State v. Pratt

475 P.2d 1013, 25 Utah 2d 76, 1970 Utah LEXIS 554

• Court: Utah Supreme Court
• Decided: October 22, 1970
• Docket: No. 12061
• Status: Published

Opinions

TUCKETT, Justice:

The defendant was charged in the Juvenile Court of Davis County with the offense of contributing to the delinquency of one Nelda Pratt, the defendant’s half sister, in that he caused Nelda to pose nude in a lewd and suggestive manner and taking photographic pictures at such time.

The defendant entered a plea of not guilty and a trial was had before the court sitting without a jury on the 28th day of January, 1970, March 18, and March 25, 1970.

The facts developed during the course of the trial were to the effect that on August 1, 1969, Nelda Pratt, then under the age of 18 years, was invited to the home of the defendant in Woods Cross by the defendant’s wife, Lavonne Pratt. During the course of the evening Nelda had several drinks containing alcohol, and it was suggested by Lavonne that Nelda pose in the nude so that photographs could be taken. Photographs were taken by one Harold Zesiger who was also charged with an offense similar to the one we are here concerned with. Zesiger was called as a witness by the State and he testified that on August 1, 1969, he was at the home of the defendant and that he took certain photographs of Nelda, and that he was assisted by the defendant and the defendant’s wife, Lavonne Pratt. The witness also testified that the picture taking occurred between the hours of 8:00 and 10 :00 o’clock p. m. on the day in question.

The defendant testified that on the day in question, August 1, 1969, he reported to his place of employment in Salt Lake City at 4:00 o’clock in the afternoon and worked until 2:00 o’clock on the following morning. He further testified that he arrived at his home at approximately 2:20 a. m. and upon entering the living room he was handed a lamp by his wife; that when his wife turned on the lamp, he observed Nelda posing in., the nude, whereupon he left the room. Defendant also testified that he later found the photographs at his residence and delivered them to the police. The superintendent at the defendant’s place of employment and another employee at the plant corroborated the defendant’s testimony as to his whereabouts on the evening of August 1st and the early morning hours of August 2d. The only other witness called by the State who testified as to the occurrences at the home of the defendant on August 1, 1969, was Nelda Pratt. The critical problem in the case as it now stands is whether or not the testimony of Nelda was sufficient corroboration of the testimony of Harold Zesiger, an accomplice. On the first day of the trial Nelda testified in part as follows :

Q. Did anyone assist Harold in taking the pictures ?

A. Lavonne did.

Q. What did she do ?

A. She held the light and she suggested poses and she put down the sheets and everything.

Q. I see. . Did Roy participate in any , regard ?

A'. Well, I’m not sure, really, but I think I saw some other man holding some lights that looked like Roy, hut I’m not sure.

Later during the proceedings Nelda was recalled as a witness and testified as follows :

Q. Alright can you say with any certainty that Roy was present at the time these pictures were, at the time you were posing in this lewd, or in this lewd manner and these pictures were being taken ?

A. No, because there was a light shining in my face and I couldn’t see past the light.

Q. Alright, and when these pictures were taken did Roy cause you to pose in any way?

A. No.

Q. Did he take any pictures of you ?

A. No he didn’t.

Q. And as fare [sic] as you were [tape not clear] [sic] he was not éven present during the time there was this picture taking?

A. As far as what I’ve said yes. . -

Q. Yes what, yes he was or?-

A. Yes, he wasn’t.

The testimony of Nelda taken as a whole, is so self-contradictory, vague and uncertain ¹ that it must be deemed wholly insufficient to corroborate the testimony of Zesiger and to connect defendant with any wrongdoing.² The only other testimony showing the defendant’s presence at' the scene is that of the defendant himself which is to the effect that he appeared upon the scene of Nelda’s posing momentarily and that he left immediately. The defendant’s presence at the scene of a wrongdoing is insufficient to show his guilt beyond a reasonable doubt.

The judgment of the court below is reversed and that court is directed to dismiss the complaint.

CALLISTER, Justice, concurs.

1 . Putnam v. Ind. Com., 80 Utah 187, 14 P.2d 973; Oberg v. Sanders, 111 Utah 507, 518, 184 P.2d 229; Edwards v. Clark, 96 Utah 121, 83 P.2d 1021; Alvarado v. Tucker, 2 Utah 2d 16, 268 P.2d 986.

2 . Section 77-31-18, U.C.A.1953; State v. Vigil, 123 Utah 495, 260 P.2d 539; State v. Sinclair, 15 Utah 2d 162, 389 P.2d 465.