People v. Wheeler
| Decision Date | 10 March 2022 |
| Docket Number | 112078 |
| Citation | 203 A.D.3d 1330,164 N.Y.S.3d 313 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Shawn M. WHEELER, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Buzzetti Law Office, Elmira (Matthew Buzzetti of counsel), for appellant.
Joseph G. Fazzary, District Attorney, Watkins Glen (John C. Tunney of counsel), for respondent.
Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.
Appeal from a judgment of the County Court of Schuyler County (Morris, J.), rendered February 21, 2019, convicting defendant following a nonjury trial of the crimes of criminal sexual act in the second degree and sexual abuse in the third degree (three counts).
Following allegations that he subjected a 13–year–old female family member (hereinafter the victim) to certain sexual contact while putting her to bed one evening, defendant was charged with one count of criminal sexual act in the second degree, one count of attempted rape in the second degree and three counts of sexual abuse in the third degree. Following a nonjury trial, defendant was acquitted of attempted rape but otherwise convicted as charged. He was then sentenced to four months of intermittent incarceration on each conviction, to be served concurrently, and 10 years of probation. He appeals.
We initially reject defendant's contention that the verdict is against the weight of the evidence. "When conducting a weight of the evidence review, this Court must first determine whether, based on all the credible evidence, a different finding would not have been unreasonable and, if not, then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" ( People v. Cummings, 188 A.D.3d 1449, 1450, 136 N.Y.S.3d 524 [2020] [internal quotation marks and citations omitted], lv denied 36 N.Y.3d 1096, 144 N.Y.S.3d 132, 167 N.E.3d 1267 [2021] ; see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see also People v. Lane, 7 N.Y.3d 888, 890, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ). As limited by their indictment and bill of particulars, the People were required to establish that defendant, being at least 18 years old, engaged in oral sexual conduct with the victim when she was less than 15 years old (see Penal Law § 130.45[1] ) and subjected her to three instances of sexual contact without her consent, to wit, by touching her breasts and genital area and having her touch his penis (see Penal Law § 130.55 ).
During the relevant time period, the victim was 13 years old. The evidence reveals that she has a seizure disorder and suffered a stroke as an infant, resulting in weakness on her right side, including difficulty using her right arm. She was also diagnosed with certain cognitive deficits, and she was described by various witnesses as having the abilities of an 8 to 11 year old. The victim's mother (hereinafter the mother) lives with defendant, age 32 at the time of the incident, and the victim lives with them and three other children part time. The subject incident occurred over the weekend of August 13, 2017 when defendant was putting the victim and the other children to bed. All agree that this was more often the mother's task, if anyone were to tuck the children in at all, but she was tired that evening. According to the testimony of the victim and one of the female children living in the house (hereinafter the young female relative), they said goodnight to the mother and defendant downstairs, but defendant then offered to come upstairs to tuck them in. The mother then readied herself for bed and, at some point, fell asleep.
Meanwhile, defendant went upstairs. The entirety of the second level of the house is comprised of two bedrooms and a small landing, or hallway, in between. The victim shares one of those rooms with the young female relative, and a young male child sleeps in the other bedroom.1 Neither bedroom had doors during the relevant time. The girls’ beds were set up on opposite sides of their bedroom, described as being somewhere between 8 and 14 feet apart and separated by a large dresser. According to the girls, they had already gotten into their pajamas and were lying in their beds when defendant got to their room; the victim made clear that the weakness in her right arm does not prevent her from getting changed into her pajamas on her own. Both girls also testified that the lights in their bedroom were off and they could not see because it was "dark" or "very dark." The victim recalled that the hallway light was also off, and all agreed that this light was "always," or at least ordinarily, left on as a nightlight for the children. The mother also testified that, ordinarily, the bedroom light would be turned off as the parent tucking in the children walked out of the room, not before. Defendant tucked the young female relative in first and then went to the victim's bed.
According to the victim, defendant then sat on her bed, moved her closer to the wall and removed her tank top, bra, shorts and panties. She described that he then "rubbed" her "chest" and her "private part," clarifying upon further questioning that she meant her breasts and vagina, respectively. She testified that he also wanted her to put his "pee-pee," meaning penis, in her mouth, which she did. He also wanted her to "squeeze" his penis, which she also did. Defendant next stated that he wanted her to get on top of him and, in his words, "try something new." The victim testified that she told defendant that what he was doing was "weird," and he in turn asked her why it was weird; when she repeated herself, he stopped. She clarified that the foregoing act involved defendant's penis and her vagina, but she was unsure if his penis went inside of her vagina "because it was dark." The victim testified that she called out "help" to the young female relative several times during the incident at a "loud" volume in hopes that she would go get the mother, but that did not happen.2 Defendant then put the victim's clothes back on, exited the room, turned the hallway light on and went back downstairs.
According to the mother, when defendant ultimately came back downstairs, she "was asleep but awake enough that [she heard] him coming through the door into the bedroom." He then made a near immediate request of the mother for sex in a manner she described as not unusual. She generally agreed that it felt like defendant was upstairs for an unusually long time, given that tucking in the children was a quick process for her and she was ultimately unable to stay awake the entire time he was upstairs. She also testified, however, that she was "[n]ot completely" asleep the entire time that defendant was upstairs and, via a heating vent, she was able to hear typical bedtime commotion that settled thereafter. The heating vent is located in the ceiling of a closet located next to her and defendant's downstairs bedroom, and it connects to a vent on the landing at the top of the stairs. She stated that they tended to keep those closet doors open and the heating vent was regularly used to listen in on the children while they are upstairs. She testified that, on prior occasions, she had been able to hear the children whispering when they were supposed to be in bed asleep. The victim's mother asserted that, while defendant was upstairs on the night in question, she did not hear anything like the statements allegedly made by defendant or the victim.
According to the young female relative, who was nine years old at the time of trial, defendant took what "seemed like a normal amount of time" putting the girls to bed on the night in question. She testified that, while defendant was tucking in the victim, she heard the victim "laughing and that's all." The young female relative further recalled that the victim said "help" while she was being tucked in, which made the young female relative "[j]ust a little bit" concerned because she "couldn't really tell" if the victim was okay. The young female relative testified that she tried to go to the victim, but defendant repeatedly directed her to go back to her own bed. She did not hear defendant state anything else while he was in the girls’ bedroom, but she had also fallen asleep by the time defendant exited.
The victim disclosed the incident to her mother in the days that followed. According to the mother, the victim told her that defendant touched her "inappropriately the other day." When asked what she was talking about, the victim stated, "[T]he other day he touched me when he was tucking me in."3 Immediately following the victim's disclosure, the mother called defendant to come home from work stating only that the victim had made allegations against him. Upon prompting by another friend, who happened to also be a mandated reporter, the victim's mother then called the police, who were there by the time defendant arrived home. A sexual assault examination was performed shortly thereafter, and the victim's report to the sexual assault nurse examiner was consistent with her trial testimony. No visible physical injuries or DNA were present, which was also consistent with the sexual acts the victim described and the fact that she had since showered.
In arguing that the verdict is against the weight of the evidence, defendant takes issue with the sometimes leading questions posed by the People to the victim, an alleged lack of corroboration of her version of events and the absence of any scientific evidence demonstrating that any sexual abuse had occurred. Because the proof relies heavily on the testimony of the victim and the young female relative, a different verdict would not have been unreasonable here (see People v. Jackson, 176 A.D.3d 1312, 1312, 113 N.Y.S.3d 277 [2019] ). However, when we view the evidence in a neutral light and defer to County Court's...
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