*1 ALLAN, GEORGE L. v. THE NEVADA, STATE OF
No. 7831 May Harris, Morgan Gary Defender, White Public
Stephen Huffaker, Defenders, Public Deputy County, Clark for Appellant. List, Holt,
Robert General, E. Attorney City; Carson District Attorney, and H. Leon Simon and Rimantas A. Ruk- stele, District Deputy Attorneys, County, Clark for Respond- ent.
OPINION *2 J.: Court,
theBy Mowbray, Allan, the guilty the appellant, jury the person committed upon against infamous the manda- with In accordance years. of 18 age the under 1(a),1 201.190, subsection tory sentencing provision in the state peniten- to life imprisonment was sentenced Allan from his judg- appealed He has parole. tiary possibility with of error. conviction, assignments several asserting ment 1973, boys, three minor 14, the September On trailer. Allan Allan’s house 16, 14, went 15, and aged movie, the During movie. boys pornographic the showed the older minors. After the two Allan made advances toward the older each of acts of fellatio movie, upon he committed They him. upon to commit said act asked them boys and in their pres- Allan masturbated at the conclusion plied, only, of one guilty and found ence. Allan was i.e., oldest nature, the upon act committed against the infamous trial, the above- regarding testified boys At both the older boy. the that agreed He Allan took the stand. mentioned events. evening; house late in the three had come to his trailer boys tired; that he them, told them he was that he admitted In the television. they watched to his bedroom while retired various boys asleep in morning, Allan he found the three breakfast, trailer; left. them a he fixed parts that pornographic that he owned the While Allan stated he showed that never boys claim he showed claims molesting ever the children to them. He .denied flatly good as to his witnesses testified time. Other defense their to entrust children willing traits and that aged minor boy, called a his care. In the State 1(a): age person Except every provided of full in subsection punished: infamous crime nature shall who commits the “(a) physical force is immediate threat of such force or the Where person participate by compel in such another used the defendant oSense, one who such offense is committed or where prison age years, by imprisonment life the state under is begins, possibility parole, eligibility unless further years been served.” of 5 has restricted subsection when minimum he had seen
years, that movies at who home. girl, aged Allan’s A minor testified that Allan had shown her same movie he had shown the three boys 14, 1973, evening of and that Allan had then Idssed September thighs. her and fondled her
Allan’s is principal complaint appeal trial court prejudicial by admitting committed error into than the sole crime with which he was in the Information.
Allan objects first that it was error for the court permit testify to acts of fellatio committed Allan on the boys, and such acts him, committed them on the sole except act charged. with which he was He also contends that it was permit he masturbated in their presence after sexual acts were completed, as such i.e., conduct is evidence of another lewdness with a minor.
We do
agree.
The testimony regarding the additional acts
fellatio,
as
masturbation,
well
the act of
as
was admissible as
gestae
part of the res
of the crime charged. Testimony regard-
ing such acts is admissible because the acts
complete
story
of the crime charged by proving the immediate context of hap-
near
penings
in time and place. Such evidence has been char-
acterized
gestae,2
same transaction or the res
California,
the court
Thomas,
ruled in
v.
People
83 Cal.
879, 882
Rptr.
1970), a
(Cal.App.
case where the appellant
Villavicencio,
(Ariz.
(sales
1964)
2 SeeState v.
245
P.2d
of nar
place;
cotics A and B at same time and
evidence of
sale A admis
prosecution
B;
sible
for the
sale
the court
“This
principle
complete story
crime
be shown even
though
gestae’
it reveals other crimes has often been termed ‘res
....
‘complete story’ principle
[W]e choose to refer to
.”);
this as the
State
Klotter,
(Minn. 1966)
v.
(burglary
sporting goods
We under the res tes- fellatio, timony the acts of climaxed Allan’s final concerning masturbation, act of were all admissible as of the “same transaction” committed Allan question.
We turn to consider the the minors called in rebuttal the State. Allan flatly denied wrongful acts the three boys. Although admitted ownership of porno- film, he said that he had graphic never shown the to the boys. minor He claimed to be a virtuous man with inter- great est in children. He said he served as a Scout leader. Witnesses called in his behalf testified that they willing to leave rebuttal, their children in his care. In two minors testified that home, had been invited into his motor had seen that, movies. The girl minor after showing of film shown the boy whom the committed, charged was Allan kissed her and fondled her thighs. Though improper character witness this evi- dence was nevertheless admissible under 48.045,3 as tending of a motive or a common plan or scheme wherein minors were lured to appellant’s quar- *4 and, ters after being “conditioned” of his por- movies, nographic to subjected his sexual desires.4 subsection 2: crimes, wrongs Evidence of not acts is to prove of a order show that he acted in con- formity may, however, purposes, therewith. It be admissible for other motive, intent, opportunity, preparation, plan, of such knowl- edge, identity, or absence of mistake or accident.” Gregg, Other Acts Misbehavior and 4 See Sexual Perversion as Evi of Offenses, dence Prosecutions Sexual 6 Ariz. L. Rev. 229-230 (1965), states: very “. . The offenses offered in evidence tend to a . establish considered, and have been assignments of
Remaining Therefore, judgment we affirm meritless. find them we the lower court. Thompson, JJ., Zenoff, concur.
Batjer, and J., Gunderson, concurring: C. brethren, by my in the result reached
Although I can concur gestae,” not use of the term “res suggest we should re-institute I obsolete, Code renders I the Nevada Evidence which believe Evidence, See: utility. Wigmore, I J. and which I believe lacks (3rd ed. 1940). 218 at 720-721 § Moreover, be deemed harmless while the error case, a different agree testimony I cannot record this sex, a misconduct, of a different of sexual child kind or a can be admitted to show “motive different day, common or scheme.” plan STRICKLAND, CORP., v. GRIZ
STEPHEN doing Corporation, business as AL Nevada GASPER MOTORS,
No.
May 28,
P.2d 1406
operandi,
there are
number
and
often a
of different
modus
distinctive
witnesses who
cal case is State v.
typi-
can
similar offenses
themselves.
(1956)].
[,
McDaniel
80 Ariz.