State v. Scott, 1949
| Decision Date | 24 October 1969 |
| Docket Number | No. 1949,1949 |
| Citation | 105 Ariz. 109,460 P.2d 3 |
| Parties | The STATE of Arizona, Appellee, v. Morris L. SCOTT, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Wolfram & Krom, by Donald E. Wolfram, Phoenix, for appellant.
Defendant, Morris Scott, appeals from convictions of rape and kidnapping, for which he was sentenced to concurrent periods of incarceration at the State Prison of ten to fifteen years for the rape conviction and one to two years for kidnapping. His motion for a new trial was denied.
The uncorroborated testimony of the prosecutrix, a twenty year old college coed, alleged the following: That while she was waiting for a bus at 12th Street and Broadway in Phoenix, a car containing three persons, including defendant, drove up and asked her if she wanted a ride; that she declined because her anticipated bus was approaching less than two blocks away; that defendant dragged her into the car; that she was effectively imprisoned by the clutch of defendant's arm and the knife wielding of one of the passengers, a female; that she was driven, against her wishes, out of Phoenix and down into the Laveen-St. Johns area; that while the female passenger threatened her with a knife, the two male passengers, including defendant, forced her to undress and raped her; and that she was then returned to Phoenix and let out of the car near the bus stop where she was originally abducted.
Defendant first assigns as error that the evidence adduced at trial was insufficient to support a conviction for rape because evidence of penetration, an essential element in rape, was never conclusively established. We do not agree with defendant's contention.
The law as to what degree of penetration constitutes that necessary element of rape was clearly set forth in State v. Pollock, 57 Ariz. 415, 114 P.2d 249 (1941). In Pollock, we reiterated the long time holding of this Court 'that the slightest penetration of the vulva is sufficient to complete the offense * * *.'
The prosecutrix testified that defendant entered her vaginal passage with his penis. Her examining physician, who examined her vaginal area within a few hours after the alleged rapes occurred, testified that he found 'lacerations all around the rim of her vagina where the hymen was.' When asked to describe the condition of the hymen, the doctor responded: The abrasions had to have taken place within a few hours of the examination, he opined, 'because she was still bleeding from some of them.'
The testimony of the prosecutrix and the doctor were sufficient to allow the jury to find that penetration had occurred. In Pollock, supra, we also held that in a prosecution for rape, 'a conviction may be had upon the uncorroborated testimony of the prosecutrix unless her story is physically impossible, or so incredible that no reasonable man could believe it.' 57 Ariz. at 417, 114 P.2d at 250. We hold that the evidence in the present case was sufficient to support a conviction for rape.
Defendant next argues that the prosecution never conclusively established that the alleged rape took place in Maricopa County, and that therefore the Maricopa County Superior Court was without venue to hear the rape prosecution. In fact, defendant contends that the evidence demonstrates that the alleged crime took place in Pinal County. The defendant did not testify in the case, and we must therefore look to the testimony of the prosecutrix to see if the evidence permitted venue in the courts in Maricopa County.
The prosecutrix was unable to point out the exact location where the alleged rape occurred. Rather, she relied on landmarks which she observed while her abductors' automobile carried her to the 'scene of the crime.' She was able to discern that the car had headed in a southwesterly direction from the city of Phoenix, that the auto had passed signs which read 'Laveen' and 'St. Johns,' and that the alleged rapes occurred about two miles from the sign which read 'St. Johns.' She also testified that to the best of her knowledge, the location 'wasn't outside the county' and 'that area includes Maricopa County.' When detectives later accompanied the prosecutrix in a search for the precise location, she was unable to locate it.
Although it is usually desirable for the prosecution to prove venue by direct evidence, indirect or circumstantial evidence may be used in a proper case, and if there is proof of facts from which the court can take judicial notice of venue, such proof is sufficient. State v. Howe 69 Ariz. 199, 211 P.2d 467 (1949); State v. Phillips, 102 Ariz. 377, 430 P.2d 139 (1967). We take judicial notice of the fact that St. Johns and Laveen are in Maricopa County. From the landmarks which the prosecutrix recalled in her testimony, we hold that there was sufficient evidence for the jury to determine that the crime was committed in Maricopa County. Such evidence was never contradicted.
Defendant was found to be an indigent and a public defender was appointed as his counsel. When defendant's case came to trial, however, defendant waived representation by court appointed counsel, and chose to argue his defense in propria persona. An extensive record was made by the trial judge, counsel, and defendant on the matter of waiver, and that record clearly reflects that defendant knowingly and intelligently waived his right to counsel. Defendant did request that the public defender sit in the court room during the trial of the case, so that defendant could call on the public defender's assistance if needed. The trial court granted defendant's request, and the public defender was present during the entire proceedings.
During the state's direct examination of the prosecutrix, the following testimony was elicited:
'Yes, they told me that there was no use in going to the police, because they had done that before and that there was no way * * *.'
Defendant made no objection or motion to strike the testimony. On appeal, however, defendant alleges prejudicial error in the trial court's admitting such testimony into evidence. We have long adhered to the principle that the failure to make timely objections at trial precludes any assertion of error on appeal. Tang v. Avitable, 76 Ariz. 346, 264 P.2d 835 (1953), and numerous other cases. Without making any comment on defendant's evidentiary claim, we hold that defendant precluded his right of appeal concerning this particular assignment of error by failing to object to the admission of the testimony at trial.
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State v. Beeler
... ... from which the court can take judicial notice of venue, such ... proof is sufficient." State v. Scott , 105 Ariz ... 109, 110 (1969) ... ¶ ... 9 Beeler contends the state failed to present any ... "actual ... ...
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...State v. Agnew, 132 Ariz. 567, 647 P.2d 1165 (App.1982). Venue may be proven by indirect or circumstantial evidence. State v. Scott, 105 Ariz. 109, 460 P.2d 3 (1969). For example, in Antone v. State, 49 Ariz. 168, 65 P.2d 646 (1937), the appellant contended that the state had failed to prov......
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...proper objection the matter is not subject to review unless it constitutes fundamental error, and we find no such error. State v. Scott, 105 Ariz. 109, 460 P.2d 3 (1969); State v. Thorne, 104 Ariz. 392, 453 P.2d 963 (1969). As to the admission of those exhibits objected to, an examination o......
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State v. Jackson, 2323
...a person can be guilty of the crime of rape, § 13--612 A.R.S.; State v. Torres, 105 Ariz. 361, 464 P.2d 953 (1970); State v. Scott, 105 Ariz. 109, 460 P.2d 3 (1969), and penetration of the anal cavity alone will not support a conviction for rape. See Reynolds v. State, 274 Ala. 171, 146 So.......