State v. Greensweig

• Decision Date: 09 February 1982
• Docket Number: No. 13798,13798
• Citation: 102 Idaho 794,641 P.2d 340
• Parties: The STATE of Idaho, Plaintiff-Respondent, v. Robert GREENSWEIG, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 340

641 P.2d 340

102 Idaho 794

The STATE of Idaho, Plaintiff-Respondent, v. Robert GREENSWEIG, Defendant-Appellant.

No. 13798.

Court of Appeals of Idaho.

Feb. 9, 1982.

Laird B. Stone of Ada County Public Defender, Boise, for appellant.

David H. Leroy, Atty. Gen., and Lance D. Churchill, Deputy Atty. Gen., Boise, for respondent.

SWANSTROM, Judge.

Robert Greensweig was convicted of lewd conduct with a minor under sixteen, a felony. He appeals. Three principal issues are raised. First, was sufficient evidence adduced at the preliminary examination to bind appellant over for trial? Second, was there sufficient corroboration of the victim's account of the events constituting the crime and of the identification of the perpetrator? Third, did the trial court err in allowing testimony of an unrelated subsequent bad act by the appellant? Appellant also challenges the sufficiency of the evidence, rulings by the trial court regarding jury instructions, and matters regarding sentencing. We affirm.

On March 22, 1979, appellant was charged with the crime of lewd conduct with a minor under the age of sixteen. After a preliminary examination a magistrate ordered that appellant be held for trial in the district court. A two-part information was filed, charging appellant with the lewd conduct crime and with being a persistent violator of the law. Trial was held. On May 7, 1980, the jury returned a verdict finding the defendant guilty of the offense of lewd conduct with a minor under sixteen. Immediately following that verdict the defendant entered a plea of guilty to being a persistent violator of the law.

On May 16, defendant filed a "motion to dismiss the habitual offender conviction." The motion was denied on June 20, and the defendant was sentenced to an indeterminate term of not more than life. The ten year old victim of this crime testified that on October 30, 1978, she was walking past a church on her way home from school when a man, dressed in clothes similar to those of a priest, asked her if she would like to make fifty cents doing some work for him. The victim agreed to this proposition and followed the man into the church, and then into the choir loft. The man then picked the victim up and asked her how much she weighed. After setting her back down, he held her with his hands close to her bottom, squeezing her, holding both of her hands together. He put her head against his belly and forced his body against her. He made thrusting motions with his body. When she asked to go home, he said repeatedly: "Just a little bit longer." The victim managed to escape his grasp. The man attempted to stop her from leaving the choir loft by moving back and forth in front of the entrance. The victim managed to escape past the man, but not before noticing that a book of matches fell from his pocket. As she left the choir loft she fell on a piece of cardboard lying on the stairway. She got up and made good her escape by hiding behind some bushes, where she watched the man get into a car and leave the scene.

Investigating officers found a book of matches in the choir room, a piece of cardboard on the stairway, and furniture in the choir room substantially the same as described by the victim. The victim was able to describe the man and the car he drove away. Five months after the incident she picked appellant's picture out of a group of several photos.

Appellant, prior to trial in this case, was convicted in another county of assault with intent to commit rape. This other offense occurred on January 9, 1979, seventy-two days after the date of the offense here in question. The circumstances were quite similar. The three young girls who testified in the other case were called as state's witnesses in this case. Two of the girls testified that a man had approached them as they walked home from school. He asked them if they wanted to make a few dollars working in a church. Both declined and nothing further occurred. Both identified the appellant as the man who approached them. The third girl testified that appellant entered her church and asked her if she wanted to make some money helping him at another church. She agreed, and he took her to another church. Once inside that church he picked her up and asked her how much she weighed, threw her down, laid on top of her, kissed her on the face and undid his pants before the girl was able to escape.

Probable Cause Determination.

The appellant claims that the standards of probable cause required by I.C. § 19-815 and Idaho Criminal Rule 5.1(b) were not established at his preliminary examination. Under these provisions the defendant must be discharged unless the magistrate finds, from the state's evidence, that a public offense has been committed, and that there is probable or sufficient cause to believe the defendant guilty thereof. The finding of probable cause shall be based upon substantial evidence upon every material element of the offense charged.

The state at a preliminary examination is not required to show the defendant guilty beyond a reasonable doubt; it need only prove that a crime was committed and that there is probable cause to believe the accused committed it. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980).

Idaho Code § 19-815A provides that a motion to dismiss the information may be made to the district judge to challenge the sufficiency of the evidence produced at the preliminary hearing. Appellant made such a motion and it was denied. He now argues on appeal it was error to deny the motion. Appellant specifically asserts that there was no substantial evidence adduced at the preliminary examination to show (1) that a lewd or lascivious act occurred, or (2) that there was intent of arousing, appealing to, or gratifying the lust, passions or sexual desires of either himself or the victim.

The victim testified at the preliminary examination as to the events already related. Upon this evidence the magistrate could reasonably conclude the crime of lewd conduct with a minor under sixteen had been committed. The magistrate could also reasonably infer the necessary intent on the part of the appellant. We hold the evidence presented at the preliminary examination supports the magistrate's finding the crime was committed and that there was probable cause to believe appellant committed that crime.

Corroboration of Victim's Testimony.

Appellant assigns as error the district court's denial of his motion for a judgment of acquittal. Specifically, he alleges that insufficient corroboration of the alleged sexual act was provided at trial. In State v. Byers, 102 Idaho 159, 627 P.2d 788 (1981), the Supreme Court abolished the rule requiring corroboration of the victim's testimony in sex crime offenses. However, the court refused to apply this rule retroactively and held that it would only be applied in criminal trials commenced after the date of decision in Byers. 102 Idaho at 167, 627 P.2d at 796. The trial in this case occurred in May, 1980. The Byers opinion was released on April 1, 1981. Therefore, the requirement of corroboration is in effect as to this case.

The prior rule in Idaho was that there must be corroboration both (1) that a crime has been committed, and (2) that the accused committed the crime. Byers, 102 Idaho at 161, 627 P.2d at 790; State v. Adair, 99 Idaho 703, 587 P.2d 1238 (1978). In Adair the court stated the rule as being that

"(t)he required corroboration need only tend to support her testimony that the offense was committed and make it appear probable that the accused was the perpetrator (citation omitted). Whether there is sufficient corroboration is, in the first instance, a question for the jury; and unless we can say, as a matter of law, that such evidence is insufficient, we will not reverse on that ground." 99 Idaho at 707, 587 P.2d at 1242.

The character or reputation of the victim in this case is unimpeached for truth and chastity and her testimony is not contradictory nor inconsistent with the admitted facts of the case nor inherently improbable or incredible. Therefore, under the prior rulings of the Idaho Supreme Court, there can be either direct evidence corroborating her testimony, or evidence of surrounding circumstances clearly corroborating her statements. Adair, 99 Idaho at 705, 587 P.2d at 1240. State v. Elsen, 68 Idaho 50, 54, 187 P.2d 976, 978 (1947). Sufficient corroborating evidence to show that appellant was the perpetrator of the crime was supplied by his ownership of a car described by the victim, and the identification of appellant by another girl who was victimized by appellant in an almost identical crime. In addition, evidence of surrounding circumstances clearly corroborate the victim's description of the acts making up the crime. She described a match book as falling out of his pocket, and a match book was found in the choir loft. Her description of the choir loft matched the physical characteristics of the choir loft. She claimed she slipped on a piece of cardboard as she ran down the stairs escaping from the attacker. A piece of cardboard was found in the stairwell by the officer investigating her story. At trial the state introduced into evidence a note, addressed to the parents of the victim, from her teacher, concerning a scheduled parent-teacher conference. An officer testified this note was found in the central part of the church after the incident was reported. We hold that the evidence was sufficient to satisfy the requirements of corroboration in this case.

Evidence of Subsequent Bad Acts.

The appellant asserts that the district court erred by allowing the testimony of the three girls regarding the similar case, over the objections by appellant. He first argues that, regardless of the possible justifications for allowing such testimony otherwise, the fact that the event testified to occurred subsequent to the crime in this case renders the testimony improper. He cites no authority for this per se...