State v. Godsoe, 1892

• Decision Date: 30 September 1971
• Docket Number: No. 1892,1892
• Citation: 107 Ariz. 367,489 P.2d 4
• Parties: STATE of Arizona, Appellee, v. William D. GODSOE, Appellant.
• Court: Arizona Supreme Court

Page 4

489 P.2d 4

107 Ariz. 367

STATE of Arizona, Appellee, v. William D. GODSOE, Appellant.

No. 1892.

Supreme Court of Arizona, In Banc.

Sept. 30, 1971.

Gary K. Nelson, Atty. Gen., by William P. Dixon, Asst. Atty. Gen., Phoenix, for appellee.

Minne & Sorenson, by Harold E. Whitney, Phoenix, for appellant.

UDALL, Justice.

Defendant, William Godsoe, after a trial by jury was convicted on October 25, 1967 of child molesting in violation of A.R.S. § 13--653. From this conviction, sentence and denial of his motion for a new trial, defendant appeals. For the reasons advanced below, the judgment of conviction is affirmed.

The facts relevant to this appeal are as follows: The defendant was charged with molesting the complaining witness on or about May 20, 1966 in that he fondled her genitals and forced her to fondle his. Deborah, who was nine at the time of the crime, would often stay with the defendant in his home with her parents' consent. In fact, during May, 1966 Deborah stayed overnight at least three or four times on weekends. Deborah testified that it was during these stays with the defendant that defendant touched her genitals and forced her to touch his. Two other girls, Terry and Debby testified that they had had similar experiences with the defendant. Their testimony was admitted for the limited purpose of showing the defendant's propensity for such acts and not for showing bad character nor to show that a prior crime had been committed. For purposes of this appeal, defendant raises four questions for this Court to consider:

1. Was the evidence against defendant sufficient upon which to base a conviction of the offense of child molesting?

2. Did the court's instructions to the jury on other crimes allegedly committed by the defendant constitute a comment on the evidence and thereby deprive the defendant of a fair trial?

3. Did the court's instructions to the jury on other crimes allegedly committed by the defendant constitute fundamental error and thus deprive the defendant of a fair and impartial trial?

4. Did the court commit error in permitting the prosecuting attorney to propound leading questions to the complaining witness?

Defendant contends in his first point that the testimony of the complaining witness was so incredible and unreasonable that no reasonable person could believe it. As such, defendant argues, the evidence was insufficient.

While we agree with defendant's test, we disagree that it is applicable to the case at bar. As the defendant concedes, it is not always necessary in order to sustain a conviction, that the prosecutrix's testimony be corroborated. But where the conviction is founded on the complaining witness' testimony alone, that testimony must be reasonable, consistent and not inherently improbable or impossible. Reidhead v. State,31 Ariz. 70, 250 P. 366 (1926). While the law is clear on this point, the Court will closely scrutinize the records where that testimony is by one of very tender years and there have been, as here, leading questions asked. The Court must take great care in these cases, for often passions and prejudices are aroused against one who has been charged with molesting a child. Where there is inherent improbability or where there is evidence that malice inspired the prosecution, this Court should not permit a conviction to stand. Reidhead v. State, supra. After carefully searching the record, we find the testimony reasonable, consistent and not inherently impossible or incredible and not inspired by malice. Although the exact date of the crime was not able to be pinpointed, prosecutrix's account was coherent and there were few contraditions between the testimony of the prosecutrix and the two other girls. Furthermore, the prosecution did introduce evidence which tended to corroborate Deborah's testimony. Debbie's testimony as to those acts committed against her alone was introduced to show defendant's proclivity, but her testimony also established certain acts committed by the defendant in front of Debbie, Terry and Deborah at the same time. Debbie testified that the defendant came into the room where she, Debbie and Terry were all in bed and 'with only a tee shirt on, he tried to do something, he tried to get in bed with us, but we wouldn't let him.' (RT 101). As to these acts, Debbie's testimony tended to corroborate the testimony of the prosecutrix.

Secondly, the defendant contends the court violated Art. 6, Sec. 27 of the Constitution of Arizona, A.R.S., by commenting upon the evidence when it instructed the jury that:

'Ladies and Gentlemen of the Jury, there was introduced, as you know, testimony of other crimes allegedly committed by this defendant. Whether or not he is guilty of another act of child molesting, Is no concern of ours in this case, and is no evidence that you can, without anything else, Find him guilty in this case. This type of evidence is permissible, but I instruct you that you cannot find him guilty of the crime herein charged in this information, because you may think him guilty of a crime committed at some other time, but evidence of a crime other than that charged in the information, if you find and believe beyond a reasonable doubt that such crime was committed by the defendant, is admissible for the sole purpose of showing the defendant's emotional propensity for sexual aberration. In other words, if you find beyond a reasonable doubt that the defendant at or about the time of the offense charged against him, engaged in Other similar sexual offenses, indicating a propensity for sexual molestation or sexual aberration in respect to young girls, then you may consider that testimony, together with all the other evidence in the case, as bearing on the question whether or not he in fact committed the act charged in the information.' (defendant's emphasis) (RT 176.)

Defendant further argues that this error was compounded when, in considering an objection by the defendant, the court made the following comment:

'THE COURT: I think I should instruct the jury on this particular line of testimony. The information in this case, ladies and gentlemen, alleges this particular crime to have occurred on or about the 20th day of May, 1966. Any evidence of any other similar acts is admitted not for the purpose of showing bad character or the fact that the defendant has committed a prior crime, but solely on the issue of whether or not the defendant has a propensity to commit this type of act, a propensity for sexual aberration; and for that sole...