State v. PruittState v. Pruitt
James N. Pruitt was convicted of a felony, crime against nature, for soliciting fellatio from a female undercover police agent. The conviction was reversed by this Court because the Trial Judge denied Pruitt the opportunity to present expert testimony on the issue of whether heterosexual oral sex is unnatural. State v. Pruitt, 449 So.2d 154 (La.App. 4th Cir. 1984). After a second trial, Pruit was again convicted and sentenced to two years at hard labor, suspended, and one year active probation. We affirm.
The crime of which Pruitt was convicted is defined by
A. Crime against nature is:
(1) The unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed a crime against nature when done under any of the circumstances described in
R.S. 14:41 ,14:42 ,14:42.1 or14:43 . Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.(2) The solicitation by a human being of another with the intent to engage in any unnatural carnal copulation for compensation.
B. Whoever violates the provisions of this Section shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.
In this appeal Pruitt assigns three errors. He first contends that during voir dire the judge erred in allowing the state to question prospective jurors regarding sexual biases and then restricting examination by the defendant on the same subject.
The record of voir dire shows that the district attorney questioned prospective jurors regarding their ability to apply the law to the evidence despite any personal religious or moral beliefs they might have. Then, before Pruitt‘s counsel was allowed voir dire, the judge called both attorneys to the bench. Pruitt‘s counsel contends that the judge then informed the attorneys that he would not permit further questioning on the subject of individual sexual preferences or prejudices. The judge explained that he would allow questions regarding preconceived notions about the naturalness or unnaturalness of oral sex, but not questions as to what that notion or prejudice might be. Pruitt‘s counsel did not object to the judge‘s off-the-record ruling.
We reject Pruitt‘s assignment of error regarding the judge‘s alleged ruling because a contemporaneous objection is required to preserve an irregularity or error for appellate review.
In his second assignment of error, Pruitt argues that the Trial Judge erred in allowing, over his objection, the prosecution to cross-examine his expert regarding sexual practices unrelated to the charge against him.
During the presentation of his case, Pruitt qualified Dr. Raymond W. Swan, a psychotherapist, as an expert in human sexuality and questioned him regarding the naturalness of oral sex. Under cross-examination, Dr. Swan defined “`natural’ as an instinctive behavior modified by learning and by experience in the historical time that we live in.” Dr. Swan responded affirmatively when the Trial Judge asked him if “in order to determine whether it‘s natural or whether it‘s unnatural, it is whether the people in the community are doing it.” The district attorney then asked Dr. Swan about the naturalness of bestiality, necrophilia, pedophilia, and sado-masochism. The Trial Judge overruled Pruitt‘s objections to this questioning. Pruitt contends that evidence regarding these sexual practices was irrelevant to the charge of soliciting oral sex, and even if relevant, either distracted the jury or created undue prejudice against him.
We find the State‘s questions within the scope of reasonable cross-examination and not unduly inflammatory. Cross-examination is not limited to matters covered in
We find the questions to which Pruitt objected were permissible attempts by the prosecutor to impeach the defense expert‘s credibility, and, in view of the record as a whole, were not asked merely to inflame the jury.
In his final assignment of error, Pruitt contends that the evidence was insufficient to convict him because the State did not prove that the sexual act which he solicited was unnatural.
Because
The sole question raised by Pruitt‘s contention of insufficient evidence is whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found that the solicited act was unnatural. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The jury was not bound to follow the expert testimony presented by Pruitt; a fact-finder is free to accept or reject the conclusions of an expert witness. State v. Myles, 432 So.2d 1018 (La.App. 1st Cir. 1983). Furthermore, an expert must not take the place of the jury in determining an ultimate fact in a case. Although another panel of this Court held in reversing Pruitt‘s previous conviction that he must be allowed to present expert opinion evidence, we do not believe the issue in this case requires the testimony of an expert to prove the State‘s case. See State v. Yancy, 465 So.2d 48 (La.App. 4th Cir.1985). And, although the State or a defendant may chose to present expert testimony to aid the fact-finder‘s determinations, an expert‘s opinions may always be disregarded. The jurors could, and apparently did, rely upon common knowledge and experience in finding that the State proved each element of the crime beyond a reasonable doubt. We are unwilling to say that the jury‘s verdict was erroneous.
In so concluding, however, we have not considered the question of whether the legislature may constitutionally prohibit oral copulation in a heterosexual relationship when not solicited for compensation, or whether such conduct is unnatural. We merely hold that the jury could have found solicitation of oral copulation for compensation prohibited by
AFFIRMED.