Brown v. State , 1987 Wyo. LEXIS 447 ( 1987 )

BROWN, Chief Justice.

Appellant Walter Joe Brown was convicted by a Uinta County jury of incest and sentenced to the penitentiary for a term of not less than fifty-nine months nor more than sixty months. In this appeal he urges three issues:

“I

“Whether the district court committed error allowing testimony concerning pri- or bad acts of Appellant.

“II

“Whether the district court committed error by allowing the testimony of Dr. Reisinger concerning the truthfulness of the complaining witness.

“in

“Whether the district court abused its discretion in sentencing Appellant to a term of 59 to 60 months in the Wyoming State Penitentiary.”

We will affirm.

By an amended information appellant was charged with sexual intrusion or sexual contact, with his fifteen-year-old daughter, in violation of § 6-4-402(a) and (b), W.S.1977 (Cum.Supp.1985) which provides in pertinent part:

“(a) A person is guilty of incest if he knowingly commits sexual intrusion, as defined by W.S. 6-2-301(a)(vii), or sexual contact, as defined by W.S. 6-2-301(a)(vi), with an ancestor or descendant or a brother or sister of the whole or half blood. * * *

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“(b) Incest is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.”

At trial the victim testified that appellant, her father, had sexual intercourse with her four times and had touched her sexually without intercourse approximately twenty times. The victim could not remember the exact date of the last incident of sexual intercourse, but narrowed it down to a Monday, either the 12th or 19th of August, 1985. She fixed the time of the week as being a Monday because her mother attended art classes on Mondays.

She further testified that she did not immediately tell anyone about the incestuous relationship because she thought it was supposed to be a secret and was afraid. The victim testified that she was fifteen years of age at time of trial and that her father initiated sexual activity with her when she was eleven years old.

Over the objection of appellant the victim’s half-sister testified that appellant had committed incest upon her and described a course of conduct involving sexual intercourse or sexual contact over a period of several years. This witness is the adopted daughter of appellant and the half-sister of the victim. The victim’s half-sister further testified that when she was about six years old her adoptive father started to sexually abuse her, and first had sexual intercourse with her about two years later.

I

Appellant contends that the testimony of the victim and her half-sister implicating him in prior sexual abuse was improperly admitted into evidence and that Rules 403 and 404, Wyoming Rules of Evidence, prohibit such testimony.

Rule 404, W.R.E., provides, in part:

“(a) Character evidence generally. — Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

ti * * *

“(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to- prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” (Emphasis added.)¹

Elliott v. State, Wyo., 600 P.2d 1044 (1979), a sexual assault case, is similar to the case before us. In that case the victim’s older sister testified regarding three prior instances of sexual assault involving appellant, the victim’s stepfather, and herself. There we said:

"“Our analysis of cases from other jurisdictions leads to the conclusion that in recent years a preponderance of the courts have sustained the admissibility of the testimony of third persons as to prior or subsequent similar crimes, wrongs or acts in cases involving sexual offenses. Among the grounds relied upon for the admissibility of such evidence is that it is admissible to show motive or to show plan, with various phrases being used by the courts to describe those concepts. [Citations.]

“We note that in cases involving sexual assaults, such as incest, and statutory rape with family members as the victims, the courts in recent years have almost uniformly admitted such testimony. [Citations.] The description of the events by the victim’s sister here, together with the testimony of the victim, persuades us that the conduct described was sufficiently similar to pass the test of relevancy under Rule 404(b), W.R.E., and was, admissible for the purpose of proving thei motive of the appellant.

“According to these other courts, the remoteness of the other conduct is a factor to be considered in determining the question of relevancy. In this instance the testimony of the older sister described a time frame of not more than three years prior to this instance, which would not inhibit admissibility of her testimony as involving acts that are too remote.

“As we have indicated, some courts in comparable circumstances have relied upon the common design or plan manifested by the similarity of the prior crimes, wrongs, or acts to justify their admissibility. That reasoning well might fit these circumstances. The conduct described by the witnesses was sufficiently similar to meet that requirement as set forth in the decisions of other courts. In this particular instance, however, we conclude that admissibility of the evidence is justified as proof of motive. In Valerio v. State, Wyo., 429 P.2d 317 (1967), we cited several cases as having held that ‘testimony about one’s previous criminal activity can be introduced in the current trial if the purpose of such introduction is to establish identity, guilty knowledge, intent or motive.’ * * * ” Id., at 1047-1048.

See also, Watson v. State, 180 Ga.App. 82, 348 S.E.2d 557 (1986).

In State v. Stevens, 93 Idaho 48, 454 P.2d 945, 950 (1969), the court said:

“ * * * Motive is generally defined as that which leads or tempts the mind to .indulge in a particular act. 21 Am.Jur.2d , Crim.Law § 85, p. 166; Black’s Law Dictionary (Rev. 4th ed.). It is distinguishable from intent, which is the purpose to use a particular means to effect a certain result. People v. Molineux, 168 N.Y. 264, 61 N.E. 286, 62 L.R.A. 193 (1901). * *

In a case such as the one before us, intent is not an issue to be established by the testimony of the older sister. Motive obviously could be. As the New York Court of Appeals said:

“ ‘Motive,’ * * * is an inducement, or that which leads to tempt the mind to indulge the criminal act. It is resorted to as a means of arriving at an ultimate fact, not for the purpose of explaining the reason of a criminal act which has been clearly proved, but for the important aid it may render in completing the proof of the commission of the act when it might otherwise remain in doubt.” People v. Lewis, 275 N.Y. 33, 9 N.E.2d 765, 768 (1937).

See also, People v. Elkhatib, Colo., 632 P.2d 275 (1981); State v. Segotta, 100 N.M.App. 18, 665 P.2d 280 (1983); Rodriguez v. State, Tex.Cr.App., 486 S.W.2d 355 (1972). In this latter case the court said:

“The term motive is used to express different concepts. As used here, motive-refers to an emotion that would provoke or lead to the commission of a criminal offense. Evidence to show motive is the circumstantial evidence that would appear to cause or produce the emotion. When it is said that evidence going to show motive is admissible, it is meant that the circumstantial evidence is admissible that would appear to cause or produce the emotion that would in turn provoke or incite the commission of the criminal offense. See 1 Wigmore, Evidence, § 117 at 558 (3d ed. 1940) and 2 McCormick and Ray, § 1534 at 382 (2d ed. 1956).” Id., at 358.

Incest involves aberrant sexual behavior — it is a type of sexual deviancy that is difficult to understand. Therefore, a trier of fact might well wonder what would motivate the accused to behave in such bizarre manner. The evidence of prior sexual acts then was probative under the motive exception because of the unusual sexual behavior involved. It seems, however, that motive is usually thought of as the reason the crime was committed. If motive equates to reason, then perhaps appellant’s motive for having sexual relations with his younger daughter was that the older daughter was no longer available and the younger daughter was now taking her place. The older daughter’s testimony would be admissible for this purpose.

If the accused had a predilection to deviant sexual practices with young female relatives, it would not be unreasonable for the trier of fact to determine that he had a motive to commit the acts complained of by the victim in this case.

Consistent with our holding in Elliott, we determine the admission of testimony regarding conduct of appellant described by the victim and her older sister was justified as proof of motive and was sufficiently similar to meet the relevancy requirements of Rule 404(b).

Here, appellant first sexually assaulted the victim and her sister when they were children. He first assaulted both girls by sexual contact; after a year or more he subjected them to sexual intercourse and to oral sex. Appellant told both girls that he was engaging them in sexual relations to show them how much he loved them.

Rule 403, W.R.E. provides:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

In Elliott v. State, supra, at 1049, we said:

“The function of performing the comparisons required by Rule 403, W.R.E., generally is held to be discretionary with the trial court. The fact that the evidence is detrimental to the defendant is neutral. For the prejudice factor to come into play the court must conclude that it is unfair. United States v. Dolliole, 597 F.2d 102 (7th Cir.1979). * * *”

Evaluating the evidence in this case in light of our previous decisions and decisions from other courts as well, we cannot say that the danger of unfair prejudice outweighed the probative value of evidence of prior acts of sexual misconduct involving appellant. The spirit of Rule 403 was not violated, and we cannot find that the trial judge abused his discretion.

Interwoven into appellant’s argument that admitting into evidence appellant’s pri- or criminal acts violated Rules 403 and 404(b), W.R.E., is a collateral argument that this evidence subjected appellant to double jeopardy. Article 1, § 11 of the Wyoming Constitution provides that no person shall be twice put in jeopardy for the same offense.

At trial the victim testified to prior instances of sexual contact between herself and appellant. There was also an inference that at one time appellant was on probation for sexual offenses involving his daughters. Appellant speculates that the jury may have convicted him of these prior sexual contacts rather than the crime for which he was charged.

Earlier in this opinion we explained in detail the reasons why testimony regarding prior sexual acts was relevant and admissible. Arguing double jeopardy does not strengthen appellant’s contention that evidence regarding prior sexual misconduct was improperly admitted. The authority cited by appellant only addresses general and vague propositions with respect to double jeopardy. We fail to see how such authority has any bearing on the circumstances of this case. Appellant has failed to cite persuasive authority or make cogent argument in support of his double jeopardy contentions. We must assume that the jury convicted appellant for the crime charged and followed the court’s instructions.

In summary, we find no error in admitting evidence of prior sexual misconduct:

II

Dr. Mercedes Reisinger, a clinical psychologist, testified on behalf of the state. In her testimony she described the typical pattern of behavior between a father and daughter in an incestuous relationship. She described a multi-step progressive pattern of the father treating the child first as a special child and granting her special favors. The father’s behavior pattern toward the child then progresses to include such things as fondling and other sexual contacts, eventually resulting in sexual intercourse. The pattern also includes the father inducing the child to keep these activities secret within the family. The next progressive step is for the father to deny the child certain privileges unless she reciprocates in a sexual manner. Because of this type of pressure the child may report the aberrant sexual behavior of her father.

The witness also testified without- objection that in her opinion the prosecutrix was the victim of sexual molestation. Dr. Réis-inger testified that she gave several personality tests to the victim. One of the tests was the Minnesota Multiphasic Personality Inventory (M.M.P.I.). In chambers the court told the prosecution that he would not allow Dr. Reisinger to tell the jury that the victim had told her about the sexual assault in August, 1985, nor would he allow the witness to say that she believed the victim was telling the truth. Dr. Reisinger was asked if there were any measures of validity or reliability built into the testing procedure. She answered:

“The M.M.P.I., the Minnesota Multipha-sic Personality has validity scales. Three, as a matter of fact. One is called the lie scale, which is a scale that measures overt lying, admission to things that would be extremely improbable. A K scale, which is a subtle validity scale that measures deception or a desire to cover up approach — in terms of approaching the tests in terms of being self protective and then there’s also an F scale, which is a scale that measures exaggeration or exaggeration of information being presented or of symptoms. Those are built into the M.M.P.I., yes.”

The witness was then asked:

“Q. Were there any significant results from any of the three scales, the lie scale, the K scale or the F scale that you just talked about?

“A. They were all within normal limits.

“Q. Meaning what?

“A. Meaning that the individual approached the test from a very truthful fashion, not exaggerating or covering up.”

Appellant did not object to this testimony from Dr. Reisinger. He had previously been assured that he had a valid objection to the witness vouching for the truthfulness of the victim. Consequently, his failure to object to these questions is some indication that he recognized in context that the witness was only furnishing information as to the attitude of the victim with respect to the testing procedure.

Appellant contends on appeal that Dr. Reisinger did in fact testify as to the victim’s truthfulness inappropriately and contrary to the limitation put on her testimony by the court. We do not agree.

Dr. Reisinger testified what the results of the evaluation indicated to her, that, is, how the victim responded to the psychological tests. The witness did not testify that the victim was a truthful person in general nor did she testify that she believed the testimony. The most that can be gleaned from this portion of Dr. Reisinger’s testimony is that the built-in validity scales in the M.M.P.I. test showed that the victim’s response to this test was truthful and not given to exaggeration or cover up.

In Smith v. State, Wyo., 564 P.2d 1194, 1200 (1977), we said that an expert “ * * * cannot testify as to the truthfulness of the defendant’s version [of the incident] * See also, Lessard v. State, Wyo., 719 P.2d 227 (1986). We do not believe that the principles in Smith and Lessard were violated here.

No objection was made to Dr. Reisinger’s testimony that in her opinion the prosecu-trix was the victim of sexual molestation nor was there an objection to the testimony that the victim approached the M.M.P.I. test from a truthful fashion. However, appellant contends that we should consider this testimony under the plain error doctrine.

In Hampton v. State, Wyo., 558 P.2d 504, 507 (1977), we said:

“* * * When review is sought under the plain error doctrine this Court must be able to discern from the record, without resort to speculation or equivocal inference, what occurred at trial, that is, we are entitled to know the particular facts. [Citations.] Further, the proponent of plain error must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. [Citations.] If these criteria are met, the error or defect must adversely affect some substantial right of the accused in order to avoid the application of the harmless error concept procedurally expressed in Rule 49(a), W.R. Cr.P. * * *”

We do not believe that the plain error doctrine applies to the circumstances of this case. Appellant has not demonstrated the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way. We find no reversible error in admitting Dr. Reisinger’s testimony.

III

In his final issue on appeal, appellant contends that the court abused its discretion in sentencing him to a term of fifty-nine to sixty months in the penitentiary-

We have frequently addressed this issue in recent cases. In Carey v. State, Wyo., 715 P.2d 244, 249 (1986), we held that “ * * we do not set aside a sentence within the legislatively mandated minimum and maximum terms in the absence of a demonstration of clear abuse of discretion. * * * ”

In defining an abuse of discretion, we quoted Martinez v. State, Wyo., 611 P.2d 831 (1980) in Martin v. State, Wyo., 720 P.2d 894 (1986), saying that a court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the circumstances. In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. Each case must be determined on its peculiar facts.

In the ease before us, appellant was convicted of incest in violation of § 6-4-402(a) and (b), W.S.1977, (Cum.Supp.1985). The maximum term of imprisonment under this statute is five (5) years. Appellant was sentenced to a term of not less than fifty-nine months nor more than sixty months.

At the sentencing hearing the trial judge indicated in detail the purposes of sentencing generally, and the reasons for sentencing appellant to not less than fifty-nine months nor more than sixty months. He said:

“Now, with respect to sentence, Mr. Brown, the Court has considered probation. * * * The Court finds that probation was tried with you once and that because probation was tried once and it failed, then probation is no longer appropriate. In addition to that, the Court finds that probation, under the circumstances of your particular case, would unduly depreciate the seriousness of the offense to which you' have committed. So the Court will not grant you probation, Mr. Brown.

“ * * * The Court noted aggravating circumstances in the case with no mitigating circumstances.

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“The first one [aggravating circumstance] that the Court would mention is that the victim in this case was particularly vulnerable and there isn’t any question about that from the evidence in this case. Not only was this a little girl, but this was your own little girl. She was not only vulnerable because she was young, but she was also vulnerable because she was malleable, controllable by you as her father.

* * * * * *

“The second aggravation is that you are a repeat offender under circumstances in which everything was done to prevent you from doing what you did and under circumstances in which everything was done to help you help yourself and to prevent you from doing the things that you did. In the process, you see, Mr. Brown, I’m focusing on you and trying to help you. You spit on the system and you victimized the system. * * * ”

We would be hard pressed to find that the trial court abused its discretion in imposing the sentence in this case.

Appellant complains that the district court violated § 7-13-201, W.S.1977, which states:

“When a convict is sentenced to the state penitentiary, otherwise than for life, for an offense or crime, the court imposing the sentence shall not fix a definite term of imprisonment, but shall establish a maximum and minimum term for which said convict shall be held in said prison. The maximum term shall not be longer than the longest term fixed by law for the punishment of the offense of which he was convicted, and the minimum term shall not be less than the shortest term fixed by law for the punishment of the offense of which he was convicted.”

He contends that the trial court in effect imposed a determinate sentence because there was only one month between the maximum and minimum sentence.

In Duffy v. State, Wyo., 730 P.2d 754 (1986), we addressed this issue. In that case there was a difference of one day between the maximum and minimum sentence. In Duffy, we held that the sentence imposed did not violate § 7-13-201, W.S. 1977, and stated reasons.

In the case here, we hold that the sentence imposed by the court did not violate the statute, and we adopt the same rationale stated in the Duffy case.

We find no reversible error, and accordingly affirm.

CARDINE, J., filed a specially concurring opinion.

URBIGKIT, J., filed a dissenting opinion.

MACY, J., filed a dissenting opinion.

1 . The nine circumstances listed in Rule 404(b), Wyoming Rules of Evidence, under which evidence of other crimes may be found relevant and admissible is not exclusive but rather is merely illustrative. United States v. Masters, 622 F.2d 83 (4th Cir.1980); and United States v. Beechum, 582 F.2d 898, n. 15 (5th Cir.1978). Rule 404(b), Federal Rules of Evidence is identical to Rule 404(b), W.R.E. Therefore, we find federal cases addressing this rule persuasive.

We have previously recognized exceptions to the 404(b) exclusionary rule other than those catalogued in the rule. Other jurisdictions have characterized other exceptions " * * * where the evidence of other criminal activity forms part of the history of the event or serves to enhance the natural development of the facts. * * *" Commonwealth v. Evans, 343 Pa.Super. 118, 494 A.2d 383, 390 (1985). This exception has also been characterized as the "same transaction rule” or "complete story” exception. Justice Urbigkit in writing the opinion in Crozier v. State, Wyo., 723 P.2d 42, 49 (1986), characterizes this exception as the "course of conduct” exception.