State v. Dizon

• Citation: 47 Haw. 444,390 P.2d 759
• Decision Date: 25 March 1964
• Docket Number: No. 4312,4312
• Parties: STATE of Hawaii v. Harry O. DIZON.
• Court: Supreme Court of Hawai'i

Page 759

390 P.2d 759

47 Haw. 444

STATE of Hawaii v. Harry O. DIZON.

No. 4312.

Supreme Court of Hawai'i.

March 25, 1964.

Syllabus by the Court

1. The crime of rape at common law and as defined by statute in the State of Hawaii is the carnal knowledge of a female perpetrated forcibly and against her will. R.L.H.1955, § 309-31.

2. The very nature of rape connotes forcible and unpermitted physical contact and an overt demonstration of resistance by the unwilling female. Ordinarily, passive or tacit resistance is insufficient.

3. Resistance in the law of rape is a relative term and the degree of resistance required varies with the peculiar circumstances of each case.

4. The law of rape does not require that the woman assailed do more than she is capable of doing under the particular circumstances to demonstrate her nonconsent and resistance.

5. Though an outcry by the woman is an evidentiary fact pertinent to the issue of resistance, it is not required where an outcry would be useless or the woman is restrained by force, threat, or fear.

6. In the absence of evidence showing some probability that the defendant was misled by the conduct of the woman, there is no error in the trial court's refusal to give an instruction relating to the defendant's subjective belief that there was consent.

7. Whether or not a cautionary instruction on the weight to be given the complaining witness' testimony in a rape case should be given depends upon the factual circumstances of each case. Where the testimony is amply supported by corroborative evidence, there is no error in the trial court's refusal to give such instruction.

8. Evidence of injuries sustained by the complaining witness and the defendant, of bloodstained and button-ripped clothing, admissions by the defendant of his presence and participation in the assault with intent to have sexual intercourse are all circumstances corroborative of the testimony of the complaining witness.

9. There is no error in the trial court's denial of motions for acquittal or for a new trial on the ground of insufficiency of the evidence, where there is substantial evidence to support the verdict.

Hyman M. Greenstein, Greenstein, Yamane & Cowan, Honolulu, for defendant-appellant.

Bert S. Tokairin, Deputy Pros. Atty., City and County of Honolulu (John H. Peters, Pros. Atty.), Honolulu, for plaintiff-appellee.

Before TSUKIYAMA, C. J., and CASIDY, WIRTZ, LEWIS and MIZUHA, JJ.

TSUKIYAMA, Chief Justice.

The prosecutrix was a first-grade school teacher at Waialua Elementary School. On Sunday, March 19, 1961, she was alone in her classroom engrossed in the act of decorating the room for the approaching Easter season. When she arrived in midmorning, there were two other teachers working in another classroom. The second teacher, she noticed, left the school about noontime, the first having left sometime prior thereto. The prosecutrix was seated at her desk cutting letters spelling 'Happy Easter' with a pair of scissors when suddenly she beheld a completely nude man advancing toward her on tiptoes. He was masked and his arms were raised over his head in a menacing manner. Startled and horrified she attempted to retreat but the furniture obstructed her way. When the man was upon her, she struck out with the scissors in her hand and inflicted on his right palm a laceration. A struggle ensued and as both fell to the floor, he wrenched the scissors from her hand and threw it across the room.

The defendant, admittedly the assailant, was nineteen years old, six feet tall and weighed about one hundred sixty-five pounds, while the prosecutrix was fifty-eight years old, five feet two inches in height, and weighed about one hundred twelve pounds. Moreover, the prosecutrix had sustained a fracture of her tenth thoracic vertebra about two years prior to this incident and was not completely relieved from such ailment. Testifying in regard to her physical condition, she stated: 'I'm always bothered by a back ailment, it's been in existence for some time, by the right lower shoulder and the right hip; that is, high.'

Testifying further as to what occurred when the assailant advanced toward her, she said: 'I got past that area of two lockers, backing and backing, when he came upon me, seized me. We grappled. I managed to turn around with my back this way, coming back. We got into the area between the two sets of lockers and my desk and I was maneuvered onto the floor. * * * I struggled, I talked. I remember talking constantly. I knew what was going to happen, by then I was well aware. He had said nothing. I remember distinctly saying, 'You don't want to do this.''

Turning deaf ears to her plea, the assailant forcibly removed her clothes, first her blouse by ripping off the buttons and then her pedal pushers and panties, leaving only the camisole which fit so tightly that he could not remove it. 'I kept trying to get up and my right shoulder, constantly pushed down,' she testified. Finally subduing her, he consummated the carnal attack. ¹

Having accomplished his purpose, the assailant quickly left the room, picked up his clothes from a bench just outside the room, dressed and made his exit from the school grounds by scaling a wire fence.

The prosecutrix immediately thereafter went to a teacher's cottage located across Haleiwa Road and from there reported the incident to the police. When apprehended and examined with his consent, defendant was found to have numerous scratches on his body, a one and a half-inch laceration on his right palm and a tattoo of the name 'Harry' on the right shoulder which the prosecutrix had described to the police in identifying her attacker.

Examination of the prosecutrix too revealed that she was suffering from scratches, abrasions, fractures of the fourth and fifth ribs, a fracture of the sternum, and an injury to her jaw. A pelvic examination made shortly after the attack showed the presence of live sperm in her vagina.

Defendant, Harry O. Dizon, was indicted and tried and the jury returned a verdict of guilty of rape. Appealing from the conviction and judgment of the First Circuit Court, defendant is now before this court seeking reversal for either an acquittal or a new trial.

It is to be noted that in addition to the foregoing facts, certain other features which appear to have a significant bearing on the case are disclosed by the evidence. Defendant, in his testimony as well as in his signed statements, freely admitted that his sole purpose in entering the classroom where the prosecutrix was working was 'to have sexual relations'; that he entered naked and face-masked intending to 'just scare her'; that when she saw him, she was frightened; that he, referring to the laceration on his palm inflicted by the scissors, formed the intent to 'rape' her 'After I felt the pain in my hand.' ²

The prosecutrix gathered and took away her bloodstained clothes which were scattered on the floor, but four pearl-colored buttons, identified as those ripped off her blouse, were later found on the floor and picked up by the investigating detective. Upon laboratory examination, the bloodstains were found to be of Type 'O' blood. Defendant stipulated that his blood was Type 'O'.

X-rays and diagnosis by Dr. F. Munson, Waialua Plantation General Hospital, showed that the prosecutrix's fourth and fifth ribs were fractured, her sternum or breastbone fractured, and her tenth thoracic vertebra fractured. Dr. Munson's report that the last mentioned fracture could be old or new confirmed the prosecutrix's testimonial reference to her rib injury sustained two years before the attack. Velma Eaton, registered nurse at the same hospital who attended the prosecutrix shortly after the attack, testified that the patient had an abrasion on her back and on her left arm and a reddened area across her chest; that she complained of back and chest pain; that the abrasion on her back was about the size of her, the witness' hand. The prosecutrix herself testified that she had a large bruise on her right shoulder blade and that she could not eat supper that night because of pain in her jaw.

Defendant, on the other hand, when apprehended and examined on the same day was found to have, in addition to the tattoo and palm laceration heretofore mentioned, fresh abrasions and scratches on his upper left and right arms, an abrasion on the left side of his throat, and another on the left side of his body above the hip.

The defense vigorously pursued the point that the prosecutrix did not scream or make every endeavor to repulse the assailant. Confronted by a police report that when first interviewed she had stated that she did not scream, the prosecutrix testified 'I remember I screamed at that time when he touched me but I didn't remember it until later when I tried to go over the whole thing.' Testifying further, she stated that she tried constantly to talk him out of it. ³

Defendant first specifies as error the trial court's refusal to give defendant's requested instruction number one which reads:

'In the absence of threats, or other things which make resistance impossible, there must be not only an entire absence of mental consent or assent, but there must be the most vehement exercise of every physical means or faculty within the woman's power to resist penetration and a persistence in such resistance until the offense is consummated.

'The term 'rape' imports not only force and violence on the part of the man, but resistance on the part of the woman. There must be force, actual or constructive, and resistance.

'In the absence of proof of resistance, consent is presumed. Mere general statements of the complainant that she resisted are not sufficient but the specific act of resistance must be shown. The dissent and repulsion must be shown beyond a reasonable doubt.'

From the earliest days of jurisprudencial history the crime of rape has been generally defined as the carnal knowledge of a...