State v. Dylan
| Decision Date | 03 February 2009 |
| Docket Number | Nos. 26,131.,No. 26,562.,s. 26,131.,26,562. |
| Citation | 2009 NMCA 027,204 P.3d 44 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. DYLAN J., Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Gary K. King, Attorney General, Katherine Zinn, Assistant Attorney General, Santa Fe, NM, for Appellee.
Trace Rabern, Santa Fe, NM, Robert Rosenthal, New York, NY, for Appellant.
{1} The opinion filed in this appeal on November 21, 2008, is hereby withdrawn. This opinion is substituted in its stead. This opinion is being refiled in order to list New York attorney Robert Rosenthal as Defendant's counsel after this Court, based on the peculiar circumstances in this case, ruled on a second motion to add his name despite his failure to timely comply with the only controlling rule under the circumstances in this case for non-admitted counsel to appear before this Court. See Rule 12-302(F)(2) NMRA.
{2} In this case, the jury convicted Defendant Dylan J. of three counts of criminal sexual penetration (CSP) in the first degree (child under thirteen), the victims of which were his two young sons. Defendant was acquitted of three counts of CSP. For the reasons discussed in this opinion, we affirm Defendant's convictions.
{3} Defendant has two sons with his former wife, Anna. T.J. was born in 1999, and B.J. was born in 1997. Defendant and Anna separated in 2000, but continued to live together until late 2001 when Anna and the boys moved out of the home. For approximately one more year, Defendant would go to Anna's apartment and stay with the boys while Anna would stay overnight with Julie, a woman she was dating at the time. In December 2002, Julie moved in with Anna and the boys; the boys would visit with Defendant on Sundays and Tuesdays. B.J. began to see a therapist around the time that his parents separated.
{4} In May 2003, T.J., who was four years old at the time, woke up "very upset and very nervous" and had wet the bed. Anna testified that T.J. expressed great concern about B.J., who was spending the night with Defendant, and he wanted Anna to pick up B.J. right away. Anna testified that T.J. talked about someone getting "on him." Anna testified that she asked T.J. if Defendant had "gotten on him," and he said "Yes." Anna also testified that she asked T.J. if Defendant had told him not to tell Anna about the incident, and T.J. said "Yes." Anna further testified that a day later T.J. asked if Anna "was going to smash his penis," following which Anna asked T.J. if someone had smashed his penis. T.J. answered "Yes" and identified Defendant. Anna did not ask B.J. about whether he had been abused, but she and Julie decided that the boys would not be allowed to see Defendant until they could determine what had happened. Anna explained to her sons that Defendant had made "bad choices," which were defined to the boys as "when a grown[-]up touches your private parts or touches you with their private parts."
{5} According to Anna's testimony at trial, a few days after the nighttime incident with T.J., B.J. was riding his bicycle when he threw it down in anger and stated, "I know what you want to know and I'm not going to tell." The same day or the day after the incident with the bicycle, B.J. asked Anna to stroke his arm while she was putting him to bed, which she thought was sexually suggestive and thus refused to do. The next day Anna told B.J. that she wanted to explain to him why she did not want to rub his arm, then she reminded him about not seeing Defendant for a while because of "bad choices" Defendant may have made with T.J., and B.J. responded that Defendant had made "bad choices" with him as well. Anna testified that B.J. then told her "everything that had ever happened to him ... about things that had been done to him and to his brother." Anna testified that these disclosures were made to her in late May 2003 and that she reported the disclosures to the New Mexico Children, Youth and Families Department.
{6} Anna and Julie had, for some time prior to the foregoing conversations, discussed moving to Vermont, but had not secured jobs or housing for the move. However, when Anna was confronted with allegations by the boys that they had been abused, she and Julie decided to move to Vermont right away. In mid-June 2003, Anna took B.J. and T.J. to Michigan to stay with Defendant's father and stepmother. Anna and Julie arrived in Vermont on July 7, 2003. There were problems with the move to Vermont, which included Julie's reluctance to live in the same home with children. Consequently, although the original plan was to leave the boys in Michigan for two weeks, the boys remained there for over two months. When the boys were finally moved to Vermont to be with Anna, arrangements were made for counseling at a center for sexually abused children. B.J. saw Ms. Ulrike Wasmus (Wasmus), M.A., for a little less than one year. Wasmus' expert testimony is one of Defendant's targets on appeal.
{7} Defense counsel filed motions in limine concerning Wasmus' anticipated testimony. In the motions, defense counsel argued that statements made to Wasmus by both B.J. and Anna should be precluded as improper hearsay and as more prejudicial than probative, and also that the qualifications of and diagnosis by Wasmus were subject to exclusion under Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
{8} At the hearing on the motions, Wasmus testified about her education and experience, as well as her diagnosis and treatment of B.J. Based on symptoms reported to her and based on criteria included in the Diagnostic and Statistical Manual of Mental Disorders IV (DSM), Wasmus vacillated between a diagnosis of post-traumatic stress disorder (PTSD) and adjustment disorder, but ultimately diagnosed B.J. with "adjustment disorder with a mixed disturbance of emotion and conduct." Wasmus testified that B.J. met all of the diagnostic criteria for adjustment disorder under the DSM. On cross-examination, Wasmus described the symptoms that are consistent with adjustment disorder as "mixed disturbance of emotion and conduct that speaks about depression and anxiety and also his intense anger issues." In Wasmus' opinion, her diagnosis was consistent with sexual abuse.
{9} Defense counsel challenged the qualifications of Wasmus, the foundation for her diagnosis, the soundness of the diagnosis under Daubert, her anticipated testimony as to consistency of her diagnosis with sexual abuse, and the hearsay statements made to Wasmus. In particular, defense counsel argued to the district court that Wasmus had concluded that B.J. had suffered sexual abuse even before she began to treat him, that Wasmus had not provided a basis for her conclusion that B.J.'s adjustment disorder was consistent with sexual abuse or the abuse of B.J., and that Wasmus' trial testimony would improperly refer to statements made to her by B.J. and Anna that would not fall under any exception to the rules regarding hearsay statements, including the Rule 11-803 NMRA exception permitting statements pertinent to diagnosis and treatment; and those statements would be more prejudicial than probative.
{10} The district court determined that Wasmus was qualified as an expert and would be allowed to "testify ... and form an opinion." The court also ruled that the hearsay statements at issue would be allowed pursuant to Rule 11-803 NMRA as statements "obtained by way of a patient therapist and were used by this witness for the purposes of determining her diagnosis and treatment." The court denied the motions in limine.
{11} We note that, for the most part, Defendant's arguments surrounded and primarily focused on Wasmus' qualifications and anticipated testimony that B.J.'s adjustment disorder was consistent with sexual abuse. Defendant did not specifically argue that Wasmus' anticipated testimony of B.J.'s identification of Defendant as the perpetrator was particularly prejudicial, as well as out of bounds and inadmissible under State v. Alberico, 116 N.M. 156, 861 P.2d 192 (1993), or State v. Lucero, 116 N.M. 450, 863 P.2d 1071 (1993). We also note that Defendant has not appealed from the court's ruling related to Wasmus' qualification to testify as an expert and render an opinion as to adjustment disorder, or from the court's ruling related to Wasmus' anticipated testimony that the adjustment disorder was consistent with sexual abuse.
{12} At trial, the prosecution presented fourteen witnesses, among whom were B.J., T.J., Anna, Julie, Wasmus; two witnesses who testified as to B.J.'s, T.J.'s, and Anna's truthfulness; and a second expert witness who testified that a normal medical examination is consistent with child abuse. Defendant did not testify, but he presented four witnesses who primarily testified about their interactions with and observations of Defendant with the boys and between the boys themselves, and about the fact that these witnesses saw nothing unusual, uncomfortable, or concerning. The jury found Defendant guilty of two counts of CSP involving B.J. and one count of CSP involving T.J. Defendant was sentenced to a total of fifty-four years in prison followed by two years of parole.
{13} Defendant raises several issues on appeal. He asserts error in permitting Wasmus to repeat hearsay statements made to her by B.J. that Defendant actually committed sexual abuse. He asserts error in denying him the opportunity to put on an expert in the field of adjustment disorders. He further asserts that plain error occurred when the court permitted two witnesses to testify that Anna and the boys were truthful people who did not lie. In addition, he asserts that he was denied his constitutional right to effective assistance of counsel.
{14} On direct examination, Wasmus relayed B.J.'s statement to her that Defendant was the perpetrator of the sexual abuse. A mental...
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