People v. Vela
| Decision Date | 21 August 2003 |
| Docket Number | No. 235728.,235728. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARRELL VELA, Defendant-Appellant. |
| Court | Court of Appeal of Michigan (US) |
Appeal from Muskegon Circuit Court, LC No. 00-044519-FC.
Before: Whitbeck, C.J., and Smolenski and Murray, JJ.
A jury convicted defendant Darrell Vela of second-degree criminal sexual conduct (CSC)1 for engaging in sexual activity with his daughter, who was under ten years old at the time of the offense. The trial court sentenced Vela to 5 to 15 years' imprisonment. He appeals his conviction and sentence as of right. We affirm.
The victim in this case was born on February 10, 1989, and is the daughter of Vela and Shawn Backensto. Vela and Backensto divorced in 1992, but remained friends. Shortly after the divorce, Vela moved in with his mother, occupying a basement room in her house. A visitation agreement provided that the victim would stay with Vela once a week, every other weekend, and for six weeks each summer; however, Backensto agreed to let Vela see the victim more often if he wished. According to the victim, she spent every weekend with Vela. While visiting Vela at his mother's house, the victim would share a bed with Vela. After Vela's mother died in 1995, he moved to what the parties refer to as "the blue house."
In 1994, Backensto took the victim to gynecologist Dr. Lourice David after noticing genital redness and irritation. David's examination was limited by the victim's age and uncooperativeness, although the results were sufficient to raise concerns about possible molestation. However, Backensto told David that molestation was not a possibility because the victim was never left with anyone except Backensto's parents and Vela.
In 1997, the victim's teachers notified Backensto that she was having emotional problems that affected her grades, and Backensto recalled that the victim seemed obsessed with seeing her father during this time. Backensto filed a motion to cease visitation with Vela in February of 1998 because of concerns that Vela was drinking during visitation and allowed a woman to spend the night with him during visitation; however, this motion was resolved when the parties signed an agreement wherein visitation would continue as before if Vela would pay increased child support.
Concerns about sexual abuse resurfaced in the fall of 1998, when the victim called Backensto's attention to bumps in her genital area. Backensto brought the victim to a pediatrician who diagnosed the bumps as venereal warts caused by the human papilloma virus (HPV). According to the expert testimony at trial, HPV is most commonly transmitted by sexual contact, although it can also be transmitted through other means, including sharing a towel or toilet seat with an infected person or passing through the birth canal of an infected mother. Both Vela and Backensto have HPV.
On October 1, 1998, Backensto again took the victim to David who, despite the victim's uncooperativeness during the examination, was able to confirm the existence of venereal warts. According to David's notes from this examination, the victim's hymen was intact. David decided to delay performing a complete examination until the victim returned to have her warts surgically removed, when she would be unconscious from general anesthesia and easier to observe.
When David anesthetized and began treating the victim over a week later, she noticed that the victim's hymen was in fact damaged, and also that there was a large vein on her anus. David testified that the scarring of the hymenal tissue indicated that the damage occurred before the October 1 examination, meaning that her initial observation that the hymen was intact was inaccurate. After the surgery, David informed Vela and Backensto that the most likely explanation for this combination of symptoms was that the victim had been sexually abused. After this revelation, Backensto and Vela agreed not to allow the victim to be with any other adults besides the two of them.
The victim met with Vicki Birdsall on September 28, 1998. Birdsall told Backensto that the victim's description of her relationship with Vela, including the facts that Vela sent her flowers, asked her to wear her hair a certain way, wear certain clothes, and that they slept in the same bed, raised concerns that the relationship was inappropriate. However, the victim told Birdsall that Vela had not sexually abused her. Backensto filed a motion to cease visitation with Vela on September 30, 1998 because of continued concerns about having a woman in the house overnight during visitation and because of an ongoing Protective Service investigation. Backensto also explained that she was concerned about allowing the victim to be with Vela because she did not want the victim to be alone with certain members of Vela's family until the sexual abuser was identified.
After the victim had been questioned by Birdsall, she told her mother that she had been sexually abused by her six-year-old cousin; however, she retracted this statement a day or two later. Backensto testified that the victim then began asking questions relating to what would happen if her father were the perpetrator, and whether he would go to jail. These questions caused Backensto to call Protective Services.
Backensto and Vela took the victim to therapist Kristine Koetje in early October 1998. Shortly thereafter, the victim disclosed to Backensto that her father had been sexually abusing her, and also disclosed this fact to Koetje. Koetje asked the victim to demonstrate what had happened using stuffed animals, then gave her heart- and star-shaped stickers afterward. However, Backensto stated that the victim later recanted and told Backensto that she could not remember what happened. In January 1999, the victim met with Judge John Ruck for an in camera custody interview, at which, according to third-party accounts, she reportedly stated that Vela did not sexually abuse her and that she wanted to see him. Over the next several months, the victim also saw YWCA counselor Katherine LePink, who enrolled her in a YWCA adolescent group therapy program for sexual abuse victims, and Laurie Hawkins of the Child Abuse Council.
On October 6, 1999, the Family Independence Agency referred the victim to Dr. Vincent Palusci, a medical expert in the area of sexual abuse of children, forensic interviewing techniques, and psychological assessment, for an evaluation. Palusci observed that the victim had warts, a damaged hymen, and abnormal anal muscle tone. Taken together with the victim's own reporting of what had occurred, Palusci stated that "there was definitive evidence that she had been sexually abused."
In April 2000, Vela was charged with one count of CSC I2 and one count of CSC II.3 At trial, the victim testified that when she spent weekends with Vela, he would sleep in the same bed with her. According to the victim, Vela would take off his boxer shorts, then ask her to take off her underwear and pajamas, and as they lay on their sides he would put his penis inside her vagina. The victim explained that she did not tell her mother about what was happening because she trusted Vela and did not know that what he was doing was wrong. She said Vela had told her that he loved her and that "all daddies do this to their little girls." She testified that she liked visiting Vela because he took her places and bought her things. The victim stated that the abuse continued from the time she was "really, really young" until Vela moved to the blue house and began dating his present girlfriend, after which it only happened "a very few times." The victim initially believed that the police would kill her father if they found out he had sexually abused her. She explained that she denied that it was Vela to Backensto and Birdsall because she did not want to get Vela in trouble, and falsely accused her six-year-old cousin for the same reason.
Vela admitted that the victim shared his bed when staying with him at his mother's house and that they would occasionally cuddle; however, he denied that anything inappropriate or sexual occurred. He also admitted sending the victim flowers on two occasions, but explained that one occasion was to make up for an altercation she witnessed between himself and Backensto and her husband, Rick Backensto, after the Backenstos accused him of being drunk and refused to allow the victim to go with Vela to a sporting event. The second occasion was her birthday.
Vela issued a subpoena for Judge Ruck to be questioned regarding his in-camera interview with the victim in which she allegedly stated that Vela had not sexually abused her however, after oral argument, visiting Judge Anthony Monton granted Judge Ruck's motion to quash on the basis that there were no "sufficient, compelling circumstances" to justify requiring Judge Ruck to disclose confidential information, particularly in light of the fact that Judge Ruck had no specific recollection of his interview with the victim.
Vela presented expert testimony of Stephen Guertin, M.D., director of a hospital pediatric intensive care unit and associate professor of pediatrics. Guertin testified that the victim's hymenal trauma could have been caused by her struggling during a medical examination or during her wart-removal surgery. Guertin also testified that there is a high incidence of false reports of sexual abuse among children who are the subject of custody or visitation disputes.
Melvin Guyer, Ph.D., also testified as an expert witness for the defense. Guyer testified that the counselors and therapists who interviewed the victim used improper techniques that may have encouraged the victim to falsely accuse Vela by continuing to question her after she denied Vela sexually abused her and by suggesting that this was the "correct" answer. Guyer explained that when a child initially denies sexual abuse, that...
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