People v. Nemie

87 Cal. App. 3d 926, 151 Cal. Rptr. 32, 1978 Cal. App. LEXIS 2245

• Court: California Court of Appeal
• Decided: November 29, 1978
• Docket: Crim. 9669
• Status: Published

Opinions

Opinion

EVANS, J.

Defendant appeals from a judgment entered after a jury found him guilty of forcible rape. (Pen. Code, § 261, subd. 2.)

At approximately 10:20 p.m. on September 20, 1977, Vickie A., a 17-year-old girl, was struck from behind as she was walking on Swain Road in Stockton. She was then hit in the mouth and knocked to the ground. She was helped up and told that if she did not do as the person wanted, he would kill her. A witness observed the attack on Vickie and called the sheriff’s department.

Vickie was led to the back of a church where her assailant ordered her to put her shirt over her head and to take off her pants; he then forced her to the ground and removed her panties. She testified that after hearing the sound of a belt and a zipper, her attacker got on top of her and placed his penis in her. She was told to put her legs in the air and to keep her knees up before the person got on top of her. She could feel his shirt against her stomach while he was on top of her for a minute or two. He abruptly got up, and she heard: “ ‘Sheriff’s Department. Freeze.’ ”

Officers McKee and Tumbeaugh responded to the church at approximately 10:30 p.m. and observed a person lying on the ground and another approximately 12 feet away running; he ordered the subject to halt and identified himself as a sheriff’s deputy. McKee chased the fleeing culprit; and when he was apprehended, he was wearing only a T-shirt, was nude from the waist down, and his penis was semi-erect.

Before either officer asked any questions, defendant stated that he had not raped anyone and that the victim was his girl friend. When asked, he could not remember her name. At the sheriff’s office, the defendant was advised of his constitutional rights and stated: “ ‘She is my girl friend, Man. She just doesn’t want her parents to find out we have been making love. Fucking women are all alike. I’ve had it with them.’ ”

At the scene of the attack when questioned by Officer Tumbeaugh, Vickie A. stated that she did not know whether she had been penetrated by a finger or a penis. However, later at the hospital, Vickie told a female deputy that penetration had been accomplished by a penis. She also told the deputy that defendant told her not to tell anybody that she had been “fucked.”

There was evidence that Vickie’s vagina had been lacerated by a blunt object; the medical testimony was that it could have been caused by a finger or a penis. Physical examination by a resident gynecologist at the hospital failed to disclose semen in or on Vickie. However, the doctor concluded from other physical evidence that she had had intercourse against her will.

The doctor testified that in rape cases, semen is found in the victim in less than 50 percent of the cases.

Defendant’s sole contention is that the court committed reversible error when his motion for a hearing out of the juiy’s presence to determine whether “the complaining witness has not had sufficient prior sexual experience to be capable of possessing the requisite knowledge whether a sexual penetration did in fact occur, ...” was denied. Defendant failed to make an offer of proof as to the materiality of his attempted inquiry into the victim’s prior sexual history. Curtailment of this line of questions relating to the sexual experience of the victim, absent an offer of proof, was not error. (See Evid. Code, § 1103, subd. (2). See also People v. Coleman (1970) 8 Cal.App.3d 722, 730-731 [87 Cal.Rptr. 554].) There was no showing that prior sexual experience is necessary for a rape victim to know what type of object penetrated her vagina; lack of sexual experience by the victim would not necessarily be probative. (See People v. Fritts (1977) 72 Cal.App.3d 319, 326 [140 Cal.Rptr. 94].) The trial court properly exercised its discretion under Evidence Code section 352. Moreover, if the denial of the motion was error, such error was not prejudicial. The evidence produced at trial (Vickie’s testimony that she was pushed to the ground and heard a belt and zipper, that her assailant got on top of her and told her to put her legs in the air and to keep her knees up, and that she felt a shirt against her belly; the officer’s testimony that defendant was nude from the waist down when apprehended and that his penis was semi-erect; and the defendant’s volunteered statements and his inability to identify his girl friend, as well as his flight) indicated it to be reasonably improbable that a more favorable verdict to defendant would have resulted had exploration of Vickie’s prior sexual experience been permitted. {People v. Watson (1956) 46 Cal.2d 818, 836-837 [299 P.2d 243]; see People v. Minkowski (1962) 204 Cal.App.2d 832, 842-843 [23 Cal.Rptr. 92].)

The judgment is affirmed.

Janes, J., concurred.