State v. Dolin

McHUGH, Justice,

dissenting:

I respectfully dissent with the majority’s decision that evidence of collateral sexual *699 offenses to show a defendant’s improper or lustful disposition toward the victim was inadmissible.

Generally, the admission of evidence of collateral offenses is barred in a criminal case. There is merit to this general rule, in that it advances the premise that the accused should only be tried for the crime for which he or she is charged. This general rule also prohibits an attack on the defendant’s character to show that the defendant acted in conformity therewith on a particular occasion. See W. Va.R.Evid. 404. This Court, however, has recognized the validity of carving out an exception in regard to sexual offenses:

In a prosecution for an attempt to commit rape on a female under the age of consent, evidence of former attempts by the defendant upon the same female is admissible to show the lustful disposition of the defendant toward her, and the existence and continuance of illicit relations between them.

Syl. pt. 8, State v. Driver, 88 W.Va. 479 , 107 S.E. 189 (1921). This holding was affirmed in State v. Lohm, 97 W.Va. 652 , 125 S.E. 758 (1924), and State v. Beacraft, 126 W.Va. 895 , 30 S.E.2d 541 (1944). The majority opinion expressly overrules Driver, Lohm and Beacraft . *

The majority has rejected the view that the introduction of evidence of the defendant’s collateral offenses falls within any of the Thomas exceptions argued by the State as being applicable. Syl. pt. 12, State v. Thomas, 157 W.Va. 640 , 203 S.E.2d 445 (1974). However, the majority recognizes that the exceptions to the rule may be more extensive than the rule of exclusion itself, and that federal courts have held that the list of exceptions is not exhaustive.

Even if the majority is correct that none of the Thomas exceptions are applicable in this case, there remains a legitimate reason for the admission of evidence of collateral acts for this type of offense, which other jurisdictions have recognized. This specific exception authorizes the admission of evidence as to the defendant’s lustful disposition toward the victim and is designed, in part, to reduce the incredibility of the victim’s isolated testimony. The Supreme Court of Nebraska, in State v. Craig, 219 Neb. 70, 76 , 361 N.W.2d 206, 212 (1985), held that “examined as an isolated episode unconnected with any background or antecedent events, incredibility engendered by the very improbability of the episode would cause the mind to boggle and recoil in disbelief.” Similar rationale has been applied in Michigan: “Had not the victim been allowed to testify about the prior similar act, her testimony of her father’s actions ... might, well appear incredible.” People v. Bailey, 103 Mich.App. 619, 625 , 302 N.W.2d 924, 927 (1981). See also State v. Bernier, — R.I. —, 491 A.2d 1000 (1985); Jenkins v. State, 474 N.E.2d 84 (Ind.1985); State v. Jerousek, 121 Ariz. 420 , 590 P.2d 1366 (1979); State v. Spaulding, 313 N.W.2d 878 (Iowa 1981); State v. Acliese, 403 So.2d 665 (La.1981).

The case now before us, like most cases of its kind, is one which ultimately depends upon credibility. The State’s primary witness is the victim, and the events that transpired did so over a period of several years. As noted by the majority, this Court, in syl. pt. 5 of State v. Beck, 167 W.Va. 830 , 286 S.E.2d 234 (1981), held that unless the victim’s testimony is inherently incredible, it alone is sufficient to convict the defendant in an offense of this nature. Consequently, the victim’s testimony as a crucial element of the State’s case must be examined in context in order to establish a complete record of events, thereby reducing the incredibility of the victim’s testimony. Therefore, carving out a sexual propensity exception allows the finder of facts to weigh the credibility of the victim’s unabridged testimony.

*700 Other authorities have also essentially supported the admission of testimony of collateral sexual offenses. “In prosecutions for statutory rape, or rape of a female under the age of consent, or an attempt to commit such rape, evidence which shows or tends to show prior offenses of the same kind committed by the defendant with the prosecuting witness is generally admissible.” 65 Am.Jur.2d Rape § 72 (1972). See also 22A C.J.S. Criminal Law § 691(29) (1961); annot., 77 A.L.R.2d 841 (1961).

For the foregoing reasons, I am of the opinion that the trial judge did not err in admitting the testimony relating to other sexual offenses.

I am authorized to state that Justice BROTHERTON joins me in this dissent.

It should be noted that State v. Simmons, 175 W.Va. 656 , 337 S.E.2d 314 (1985), State v. Moubray, 139 W.Va. 535 , 81 S.E.2d 117 (1954), and State v. Gargiliana, 138 W.Va. 376 , 76 S.E.2d 265 (1953), all cited in the majority opinion, did not refer to Driver, Lohm and Beacraft . All three dealt with sexual offenses and barred admission of such collateral offenses. In none of these three cases, however, is the separate sexual propensity exception, as opposed to the Thomas exceptions, discussed.