McArtor v. State

one another conflicted with mendations liable water to hold Suchor

insufficient basements, appellants’ where

seepage recommenda- analytical for the basis builders, and to the available

tions was had no control over developer

where the Without houses built.

the nature developer furnished lots that

question, the of dwell- for the construction

were suitable duty its to the That satisfied houses. Bauer, su-

purchasers under Anderson v.

pra. concerning question of fact Su- specifications

chor’s erroneous construction developer’s duty application to the

has no in this purchasers case.

of care to

Therefore, no exists as to mate issue prevail is entitled to

rial fact and Suchor respect appel

as a matter law with negligence

lants’ claims. summary judgment is affirmed. McARTOR, (Defendant), Appellant

Ed Wyoming,

The STATE of (Plaintiff).

Appellee

No. 84-22.

Supreme Wyoming. Court

9,May

Richard Park, G. Miller and David B. Casper, appellant. for McClintock, Atty. Gen., A.G. Gerald A. Stack, Deputy Atty. Gen., W. John Ren- Johnson, neisen and Allen C. Sr. Asst. At- Gen., tys. appellee. THOMAS, C.J., ROSE,

Before ROO- NEY, CARDINE, BROWN and JJ. ROONEY, Justice.

Appellant conviction, appeals from a af- court, taking ter a trial to the indecent § liberties with a minor in 14- violation Appellant originally W.S.1977. charged with several counts of indecent liberties, alleged acts, based on more recent charges except all either were dis- missed, appellant guilty was found not count, upon appellant at trial. That was found sentenced to less than one nor more years, than two con- sixteen-year-old girl, cerned an act with a 1977; in June of she testified that she and appellant engaged sexual in- consensual tercourse.

Appellant appeal. raises two issues on First, appellant contends that there was support finding insufficient evidence to that the incident occurred in Natrona Coun- Second, ty. contends trial court in determining erred could be and convicted § (a) because: “child” as 14-3-105 § used 14-3-105 sixteen; (b) should criminal statutes strictly any ambiguity construed and (c) appellant; resolved favor of the impliedly repealed by 14-3-105 has been 6-2-304, W.S.1977; (d) 6-2-304 is two, the more statute of the immodest, indecent liberties way immoral or to a more must general statute knowingly to child or subject. such the same specific statute on encourage any such child to cause or affirm. We child com- cause or another him or her immoral inde- mit with BACKGROUND STATUTORY cent act. background of the of the A review provi- shall violate the “Any who is in order inasmuch as the two statutes deemed of this section shall be sions statutory alleged inconsist issues involve felony upon conviction guilty of a encies; law pertinent inasmuch as any sum less shall be fined thereof the time of the in effect at that which was ($100.00) nor one hundred dollars than ago, years occurred several incident which thousand dollars more than legisla 1977; as in June of and inasmuch ($1,000.00) imprisoned peniten- or legis of history is often determinative tive (10) years, byor tiary not exceed ten to Stovall, Wyo., lative intent. State imprisonment.” fine and both such (1982); Wyo., P.2d 543 Padilla § 14-28, W.S.1957, and It codified as was (1979); Town Clearmont v. of § 8, 220, by Session Laws of Ch. enacted Commission, Wyo., 357 Highway State Act). (Child Wyoming, The Protection specific reference to present statute omits W.S.1977, 14-3-105, now ef- Section guardians or custodians and it parents, 1, 1979, January since fect in effect modifying child. omits the word “such” reads: 7, immediately preceding sec Section Act, taking made it a

“Any person knowingly immod- tion of the Child Protection solicit, est, procure or otherwise know or indecent liberties crime to immoral ingly “any age female under knowingly causing or en- any or child engage illicit sexual eighteen of any couraging child to cause or encour- Accordingly, the words intercourse.”1 age any to commit with him another child § “any a “female such child” 8 describe guilty of or act is immoral indecent years.” eighteen age under the of upon shall felony, and conviction be fined rule construction is that “such” accepted of one hundred dollars less imme refers to the character of ($100.00) nor one thousand more than contrary precedes legis it unless a diately ($1,000.00) imprisoned in dollars Elementary intent is evidenced. lative (10) penitentiary not more than ten 2, 3, Campbell and 10 School Districts of years, or both.” Boundary Board County District of 25, Chapter part It as of Ses- was enacted P.2d 237 Campbell County, Wyoming, of 1978. same sion Laws (D.C. (1969); Tidball, In 40 F.2d 560 re recited that: enactment Wyo.1930). Inasmuch as the last ante “Upon becoming nineteen of § Act child in 8 of the cedent to “such” age age, reaches the an individual eighteen years” under the “female ** majority W.S. Section § thereof, legislative 1977. obviously pertain have liberties statute in ef The indecent § 2, 70, Chapter eighteen years. fect when the incident occurred for which 1977, Wyoming, Laws amended Session convicted, 1977, in June of felony to make one read: for, for, procures knowingly en solicits person, anyone courages

“It shall be unlawful for “under parent, engage in illicit sexual including but not limited to 8 was not guardian knowingly to or sexual intrusion.” Section or custodian take Preceding prohibited in three sections of the Act other of nineteen and under section morals, designate jeopardizing a child health or wel- did not actions The Act sections. eighteen age. in one under the fare children other Chapter 70 the or included indecent liberties statute in then amended effect at thus, (§ and, enacted in 1957with remained as time of the incident W.S. referring 1957); “any child” to a “female such as inasmuch the offense was other years.” eighteen under the sufficiently wise to identify described alleged violated; to have been statute in effect at The sexual assault inasmuch as was misled his of this incident was the time enacted in prejudice. 70 of Chapter 1977 as the Session “ * * * 1977, Wyoming, with an effective Laws of The indictment or information May previous date of 1977—the month state each count the official incident to that in this occurred. It rule, customary citation originally 6-63.5 in codified W.S. regulation or provision of law it read: alleged which the defendant is therein “An actor who is at least four have Error in the violated. citation its older than the victim and who inflicts imperfec- omission or other defect or penetration sexual sexual intrusion on tion does to prejudice any which not tend (16) of sixteen victim the right upon substantial of the defendant is in of sexual assault the or to merits mislead the defendant degree.” fourth his prejudice grounds be not for penalty imprisonment dismissal The was fixed at in of the indictment or informa- county jail (1) tion for not more than one or for a reversal of a conviction. * * * ” year or, 9(a), previously convicted of a similar Rule W.R.Cr.P. crime, (1) not one at less than nor more Wagstaff, See United v. F.2d States 572 (5) years. than five Sexual intrusion and (10th Cir.1978), 270 v. Sonnier United were defined to include States, (4th Cir.1963). 314 F.2d 69 that victim in which was testified this case. THE SUFFICIENCY OF EVIDENCE slightly This in section was modified 1982 The victim twice testified she that § 6-2-304, and was numbered as W.S.1977. in County was Natrona when incident again It was in amended 1984 read: cross-examination, occurred. On her credi “(a) Except under circumstances const- bility brought question by into her 14-3-105, ituting a violation W.S. an of uncertainty as to the location exact of actor commits sexual assault in the third county gauged line. But the trier of fact degree if: credibility and her made determination “(i) actor The is at least four incident occurred Natrona Coun older than the victim inflicts ty. finding This of venue was on made sexual intrusion on victim under the State, Wyo., sufficient evidence. Brown v. (16) years; (1978). 581 P.2d 189 The trier of fact is the “(ii) subjects The actor is an adult and judge credibility sole witnesses. victim under the of twelve Sewell, Wyo., McCormick v. 372 481 P.2d ' inflicting to sexual contact sexu- without (1962); Wyo., v. P.2d Roebling, Stock 459 al intrusion on the victim and without (1969). appeal, we do not 780 On evaluate causing bodily injury serious to the vic- only ascertain the evidence but whether (Emphasis added.) tim.” Session Laws upon not there was substantial evidence Wyoming, Ch. finding. the trier of fact made a Sekulich, Wyo. 437, 344 P.2d v. Although Culver presented as issue said, case, (1959). accept As often we as in this the fact statute cited party, true the evidence of the successful the information not a evi entirely leave out of consideration existence the time of the incident party in reversible error in dence of the unsuccessful conflict this instance inasmuch therewith, the evidence the indecent statute cited liberties (§ 14-3-105, W.S.1977) every very party similar to favorable inference successful (1984); Wyo., P.2d 812 DeHerrera v. reasonably drawn fairly be (1977); Herrera, Wyo., Natro 565 P.2d Rumney, Wyo., 649 Farella therefrom. Service, Wyo., Company, Casper Air County v. (1982); Lumber na Foster (1982); (1975). Ambiguity exists Hume, Wyo., 536 P.2d

Inc. Cubin, group of in a Wyo., 633 P.2d 167 or a words when a word Distad finding of the trial susceptible to more than one not disturb We will County. Estate, Wyo., in Natrona meaning. venue was Reed’s Matter court (1983); Albany ex rel. State 672 P.2d UNDER SECTION CONVICTION District v. Board County and Pest Weed (SECTION W.S.1977 Albany County Commissioners of W.S.1957) 592 P.2d County, supra, appellant contends that As noted accepted rule con When the charged and convicted improperly he was hav to the word “such” struction relative § 14-3-105, W.S.1977, one to that to the last antecedent reference four reasons: applied, modifies is there which “such” (a) victim that the Appellant contends It can ambiguity in this statute. no and thus was over the sixteen way; it only is definite understood term was used in a “child” as the single meaning, expression; has but a it W.S.1957). (§ 14-28, § 14-3-105, W.S.1977 meaning is The not uncertain. and that plain. pertinent construing legislative prime objective eighteen years. legislative set of statute is ascertainment Sanches, Wyo., v. 626 intent. Sanches § 14-3-105, that (c)Appellant contends (1981); 61 ex rel. R.R. Crow & P.2d State 14-28, (§ W.S.1957), been has W.S.1977 1,Wyo. 184 Company Copenhaver, v. § 6-2-304, impliedly repealed by W.S. (1947). are of a statute P.2d 594 Words 6-63.5, W.S.1957). (§ ordinary meaning; plain and given their Russell, Wyo., Nehring v. We said and, ambiguity expres if is no there 67, (1978): P.2d intent, impose of look for or sion we cannot favored, implication are not “Repeals by State, meaning. Hayes a different v. repeals implicit and while such [citations] (1979); Hayes, Wyo., P.2d 558 Oroz v. found, at times been [citations] have (1979); P.2d 432 Sanchez v. Wyo., 598 asserting ‘the of party so burden bears State, Wyo., 567 P.2d 270 beyond question that the demonstrating supra, “such the words As noted body its action legislative by later § 14-28, W.S.1957,referred to the child” in purpose of effect- unequivocal evinced immediately preceding of a characterization ing repeal.’ What must be [Citation.] child, to-wit, eigh of one “under is that the latter statute so shown years.” in this case was teen The victim one that repugnant to the earlier of and the stat eighteen together, or that the cannot stand two inapplicable on the cannot be said to be ute subject statute is the earlier whole of qualify she under the basis that did having latter one covered requirement. intending pre- object, clearly same (b) use Appellant applicable contends that the only scribe the rules of § 14-3-105, added.) (Emphasis the word “such” in W.S.1977 subject.” W.S.1957) (§ 14-28, in an ambi- resulted clearly only was such an Not ambiguity should be guity, and intended, contrary intent was clear but the his as the resolved in inasmuch favor way. After more ly evidenced statute is a criminal one. § (§ 6-63.5, 6-2- W.S.1957 of enactment § 14-3-105, 304, wording in W.S.1977),the ambiguous An is one statute W.S.1957) 14-28, (§ was amend susceptible to more W.S.1977 uncertain and which is happen it had been State, ed. Such would meaning. than one Attletweedt repealed at an earlier time. impliedly Addi- 3-105 .” legislature never in- § (§ 6-2-304) tionally, when 6-63.5 was en- repeal, by implication tended to or other- acted, § specific repealer wise, section was in- (§ 14-28). 14-3-105 § repeal the act. It did not 14-3- cluded (d) Appellant provi- contends 14-28). (§ only did repeal Not it not § 6-2-304, sions (§ 6-63.5, W.S.1977 of section, specific made such but it reference § W.S.1957) should control over to the continued existence of 14-28 in 14-28, (§ W.S.1957) W.S.1977 it because setting forth procedure to be followed the more two they both of pleads or after defendant convicted cover subject. the same 70, Chapter to a offense. We have often special stated that a Wyoming, Session Laws of in addi- govern statute general will where a enacting originally tion to codified as special per inconsistent with a 6-63.5, W.S.1957,enacted that which was taining subject to the same City matter. 7-348(a), W.S.1957, codified as to read: Springs Rock v. Police Protection Asso proceed provided “The of court shall ciation, (1980); Wyo., 610 P.2d 975 De (b) this subsection of section whenever partment Revenue and v. Ir Taxation any pleads is convicted or vine, Wyo., (1979); 589 P.2d 1295 Thomas assault, guilty to sexual W.S. 6-63.2 How through 6-63.5, attempted sexual as- ever, appellant has not furnished with sault, incest, us 6-85, W.S. W.S. tak- any authority reflecting support appli immodest, immoral or indecent liber- cation of rule such to this instance. And any eighteen (18) it ties child under must age, knowingly be remembered that such is a rule of committing immoral, indecent, had, any construction which or obscene act in resort as with presence construction, all other eighteen only child under rules for the purpose causing ascertaining legislative encour- intent. aging any eighteen child under Wyoming Department State Education Barber, Wyo., (1982); cause attempt child to Houghton Yocum, commit commit Brothers v. Wyo. 40 person convicted, the any (1929). instance, with immoral 274 P. 10 In this the act, or indecent W.S. 14-7 and legislative and intent to operative continue the accosting, § molesting annoying any (§ 14-28) functions of 14-3-105 was man age eighteen (18) child under the of supra. ifested as noted The propriety of years, with intent to commit unlaw- applying any rule of construction to fur act, ful W.S. 14-25.” legislative ther ascertain seem would to be futile. appellant Both the statute under which (§ 14-28) (§ 6-63.5) convicted and the one that, Beyond immediately it is not discer- appellant contends impliedly re- nible as to which the two statutes is the pealed the one under he was convict- more specific. penetra- Sexual intrusion or in this are contained section. This ed § (§ 6-63.5) tion is an element of 6-2-304 would not be if legisla- the intention of the § necessary is not a element of 14-3- § impliedly repeal ture was to 14-28. (§ 14-28). 105 the Although latter statute (at incident) the of the legislative time is not limited to intent to maintain parents, guardians custodians, the existence of the the fact indecent liberties stat ute, spite they specifically are mentioned the enactment would § 6-2-304, specifi place special was manifested indicate an intention a onus to cally on supervisory authority stated when 6-2-304 those over was amended with begin: “Except 1984 to under circum minors—as over had the victim constituting stances a violation of W.S. 14- this case.2 Both statutes involve sexual Appellant program. a law enforcement officer in the victim was cadet in this charge Program; the Sheriff's Office Cadet incident for which oc- convicted activity person sexual they mutually exclu consent to with activity, but are not she, years older than how can she not for two valid five It is uncommon sive. type young of con too to do so when the sexual prohibit the same be statutes to by duct, prosecutor activity is three older to decide or for words, ability In other she? charge a defendant. Jers than which statute (1976); lacking consent State, Wyo., give a valid because 546 P.2d key v. Grider, 88, victim, ability lacking of the Wyo. v. State 12, actor, re- (1955); regardless W.R.Cr.P. of the of the see Rules any other factor. The gardless of exterior jeopardy. This is not an issue of double inability give is a substitute consent violation of was not with Appellant Simply in the the crime. force elements of given mul- He statutes. has not been both age, designated the actor is because of a Loddy v. for the same act. tiple sentences eyes, or has characteris- has blue State, (1972). Wyo., 502 See Mar- P.2d 194 change ability mental tic does State, Wyo., P.2d 795 v. full victim to be informed as to the discussion With reference her import of consent if makes dissenting opinion concerning differen- inability to consent for force. a substitute (§ 6-63.5) tial, seriously 6-2-304 regardless or other It does so rape or sex- Whether denominated flawed. respect of the In this characteristic actor. assault, by the the crime established ual internally the statute inconsistent prem- which the is a act of It to set forth a irrational. cannot be said activity on on infliction sexual ised criminal more usable violation through use virtue victim of force the indecent statute. does liberties State, for force. a substitute Wilson Affirmed. (1982); Wyo., Tryon State, (1977); Wyo., 567 P.2d 290 Gonzales Justice, ROSE, dissenting. State, (1973). His- Wyo., 516 P.2d 592 my developed torically, jurisdictions position the several have I adhere State, 1356, age by which a Ketcham v. 618 P.2d fixed an statute below consent, (1980) (Rose, J., dissenting, give seq. could not an informed 1362 et victim McClintock,J., Wyo- joins), the substitutes whom which fact would one of words, ming prohibit In other does not the sort of for force. law activity consent to sexual involved in this which one could valid consensual Accordingly, activity appeal. join for force. I in the dissent substitute it Wyo. P. reh. Cardine the extent Ross v. of Justice supports P. 217 that our sexual-as- denied 94 conclusion statutes, and indecent-liber- sault not our (§ 6-63.5) 6-2-304 sets this Section criminality define of sexual ties the However, pro- under sixteen. it also activity persons years 15 old between over ability give that the victim has the vides years apart age. four or less than which will if the actor is a consent be valid statutory the years more than four than The conflict between the two no older inescapable. inconsistency This is an and is not schemes is The sexual-assault victim. 1 penetra- young If one is a valid statutes define consensual sexual rational. too 1. The statutes in effect at the time of the patrol. dent curred while sexual intrusion on a victim under who is at least “Sexual assault in victim sixteen involved in this and who (16) years appellant four inflicts sexual the fourth appeal guilty (4) years of sexual assault in provided: degree. victim were on older penetration —An than the actor inci- or offense as a gree, imprisonment “Penalties more 6(a)(iv), 1977 Interim “(iv) current fourth ^[******] than one For sexual W.S.1957, for felony: degree.” sexual-assault Supp. sexual assault.—* (1) year.” assault in the Section Interim statutes define county jail for not in the fourth 6-63.5, W.S.1957, Section * * Supp. 6-63.- de- if the is under only including a crime child not tion as limited to sexu- conduct— al years is at four defendant least persons and the over or —between the child. indecent-liberties years apart older than less four age. than There- hand, statute,2 provides up for fore, on the other I would hold consensual sex- imprisonment any person years’ to ten for ual intercourse appeal involved this does consensually much as who so touches the Wyoming constitute crime under law. girl breast of a 19. clothed Soren State, Wyo., 604 son v. P.2d CARDINE, Justice, dissenting, with Specifically, the indecent-liberties statute ROSE, Justice, whom partially joins. criminalizes the conduct involved in this During appellant June girl, appeal sexual intercourse be —consensual within being five months seventeen persons years tween over of —while years age, engaged in consensual sexual the sexual-assault statutes decriminalize 21, 1982, intercourse. On December five that same We conduct. are free to and one-half later as a result contradiction, and, therefore, ignore this investigation others, into the activities of of statutory must resort rules construc reported this incident was girl to the tion dealing to harmonize these enactments sheriffs office. In an information filed same subject Capwell with the matter. 2, 1983, February charged State, Wyo., “immodest, taking immoral inde- agree I with Justice Cardine that cent liberties with a child” in violation specific sexual-assault statutes control over § 14-3-105, W.S.1977,1hereafter called the general provi- the more indecent-liberties indecent liberties statute. He was convict- join position sions. I also in his that doubts ed and sentenced to one to two penal as to the construction statutes prison. must resolved in favor of be the defendant. Horn questions Two addressed this dissent (1972). Application of these rules leads me make it clear that incorrectly to conclude that the sexual-assault statutes under the indecent stat- liberties govern criminality They consensual sexual ute. are: "(a) ($1,000.00) Except constituting imprisoned penitentiary under circumstances violation W.S. an actor com- (10) years, more ten or both.” degree mits sexual assault in the third if: “(i) 14-3-105, W.S.1977, The actor is at least four older Section awas reen- than the victim and who inflicts sexual intru- actment of statute in effect at the time of (16) incident; sion on a victim 14-2-112, W.S.1977, this then in ef- years; or fect, provided: "(ii) subjects The actor is an adult and "(a) any person, It shall be unlawful in- victim under the of twelve cluding parent, guardian but not limited inflicting sexual contact without sexual intru- immodest, knowingly custodian to take im- causing sion on the victim without seri- moral or indecent liberties with such bodily injury ous victim.” 6-2- Section knowingly encourage any child or to cause 304, W.S.1977, Cum.Supp. such child to cause or another “(iii) degree Sexual assault in the third child to commit with him or her immoral felony punishable by imprisonment for not ” * * * or indecent act. "(b) (5) years; more than five Section 6-2- Any provi- who shall violate the 306(a)(iii), W.S.1977. sions of this section deemed 14-3-105, W.S.1977, substantially Section is 2. felony upon a conviction thereof to the similar indecent-liberties in statute effect any fined sum in not less than one hundred provides: at the time of the incident and ($100.00) dollars nor more one thousand immodest, “Any person knowingly taking im- ($1,000.00) imprisoned peni- dollars or any or moral indecent liberties with child or (10) tentiary years, by not to ten or exceed knowingly causing encouraging any or child imprisonment.” fine both such to cause another child com- majority opinion See for discussion mit with him immoral or indecent act is charge brought was statute not then in guilty felony, upon of a conviction shall prejudicial appellant. effect but held not to be be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars

(1) person age years, eighteen years under the sixteen age Is a “child” a age Second, or one under the of 18 by majority. stated the statute majority opinion concludes? years as the per- does not restrict itself to females but (2) ap- Does the indecent liberties statute anyone age tains to under the of sixteen involving ply to sex crimes sexual intru- years. Applying the in statute effect at in penetration sion or event? incident, 14-2-111, supra, the time of this to the determination of child under AOF CHILD AGE apparent the indecent liberties it is The indecent liberties statute does not age that a child is one under the of sixteen is a child. If a child is one tell us who so, years. being That should not age years, under the of sixteen charged have been with violation of the could not have been with violation indecent liberties statute as it existed at of the indecent liberties statute because the girl the time of this incident since the in- age girl here was over the of sixteen. This age years. was over the volved majority opinion, by referring court in the to what it claims to be the statute immedi SEXUAL ASSAULT STATUTE APPLIES ately preceding, “any construes the words insists, majority opinion neverthe- in such child” found the indecent liberties less, per- that the indecent liberties statute statute to mean a under the female involving tains to sexual intercourse fe- eighteen years. The court is mistaken in eighteen years. males under the To to, the statute it refers for the statute so construe the statute means that consen- preceded which the indecent liberties stat boy eigh- sual sexual intercourse ute and which in effect on the between date this § 14-2-111, girl day shy incident occurred was teen and a W.S. provided: immoral, being eighteen years immodest, for, boy and indecent “Anyone procures for, and that the who solicits knowingly encourages guilty felony anyone of a result (16) engage imprisonment sixteen years. for ten illicit sexual or sexual intru- This construction of the indecent liberties sion as defined in W.S. 6-63.1 6-4- [§ clearly contrary leg- statute is to what the felony, upon of a con- 301] adopting islature intended in child abuse punished by imprison- viction shall be and sexual assault statutes. At the time ment for a term not to exceed five the indecent liberties statute was reenacted years.” added.) (Emphasis legislature compre- enacted a prior It is true that to the revision of the hensive sexual assault statute which set preceding enactment of 14-2- specificity forth with the instances in which 111, W.S.1977,supra, age specified intercourse was to be a crime eighteen years. I would conclude that it Wyoming. state of The sexual assault legislature intent of the to reduce provided statutes as follows: age specified years. to sixteen That “(a) Any pene- actor who inflicts sexual result would inbe accord with “ tration * * * or sexual intrusion on a victim general rule, in the construc- commits a sexual assault in the first revisions, codes, compilations, tion of degree if: provision plain that when a and unam- “(i) The actor causes submission of the biguous the court cannot refer to the * * * through physical victim force or original purpose of ascer- 6-63.2, forcible confinement.” Section taining meaning.” its 73 Am.Jur.2d Stat- W.S.1957. utes “(a) Any pene- majority opinion actor who inflicts sexual incorrect on two First, “any counts. the statute defines tration sexual intrusion on a victim such child” as a under commits de- sexual assault the second if, gree judgment girl circumstances not consti- of wise than a about the degree: assault in age. tuted sexual the first legislature same The has established years age

sixteen as the of consent and the age upon effect criminality of the “(vi) in position The authori- actor legislature, act. That is the function of the ty position over the victim and uses this court give and this must effect to the stat- cause the to authority to victim sub- pertaining utes to sexual assault —which I 6-63.3, mit.” Section W.S.1957. clear pronounce- see as and unambiguous “An actor is at least four ments. older than the victim and who inflicts penetration sexual on sexual intrusion The indecent liberties statute and the a victim under the of sixteen sexual assault statute both deal with sex years in of sexual assault crimes. It was that they contended were 6-63.5, degree.” fourth Section W.S. conflict, clearly specific in that general, specific and that the repealer general statute effected a of the opinion The majority of the that states Rose, in statute. Justice Ketcham the sexual assault W.S. State, Wyo., (§ (1980), 6-63.5), P.2d specific is not more than analyzing question this in his dissenting indecent liberties statute because the opinion, stated: victim under the sexual statute assault give “has the to ability a consent will “I that repeal-by-implicationanalysis feel be valid if the actor no more than four an appropriate way is not to resolve the years older the victim than invalid [but fourth-degree-sexu- conflict between the opinion goes five The on to older].” statute al-assault and the indecent-liber- state, inconsistency is not “[t]his ties statute.” rational.” majority The this holds that case it was The being rationale behind consideration legislature intent of the that either given par- differential between the repealer work a other. I am Code, ties is best stated the Model Penal agreement holding in full with that and am (1955), Tentative Draft No. pages 253- conflict; convinced do not statutes 254: they deal different areas the broad statutory “The rationale of rape vic- spectrum of sex crimes and can stand to- immaturity. timization of It nec- seems gether. therefore, essary, recognize im- penetration 6-63.1, Sexual is defined mature males victims themselves be W.S.1957, supra, as “sexual intercourse.” of adolescence rather engaged § 6-63.5, age of The consent under W.S. * * * exploitation experience. of others’ 1957, supra, age. is sixteen way The most convenient effect argument There can be no serious require to the victimization rationale is to sexual that the assault statute is a a substantial differential in favor of ** deals with sexual existing the male. *. Certainly, force, consent, either as result of statutory provisions under involving a female under the twelve rape applied label is experimen- years. or under the It by girl just boy just tation under and a formerly specifically deals with what over 16 harsh seem and unreasonable.” rape. Capwell referred to as In subject is a difficult one with which (1984), we said: deal. disagreement There is wide over making rape crime was ought what the consent “A statute first be. * * * adopted Wyoming in 1899 ages difference in does and make a should [and] difference, otherwise we would sentenc- remained effect until when the prison sixteen-year-old comprehensive boys legislature who are undertook a * * * knowledgeable, capable no more mature or of the sub- revision statutes [and] law, general for the the the the ‘sexual assault’ inconsistent with term stituted ** control, special ‘rape’ provisions of the act will

term Carpenter, King Carpenter & Inc. v. penetration to specific. seems Sexual Rape ham, 314, Wyo. §in 6-63.- specific. It is defined me seems ‘ * * * “ intercourse, general rule that “It is the W.S.1957, 1, supra, as sexual standing general the alone I find that where specific. would that seems the same matter as the a nar- would include statute deals with the sexual assault act, it, crime, special and thus conflict with the sexual row area sex intrusion, intercourse, special an ex and that is act will be considered as sexual being it general. ception general statute whether specific opposed as the passed general or after such before unnecessary argument Extended seems special the enactment. Where § 14-3-105, W.S.1977, hold su to also that later, regarded exception it will an be “immodest, making pra, it unlawful take qualification general the prior to or immoral or indecent liberties with one; general later and where the act is child,” general is a statute rather special the statute will be considered as Rooney much specific. Justice conceded as remaining exception to un its terms when, constitutionality considering the general repealed less it is words or of this indecent liberties statute Soren ’ necessary implication.” 2A Sutherland State, 1031, Wyo., 604 P.2d son v. (4th Ed.1973), Statutory p. Construction (1979), Locke, quoted he Rose from v. State, Capwell supra 315.” at 1152. 243, 244, 96 S.Ct. 46 L.Ed.2d U.S. (1975): §§ statutes, Our sexual assault 6-63.1 “ lawyers may 6-63.13, W.S.1957, ‘Even trained find it nec- through spe- supra, deal dictionaries, legal

essary to consult treat- cifically criminality with or lack of the ises, they judicial opinions before criminality of sexual intercourse whether may say any certainty with what some resulting from force or It is consensual. ” compel statutes or forbid.’ statute, governs and it in this the case. Section 14-3-105 was reenacted af- Rooney proceeded then to consult Justice adoption of the stat- ter sexual assault dictionary meaning to determine the ute, it a clear on the evidenced “immoral, immodest, and indecent” liber- legislature of the that this statute then, quoting opinions He from ties. “ courts, ‘True, govern criminality other sex- should stated: what shall be involving penetra- “immodest, ual conduct not sexual regarded as inde- immoral and tion or sexual intercourse. As we stated specified particu- cent liberties” with ** larity Capwell supra quoted: And he further 1153: “ vagueness ‘The root of doctrine gives “This construction effect both ” rough idea of fairness.’ policy ambiguity that con- statutes and a cerning application of stat- criminal construing determining In statutes and lenity. utes resolved in should be favor legislature respect intent of )) # * * each, case, presume legislature principles Applying enacts above to this “[w]e legislation knowledge with full of exist have a five we woman was within being age. law and other stat with reference to months seventeen candidly testimony utes and of the in her decisions courts. Such She admitted legislation should, therefore, con be the sexual intercourse with in way strued her tes- creates a consisten consensual. A fair inference from cy harmony existing five-and-one-half-year timony within the law. and from the Ass’n indi- Wyoming Railway delay reporting Civic Mo the incident would Fuels, Wyo. prosecute did tor 116 P.2d 236 cate she had no wish to nor In should construed believe what occurred was a crime. Statutes she pari fact, special materia and act is our assault § 6-63.5, W.S.1957, supra, it is doubtful

that there was a crime. recognize

I that here was a law may

enforcement officer and that there society against on the

a natural bias enforcing

one who is entrusted with our having girl

laws sexual relations with a seventeen,

quite apparently duty. while on

If this law enforcement officer used his submission,

position authority to cause degree

that was the crime of second § 6-63.3, W.S.1957, supra,

assault under penalty twenty

and carries a of one to prison. Appellant was not crime;

charged with this and the record

would seem to indicate that the facts of the support charge,

incident would not not be so.

I would hold that where the incident involves sexual or sex- case,

ual intercourse as in this whether as a consent,

result of force or the sexual as-

sault statute is the statute under which the would,

charge therefore, should I be filed.

reverse remand this case to the trial

court. HOTSHOT,

BOWERS AND WELDING

INC., Marvin Bowers and Charlotte

Bowers, Appellants (Defendants), BROMLEY,

Michael D. Emma L. Brom Dickerson,

ley, Clyde E. Linda H. Dick

erson, Thomas, Appellees and Zenda M. (Plaintiffs).

No. 84-227.

Supreme Wyoming. Court

May

Case Details

Case Name: McArtor v. State

Court Name: Wyoming Supreme Court

Date Published: May 9, 1985

Citation: 699 P.2d 288

Docket Number: 84-22

Court Abbreviation: Wyo.