State v. King

• Decision Date: 06 July 1967
• Docket Number: No. 38705,38705
• Citation: 71 Wn.2d 573,429 P.2d 914
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Gary Ralph KING, Appellant.

Page 573

71 Wn.2d 573

429 P.2d 914

The STATE of Washington, Respondent, v. Gary Ralph KING, Appellant.

No. 38705.

Supreme Court of Washington, Department 2.

July 6, 1967.

Rehearing Denied Sept. 12, 1967.

Murray B. Guterson, Seattle, for appellant.

Richard A. Nelle, Pros. Atty., William A. Gardiner, Deputy Pros. Atty., Bellingham, for respondent.

FINLEY, Chief Justice.

The defendant was accused and convicted of one count of indecent liberties concerning a male child under the age of fifteen years. He was sentenced to a maximum term of twenty years in such correctional facility as the Director of Institutions deemed appropriate.

Gary King, the defendant, was 21 years old at the time the information was filed, and was 22 years of age at the time of trial. After graduating from high school, he managed a bowling alley, where he organized a junior league for young children to participate in bowling. He coached a Little League baseball team. After extensive screening, which included psychological testing, he was accepted into the Big Brother Association, a national organization established to provide adult male companionship for boys who have no father. He also attended Everett Junior College in Everett, Washington, for two years, where he majored in history, and studies, among other subjects, psychology.

The complaining witness, Paul, was 9 years old when he first met the defendant. Paul's older brother had met the defendant earlier through bowling regularly at the bowling alley where the defendant worked. The defendant became well acquainted with Paul's family. He stayed at their home for different periods of time on various occasions over a three-year period. During this time, he provided advice, companionship, and at least some assistance to Paul's deaf and widowed mother in maintaining the family. At the time of the act charged, Paul was 12 years old. He had passed his thirteenth birthday by the time of the trial.

Over the defendant's objection as to sufficient relevancy, the trial court admitted 10 pictures of nude or scantily clad boys, young men, and girls as exhibits which went to the jury. One young boy appeared in four of the pictures in poses calculated to suggest propensity for indecent activities. The prosecution's theory in support of the admissibility of the pictures was that they tended to show seduction of Paul and the defendant's disposition to commit the act. The pictures had been found in the defendant's possession, and Paul testified that they were shown to him about two and one-half months prior to the time of the act charged. The trial court, apparently relying on State v. Oberg, 187 Wash. 429, 60 P.2d 66 (1936), ruled that the pictures were sufficiently connected with the act charged to be admissible.

The defendant testified in regard to his study of psychology in college and that he had been studying homosexuality for three years prior to the time of the act charged in anticipation of writing on the subject. He testified that the pictures admitted as exhibits and other like them were used in connection with interviews with homosexuals. The defendant identified and offered an exhibit consisting of 40 to 50 pages of notes and summary of part, but not all, of his interviews and study of homosexuality. The defendant testified that he had often transcribed his interview notes and had in many cases discarded the original notes. The defendant's mother and his bridge instructor both testified that they had known of the defendant's study of homosexuality and his interest in writing on the subject some time prior to the time of the act charged. The trial court ruled that the exhibit was not admissible.

In appealing from his conviction, the defendant makes three assignments of error which raise two issues: (1) whether the trial court erred in admitting the pictures and in permitting testimony with respect thereto; and (2) if the admission of the pictures was not erroneous, whether the trial court erred in rejecting the proffered exhibit consisting of the defendant's notes.

In regard to the pictures, the defendant argues that, while evidence of a particular sexual act with the prosecuting witness on a different occasion is admissible (to demonstrate the likelihood of the reoccurrence of the similar act with which the accused is charged), evidence of independent similar acts with others is not admissible, and, therefore, evidence of independent dissimilar conduct--possession of pornographic pictures--should not be admissible. We are not convinced by this argument. Although there is a danger of prejudicing the jury's consideration of the defendant's character inherent in this type of evidence, the trial court admitted the pictures on the legitimate reasoning that they had probative value as to the likelihood of the occurrence of the act charged. The balancing of the relevancy and desirability of evidence of this type against its harmful effect upon an accused is a matter peculiarly within the discretion of the trial court. State v. Johnson, 56 Wash.2d 700, 355 P.2d 13 (1960).

In State v. Oberg, supra, this court affirmed a conviction of sodomy despite the argument that the trial court erred in admitting indecent books and pictures allegedly shown to the boys...