State v. Smallwood

• Decision Date: 08 March 1968
• Docket Number: CA-CR,No. 1,1
• Citation: 7 Ariz.App. 266,438 P.2d 335
• Parties: The STATE of Arizona, Appelle, v. James Garland SMALLWOOD, Appellant. 134.
• Court: Arizona Court of Appeals

Page 335

438 P.2d 335

7 Ariz.App. 266

The STATE of Arizona, Appelle, v. James Garland SMALLWOOD, Appellant.

No. 1 CA-CR 134.

Court of Appeals of Arizona.

March 8, 1968.

Rehearing Denied April 5, 1968.

Review Denied May 7, 1968.

Darrell F. Smith, Atty. Gen., by Norval C. Jesperson, Asst. Atty. Gen., for appellee.

John M. Levy, Phoenix, for appellant.

STEVENS, Judge.

This case involves an appeal from a conviction for lewd and lascivious acts, a felony, in violation of A.R.S. § 13--652.

The evidence, when viewed in the manner most favorably supporting the verdict, State v. Baker, 100 Ariz. 339, 414 P.2d 153 (1966); State v. Womack, 6 Ariz.App. 267, 431 P.2d 908 (1967), reveals that the appellant committed the act of fellatio on 28 May 1966. The complaining witness was a 17 year old boy. There was much conflict in the testimony relating to the specific details surrounding the commission of the act. The jury determined the factual questions in favor of the State and we do not find it necessary to go into a detailed account of the facts.

Appellant has raised three questions for this Court to review. The first question relates to the introduction of evidence of the commission of a prior indecent sex act by the appellant. The prior act, which may be construed as an attempt to commit fellatio, was committed on 9 December 1965. In relation to this act, misdemeanor charges were filed against the appellant under provisions of the City Code of the City of Phoenix. Appellant plead guilty to this charge in the City Court.

We cannot agree with appellant's contention that it was reversible error for the trial court to admit testimony relating to the commission of this prior offense. Our Supreme Court has ruled in State v. McDaniel, 80 Ariz. 381, 298 P.2d 798 (1956), and State v. Phillips, 102 Ariz. 377, 430 P.2d 139 (1967), that, in the area of unusual sex offenses, there is a specific exception to the general rule that evidence of another crime entirely distinct and independent of that for which the defendant is being tried is neither relevant nor admissible unless proof of one tends to establish the other by showing motive, intent, absence of mistake or common scheme or plan. The exception set forth in McDaniel and Phillips provides that, when a crime is recognized as stemming from a specific emotional propensity for sexual aberration, the fact that in the near past an individual has given way to unnatural proclivities has a direct bearing on the ultimate issue whether in the case being tried the individual is guilty of a particular unnatural act of passion.

In the present case, the prior act was sufficiently similar to the crime with which appellant is now charged to show a specific emotional propensity to commit the act as charged. The prior act, being committed approximately six months before the act presently at issue, was sufficiently recent to be considered 'in the near past'. The jury was specifically instructed as to the limited purpose for which the testimony was introduced. We hold that the admission of the complained of testimony was proper under the rules set forth in McDaniel and Phillips.

The second question for review raises the issue as to whether the trial court erred in submitting to the jury the question of whether the complaining witness was an accomplice. The jury was instructed as to the definition of an accomplice and as to the necessity for corroboration of an accomplice's testimony. It is the contention of the appellant that the trial court should have ruled, as a matter of law, that the complaining witness was an accomplice.

We again refer to McDaniel where a similar contention was raised. In McDaniel, the defendant contended that the trial court had erred in not granting his motion for an instructed verdict because the evidence, as he construed it, showed the complaining witness to be an accomplice. The complaining witness in that case maintained that he did not enter willingly into the act of fellatio and that the only reason he submitted was because of fear that the defendant would do him bodily harm if he refused. The court held that the issue of whether the complaining witness was an accomplice was properly submitted to the jury.

Subsequent to the McDaniel decision, our Supreme Court has decided State v. Howard, 97 Ariz. 339, 400 P.2d 332 (1965). This case also involved the act of fellatio and the Supreme Court held that the complaining witness was an accomplice under A.R.S. § 13--136 whose testimony had to be corroborated in order to sustain a conviction. The trial court had failed to submit any instructions concerning the necessity for corroboration of the testimony of the complaining witness and the Supreme Court held that this failure constituted reversible error.

We find the fact situation in the case presently before us to be substantially different from that presented in Howard. In Howard, the complaining witness had been participating in the indecent acts for a period of approximately six years before she told anyone of the occurrences. Due to the period of time in which the acts took place without her complaining, it was apparently found that she...