Frenzel v. State

• Decision Date: 26 March 1993
• Docket Number: No. 92-96,92-96
• Citation: 849 P.2d 741
• Parties: Paul Albert FRENZEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 741

849 P.2d 741

Paul Albert FRENZEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 92-96.

Supreme Court of Wyoming.

March 26, 1993.

Michael J. Krampner (argued), Casper, and Donna S. Sears, Lander, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, and Michael M. Robinson (argued), Student Intern., for appellee.

Before MACY, C.J., THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J. Retired.

CARDINE, Justice.

Appellant challenges his conviction of seven separate counts of first degree sexual assault (W.S. 6-2-302). He argues that the State's expert improperly testified concerning the victim's credibility and concerning "Child Sexual Abuse Accommodation Syndrome." Additionally, appellant alleges that several of the State's other witnesses improperly testified to the victim's rendition of the assaults and on the defendant's prior bad acts.

We affirm.

Appellant presents the issues as follows:

I. Did the trial court err when it allowed the psychologist to vouch for the veracity of the State's complaining witness?

II. Did the trial court err in allowing prosecution witnesses to recite the allegations of the accuser, even though those recitations were not for the purpose of refuting an allegation of recent fabrication?

III. The trial court erred in allowing the psychologist to testify that the complaining witness suffered from a "syndrome" which could only be the result of the offenses alleged, when that syndrome is not generally recognized in the field of psychology.

IV. The trial court erred in allowing evidence of other "bad acts" which were not admissible under Rule 404(b), W.R.E.

In addition, the State raises a fifth issue:

V. Must the victim's compensation surcharges be modified?

BACKGROUND

For a complete understanding of the contentious testimony in this case, it is necessary to briefly describe the parties involved and their relationship to one another. It is easiest to keep track of the parties by their connection to the appellant.

Appellant has two siblings, a sister, age 47 (T-1) and a brother, age 44 (B-1). Both of these siblings live in California and evidently have done so for most of their adult lives. The man to whom T-1 had been married for twenty-five years is now married to the appellant's second daughter (D-2), the prosecutrix. T-1's husband mistakenly believed that he was divorced from T-1 when he married D-2.

Appellant has fathered children with four separate women. He and his first wife (W-1) produced one child, a daughter (D-1). Appellant and his second wife (W-2) produced D-2 (the prosecutrix) and a third daughter (D-3). Appellant became separated from W-2 and began a non-marital relationship with another woman (W-3) which produced three sons (S-1, S-2, S-3). Appellant then became estranged from W-3 and has since begun a new relationship with another woman (W-4) and produced another son (S-4).

In the Fall of 1989, appellant, W-4, D-2, D-3, S-1, S-2 and S-3 all moved to Cody, Wyoming. At the time, appellant was 44, W-4 was 18, D-2 was 17, D-3 was 15, S-1 was 10, S-2 was 8 and S-3 was 5. They moved into a trailer home six miles outside of town. The testimony is disputed as to when the children started school, but at some point all the children did attend school in Cody. Appellant worked periodically cleaning carpets and driving a truck. The prosecutrix (D-2), went to school occasionally and worked at a local fast food restaurant. It was during this approximate five-month stay in Cody when D-2 claims the sexual abuse occurred.

During the family's five-month stay in Cody, appellant allegedly committed seven different acts of first degree sexual assault on his daughter, D-2. Four separate incidents account for each of the seven assaults. Each assault involved forced penetration either orally or vaginally with the appellant's penis or another object.

Within a few days of the last assaults, appellant moved his family back to California. Once in California, appellant and W-4 moved to Los Angeles and both D-2 and D-3 moved in with D-1. While in California, D-2 was arrested on a warrant issued in Park County, Wyoming for bad checks she wrote in Cody. The Park County sheriff and his wife travelled to California to bring D-2 back to face the check writing charges. It was on this trip back to Wyoming when D-2 first began to relate her sexual abuse history to the authorities.

In our discussion of the alleged trial errors, we will further relate the relevant facts as necessary.

DISCUSSION

Clinical Psychologist's Expert Testimony

Appellant makes two challenges to the admission of expert testimony from the State's expert. First, he argues that the testimony was the equivalent of vouching for the victim's credibility. Second, appellant asserts that the expert should not have been permitted to testify concerning the "Child Sexual Abuse Accommodation Syndrome" (CSAAS). Both of these objections are premised on W.R.E. 702 which permits admission of expert testimony only if it will assist the trier of fact. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Appellant correctly asserts that expert opinion which vouches for the victim's credibility violates W.R.E. 702. Montoya v. State, 822 P.2d 363, 365 (Wyo.1991); citing Zabel v. State, 765 P.2d 357 (Wyo.1988). Then appellant argues that expert testimony which discusses CSAAS violates W.R.E. 702 because CSAAS is not generally recognized in the field of psychology and thus is not sufficiently reliable to assist the jury.

In order to properly address these issues, it is necessary to understand the content of the expert's testimony. Dr. Ned Tranel was qualified as an expert in child psychology and child sexual psychopathology. The relevant testimony developed as follows:

[Dr. Tranel]: There is, when one encounters a condition of child sexual psychology, child sexual abuse accommodation syndrome and a syndrome refers to a pattern of behaviors which are called symptoms, and in order for this syndrome to exist, then we look at the presence of or question whether they are, there is evidence of certain characteristics or symptoms, and there are five of these.

[Prosecutor]: Could you list those?

[Dr. Tranel]: * * * [F]irst one is secrecy * * *. The second one is a sense of hopelessness, and the reason that's relevant is because there is usually a child involved and usually the perpetrator is an adult * * *.

The third characteristic is a pattern of accommodation, * * * which enables the person to survive over a long period of time * * *.

The fourth characteristic is delayed reporting. Sometimes disclosure is used instead of reporting, and reporting is delayed and conflicted, and the reason for this, and in this case there is a classic pattern here[.]

* * * * * *

The last characteristic we find in this syndrome is retraction or sometimes called recanting or taking back the disclosure of the sexual abuse * * *.

So those are the five characteristics of this child's sexual abuse accommodation syndrome as it's called.

After being admitted as an expert, Dr. Tranel continues his dissertation:

[Prosecutor]: And could you tell us, you mentioned about the child accommodation syndrome, what patterns of behavior manifested by [the victim] and the testing results indicated whether or not she may fit within that particular syndrome?

[Dr. Tranel]: Yes. I listed the symptoms there and then I looked at the test data from my evaluation to determine whether those, whether there was consistency, and as I indicated, there was. There was evidence that this was, I use the term classic pattern, there was, first of all, the secrecy that I mentioned, and that was re-enforced by the abortive attempt that she made early on to disclose the pattern of abuse. She first attempted to report this to her grandmother who didn't believe her and called her a liar. She made another abortive attempt to report this to her uncle, * * * who believed her but then also participated in the abusive pattern, and there were other abortive attempts during her academic career but none of them were followed through on with any length of time because, mainly because of the frequent and sudden moves that characterized her life throughout her academic career. So the secrecy was sustained until, I have it in my note, I don't recall the exact date, it was returning from California to Wyoming with the Sheriff or Deputy, and that finally led to disclosure, which was pursued more diligently. The second feature I mentioned was the helplessness, and that was part of the environment in which she lived as well as the relationship between her and the abusers, those including her father, her grandfather, and her uncle. All of them, of course, older and bigger, plus she was experiencing the helplessness associated with a pattern of extreme poverty and cultural deprivation and academic failure, and she had no opportunity to overcome that and feel good about herself.

* * * * * *

Then the third thing was the entrapment or the accommodation where she eventually learned techniques for surviving or living with this continuing pattern, and one of the techniques she used or typically was to react initially with aggression and fighting and succumb and adapt and assume a passive stance as things continued on.

Then the next thing was the delayed disclosure, and I already mentioned the attempts at disclosure which were not fruitful, and the last one, and I have no evidence of this from anywhere, that there was ever an occasion of recantation or taking back what she said. That apparently did not...