BENNY R. MANNING, APPELLANT, v. WARDEN, NEVADA STATE PRISON, RESPONDENT.
No. 12487
In the Supreme Court of the State of Nevada
February 14, 1983
659 P.2d 847 | 99 Nev. 82
Brian McKay, Attorney General, Carson City; Mills B. Lane, District Attorney, and Edward B. Horn, Deputy District Attorney, Washoe County, for Respondent.
By the Court, SPRINGER, J.:
This is an appeal from an order denying post-conviction relief to appellant Benny R. Manning. Manning was convicted of forcible rape and committing the infamous crime against nature upon a person under the age of eighteen. We shall consider three issues raised by Manning in this appeal.
The Jury Instruction on Criminal Intent
Appellant first challenges the giving, over objection, of the following instruction: “Criminal intent can only be proven as a deduction from declarations or acts; when the acts are established, the natural and logical deduction is that the defendant intended to do what he did do.”
Manning first contends that the giving of this instruction was a violation of
Manning was convicted of two general intent crimes. The jury was not required to find any specific intent since the requisite mental state is said to be found in the doing of the acts which constitute the offense. See Boyd v. State, 572 P.2d 276 (Okla.Crim.App. 1977). In order to convict Manning of forcible rape, the jury was required only to find that Manning had carnal knowledge of a female against her will.1 In order to convict Manning of the infamous crime against nature upon a person under the age of eighteen, the jury was required to find that Manning had committed an act proscribed by former
The instruction in issue explains the concept of mens rea, “the absence of accident, inadvertence or casualty—a varying state of mind which is the contrary of an innocent state of mind. . . .”2
In telling the jury that criminal intent can only be proven as a deduction from declarations or acts, the court merely restated
The instruction reflects common experience. In so doing, it does not command the jury to find anything, but merely reminds the jury that most actions are not the result of mistake or inadvertence. The instruction thus did not violate
Appellant next argues that the giving of the instruction amounted to denial of his due process rights as announced in Sandstrom v. Montana, 442 U.S. 510 (1979). Based on the foregoing analysis, we also reject this contention.3
The Jury Instruction on Consent
We next consider whether the trial court erred by instructing the jury that consent was no defense to a charge of committing the infamous crime against nature. At the time of the alleged offense,
Manning urges that consent was a legitimate defense to the charge. He argues that since the complainant was seventeen years old, she was of sufficient age to consent to the act. The argument is premised on the fact that former
We disagree. The age of majority in this state is eighteen.
The Reference to Appellant‘s Prior Criminal Record
The third alleged error relates to reference by a prosecution witness to Manning‘s past criminal record. A police officer testified that after receiving a description of the crime from the complainant he had “come to an understanding or an idea of who the suspect might be in this particular case.” The detective told the jury that he reached this conclusion when the victim said her assailant was a “young man by the name of Benny or Sid.” The detective then testified that “when she mentioned Benny, I knew of Benny Manning myself.” The detective further testified that based on his belief that the suspect was Benny Manning, he went to the identification division of the police department to obtain a mug shot. The inference from the detective‘s testimony is clearly that Manning had been engaged in some prior criminal activity.
Both parties agree that the test for determining a reference to criminal history is whether “a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, 292 A.2d 373, 375 (Pa. 1972). In applying this test, it appears that the jurors could have inferred previous criminal activity from either the reference to the mug shots or from the focus on Benny Manning as a suspect based upon the victim‘s description and the nature of the charge. The combined effect of the two statements would lead the jury to conclude Manning had a criminal record, probably sexual in nature. Cf. Gehrke v. State, 96 Nev. 581, 613 P.2d 1028 (1980) (police officer‘s testimony concerning previous acquaintance with defendant was as consistent with the inference that the two men were family friends as it was with the inference that the defendant had a prior criminal record); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979) (reference made to “previous contacts” with a police officer, without
The state concedes that in a majority of jurisdictions improper reference to criminal history is a violation of due process since it affects the presumption of innocence; the reviewing court therefore must determine whether the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967).7
Applying the Chapman standard to the facts of this case, we conclude, beyond a reasonable doubt, that the error is harmless with regard to the conviction of the infamous crime against nature. There was uncontradicted evidence of oral and anal intercourse involving Manning and the seventeen year old complainant. Since Manning claimed that the victim had consented and since consent was not available as a defense to the crime, there was a clear violation of former
We arrive at a different conclusion concerning the rape conviction. There appears to be no doubt that a variety of sexual activities took place between Manning and the complainant. A reading of the record does, however, reveal some serious questions relative to the forcible nature of the couple‘s encounter. The evidence used to convict Manning came primarily from the complainant. She testified that Manning came to her apartment after midnight, apparently seeking marijuana. Manning
The complainant testified that she had attempted to escape onto a balcony, but was apprehended just as she called for help. Although her neighbors were at home in the next apartment, they did not hear any sounds of a struggle. The complainant testified that upon returning to the bedroom, Manning suggested that the two “compromise” rather than doing it “the hard way.” Thereupon they engaged in cunnilingus. Manning subsequently told the woman to choose between anal and vaginal intercourse. Although the complainant indicated a preference for anal sex, Manning alternated instead between anal and vaginal intercourse. When asked by counsel whether she had been forced to have vaginal intercourse, the woman replied, “I guess you would say that.”
There are other inconsistencies in the record. The complainant told her neighbor that she immediately went for help after Manning left and that she had neither bathed nor douched. She later testified that she waited approximately thirty minutes before contacting her neighbor and admitted that she had both bathed and douched. The woman also testified that after Manning cleaned up and dressed, he asked her to walk him to the door. He then advised her not to discuss their activities with her boyfriend because it might be “embarrassing.” She did, however, tell her boyfriend, who called the police.
The testimony of the detective rather clearly imparts to the jury that Manning had a record of previous criminal assaults. We cannot say that in a rape case no jury would be influenced in some substantial manner by such an impermissible reference. As stated in Porter v. State, 94 Nev. 142, 576 P.2d 279 (1978), “[i]t is without question that absent special conditions of admissibility, reference to past criminal history is reversible error.”
The federal constitutional rule which we must follow in these matters require us to conclude beyond a reasonable doubt that reference to Manning‘s past criminal conduct had no affect on the jury before we can affirm the conviction. Since the record will not permit us to draw this conclusion, we must reverse the conviction for forcible rape and allow to remain in effect the other convictions.
We find all remaining assignments of error to be without merit. The conviction on the infamous crime against nature committed with a person under the age of eighteen is affirmed.
MOWBRAY and GUNDERSON, JJ., and ZENOFF, SR. J.,* concur.
MANOUKIAN, C. J., concurring and dissenting:
I concur with the majority‘s affirmance of the conviction of the infamous crime against nature. The majority, however, has concluded that the rape conviction is infirm because “[t]he combined effect of the two statements would lead the jury to conclude Manning had a criminal record, probably sexual in nature,” which would, in turn, prejudice appellant beyond a reasonable doubt. I disagree that reversal is dictated under the guidelines set out by our cases which have addressed the issue of previous-offense testimony. See Coats v. State, 98 Nev. 179, 643 P.2d 1225 (1982); Reese v. State, 95 Nev. 419, 596 P.2d 212 (1979); Geary v. State, 91 Nev. 784, 544 P.2d 417 (1975); Founts v. State, 87 Nev. 165, 483 P.2d 654 (1971). See also, Porter v. State, 94 Nev. 142, 576 P.2d 275 (1978).1 Accordingly, I dissent from that portion of the opinion.
The statements made by the officer and detective in the present case fall far short of those complained of in the above-referenced cases. In Reese v. State, supra, a Las Vegas police officer “testified that he had had ‘previous contacts’ with [the accused] and his brother.” Id. at 422, 596 P.2d at 215. In Geary v. State, supra, an officer testified that he had arrested the accused on “another incident.” Id. at 788, 544 P.2d at 420. In Founts v. State, supra, the victim testified before the grand jury that the accused had also robbed him on a previous occasion. There, the prosecuting attorney repeatedly referred to the “unusual” or “unfortunate” nature of the earlier confrontation between the accused and the victim. Id. at 168, 483 P.2d at 656. This court, in all three cases, held that because “[t]here was no description of or further reference to these contacts . . .” Reese at 422, 596 P.2d at 215, or any “description of the
The detective also testified that, based on his belief that the suspect was Benny Manning, he went to the identification division of the police department to obtain a mug shot. In Coats v. State, supra, the detective testified that he obtained the photographs of the defendants used in a photographic lineup from the homicide division of the Las Vegas Police Department. There, this court held that the references to the homicide division and the mug shots did not introduce damaging previous-offense testimony. Id. at 181, 182, 643 P.2d 1226, 1227. See also Porter v. State, supra.
In my view, the references of the officer and the detective to their familiarity with Manning and the detective‘s testimony concerning the mug shots did not introduce damaging previous-offense testimony. Because I have concluded that the admission of the detective‘s and the officer‘s testimony did not constitute error, it is not necessary to decide whether the error was harmless beyond a reasonable doubt.
Accordingly, I would affirm both convictions.
Notes
201.190 Crime against nature: Punishment; limitations on parole, probation. 1. Except as provided in subsection 2, every person of full age who commits the infamous crime against nature shall be punished: (a) Where physical force or the immediate threat of such force is used by the defendant to compel another person to participate in such offense, or where such offense is committed upon the person of one who is under the age of 18 years, by imprisonment in the state prison for life with possibility of parole, eligibility for which begins, unless further restricted by subsection 3, when a minimum of 5 years has been served. (b) Otherwise, by imprisonment in the state prison for not less than 1 year nor more than 6 years. 2. No person who is compelled by another, through physical force or the immediate threat of such force, to participate in the infamous crime against nature is thereby guilty of any public offense.