State v. LaMere

DONALDSON, Justice.

The complaining witness, (hereinafter Carol), a fourteen-year-old junior high *841school student, testified that she was babysitting for Rowena St. Mark when Rowena and the appellant, Mr. LaMere, returned early on the morning of October 23, 1978. Mr. LaMere walked Carol the short distance to her home and paid her for babysitting. He then returned to Rowena St. Mark’s apartment.

Shortly after arriving home, Carol climbed out her bedroom window and returned to the apartment. Her reasons for returning and what happened at the apartment are in dispute, but in any event Carol and Mr. LaMere left in Rowena St. Mark’s car to go to a nearby Circle K. Instead of going to the Circle K, the two went to a trailer in Smelterville and joined a group of people. After leaving the trailer, Carol testified that Mr. LaMere parked the car and proceeded against her will to have intercourse. He then drove her home and returned to Rowena St. Mark’s apartment.

Upon arriving home Carol told her mother that she had been raped. The police were called and after talking with Carol and her parents a police officer went to Rowena St. Mark’s apartment and took Mr. LaMere into custody. The appellant was charged with rape under I.C. § 18-6101.

The trial was held on March 5, 1979, and on March 7, 1979, the jury returned a verdict of guilty for the crime of statutory rape under I.C. § lS-eiOlil).1 On March 16,1979, a motion for judgment of acquittal as well as a motion for a new trial were filed on behalf of the defendant. These motions were denied by the court.

After several continuances the defendant was sentenced to an indeterminate period of time not to exceed eight years in the custody of the Idaho State Board of Corrections. The appellant appeals both the conviction and the length of the sentence.

The appellant first alleges that the granting of the State’s motion for leave to file an amended information on the eve of the trial violated the appellant’s right of due process under the United States Constitution as well as his right under I.C. § 19-1420.2 The appellant states that the facts in the information alleged the crime was to come within the purview of I.C. § 18-6101(3) and (4) of the statute, which cover forcible rape, and absolutely no allegations of age were made that could bring the conduct under subsection (1) which prohibits intercourse with a female under eighteen years of age. He argues that prejudicial error occurred because the request to amend the information to include facts alleging what is commonly referred to as statutory rape under subsection (1) came only one working day before the commencement of the trial.

At this stage of the proceeding Rule 7(d) of the Idaho Rules of Criminal Practice and Procedure3 and I.C. § 19-1420 make the *842matter of amending an information discretionary with the judge. In exercising his discretion, the judge must be sure that no substantial rights of the defendant are prejudiced. In absence of a showing of prejudice arising from the amendment, the defendant’s argument is without merit. State v. Owens, 101 Idaho 632, 619 P.2d 787 (1980).

In a similar case, People v. Collins, 54 Cal.2d 57, 4 Cal.Rptr. 158, 351 P.2d 326 (1960), the defendants contended that they could not properly be convicted of statutory rape under an information charging them with forcible rape. Even though the information was never amended in Collins the court still held that there was “no indication whatever that defendants were prejudiced” because at the preliminary hearing it was proved the prosecuting witness was fifteen years of age. Id. 4 Cal.Rptr. at 160, 351 P.2d at 328. Also, it was not alleged that the defendants “would or could have disputed the age of the prosecuting witness.” Id. 4 Cal.Rptr. at 160, 351 P.2d at 328.

In State v. Gumm, 99 Idaho 549, 585 P.2d 959 (1978), this Court stated that the defendant could not show prejudice arising from an amendment because he could not “legitimately contend that he was surprised to his substantial prejudice by the absence in the information of specific descriptions of the property which he had allegedly stolen. Defendant undoubtedly knew what articles the information referred to.” Id. at 552, 585 P.2d at 962.

In this case, even though the amended information was not filed until shortly before trial, the defendant had been aware for some time that the victim was under eighteen years of age. At the preliminary hearing the victim was asked her age and she stated she was fourteen years old. The record also indicates that there were preliminary negotiations between the defense attorney and the prosecutor regarding a possible plea to statutory rape. Furthermore, the defendant did not make a claim that he could have disputed her age. Also, when requesting this amendment the prosecutor offered to continue the case in order for the defense to further prepare, but this offer was declined. Because the defendant had been aware of the victim’s age before the filing of the amendment and did not make a claim that he could have disputed her age, we find the defendant’s rights were not prejudiced from the amendment, and therefore, there was no abuse of discretion.4

The appellant next argues that I.C. § 18-6101 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Article 1, § 2 of the Idaho State Constitution. The appellant states that the statute violates equal protection since only males can be convicted of this crime.

When a challenge to a gender-based classification is raised this Court will follow the test set out by the U.S. Supreme Court and require that “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 457, 50 L.Ed.2d 397, 407 (1976). This analysis requires that the State first set out its objectives for the statute and then show it has a strong interest in furthering those objectives. Finally, the State must prove *843that the classification bears a substantial relationship to the achievement of those objectives.

In the recent case of Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), the United States Supreme Court upheld a California statutory rape statute. A plurality of the Court was satisfied with the California Supreme Court’s finding that the prevention of illegitimate teenage pregnancies was at least one of the purposes behind the California statutory rape law. Because of the large number of teenage abortions, the increased medical risk associated with teenage pregnancy and the social consequences of teenage child bearing, the Court further found that the State had a strong interest in preventing such pregnancies.

The State in this case is also arguing that the prevention of teenage pregnancies is one of the main objectives behind I.C. § 18-6101, which is almost identical to the California statutory rape law. The State points out that statistics obtained from the Idaho Department of Health and Welfare and the Planned Parenthood Association of Idaho, Inc. show that in 1980 Idaho women gave birth to 20,140 children. Of those children, approximately 13% were born to mothers who were 19 years of age or less. Abortion statistics indicate that in both 1979 and 1980 approximately 30% of the legal abortions performed in Idaho were performed on girls who were between the ages of 10 and 19 years.

The State has shown a significant number of teenagers in this State do become pregnant each year and this Court recognizes the many problems associated with illegitimate teenage pregnancy. Therefore, we agree that the prevention of illegitimate teenage pregnancies is one of the objectives behind the statute and that the state has a strong interest in furthering this important governmental objective.

The appellant argues that the real purpose behind the law as it was passed in 1864 was not to prevent unwanted pregnancies, but rather, it was passed due to “out-mod-ed” thinking of men about the chastity of women and their status as chattel. We agree with the Court in Michael M., supra, that “this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Michael M., 101 S.Ct. at 1206 n. 7 (quoting United States v. O’Brien, 391 U.S. 367, 383, 88 S.Ct. 1673, 1682, 20 L.Ed.2d 672 (1968)).

The appellant next alleges that I.C. § 18-61035 indicates the legislature was not concerned with the possibility of teenage pregnancy, and therefore, it was not one of the purposes behind the law. However, we find that I.C. § 18-6103 is not a statement of legislative intent, but rather, find that it refers to the quantum of evidence necessary to establish that an act of sexual intercourse has occurred.

After recognizing a legitimate purpose behind the statute and that the State has an interest in preventing unwanted pregnancy, it is then necessary to determine if the classification is substantially related to the achievement of that important governmental objective. The State is attempting to protect women from sexual intercourse at an age when the physical, emotional and psychological consequences of sexual activity are particularly severe. Because males alone can “physiologically cause the result which the law properly seeks to avoid,” Michael M., 101 S.Ct. at 1203, a law punishing a male for sexual intercourse with a teenager under the age of eighteen could certainly help deter this conduct. Therefore based on the above rationale, we hold that I.C. § 18-6101(1) is not unconstitutional as violative of the equal protection clauses of the Idaho State Constitution and the United States Constitution. Michael M., supra; State v. Greensweig, 103 Idaho 50, 644 P.2d 372 (Ct.App.1982).

The appellant next claims that the prosecutor made two improper comments in his closing argument which were calculated to *844inflame the passions and prejudices of the jury. Firstly, the prosecutor alleged that the reason for the discrepancy between the victim’s testimony concerning the color of the appellant’s pants and their actual color was that the victim “is blue-green color blind.” Secondly, the prosecutor stated that the defendant “took her virginity away from her.”

We initially note that the defense counsel did not object to these remarks either during or on completion of the prosecutor’s closing argument. The general rule in Idaho is that in absence of a timely objection to an alleged error at trial, an appellate court will not consider the alleged error on appeal. State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980); State v. Gish, 87 Idaho 341, 393 P.2d 342 (1964); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953).

However, as stated in Sharp, under certain circumstances “the failure to object to closing arguments of a prosecuting attorney in a criminal case may not constitute a waiver of the objection.” 101 Idaho at 503, 616 P.2d at 1039, (citing Spencer, supra, for the proposition). This Court further stated in Sharp that we will consider an alleged error, “where the record shows that the prosecuting attorney has been guilty of misconduct calculated to inflame the minds of jurors and arouse prejudice or passion against the accused by statements in his argument of facts not proved by evidence, ...” 101 Idaho at 503, 616 P.2d at 1039 (quoting Spencer, 74 Idaho at 183-84, 258 P.2d at 1154).

With this exception in mind it must also be noted that the prosecutor is normally given considerable latitude in his argument. He has the right to discuss the evidence and the inferences and the deductions arising therefrom. State v. Sistrunk, 98 Idaho 629, 570 P.2d 866 (1977); State v. Gilbert, 65 Idaho 210, 142 P.2d 584 (1943).

The victim testified that the appellant had been wearing “checkered pants with tan color,” but the arresting officer testified the pants the appellant was wearing were blue and blue pants were admitted into evidence. The prosecutor’s comment concerning the color-blindness of the victim could have been inferred from this evidence and we do not agree with the appellant that this statement was calculated to inflame the minds of the jurors and arouse prejudice or passion against the accused. We do not believe that the comment was so inherently prejudicial that an objection, accompanied by an instruction by the court to disregard the comment, would not have cured the defect.

The comment concerning the virginity of the victim requires more consideration. Assuming without deciding that the comment concerning her virginity was error and was prejudicial enough to warrant our review, we will proceed to consider the propriety of the remark. See State v. Sharp, 101 Idaho 498, 616 P.2d 1034 (1980).

Before State v. LePage, 102 Idaho 387, 630 P.2d 674 (1981), in order to warrant a reversal on appeal, the misconduct must have been shown to have materially contributed to the verdict of the jury. State v. Smoot, 99 Idaho 855, 590 P.2d 1001 (1978); State v. Spencer, 74 Idaho 173, 258 P.2d 1147 (1953). However, this Court in Le-Page, stated that the question to be posed where evidence has been improperly admitted is: “Is the appellate court convinced beyond a reasonable doubt that the same result would have been reached had the evidence been properly excluded?” 102 Idaho at 396, 630 P.2d at 683. Even though the prosecutor’s comment is not considered “evidence” it can be analyzed under Le-Page. See LePage, 102 Idaho 396 n. 9, 630 P.2d at 683 n. 9. This test requires exclusion of the prejudicial comment and examination of the admissible evidence.

Carol testified that the appellant came home with Rowena St. Mark. She stated that the appellant then walked her home and shortly after arriving home she crawled 'out of her bedroom window and returned to Rowena St. Mark’s apartment. She further testified, as did Rowena St. Mark, that she and the appellant left together in Rowena St. Mark’s car. A witness, Julie Kenyon, stated that they arrived at the home of the appellant’s friend.

*845Carol testified that after they left the appellant drove a short distance from the trailer, pulled off the road and raped her. The victim testified that the appellant then took her home. She told her parents what had happened and was taken to the hospital.

Doctor James R. Arthurs, who examined Carol at the Kootenai Memorial Hospital, testified that on that day she had a normal appearing hymen with a small tear. He stated that the tear was fresh and it had happened within the last twenty-four hours.

The criminalist examined the sex crime kit that was taken while Carol was at the hospital and testified that sperm heads had been found on the victim’s underpants and sperm were found in large numbers from the vaginal smear. The criminalist also testified that she had analyzed pubic hair and head hair taken from the victim’s underpants and bra and compared these with pubic and head hairs taken from the appellant. She stated that,

“In the debris collection envelope there were five hairs. And I found that two of them were microscopically similar in appearance to the sample from the victim’s pubic hair, the known hairs from the pubic area. There were two hairs which were similar in appearance to the victim’s head hairs. And there was one hair that was similar in appearance to the suspect’s pubic hairs.”

Even if the prosecutor’s statement had been properly excluded from the trial, we are convinced beyond a reasonable doubt that the jury would still have arrived at the same verdict. Therefore, we hold it amounted to harmless error.

The appellant next contends that the introduction into evidence of the victim’s underpants was error. The appellant argues that there were significant gaps in the chain of custody because the record did not show who removed the underpants from the girl and what was done with them prior to their being turned over to the mother at the hospital. Furthermore, the mother did not testify concerning what was done with the underpants during the time that they were in her possession.

“As a general rule in criminal proceedings, an exhibit must be shown to be in substantially the same condition when offered into evidence as it was when the crime was committed. However, the party offering the exhibit need not exclude all possibility of tampering. Where the Court is satisfied that in all reasonable probability the article has not been changed in any material respect, the article is admissible into evidence.” State v. Crook, 98 Idaho 383, 384, 565 P.2d 576, 577, (1977) (citation omitted).

In the present case, Officer Charles Angle testified that he transported Carol and her mother to West Shoshone Hospital early in the morning of October 23, 1978. While there, he observed a nurse bring a pair of underpants out of the emergency room where Carol was being examined and hand them to Carol’s mother. He observed the mother put the underpants in her coat pocket. He then transported Carol and her mother to Kootenai Memorial Hospital and while there he saw Carol’s mother take the underpants out of her pocket and hand them to the nurse.

From this evidence we are satisfied that in all reasonable probability the underpants were not changed in any material respect. Therefore, we hold no error occurred in admitting the underpants into evidence.

The defendant also attacks the admissibility of the hair samples obtained by Nurse LaShaw from the bra and underpants of Carol. Firstly, the defendant objects that the hairs taken from the bra were mixed with the hairs taken from the underpants. Secondly, he objects to their admission because Nurse LaShaw testified that she put four hairs into the envelope while the criminalist testified that she analyzed five hairs from the envelope.

Concerning the first objection, it is immaterial whether they were located in the victim’s bra or underpants. Their presence in either place is equally indicative of the defendant’s involvement with her.

*846The second objection regarding the conflicting testimony as to the number of hairs is also unpersuasive. While the defendant argues that the fifth hair could have gotten “mixed in,” that suggestion was not supported by the evidence. Nurse LaShaw testified to having sealed the envelope containing four hairs. The criminalist testified that these items were sealed when she received them. The criminalist also testified that when she opened the envelope five hairs were found in it. Considering the fragile nature of the hairs, it was entirely possible that one could have broken into two pieces. We are satisfied that in all reasonable probability the article was not changed in any material respect. State v. Crook, 98 Idaho 383, 565 P.2d 576 (1977); State v. Griffith, 94 Idaho 76, 481 P.2d 34 (1971).

The appellant finally contends that the trial court abused its discretion in sentencing the appellant to an indeterminate period of eight years. I.C. § 18-6104 sets the minimum punishment for conviction of rape as imprisonment in the state penitentiary for not less than one year, and the maximum as imprisonment for life, at the court’s discretion. “Where a sentence is imposed within the statutory limits an appellant has the burden of showing a clear abuse of discretion on the part of the court which imposed the sentence.” Idaho v. Kohoutek, 101 Idaho 698, 699, 619 P.2d 1151, 1152 (1980) (citations omitted).

The record shows that the trial judge held a lengthy sentencing hearing and considered both probation and a 120-day rider. However, in light of the defendant’s past record, the judge found neither of these alternatives to be desirable and determined that an eight-year sentence would be adequate under the circumstances.

In making this determination the trial judge considered the following: in 1971 the defendant had received a three-year deferred sentence for possession of dangerous drugs; in 1976 he had been committed to federal authorities for almost two years; and in 1978 he had been charged with aggravated assault, robbery and grand auto theft. The judge also considered a letter from the Brule County Sheriff’s Office which stated that the appellant had a history of assault but no record of convictions. The judge further stated that he had to keep in mind that the appellant was a twenty-seven-year-old man and that the jury had found that he had intercourse with a fourteen-year-old girl. Concerning this the judge said, “That’s a much different situation than a 19 year old man having intercourse with a 17 and a half year old girl. And in those situations I think that the court does take a different view.”

The appellant’s background as shown in the presentence report was such that the sentence imposed did not constitute an abuse of discretion and there are no “compelling circumstances” as found in State v. Dunnagan, 101 Idaho 125, 609 P.2d 657 (1980), to justify a finding of abuse. In Dunnagan, the Court found that, “to impose a sentence which was more than double the length of their current natural lives was excessive and unduly harsh.” 101 Idaho at 126, 609 P.2d at 658.

In this case the sentence was for eight years and the appellant was given credit for time spent in jail prior to the trial. The judge noted that he would be eligible for parole in about three years. Furthermore, unless reversed on appeal, the appellant had already been sentenced to three years in the federal penitentiary and the judge stated that there was very little question in his mind that the federal court “would probably give consideration and credit to some extent at least to any time you may spend under this sentence.” Therefore, our review of the record convinces us that there are no compelling circumstances and the trial court did not abuse its sentencing discretion.

The conviction and the sentence are affirmed.

BAKES, C.J., McFADDEN, J., and SCOGGIN, J., Pro Tem, concur. (McFADDEN, J., (Ret.), registered his vote prior to his retirement on August 31, 1982.)

.“18-6101. RAPE DEFINED. — Rape is an act of sexual intercourse accomplished with a female under either of the following circumstances:

1. Where the female is under the age of eighteen (18) years.

2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.

3. Where she resists but her resistance is overcome by force or violence.

4. Where she is prevented from resistance by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating narcotic, or anaesthetic substance administered by or with the privity of the accused.

5. Where she is at the time unconscious of the nature of the act, and this is known to the accused.

6.Where she submits under the belief that the person committing the act is her husband, and the belief is induced by artifice, pretense or concealment practiced by the accused, with intent to induce such belief.”

. “19-1420. AMENDMENT OF INDICTMENT. — An indictment or information may be amended by the prosecuting attorney without leave of the court, at any time before the defendant pleads, and at any time thereafter, in the discretion of the court, where it can be done without prejudice to the substantial rights of the defendant. An information or indictment cannot be amended so as to charge an offense other than that for which the defendant has been held to answer.”

. The Idaho Rules of Criminal Practice and Procedure were in effect at the time of this trial. Rule 7(d) is almost identical to the current I.C.R. 7(e).

. Justice Bistline argues in dissent that the amendment charges an offense other than that for which the defendant had been held to answer. The defendant argues on appeal only that his rights were prejudiced by the amendment and does not argue before this Court that the amendment charged a new offense. We agree with Justice Bistline’s statement in State v. Dennard, 102 Idaho 824, 825, 642 P.2d 61, 62 (1982), that “[i]t is not the role of this Court to act as assistant attorney general, and we do not address the applicability of the rule.” Neither should this Court act as a defense attorney. Even assuming that this argument was impliedly raised, we agree with the Court in Collins, supra, that “the subdivisions of section 261 [nearly identical to I.C. § 18-6101] do not state different offenses but merely define the different circumstances under which an act of intercourse constitutes the crime of rape.” Collins, at 4 Cal.Rptr. at 160, 351 P.2d at 328. See People v. Lohbauer, 29 Cal.3d 364, 173 Cal. Rptr. 453, 627 P.2d 183 (Cal.1981).

. “18-6103. PENETRATION. — The essential guilt of rape consists in the outrage to the person and feelings of the female. Any sexual penetration, however slight, is sufficient to complete the crime.”