Abbott v. State
| Decision Date | 13 July 2006 |
| Docket Number | No. 44275.,44275. |
| Court | Nevada Supreme Court |
| Parties | Thomas ABBOTT, a/k/a Thomas Edward Abbott, Appellant, v. The STATE of Nevada, Respondent. |
Keith C. Brower and Gregory L. Denue, Las Vegas, for Appellant.
George Chanos, Attorney General, Carson City; David J. Roger, District Attorney, and Bill A. Berrett and James Tufteland, Chief Deputy District Attorneys, Clark County, for Respondent.
Before the Court En Banc.
Thomas Abbott was charged with two counts of lewdness with a minor under the age of fourteen, for allegedly fondling his girlfriend's nine-year-old daughter's vagina. Following a jury trial, Abbott was convicted of both counts and sentenced to two concurrent life sentences, with parole eligibility after ten years. The victim had previously made allegedly false allegations against Abbott, as well as against her father and schoolmates. The victim had also engaged in sexual behavior since she was four years old. Based on this, Abbott attempted to introduce evidence of the prior false allegations and asked the district court for an independent psychological evaluation. The district court denied both requests. Abbott challenges those decisions on appeal.1
Because of the nature of Abbott's claims, we have occasion to address three of our previous decisions in sexual assault cases to examine whether these decisions properly strike the delicate balance between a criminal defendant's fair trial rights and a victim-witness's privacy. First, in State v. District Court (Romano),2 we announced a revised and more restrictive standard than had previously existed under Koerschner v. State3 for when the district court may order an independent psychological evaluation of a victim. We conclude that Romano impermissibly restricts a defendant's access to an independent psychological examination of an alleged victim-witness, and we overrule Romano and reinstate the test set forth in Koerschner.
Second, in Chapman v. State,4 we stated that the clinical forensic interviewer who interviews the victim is not an expert for the purposes of Koerschner. We conclude that Chapman incorrectly announced a blanket rule, and we clarify Chapman's holding. When the clinical forensic interviewer analyzes, and not merely recites, the facts of the interview, and/or states whether there was evidence that the victim was coached or was biased against the defendant, the clinical forensic interviewer will be deemed an expert witness for purposes of applying the Koerschner rule. Applying the above principles to the instant case, we conclude that Abbott was entitled to an independent psychological examination of the victim.
Third, the test for whether prior false allegations of sexual assault may be introduced is set forth in Miller v. State.5 We conclude that the Miller standard is appropriate, and we decline to alter it. However, we conclude that, in the instant case, the district court abused its discretion by excluding evidence of prior false allegations. We conclude that the above errors require reversal of Abbott's conviction and remand for a new trial.
Abbott and his girlfriend, Tracy, met while working together in Las Vegas, Nevada. When Abbott and Tracy began dating, Tracy was in the process of a bitter divorce from her then-husband David. Tracy and David had two daughters, the nine-year-old victim in this case and the victim's younger sister. Tracy's divorce was finalized one year after she and Abbott began dating, and subsequently, Tracy relocated with her two daughters to Colorado. Abbott remained in Las Vegas to care for his ailing father and maintained a long-distance relationship with Tracy. He visited Tracy in Colorado periodically and would stay with her and her daughters in their home. Two years after moving to Colorado, Tracy and her daughters moved back to Las Vegas. Tracy and Abbott continued their relationship, and although Abbott maintained a separate residence, he often stayed at Tracy's home for weeks at a time. Tracy and Abbott's relationship lasted for approximately four years and ended after the events giving rise to this case.
The incident
The incident at issue occurred after Tracy and her daughters moved back to Las Vegas. On the day of the incident, Tracy took the victim and her sister to their grandmother's home. The victim used her grandmother's computer to look up her and her sister's names on the Internet to see what website would appear. The victim's name returned a realtor's website, while her sister's name returned a pornographic website. The victim told Tracy about the website, saying that she saw pictures of naked girls and that she saw a picture of a girl who had breasts and a penis. Later that evening, Abbott arrived at Tracy's home, and Tracy told Abbott what the victim had seen on the computer screen.
Tracy was ill and went to bed early that night. The victim and her sister each had her own room, and when Tracy went to bed, the victim was in her own bedroom reading a book. Abbott, who was spending the night at Tracy's house, was taking a shower in Tracy's master bedroom. At this point, the recounting of events differs.
The victim's and Tracy's version of events
The victim testified that Abbott entered her room, sat down on her bed, and touched her vagina with his fingers. Abbott then got up briefly and went to the victim's bedroom door to see if Tracy was awake. Abbott returned to the victim's bed, lay down next to her, and touched her vagina again.
The victim ran into Tracy's room, woke her up, and told her that Abbott was touching her privates. Tracy confronted Abbott, in front of the victim, about the victim's allegations. Abbott denied the allegations, cried, and repeatedly said that they were not true and that he did not touch the victim. Tracy told Abbott that he had to leave the house and the victim said, Abbott left, and Tracy telephoned her exhusband David, who came to the house.
A few days after the incident, Tracy and David took the victim to meet with a detective from the Las Vegas Metropolitan Police Department's (LVMPD) sexual abuse detail William Ettinger. The victim was also given a physical examination. Detective Ettinger testified at trial at some length about his education and training in the field of sexual crimes against children. He stated that when he interviewed the victim, he used various techniques he had learned during trainings on how to interview child victims in sex assault cases. He testified that the techniques he used demonstrated that the victim knew the difference between a truth and lie, that she promised not to lie, and that he found no evidence that the allegations were either coached or fabricated. The physical examination was normal and revealed no evidence of sexual assault. The State then charged Abbott with two counts of lewdness with a minor under the age of fourteen.6
Abbott's version
Abbott testified that he was doing laundry and passed by the victim's bedroom door. The victim asked him to come into her room and read with her, and Abbott told her that he would, but he first needed to take his laundry downstairs. Abbott started his laundry and then went back to the victim's room to read. While reading, Abbott heard a thumping noise below them and realized that it was the washer. He left the victim's room and went downstairs to fix the thumping. After he fixed the washing machine, he smoked a cigarette in the garage. After approximately five to fifteen minutes he went back upstairs and looked in the victim's room, thinking she would still be reading. Instead, she was sleeping, and Abbott pulled the book out from under her head and turned out her light. She awoke and asked him for her bunny and her blanket, and he handed them to her and left the room. Abbott went back downstairs to finish the laundry.
Abbott then went back upstairs, and when he was at the top of the stairs, he saw the victim walking toward her mother's room. He believed that she was sleepwalking as she had done in the past. The victim walked to her mother's bedroom door, looked in, waved her hand like "never mind," and then walked past Abbott. Abbott asked her what she was doing, and she said that she was going to tell her mother good night. The victim walked back into her mother's room, and Abbott went back downstairs to the laundry room. He then heard Tracy call his name and ask him to come upstairs, which he did. Tracy confronted Abbott and asked him to leave. Abbott told Tracy to call David and ask him to come to the house. Abbott then left Tracy's house but called later that evening and spoke with both Tracy and David.
Prior false allegations/prior sexual behavior and exposure
The victim had previously made allegations of sexual assault against David, schoolmates, and Abbott. Against David, the victim told a friend that David "touched her `privates' and it felt good." The friend's mother called Tracy to let her know. When Tracy questioned the victim about this, the victim first denied making the statement but then told her mother that David did touch her. Tracy asked the victim to show her how David touched her and the victim rubbed Tracy's back. Tracy then asked the victim if it was true that David had touched her privates, and the victim said no.
Regarding schoolmates, the victim claimed that a boy at school grabbed her buttocks. There were no witnesses, and when the boy was questioned he denied the story "to the point of tears." The victim also accused a boy when she was three or four years old of touching her on the buttocks in the bathroom at daycare. Daycare personnel told Tracy and David that this was not possible because the children are not allowed to go into the bathroom together, and a teacher stands at the door while the child is in the bathroom. Tracy and David dismissed the victim's report as an exaggeration.
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