State v. Taylor

• Decision Date: 08 December 1980
• Docket Number: No. 5075-PR,5075-PR
• Citation: 127 Ariz. 527,622 P.2d 474
• Parties: STATE of Arizona, Appellee, v. William E. TAYLOR, Appellant.
• Court: Arizona Supreme Court

Page 474

622 P.2d 474

127 Ariz. 527

STATE of Arizona, Appellee, v. William E. TAYLOR, Appellant.

No. 5075-PR.

Supreme Court of Arizona, In Banc.

Dec. 8, 1980.

Rehearing Denied Jan. 13, 1981.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Echeverria, Glenn & Howard by Phillip W. Glenn and Dwight P. Callahan, Casa Grande, for appellant.

HAYS, Justice.

Appellant was convicted by a jury of sexual assault and sentenced to 14 years in the state prison. The State alleged and subsequently proved a prior conviction of rape in a separate trial. We take jurisdiction pursuant to A.R.S. § 12-120.24, and we affirm.

The evening's events began in the O. K. Corral Bar where the appellant met the victim and bought her a drink. At 1:00 A.M., when the bar closed, they departed together to have breakfast at a nearby coffee shop. From this point on, the testimonial paths diverge. The victim testified that after breakfast they drove past two bars in Mesa, allegedly to look for appellant's brother. Eventually, appellant drove off a dirt road near the mountains southeast of Apache Junction, parked, turned and choked the victim until she was nearly unconscious, laid her in the back seat and engaged in nonconsensual sexual intercourse three times. On their return trip to Chandler, appellant pulled over again and choked her before dropping the victim off at a street corner near her mother-in-law's home.

The appellant described a more direct version of his route home. He testified that he never sexually assaulted her, that he dropped the victim off immediately following breakfast at the same corner which she had described, and that he arrived at his home at 3:00 A.M. His statement was uncorroborated.

The physical and testimonial evidence supporting the victim's version included the lab technician's finding of semen present on the underwear worn by the victim on the evening in question; her mother-in-law's description at trial of the victim's emotional condition at 4:00 that morning after being dropped off; and witness' testimony of the victim's physical injuries shortly after the alleged sexual assault, which included bloodshot eyes and bruises around her ears.

We comment only briefly on two issues identified, but not argued, in the motion for rehearing. One, appellant urges that photographs of the victim's injuries, purportedly taken two weeks after the incident, were improperly admitted at trial because the expert medical witness testified that the redness in the eyes as pictured was representative of that type of an injury but was that of an injury which had occurred before two weeks had passed. The trial judge did not err in admitting the photographs because the objection only dealt with the weight to be given to the evidence, not to the lack of foundation.

Second, appellant contends the court erred in the imposition of a sentence which was 31/2 years beyond the presumptive. The trial judge complied fully with § 13-604(K) by stating on the record sufficient aggravating circumstances, including appellant's criminal history, the prior conviction, the dangerous and violent nature of the charges, and the placing of the victim in a position of serious bodily harm.

The principal issue on appeal is posed: Is the failure of the trial court to instruct the jury, sua sponte, that the prior rape conviction is to be used only to impeach the credibility of the defendant-appellant and not to be considered as evidence of guilt, fundamental error? No, it is incumbent upon counsel to request a specific instruction on the limited admissibility of the prior if s/he is to preserve the alleged error for appeal.

A review of the record reveals that appellant was called as one of the two witnesses for the defense. On the stand, appellant voluntarily, through questioning by his counsel, admitted to a 10-year-old felony conviction for rape. Reference was made to this prior conviction again on cross-examination by the State and in the State's closing argument. Defense counsel made no request for a preliminary evidentiary hearing pursuant to 17A A.R.S. Rules of Evidence rule 609, to preclude the admission of the prior conviction at trial, nor did counsel object to the references to the prior conviction at trial, nor did counsel object to the failure of the court to instruct the jury as to its limited admissibility, nor did counsel request any instruction beyond the standard credibility instruction, RAJI 5A, which was given.

17 A.R.S. Rules of Criminal Procedure, rule 21.3(c), sets forth basic law that no party may assign as error on appeal the court's failure to give any instruction unless he objects thereto before the jury retires and distinctly states the grounds for his objection. Instructional defects unobjected to will only be considered on appeal if they rise to the level of fundamental error. State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979). Appellant urges that the recent decisions of State v. Canedo, 125 Ariz. 197, 608 P.2d 774 (1980), and State v. Miller, 120 Ariz. 224, 585 P.2d 244 (1978), suggest the presence of fundamental error where no cautionary instruction has been given and where overwhelming evidence of guilt is absent. We are pointed to the language in State v. Canedo, supra, where this court, citing from State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959), stated that there is an "imperative duty on the trial court to clearly instruct the jury as to the limited use of the prior." We previously addressed this contention in State v. Francis, 91 Ariz. 219, 222, 371 P.2d 97, 99 (1962). We responded and continue to respond as follows:

"In support of his assignment (that the trial court erred in giving a cautionary instruction as to the restricted purpose for admission of other offenses) defendant cites State v. Finley, 85 Ariz. 327, 335, 338 P.2d 790, 796 (1959) wherein it was stated by the majority opinion:

'Whenever evidence is admitted of other offenses there is an imperative duty on the trial court to clearly instruct the jury as to the restricted and limited purpose for which such evidence is to be considered. * * * '

"However, in that case the instruction had been requested by the defendant and given by the trial court whereas in the instant case no such instruction was requested by the defendant. In addition, the Finley case cites People v. Nye, 38 Cal.2d 34, 237 P.2d 1 (1951) as authority for such proposition. However, the Nye case did not deal with an instruction limiting consideration of other offenses. Therefore, the Finley case is not in point.

"It has long been the rule in this jurisdiction that unless an objection is interposed to an instruction, or a request for an instruction is made, error cannot be predicated on the giving or the failure to give such an instruction. State v. Evans, 88 Ariz. 364, 356 P.2d 1106 (1960). This Court has repeatedly held that if a defendant wants an instruction...