State v. Finley
| Decision Date | 22 September 1972 |
| Docket Number | No. 2376,2376 |
| Citation | 501 P.2d 4,108 Ariz. 420 |
| Parties | STATE of Arizona, Appellee, v. Hubert Dale FINLEY, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee.
Paul Hunter, Yuma, for appellant.
The defendant, Hubert Dale Finley, was charged in one count with second degree rape of his adopted daughter and in a second count with having molested his adopted daughter. Trial was had before a jury which found him guilty on both counts. The court sentenced him to a term of 8 to 15 years on the second degree rape charge, and a concurrent sentence of 8 to 15 years on the molesting charge.
In this appeal, the defendant presents the following contentions: (1) that the court committed error in admitting testimony of prior specific bad acts not amounting to a felony; (2) that the court erred in failing to instruct the jury as to the necessary elements of the crime of child molestation; (3) that the court erred in failing to instruct the jury that they could not find the defendant guilty of both counts; and (4) that the court committed error in submitting both counts to the jury.
The transcript of record indicates that there was testimony at the trial showing that at the insistence of the defendant the family of the defendant had practiced nudism for some time. There was testimony that the defendant had had sexual intercourse with his adopted daughter on previous occasions and had first molested her when she was nine years old. At the time of the offenses charged, the daughter was fourteen years of age. Further testimony indicated that in the past defendant had requested permission from his wife to have sexual intercourse with the daughter and that he had taken obscene photos of the girl. There was additional testimony showing that defendant required the nude daughter to lie in front of him and expose herself and that he would not permit the members of the family to close the bathroom door when making use of the facilities there. Testimony of these and similar acts covering a period of almost five years was introduced by the state. The defendant's first contention relates to the admission of this testimony.
Although the defendant now objects to this testimony, he failed to timely object to the testimony at the trial. We could, on this basis alone, negate defendant's first contention, but we believe a brief comment on the merits is called for here. The testimony now objected to by the defendant certainly shows a system, plan or scheme to engage in sexual aberrations. State v. Parker, 106 Ariz. 54, 470 P.2d 461 (1970). Although the family practice of nudism alone may not be indicative of any scheme, plan or design, such conduct coupled with the various other acts enumerated, is indicative, or at least a jury could so find.
Defendant further urges that State v. Goldsmith, 104 Ariz. 226, 450 P.2d 684 (1969)...
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State v. McCuin
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