State v. Skaro

• Decision Date: 16 August 1991
• Docket Number: Cr. N
• Citation: 474 N.W.2d 711
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Peter Martin SKARO, Defendant and Appellant. o. 900229.
• Court: North Dakota Supreme Court

Page 711

474 N.W.2d 711

STATE of North Dakota, Plaintiff and Appellee, v. Peter Martin SKARO, Defendant and Appellant.

Cr. No. 900229.

Supreme Court of North Dakota.

Aug. 16, 1991.

Sonja Clapp (argued), Asst. State's Atty., Grand Forks, for plaintiff and appellee.

Robert J. Woods (argued), Forest River, for defendant and appellant.

ERICKSTAD, Chief Justice.

Peter M. Skaro (Skaro) was convicted by a jury of committing gross sexual imposition and was sentenced to the State Penitentiary for a term of ten years. Skaro has appealed from an order denying his motion for a new trial and from an order denying his request for relief under the Uniform Post-Conviction Procedure Act, Chapter 29-32.1, N.D.C.C. ¹ We affirm both orders.

Skaro was charged with the crime of gross sexual imposition by "knowingly engaging in sexual contact" with his nine-year old stepdaughter, Ann [a pseudonym], ² between June and November 1989, in violation of Section 12.1-20-03(2)(a), N.D.C.C. At trial Ann testified in detail about the sexual contacts that occurred between herself and Skaro. She testified that on many occasions Skaro fondled her genitalia with his hands and tongue and that on numerous other occasions he forced her to have vaginal and anal intercourse with him. Ann testified with the use of drawings and pictures and with descriptive terms such as "private spot" to refer to her genitalia. The nature of the sexual abuse forced upon her by Skaro was vividly portrayed by her testimony.

Dr. Jean Fahey, a pediatrician who examined Ann, also testified on behalf of the prosecution. Dr. Fahey testified that her examination revealed that Ann's hymenal ring and anal opening were "abnormal," and consistent with Ann having been the victim of sexual abuse.

Skaro testified that he never sexually abused Ann. Skaro's wife, Susan Skaro, who is Ann's mother, also testified on Skaro's behalf. She testified that Skaro, with whom she and Ann live, was never alone with Ann to have abused her and that she did not believe that Ann's testimony was truthful.

After his conviction, Skaro requested a new trial on the basis of newly discovered evidence that Ann had prior sexual contact with the 13 year-old son of Skaro's sister, Norma Kuck. The trial court denied the motion, and Skaro appealed.

Skaro and Susan left Ann with Norma and her family during December 1987, while they vacationed in Phoenix. Norma learned that her youngest son, John [a pseudonym], age 6, and Ann had sexually experimented when Ann was staying with them, and Norma discussed this with Susan in February 1988. After Skaro's conviction, Norma learned that Ann and Norma's two older sons, James [a pseudonym], age 8, and Robert [a pseudonym], age 13, also had sexual contacts while Ann was staying with them in 1987.

Relying on State v. Reinart, 440 N.W.2d 503 (N.D.1989), Skaro asserts that this "newly discovered evidence" would have provided an alternative explanation for Dr. Fahey's conclusion about Ann's physical condition. In Reinart, which also involved a charge of sexual contact with a person less than fifteen years old, the trial court, relying on the rape-shield statutes at Sections 12.1-20-14(1) and 12.1-20-15, N.D.C.C., refused to allow Reinart to cross-examine the complainant to elicit testimony that there may have been other persons responsible for the complainant's physical condition. On appeal from the judgment of conviction, we held that when the prosecution introduces medical evidence to establish sexual penetration of the complainant, the defendant should be allowed to provide an alternative explanation of the complainant's physical condition by cross-examining her about prior sexual activity.

A motion for a new trial is committed to the sound discretion of the trial court, whose decision will not be set aside on appeal unless the trial court abused its discretion. State v. Hegland, 355 N.W.2d 803 (N.D.1984). A motion for a new trial on the ground of newly discovered evidence will be granted only if all of the following conditions have been met: (1) the evidence must have been discovered after the trial, (2) the failure to learn of the evidence at the time of the trial was not the result of the defendant's lack of diligence, (3) the newly discovered evidence is material to the issues at trial, and (4) the evidence is of such a nature that it would probably produce an acquittal in the event of a retrial. State v. McLain, 312 N.W.2d 343 (N.D.1981).

The trial court concluded that the alleged newly discovered evidence was "available" to Skaro at the time of trial, and by inference, further concluded that the failure to discover the evidence at the time of trial was the result of the defendant's lack of diligence.

Norma told Susan in February 1988 that she knew Ann had been sexually experimenting with her youngest son, John. The Skaros also knew prior to the trial that Ann had sexually experimented with Skaro's nieces, and Susan discussed these incidents with Shari Feidler, an employee with the Grand Forks County Social Services child protection unit, in January and February 1990. During these discussions Susan informed Shari that on one occasion Ann inserted a hairbrush in her vagina while another child watched. It is undisputed that the Skaros had knowledge of these incidents prior to trial. Although Skaro and his wife were unaware that Ann had sexual contact with Robert, Norma's oldest son, that information was readily available to them if they had simply questioned Norma and Robert. We agree with the trial court that the failure to discover this evidence was the result of the defendant's lack of diligence.

The trial court also concluded that this evidence of Robert's experimentation with Ann was not of such a nature that it would have probably produced an acquittal in the event of a retrial. When Norma learned after the trial that Robert and James, as well as John, had engaged in sexual activity with Ann, she informed the Skaros. Skaro's trial attorney then had Norma's three sons evaluated by Dr. Leland H. Lipp, a clinical physiologist, in Grand Forks. In a letter to Skaro's attorney, Dr. Lipp revealed the substance of Robert and James' sexual activity with Ann:

"He [Robert] noted that she [Ann] was staying with their family while her parents were gone. He noted that they had approached each other about sexual activity and he stated that he was 'amazed she knew so much about sex.' He noted that the next night she came in his room, woke him up and asked if they could play around. He consented and they proceeded with some sexual activities. He noted that he laid on her but did not have vaginal penetration with his penis. He did indicate that he inserted his finger into her vagina on several occasions. He noted that this activity has occurred several times, the last time being this past December....

"With regard to [James], he also indicates that starting several years ago, [Ann] had approached him and asked him to go under the bed. He did and they engaged in sexual activity."

This letter and Norma's brief testimony is the only evidence that the trial court had of the specifics of the testimony that Robert and James might give at a retrial. According to Dr. Lipp's letter, Robert and James would testify that Ann knew a lot about sex for her age and that they had been separately approached by Ann to engage in sexual activity. One inference from this testimony could be that Ann's sexual knowledge and curiosity were largely due to Skaro. Thus, this testimony could have been more damaging than helpful to Skaro's defense.

Skaro was charged with having sexual contact with a person under fifteen years old. That crime is committed by "any touching of the sexual or other intimate parts of the person for the purpose of arousing or satisfying sexual or aggressive desires." Section 12.1-20-02(4), N.D.C.C. Penetration is not a required element of the offense. Although there was evidence in this record that Skaro penetrated, or at least attempted to penetrate, Ann's vagina with his penis, there is also evidence of other incidents of Skaro simply touching or caressing Ann's private parts with his hands, mouth, and feet. Ann testified to accounts of these incidents in vivid detail.

Although Robert and James' testimony might have provided an alternative explanation for Ann's physical condition, it is unlikely that it would have produced an acquittal under the facts of this case where penetration was not a necessary element for conviction. Furthermore, there was other evidence, such as Ann's sexual activity with her nieces and evidence of Ann penetrating herself with a hairbrush--evidence that Skaro concededly knew about at the time of trial--that could also have been used to provide an alternative explanation for Ann's physical condition.

Assuming that this evidence of Ann and Robert's sexual activity is newly discovered evidence, we agree with the trial court that it probably would not produce an acquittal in the event of a retrial. Having reviewed the entire record, we conclude that the trial court did not abuse its discretion in denying Skaro's motion for a new trial on the ground of newly discovered evidence.

Skaro also filed an application for post-conviction relief, alleging that he received ineffective assistance of counsel at his trial. The district court entered an order denying his application for relief and Skaro appealed.

Effective assistance of counsel is guaranteed to a defendant by the Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment, and by Article I, Section 12, of the North Dakota Constitution. State v. Thill, 473 N.W.2d 451 (N.D.1991). The defendant has the burden to prove that he received ineffective assistance of counsel at trial. State v. McLain, 403 N.W.2d 16 (N.D.1987). In analyzing a claim of ineffective assistance of counsel, this court utilizes the test established by the United States...