English v. State
| Decision Date | 27 May 1999 |
| Docket Number | No. 98-90.,98-90. |
| Citation | 982 P.2d 139 |
| Parties | Kevin ENGLISH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Peter H. Froelicher, Assistant Public Defender; and T. Alan Elrod, Assistant Appellate Counsel, Representing Appellant.
William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistant Program; and Shelley J. Towler, Student Intern., Representing Appellee.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR1, JJ.
TAYLOR, Justice, Retired.
Convicted of one count of taking indecent liberties with a minor, appellant now claims that numerous evidentiary errors were made by the district court, and that the prosecutor's closing argument was both improper and prejudicial. Finding that substantial errors occurred, we reverse and remand for a new trial.
Appellant, Kevin English (English), presents four issues for review:
As appellee, the State of Wyoming's statement of the issues is substantially similar:
On the evening of December 31, 1996, BNM, a five-year-old, and her younger brother were left in English's care. BNM's mother and her boyfriend agreed to allow English to babysit the children while they went to a New Year's Eve party in exchange for canceling a $20.00 debt. The mother testified that when she left the house, BNM had bathed and was dressed in a blanket sleeper. When the mother returned from the party, however, she found BNM asleep on her bed wearing only a t-shirt. The mother roused BNM and asked her why she had taken off her sleeper, to which the child responded that she was hot. The mother accepted the explanation, and went to bed.
The next morning, according to the mother, BNM was not herself. The mother observed what she considered to be overly affectionate behavior towards English. She also noticed that BNM At this time, the mother did not suspect that English had touched her daughter inappropriately. On January 2, 1997, the mother's birthday, the mother drove English on several errands. Partially in return for the ride and partially as a birthday present, he volunteered to babysit the children again while the mother and her boyfriend celebrated her birthday. Again, the mother bathed the children and dressed them in their sleepers before she left. Among the celebrants was a friend of the mother's, who also had a small child and who had left her son in the care of another friend, SM, for the night. SM took the boy to the residence where English was watching BNM and her brother so that the adults could play cards while the children played together.
SM found the screen door locked when he arrived, which he thought was odd, as the door was usually unlocked. SM testified that he was about to leave when the boy said he heard BNM's voice within the house. SM then went to a side window and, according to his trial testimony, saw English and BNM standing naked in the bathtub. SM testified that he ran to the screen door and began pounding on it. When English opened the door, SM said that English was wet and wearing only his jeans. English asked SM to be quiet as BNM was sleeping, but allowed SM and the boy to enter the house. SM said nothing about what he had witnessed through the window. Several minutes later, BNM came out from her bedroom in the back of the house with wet hair and wearing only a t-shirt. When the mother returned home, she found SM and English asleep on the couch. She checked on her children, found nothing out of the ordinary, and went to bed.
During the night, SM told the mother's friend what he had seen through the window, although he said nothing to the mother, and he actually gave English a ride home in the morning. On the afternoon of January 3, 1997, the mother's friend informed the mother of what SM had witnessed. At about 8:00 p.m. on January 3, 1997, the mother questioned BNM in the bathroom about the previous evening. BNM initially said nothing about English. Only after the mother became "desperate" and asked BNM to trade secrets with her did BNM admit that English had "played with [my] pee-pee." The mother asked her if English had made her touch his pee-pee or put his pee-pee in her pee-pee, and she said no. The mother, understandably upset, became ill, and the child quickly recanted, saying she was only kidding.
At about 10:00 p.m. on January 3, 1997, the mother telephoned English and asked him to come over. SM drove English to the mother's residence. When they arrived, the mother threatened English with a rifle. English denied having touched the girl, and asked BNM why she was lying. BNM responded, "I didn't—I didn't lie, mom." SM and English retreated from the house, and SM gave English another ride home.
On the morning of January 4, 1997, BNM told her mother that English had indeed touched her pee-pee, but on a night when the mother's friend's son was not present. The mother took BNM to the hospital that afternoon, where a rape kit physical examination was performed. The examining physician found no evidence of penetration. Officer Delger of the Evansville police department arrived at the hospital shortly after the mother and BNM. The mother explained to Officer Delger what had happened, and Office Delger then interviewed BNM who repeated essentially the same statements she had made to her mother.
An information was filed on April 11, 1997, charging English with one count of taking immodest, immoral or indecent liberties with a minor in violation of Wyo. Stat. Ann. § 14-3-105 (Michie Cum. Supp.1996).2 However, the date of the crime was listed as December 31, 1996, the first night English babysat BNM, rather than January 2, 1997.
Prior to trial, English filed a motion requesting that the district court determine whether BNM, as a result of her tender age, was competent to testify at trial. English also filed a motion requesting the district court conduct a taint hearing pursuant to State v. Michaels, 136 N.J. 299, 642 A.2d 1372 (1994). Such a hearing would determine whether suggestive interview techniques tainted the child's testimony to the point where it is no longer reliable. Both motions were denied by the district court. Undeterred, English attempted to bring in an expert witness who would testify as to the reliability of child witness testimony when interviews are conducted in a suggestive manner. The State moved to exclude the expert's testimony, and the district court granted the motion.
At trial, the State placed BNM on the stand, but she was unable to respond to the prosecutor's simple questions. After several attempts to make BNM feel comfortable, the prosecutor asked for a recess. The prosecutor asked the district court whether he could bring in BNM's testimony through the mother's and Officer Delger's hearsay testimony. An unrecorded hearing was held on the request, and the testimony was ultimately admitted. No reason was given by counsel or the district court explaining the court's decision to admit the hearsay testimony.
The jury convicted English of one count of taking indecent liberties with a minor, based on the hearsay statements of the mother and Officer Delger, one eyewitness whose testimony was inconsistent, and, English contends, improper closing argument by the prosecutor. He was sentenced to a term of six to eight years in the Wyoming State Penitentiary.
The decisions of the district court concerning the testimony of the investigating officer and the victim's mother, the denial of pretrial taint and competency hearings, and the exclusion of English's expert witness, as evidentiary rulings, are reviewed under the same standard of review.
Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of a clear abuse of discretion. Simmers v. State, 943 P.2d 1189, 1197 (Wyo.1997); Vit v. State, 909 P.2d 953, 956 (Wyo.1996). We will not overturn a trial court's discretionary decision unless the court acted in a manner exceeding the bounds of reason and could not rationally conclude as it did. Simmers, 943 P.2d at 1197; Vit, 909 P.2d at 956-57.
"`[D]ecisions of the trial court with respect to the admissibility of evidence are...
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