State v. Valdez

• Court: Arizona Court of Appeals
• Writing for the Court: HOWARD; KRUCKER; HATHAWAY
• Citation: State v. Valdez, 534 P.2d 449, 23 Ariz.App. 518 (Ariz. App. 1975)
• Decision Date: 24 April 1975
• Docket Number: No. 2,CA-CR,2
• Parties: The STATE of Arizona, Appellee, v. Antonio Escarsega VALDEZ, Appellant. 446.

Page 449

534 P.2d 449

23 Ariz.App. 518

The STATE of Arizona, Appellee, v. Antonio Escarsega VALDEZ, Appellant.

No. 2 CA-CR 446.

Court of Appeals of Arizona, Division 2.

April 24, 1975.

Rehearing Denied May 27, 1975.

N. Warner Lee, Former Atty. Gen., Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Galen H. Wilkes, Asst. Attys. Gen., Phoenix, for appellee.

Donau, Bolt, Hickle & Whitley by Alfred S. Donau, III, Tucson, for appellant.

OPINION

HOWARD, Chief Judge.

Appellant was charged with and convicted by a jury of one count of rape and two counts of lewd and lascivious acts with a prior conviction of rape and lewd and lascivious acts. He was sentenced to a term of not less than 20 nor more than 25 years in the Arizona State Prison on the rape conviction and to a term of not less than one nor more than five years on each count of lewd and lascivious acts to run concurrently with each other and consecutively to the sentence on the rape conviction.

Appellant contends the trial court erred by admitting into evidence testimony concerning the prior conviction for rape and lewd and lascivious acts, in instructing the jury, and by permitting the state's complaining witness to testify that appellant told her he had been 'sniffing coke'.

The evidence considered in the light most favorable to upholding the jury verdict shows that the rape victim, Carmen Martinez, had prior to April 11, 1974, seen appellant several times at a friend's house. Carmen had recently bought two small houses. She lived in the front house which consisted of a front room, a kitchen, a hallway and bathroom. The sleeping quarters were in the front room. The back house was in need of repairs and was vacant. On April 11, 1974, appellant and two other persons were sent to Carmen's house by Larry, a mutual friend, to put tile in her back house. After finishing laying the tile, the three left.

Around 12:30 a.m. on April 12th, Carmen had just turned out the lights to retire when there was a knock at the door. She went to the window and saw appellant standing there. She asked him what he wanted, and he asked her if she had seen either Larry or Mando. Carmen told him she had not seen them, and appellant then told her that he had been drinking with them and somehow they had gotten separated. He asked if Carmen knew where they might be. She told him to try either Larry's or Mando's house, and appellant said he had already gone there. Appellant asked Carmen if she knew where else he might find them, and she replied that she did not know. Then appellant told her that he couldn't hear her, and Carmen opened the door. Appellant began telling Carmen he was really drunk and didn't know if he would be able to make it back to where he lived, that he didn't have anywhere to stay and he wanted to know if he could sleep in the back house. She told him it was very cold, that she didn't think he should sleep in the back house and that he ought to go back to Larry's house. Appellant asked for a blanket, and Carmen went to the back house and opened it for him. Appellant then told her the blanket was too good and was going to get messy.

With appellant following her, Carmen went into the house, gave him a bedspread and then went to the back door to open it for appellant when he grabbed her around the mouth and told her not to make any noise. Carmen struggled with him but did not scream for fear of awakening her little boy who was asleep in the front room. He finally took her into the front room and after her clothes had been partially removed by her and by appellant, attempted to have intercourse with her but at first was not able to do so. The sexual assault lasted about two and one-half hours during which time appellant did succeed in having sexual intercourse with her more than one time, rubbed his penis on her buttocks, and at one time took her into the bathroom and splashed water on the vagina because he said she was 'too dry'. It was a little before 3:00 a.m. when appellant finally left.

Another witness for the state testified that on July 30, 1972, she lived across the street from appellant and was then acquainted with him. She testified that about 2:00 o'clock in the morning on July 30th, she had been sleeping when appellant knocked at her door stating he was looking for his brother. She told him his brother wasn't there but he insisted that his brother had to be there because he couldn't find him. He told her he wanted to look in the house to see if his brother was there, and she finally let him into the house in order to show him his brother was not there. She was standing by the front door, thinking he was going to leave, when appellant grabbed her from behind. She struggled with him and ran out the front door, but he ran after her, covered up her face so she could not breathe and carried her back into the house. Over a period of about an hour appellant had sexual intercourse with her several times. While he was dozing off, she escaped and ran to a neighbor's house. The police were called and appellant was arrested and subsequently convicted of rape and lewd and lascivious acts.

In State v. McFarlin, 110 Ariz. 225, 517 P.2d 87 (1973), our Supreme Court recognized the confusion in the Arizona cases as to the admissibility of prior bad acts in cases involving sex offenses. It held that the 'lustful disposition' or 'emotional propensity' exception is limited to cases involving sexual aberration stating, 'As one court pointed out, the fact that one woman was raped is not substantial evidence that another did not consent. Lovely v. United States, 169 F.2d 386 (1948).' 110 Ariz. at 228, 517 P.2d at 90. See, State v. Williams, 505 P.2d 1092 (Ariz., 1975).

However, the Court clearly indicated that other exceptions to the exclusionary rule can still be used. If the prior bad act shows a common plan, scheme, or device and is not too remote in time, such prior bad act is admissible. State v. McFarlin, supra. Mere similarity between the crime charged and the prior bad act is not sufficient. The acts must have common features indicating a common design or plan. 2 Wigmore on Evidence § 304 (1940). The following cases demonstrate the common plan or scheme exception in rape cases. In Dean v. State, 277 So.2d 13 (Fla.1973), in each incident the defendant got the victim into his car by trick, made sexual advances and when rejected 'pulled a gun'. In Coney v. State, 193 So.2d 57 (Fla.App.1966), the defendant accomplished the rapes by initially blocking the victims' car with his own car. In State v. Smith, 259 La. 515, 250 So.2d 724 (1971), the victims were accosted on the street, the defendant put a knife to their throats and covered their eyes with a scarf. In People v. Holliman, 274 Cal.App.2d 89, 78 Cal.Rptr. 826 (1969), each rape took place in an apartment house, entry to which was gained through the laundry room, and in each instance the defendant was armed with a black gun. Attention is also directed to our own case of State v. Finley, 85 Ariz. 327, 338 P.2d 790 (1959) where the court held a prior rape admissible under the common scheme or plan exception under circumstances which can only be considered tenuous in comparison to the facts of this case.

Finally, on the issue of remoteness, in State v. Morgan, 207 Kan. 581, 485 P.2d 1371 (1971), one of the prior rapes took place two years before the rape for which the defendant was charged. In Power v. State, 43 Ariz. 329, 30 P.2d 1059 (1934) the court held that the trial judge did not err in admitting acts which occurred two years prior to the one charged.

In the case at bench we find that there are more than gross similarities between the acts charged and the prior rape. In both cases appellant was casually acquainted with the victim. His opening gambit was the same, to wit, the pretense of looking for someone. Both rapes took place in the early morning hours and both involved a sexual tour-de-force including a request for oral copulation. These similarities show a common design, plan, scheme and modus operandi and therefore the trial court did not err in allowing evidence of the prior rape.

Appellant claims the court erred in giving state's Instruction No. 10 which was taken from California Jury Instructions, Criminal, 3rd Ed. § 2.50. Appellant did not object to the instruction on the ground he now raises on appeal and has therefore waived any error.

During the course of the complaining witness' direct testimony she stated that appellant told her, while he was attempting to have intercourse, that he had been 'sniffing coke'. Appellant contends that the trial court erred in refusing to strike this testimony and declare a mistrial. It is obvious that the term 'sniffing coke' means the sniffing of cocaine. Appellant's reference to 'sniffing coke' was intended as an explanation of why he could not get an erection. There are a legion of cases supporting the proposition that statements and conduct of the accused at the time of the commission of offense are part of the transaction itself and may be admissible as res gestae although they may have a tendency to inflame the jury. 22A C.J.S. Criminal Law § 669 (1961). We therefore hold that the court did not err in allowing the testimony.

Even though the appellant is represented by counsel on appeal, it is incumbent upon this court to search the record for fundamental error. A.R.S. § 13--1715(B). We believe it is fundamental error to convict a person for a crime when there is absolutely no evidence to support such conviction. Appellant was convicted of two counts of lewd and lascivious acts which consisted of rubbing his penis on the victim's buttocks and splashing water on her vagina. A.R.S. § 13--652 provides in part:

'A person who wilfully commits, In any unnatural manner, any lewd or lascivious act upon or with the body or any part or member thereof of a male or female person, with the intent of arousing, appealing to or gratifying the...