State v. Taylor
| Decision Date | 18 July 1973 |
| Docket Number | No. 2374,2374 |
| Citation | 109 Ariz. 481,512 P.2d 590 |
| Parties | STATE of Arizona, Appellee, v. Raymond Teague TAYLOR, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen. by Peter M. Van Orman, Asst. Atty. Gen., Phoenix, for appellee. Flynn, Kimerer, Thinnes & Galbraith by John J. Flynn, Tom Galbraith, Phoenix, for appellant.
The defendant, Raymond Teague Taylor, was tried by jury and convicted of two counts of violating A.R.S. § 13--652, lewd and lascivious acts. From the judgments and sentences thereon, he appeals.
The evidence upon which the jury convicted was the uncorroborated testimony of a 12-year-old male, hereinafter called the complaining witness, who testified that defendant committed certain acts of fellatio upon him. By A.R.S. § 13--136, it is provided that a conviction may not be had on the uncorroborated testimony of an accompkice. Defendant urges that the complaining witness was an accomplice and, as such, his testimony must be corroborated.
The State's position is that the complaining witness was at the time of the commission of the acts a child without knowledge of the wrongfulness of the acts. By A.R.S. § 13--135, children under the age of fourteen years, in the absence of clear proof that at the time of committing an offense they knew of its wrongfulness, are incapable of committing a crime. And it is argued that under the evidence the complaining witness could not be an accomplice whose testimony required corroboration, Cf. State v. Howard, 97 Ariz. 339, 400 P.2d 332 (1965).
The testimony of the complaining witness, if believed, amply supports the jury's verdict. He testified:
'Q * * * Now, when you participated in this activity with the defendant and also with M_ _, did you know it was wrong to do that?
A Well, no.
Q Did you know that you could be arrested for doing that?
A No.
* * *
* * *
Q * * * is it your statement that you didn't know what you were doing was wrong?
A I didn't know what I was doing was, no.
* * *
* * *
Q In reference to your statement that you didn't know that these acts were wrong, did you know that they were right?
A No.
Q You didn't know?
A Well, I wasn't sure; I really didn't know.
Q Well, did you feel it was morally right to do this type of thing?
A I didn't know.
Q You do, or you are aware that, or at that time I am sure you were aware that certain things were in violation of the law; is that a fair statement to say?
A You mean what I thought, some of these things I was doing was against the law?
Q Yes.
A No.
* * *
* * *
Q Well, so I have it straight in my own mind, you didn't necessarily know it was right; is that right?
A Yes.
Q And you didn't necessarily know it was wrong?
A I just didn't know, period.
* * *
* * *
Q Had your parents ever told you at any time that sexual acts committed, especially with other people, were wrong?
A What do you mean by other people?
Q Well, other than yourself, other than things that you would to (sic) to yourself for sexual excitement.
A Well, I suppose it was explained as far as the opposite sex, but I don't think it's the same.
Q In other words, that during that period of time you knew it was wrong to do things sexually with the opposite sex?
A Yes.
Q But you didn't necessarily know it was wrong to do things with the same sex?
A Right.
Q You'd never been told that?
A Well, it's--I mean--just, I guess they sort of understood I wasn't supposed to, or something. It was never mentioned.
Q Had anyone, had your parents told you that you shouldn't do things of a sexual nature with other men or boys?
A No.
* * *
* * *
Q Did they (his parents) ever talk to you about sexual activities with males?
A Not that I can recall.
Q So that at the time in question, when these activities took place with the defendant, you did not know they were wrong; is that correct?
A Yes.'
Defendant argues that it is absurd to say that the complaining witness did not know that the acts which he described were improper. This argument is more properly addressed to a jury than to an appellate court, the court below having properly instructed the jury as to the weight and credibility to be attached to the witness' testimony.
Defendant complains that because there was no corroboration of the complaining witness' testimony, it was error to instruct on the necessity for corroboration of an accomplice's testimony. Defendant's complaint is without merit. At a recess shortly before the conclusion of the trial, the record shows that the following occurred:
'THE COURT: Let the record show that the defendant has not tendered the Court with any formal written requested instructions; however, requests the Court to give an instruction relative to character and reputation of the defendant * * *.
Also, the defendant requests that the Court instruct the jury relative to testimony of the accomplice must be corroborated.
* * *
* * *
The Court will grant defendant's request relative to character and reputation of the defendant, testimony of accomplice must be corroborated.'
We hold that the instructions requested in the trial court by a defendant are not thereafter grounds for assignment of error.
Defendant complains that the trial court, in instructing the jury in the language of A.R.S. § 13--135, placed the burden upon him to establish by clear proof that the complaining witness knew the wrongfulness of his acts. The short answer to the defendant's complaint is that no objection in this respect was made at the trial or thereafter on motion for a new trial. Errors in instructions to which no objections are made will be considered as waived. State v. Wheeler, 108 Ariz. 338, 340, 498 P.2d 205, 207 (1972); State v. Peats, 106 Ariz. 254, 255, 475 P.2d 238, 239 (1970).
Nor do we find that the court's instructions constituted fundamental error.
A.R.S. § 13--135 provides:
'All persons are capable of committing crimes except:
1. Children under the age of fourteen, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness.
2. Idiots, lunatics and insane persons.'
Plainly, the statute provides that children under the age of fourteen are incapable of committing crimes in the absence of clear proof that they knew the wrongfulness of their acts.
The Arizona statute A.R.S. § 13--135 is a recognition of the common law rule that infants between seven and fourteen were rebuttably presumed to be incapable of crimes; that is, incapable of entertaining criminal intent. 1 Wharton's Criminal Law and Procedure, § 35, at 76--78 (by R. Anderson 1957).
In the prosecution of a juvenile, the burden is on the state to show that he is capable of appreciating the nature of his act, Juvenile Court v. State ex rel. Humphrey, 139 Tenn. 549, 556, 201 S.W. 771, 773 (1918). It is therefore plain that the statute has a reasonable basis in that it is designed for the protection of the youthful immature. If, in the instant case, the jury understood the court's instructions to mean that it was the defendant's burden to clearly prove that the complaining witness knew the wrongfulness of his act, nonetheless this would not be a denial of due process of law under the fourteenth amendment. We cannot say that the statute violates generally accepted concepts of basic standards of justice. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).
However, the foregoing clearly points up the seriousness of defendant's further complaint that he was prejudicially limited in his cross-examination of the complaining witness. The following occurred at the trial:
'Q What grade were you in at that particular time?
A I just come out of the sixth grade. I was going to be in the seventh grade next year.
Q And at that particular time had you had any religious training of any kind?
A Yes.
* * *
* * *
Q Had you been going to church regularly from your early childhood up to the present date?
We have repeatedly held that great latitude should be given in cross-examination in a criminal...
To continue reading
Request your trial
-
State v. Lucas
...will be able to argue on appeal that the instructions nevertheless constituted fundamental, reversible error. See State v. Taylor, 109 Ariz. 481, 483, 512 P.2d 590, 592 (1973). It is clear the instructions did not deprive the appellant of "a right essential to his defense." State v. Grilz, ......
-
State v. Diaz
...that a party cannot complain on appeal that the trial court gave an instruction that he specifically requested. State v. Taylor, 109 Ariz. 481, 483, 512 P.2d 590, 592 (1973); State v. Dutton, 106 Ariz. 463, 466, 478 P.2d 87, 90 (1970) (a defendant cannot complain on appeal that an instructi......
-
State v. West
...is also proper to inquire into religious training to determine whether a witness knew of the wrongfulness of the acts. State v. Taylor, 109 Ariz. 481, 512 P.2d 590 (1973). Reference to religion by the prosecution is also proper when, as here, the defense uses religion to justify a defendant......
-
Gammons v. Berlat
...or in juvenile court. A.R.S. § 13-501 codifies a variant of the common law infancy defense to criminal prosecution. State v. Taylor, 109 Ariz. 481, 512 P.2d 590 (1973) (construing § 13-135, statutory predecessor to A.R.S. § 13-501). Although the present wording dates from the 1978 criminal ......