Tryon v. State

• Decision Date: 05 August 1977
• Docket Number: No. 4741,4741
• Citation: 567 P.2d 290
• Parties: Tony N. TRYON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 290

567 P.2d 290

Tony N. TRYON, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4741.

Supreme Court of Wyoming.

Aug. 5, 1977.

Gary P. Hartman, Greybull, for appellant.

V. Frank Mendicino, Atty. Gen., and Ernest Keene Bard, County Atty., Hot Springs County, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

GUTHRIE, Chief Justice.

Appellant was convicted of first degree rape by a jury in Hot Springs County, and was sentenced to a term of not less than 15 nor more than 30 years in the Wyoming State Penitentiary. He appeals this conviction and sentence. He bases his claim for reversal upon three propositions:

1. That there is insufficient evidence to support the verdict of first degree rape.

2. That the trial court erred when it instructed the jury to acquit the defendant or find him guilty of first degree rape.

3. That a communication to a juror by way of an anonymous telephone call was so prejudicial as to require reversal.

We find no basis for reversal.

SUFFICIENCY OF THE EVIDENCE

Appellant asserts that the State failed to prove that the intercourse was forcible and against the will of the prosecutrix, although he denies any such occurrence. The question of whether there was resistance or consent is clearly a jury question, Kennedy v. State, Wyo., 470 P.2d 372, 373, rehearing denied, Wyo., 474 P.2d 127, certiorari denied, 401 U.S. 939, 91 S.Ct. 933, 28 L.Ed.2d 218. In our consideration of this question we reiterate our well-established rule that when faced with a question of this character our duty is to determine if there is sufficient evidence without consideration of conflicting evidence of the defendant, giving to the State every favorable inference arising therefrom, Evanson v. State, Wyo., 546 P.2d 412, 418; Horn v. State, Wyo., 554 P.2d 1141, 1145.

At the time of this incident prosecutrix was 12 years old, weighed approximately 98 pounds, and was nearly five feet tall. Defendant was a man of 30 years, weighed approximately 180 pounds, and was described as "stocky and muscular." The evidence reveals that during the evening he had consumed several drinks. There is a clear showing that the complaining witness had had intercourse, as evidenced by the presence of motile sperm in the vagina when she was examined early in the morning of the incident.

This child had been baby-sitting for Marilyn Roberts, the woman with whom defendant lived, and upon their return to the trailer at approximately 2:30 or 3:00 a. m. defendant was to drive her to her home, which was approximately one block away. However, when she got into the car defendant asked if he couldn't drive by the Ritz to see if two of his friends were there. When he discovered they were not there, he told prosecutrix he was going up on the hill to see if they might be up there fighting. Defendant drove up on the hill, and finding no one there proceeded on toward Cody on the highway. When he got to the west end of the so-called "Cody Loop," which is apparently an older, abandoned portion of the highway several miles from town, he drove off the road and parked some distance from any habitation and out of sight of lights. After some conversation about whether she had ever had intercourse and advising her that her mother and Marilyn had asked that he explain this to her, he told her he was going to show her. He thereupon pulled her over by the arm onto the console and pushed her into the back seat. She then sat in the back seat with her legs drawn up and her knees against her chest, holding them with her arms. He got into the back seat and told her to lie down, which she refused to do. He then pushed her over and told her to let her legs down, which she did not do, and when she refused to do this he pushed her hands away from her legs and Appellant places reliance upon certain excerpts from the prosecutrix's testimony wherein she said that he did not threaten her although she said she was afraid, and when she said she did not think she was resisting him at all. We note, however, that this last reference is apparently to what she was doing with her hands after he had spread her legs apart and worked his body between her legs. Defendant further made much of the fact that she had no apparent scratches or bruises and the fact that she herself pulled down her slacks and panties.

sat on them. He told her to pull down her slacks and her panties, and when she refused he told her if she wouldn't, he would. She then pulled them both down because she was frightened. He forced her legs apart and got his body in between. He then told her he was only going to rub his penis on her stomach, although he forced it into her while she was crying and whimpering and telling him she did not want to do this. Defendant had undressed during this period. Prosecutrix stated she resisted "a little bit but not as hard as she could," saying she was scared to do more. During this activity she told him it hurt and she was whimpering.

This lack-of-resistance contention is an unusual position in light of defendant's complete denial of having intercourse with this girl. It would appear that the only question that must be resolved is whether the State made a prima facie case or whether there was any competent testimony upon which the verdict could be based, because we cannot disturb this verdict if there is competent evidence to sustain it.

Appellant places much reliance upon Gonzales v. State, Wyo., 516 P.2d 592, contending that this case is directly in point and urging that the record shows a complete lack of fear or reasonable apprehension on the part of the prosecutrix. It appears necessary to mention that Gonzales is not a case decided upon the lack of or insufficiency of the evidence to convict, but upon the application by the trial court of a wrong standard in determining defendant's guilt. An examination of Gonzales will reveal certain general principles applicable hereto, however. The lessons therefrom are that resistance is not always necessary to establish lack of consent where such resistance would be futile or where the female is overcome by superior strength or paralyzed by fear. Acquiescence is not consent if induced by fear or reasonable apprehension of severe bodily harm.

From this record, considering the complete disparity in physical strength, age, maturity, and the overt physical acts of defendant, it is not hard to agree that there is a basis for a finding that she was overcome by superior strength and reasonable fear and apprehension of severe bodily harm.

We find here a child afraid of the dark, alone with this defendant several miles from her home, very late at night and with a man whom she knew had been drinking and quarreling with the woman for whom she had been baby-sitting. We cannot help but suggest that all of these elements could totally terrify a child of tender years, or that the jury could have so reasonably inferred. The reasonableness of her apprehension or fear is a matter for a jury's determination because it is inherently a question of fact, People v. Yannucci, 283 N.Y. 546, 29 N.E.2d 185, 186; State v. Baker, 30 Wash.2d 601, 192 P.2d 839, 842. The standard of resistance in rape cases is a relative...