Bryan v. State

745 P.2d 905, 1987 Wyo. LEXIS 546

• Court: Wyoming Supreme Court
• Decided: November 24, 1987
• Docket: 86-300
• Status: Published

Opinions

CARDINE, Justice.

Appellant, Bruce Bryan, pled guilty to a charge of first-degree sexual assault as a result of a plea bargain in which a second charge of child abuse was dismissed. This is an appeal from the judgment and sentence entered upon the guilty plea.

The issues presented for our determination, as stated by appellant are:

“I. Whether appellant’s guilty plea should be set aside because it was without sufficient factual basis as a matter of law, as required by Rule 15(f), W.R.Cr.P.

“II. Whether appellant’s guilty plea should be set aside because appellant was not adequately notified regarding the true nature of the charge against him, as required by Rule 15(c)(1), W.R. Cr.P., and the United States Constitution, Amendment XIV.”

The essence of appellant’s claim of error is that first-degree sexual assault requires that sexual intrusion be for the purpose of sexual arousal, gratification or abuse and is a specific intent crime; that the court, under Rule 15, W.R.Cr.P., must, therefore, inform appellant of the specific intent necessary for conviction before accepting his guilty plea.

We affirm.

FACTS

Twenty-one-year-old appellant, Bruce Bryan, a dishwasher, had lived with a 23-year-old Casper woman and her ten-month-old infant girl for eight and one-half months. On December 5, 1985, appellant was babysitting. The child began to cry. Appellant placed her on a blanket and gave her toys. The crying continued. Frustrated, appellant tried to feed the baby. As the baby continued to cry, appellant became more and more angry. Enraged, he picked up the baby, shaking her hard, and yelling as he carried her to her bedroom. He dropped the baby onto the bed and threw some blankets on her. Appellant brought a radio from the living room and turned it on so the baby “wouldn’t feel alone & would go back to sleep.” He acknowledged that his fingers had been in or near the baby’s vagina and anus.

Among the materials before the court were appellant’s statements, doctor reports, psychological evaluations, presen-tence investigation, and the investigating officer’s report. These materials reveal that appellant was enraged and lost control; that “his only purpose was to stop the child’s incessant crying and to vent his resultant anger and frustration”; that he was “pissed off”; and he stated: “I grabbed her up” and “gripped her real hard” and shook her “in a brutal manner.” Appellant admitted he “got high” on marijuana twice on the morning of the incident and “lost his temper” when the baby became fussy. He cited a history of losing his temper and admitted aggression toward others when intoxicated with drugs or alcohol.

Appellant left the house, locking the front door, and went to work. The mother returned after 25-45 minutes to find appellant gone and the house locked. She crawled through a window and found the crying baby sitting in a pool of blood holding a bloody diaper. The hospital emergency room reported cuts and blood in the vaginal and anal area and possible sexual assault. Surgery was required to repair a torn sphincter muscle and torn hymenal ring.

Appellant Bruce Bryan was charged with one count each of felony child abuse and first-degree sexual assault. Mental examination determined appellant had no mental illness or deficiency and was not a sexual deviate. He had a low tolerance for stress, however, and was easily frustrated. The child abuse charge was dropped, and appellant pled guilty to first-degree sexual assault and was sentenced to a 20-25 year term.

Before accepting a plea of guilty, the court must determine that defendant, as provided in Rule 15(c)(1) and (d), W.R.Cr.P., understands:

(c)(1) “The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and

* * * * * *

“(d) The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary * * *.”

With respect to entry of judgment, Rule 15(f), W.R.Cr.P., provides:

“Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.”

It is essential that defendant be informed of the nature of the charge against him. That is often accomplished by reading the indictment and, if necessary, explaining the elements of the crime charged. See York v. State, Wyo., 619 P.2d 391, n. 3 (1980). Thus, it is stated

“The requirement that the court determine that defendant understand ‘the nature of the charge’ has been in the rule from the beginning. Its obvious purpose is ‘to assure that the accused be not misled as to the nature of the offense with which he stands charged.’ There is no simple or mechanical rule as to how the court is to determine defendant’s understanding of the charge. Some defendants are more sophisticated than others and some charges are more difficult to understand than others.” (Footnotes omitted.) 1 Wright, Federal Practice and Procedure: Criminal 2d § 173 at 587-88 (1982).

The first-degree sexual assault statute under which appellant was charged provides:

“(a) Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if:

9fC * ⅛ * ⅛ ‡

“(iii) The victim is physically helpless, and the actor knows or reasonably should know [that] the victim is physically helpless and [that] the victim has not consented.” Section 6 — 2—302(a)(iii), W.S. 1977.

At the plea hearing in this case, the information was read to appellant; and the trial court asked if he knew that the elements of the offense were that “first, the offense occurred on or about the 5th of December, 1985, in Natrona County, Wyoming, second, that you did unlawfully inflict sexual intrusion upon a victim, third, that at the time the victim was physically helpless, fourth, that you knew or should have known that the victim was helpless and had not consented?” The question contains all of the elements of the crime charged as set out in the information. The appellant responded, “Yes, Your Honor.” The trial judge then asked him if he had committed the act charged, framing the question in the same language as the information. The appellant again answered yes.

Appellant contends that the court did not sufficiently inform him of the elements of the crime that the State must prove and that he should also have been informed that first-degree sexual assault was a specific intent crime, requiring that the intrusion be with a criminal intent to sexually arouse, gratify or abuse. He denies that he intended to sexually hurt the baby or that criminal intent or purpose existed. Appellant claims that first-degree sexual assault cannot occur if a sexual purpose is absent.

Appellant admitted that he committed sexual intrusion on a helpless victim. The only question remaining is whether the court, under Rule 15, supra, must inform appellant of the definition of sexual intrusion under § 6-2-301(a)(vii)(A), W.S.1977:

“(A) Any intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue or penis, into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse." (Emphasis added.)

Appellant claims that sexual gratification is an element of the crime of first-degree sexual assault, in that the perpetrator must have intended to be sexually gratified. Sexual assault statutes are intended to punish the actor because he has violated the person of the victim, not because he has become aroused or gratified or attempted to satisfy his sexual desires. Hamill v. State, Wyo., 602 P.2d 1212 (1979). Section 6-2-301, supra, provides that the intrusion be “for the purposes of sexual arousal, gratification or abuse.” (Emphasis added.) In this case, we obviously are talking about sexual abuse. The first-degree sexual assault statute does not require that appellant intend that his assault be for sexual abuse but instead that the facts and circumstances surrounding the incident can be reasonably construed as being for the purpose of sexual abuse. If the facts and circumstances of the offense presented at the plea hearing can reasonably be construed to be for sexual abuse, that is sufficient although the actor’s subjective intent may, according to his statement, have been something else.

In Watt v. State, 222 Ark. 483, 261 S.W.2d 544 (1953), the court held that insertion of a man’s finger into the vagina of a 7-year-old girl constituted sexual abuse. Lee v. State, 246 Ala. 69, 18 So.2d 706 (1944), defines sexual abuse as injury to the sex organs of a female. Ard v. State, 57 Ala.App. 250, 327 So.2d 745 (1976), goes further, saying that any injury to the private parts of a girl is abuse — even without evidence of bruising, cuts or lacerations. In Matter of Adoption of RHA, Wyo., 702 P.2d 1259 (1985), this court held that incest with a 12-year-old girl was abuse. In that case, sexual intercourse occurred but there were no physical injuries. If intercourse with a 12-year old is abuse, surely physical damage to the genitals of a ten-month-old child could reasonably be construed as sexual abuse. The trial court could reasonably have concluded upon the facts of this case that in venting his anger and frustration upon this helpless child so as to injure and tear her vaginal and anal openings, appellant’s purpose was sexual abuse.

First-degree sexual assault is a general intent crime. In determining whether a factual basis exists for a guilty plea to a general intent crime, the court must only find that the act was done voluntarily. “ ‘[T]he inference thereupon arises that the defendant intended that which resulted.’ ” Slaughter v. State, Wyo., 629 P.2d 481, 483-484 (1981), quoting Dorador v. State, Wyo., 573 P.2d 839, 843 (1978).

“[Wjhere the offense is malum prohibi-tum, intent and knowledge are not elements of the crime, unless expressly made so, and all that is required for the commission of the crime is the intentional doing of the prohibited act itself, regardless of whether the doer intended to commit the crime resulting from the intentional act.” (Footnotes omitted.) 22 C.J. S. Criminal Law, § 30, p. 105.

In Armijo v. State, Wyo., 678 P.2d 864 (1984), the appellant admitted that he voluntarily became intoxicated and caused the victim’s death. The court held that the State did not have to prove that the defendant intended harm to the victim at the time he drank but only that the acts which established the offense were voluntary.

“A general intent crime requires only that the prohibited conduct be undertaken voluntarily.” Id. at 869.

In Sanchez v. State, Wyo., 567 P.2d 270 (1977), the court held that under the previous statute, § 6-63, W.S.1957, Cum.Supp. 1975, rape was a general intent crime and “ ‘no intent is requisite other than that evidenced by the doing of the acts constituting the offense charged.’ ” Id. at 275 quoting Rhodes v. State, Wyo., 462 P.2d 722, 727 (1969). By contrast, the court stated that attempted rape was a specific intent crime which required proof of intent.

In 1977, the Wyoming legislature revised the rape statute to provide four degrees of sexual assault, each with different elements and different penalties. If the legislature had intended first-degree sexual assault to be a specific intent crime, it could have revised the statute to specifically so provide. Instead, the legislature omitted intent as an element, requiring only that a transgressor’s acts be reasonably construed as for the purpose of abuse or gratification, thus leaving first-degree sexual assault as a general intent crime. We do not share the fear of the dissent that our holding in this case will subject medical practitioners to rape charges. It will not, unless of course intrusion into the genital or anal opening of another person be reasonably construed as for the purpose of sexual arousal, gratification, or abuse. Likewise we do not share the conclusion of the dissent that “reasonably be construed for the purpose of” is the same as an actor’s subjective “intent” to do the act. If the legislature had meant to require that the crime of rape include a subjective intent, it could easily have said so. The dissents would legislate by changing the statute to include specific intent as an element for the crime of rape. We should not, will not, and cannot legislate that change.

In Chavez v. State, Wyo., 601 P.2d 166, 171 (1979), this court stated that “sexual assault offenses require general criminal intent or a mens rea.” In Seeley v. State, Wyo., 715 P.2d 232, 239 (1986), we stated: “Sexual assault in the first-degree is a general intent crime * *

Appellant’s contention that sexual assault is a specific intent crime is clearly incorrect. A court is only required to provide information concerning the elements of the crime with which appellant was charged. See Matlock v. State, Wyo., 695 P.2d 635 (1985). It was unnecessary for the court to inform appellant of the law regarding specific intent when specific intent was not an element of the crime.

Affirmed.

URBIGKIT, J., filed a dissenting opinion in which MACY, J., joined.

MACY, J., filed a dissenting opinion in which URBIGKIT, J., joined.