions not applicable here, this narrowly drafted statute limits the scope of the crime of kidnaping by permitting a conviction only if at least one of two conditions is satisfied. ⁴

The first condition is that the detention be for a "substantial period." Although this term can be defined only by reference to a specific fact situation, it apparently requires a period of detention longer than the minimum inherent in the commission of a rape or a robbery. Otherwise, this statute would merely provide a cumulative penalty for the commission of these crimes and any others that involve detention or restraint. The second condition is that the detention be "in circumstances exposing the victim to risk of serious bodily injury." While no circumstance incident to crime is entirely free from risk, this provision seems to require some circumstances of risk in addition to those inherent in the commission of crimes incidentally involving detention or restraint. On the facts of this case, the jury could have based its guilty verdict on either condition of this statute.

A kidnaping begins when the detention begins to be "against the will of the victim." In the instant case, the detention began to be against prosecutrix's will at the point where defendant continued to drive her car despite her expressed desire that he not do so, and continued at least until the sexual assault had been committed. The duration of this detention was clearly a "substantial period" within the meaning of subsection (1)(a).

In addition, the circumstances in which defendant detained prosecutrix exposed her to risk of serious bodily injury within the meaning of subsection (b). Forcibly removing a person a substantial distance from her normal surroundings and natural sources of aid to an isolated area where she is entirely at the mercy of her assailant necessarily involves the risk of serious bodily harm identified in the statute.

In either case, the kidnaping was not merely incidental or subsidiary to some other crime, but was an independent, separately punishable offense. Defendant's conviction for kidnaping is therefore affirmed.

II. THE JURY INSTRUCTION ON FORCIBLE SODOMY

The trial judge's initial instruction to the jury accurately stated the law as found in § 76-5-403, which provides:

(1) A person commits sodomy when the actor engages in any sexual act involving the genitals of one person and mouth or anus of another person, regardless of the sex of either participant.

(2) A person commits forcible sodomy when the actor commits sodomy upon another without the other's consent.

After the jurors had retired for deliberation, they informed the judge through the bailiff that they desired to be further instructed on a point of law. Specifically, they asked the judge to define the term "genitals" as used in the statute. The judge refused to give the requested instruction. ⁵

A conflict in the testimony suggests the reason for the jury's concern with the meaning of the word "genitals." One or more jurors might have believed defendant's denial that he put his mouth on prosecutrix's vagina, but nevertheless believed the prosecutrix's testimony that he put his mouth on her breast. Without a clarifying instruction, such a juror might have voted for conviction on the forcible sodomy charge in the mistaken belief that the term "genitals" includes the female breast. A proper definition should have prevented this mistake.

Did the trial court commit reversible error in refusing the juror's request for a definition of the statutory term "genitals"?

It is normally unnecessary and undesirable for a trial judge to volunteer definitions of terms of common usage for the jury. In State v. Day, Utah, 572 P.2d 703, 705 (1977), this Court stated:

Ordinarily, non-technical words of ordinary meaning should not be elaborated upon in the instructions given by the court. It is presumed that jurors have ordinary intelligence and understand the meaning of ordinary words like "depraved" and "indifference."

Thus, it has been held that there was no need to define "intercourse" in a rape case, since that word has a common meaning. ⁶ On the other hand, in a case in which the defendant was accused of having administered poison, it was held that failure to instruct the jury on the meaning of "administer" was reversible error. ⁷ And in reversing for failure to define "concealed," another court held that "where the word is susceptible of differing interpretations, only one of which is a proper statement of the law, an instruction must be given." ⁸

Where the jury requests the instruction, however, it is generally held error to refuse to provide a definition, even where the word is a term of common meaning. People v. Ochs, 9 A.D.2d 792, 194...