Williе VASQUEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 5370.
Supreme Court of Wyoming.
Feb. 23, 1981.
623 P.2d 1205
Further, the Wyoming Constitution, Art. I, § 10, (fn. 4) does not dictate a different result. Appellant had adequate counsel at the time of his present conviction. His sentence was imposed for possessing a firearm when he had previously been convicted for a crime of violence. The sentence was not for being a highway robber in North Carolina 25 years ago, nor was his present sentence enhanced as a result of his past conviction; so, the sentence of confinement was proper.
Affirmed.
John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Criminal Division, and Samuel A. Soule, Sr., Asst. Atty. Gen., (argued), for appellee (plaintiff).
Before ROSE, C.J., and McCLINTOCK, RAPER, THOMAS and ROONEY, JJ.
RAPER, Justice.
Appellant was tried before a jury and found guilty of two counts of first degree sexual assault as defined in
We reject both of these propositions and will affirm.
Willie Vasquez, the appellant, and Mary Vasquez, the victim, were married on April 19, 1970; they were subsequently divorced on November 28, 1978. Mary testified that prior to the divorce but after a separation had oсcurred in early 1978, appellant had
On the night of August 29, 1979, after the divorce had become final, appellant surreptitiously gained entrance into the house in which Mary was living. She had fallen asleep while watching television and was awakened by a hand on her shoulder. Looking up she saw appellant completely naked, armеd with a knife. He informed her that she was going to go into the bedroom and have sex with him. Under such a threat, she submitted to his demands. The incident was not immediately reported.
Several days later, on September 1, 1979, appellant broke into Mary‘s house at approximately two o‘clock in the morning. He again forced her to submit to sexual intercourse with him. While doing so, he indicated that since she had borne his kids he would always regard her as his wife and thus he was entitled to do whatever he felt like with her. He then dragged her by the hair out into the street, where appellant conversed with a passerby while Mary begged for help. Fortunately a patrol car happened by; it stopped and the police came to Mary‘s aid.
During the prosecutor‘s opening comments to the jury he stated:
“She‘s [Mary Vasquez] going to testify, ladies and gentlemen, that he had raped her on previous occasions; that he had beaten her on previous occasions, and that this was the sort of thing that Willie Vasquez was accustomed to do to this poor woman and was accustomed to doing it because nothing had ever been done before; that he was getting away with it; that this was not—”
“MR. MANKUS: Your Honor, may I have a continuing objection along this argument?”
“THE COURT: You may.”
“MR. MANKUS: Thank you.”
“MR. KERN: And that it was just one more incident to occur to unfortunate Mary Vasquez.”
Appellant attacks the propriety of these comments on the basis that it was legally impossible for him to have raped his wife while they were still married under
In this case it should be noted that the term “rape” is no longer used in the statutes defining the degrees of sexual assault. See
We would further point out that in the trial judge‘s opening instruction bеfore commencement of the trial he specifi-
“The prosecutor‘s opening statement should be confined to a brief statement of the issues in the case and to remarks on evidence the prosecutor intends to offer which the prosecutor believes in good faith will be available and admissible. It is unprofessiоnal conduct to allude to any evidence unless there is a good faith and reasonable basis for believing that such evidence will be tendered and admitted in evidence.”
The prosecutor‘s opening statement was in good faith and based on еvidence available, admissible, and admitted.
Appellant‘s second assignment of error concerns Rule 404(b), W.R.E. and an admission of evidence that he had forced Mary to submit to sexual intercourse at a time when they were legally married. First, appellant again calls to our attention that the statutes specifically exclude any conduct between married persons from constituting sexual assault. From this appellant urges that evidence of sexual intercourse between a husband and his wife сannot be regarded as probative on the issue of the husband‘s motive to sexually assault his wife subsequent to a legally valid divorce.
It is a well established principle of law that deference is given a trial judge‘s determinations upon the admissibility of evidence. Key v. State, Wyo. 1980, 616 P.2d 774. This court will not reverse on appeal unless there exists no legitimate basis for the trial judge‘s ruling. Hatheway v. State, Wyo. 1981, 623 P.2d 741.
In the present case the trial judge announced to the jury that the challenged evidence was being received for only one purpose. He stаted:
“Ladies and gentleman of the jury, the Court has made a ruling out of your presence with regard to testimony relative to a certain incident that occurred prior to those alleged in the information. You will be hearing testimony concerning that pаrticular incident. The only purpose that you will receive testimony concerning that certain incident will be for its tendency to either prove or not to prove a pattern of conduct on the part of the defendant or motive. Of course, that is an issue for you to decide in this case. But that is the only purpose for which you are to consider this incident that you will hear testimony about.”
Evidence of prior acts of a party may be admitted by a trial judge for a variety of purposes; the establishment of motive as suggested by appellant is only one of those contained in Rule 404(b), W.R.E. Further, in Hatheway v. State, supra, we recognized that list is not exhaustive. Prior acts of a party may be admitted when they demonstrate a particular course of conduct. Past and othеr acts of similar sexual conduct have probative value. Elliott v. State, Wyo. 1979, 600 P.2d 1044. It is apparent from the court‘s instructions to the jury that the trial judge admitted the evidence under this rationale and that its probative value outweighed any possible prejudice to the appellant.
We must conclude that the ruling was supported by a legitimate basis. Appellant‘s conduct toward Mary Vasquez during their marriage amply demonstrated
Affirmed.
THOMAS, J., filed a specially concurring opinion in which ROSE, C.J., joined.
THOMAS, Justice, specially concurring, with whom Rose, Chief Justice, joins.
Section 6-4-307, W.S.1977, stands as an anomaly in these times. This appellant has premised a part of his argument on that statute, which is quoted in footnote 3 of the majority opinion. Currently other forms of family abuse are of paramount concern to many in our society. Indeed, while this case has been under advisement in this court there have been intrоduced and acted upon in the Forty-sixth Legislature of the State of Wyoming House Bill 49, House Bill 504, and Senate File 192. These legislative acts relate respectively to adult protection services which are available in a family context; servicеs to prevent or deter family violence; and the creation in the Department of Health and Social Services of a Division of Family Violence and Sexual Assault. If it is wrong to abuse one‘s spouse, then excusing abuse by rape cannot be justifiеd. It is clear that the State can prosecute a husband for homicide if he should kill his wife for refusing intercourse, but our statute excuses him if she capitulates under a threat of death. Such a statutory paradox merits further attention. The presumption of сonsent as a defense of inhumane conduct by a husband leading to sexual intercourse is an inhumane rule which needs to be extirpated from the law.