McArtor v. State

ROONEY, Justice.

Appellant appeals from a conviction, after a trial to the court, of taking indecent liberties with a minor in violation of § 14-3-105, W.S.1977. Appellant was originally charged with several counts of indecent liberties, based on more recent alleged acts, but all charges except one were either dismissed, or appellant was found not guilty at trial. That count, upon which appellant was found guilty and sentenced to not less than one nor more than two years, concerned an act with a sixteen-year-old girl, in June of 1977; she testified that she and appellant engaged in consensual sexual intercourse.

Appellant raises two issues on appeal. First, appellant contends that there was insufficient evidence to support a finding that the incident occurred in Natrona County. Second, appellant contends that the trial court erred in determining that the appellant could be charged and convicted under § 14-3-105 because: (a) “child” as used in § 14-3-105 is a person under the age of sixteen; (b) criminal statutes should be strictly construed and any ambiguity resolved in favor of the appellant; (c) § 14-3-105 has been impliedly repealed by § 6-2-304, W.S.1977; and (d) § 6-2-304 is the more specific statute of the two, and a *290general statute must give way to a more specific statute on the same subject.

We affirm.

STATUTORY BACKGROUND

A review of the background of the two statutes is in order inasmuch as the issues involve alleged statutory inconsistencies; inasmuch as the pertinent law is that which was in effect at the time of the incident which occurred several years ago, in June of 1977; and inasmuch as legislative history is often determinative of legislative intent. State v. Stovall, Wyo., 648 P.2d 543 (1982); Padilla v. State, Wyo., 601 P.2d 189 (1979); Town of Clearmont v. State Highway Commission, Wyo., 357 P.2d 470 (1960).

Section 14-3-105, W.S.1977, now in effect and in effect since January 1, 1979, reads:

“Any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony, and upon conviction shall be fined not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years, or both.”

It was enacted as part of Chapter 25, Session Laws of Wyoming, 1978. The same enactment recited that:

“Upon becoming nineteen (19) years of age, an individual reaches the age of majority * * Section 14-1-101, W.S. 1977.

The indecent liberties statute in effect when the incident occurred for which appellant was convicted, in June of 1977, read:

“It shall be unlawful for any person, including but not limited to parent, guardian or custodian knowingly to take immodest, immoral or indecent liberties with any such child or knowingly to cause or encourage any such child to cause or encourage another child to commit with him or her any immoral or indecent act.
“Any person who shall violate the provisions of this section shall be deemed guilty of a felony and upon conviction thereof shall be fined in any sum not less than one hundred dollars ($100.00) nor more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not to exceed ten (10) years, or by both such fine and imprisonment.”

It was codified as § 14-28, W.S.1957, and enacted by § 8, Ch. 220, Session Laws of Wyoming, 1957 (Child Protection Act). The present statute omits specific reference to parents, guardians or custodians and it omits the word “such” modifying child. Section 7, the immediately preceding section of the Child Protection Act, made it a crime to solicit, procure or otherwise knowingly encourage “any female under the age of eighteen years to engage in illicit sexual intercourse.”1 Accordingly, the words “any such child” in § 8 describe a “female under the age of eighteen years.” The accepted rule of construction is that “such” refers to the character of that which immediately precedes it unless a contrary legislative intent is evidenced. Elementary School Districts 2, 3, and 10 of Campbell County v. District Boundary Board of Campbell County, Wyo., 454 P.2d 237 (1969); In re Tidball, 40 F.2d 560 (D.C.Wyo.1930). Inasmuch as the last antecedent to “such” child in § 8 of the Act is a “female under the age of eighteen years” in § 7 thereof, the legislative intent was obviously to have § 8 pertain to an age under eighteen years. Chapter 70, § 2, Session Laws of Wyoming, 1977, amended § 7 to make one guilty of a felony who solicits for, procures for, or knowingly encourages anyone “under the age of sixteen years to engage in illicit sexual penetration or sexual intrusion.” Section 8 was not *291then amended or included in Chapter 70 and, thus, remained as enacted in 1957 with “any such child” referring to a “female under the age of eighteen years.”

The sexual assault statute in effect at the time of this incident was enacted in 1977 as part of Chapter 70 of the Session Laws of Wyoming, 1977, with an effective date of May 27, 1977 — the month previous to that in which this incident occurred. It was originally codified as § 6-63.5 in W.S. 1957, and it read:

“An actor who is at least four (4) years older than the victim and who inflicts sexual penetration or sexual intrusion on a victim under the age of sixteen (16) years is guilty of sexual assault in the fourth degree.”

The penalty was fixed at imprisonment in the county jail for not more than one (1) year or, if previously convicted of a similar crime, at not less than one (1) nor more than five (5) years. Sexual intrusion and sexual penetration were defined to include that which was testified to by the victim in this case.

This section was slightly modified in 1982 and was numbered as § 6-2-304, W.S.1977. It was again amended in 1984 to read:

“(a) Except under circumstances constituting a violation of W.S. 14-3-105, an actor commits sexual assault in the third degree if:
“(i) The actor is at least four (4) years older than the victim and who inflicts sexual intrusion on a victim under the age of sixteen (16) years; or
“(ii) The actor is an adult and subjects a victim under the age of twelve (12) years to sexual contact without inflicting sexu- ' al intrusion on the victim and without causing serious bodily injury to the victim.” (Emphasis added.) Session Laws of Wyoming, 1984, Ch. 44, § 2.

Although not presented as an issue in this case, the fact that the statute cited in the information was not a statute in existence at the time of the incident is not reversible error in this instance inasmuch as the indecent liberties statute cited (§ 14-3-105, W.S.1977) is very similar to the indecent liberties statute in effect at the time of the incident (§ 14-28, W.S.1957); inasmuch as the offense was otherwise sufficiently described to identify the statute alleged to have been violated; and inasmuch as appellant was not misled to his prejudice.

“ * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. Error in the citation or its omission or any other defect or imperfection which does not tend to prejudice any substantial right of the defendant upon the merits or to mislead the defendant to his prejudice shall not be grounds for dismissal of the indictment or information or for a reversal of a conviction. * * * ” Rule 9(a), W.R.Cr.P.

See United States v. Wagstaff, 572 F.2d 270 (10th Cir.1978), and Sonnier v. United States, 314 F.2d 69 (4th Cir.1963).

SUFFICIENCY OF THE EVIDENCE

The victim twice testified that she was in Natrona County when the incident occurred. On cross-examination, her credibility was brought into question by her uncertainty as to the exact location of the county line. But the trier of fact gauged her credibility and made a determination that the incident occurred in Natrona County. This finding of venue was made on sufficient evidence. Brown v. State, Wyo., 581 P.2d 189 (1978). The trier of fact is the sole judge of the credibility of witnesses. McCormick v. Sewell, Wyo., 372 P.2d 481 (1962); Stock v. Roebling, Wyo., 459 P.2d 780 (1969). On appeal, we do not evaluate the evidence but only ascertain whether or not there was substantial evidence upon which the trier of fact made a finding. Culver v. Sekulich, 80 Wyo. 437, 344 P.2d 146 (1959). As often said, we accept as true the evidence of the successful party, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give the evidence of the successful party every favorable inference *292which may fairly and reasonably be drawn therefrom. Farella v. Rumney, Wyo., 649 P.2d 185 (1982); Foster Lumber Company, Inc. v. Hume, Wyo., 645 P.2d 1176 (1982); Distad v. Cubin, Wyo., 633 P.2d 167 (1981). We will not disturb the finding of the trial court that venue was in Natrona County.

CONVICTION UNDER SECTION 14-3-105, W.S.1977 (SECTION 14-28, W.S.1957)

As noted supra, appellant contends that he was improperly charged and convicted under § 14-3-105, W.S.1977, for any one of four reasons:

(a) Appellant contends that the victim was over the age of sixteen and thus was not a “child” as the term was used in § 14-3-105, W.S.1977 (§ 14-28, W.S.1957).

The prime objective in construing a statute is ascertainment of legislative intent. Sanches v. Sanches, Wyo., 626 P.2d 61 (1981); State ex rel. R.R. Crow & Company v. Copenhaver, 64 Wyo. 1, 184 P.2d 594 (1947). Words of a statute are to be given their plain and ordinary meaning; and, if there is no ambiguity in the expression of intent, we cannot look for or impose a different meaning. Hayes v. State, Wyo., 599 P.2d 558 (1979); Oroz v. Hayes, Wyo., 598 P.2d 432 (1979); Sanchez v. State, Wyo., 567 P.2d 270 (1977).

As noted supra, the words “such child” in § 14-28, W.S.1957, referred to the immediately preceding characterization of a child, to-wit, one “under the age of eighteen years.” The victim in this case was under eighteen years of age and the statute cannot be said to be inapplicable on the basis that she did not qualify under the age requirement.

(b) Appellant contends that the use of the word “such” in § 14-3-105, W.S.1977 (§ 14-28, W.S.1957) resulted in an ambiguity, and that the ambiguity should be resolved in his favor inasmuch as the statute is a criminal one.

An ambiguous statute is one which is uncertain and susceptible to more than one meaning. Attletweedt v. State, Wyo., 684 P.2d 812 (1984); DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977); Natrona County v. Casper Air Service, Wyo., 536 P.2d 142 (1975). Ambiguity exists when a word or a group of words in a statute is susceptible to more than one meaning. Matter of Reed’s Estate, Wyo., 672 P.2d 829 (1983); State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of Albany County, Wyo., 592 P.2d 1154 (1979).

When the accepted rule of construction relative to the word “such” having reference to the last antecedent to that which “such” modifies is applied, there is no ambiguity in this statute. It can be understood in only one way; it is definite in expression; it has but a single meaning, and that meaning is not uncertain. The legislative intent is plain. The pertinent age was set at under eighteen years.

(c)Appellant contends that § 14-3-105, W.S.1977 (§ 14-28, W.S.1957), has been impliedly repealed by § 6-2-304, W.S.1977 (§ 6-63.5, W.S.1957).

We said in Nehring v. Russell, Wyo., 582 P.2d 67, 73 (1978):

“Repeals by implication are not favored, [citations] and while such implicit repeals have at times been found, [citations] the party so asserting bears ‘the burden of demonstrating beyond question that the legislative body by its later action evinced an unequivocal purpose of effecting a repeal.’ [Citation.] What must be shown is that the latter statute is so repugnant to the earlier one that the two cannot stand together, or that the whole subject of the earlier statute is covered by the latter one having the same object, clearly intending to prescribe the only rules applicable to the subject.” (Emphasis added.)

Not only was such an intent not clearly intended, but the contrary intent was clearly evidenced in more than one way. After enactment of § 6-63.5, W.S.1957 (§ 6-2-304, W.S.1977), the wording in § 14-3-105, W.S.1977 (§ 14-28, W.S.1957) was amended. Such would not happen if it had been *293impliedly repealed at an earlier time. Additionally, when § 6-63.5 (§ 6-2-304) was enacted, a specific repealer section was included in the act. It did not repeal § 14-3-105 (§ 14-28). Not only did it not repeal such section, but it made specific reference to the continued existence of § 14-28 in setting forth the procedure to be followed after a defendant is convicted or pleads guilty to a sexual offense. Chapter 70, Session Laws of Wyoming, 1977, in addition to enacting that originally codified as § 6-63.5, W.S.1957, enacted that which was codified as § 7-348(a), W.S.1957, to read:

“The court shall proceed as provided in subsection (b) of this section whenever any person is convicted of or pleads guilty to sexual assault, W.S. 6-63.2 through 6-63.5, attempted sexual assault, W.S. 6-64, incest, W.S. 6-85, taking immodest, immoral or indecent liberties with any child under eighteen (18) years of age, or knowingly committing any immoral, indecent, or obscene act in the presence of any child under eighteen (18) years of age and causing or encouraging any child under eighteen (18) years of age to cause or encourage any other child to commit or attempt to commit with the person convicted, any immoral or indecent act, W.S. 14-7 and 14-28, and accosting, annoying or molesting any child under the age of eighteen (18) years, with intent to commit any unlawful act, W.S. 14-25.”

Both the statute under which appellant was convicted (§ 14-28) and the one (§ 6-63.5) which appellant contends impliedly repealed the one under which he was convicted are contained in this section. This would not be if the intention of the legislature was to impliedly repeal § 14-28.

The legislative intent to maintain the existence of the indecent liberties statute, § 14-3-105, in spite of the enactment of § 6-2-304, was manifested and specifically stated when § 6-2-304 was amended in 1984 to begin: “Except under circumstances constituting a violation of W.S. 14-3-105 .” The legislature never intended to repeal, by implication or otherwise, § 14-3-105 (§ 14-28).

(d) Appellant contends that the provisions of § 6-2-304, W.S.1977 (§ 6-63.5, W.S.1957) should control over § 14-3-105, W.S.1977 (§ 14-28, W.S.1957) because it is the more specific of the two and they both cover the same subject.

We have often stated that a special statute will govern where a general statute is inconsistent with a special statute pertaining to the same subject matter. City of Rock Springs v. Police Protection Association, Wyo., 610 P.2d 975 (1980); Department of Revenue and Taxation v. Irvine, Wyo., 589 P.2d 1295 (1979); Thomas v. State, Wyo., 562 P.2d 1287 (1977). However, appellant has not furnished us with any authority reflecting support for application of such rule to this instance. And it must be remembered that such is a rule of construction to which resort is had, as with all other rules of construction, only for the purpose of ascertaining legislative intent. Wyoming State Department of Education v. Barber, Wyo., 649 P.2d 681 (1982); Houghton Brothers v. Yocum, 40 Wyo. 57, 274 P. 10 (1929). In this instance, the legislative intent to continue the operative functions of § 14-3-105 (§ 14-28) was manifested as noted supra. The propriety of applying any rule of construction to further ascertain legislative intent would seem to be futile.

Beyond that, it is not immediately discernible as to which of the two statutes is the more specific. Sexual intrusion or penetration is an element of § 6-2-304 (§ 6-63.5) but is not a necessary element of § 14-3-105 (§ 14-28). Although the latter statute (at the time of the incident) is not limited to parents, guardians and custodians, the fact that they are specifically mentioned would indicate an intention to place a special onus on those with supervisory authority over minors — as appellant had over the victim in this case.2 Both statutes involve sexual *294activity, but they are not mutually exclusive. It is not uncommon for two valid statutes to prohibit the same type of conduct, or for the prosecutor to decide under which statute to charge a defendant. Jerskey v. State, Wyo., 546 P.2d 173 (1976); State v. Grider, 74 Wyo. 88, 288 P.2d 766 (1955); see Rules 11 and 12, W.R.Cr.P.

This is not an issue of double jeopardy. Appellant was not charged with violation of both statutes. He has not been given multiple sentences for the same act. Loddy v. State, Wyo., 502 P.2d 194 (1972). See Marshall v. State, Wyo., 646 P.2d 795 (1982).

With reference to the discussion in the dissenting opinion concerning age differential, § 6-2-304 (§ 6-63.5) is seriously flawed. Whether denominated rape or sexual assault, the crime established by the act of which the statute is a part is premised on infliction of sexual activity on a victim through use of force or by virtue of a substitute for force. Wilson v. State, Wyo., 655 P.2d 1246 (1982); Tryon v. State, Wyo., 567 P.2d 290 (1977); Gonzales v. State, Wyo., 516 P.2d 592 (1973). Historically, the several jurisdictions have fixed an age by statute below which a victim could not give an informed consent, which fact would be one of the substitutes for force. In other words, the age under which one could not give valid consent to sexual activity is a substitute for force. Ross v. State, 16 Wyo. 285, 93 P. 299, reh. denied 94 P. 217 (1907).

Section 6-2-304 (§ 6-63.5) sets this age at under sixteen. However, it also provides that the victim has the ability to give a consent which will be valid if the actor is no more than four years older than the victim. This is an inconsistency and is not rational. If one is too young to give a valid consent to sexual activity with a person five years older than she, how can she not be too young to do so when the sexual activity is by a person three years older than she? In other words, if the ability to give a valid consent is lacking because of the age of the victim, the ability is lacking regardless of the age of the actor, or regardless of any other exterior factor. The inability to give consent is a substitute for force in the elements of the crime. Simply because the actor is of a designated age, or has blue eyes, or has any other characteristic does not change the mental ability of the victim to be informed as to the full import of her consent if age makes the inability to consent a substitute for force. It does so regardless of the age or other characteristic of the actor. In this respect the statute is internally inconsistent and irrational. It cannot be said to set forth a usable criminal violation more specific than does the indecent liberties statute.

Affirmed.

. Preceding sections of the Act prohibited other actions jeopardizing the morals, health or welfare of children under the age of eighteen in one section and under the age of nineteen in three sections. The Act did not designate a child by any other age.

. Appellant was a law enforcement officer in charge of the Sheriff's Office Cadet Program; the victim was a cadet in this program. The incident for which appellant was convicted oc*294curred while the appellant and victim were on patrol.