Zabel v. State

• Decision Date: 01 November 1988
• Docket Number: No. 87-195,87-195
• Citation: 765 P.2d 357
• Parties: George ZABEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 357

765 P.2d 357

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

No. 87-195.

Supreme Court of Wyoming.

Nov. 1, 1988.

James E. Phillips of Phillips, Lancaster & Thomas, Evanston, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Terry L. Armitage, Asst. Atty. Gen., (argued), for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and BROWN, J. Retired.^*

CARDINE, Chief Justice.

AppellantGeorge Zabel was charged with four counts of taking immodest, immoral and indecent liberties with a minor, § 14-3-105, W.S.1977.A jury found him guilty on one charge and not guilty of the remaining three charges, and he was sentenced to a term of two to five years in the Wyoming State Penitentiary.Although appellant raises several issues on appeal, we conclude that the trial court committed plain error by allowing the State's expert witness to testify to the credibility of the alleged victims, and we reverse appellant's conviction on that ground.Accordingly, we do not address appellant's other issues.

AppellantGeorge Zabel is an elderly, self-employed carpenter who has three children and four grandchildren.At the time of the trial in this case, Mr. Zabel and his wife lived in Lyman, Wyoming.The alleged victims are two girls, 10 and 13 years old, whose family lived on a ranch between Lyman and Mountain View.The Zabels met the alleged victims' grandparents through a mutual acquaintance.When the girls' grandmother died of cancer, the Zabels began caring for them.The Zabels developed a close relationship with the girls; in 1982 or 1983 the girls told their mother that they wanted to adopt the Zabels as grandparents.

The alleged victims' mother testified that sometime during the first week of December 1986 the older of the two girls began crying after a family meeting and said the reason she was crying was that George Zabel had been "doing things to her."She then told her mother the things Mr. Zabel allegedly had done.The younger girl then related similar incidents involving Mr. Zabel.Following these conversations, the girls' parents reported the alleged incidents to the county attorney's office.On January 28, 1987, an information was filed alleging that Mr. Zabel took indecent liberties with the older of the alleged victims between the dates of January 1, 1980 and November 27, 1986.An amended information was filed February 9, 1987, alleging four counts.The first two counts charged appellant with taking indecent liberties with the older alleged victim between the dates of October 13, 1986 through October 19, 1986 and between November 26, 1986 through November 30, 1986.The third and fourth counts charged appellant with taking indecent liberties with the younger alleged victim during the same time periods.

The case went to trial on April 16, 1987.The jury began deliberating at approximately 11:20 a.m. on April 22 and returned a verdict the next afternoon at 1:50 p.m., finding appellant guilty on Count III and not guilty on the remaining three counts.On June 30, 1987, the court sentenced appellant to a term of two to five years in the state penitentiary.This appeal followed.

Our decision in this case centers upon the testimony of Dr. Mercedes Reisinger, a clinical psychologist who testified for the State.Dr. Reisinger testified that she evaluated the two alleged victims on January 16, 1987.Her examination included a test for mental age, the Thematic Apperception Test (TAT), a Sentence Completion Test, a "Draw Person" test, a "Self Report," the Rosenwide Picture Frustration Study, and a clinical interview.In explaining her evaluation of the two young girls, Dr. Reisinger gave the following testimony:

"Q.Now, with [the older girl] and [the younger girl] and I suppose with all of your children that you evaluate, are you concerned about whether or not the children are fabricating?

"A.Absolutely.

"Q.Is that one of your primary concerns that you're concerned about?

"A.Treatment is my primary concern.

"Q.Treatment.Excuse me, I'm sorry.Treatment is your primary concern?

"A.Yes.I generally am looking at what sort of treatment does this child need.My evaluations are more geared to treatment planning, you know, rather than investigation.

"Q.And I understand that.But you [have] to have some sort of verification process built into your testing procedures, do you not?

"A.Generally, what I'm looking for is authenticity of the reporting.

"Q.Uh-huh.

"A.I'm looking for emotionality linked to the reporting.I'm looking for some inconsistencies in the reporting.

"Q.You're looking for some inconsistencies?

"A.That's correct.

"Q.Why is that?

"A.Because the stories that are to be fabricated are very consistent from person to person to person, from time to time to time.The other thing I'm also looking for is the amount of anxiety around the reporting.There is--Children, if they are fabricating at this age, in the latency age,--

"Q.Uh-huh.

"A.--cannot keep up the act for too long, because of the fact that it is not something, an experience that they can attach to reality.So if someone has told them to say something or if they have decided to say something, you will, after time, find that there will be breakdown in the facts, that the stories are very inconsistent from time to time to time and then those breakdowns are very noticeable.

"Q.Uh-huh.

"A.They either knowingly say 'No, this didn't happen' or they stick to their story.But they break down in other areas and say--give you clues that, in fact, it didn't happen.

"When children are lying, when people are lying in general, you will find that the authenticity is limited by the fact that there aren't other details provided.For example, if they were in a bathroom, if they say they were in a bathroom when the occurrence--the situation took place and they say that they were sitting on a couch, it's very unlikely that there would be a couch in a bathroom.So those are the kinds of things that I'm looking for.

"The other thing I look for is in the test results, in particular, if there is any psycho--any antisocial psychopathic tendencies that the children may have.I use an example children out to harm someone.I very much look at those ambivalent feelings because if, in fact, the issue is 'Let's get this person,' there may be a motive behind it and I look for what's known as secondary gains.

"Q.Now, a secondary gain--

"A.A motive--

"Q.--is a motive to fabricate?

"A.That is correct, something that the child is going to gain, in fact, in reporting this.Taking [the younger girl] as an example, in her case it was extremely difficult for her to be able to report this, so it was actually a detriment to her to report,--

"Q.Uh-huh.

"A.--not a gain.

"Q.What about with [the older girl]?

"A.The ambivalence was clear there and the emotionality was there.She provided details, you know, which were consistent with what she was saying.Holding back, protectiveness of the person, even though they were greatly hurt.

"Q.Again, would either of these children--Did you see any secondary gain--

"A.No.

"Q.--that could be gained or secondary gain with these children?

"A.No, nothing was apparent.

"Q.Now, people--children--Let me see here.

"Children that are telling the truth have various characteristics; is that correct?

"A.Uh-huh.

"Q.Children that are telling lies have various characteristics?

"A.Generally, yes.

"Q.And what you are talking about, then, is when a child is telling the truth, you look for emotionality?

"A.(The Witness nodded.)

"Q.Small inconsistencies?

"A.Uh-huh.

"Q.Because they are--you just can't--The memory fades?

"A.Right.It's not a pat or response story.

"Q.The amount of anxiety that is present with the child when he's telling the story?

"A.(The Witness nodded.)

"Q.Okay.That sort of thing?

"A.That is correct.

"Q.Any other characteristics?

"A.Antisocial tendencies.

"Q.Antisocial tendencies?

"A.Yes, that's an individual who doesn't feel much remorse and doesn't care who it is that they stick in the back with a knife, basically.

"Q.That's the child that's telling the lie?

"A.Uh-huh.

"Q.Did you see any antisocial tendencies in [the younger girl] or in [the older girl]?

"A.No.

"Q.Did you see any psychopathic tendencies in either of these children?

"A.No.

"Q.And psychopathism (sic)?

"A.[It] goes hand in hand.

"Q.During your interview with the children, specifically, the clinical interview with the children, I take it you talked about the events; is that correct?

"A.They talked about the events.

"Q.And those discussions, you listed from each of the children their explanation of what had happened to them; is that correct?

"A.That's correct.

"Q.Okay.

"A.Briefly, because they had already been interviewed.So my purpose was not necessarily to get the details of the incident as much as the treatment, so I was focusing on the test results."

Although the defense did not object during this testimony, appellant now contends that its admission amounted to plain error because Dr. Reisinger was allowed to testify to the alleged victims' credibility.

It is well established in Wyoming that an expert witness cannot vouch for the truthfulness or credibility of an alleged victim.Lessard v. State, Wyo., 719 P.2d 227, 233(1986).In Lessard, we explained that the question of credibility is for the jury, who are themselves expert in that area.Consequently, the testimony of a psychologist or other expert on the issue of credibility does not assist them and therefore does not satisfy the requirements of Rule 702, W.R.E.¹

On several occasions, this court has addressed the propriety of expert testimony on the credibility of sexual assault victims.In Lessard, supra, a rape crisis counselor testified that most rape victims ask their assailants not to tell anyone about the...