State v. La Mountain

611 P.2d 551, 125 Ariz. 547, 1980 Ariz. LEXIS 212
CourtArizona Supreme Court
DecidedApril 29, 1980
Docket4895
StatusPublished
Cited by43 cases

This text of 611 P.2d 551 (State v. La Mountain) is published on Counsel Stack Legal Research, covering Arizona Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. La Mountain, 611 P.2d 551, 125 Ariz. 547, 1980 Ariz. LEXIS 212 (Ark. 1980).

Opinions

CAMERON, Justice.

This is an appeal from jury verdicts and' judgments of guilt, of the crimes of first degree rape, A.R.S. §§ 13-611(A), -614(A); lewd and lascivious acts, § 13-652; and attempted lewd and lascivious acts, §§ 13-108, -109, -110 and 13-652.1 Defendant was sentenced to not less than thirty-five nor more than forty years for the rape; four to five years for the crime of lewd and lascivious acts; and one to two and one-half years for the crime of attempted lewd and lascivious acts, all to run concurrently. We take jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.

We must answer four questions on appeal:

1. Was it error to allow testimony of a small folding knife found in the pocket of the defendant when the knife could not be produced at the time of the trial?
2. Was it error to introduce evidence of prior bad acts?
3. Was the identification of defendant as to his prior bad acts tainted by hypnosis?
4. Was the sentence excessive?

The facts necessary for a determination of this matter on appeal are as follows. At approximately 12:15 a.m. on the morning of 8 November 1977, the victim drove to a [549]*549laundromat at 1424 North 32nd Street in Phoenix, Arizona, to do her laundry. While she was there, the defendant entered and walked to the back of the laundromat and looked inside the small rest room. He then walked back to the front of the laundromat and stood there looking around. The victim asked him if he had lost anything, and he said “no,” and that he was waiting for a friend. He then left. A short time later he returned. While the victim was sorting her laundry, the defendant lunged at her. She screamed and started toward the door. Defendant grabbed her arm, put his hand over her mouth and told her that all he wanted was her panties. He forced her to the back of the laundromat, pushed her through the door of the rest room and against the wall. The victim started to scream again, and the defendant again placed his hand over her mouth and told her to be quiet or he would punch her. He then reiterated his demand that she give him her panties, saying that’s all he wanted. She offered to give him a pair of panties out of her laundry, but defendant indicated he wanted “fresh panties.” The victim again screamed, and defendant again put his hand over her mouth. He told her he was going to punch her, made a motion toward his pocket, and said, “I have something I can really hurt you with. I can hurt you permanently.” The victim could not see the bulge of a gun in his pocket, so she thought he might be referring to a concealed knife or possibly acid. She indicated she would cooperate and give him her panties. She then took off her boots and jeans and unsnapped her body stocking. Defendant pulled her panties off her. He placed them up to his nose and started smelling them. The victim started to get dressed again, and the defendant told her to stop. He turned her around, shoved her into the corner, and placed his tongue in her anal area. He then turned her back around and tried to stick his erect penis in her mouth. She refused, but he did touch her on the lips, face and nose. Defendant then forced her to the floor, pulled down his pants, and proceeded to have intercourse.

Meanwhile, the police had been alerted by a person who had come into the laundromat and had heard the victim’s screams. The police arrived shortly after being called. They testified they had heard the victim’s screams and prepared to kick the door open, when it was opened and the victim came running out, naked from the waist down. Defendant was standing on the edge of the toilet trying to get through a small window. The officers found a pair of green and white women’s panties in his pocket. These panties did not belong to the victim. The officers also found a small pocket knife in the defendant’s pocket. The defendant was wearing ladies’ panties at the time of his arrest.

During trial, another woman testified that over a year before the offense in question, she had been grabbed in the same laundromat by a person fitting the defendant’s description. As in the case in question, the assailant asked for her panties and told her that was all he wanted, and he would not hurt her. This witness was unable to identify the defendant in a photographic lineup. After two sessions of hypnosis, she selected the defendant’s picture from the photographic lineup and later made an in-court identification of the defendant. Two other people, who had chased the defendant at this earlier incident and detained him for a short time after he had attempted to assault the witness, were able to pick defendant’s picture out of the photographic lineup, one after having been hypnotized. All these people identified the defendant in court.

After a mistrial, the defendant was retried, convicted, adjudged guilty, and sentenced from which he brings this appeal.

EVIDENCE OF THE KNIFE

Prior to trial, a motion in limine was made to suppress any evidence concerning the knife. The evidence indicated the knife had been taken from the defendant, but had been lost by the authorities and could not be produced for trial.

It was apparent from her testimony that the victim felt her life was in danger and [550]*550the defendant was going to harm her. She testified that in the course of the rape, the defendant had motioned toward his pocket and told her he had something on him that would really hurt her and that he would use it. The victim testified that she felt defendant had a knife on his person. The trial court denied the defendant’s motion and held that evidence regarding the knife was admissible because it shed light on the defendant’s state of mind.

Rule 402 of the Arizona Rules of Evidence, 17A A.R.S., provides that all relevant evidence is admissible at trial:

“Evidence is relevant if it has any basis in reason to prove a material fact in issue or if it tends to cast light on the crime charged.” State v. Moss, 119 Ariz. 4, 5, 579 P.2d 42, 43 (1978).

First degree rape as defined in A.R.S. § 13-611(A) is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, either through force or violence, or fear of great bodily harm, with the apparent ability to do such harm. The presence of the knife was relevant to the victim’s fear of the defendant. The knife had a bearing on the factual issue and was material. State v. Flynn, 109 Ariz. 545, 514 P.2d 466 (1973).

The motion in limine was properly denied. The fact that the knife was unavailable for presentation to the jury did not prevent testimony concerning the existence of the knife. State v. Soloman, 125 Ariz. 18, 607 P.2d 1 (1980).

EVIDENCE OF PRIOR BAD ACTS

Rule 404(b), Arizona Rules of Evidence, 17A A.R.S., provides as follows:

“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.

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Cite This Page — Counsel Stack

Bluebook (online)
611 P.2d 551, 125 Ariz. 547, 1980 Ariz. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-la-mountain-ariz-1980.