State v. Natzke

• Decision Date: 20 January 1976
• Docket Number: No. 1,CA-CR,1
• Citation: 25 Ariz.App. 520,544 P.2d 1121
• Parties: STATE of Arizona, Appellee, v. Vernon NATZKE, Appellant. 1193.
• Court: Arizona Court of Appeals

Page 1121

544 P.2d 1121

25 Ariz.App. 520

STATE of Arizona, Appellee, v. Vernon NATZKE, Appellant.

No. 1 CA-CR 1193.

Court of Appeals of Arizona, Division 1, Department B.

Jan. 20, 1976.

Bruce E. Babbitt, Atty. Gen., by William J. Schafer, III, Chief Counsel, Crim. Div. and Georgia C. Butcher Ellexson, Asst. Attys. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by Rudy J. Gerber, Deputy Public Defender, Phoenix, for appellant.

OPINION

HAIRE, Ch-ief Judge, Division 1.

After a trial by jury, appellant was convicted of one count of second degree rape and one count of lewd and lascivious conduct. He was sentenced to not less than ten nor more than thirty years on each count, the terms to run concurrently. According to the testimony of appellant's thirteen year old daughter and his eight year old son, appellant on August 14, 1974 and on numerous other occasions over the prior two and one-half years had sexual intercourse with his daughter and performed acts of cunnilingus with her.

On appeal, appellant raises three issues:

1. Whether the trial court erred in admitting a statement by defendant which was purportedly obtained in violation of defendant's right to counsel.

2. Whether the trial court erred in admitting into evidence certain magazines and pictures from magazines showing sexual conduct.

3. Whether Arizona's lewd and lascivious statute is unconstitutionally vague.

On the first issue, appellant contends that at the time he was arrested, he requested that he be allowed to see an attorney, but that nevertheless he was interrogated by the police without an attorney present. Over appellant's objections, the statements he made to the police during this interrogation were admitted into evidence.

The State concedes that the interrogation of a defendant following denial of requested counsel is a violation of defendant's right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 SCt. 1602, 16 L.Ed.2d 694 (1966). However, we need not reach this issue because the facts retute appellant's contention that he requested an attorney prior to questioning.

A review of the record shows that a conflict exists between the testimony of appellant, who claims he requested an attorney, and the interrogating police officers, who testified that appellant did not make such a request. After hearing this testimony, the trial court found that the statements were voluntary and were admissible into evidence.

In cases where there is a conflict in the evidence and there is substantial evidence to uphold the trial court's finding, we must abide by the judgment of the trial judge who has had the opportunity to observe the witnesses and hear the testimony firsthand. State v. Hughes, 104 Ariz. 535, 456 P.2d 393 (1969). In the current case there is substantial evidence to support the trial court's finding and we cannot say that the trial court abused its discretion in admitting appellant's statement into evidence.

For his second ground on appeal, appellant claims that the trial court erred in admitting into evidence magazines and pictures from magazines which were found in appellant's bedroom. These pictures depict various scenes of intercourse, fellatio, cunnilingus, masturbation and other sexual acts. There were also pictures of nude men and women not engaged in sexual acts. Appellant claims that these were highly inflammatory and prejudicial and should not have been admitted into evidence. He also claims that because his daughter was not asked to specifically identify the magazines and other pictures, there was insufficient foundation for their admission.

Udall states:

'In a prosecution for a sex crime, pornographic pictures found under the control or in the possession of the defendant may be admitted in the court's discretion to evidence the defendant's lustful desire or purpose.' Udall on Evidence, § 132 (1960).

For this proposition, Udall cites State v. McLain, 74 Ariz. 132, 245, p.2d 278 (1952) and People v. Scott, 24, cal.App. 440, 141 P. 945 (1914). In McLain, quoting Scott, the court stated:

'* * * Any act or declaration of defendant tending to show a desire or purpose on his part to have illicit relations with the prosecutrix or any solicitation or representation made by him to excite a similar desire on the part of his victim, or to overcome her natural aversion to wantonness, would be relevantly and clearly connected with the crime and therefore admissible.' 74 Ariz. at 136, 245 P.2d at 281.

However, in McLain, Scott and the cases citing them which have come to our attention, it has been established at trial that the specific pornographic photographs involved had been shown to the victims of crimes. On the other hand, in White v. State, 137 Tex.Cr. 481, 131 S.W.2d 968 (1939), the court reversed a defendant's conviction because a book of lewd pictures found in defendant's pocket was admitted into evidence, distinguishing Scott on the grounds that in White there was no showing that this book had been utilized in any way by the defendant in his alleged offense. Thus, it is apparent that the broad rule stated in Udall is subject to limitation. In ruling on the State's Petition for rehearing in White, the Texas court stated:

'Neither the booklet nor the drawings or printed matter therein was appellant's production, and should not have been used in evidence against him on his trial for an assault to rape. A person can only be bound by his own acts and conduct and not that of another. Although he had the obscene booklet in his possession when arrested, it would not be evidence of a criminal...