State v. Wayman
| Decision Date | 16 January 1969 |
| Docket Number | No. 1811,1811 |
| Citation | 449 P.2d 296,104 Ariz. 125 |
| Parties | STATE of Arizona, Appellee, v. Jesse Monroe WAYMAN, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Hughes, Hughes & Conlan, by Coit I. Hughes, Phoenix, for appellant.
The appellant, Jesse Monroe Wayman, brings this appeal from a conviction for indecent exposure, a misdemeanor, and from a sentence of 4 1/2 to 5 years, so rendered because he was found by the trial court to have been guilty of a prior conviction. A.R.S. § 13--1649.
On October 15, 1966, the complaining witness, together with her sister and a close friend, observed the appellant pass them in his white station wagon as they walked toward a local store. When the three young ladies entered the store, the appellant parked his vehicle and followed them. While in the store, the appellant apparently offended one of the young ladies and she began crying.
The complaining witness, upon leaving the store, saw the appellant sitting in his station wagon. She approached the station wagon to warn the appellant that she intended to notify the police if he did not refrain from bothering them. The complaining witness testified that the appellant opened the door, unfastened his trousers, and began manipulating his genitals in her presence. The young lady, together with her sister and friend, hurried to a nearby home and notified police of the appellant's actions.
Shortly after a police officer arrived, the three young ladies saw the appellant driving past them once again in his vehicle. The investigating officer gave chase, and apprehended the appellant.
The State, in its information, charged the appellant with 'the crime of Indecent Exposure (with prior conviction), a Felony.' The case was set for trial on May 18, 1967. However, prior to the selection of the jury the Court ordered that the information be read to the jury only as to the charge of indecent exposure and with no reference to the prior conviction.
The appellant was tried before a jury and convicted. Upon rendering their verdict, the jurors were dismissed, with the court indicating that counsel had waived the jury for any further proceedings.
On May 22, 1967, the Superior Court reconvened, without a jury, and heard evidence as to an alleged prior conviction of the appellant. The Court, after receiving evidence, made the following finding:
'It is the finding of the Court that defendant is guilty of prior conviction, as charged in the information, and judgment is so ordered.'
On June 7, 1967, the appellant was sentenced to serve a term of not less than 4 1/2 nor more than 5 years at the Arizona State Prison at Florence.
The appellant challenges both his conviction for indecent exposure and his conviction as a prior offender. In the interests of clarity, we shall discuss the issues raised under each conviction separately.
INDECENT EXPOSURE:
The appellant raises three points in attacking his conviction for indecent exposure. He first contends that the trial court committed prejudicial error by limiting the scope of his cross examination. The appellant tried to attack the credibility of the complaining witness by showing that she, although only 17 years of age, had been married twice, divorced once, and had given birth to two children, one of which resulted from an adulterous relationship. Appellant theorizes that the complaining witness' unfortunate marital and extramarital experiences had resulted in an irrational bias against all men.
The trial judge admitted evidence showing that the complaining witness had been married twice and had given birth to two children. We hold that the exclusion of questions directed at the complaining witness' prior adulterous relationship or prior divorce was not error. See Riddle v. State, 92 Okl.Cr. 397, 223 P.2d 379 (1950); 65 A.L.R. 410. It is well established in this State that specific acts of misconduct cannot be shown unless they clearly impeach the truth or veracity of the witness or have resulted in a prior conviction. See Spector v. Spector, 94 Ariz. 175 at 184, 382 P.2d 659 (1963); State v. Harris, 73 Ariz. 138 238 P.2d 957 (1951). These assertions have no relevancy to the complaining witness' truth or veracity, nor do they have any reasonable connection with the issues before the jury.
The appellant's next contention is that the trial judge committed error by failing to grant his motion for a mistrial. It appears that, during the course of trial, counsel for appellant began cross-examining the complaining witness regarding her unfortunate past. When the State objected to the line of questioning, the trial judge called for a recess and excused the jury, sending them to an adjacent room. Shortly after their departure, the complaining witness, emotionally upset by the difficult and embarrassing cross examination, broke into tears and ran from the courtroom. The complaining witness, upon regaining her composure, returned to the courtroom.
There is no evidence that the jury ever heard the emotional outburst of the complaining witness. Even if the jury did hear her outcry, one can only speculate on whether the State or the defendant might have been prejudiced. We believe that the trial judge, who witnessed the complaining witness' conduct and could measure its possible effect on the jury, did not abuse his discretion in failing to order a mistrial.
The appellant, in his next argument, contends that the trial judge erroneously admitted testimony by the police officer who apprehended appellant. The police officer testified that the appellant, in an effort to avoid arrest, ran stop signs, red lights and drove at a speed considerably in excess of the speed limit. Appellant contends that evidence of acts which constitute separate criminal offenses are inadmissible when offered against him as evidence on a totally unrelated charge.
We are of the opinion that the Police Officer's testimony would be admissible as circumstantial evidence of 'flight.' See State v. White, 101 Ariz. 164, 416 P.2d 597 (...
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