Chavez v. State

ROONEY, Justice,

dissenting, with whom RAPER, Chief Justice, joins.

My dissent in this matter is not based on a disagreement with the majority of the court over the law involved herein, but I do not agree with the application of the law to the facts of the case.1

The majority opinion properly notes the standard under which we review the sufficiency of the evidence on appeal of a criminal matter. This standard requires us to examine and accept as true the evidence of the prosecution, leaving out of consideration entirely the evidence of the defendant in conflict therewith, and give the evidence of the prosecution every favorable inference which may reasonably and fairly be drawn therefrom. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Tucker v. State, Wyo., 594 P.2d 470 (1979).

As reflected in the majority opinion, there was substantial evidence that the victim was actually physically helpless. The expert psychiatric witness so testified. The question of forcible confinement and the question of whether or not Chavez knew or should have known that the victim was *173physically helpless must be determined with reference to her affliction. Force is the antithesis of consent.

I find three areas in which the evidence of the prosecution, aided by reasonable inferences, is sufficient for the jury to find lack of consent and to find that Chavez should have known that the victim was not consenting to the activities and was physically helpless.

First, there was direct testimony on the point. One witness testified that she noticed the totally passive reaction of victim to trouble “when she first came into my Sunday school class, when I first approached her with a question, it was that reaction until she was comfortable with me. She could not respond to me, and she was almost — when she came out of it, out of the freeze, she would shake a little.” (Emphasis supplied.) Another witness testified that the motor problem made the victim “very awkward * * * it made her very clumsy,” and that under stress the victim “just closed up and kind of froze up.” He gave the following answers to the following questions on cross-examination:

“Q. How would it be noticeable to other people if they had never seen Debbie before?
“A. Well, I think it would be noticeable when she became so quiet. She gets stiff, you know, like in her walk, and if she does say anything, it’s a different type voice, you can tell there’s fear in her voice.
“Q. Wouldn’t you have to know her in order to know that?
“A. I believe that if a person was paying attention, they would know it, * *

The victim answered “no” to a question as to whether or not she went “along with these men willingly.” She testified that he [one of the men] “directed me to the car”; that “John T. [one of the men] asked me once if I wanted to go home, and I told him yes, and he told Joe [the driver of the car] once or twice that I wanted to go home”; and that once in the car at Ranchester, there was no way in which she could have gotten out of the car “because they were on both sides of me.”

Second, the victim said only three words throughout the entire episode. When the three men approached her at the picnic table she said “I’m Debbie,” and when one of the men asked her if she wanted to go home, she said “yes.” The reaction of a normal person would be otherwise and defendant should have known that such reaction was not one of consent and could have been a result of physical impairment. This favorable inference could reasonably and fairly have been drawn therefrom.

Third, the determination of the condition of the victim could be premised on her appearance and actions and not only from a word description thereof given by others. Such appearance and actions could well be the basis upon which Chavez should have known of her condition. These things were presented to the jury. The victim was in court. She testified. The jury could observe her and appraise her appearance. The trial judge also had the benefit of this evidence, and he had knowledge that the jury had the benefit of it when he overruled the motion for acquittal. As said in Madrid v. Norton, Wyo., 596 P.2d 1108, 1117 (1979):

“* * * We must not forget that when we examine the cold words of the transcript of testimony, we do not have the benefit of how the trial judge sees and hears the witness — the pitch of the voice, facial changes, the movement in the witness — all of which may tell a separate story, to be given credence. The conclusion of what preponderates is with the trier of fact. * * *”

Here the very issue is whether Chavez should have known of the victim’s physical helplessness from his observation and contact with her. More so than in connection with most issues does the jury have an opportunity to resolve the question from observation of the appearance and actions of the victim.

Applying the proper standard of review, and thus disregarding the testimony in which the witness said he would have to “guess” as to whether a layman would rec*174ognize the helplessness of victim, and thus accepting as true the testimpny of the Sunday school teacher and the other witnesses referred to in the foregoing discussion, and thus giving the favorable inferences to the lack of vocal response from victim throughout the ordeal, and thus giving the same favorable inferences to the observation by the jury of victim’s appearance and actions in the area in which such appearance and actions are so vital to a determination of “should have known,” I find sufficient evidence upon which the jury could reach its verdict of guilty, and I would affirm insofar as this issue is concerned.

. The majority of the court found it unnecessary to address the contention of unconstitutionality of the pertinent statute inasmuch as it found error in denial of the motion for acquittal on the basis of insufficiency of the evidence. Attention to the constitutional question by me would likewise be fruitless.