WINNERFORD FRANK H., aka, WINNERFORD FRANK T., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent
Winnerford v. State
Young and Rose, JJ., concur.
WINNERFORD FRANK H., aka, WINNERFORD FRANK T., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
WINNERFORD FRANK H., aka, WINNERFORD FRANK T., a Minor, Appellant, v. THE STATE OF NEVADA, Respondent.
No. 24921
April 30, 1996
915 P.2d 291
Morgan D. Harris, Public Defender, Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.
Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Tim O’Brien, Chief Deputy District Attorney, Ronald C. Bloxham, Deputy District Attorney, Clark County, for Respondent.
OPINION
By the Court,
Springer, J.:
This case is about a ten-year-old boy, Winnerford H., who was convicted ("adjudicated") by the juvenile court to be guilty of sexual assault (formerly rape), a crime that he is charged with committing while he and a number of other children were playing a children's group game called "hide-and-go-get it." One of the game players claimed that in the course of the game Winnerford placed his finger on her "privacy."
Winnerford and Kedrick and Shamoya and Latoya and Angelo and Marcello and Crissie (the "victim" of this crime) and some other children were engaged in a game that they called "hide- and-go-get-it," "it" being the girls' external genitalia. (As put by Crissie herself: "[T]he boys catch you, they throw you down and do it to you.") The three boys who "got it" during the game with Crissie and the other children were Angelo, who held her hands, and Marcello who held her "feets" and Winnerford, who Crissie claims "touched" her "privacy." Crissie testified that Winnerford's touching was "real quick, just like touching and let off." Crissie answered the prosecutor's question during her direct testimony as follows:
Q. Okay. You said he put his hand inside your privacy. Does that mean he actually went inside of you or did he just touch the outside of you?
A. Just the outside of me.
Q. Did he go inside of you at all?
A. No.[ ]
One of the child witnesses, a ten-year-old, whom we shall refer to as "K.S.," testified concerning the particular "hide-and-go-get-it" game that the children were playing on that fateful day. First K.S. identified the "defendant," Winnerford ("He's in a white tuxedo and a black bow tie.") and explained the rules of the group game: "You got to chase a girl, and if you get her you've got to do real nasty stuff to her." Crissie, the "victim" in this case was at first mainly upset because the other children did not include her in the game. No one would chase her and do "nasty stuff" to her, that is, until (as put by K.S.), "she started crying for it." Crissie was very upset because everyone was chasing Annie and not her; and Crissie "started crying, [and] said, 'Frank, you never come get me. Frank, you never come get me.' And she kept crying, [and] saying that." Crissie's sister, Aleda, got so upset because of Winnerford's inattention to her sister that she refused to play hide-and-go-get-it anymore unless Winnerford agreed to go after her sister, Crissie. After this conversation, Crissie, according to the testimony, "just laid on the slide waiting for him [Winnerford] to come and get her."
Q. Let's take my hand, I'm going to take my hand right here.
A. Okay.
Q. And we'll pretend like this is your privacy part, okay. And I'm going to create a little groove for you, okay? Does this look something like what your privacy part looks like?
A. Yes.
Q. What I'm going to do is I'm going to hold this over here for you. Now, I want you to show me what Frank did with his hand, what you felt Frank do with his hand. Could you just show me?
A. Well, like that.
Q. Could you show me exactly how he did it. Go ahead and go slow and show me how he did it.
A. Like that.
Q. Let the record reflect she put her middle finger in the groove I created between my thumb and the major part of my hand.
According to K.S., Crissie was "laying down backwards" on [the slide]. "She wanted somebody to get her before she get into it. So she laid down on the slide waiting for somebody to come and get her." K.S. and Charles grabbed her legs on the slide and pulled her up the slide. Winnerford came along and "touched her outside of her panties." "She never did have her panties off." "Charles moved her legs apart." Charles was "holding her legs." All the children were laughing until Crissie screamed, at which time Charles let go of her legs, and Winnerford took his hands off of her panties. Winnerford "was like he was on there like five seconds and then she started hollering . . . ."
Another ten-year-old witness, Latoya, testified basically to the same facts. She testified that Winnerford did not pull Crissie's dress up nor did he pull her pants down. Latoya testified that Winnerford put his hand up Crissie's dress and that he "jabbed her" twice with outstretched finger. The jabs were "sort of like real fast, like that [demonstrating]." Latoya explained on cross-examination that, at the time, Crissie's skirt was down to her knees and that she "saw his hand go under her skirt." This jabbing action apparently caused Crissie to suffer some pain, and this is when she "hollered" and put an end to her participation in the hide-and-go-get-it game.
Another eyewitness, a child named Tuesday, observed Winnerford feeling Crissie's legs "and her panties." She also saw Winnerford do basically the same thing that other witnesses had seen. "I saw Frank touch on her legs and close to her vagina, but he didn't really go real like into her panties. I saw him touch her panties. I saw him touch her panties, but he didn't go up in there." Tuesday also limits the episode to "about five seconds."
Given these accounts of the manner in which Winnerford played this game with Crissie, it is indeed doubtful as to whether there was such sexual penetration as to justify a rape conviction. None of the players who testified in this case testified that Winnerford had the time or opportunity to penetrate Crissie's vagina; and most of the players outrightly denied that this had occurred. There was no physical evidence to support a finding of vaginal penetration. There were many inconsistencies in Crissie's testimony, but we do not find it necessary to catalogue them in this opinion. On balance, it appears that her testimony that he "did not go inside" of her at all is considerably more persuasive on the question of penetration than her response to the leading questions of the prosecutor relative to what Winnerford did or did not do with reference to the representative "groove" in the prosecutor's hand. There is no direct testimony by Crissie or by anyone else that Winnerford inserted his finger into Crissie's vagina, and it is highly improbable that he did so. Although there is a very strong argument that there is insufficient evidence upon which the juvenile court judge could have found beyond a reasonable doubt that Winnerford penetrated Crissie's vagina with his finger, we choose not to rest reversal of Winnerford's conviction (adjudication) on the basis of insufficiency of the evidence but, rather, on the ground that the State failed to rebut the presumption that Winnerford did not have the legal capacity to commit sexual assault.
NRS 194.010 provides in pertinent part that
All persons are liable to punishment except those belonging to the following classes:
2. Children between the ages of 8 years and 14 years, in the absence of clear proof that at the time of committing the act charged against them they knew its wrongfulness.
(Emphasis added.) Winnerford's counsel argues that the State failed to present clear proof that Winnerford knew the wrongfulness of his actions at the time he is said to have inserted his finger into Crissie's vagina.
Without citing in its brief any support from the record, the State claims that Winnerford testified that he did not want to touch Crissie between her legs because "he knew he was going to get in trouble." This, the State submits, is clear proof that Winnerford possessed the capacity to commit sexual assault. The testimony on which the prosecutor is apparently relying is the following, which was elicited during the prosecutor's cross-examination of Winnerford:
Q. You said you humped [Crissie]. What does that mean? What did you do to her?
A. When you get on top of her and do it to her.
Q. Describe what you mean by "do it to her".
A. Go like that on top of her.
Q. Can you stand up, show me what that is?
A. Like this.
Q. While you were on top of her, didn't you also place your hand between her legs?
A. No.
Q. Why didn't you place your hand between her legs?
A. Huh?
Q. Why didn't you place your hands between her legs? Didn't Charles get away with it?
A. I didn't do it. 1 didn't want to do it.
Q. You didn't want to do it?
A. No.
Q. Okay. Why did you want to hump her?
A. Huh?
Q. Why did you want to hump her?
A. I don't know.
Q. Okay. Why didn't you want to do that?
A. Huh?
Q. Why didn't you want to do that? Is it because you were afraid of getting in trouble?
A. Yeah. I said I didn't want to because I knew I was going to get in trouble.
Q. Okay. So you wanted to do it but you knew you would get in trouble if you did?
A. I still didn 't want to do it. I wasn't thinking of it.
Q. You weren't thinking of it?
A. No.
Q. But you knew you would get in trouble if you did do that?
A. Yes.
(Emphasis added.) This testimony certainly does not present clear or adequate proof that Winnerford knew the wrongfulness of his decision to "go and get it," at the time he is alleged to have actually done so. The prosecutor's questioning was ambiguous. It is unclear what exactly he was referring to when he asked the leading question: "Why didn't you want to do that? Is it because you were afraid of getting in trouble?" It is not clear what "that" refers to. The preceding question referred to "humping," which the prosecutor and Winnerford distinguished from Winnerford's allegedly placing his hands between Crissie's legs. Further, it is not clear when Winnerford realized he could get in trouble if he placed his hand between Crissie's legs as he twice stated that he did not even think of placing his hands between Crissie's legs. Finally, Winnerford only testified that he knew he would get in trouble in response to the State's leading question. There is nothing else in the record that relates to Winnerford's criminal capacity, and the above-discussed cross-examination does not suffice for this purpose. We conclude that the State did not present sufficient evidence to rebut the presumption that Winnerford was incapable of committing sexual assault.
The State did not prove beyond a reasonable doubt that Winnerford had the required mens rea to commit sexual assault. Sexual assault is generally considered a general intent crime. Manning v. Warden, 99 Nev. 82, 659 P.2d 847 (1983). NRS 193.200 defines intention as follows: "Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the persons accused." NRS 193.220 defines a person who is considered of sound mind as one who "has arrived at the age of 14 years, or before that age, if such person knew the distinction between good and evil."
The circumstances connected with the alleged offense have been previously described — these children were playing a game. The accused is a ten-year-old child. The only evidence presented regarding whether he knew the distinction between good and evil is the testimony discussed above regarding whether the State failed to rebut the presumption that Winnerford did not have the capacity to commit sexual assault. This testimony is not sufficient to establish beyond a reasonable doubt that Winnerford knew the distinction between good and evil for purposes of assessing whether he was of sound mind as contemplated by NRS 193.200. The State did not establish that Winnerford had the mental capacity to commit the crime of sexual assault at the time Winnerford is claimed to have put his hand on Crissie's "privacy"; therefore, the State did not prove beyond a reasonable doubt that Winnerford had the requisite mens rea to commit a sexual assault.
The adjudication of delinquency is reversed. Since the "hide- and-go-get-it" game was played over two and one-half years ago, we think it would be wise and in the interest of both Winnerford and the State of Nevada if this matter would be brought to a close. The juvenile court is instructed to dismiss all pending proceedings in this matter.
Young and Rose, JJ., concur.
Rules of the game: "[T]he boys catch you, they throw you down and do it to you."
Actually there are three ten-year-old sexual assailants (rapists) in this case if we wanted to carry the case to the limits of absurdity.
On redirect examination the prosecutor was able to lead Crissie into describing what Winnerford "did with his hand":
Cf. Poole v. State, 97 Nev. 175, 625 P.2d 1163 (1981) (evidence presented that thirteen-year-old accused of murder hid murder weapon, as well as other pieces of evidence; fabricated stories in attempting to create an alibi; claimed the shooting had been accidental; and testified that he knew killing people was wrong sufficient to establish that the minor knew the wrongfulness of his act).