Seward v. State, 02-125.

• Citation: 2003 WY 116,76 P.3d 805
• Decision Date: 16 September 2003
• Docket Number: No. 02-125.,02-125.
• Parties: Charles M. SEWARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

76 P.3d 805

2003 WY 116

Charles M. SEWARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-125.

Supreme Court of Wyoming.

September 16, 2003.

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender; and Barbara A. Parnell, Assistant Appellate Counsel.

Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Julie Nye Tiedeken, Special Assistant Attorney General; and Sean W. Scoggin, Special Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In November 2001, a jury found Charles Michael Seward (appellant) guilty of one count of second-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (LexisNexis 2003) and one count of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(iii) (LexisNexis 2003), both felonies, for sexually assaulting his three-year-old granddaughter. The district court sentenced appellant to imprisonment for seven to ten years for second-degree sexual assault and ten to fifteen years for third-degree sexual assault. It ordered that these sentences be served consecutively, but suspended the second sentence upon appellant's release from confinement on the first sentence and conditioned the suspended sentence upon appellant successfully completing supervised probation for up to ten years. Appellant appeals from that judgment and sentence. We reverse.

ISSUES

[¶ 2] Appellant raises the following issues on appeal:

ISSUE I

Whether the admission of expert testimony which impermissibly vouched for the credibility of the child witness was reversible error per se?

ISSUE II

Whether the trial court abused its discretion by finding the child witness competent to testify, and by denying the defendant the opportunity to present pretrial testimony indicating the child's statements were tainted? Whether the child's incompetency to testify violated the defendant's right to the opportunity for effective cross-examination under the confrontation clause of the Wyoming Constitution and the confrontation clause of the United States Constitution?

ISSUE III

Whether the district court abused its discretion when it excluded extrinsic evidence of a prior inconsistent statement of a witness?

The State phrases the issues in substantially the same manner.

FACTS

[¶ 3] On December 12, 2000, the victim and her mother, Crystal Barbee (Barbee), resided with Barbee's fiancé in Fort Collins, Colorado. The fiancé testified that the victim, three years and ten months of age at the time, disclosed "out of the blue" that her "grandpa Michael" (appellant is the victim's paternal grandfather) let her rub lotion on his "lollypop," and that her grandpa also licked her "cookie." The fiancé understood the term "lollypop" to mean "penis" and the term "cookie" to mean "vagina" (Barbee confirmed this). He telephoned Barbee at work and had the victim repeat what she had disclosed over the telephone. Barbee testified that her fiancé called her at work that night, put the victim on the telephone, and the victim stated that she put lotion on her grandpa's "lollypop" and her grandpa licked her "cookie" and "she didn't like it." Barbee immediately drove the victim to the police department in Cheyenne.

[¶ 4] The victim, nearly four years and ten months of age at the time of trial, testified at trial. She recalled attending the Christmas parade in Cheyenne with her father, stepmother, and appellant,¹ and that at some point, when her father, grandmother and other family members were at work, she put lotion that she had found in the bathroom of her grandpa's house in Cheyenne on her "grandpa's dick" or "lollypop" and her grandpa also removed her panties and "licked" her "cookie" on the bed. The victim identified the respective body parts she was referring to on anatomically correct male and female drawings, and also identified appellant as her "grandpa," who she had rubbed lotion on. Witness testimony revealed that the victim often refers to appellant as "grandpa" and her maternal grandfather as "papa."

[¶ 5] Detective Ray Bilkie (Bilkie) of the Cheyenne Police Department interviewed appellant on two occasions. In the first interview, appellant essentially denied his involvement and provided information implicating the victim's maternal grandfather. After a "forensic interviewer" interviewed the victim and the victim identified appellant from a photo array that included both grandfathers, Bilkie interviewed appellant a second time. At this second interview, according to Bilkie, appellant stated that he was a "heavy drinker" at the time of the incident, that he did not recall drinking that day, but that if the victim "says I did it, then I must have. I just don't remember it" or "if [the victim] says this happened, [appellant] may have done this to her, but he just specifically doesn't remember."

[¶ 6] Appellant also testified at trial. According to appellant, age fifty-three at the time of trial, the victim asked if she could take a bath the day of the incident. Appellant ran her bath water. The victim emerged from the bath, appellant put a t-shirt on her, and the victim went to a bedroom and returned with a bottle of baby lotion. According to appellant, the victim asked him to put lotion on her, and he put some on her arms and around her neck. She reportedly then asked him to "put it on, on my cookie." Appellant replied "No, I won't," and the victim responded "Well, my papa does," and appellant again replied "Grandpa's just don't do things like that."

[¶ 7] When the victim's stepmother returned to the residence, appellant informed her that she needed to ask the victim what the victim had previously told appellant. The victim was, according to appellant, reluctant at first because she said her "papa will go to jail." The victim then told the stepmother what she had previously disclosed to appellant, and also later spoke with appellant's wife. Appellant recalled stating to Bilkie that "Well, I guess if, if [the victim] says I did, I guess I must have done something," but that he said this "sarcastically" after repeatedly denying Bilkie's allegations, hoping the detective would "leave [him] alone." He testified that he only drank one beer the entire weekend, and that was the evening following the victim's disclosure. Cassette tapes of Bilkie's interviews with appellant were inadvertently destroyed prior to trial.

[¶ 8] The victim's stepmother testified that when she returned to the residence that day, appellant told her that she needed to talk to the victim, and in the course of doing so, the victim stated that her "papa" puts "lotion on her cookie, and she puts lotion on his lol[l]ypop." When the victim's father returned to the residence that day, he also spoke with the victim alone in a separate room, and she responded similarly and differentiated between appellant and her maternal grandfather. Appellant's wife provided similar testimony regarding her own conversation with the victim that day.

[¶ 9] According to the victim's father, Barbee asked him a "couple months" before the incident to relinquish his parental rights to the victim so that Barbee's fiancé could be the victim's father. The father declined.

DISCUSSION

FORENSIC INTERVIEWER'S TESTIMONY

[¶ 10] In his appellate brief, appellant argues that the testimony of Lynn Story Huylar (Huylar), a "forensic interviewer," impermissibly vouched for the victim's credibility. At oral argument, appellant also generally contended that the district court erred by admitting into evidence Huylar's videotaped interviews with the victim as prior consistent statements pursuant to W.R.E. 801(d)(1)(B). According to appellant, other authority² provides good reasoning concerning whether, despite our precedent, a temporal requirement should be applied in admitting such evidence, and that admitting Huylar's testimony and her videotaped interviews with the victim essentially resulted in a "parade of witnesses." However, appellant's oral argument did not precisely apply either the rule's requirements or the referenced authority to the particular circumstances and nuances of the instant case.

[¶ 11] In response to the vouching issue, the State asserts that Huylar did not opine in her testimony that the victim was credible or truthful, but assisted the jury in "understanding the interview process," the "ability of a child of this age to communicate," and the "behavioral characteristics of sexual misconduct victims...." According to the State, this testimony did not directly comment on the victim's truthfulness, "notwithstanding that information concerning the child's ability to communicate had the likely incidental effect of enhancing the child's credibility."

STANDARD OF REVIEW

[¶ 12] Appellant's trial counsel filed a pretrial motion to exclude the victim's statements to several witnesses, including Huylar, as hearsay. At a motion hearing, the prosecutor argued that the victim's statements were admissible as prior consistent statements pursuant to W.R.E. 801(d)(1)(B), but appellant's trial counsel did not specifically object to any witness' testimony other than Huylar's. At trial, appellant's counsel renewed his objection that the substance of Huylar's interviews with the victim were inadmissible and objected specifically to Huylar commenting beyond the substance of any such interviews. Appellant's trial counsel apparently did not object at trial to either Barbee's testimony or that of her fiancé. At oral argument, appellant's contentions similarly appeared to focus on Huylar's testimony.

[¶ 13] The district court ruled that the victim's statements to Huylar were admissible pursuant to W.R.E. 801(d)(1)(B) to rebut "expressed and implied charges of improper influence, motivation," although...