State v. Torres, 1978
| Decision Date | 13 February 1970 |
| Docket Number | No. 1978,1978 |
| Citation | 105 Ariz. 361,464 P.2d 953 |
| Parties | STATE of Arizona, Appellee, v. Matias Moreno TORRES, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Ross P. Lee, Public Defender, Vernon B. Croaff, Former Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.
Matias Torres, the defendant, was charged with first degree rape. He waived a jury, was found guilty, received a sentence of 12--14 years in prison, and has appealed. The principal issue raised is whether the state proved penetration beyond a reasonable doubt.
This problem arose almost immediately, when the county attorney, in his opening argument, stated that the victim of the crime would testify that the defendant:
Defense counsel, at the close of the state's opening statement moved for a disrected verdict on the ground that the state had admitted that penetration would not be proved. The motion was overruled.
Defendant lived with Phyllis Valenzuela (also known as Phyllis Florez) in her Phoenix home 'off and on since 1963' without benefit of clergy. She had three children: Christina Florez, age 10 at the time of the trial in August, 1968; Manuel, age 9, and David who was 40 years old. Defendant was the father of David.
On May 24, 1967, when the crime was alleged to have been committed, Phyllis had to leave the house to pick up groceries at the welfare center. She was gone from about 2:00 P.m. to 3:30 P.M. Since defendant was at her house, she asked him to watch out for David and for her other two children who would soon be home from school. When she returned she found defendant in the kitchen washing dishes. This made her suspicious because defendant rarely made any attempt to be helpful. She found Christina (at that time, age 9) looking 'kind of sad' but this did not disturb or concern her, though she inquired why the child was not outside playing.
A few days later Christina developed a vaginal discharge, followed by sores, and her mother took her to the doctor. He testified that he saw the child on June 2, 1967, took a smear of the discharge, and sent it to the laboratory. Over defense counsel's objection he was permitted to testify that the lab report showed that the child had gonorrhea. This disease, he stated, could be contracted only by direct contact, but such contact could have bee by the semen ejaculated by a man while rubbing his penis across the vaginal area of the child, if that male were infected with the disease at the time. On cross-examination he testified that he did not see any recent lacerations or bruises around the vaginal area; that he did not wish to imply that the child had been subjected to an act of sexual intercourse; and that he did not give her the type of examination that he would give a patient who came in to be examined because of rape.
Since the state, in its appellate brief, admits that the laboratory report was hearsay and that its admission into evidence was error, and since no attempt was made to prove that defendant had gonorrhea, no inference of penetration can be drawn from the medical testimony. Since Phyllis was not present and was not permitted to testify what she was told by Christina, her testimony is useless on the question of whether penetration was achieved.
It is, therefore, obvious that if penetration were proved it must have been by the child's testimony, as there were only three witnesses.
At the trial this child, though ten years old and a good student in school, was nervous, and apparently had some difficulty in understanding the nature of some of the questions asked. It is obvious that some language barrier existed, since she was of Spanish or Mexican descent. The judge obviously...
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State v. Toohey
...no further details. And in one case, the expressed lack of pain from the touching was deemed significant. In State v. Torres, 105 Ariz. 361, 464 P.2d 953, 955 (1970), the court held “[t]here was no proof of even the slightest penetration,” when the victim specifically testified on cross-exa......
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State v. King
...feelings of the victim, § 13--612 A.R.S., there can nevertheless be no rape without some penetration, however slight. State v. Torres, 105 Ariz. 361, 464 P.2d 953 (1970). The court properly instructed the jury as to the statutory definition of the crime of second degree rape but was not req......
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State v. Jackson, 2323
...of the vulva, no matter how slight, is necessary before 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 convictio......
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State v. Torres
...with the comment that while defendant might be guilty of other crimes, he had not been proved guilty of rape. State v. Torres, 105 Ariz. 361, 464 P.2d 953 (1970). Upon receipt of the mandate, defendant's attorney moved to set aside the judgment of conviction and the sentence, to dismiss the......