State v. Wegley
| Decision Date | 17 January 2008 |
| Docket Number | No. 20070027.,20070027. |
| Citation | 2008 ND 4,744 N.W.2d 284 |
| Parties | STATE of North Dakota, Plaintiff and Appellee v. James Eugene WEGLEY, Defendant and Appellant. |
| Court | North Dakota Supreme Court |
Nicole Ellan Foster, State's Attorney, Williston, N.D., for plaintiff and appellee.
Bonnie Louise Storbakken, Bismarck, N.D., for defendant and appellant.
[¶ 1] James Eugene Wegley appeals from a Criminal judgment entered after a jury found him guilty of gross sexual imposition. We hold the district court did not err in admitting testimony about the victim's out-of-court statement, the court did not abuse its discretion in denying Wegley's request for a ruling that evidence of his prior rape conviction would not be admissible regardless of his trial testimony, and there was sufficient evidence to support his conviction. We affirm.
[¶ 2] The State charged Wegley with gross sexual imposition, alleging that in September 2005, he engaged in sexual contact with a person less than fifteen years old. Wegley is the grandfather of the alleged victim, who was seven years old in September 2005, and he is the father of the child's mother.
[¶ 3] Eight days before trial, the State made a pretrial motion under N.D.R.Ev. 803(24) for the admission of out-of-court statements made by the child to her mother at the time of the alleged act and to Monique Goff during a subsequent forensic interview that was videotaped. The State's motion said "[s]ome of the out-of-court statements ... will be offered as prior consistent statements, so are not technically hearsay." The district court heard arguments on the State's motion on the first day of trial, in conjunction with jury selection. The State's offer of proof about the child's out-of-court statements consisted of comments to the court by the prosecuting attorney:
The statement to the mother actually occurred at the time the event was occurring. The facts would be that—or the facts the testimony would show is that when [the mother] walked into the room where this was occurring, a kind of scuffle ensued between [the mother] and the defendant.
And at that point [the mother] turned to her daughter and said, "He was touching you." And the daughter shook her head "Yes." [The mother] then asked the daughter, "Has this happened before?" And the daughter shook her head, "Yes."
....
The social worker, Your Honor, it was in the course of a forensic interview. During the interview the social worker asked the little girl ... Asked [the child] if, you know, if she knew why she was there and [the child] said no.
The social worker says to [the child], "Well, you are here because your mom was worried that your grandpa Gene had had some secret touches or private touches with you." [The child] says, "I don't know."
Monique pursues—Monique is the social worker, pursues it a little bit. After a couple of times of [the child] saying, "I don't know, I, don't know", Monique asked her specifically, "Did your grandpa Gene touch you?" And [the child] either said, "Yes" or shook her head "Yes." I'd have to review the video, Your Honor.
Monique then asked [the child] to tell her where. [The child] kind of said— didn't respond or maybe said I don't know. Again, I'd have to review the video.
Monique then asked if [the child] would be willing to show her on an atomically [sic] correct picture of a little girl where grandpa Gene touched her and [the child] pointed to on the picture. And I do have a copy of the picture. Did point to it twice in the vaginal area.
[¶ 4] The district court did not immediately rule on the State's motion. After jury selection was completed on the first day of trial, the State called the child as its first witness, and she testified:
Q. ... Okay. Do you have grandpas and grandmas?
A. Yes.
Q. Is one of your grandpas in the room today?
A. Yes.
Q. I'm going to get out a picture okay? [D]oes your mom and dad's bedroom, does that have a TV in the room?
A. Yes.
Q. Do you sometimes like to watch TV in your mom and dad's room?
A. Yes.
Q. [I]s that a picture of your mom and dad's bedroom?
A. Yes.
Q. Time for some other questions, okay? Was there a time when you were watching TV in your mom's room?
A. Yes.
Q. When Grandpa Gene came in there?
A. Yes.
Q. Were you wearing your pajamas?
A. Yes.
Q. Were they pants or a nightgown?
A. Pants.
Q. Did you have your underwear on?
A. Yes.
Q. When you were laying on mom's bed, did you lay over the covers or under the covers?
A. Under the covers.
Q. Sometimes I forget things, so I have to write them down. That time when Grandpa Gene came in, did he touch you?
A. Yes.
Q. Where?
A. In my private parts.
Q. How did you feel when grandpa did that? Were you scared?
A. Yes.
Q. Did your mom come into the room when Grandpa Gene was doing that?
A. Yes.
Q. How did you feel when mom came in the room?
A. Scared.
Q. Did you tell your mom what grandpa did to you? Is that a hard question?
A. Yes.
Q. Did you tell your mom that Grandpa Gene had touched you?
A. Yes.
Q. You're doing good. [D]id your mom see what Grandpa Gene was doing?
A. Yes.
Q. Did she get upset?
A. Yes.
Q. [D]o you remember what your mom did when Grandpa Gene was—when she got upset?
A. No.
Q. No. Okay. That's okay .... I don't have anymore questions to ask you.
On cross-examination, the child testified:
Q. ... Now, do you remember your mom talking to you about your grandpa?
A. No.
Q. Do you remember your mom telling you?
A. No.
Q. That grandpa was touching you?
A. No.
Q. Have you ever talked to your mom about some of those questions that that lady just asked you?
A. No.
Q. You don't remember or you haven't talked with her about it? Do you remember talking to anyone else?
A. No.
Q. About what happened?
A. No.
Q. No? Do you remember your mom taking you to a place to visit with somebody?
A. No.
Q. Remember anyone by the name of Monique.
A. No.
Q. Okay. Do you remember talking to anyone else?
A. No.
Q. Other than your mom?
A. No.
[¶ 5] After the child testified, the district court adjourned for the day. On the morning of the second day of trial, the court analyzed the State's offer of proof about the child's out-of-court statement to the mother under N.D.R.Ev. 803(24) and granted the State's pretrial motion to admit the mother's testimony about the child's out-of-court statement.
[¶ 6] Also on the morning of the second day of trial, the State moved to withdraw its pretrial motion under N.D.R.Ev. 803(24) regarding Goff's testimony. The district court granted the State's motion to withdraw and did not view the videotape, but nevertheless analyzed the State's offer of proof about the child's out-of-court statement to Goff under N.D.R.Ev. 803(24) and ruled the statement was admissible.
[¶ 7] Immediately thereafter, the State called the child's father to testify and then called Goff to testify. Goff testified without a contemporaneous objection by Wegley that during the forensic interview of the child, the child said that something happened with her grandfather, and when Goff asked the child what part of her body her grandfather had touched, the child pointed to a vagina on an anatomical drawing, which she labeled as her "pee pee." Goff testified the child was not able to verbalize anything more and did not want to talk about what happened.
[¶ 8] The State then called the child's mother to testify. The child's mother testified without a contemporaneous objection by Wegley that she came upon Wegley and the child in the mother's bedroom:
Q. What did you see when you were standing in the doorway?
A. Gene kissing her.
Q. What kind of kiss was it?
A. Like a long kiss on the lips. A really long, kind of leaned over, weird kiss.
Q. Did you notice anything else about your father?
A. Yes, his hand was under the blanket.
Q. Then what did you do?
A. Walked over there, pulled off the blanket.
Q. What did you see?
A. Him rubbing her privates.
Q. I don't mean to make this more difficult, but ...
A. Her vagina, whatever you want to say.
Q. Did you see his hand directly on?
A. Yeah. And his fingers moving around.
Q. Did [the child] still have her underwear on?
A. Yes.
....
Q. Do you need a second?
A. I'm okay.
Q. After that, what happened?
A. I think there was some—is what I can remember is I looked at [the child] and said something—"He was touching private, has he did that before?" And she nodded yes and then I think said you are a pervert.
And I started swinging, hitting him. And then he started saying, "I'm sorry, I'm sorry, I'll leave, I'll leave."
And then I remember following him out to the kitchen and screaming and stopping and hitting him some more.
....
Q. [I]s there any doubt in your mind as to where you saw the defendant's hand?
A. No.
Q. Any doubt in your mind to having seen his fingers moving?
A. No.
Q. This obviously is a difficult topic for you and I am sorry. Do you think it took your father a while to realize you were standing there?
A. Yes.
Q. Why?
A. In his own little mode, I guess, mind. Too busy concentrating on what he was doing or something.
Q. He didn't notice you in the doorway at all?
A. No.
On redirect, the mother pointed to the vagina on an anatomical drawing of a female to show where she saw Wegley's fingers touching and rubbing the child.
[¶ 9] At trial, the district court also denied the State's pretrial motion to allow the State to introduce evidence under N.D.R.Ev. 404(b) that Wegley had a 1975 conviction for rape. After the State rested, Wegley asked the court for a "clarification" under N.D.R.Ev. 609 "that that conviction cannot be used regardless of what the testimony of [Wegley] may be." The court denied Wegley's request, and he did not testify at trial. A jury found Wegley guilty of gross sexual imposition.
[¶ 10] Wegley argues the district court erred in admitting testimony about the child's out-of-court statements to her mother and to Goff without sufficient guarantees...
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