State v. Smith

• Decision Date: 16 March 1972
• Docket Number: No. 54742,54742
• Citation: 195 N.W.2d 673
• Parties: STATE of Iowa, Appellee, v. Clarence Duane SMITH, Appellant.
• Court: Iowa Supreme Court

Page 673

195 N.W.2d 673

STATE of Iowa, Appellee, v. Clarence Duane SMITH, Appellant.

No. 54742.

Supreme Court of Iowa.

March 16, 1972.

Roger P. Owens and Jesse, LeTourneau & Johnston, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Robert D. Jacobson, Asst. Atty. Gen., Ray Fenton, County Atty., for appellee.

MASON, Justice.

Clarence Duane Smith, twenty-two, was charged by indictment with forcibly raping Mary Margaret Smith contrary to section 698.1, The Code, 1966. Following defendant's plea of not guilty, he was tried to a Polk county jury which convicted him of the crime of assault with intent to commit rape. Motions for judgment notwithstanding the verdict and in the alternative, for a new trial, were overruled and Smith was sentenced to the state penitentiary.

Smith appeals assigning two errors relied on for reversal. In his first assignment defendant contends the court erred in overruling his motion to dismiss made at the close of the State's evidence and renewed at the close of all evidence and in overruling motion for judgment notwithstanding the verdict and for a new trial. Defendant contends in the other assignment the court erred in overruling objections to testimony offered by the State. Although the assignments are argued together, they will be considered separately after some narration of facts giving rise to this criminal charge.

Mary Margaret Smith, thirty-four, had been married to defendant's father. They were divorced in 1963. Defendant, born as the issue of Mr. Smith's earlier marriage, had lived with his father and prosecutrix in 1956. At the time of the incident involved, August 13, 1970, Mrs. Smith was living with her five children and a granddaughter in Des Moines. Linda, fifteen, was the oldest of Mrs. Smith's children and defendant's half sister. The other children were 13, 12, 9 and 2, the granddaughter, five months old.

Defendant testified that before going to Mrs. Smith's home he did some drinking at a party earlier in the evening, had some drinks at a tavern and at a cousin's home. Defendant arrived at Mrs. Smith's home around 2:30 a.m. and knocked at the door. Mrs. Smith was in bed at the time. The five children were asleep in the same bedroom. As she opened the door defendant asked if they were already in bed and she answered, 'Yes,' and went back to bed. Defendant followed her into the bedroom and sat down on the bed where prosecutrix was lying with her granddaughter. After some conversation, for some unexplained reason, Mrs. Smith went out to the front yard.

Prosecutrix testified defendant followed her into the yard and after asking her to come back into the house, grabbed her arm and pulled her back into the bedroom where the act complained of took place. She described the extent of the force exerted by defendant in accomplishing the act.

After defendant left the house Mrs. Smith awakened Linda and told her defendant had assaulted her. Later she called her brother, her pastor and the police. The police took her to Broadlawns Hospital where she was examined about 5 a.m.

Linda testified although she did not see defendant at her mother's house the night in question, she heard voices and recognized one as her brother's and the other as her mother's.

I. Under the criminal practice of this state there is no such thing as a motion for judgment notwithstanding the verdict. State v. Deets, Iowa, 195 N.W.2d 118 (filed February 25, 1972). Insofar as defendant relies on the court's adverse ruling on this phase of the motions as a basis for reversal, the contention is wholly without merit.

II. Defendant also challenges the court's refusal to sustain his motion to dismiss on the ground the corroboration required by section 782.4, The Code, was not sufficient. This section provides:

'The defendant in a prosecution for rape * * * cannot be convicted upon the testimony of the person injured, unless she be corroborated by other evidence tending to connect the defendant with the commission of the offense.'

Defendant contends evidence that the prosecutrix made complaint to Linda and the testimony of the examining physician that Mrs. Smith had had intercourse within 12 to 18 hours before his examination is the only possible corroborating evidence other than the question of opportunity which is not the corroboration required by the statute.

While one may not be convicted of rape upon the testimony of the victim alone, the statute requires only that the corroborating evidence be such as tends to connect the defendant with the crime. State v. Pilcher, 158 N.W.2d 631, 636 (Iowa 1968) and State v. Escamilla, 182 N.W.2d 923, 924 (Iowa 1971).

The question of the sufficiency of the corroboration required by this statute is fully discussed in State v. Pilcher.

State v. Brown, 172 N.W.2d 152, 153 (Iowa 1969), has this statement of law:

'On defendant's appeal from criminal conviction based on jury verdict challenging sufficiency of evidence to sustain the verdict we view the evidence in the light most favorable to the State and accept as established all reasonable inferences tending to support action of the jury. It is necessary to consider only the supporting evidence whether contradicted or not. * * * (citing authorities).'

No error can be predicated on the failure to grant the motion for directed verdict made at the close of the State's evidence. The court may sustain such a motion but is not required to do so. See State v. McLaughlin, 250 Iowa 435, 439, 94 N.W.2d 303, 305; State v. Kulow, 255 Iowa 789, 793, 123 N.W.2d 872, 875; State v. Mabbitt, 257 Iowa 1963, 1065, 135 N.W.2d 525, 527; and State v. Werner, 181 N.W.2d 221, 222 (Iowa 1970).

After the court overruled the motion to dismiss made at the close of the State's evidence, defendant took the stand and testified he was at the home of Mrs. Smith the night in question. He admitted having intercourse with prosecutrix but denied the act was accomplished with force or against her will.

Even if we were to accept defendant's argument that Linda's testimony was insufficient to furnish the corroboration required under the statute there is another reason why defendant's contention is without merit. In State v. Niccum, 190 N.W.2d 815, 823 (Iowa 1971), we pointed out 'when a defendant introduces evidence after a denial of his motion for dismissal or directed verdict at the close of the prosecution's case, the reviewing court should consider the entire record, including defendant's evidence.'

Defendant's assignment considered in this division and his argument in support completely ignore defendant's testimony as a witness in his own behalf when he testified he went to Mrs. Smith's home the early morning of August 13, 1970, and had intercourse with her. There can be no question as to the sufficiency of his testimony to meet the requirements of section 782.4.

III. In support of his attack on the court's rulings on his objections defendant contends Mrs. Smith's testimony as to the complaint she made to Linda as well as that portion of Linda's testimony where she related what her mother said after awakening her is hearsay.

In some of our recent cases we have defined hearsay. See Daniels v. Bloomquist, 258 Iowa 301, 312, 138 N.W.2d 868, 875;...