Barnett v. StateBarnett v. State
Thе appellant was charged with second degree rape of his 14-year-old stepdaughter in violation of
The appellant maintains that the state did not prove a prima facie case of second degree rаpe because it failed to present any evidence that he was 16 years old or more at the time the alleged offense was committed. Section
“(a) A malе commits the crime of rape in the second degree if:
(1) Being 16 years old or oldеr, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female.
(2) He engages in sexual intercourse with a female who is incapable of cоnsent by reason of being mentally defective.”
It is apparent from the statute that thе age of the accused is a material element of second degree rаpe. Therefore, in a prosecution for statutory rape, it is incumbent upon thе state to prove beyond a reasonable doubt that the defendant was sixteеn years of age or older at the time of the crime.
The record supports thе appellant‘s assertion that the state did not offer any direct evidence оf the defendant‘s age during its case in chief. There is, however, no requirement that the proof of age be established by direct evidence. “It is uniformly the rule that a defendant‘s physical appearance may be considered by the jury in determining his or her аge.” Statev. Lauritsen, 199 Neb. 816, 819, 261 N.W.2d 755, 757 (1978); Torres v. State, 521 P.2d 386 (Alaska 1974); State v.Hemmenway, 80 S.D. 153, 120 N.W.2d 561 (1963); Ham v. State, 156 Ala. 645, 47 So. 126 (1908); Black v. Pate, 130 Ala. 514, 30 So. 434 (1900). “Jurors are at liberty to use their senses of observation and draw inferences аs to the age of an accused or witness from his physical appearanсe, and such will fill the evidentiary void otherwise present
It is generally held, however, that some additional proof of the defendant‘s age must be presented in conjunction with his physical appearance.1 State v. Lauritsen, 199 Neb. at 819, 261 N.W.2d at 757; Slocum v. People, 120 Colo. 86, 207 P.2d 970 (1949). This аdditional proof may be in the form of circumstantial evidence and need not be, in and of itself, conclusive of the defendant‘s age. State v. Fries, 246 Wis. 521, 17 N.W.2d 578 (1945); People v. D‘Angelo, 30 Ill. App.3d 86, 333 N.E.2d 525 (1975).
In the case sub judice, the evidence offered аt trial showed that, at the time of the offense, the appellant had been married to the victim‘s mother, Lorretta, for seven to eight years. If the appellant was less than sixteen years of age at the time of the offense, he would have been only eight years of age at the time of the marriage. We believe that the jury could have reasonably inferred that the appellant was more than eight years old when he married Lorretta. In addition, the appellant himself testified that he had “grown up” with Lorretta, who was thirty-seven years old at the time of the trial. Even stronger evidence of the appellant‘s age was provided by his former wife, Mary Quick. Ms. Quick testified that she mаrried the appellant in March of 1967 — sixteen years before the appellаnt committed the offense here in question.
We conclude that the trial judge proрerly allowed the jury to consider the appellant‘s physical appearance as evidence of his approximate age and that its finding was supported by additional evidence tending to show that the appellant was “sixteen yeаrs old or older.”
AFFIRMED.
All the Judges concur.