{ "id": 2770804, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Elmer Rheford BOYD, Defendant-Appellant", "name_abbreviation": "State v. Boyd", "decision_date": "1972-08-18", "docket_number": "No. 901", "first_page": "290", "last_page": "293", "citations": [ { "type": "official", "cite": "84 N.M. 290" }, { "type": "parallel", "cite": "502 P.2d 315" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "81 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358341 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0571-01" ] }, { "cite": "60 N.M. 277", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590383 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/60/0277-01" ] }, { "cite": "80 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359313 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0297-01" ] }, { "cite": "83 N.M. 563", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333445 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0563-01" ] }, { "cite": "187 P. 553", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "opinion_index": 0 }, { "cite": "25 N.M. 666", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734180 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/nm/25/0666-01" ] }, { "cite": "43 N.M. 71", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568273 ], "weight": 3, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/43/0071-01" ] } ], "analysis": { "cardinality": 406, "char_count": 7089, "ocr_confidence": 0.697, "pagerank": { "raw": 2.8916858516776625e-07, "percentile": 0.844355404504278 }, "sha256": "71cbf9ce638fe56d49298914198d654e1eb7b200eb724d89f369dc1bbff2ced0", "simhash": "1:041e12e290470094", "word_count": 1142 }, "last_updated": "2023-07-14T17:55:55.751115+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY, and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Elmer Rheford BOYD, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nDefendant was convicted of rape, \u00a7 40A-9-2, N.M.S.A.1953 (Repl.Vol. 6), and sodomy, \u00a7 40A-9-6, N.M.S.A.1953 (Repl. Vol. 6). The appellate issue is the sufficiency of the evidence. Defendant claims that the testimony of the prosecutrix was (1) inherently improbable; (2) uncorroborated; and (3) the evidence did not point unerringly to the guilt of the defendant. The basis for these claims is State v. Shults, 43 N.M. 71, 85 P.2d 591 (1938), and State v. Armijo, 25 N.M. 666, 187 P. 553 (1920). State v. Shults, supra, states:\n\u201cIn cases of common law rape, in the absence of such corroboration as outcries, torn and disarranged clothing, wounds or bruises, or if there is long delay in making complaint; the evidence may be so inherently improbable as to be unsubstantial. In such cases, unless there is other testimony which points unerringly to the defendant\u2019s guilt, we will not uphold a conviction.\u201d\nState v. Armijo, supra, states:\n\u201cIn this jurisdiction no corroboration of a prosecutrix for rape, by way of testimony of an independent character emanating from an outside source, is required in order to sustain a conviction. But the bald charge of a woman against a man in this regard, unsupported and uncorroborated by facts and circumstances pointing to the guilt of the accused, is insufficient to meet the requirement of the law that a verdict must be supported by substantial evidence.\u201d\nWe discuss each of the three contentions of defendant but point out that the corroboration rule in rape cases is not applicable to the sodomy conviction. See State v. Borunda, 83 N.M. 563, 494 P.2d 976 (Ct.App.1972).\nAsserted inherent improbability.\nDefendant asserts that the prosecutrix\u2019 testimony is inherently improbable in three respects: (1) the time period involved; (2) certain prior inconsistent statements; and (3) asserted conflicts between her testimony and that of the examining physician.\nThe prosecutrix testified that she was raped twice by defendant and forced to commit an act of sodomy within a period of approximately thirty minutes. In addition, there was some conversation between the prosecutrix and defendant during this time. Defendant claims \u201c. . . the occurrence of all of these events in a thirty minute period is inherently improbable, if not impossible.\u201d The rule is that testimony is not inherently improbable unless what is claimed to have occurred could not in fact have occurred. State v. Soliz, 80 N.M. 297, 454 P.2d 779 (Ct.App.1969); see State v. Trujillo, 60 N.M. 277, 291 P.2d 315 (1955). We cannot say as a matter of law that the events described by the prosecutrix could not in fact have occurred during the period stated.\nThe prosecutrix, in two written statements to the police, first denied that any act of sodomy had occurred, and then failed to mention it. At trial she testified that defendant had forced her to commit an act of sodomy. She explained that her denial and her failure to mention it were the result of her embarrassment about it. The prosecutrix also failed to mention the act of sodomy to the examining physician.\nDefendant claims that these inconsistencies render her testimony \u201cinherently improbable.\u201d We do not agree. Under the definition stated above, we cannot say that the explanation given by the prosecutrix was not, in fact, true.\nDefendant also claims that the testimony of the examining physician makes the prosecutrix\u2019 testimony improbable because \u201c. . . it is not only inconsistent with the testimony of the prosecutrix, but tends to disprove her testimony. . . . \u201d The doctor testified that he found no evidence of trauma or injury to the vagina; that such lack of trauma is unusual in a rape case; and that he found no other physical indication on the prosecutrix or her clothes that a rape had occurred. He further testified that he found sperm in the vagina but that they were all immotile. The doctor concluded that it was an \u201calleged rape.\u201d Nothing in the doctor\u2019s testimony indicates that the alleged acts could not have occurred in fact.\nThe prosecutrix\u2019 testimony was not inherently improbable because of the time element, inconsistent statements or the doctor\u2019s testimony. Defendant also seems to contend that the prosecutrix offered the only testimony regarding the actual occurrence of the two acts of rape and the act of sodomy, and that she should, therefore, not have been believed. The answer to this is that the jury determines the credibility of the witnesses. State v. Soliz, supra.\nCorroboration.\n? asserts that: \u201c. All evidence pointing to the guilt of this Defendant originated with the prosecutrix. There is no independent testimony or evidence pointing to his guilt. . . .\u201d Defendant, therefore, claims that since there is no corroboration of the rape charges, the convictions cannot stand. The required corroboration is that of \u201c. facts and circumstances pointing to the guilt of the accused. . . .\u201d State v. Armijo, supra.\nBoth the prosecutrix and the defendant testified that the defendant had approached her on a street in Gallup and asked her to come clean his trailer for him; that she agreed to do so; that the defendant took her to his trailer. There is evidence that the defendant threatened her with a knife and threatened to tear off her clothes unless she complied with his demands. Both the prosecutrix and defendant testified that later the defendant left the trailer with the prosecutrix, stopped at a store for change, took her home and gave her five dollars.\nThere is evidence that upon returning home the prosecutrix was crying and \u201csomething was bothering her;\u201d that she reported the alleged occurrences to her sister within an hour or two after her return, and to the police shortly thereafter; that she was examined by a doctor that night who found she had had intercourse. There is evidence that the prosecutrix wrote down the license number of defendant\u2019s pick-up truck to give the number to the police and that she did so. An officer testified the prosecutrix had been crying, that her blouse was messed up and that she was shaking and quite disturbed. The items listed in this paragraph are facts and circumstances corroborating the prosecutrix\u2019 testimony. State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970); State v. Armijo, supra.\nEvidence pointing to defendant\u2019s guilt.\nDefendant asserts the evidence does not point unerringly to his guilt. We disagree. The prosecutrix\u2019 testimony, which is not inherently improbable and which is corroborated by facts and circumstances, points unerringly to defendant and is sufficient evidence to sustain the conviction.\nThe judgment and sentences are affirmed.\nIt is so ordered.\nHENDLEY, and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "William W. Head, Jr., Gallup, for defendant-appellant.", "David L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "502 P.2d 315\nSTATE of New Mexico, Plaintiff-Appellee, v. Elmer Rheford BOYD, Defendant-Appellant.\nNo. 901.\nCourt of Appeals of New Mexico.\nAug. 18, 1972.\nRehearing Denied Sept. 27, 1972.\nCertiorari Denied Oct. 24, 1972.\nWilliam W. Head, Jr., Gallup, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., James B. Mulcock, Jr., Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0290-01", "first_page_order": 446, "last_page_order": 449 }