Williams v. State, 11223

• Decision Date: 11 December 1979
• Docket Number: No. 11223,11223
• Citation: 603 P.2d 694,95 Nev. 830
• Parties: Willie Craig WILLIAMS, Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 694

603 P.2d 694

95 Nev. 830

Willie Craig WILLIAMS, Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 11223.

Supreme Court of Nevada.

Dec. 11, 1979.

Rehearing Denied Jan. 29, 1980.

William N. Dunseath, Public Defender, and Michael B. McDonald, Deputy Public Defender, Washoe County, Reno, for appellant.

Richard H. Bryan, Atty. Gen., Carson City, Calvin R. X. Dunlap, Dist. Atty., and John L. Conner, Deputy Dist. Atty., Washoe County, Reno, for respondent.

OPINION

PER CURIAM:

Convicted by jury verdict of sexual assault (NRS 200.366), Willie Craig Williams, Jr., contends we must reverse the judgment and remand the case to the district court for a new trial because (1) evidence of other sexual misconduct allegedly committed by him was improperly admitted at his trial and (2) the prosecutor made prejudicial statements during the trial regarding his propensity for criminal conduct.

Williams also has filed a motion for an order treating respondent's failure to timely file its answering brief as a confession of error. ¹ See NRAP 31(c). Such a failure may, in the discretion of this court, be treated as a confession of error and result in the reversal of the judgment without consideration of the merits. Toiyabe Supply Co. v. Arcade, 74 Nev. 314, 330 P.2d 121 (1958). We elect to consider this appeal rather than to set aside the trial court's judgment for respondent's failure to file its brief within the prescribed time. See Petri v. Sheriff, 87 Nev. 549, 491 P.2d 43 (1971).

Williams was convicted of having sexual intercourse with a female without her consent. At the trial, the complaining witness testified that in April 1978, Williams telephoned her and inquired about her interest in obtaining employment with him as a secretary. She replied that, although she was interested in a job, she was not feeling well that day and therefore could not meet with him to discuss the matter. However, after Williams told her that his heavy schedule would preclude a later meeting, she agreed to meet with Williams at her residence that day.

Williams arrived at the witness's residence a short time later. A discussion ensued for several hours, during which Williams related to the witness the advantages of the job opportunity. She, however, expressed little interest in the prospect and asked Williams to leave. Williams remained, continued talking and ultimately offered her $5,000 for a "one-night stand." She refused, but Williams persisted, telling her, "you don't have a choice now." Finally, after Williams told her that he had a black belt in karate, demonstrated what he could to to her with his karate expertise, and stated that he could "make it very nasty" for her seven-year-old daughter, the witness submitted to Williams' demand to have intercourse.

Williams testified at the trial that he did have intercourse with the complaining witness, but claimed that she consented to the act. He denied that any coercion or threats occurred.

On rebuttal, the prosecution called as witnesses two women who testified that they had intercourse with Williams against their will in September 1976. Each woman stated that she had met Williams at a job interview and that Williams subsequently coerced her into submitting to intercourse with him after demonstrating his ability with karate. The trial judge instructed the jury that this evidence was "admitted on the limited question of whether or not the defendant intended to engage in sexual activity with the alleged victim against her will, and should not be considered for any other purpose." ²

1. Williams contends, among other things, that evidence of his sexual misconduct with other persons should not have been admitted at the trial because such evidence was not relevant to prove his intent to sexually assault the victim. He claims that since he is asserting consent of the victim as a defense, it is her intent, not his, that is at issue here. We disagree.

It is the general rule that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that the accused committed the charged crime because of a trait of character. Tucker v. State, 82 Nev. 127, 412 P.2d 970 (1966). See NRS 48.045(2), Supra, n. 2. But see Willett v. State, 94 Nev. 620, 584 P.2d 684 (1978); McMichael v. State, 94 Nev. 184, 577 P.2d 398 (1978) (limited exception in area of sex crimes). Even where relevancy under an exception to the general rule may be found, evidence of other criminal acts may not be admitted if its probative value is outweighed by its prejudicial effect. Nester v. State,75 Nev. 41, 334 P.2d 524 (1959).

The crucial question in determining if a sexual assault has occurred is whether the act is committed without the consent of the victim, Dinkens v. State, 92 Nev. 74, 546 P.2d 228 (1976), and the intent of the accused is relevant to the issue of consent or lack thereof. State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974). In the instant case, evidence of Williams' sexual misconduct with other persons was admitted as being relevant to prove his intent to have...