Weddle v. State
| Decision Date | 16 December 1980 |
| Docket Number | No. 5318,5318 |
| Citation | 621 P.2d 231 |
| Parties | Richard Dale WEDDLE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Blair J. Trautwein, of Hathaway, Speight & Kunz, Cheyenne and Robert M. McRae John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division and Allen C. Johnson, Senior Asst. Atty. Gen., Cheyenne, signed the brief, and Mr. Johnson appeared in oral argument on behalf of appellee.
of McRae & DeLand, Salt Lake City, Utah, an attorney in good standing in the State of Utah and admitted specially for the purposes of this case upon the motion of Mr. Trautwein, signed the brief and Mr. McRae appeared in oral argument on behalf of appellant.
Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.
Appellant-defendant appeals from a judgment and sentence rendered after a jury found him guilty of sexual assault in the first degree in violation of § 6-4-302(a), W.S.1977, and of aggravated assault with a dangerous weapon in violation of § 6-4-506(b), W.S.1977. Appellant contends that reversible error exists in this case because: (1) there was insufficient evidence to sustain the conviction; (2) § 6-4-302(a) is unconstitutionally vague; (3) the demeanor of the trial judge and the manner in which the proceedings were conducted unfairly prejudiced the jury and prevented appellant from receiving a fair trial; (4) the trial court ruled that appellant's pretrial motions were abandoned, and thus denied, on the ground that appellant failed to personally appear at the hearing thereon; (5) appellant's motion to suppress evidence obtained as a result of a warrantless entry into appellant's trailer home was denied; and (6) appellant's motion for a change of venue was denied.
We affirm.
An appeal of a jury verdict must surmount our oft-repeated admonition that in passing upon the sufficiency of the evidence to support a jury verdict of guilty we must review the evidence in a light most favorable to the State, together with the reasonable inferences that may be drawn from that evidence whether direct or circumstantial, or both, and we must disregard evidence in conflict therewith. Tucker v. State, Wyo., 594 P.2d 470 (1979); Padilla v. State, Wyo., 601 P.2d 189 (1979); Mainville v. State, Wyo., 607 P.2d 339 (1980); Fitzgerald v. State, Wyo., 599 P.2d 572 (1979).
Viewing the evidence in this fashion, it reflects the following. The 26-year-old victim was working in a restaurant at Jackson. After work on July 22, 1979, she went to a party in a condominium at Teton Village. She left the party at about 1:00 a. m. July 23, 1979 and started to walk home. Two men (later identified as appellant and Daniel Ross Morris) driving a pickup truck offered her a ride. She refused. They were intoxicated. They drove off but returned and ordered her into the pickup at shotgun point. Appellant held the gun. Appellant put a cap over her head, then replaced it with a paper bag. They disregarded her requests to let her go. They drove to a trailer and forced her to enter with the gun in her back. Morris left for a few minutes to "go to a store." When he returned, they took the sack from her head, put gauze around her eyes and adhesive tape around her eyes and head. They taped her wrists behind her, but later appellant cut the tape. Each had sexual intercourse with her on two occasions and fellatio with her on one occasion. Appellant had anal intercourse with her on one occasion. She did not resist or cry out because she was "afraid of being killed." During the incidents, the gauze was pulled away from her eyes. At about 5:00 a. m. appellant and Morris fell asleep, and victim picked up the shotgun and ran naked from the trailer. She asked George Harris, who was hooking up his camper nearby, to help her, telling him she had been raped. He took her to his camper where his wife provided her with a blanket, and he called the police.
CONSTITUTIONALITY OF § 6-4-302(a), W.S.1977
The general law concerning that which has to do with the unconstitutionality of a legislative enactment on the basis of vagueness was recently set forth in Sorenson v. State, Wyo., 604 P.2d 1031 (1979). Also see Sanchez v. State, Wyo., 567 P.2d 270 (1977). We need not repeat it here, nor need we apply the principles there set forth to statutes which are not involved in the disposition of this case-as is requested by appellant.
Although appellant was convicted of sexual assault in the first degree in violation of § 6-4-302(a), his argument in this respect concerns specific language in § 6-4-303(a)(ii) and § 6-4-303(a)(iv), W.S.1977 (). Ordinarily we do not decide questions which are unnecessary to the disposition of the case on appeal. Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972); Druley v. Houdesheldt, 75 Wyo. 155, 294 P.2d 351 (1956), rehearing denied 75 Wyo. 155, 166, 296 P.2d 251 (1956); Gortmaker v. Seaton, 252 Or. 440, 450 P.2d 547 (1969); Lorland Civic Association v. DiMatteo, 10 Mich.App. 129, 157 N.W.2d 1 (1968). The language of § 6-4-302(a) 2 is sufficiently plain and clear as to negative the necessity for a reasonable man to guess at its meaning. A person of ordinary intelligence can determine from its language the acts or conduct required or forbidden with reasonable certainty. Appellant should understand without uncertainty from the language of § 6-4-302(a) that it proscribed sexual penetration or sexual intrusion on a victim through the actual application of physical force reasonably calculated to cause submission or through threats of death or serious bodily injury. The language of § 6-4-302(a) is not unconstitutionally vague. For the purposes of this case, we need not address the constitutionality of other statutes including § 6-4-303.
Appellant points to four trial incidents which he contends jeopardized his right to a trial before an impartial jury.
The first occurred when appellant's attorney advised the judge, in chambers, that appellant expressed concern over the possibility of one of the jurors reading that written by the prosecutor at the counsel table. The court noted that he had been "Further, that I have made an independent observation from time to time and unless you have binocular vision you cannot read printed matter from the jury box on counsel table.
aware of the problem which was occasioned by the physical set up of the courtroom and that he had tested the ability of a juror to read material on the counsel table and found that it could not be done. The judge also asked the indicated juror if she had read anything on the counsel table, and she said she could not do so. However, as the judge was speaking on the matter in chambers, the following was said:
Subsequently, appellant, out of presence of the jury, moved for a mistrial inasmuch as he believed it possible for the jury to have heard the court "dressing down" appellant, the door to the jury room being open and the jury room being down the hall from the judge's chambers. The judge then inquired of the jury as follows:
When none of the jurors so responded, the judge denied the motion for mistrial.
Although the trial judge's actions and language to the appellant were intemperate and manifested a breach of judicial restraint, the jury was not aware of the actions and language. The fact that the juror did not read the material on the counsel table was established. Appellant has not directed us to anything in the incident which would jeopardize the impartiality of the jury. The jury was simply unaware of the reprimand by the judge, and it was not subjected to influence by anything on the counsel table. Appellant was not prejudiced by the incident. We can reverse only for prejudicial error. Waters v. Trenckmann, Wyo., 503 P.2d 1187 (1972); Pure Gas and Chemical Company v. Cook, Wyo., 526 P.2d 986 (1974).
The second and third incidents which appellant contends had improper prejudicial effect on the jury were the following rulings of the court...
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