Rivera v. State

• Citation: 840 P.2d 933
• Decision Date: 30 October 1992
• Docket Number: No. 90-163,90-163
• Parties: Kerry RIVERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 933

840 P.2d 933

Kerry RIVERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-163.

Supreme Court of Wyoming.

Oct. 30, 1992.

Rehearing Denied Jan. 5, 1993.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Donald K. Slaughter, Asst. Public Defender, Dave Gosar, Appellate Counsel, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Mary B. Guthrie, Deputy Atty. Gen., for appellee.

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

THOMAS, Justice.

The primary issues in this case, emanating from convictions of sexual assaults on two minor girls, relate to the admissibility of evidence. Specifically, Kerry Rivera (Rivera) contends that error occurred in the admission into evidence of DNA profiling; in the admission of opinion evidence on his guilt; and evidence of other bad acts in violation of Wyo.R.Evid. 404(b). A further significant claim is raised with respect to violation of the double jeopardy clauses of the state and federal constitutions arising out of charges and convictions of indecent liberties and sexual assault in each instance. Collateral issues include the claim of cumulative error and a claim of credit against the sentences imposed because of pretrial confinement. We hold no error occurred with respect to admission of evidence in this case but, in one instance, the charge of indecent liberties, while properly presented to the jury, merged into the charge of sexual assault for purposes of punishment. We accept the concession of the state with respect to the issue of pretrial confinement. The judgment and sentences of the trial court are affirmed except that one sentence for indecent liberties is set aside, and credit is to be properly awarded for pretrial confinement.

Rivera was charged with, and convicted of, first-degree sexual assault in violation of Wyo.Stat. § 6-2-302(a)(i) (1988) in one instance, and Wyo.Stat. § 6-2-302(a)(iii) (1988) ¹ in the other instance, and violations of Wyo.Stat. § 14-3-105 (1986) ² with respect to two separate minor female victims. In August of 1989, BJL, then sixteen years old, complained of a sexual assault by Rivera. In the course of the investigation of that complaint, law enforcement officers received information of an earlier assault upon MB in March of 1988. MB also was sixteen years old at the time of the assault. The sexual assault count with respect to MB was charged as a violation of the provisions of § 6-2-302(a)(i), and the sexual assault against BJL was charged as a violation of the provisions of § 6-2-302(a)(iii). After a jury trial resulted in convictions on all counts, Rivera was sentenced to not less than five nor more than ten years on each charge of indecent liberties with a minor, and to not less than six nor more than ten years on each of charge of first-degree sexual assault, with the provision that all four sentences were to run concurrently. In addition, the judgment and sentence provided that Rivera was to "be given credit for time served in the Hot Springs County Jail, in the amount of 282 days, said credit to be applied against the minimum and maximum sentence ordered herein [emphasis added]."

In his Brief of Appellant, Rivera states the issues as follows:

I. Whether evidence of DNA profiling was properly admitted at trial.

II. Whether Appellant's constitutional right to a fair trial was abrogated when the trial court admitted testimony in contravention of Bennett v. State.

III. Whether Appellant's constitutional right to be free from double jeopardy was violated.

IV. Whether the trial court improperly admitted evidence of purported prior bad acts.

V. Whether Appellant's convictions should be reversed pursuant to the doctrine of cumulative error.

VI. Whether Appellant should be credited with 282 days time served to be credited against the maximum and minimum terms of all phases of Appellant's concurrent sentences.

The State of Wyoming includes the same issues in its Brief of Appellee, but it restates them in this fashion:

I. Whether the testimony relating to DNA profiling was properly admitted.

II. Whether a clinical psychologist, a school counselor and a hospital social worker gave their opinions on the Appellant's guilt.

III. Whether the Appellant should have been tried for first degree sexual assault and taking indecent liberties with a child.

IV. Whether evidence of earlier assaults by the Appellant was properly introduced under Rule 404(b), W.R.E.

V. Whether there was cumulative error.

VI. Whether Appellant should have been given credit on concurrent sentences for pretrial incarceration.

The investigation of Rivera was instituted because of a complaint by BJL that she had been sexually assaulted in August, 1989. BJL had been drinking beer at a party that night, and she testified that she was intoxicated. Earlier in the evening, after an argument with her boyfriend, she had broken up with him. She was discussing this with Rivera and his wife, and Rivera invited her to stay at their home for the night. Rivera's wife had gone to bed in the bedroom; Rivera was in the living room on the couch; and the victim was in the living room on the floor while they talked. BJL then dozed off, but was awakened because Rivera and his wife were arguing about the light being on in the bedroom. Her sleep was interrupted more than once by that argument which apparently terminated when Rivera removed the light bulb.

BJL fell asleep, again, but awakened later to discover that Rivera had pulled down her jeans and panties past her knees. He was on top of her and had achieved penetration of her vagina with his penis. BJL told Rivera to get off of her and, after a while, he complied and went into the bathroom. BJL got up and went to her boyfriend's apartment which was nearby. She told her boyfriend what had happened and spent the rest of the night at his apartment. Although BJL testified that she slept in the same bed with her boyfriend, she said they did not engage in sexual intercourse. The following morning, the boyfriend took BJL to the police station where she made her complaint against Rivera. The police officers then took her to the hospital where a medical examination, including the utilization of a rape kit, was performed. Charges of sexual assault and indecent liberties with a minor were filed against Rivera.

The police officer investigating the accusation by BJL learned that MB might have information that was material. The officer and the prosecutor sought out MB as a witness. Their investigation revealed MB contacted her school counselor; told the counselor that she had been raped by Rivera; and sought the counselor's advice with respect to whether she should tell the investigator and the prosecutor. The counselor advised she should tell them about this event.

MB disclosed these facts to the police officer and the prosecutor. In March of 1988, MB and her father were living with relatives (MB's aunt and her husband), who also were Rivera's future in-laws, in a dwelling in Thermopolis. Rivera was a member of that household. MB and Rivera were alone in the house when MB went to Rivera's fiancee's bedroom to obtain a typewriter with which to do her homework. At that time, Rivera asked her to rub his back. While she was administering the back rub, Rivera grabbed her hand and shoved it down his pants, making contact with his penis. MB protested, and Rivera then threw her on the bed and, despite her insistence that he should stop and leave her alone, he accomplished sexual intercourse with penetration. When he was finished, he left the room, after telling her not to tell anyone.

MB immediately took a shower because she felt "dirty." The next day, she wrote a letter to her sister, informing she had been raped by Rivera. She asked her sister to throw the letter away after reading it because she was afraid someone else would read it and find out about the rape. The day after the incident, MB told a friend that she had been raped by Rivera. About a week later, she called the sister to whom she had written the letter and discussed the rape with her. At that time, MB told her sister she had not told anyone else in the family because she was afraid it would cause problems with everyone and her aunt would make her and her father move out of the house where they were living. The charges of sexual assault in the first degree and indecent liberties with a minor then were filed alleging the violation of MB and later were consolidated with the same charges arising out of the complaint of BJL. Additional facts will be included in connection with the discussion of issues asserted by Rivera.

We first address the issue of testimony as to the truthfulness of the victims by a clinical psychologist, a social worker at the hospital, and the high school counselor. Rivera's claims are far-ranging, although his reference specifically to Bennett v. State, 794 P.2d 879 (Wyo.1990), would seem to focus upon testimony of an opinion as to Rivera's guilt. The claims seem to include an attack upon admissibility of the evidence encompassing the rape trauma syndrome, move to argument about the testimony of experts amounting to a comment on the veracity of the victims, and then culminate in the claim that the testimony constituted a comment upon Rivera's guilt. None of these contentions are sustained by the record in the case or precedent in Wyoming.

Rivera did file a motion in limine to suppress testimony concerning "Post-Traumatic Stress Syndrome" (the rape-trauma syndrome) which was denied. The witnesses whom Rivera includes in this asserted issue testified in the following order: the police officer; the hospital social worker; an emergency medical technician at the hospital; the nurse who assisted in BJL's medical examination; the examining physician; the victims; the school counselor; and the clinical psychologist. The police officer testified that he had...