State v. Gotfrey ( 1979 )

CROCKETT, Chief Justice:

Defendant Kenneth Gotfrey appeals from his conviction by a jury on two counts of statutory rape,¹ and one count of forcible sodomy,² on all of which he had been jointly charged. His grounds of attack are: (1) Insufficiency of the evidence, (2) error in denying his claim of a psychologist-patient privilege, and (3) in denying defendant’s motion to quash the information for improper joinder of offenses therein.

The acts of statutory rape charged were upon defendant’s step-daughters. Petrita Garcia testified that on September 11, 1975, (she was then 12 years of age) the defendant jerked her into a bedroom in their mobile home at Wellington, Utah, made her take off her clothes and had intercourse with her. Though the evidence was focused upon that occurrence, she also testified that the same thing had happened many times (at least 20 times) before. The other was a year and a half later, another step-daughter, Rosie Garcia, testified that on March 15, 1977, (who by then had also become 12 years old) the defendant took her in the bedroom, undressed her, and had sexual intercourse with her. She also testified that the same thing had happened many times before.

The charge of sodomy was upon the brother of the two girls above referred to, step-son Michael Gene Garcia, 16 years old. He related that the incident occurred on October 23, 1976 on a deer hunt in Carbon County. He said that while he was in bed in the deer-camp tent, and while his cousin, an eight year old boy was also sleeping in the tent, the defendant left several men by the camp fire about 15 to 20 feet away, came into the tent and by threats of violence committed the act of sodomy upon him.

Carbon County Sheriff Albert Passic testified that in connection with his investigation of these matters the defendant told him that he had “undressed and played with” the little girls. Mr. Brian Matsuda, a juvenile probation officer, also testified that Gotfrey admitted having intercourse with the girls. Bobby Joe Fredrickson, who gave his credentials as a clinical psychologist at the government agency Four Corners Mental Health in Price, Utah, testified that during a therapy session Gotfrey volunteered that he had had sexual intercourse with the two step-daughters.

Defendant’s first contention, that the evidence was not sufficient to justify the verdict of guilty of forcible sodomy and rape, is disposed of by these observations as to the standard and well-established rules of review of evidence by an appellate court: that we recognize the prerogative of the jury as the exclusive judges of its credibility; and that where the evidence is in dispute, we are obliged to assume that the jury believed those aspects of the evidence which support their verdict; ³ and that, in doing so, there is a reasonable basis therein upon which the jury could believe that the defendant committed those offenses as charged.

The assignment that the court committed error in refusing to allow the defendant to invoke a privilege between him and Mr. Fredrickson is based on our statute Sec. 58-25-8, U.C.A.1953, which states:

A psychologist licensed under the provisions of this act cannot, without the consent of his client or patient, be examined in a civil or criminal action as to any information acquired ... in behalf of the client .

The effect of that statute is to create another privilege and thus close another window to the light of truth. It is neither our duty nor prerogative to pass upon the wisdom of such a legislative enactment. But because it has the effect just stated, it should be strictly construed and applied; ⁴ and should not be extended to persons merely acting as agents for or under the direction of licensed psychologists, as defendant urges. Mr. Fredrickson’s own testimony indicates that he had not become a licensed psychologist as required by Sec. 58-25-2, U.C.A.1953. The trial court therefore acted properly in not allowing the defendant to claim the privilege.⁵

The question of more vital concern is whether the court committed error in refusing to sever the charges so the defendant could have a separate trial on each.

Our statute Sec. 77-21-31, U.C.A.1953 permits the charging of several crimes in a single indictment or information when they, “. . . are of the same or similar character, or are based on the same act or transaction, or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

The purpose of that statute is to allow joinder of offenses and thus eliminate multiple prosecutions to conserve time and effort when justice can best be served thereby. But care must be taken that the statute is not misused to deprive an accused of a fair trial upon an offense by joining different offenses so that evidence concerning charges unrelated in time and nature, which would normally not be admissible upon a trial, could be admitted as to the multiple offenses in an effort to stigmatize the defendant and thus make it questionable that the jury would give a fair and dispassionate consideration to the evidence on the first charge.⁶

Considered in the light of what has just been said, we are impelled to conclude that the separate and different charges of rape upon the step-daughters and of sodomy involving the step-son are not of such similarity in character and circumstances of commission that, considering fairness to the defendant, they should have joined under the statute above referred to. This is true because it will be noted that the two charges of rape relate to incidents several months apart and with different victims; and that the charge of sodomy is a separate and distinct offense with different elements.⁷

It is regrettable that the misjoinder of the three charges necessitates a reversal of the convictions when the evidence appears to be sufficient to sustain them. Nevertheless, the defendant is entitled to a trial without any error of sufficient substance that in its absence there is a reasonable likelihood that there would have been a different result. We cannot conclude with assurance that the joinder of these three offenses, and allowing the jury to hear evidence of all three of them together in a single trial, did not so affect the proceeding as to deprive the defendant of a fair trial.

It is therefore necessary that the judgments be reversed, and that the three charges be severed; and the case be remanded for such further proceedings as may be deemed appropriate.⁸ No costs awarded.

WILKINS and HALL, JJ., concur.

1 . 76-5-402(2), U.C.A.1953 provides that: Rape is a felony of the second degree unless the victim is under the age of 14, in which case the offense is punishable as a felony of the first degree.

2 . As provided by 76-5-403, U.C.A.1953.

3 . See State v. Seymour, 18 Utah 2d 153, 417 P.2d 655; Titus v. State, Okl.Cr., 351 P.2d 1021.

4 . Gord v. Salt Lake City, 20 Utah 2d 138, 434 P.2d 449.

5 . We discuss the other assignments of error, notwithstanding the reversal on a different ground, because of the provision of Rule 76(a), U.R.C.P. to the effect that upon remand for further proceedings the court shall pass upon questions of law that may be involved; see also LeGrand Johnson Corp. v. Peterson, 18 Utah 2d 260, 420 P.2d 615.

6 . See Cassidy v. Second Judicial District Court, 109 Utah 519, 167 P.2d 970.

7 . Compare 76-5 — 402, U.C.A.1953 with 76-5-403, U.C.A.1953.

8 . That defendant is not entitled to dismissal of the charges, but to a new trial thereon see State v. Jaramillo, 25 Utah 2d 328, 481 P.2d 394.