Smith v. State

• Decision Date: 09 September 2005
• Docket Number: No. 04-61.,04-61.
• Citation: 119 P.3d 411,2005 WY 113
• Parties: George Kalei SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

119 P.3d 411

2005 WY 113

George Kalei SMITH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 04-61.

Supreme Court of Wyoming.

September 9, 2005.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General. Argument by Mr. Pauling.

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

GOLDEN, Justice.

[¶ 1] George Kallei Smith (Smith) appeals his convictions and sentences after a jury trial on five counts of third-degree sexual assault and one count of taking indecent liberties with a child. He claims plain error occurred when the prosecution used improper victim impact argument and testimony; his due process right to a fair trial was violated when, without objection, one of the alleged victims testified while holding a teddy bear; and two types of reversible error occurred during sentencing, viz., unfounded, unproven information was used to penalize him and he was punished for not incriminating himself by expressing remorse to the probation and parole agent and the trial court.

[¶ 2] After careful review of Smith's claims, this Court does not find reversible error and, consequently, affirms the judgment and sentences following his convictions.

FACTS

[¶ 3] The record, including the transcripts of the trial and sentencing hearing, reveals the following information. From late November of 2001 through early April of 2002, Smith repeatedly imposed himself sexually on his fourteen-year-old niece, DH. He began this activity by finding occasions to engage in conversations about sex, eventually becoming increasingly explicit and suggesting he could teach her. Then, while taking her driving in early December of 2001, he put his hand under her shirt and bra and rubbed her nipples, unbuttoned her pants, and touched her vagina with his hand, first above and then beneath her underwear. Approximately a month later, when DH and her brothers were spending the night at Smith's home and everyone else had gone to sleep while watching movies, he approached her again. He began to rub her vagina over her clothes but progressed to doing the same both over and under her undergarments. He then removed her shorts and underwear, spread her legs, and used his tongue on her vagina, telling her she made him "horny."

[¶ 4] That scene repeated itself in early February of 2002 when DH again spent the night as a prelude to a family get-together for the next day's Super Bowl. Then, early the next morning, apparently referencing his having performed cunnilingus on DH a few hours earlier, Smith again approached her and told her she needed to learn how to "return the favor." He then took out his penis and told her to suck on the top of it and rub it with her hand. Because she was afraid of making him mad, she "did it" for a couple of seconds when he started pushing her head down.

[¶ 5] DH again spent the night at her aunt's and Smith's home in early March to babysit while her aunt was out of town. Because Smith usually slept in the basement, DH went to sleep in her aunt's bed. Eventually, Smith entered the room, told DH no panties were allowed in that bed, removed her panties, and began to perform cunnilingus on her again. He then put on a condom and penetrated DH slightly with his penis, telling her he wanted to have sex with her and take her virginity. When the child resisted and pushed him, he removed the condom, and she put on her clothes and went to a spare bedroom to sleep. Undeterred, Smith followed her and told her, "If I can't do you there, then I'll have to do you in the back." At that point, Smith had anal sex with the girl to the point of ejaculation. Later that month or in early April of 2002, while again babysitting for her aunt, DH again had her sleep interrupted when Smith digitally penetrated her vagina.

[¶ 6] Approximately a week later, DH once more spent the night at Smith's home. While trying to get to sleep in the basement, she heard what sounded like Smith and her aunt arguing. Later, Smith came to the basement in a seemingly angry mood, put on a condom, pulled down DH's underwear and put his penis in her vagina. Crying from the pain, the girl hid her tears until he was finished. She then rolled over, crying and shaking, and curled into a ball and went to sleep.

[¶ 7] Because she was scared and knew knowledge of these events would tear her family apart, DH did not report them to any adult until May 31, 2002, when a casual conversation with her parents about a gift for her mother led to an inquiry into whether there was anything she wanted to know about sex and if she had ever had sex. DH had tried to forget what Smith had done to her but could not due to the ways it had changed her. Her grades had gone down, she had lost friends, she became withdrawn, and she slept a lot during the day because she did not feel safe at night. After she confided in her mother and step-father, they first took the matter up within the family and finally reported it to the Powell Police Department on June 2, 2002.

[¶ 8] During the ensuing investigation, it came to light that Smith had molested another young female family member, RT, in June of 1997 when the then fifteen-year-old girl and her family had traveled from Minnesota to Powell for her mother's high school reunion. While RT was attempting to sleep in the basement of the home of Smith's mother-in-law, Smith put his hand down her pants and penetrated her vagina with his fingers. He then pulled down her shorts and got on top of her, trying to have intercourse with her and telling her not to worry — that he could not get her pregnant. The girl, however, squeezed her legs tightly together and pushed him away. When he finally quit trying, Smith told RT, "Whoever takes your virginity is going to be a lucky man." RT never reported the incident at the time because she knew she would not have to see Smith again, and because she was afraid she would not be believed or be accused of having herself done something wrong.

[¶ 9] As a result of this investigation, Smith was charged on August 1, 2002, with seven felonies: Count I, the third-degree sexual assault of RT; Count II, taking indecent liberties with DH in December of 2001; Counts III, IV and VI, the third-degree sexual assault of DH in, respectively, January, early February and April of 2002; and Counts V and VII, the second-degree sexual assault of DH in, respectively, March and April of 2002. The Information was thereafter amended to correct the spelling of DH's name, to change the dates for the offense charged in Count VI — from April 1 through April 30, to March 28 through March 29 — and to lower the second-degree sexual assault charges in Counts V and VII to charges of third-degree sexual assault.

[¶ 10] On October 29, 2002, Smith waived his preliminary hearing and was bound over to the district court where, on January 24, 2003, he was arraigned and entered not guilty pleas. His trial commenced on July 15, 2003. On July 18, the jury returned its verdict, finding him not guilty with respect to Count IV, but guilty of all remaining counts. Following a hearing on December 4, 2003, Smith was sentenced to a term of imprisonment of five to seven years on the indecent liberties count and to terms of eight to ten years on each sexual assault count. All terms were ordered to run consecutively except for those relating to two of the sexual assault convictions on Counts V and VI, which were ordered to run concurrently only to each other.

[¶ 11] Additional facts will be set out below in relation to the particular issues to which they pertain.

Issue One: Whether plain error occurred when the prosecutor used improper victim impact argument and testimony.

[¶ 12] Smith claims that the prosecutor used irrelevant victim impact argument and testimony which "permeated the trial, fatally tainting the evidence against" him. He recognizes that we must apply the plain error standard of review to this claim because he did not object at trial to the several instances he now identifies. Under that standard of review, he must show the record is clear as to the instances alleged to be error, a clear and unequivocal rule of law was clearly violated, and he was materially prejudiced by the error. Person v. State, 2004 WY 149, ¶ 32, 100 P.3d 1270, 1285-86 (Wyo.2004).

[¶ 13] The instances of argument and testimony about which Smith complains fall into three groups. In the first group, the instances concern the impact of Smith's alleged acts on DH; in the second group, the instances concern the impact of DH's reporting of Smith's alleged acts on the relationships of DH and DH's mother with other family members; and in a third group, Smith identifies one brief question-and-answer exchange between the prosecutor and victim RT as another instance of improper victim impact evidence.

Impact of Smith's alleged acts on victim DH

[¶ 14] Smith identifies the following instances of argument and testimony in this group: 1) To the prosecutor's question why she had not reported her allegations earlier, DH answered:

I was scared, and I kind of knew it would tear my family apart. You know, I couldn't even imagine what kind of damage it would do, or if I'd ever be able to — you know, I know — too, I think I kind of also, I tried to ignore the fact that it happened as much as possible. But it didn't really work, because it changed me in a lot of ways.

The prosecutor then asked, "How did it change you, if you can articulate, if you can say?" DH responded:

My grades went down. I lost a lot of my friends. I lost my aunt, and she was like my best friend. After I told, I couldn't sleep alone by myself. I slept — I pretty much slept a...