State v. Howard, 14175
| Decision Date | 24 December 1975 |
| Docket Number | No. 14175,14175 |
| Citation | 544 P.2d 466 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Kenneth Virgil HOWARD, Defendant and Appellant. |
| Court | Utah Supreme Court |
Louis G. Tervort, Manti, for defendant-appellant.
Vernon B. Romney, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff-respondent.
Kenneth Virgil Howard was convicted of rape 1 in a trial to the Sixth District Court. He appeals, contending: (1) that the evidence was not sufficient to justify a belief beyond a reasonable doubt of his guilt, and particularly that it did not show that the prosecutrix resisted and that it was overcome by force; and (2) that the court erred in rejecting a proffer of testimony concerning her reputation as to moral character.
On the early afternoon of April 4, 1975, the defendant, a 26-year-old man, was in Mt. Pleasant, Utah, in connection with his insurance business. He observed the prosecutrix alongside of the highway, stopped his pickup truck, and asked her if she would like to go for a ride. She is a 19-year-old divorced who had not previously met the defendant. However, she accepted the invitation and they drove for an hour or two (their estimates vary) through the countryside, including southward through Manti. On southward, about two miles north of Gunnison, the defendant turned off the main highway, and purportedly to demonstrate the qualities of his new truck, drove over a hill and parked.
As might be expected, third respective versions of what occurred next is in sharp conflict. 2 His: that they engaged in some petting and preliminaries, followed by consensual intercourse. Hers: that upon stopping the truck, he seized an ice pick, placed in at her throat and threatened that she must submit; then grabbed her arm, dragged her from the truck, threw her to the ground; and despite her protestations, screaming for help, and struggles to get free, he succeeded in forcible rape.
The parties then got back in the truck and drove back to Manti, where they stopped to use the restrooms at a service station. The attendant could not locate the key to the ladies' room, so they both had in use the men's. The prosecutrix went in first, while the defendant waited; then the defendant went in and the prosecutrix waited several minutes for him. They then got into the truck and proceeded north to Ephraim, where in accordance with the prosecutrix's request, defendant drove her to the home of a cousin. She says she then telephoned her parents about the attack. Meanwhile the defendant continued on about his business. The prosecutrix reported the incident to a man friend, who accompanied her to the sheriff, where she gave the information upon which the defendant was arrested and charged with this crime.
Out statute upon which this charge is laid is Sec. 76--5--406(1)--(2), U.C.A.1953:
Sexual intercourse, . . . without consent of victim--Circumstances.--An act of sexual intercourse, sodomy, or sexual abuse is without (the) consent of the victim . . .:
(1) When the actor compels the victim to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances; or
(2) The actor comples the victim to submit or participate by any threat that would prevent resistance by a person of ordinary resolution.
On the issues: whether the prosecutrix offered 'such reasonable resistance as might reasonably be expected under the circumstances'; and whether the defendant by force or threat overcame it: the State points out that the defendant was six inches taller, considerably heavier, and that these things, coupled with his masculine strength and the threat with an ice pick, which could be deadly, her testimony is sufficient to justify the conviction under that statute.
As opposed to the foregoing, the defendant argues some inconsistencies and what he considers unreasonable aspects of the prosecutrix's story, which should leave at least a reasonable doubt as to his guilt. The State's correct rejoinder to this is that the credibility of the witnesses was the exclusive prerogative of the trial court; and that it is neither the duty nor the privilege of this court to disagree and substitute its judgment thereon. 3
We are in accord with the foregoing as a general proposition. However, due to the particular problems presented in this case, we do have some concern with the nature and persuasiveness of the evidence here because of our conclusion stated below that the trial court erred in excluding proffered evidence. That being so, if upon looking at the whole evidence, it appears beyond a reasonable doubt that there is no substantial likelihood that the verdict would have been different in the absence of any error, it should be disregarded. 4 But the reverse proposition is also true: that if there is a reasonable likelihood that in the absence of the error, there would have been a different result, the error should be regarded as prejudicial.
As part of the defendant's case, he called a young man, James P. Carlton, Jr., who had lived in Mt. Pleasant for some years and had been a friend and school mate of the prosecutrix. In laying a foundation for his testimony the foregoing facts were brought out and he responded affirmatively to the question: that he knew the reputation of the prosecutrix in the locality as to moral character. To the next and critical question, as to what that reputation was, the State objected on the ground that it was incompetent, irrelevant, and immaterial. The court sustained the objection; and that is the pivotal aspect of this appeal.
Due to the nature of this crime the problems of proof are fraught with delicacy and difficulty. It is said that many such offenses go unreported because the victims, who have already undergone both physical and mental trauma, are fearful and unwilling to subject themselves to further torture; and that part of this is apprehension of embarrassment and humiliation from inquiry into their personal lives, which sometimes has the effect of putting them on trial instead of the assailant. 5 This is certainly and important factor to consider; and the evil should be minimized to whatever extent that can be...
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