State v. Kristich

• Decision Date: 01 March 1961
• Citation: 359 P.2d 1106,226 Or. 240
• Parties: STATE of Oregon, Respondent, v. Andry Mike KRISTICH, Appellant.
• Court: Oregon Supreme Court

Page 1106

359 P.2d 1106

226 Or. 240

STATE of Oregon, Respondent, v. Andry Mike KRISTICH, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted Dec. 14, 1960.

Decided March 1, 1961.

Carl H. Francis, Dayton, and George H. Layman, Newberg, for appellant.

James E. Craig, Dist. Atty., McMinnville, for respondent.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

SLOAN, Justice.

Defendant was charged and convicted of violation ORS 163.220 in that he committed rape upon his wife's 13-year-old daughter. He appeals from the judgment which followed the verdict of guilty.

During the course of the trial the alleged victim was permitted to testify, over objection, to other acts of intercourse with defendant and to the birth of a child. Each of the items mentioned is the subject of a separate assignment of error. The problem is the same in respect to each assignment and we will treat them together.

This court has repeatedly held that in crimes involving illicit sexual acts evidence of other similar acts between the same persons is admissible. State v. Howard, 1958, 214 Or. 611, 331 P.2d 1116; State of Oregon v. Risen, 1951, 192 Or. 557, 235 P.2d 764; State v. Ewing, 1944, 174 Or. 487, 149 P.2d 765. Amongst other reasons assigned it has been said that such evidence is admissible to show an inclination to perform the act and to corroborate the testimony of the alleged victim as to the specific act charged.

The defendant here seeks to overcome these and similar cases by citation to a critical analysis of some of the reasoning found in the cases made by Professor F. R. Lacy in an article at 31 Or.L.Rev. 267 (1952). The argument made by defendant's counsel, both orally and by brief, requires us to re-examine the rules relating to evidence of other offenses in a case of this character. In doing so it is not our purpose to disturb the ultimate rule that in a given case evidence of similar acts can be admissible. It is our purpose to consider why the evidence of other sexual misconduct between defendant and the victim was admissible in this case. In doing so it is necessary to re-examine the tests of admissibility. The real quarrel with some of the cases arises from the failure of the court to consider if the reasons for admitting evidence of other acts outweighs its obvious prejudicial character.

In the trial of this case the state elected to prove that the specific act of rape for which defendant was charged occurred within certain hours of the day of January 12, 1958. It was the truth or falsity of that charge which was decisive of guilt or innocence. As the alleged act was described by the victim, she was a willing, if not a cooperative, participant. She testified that in addition to this particular act she had engaged in other acts with defendant as often as once or twice a week for several months both before and after the event charged. The course of conduct had its inception by a seductive process during which, so she testified, defendant first fondled her and eventually gained access. The details we have omitted. There was no evidence of any resistance on her part nor that she ever informed her mother, defendant's wife, until she became pregnant. She also testified that she had not had intercourse with any other person and was permitted to tell of the birth of a child at a time when the alleged rape on January 12 could not possibly have been the cause of conception. This is the character of the evidence that is said to be so prejudicial to defendant that it was error to admit.

In order to test the admissibility of the evidence of the alleged seduction of the girl and of the other acts of sexual intercourse, it is necessary to consider the precise nature of the immediate act alleged to have occurred on January 12. It was said to have occurred at a house defendant had purchased as a family home. The house was in the process of being remodeled. Defendant and family did not occupy the house at the time but lived elsewhere. The victim testified that on January 12, 1958, a Sunday, she and defendant and a younger brother and sister of hers had gone to the house for a clean-up operation of construction debris. That while there defendant took her to an unfurnished bedroom, placed her on a stack of plasterboard, removed part of her clothes and part of his own, indulged in the act of intercourse without further ado, redressed, and proceeded about the work. It would have been contrary to all accepted standards of normal conduct for the act to have taken place as an isolated event that had never occurred before. As described by the girl, the act required knowledge of what was expected; understanding and a willingness, if not a desire, to cooperate. Even young girls simply do not so voluntarily surrender to such a relationship unless there has been force or seductive persuasion. The latter does not usually occur while walking from one room to another. We will revert to this in a moment.

To decide if it was error to admit the questioned evidence it is necessary to consider: Was there sound reason to admit it; was it unduly prejudicial?

The true test to determine the admissibility of any evidence is that of relevancy. Wigmore says that there are two axioms which underlie the whole structure of evidence. The first is that 'None but facts having rational probative value are admissible.' The second: 'All facts having rational probative value are admissible, unless some specific rule forbids.' I Wigmore, Evidence (3rd ed., 1940) ch. II, p. 289, p. 293. McCormick, Evidence, 1954, ch. 16 p. 314, adopts the same thesis and quotes Thayer, Preliminary Treatise on Evidence, (1898) in support. The writers and many courts are now convinced that there will be less confusion in testing the admissibility of evidence if the simple rule of relevancy is the test rather than a mechanical process of applying rules of restriction and exceptions thereto. See cases and comments in Morgan and Maguire, Cases and Materials on Evidence, 1951, p. 158 et seq., particularly the well-reasoned opinion in State v. Scott, 1947, 111 Utah 9, 175 P.2d 1016, quoted at op. cit. 161.

Professor Lacy suggests a determination of relevancy by the process of asking these questions: What must this party show? What does this evidence tend to show? And will this evidence influence the jury out of all proportion to its logical tendency to prove a fact in issue? 31 Or.L.Rev., supra, p. 296. The merit to the questions posed can be seen when applied to the case at hand.

It was, of course, necessary for the state to prove the act charged. If the act had been accomplished by force or some coercive process against resistance it perhaps would have been immaterial to the jury's understanding of the case to have limited the evidence to the one act complained of. Forcible rape at a given time and place need not require a background of previous conduct to make the act believable. Here, however, as we have already pointed out, it would have been an unnatural and thus unbelievable story to have described only the particular incident without some background to explain the victim's ready acquiescence. So the state was obliged to show why the act could occur in the manner charged. The evidence was part and parcel of the crime actually charged.

Wigmore says that in respect to statutory rape: 'The evidence may be dealt with from the point of view of adultery and fornication * * * where the intercourse was in fact voluntary; or it may be dealt with from the point of view of rape, where it was in fact forcible.' II Wigmore, Evidence (3rd ed., 1940) § 402, p. 370. As a part of his discussion of adultery he quotes this language from a perceptive opinion by the Vermont court written in 1876:

'The offense charged in this case cannot, ordinarily, be committed till the restraints of natural modesty and the safeguards of common deportment and conventionality have been overcome by gradual approaches, and the relations of the parties have been changed from those usually existing between the sexes, to the most intimate * * *. Thus it appears that the true relation of the parties to each other in this respect, is very material and proper to be shown * * *.' State v. Bridgman, 49 Vt. 202, 210; II Wigmore, supra, at p. 366.

McCormick, supra, at p. 328, says that evidence of other acts may be admitted to 'complete the story of the crime on trial by proving its immediate context of happenings near in time and place' and also to 'prove the existence of a larger continuing plan [or] scheme * * *.' Both of which were pertinent to the instant case. But McCormick warns, however, that it is not possible to precisely delineate all of the purposes for which evidence of other offenses may be admitted, 'for the range of relevancy outside the ban is almost infinite; * * *.' op. cit., p. 327.

In this case the probative relevance of the evidence overbalanced the prejudice the evidence may have created. It was almost directly aimed at the actual crime charged. The explicit instructions of the distinguished trial judge clearly segregated this evidence from that necessary to prove the actual crime. State v. Howard, supra, 214 Or. at page 617, 331 P.2d at page 1119. We cannot sustain the assignment.

The evidence in respect to the birth of the child presents a difficult question. This court has previously said the evidence is admissible. State v. Robinson, 1897, 32 Or. 43, 48 P. 357. In this case the evidence has corroborating value to the testimony of the girl. It was relevant to show the relationship between the girl and defendant. And, like any other evidence which tends to establish guilt, it could have been disproved or used as a means of impeaching the veracity of the witness, if any such evidence were available. For the reasons previously stated we think it was not error to admit the evidence.

A further assignment involves the admission into evidence...