Stinehart v. State

727 P.2d 1010, 1986 Wyo. LEXIS 637
CourtWyoming Supreme Court
DecidedNovember 10, 1986
DocketNo. 86-128
StatusPublished
Cited by6 cases

This text of 727 P.2d 1010 (Stinehart v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stinehart v. State, 727 P.2d 1010, 1986 Wyo. LEXIS 637 (Wyo. 1986).

Opinions

MACY, Justice.

Appellant Tom Loren Stinehart was found guilty by a jury of kidnapping, in violation of § 6-2-201(a)(ii), W.S.1977, and first-degree sexual assault, in violation of § 6-2-302(a)(i), W.S.1977. He was sentenced to concurrent terms in the Wyoming State Penitentiary of three to six years on the first count and five to ten years on the second count.

We affirm.

On appeal, appellant raises the following two issues:

“Issue I
“Whether the trial court committed reversible error by refusing to admit into evidence the complaining witness’ prior statement.
“Issue II
“Whether the district court abused its sentencing discretion when it ordered Appellant incarcerated for three to six years on Count I and five to ten years on Count II with the sentences to run concurrently and credit for time served (21 days) only as to the maximum term.”

On September 17, 1985, between ten and eleven a.m., appellant went to the Red Wood Tavern in Cheyenne, Wyoming, where he met Craig Rodgers. Several hours and several drinks later, the two men walked to the Pub where they continued to drink and discussed “getting a lady.” At approximately seven p.m., a young woman arrived at the Pub for a drink and a game of pool with friends. When she left the bar a few hours later, appellant and Rodgers were standing outside in the parking lot. The woman walked past the men to her pickup truck. As she searched her purse for her keys, the two men came up behind her. Rodgers grabbed her around the neck, held a knife to her back, and demanded her keys. He told her to open the door and get into the truck. He climbed into the driver’s seat next to her, and appellant got in on the passenger’s side. Rodgers drove the pickup to a remote area east of Cheyenne, stopped, and told the woman to get undressed. Appellant and Rodgers argued about “who was going to go first.” Appellant prevailed, and Rodgers got out of the truck. Appellant then pushed the woman down on the seat and sexually assaulted her. After several minutes, Rodgers began yelling for his turn. He yanked open the door and told appellant to get out of the truck. Appellant protested that he was “ ‘not finished yet’ ” but got out of the [1012]*1012truck. Rodgers climbed in with the woman, but appellant said something which angered him so he climbed back out of the truck and began arguing with appellant. The woman locked the doors, found her second set of keys, started the truck, and drove away.

On September 20, 1985, a complaint was filed charging appellant with kidnapping and first-degree sexual assault. After trial to a jury, appellant was convicted on both counts. Rodgers pled guilty to charges of kidnapping and attempted first-degree sexual assault.

I

During the trial, appellant attempted to impeach the credibility of the victim by using a statement she made to a deputy sheriff shortly after the incident on September 18,1985. Relying upon the victim’s original description of what happened, appellant hoped to demonstrate that he did not possess the intent required for commission of the crimes and that he was not a willing participant. After cross-examining the victim, appellant called the deputy who took the statement to testify as to its authenticity. He then offered a transcript of the statement into evidence. The prosecutor objected on the ground that the statement was cumulative. The district court ruled that the statement was not independent evidence and that the victim had already testified. On that basis, the court declined to admit the statement into evidence. Appellant now contends that the district court abused its discretion in excluding the statement.

It is well established that relevant evidence is generally admissible. Kelly v. State, Wyo., 694 P.2d 126 (1985). However, the trial court may, in the exercise of its discretion, exclude relevant evidence in accordance with Rule 403, W.R.E. Jahnke v. State, Wyo., 682 P.2d 991 (1984). Rule 403 provides in pertinent part:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed * * * by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” (Emphasis added.)

In the present case, the statement appellant sought to introduce had been previously used during cross-examination of the victim to elicit the following testimony:

“Q. Do you recall telling Deputy Olsen in your statement[:]
“ ‘He was yelling at [appellant] to get in’— he, being the driver — ‘and he’ — [appellant] —‘didn’t really seem like he particularly wanted to.’
“A. I don’t remember saying that, no.
“Q. You don’t remember telling Deputy Olsen then that the driver then yelled at him, ‘and finally he did come around and get in’?
“A. I don’t remember saying that, no. “Q. You don’t deny that you said it, though?
“A. No, no.
“Q. So at the time it was your statement to Deputy Olsen that the other man, [appellant], didn’t really seem like he particularly wanted to?
“A. I guess. I don’t understand your question.
“Q. Well, at the time you talked to Deputy Olsen September — the early morning of September 18th, you told Deputy Olsen that [appellant] didn’t really seem like he wanted to get into the truck.
“A. It could be that’s in there, yes.
* * * * * *
“Q. Do you remember in your statement to Deputy Olsen on the 18th, * * * [y]ou told Deputy Olsen that: ‘[Appellant] kept saying, “it’s okay, it’s okay, just calm down.” He was saying that to the other guy that was driving and stuff. I really think he didn’t go along with it, didn’t exactly agree with it.' Do you recall ever saying that portion?
“A. I don’t, so I really don’t know.
“Q. You don’t recall saying — telling Deputy Olsen, ‘I didn’t really think [appellant] agreed with it,’ and you didn’t believe that he went along with it?
[1013]*1013“A. That’s correct.
“Q. And Deputy Olsen asked you, didn’t he, to clarify it? ‘This would be [appellant]?’ And you said, ‘Yes. He didn’t really know what to do. Obviously, he went along with it, but he was not angered like the driver was.’ Do you remember telling Deputy Olsen that [appellant] didn’t really know what to do?
“A. No, I do not.
“Q. But you don’t disagree with me that you told Deputy Olsen that?
“A. No.
******
“Q. Did [appellant] yell at you and threaten you?
“A. He did not yell at me.
“Q. Did he tell you to take your clothes off?
“A. Yes, he did.
“Q.

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Bluebook (online)
727 P.2d 1010, 1986 Wyo. LEXIS 637, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stinehart-v-state-wyo-1986.