Montoya v. State
Annotate this Case
Montoya v. State
1991 WY 155
822 P.2d 363
Case Number: 91-37
Decided: 12/09/1991
Supreme Court of Wyoming
JOHN MONTOYA, APPELLANT (DEFENDANT),
v.
THE STATE OF
WYOMING,
APPELLEE (PLAINTIFF).
Appeal from the District
Court, GoshenCounty, William A. Taylor,
J.
Leonard D. Munker, State
Public Defender, Gerald M. Gallivan, Defender Aid Program, and Randall B. Reed,
Student Intern for the Defender Aid Program, for appellant.
Joseph B. Meyer, Atty.
Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Jennifer L. Gimbel, Sr. Asst. Atty.
Gen., and Michael K. Kelly, Asst. Atty. Gen., for appellee.
Before URBIGKIT, C.J.,
and THOMAS, CARDINE, MACY and GOLDEN, JJ.
MACY, Justice.
[¶1.] Appellant John Montoya
appeals from his conviction for taking immodest, immoral, or indecent liberties
with a child in violation of Wyo. Stat. § 14-3-105 (1986).
[¶2.] We affirm.
[¶3.] Appellant raises the
following issues:
I. Whether Dr.
Brungardt's testimony that in her opinion [the victim] had been sexually
molested is inadmissible expert testimony?
II. Whether testimony
of [the foster mother, the social worker, and the undersheriff] is inadmissible
hearsay?
[¶4.] On approximately June
9, 1990, the five-year-old victim was at home with her younger sister and her
mother's live-in boyfriend, John Montoya. The victim's mother was outside taking
a walk. Before the victim's mother returned from her walk, Appellant joined the
victim and her sister on the couch, pulled down the victim's pants and panties,
and touched her in the genital area.
[¶5.] The victim did not
immediately tell her mother about the molestation because Appellant told her not
to. The day after the molestation took place, the victim went on a family outing
to Guernsey Reservoir. While they were at the reservoir, the victim's mother and
Appellant's sister-in-law, Robin, were discussing a movie entitled "Unspeakable
Acts," which dealt with sexual molestation. Robin and the victim's mother
noticed the victim acting uncharacteristically nervous while they were
discussing the movie. Robin, sensing something may have happened to the victim,
went for a walk with her, whereupon the victim told Robin that Appellant had
touched her in her "privates."
[¶6.] Robin and the victim's
mother subsequently took the victim to the Department of Family Services where,
in an interview with a social worker and Undersheriff Don Murphy, the victim
repeated that Appellant had touched her. The victim's mother later voluntarily
agreed to place her children into foster care.
[¶7.] At trial, the victim,
using an anatomically correct doll, testified Appellant had touched her in the
genital area. Following the victim's testimony, Robin repeated how, during their
visit to Guernsey Reservoir, the victim told her of the molestation. The
prosecutor then called the victim's foster mother, the social worker, and the
undersheriff to testify. These three witnesses essentially repeated the victim's
version of Appellant's conduct, but with slightly more detail. The final
witness, Dr. Brungardt, testified that, in her opinion, the victim had been
sexually abused.
[¶8.] Dr. Brungardt said
that, when she was diagnosing the victim's condition, she considered a
combination of the victim's history, conversations she had with her, and a
complete medical examination of the victim. In examining the victim, Dr.
Brungardt found the introitus, which is the entrance into the vaginal canal, was
dilated. A normal child's introitus would be approximately three to four
millimeters, about the size of a "Q-Tip," whereas the victim's introitus was
dilated to five or six millimeters, or the size of a fingertip.
Expert
Testimony
[¶9.] Appellant first argues
Dr. Brungardt should not have been allowed to testify that, in her opinion, the
victim had been sexually abused. The colloquy at issue went as follows between
the prosecutor and Dr. Brungardt:
Q. As to the condition
that you observed relating [to] her hymen, what was [the victim] able to speak
to you or say to you?
A. What she told
me was that - and her exact words were my naughty dad, and that's what she said
over and over consistently, had put his fingers, and pointed at her vaginal
area, pointed at her vagina.
[Defense counsel made
an objection which was overruled.]
Q. (BY [THE
PROSECUTOR]) Were you able to make a diagnosis of her condition, of a medical
problem, based solely upon your observations of her physical being and her
behaviors?
A. Yes. I came to an
assessment that there was sexual molestation.
Appellant contends Dr.
Brungardt's testimony expressed an opinion that the child was telling the truth
and, thus, improperly invaded the province of the jury. Appellant also claims
the doctor's testimony at issue here is similar to testimony found to be
inadmissible in Stephens v. State, 774 P.2d 60 (Wyo. 1989).
[¶10.] In considering Appellant's argument, we
recognize that a trial court is afforded the discretion to rule on the
admissibility of evidence and that the exercise of its discretion will be set
aside only upon a clear showing of abuse. Lessard v. State, 719 P.2d 227
(Wyo. 1986).
The trial court did not abuse its discretion by allowing Dr. Brungardt's
testimony.
[¶11.] We agree with Appellant that an expert
witness may not vouch for the credibility or truthfulness of a victim. Stephens,
774 P.2d 60; Zabel v. State, 765 P.2d 357 (Wyo. 1988). This holding is premised upon the
requirement in W.R.E. 7021 that expert testimony is admissible
only if it will assist the trier of fact. Since the jury is already considered
to be an expert in judging truthfulness, any expert testimony concerning the
victim's truthfulness would be of no assistance, making the testimony
inconsistent with W.R.E. 702. Zabel, 765 P.2d 357; Lessard, 719 P.2d 227.
[¶12.] Dr. Brungardt's testimony did not
directly express an opinion on the victim's truthfulness and, therefore, did not
usurp the jury's role of evaluating credibility. Dr. Brungardt merely concluded
there had been sexual molestation. We realize that in many, if not most,
instances an expert witness' testimony will incidentally bolster the
truthfulness of another witness; however, this incidental effect does not, by
itself, render the testimony inadmissible. Zabel, 765 P.2d 357; Griego v. State,
761 P.2d 973 (Wyo. 1988).
[¶13.] We also reject Appellant's claim that the
testimony in the present case was similar to the testimony found to be
inadmissible in Stephens. The difference is that in Stephens the trial court not
only allowed an expert witness to testify there was sexual abuse but also
allowed the expert to testify as to the victim's credibility and the defendant's
guilt. The following dialogue between the prosecution and a psychotherapist took
place:
[Q.] "Based upon your
experience and training and your evaluation of [the victim], do you have an
opinion about young [the victim]."
[A.] "It is my opinion
that this child has been sexually abused by an adult."
[Q.] "Do you have an
opinion about who this contact has been with?"
[A.] "He shares with me
that it was daddy Bill."
[Q.] "Do you believe [the
victim]?"
[A.] "Yes."
Stephens, 774 P.2d at 66.
We held the expert could not vouch for the truthfulness of the victim and could
not articulate an opinion as to the guilt of the accused. Here, Dr. Brungardt
testified that the victim had been molested, not that she believed the victim or
that she thought Appellant committed the molestation.
[¶14.] Although Dr. Brungardt did not comment on
the credibility of the victim or the identity of the perpetrator, we must still
decide whether she could express an opinion that the victim had, in fact, been
sexually molested. In Stephens, we found an expert's opinion on the fact of
sexual abuse must comply with W.R.E. 702 and 704.2
[¶15.] Applying these rules, we determine the
threshold issue is whether the witness was a qualified expert. Dr. Brungardt's
experience in dealing with child abuse consisted of pediatrics rotations, both
as a student and as an intern; pediatrics update courses; and in-office
examinations of eight to ten sexual molestation victims over a four-year period,
plus an unknown number of examinations in the emergency room. The trial judge
found this experience was sufficient to qualify Dr. Brungardt as an expert.
Whether a witness qualifies as an expert rests largely with the trial court, and
that court's determination will be overturned only when a clear abuse of
discretion is shown. Noetzelmann v. State, 721 P.2d 579 (Wyo. 1986). The trial
court did not abuse its discretion in qualifying Dr. Brungardt as an
expert.
[¶16.] The expert must also have objective
scientific or specialized knowledge which would assist the trier of fact.3 Because the question of whether a
child has been molested is generally beyond common experience, allowing an
expert to testify on the issue assists the trier of fact. State v. Hester, 114
Idaho 688, 760 P.2d 27 (1988). See also Smith v. State, 564 P.2d 1194 (Wyo. 1977). A layman
observing the same medical evidence as Dr. Brungardt observed would have
difficulty knowing how to interpret the data. In Townsend v. State, 103
Nev. 113, 734 P.2d 705, 708 (1987), the Nevada Supreme Court found it was appropriate for an
expert to testify on the issue of whether a child had been sexually
abused:
[I]t was proper for the
State's expert to express an opinion on the issue of whether the child had, in
fact, been sexually assaulted or abused. Such an opinion, although embracing an
ultimate issue, represents both the peculiar expertise and consummate purpose of
an expert's analysis.
Because Dr. Brungardt was
an expert and her opinion assisted the trier of fact, we hold her testimony was
admissible pursuant to W.R.E. 702.
[¶17.] Dr. Brungardt's testimony was also not to
be excluded merely because it embraced an ultimate issue. Stephens, 774 P.2d 60.
W.R.E. 704 allows opinions to be given on ultimate factual issues.
[¶18.] Expert testimony which is admissible
under W.R.E. 702 and 704 must still comply with W.R.E. 403's requirement that
its probative value cannot be substantially outweighed by the danger of unfair
prejudice. Appellant was not unfairly prejudiced. Dr. Brungardt's testimony was
highly probative of a secretive crime in which the only witness was a
five-year-old child. See Townsend, 734 P.2d 705. Defense counsel cross-examined
Dr. Brungardt about the victim's dilated introitus, which was the primary basis
for her opinion. Finally, the jury was instructed it was free to disregard Dr.
Brungardt's opinion.
Prior Consistent
Statements
[¶19.] Appellant's second contention is that the
trial court erred in admitting the testimony of the foster mother, the social
worker, and the undersheriff as prior consistent statements pursuant to W.R.E.
801(d)(1)(B), which states:
(d) Statements
which are not hearsay. - A statement is not hearsay if:
(1) Prior Statement by
Witness. - The declarant testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the statement is . . . (B)
consistent with his testimony and is offered to rebut an express or implied
charge against him of recent fabrication or improper influence or motive . .
.[.]
This Court has previously
found W.R.E. 801(d)(1)(B) contains two express conditions for establishing the
admissibility of prior consistent statements: "1) The prior statement must be
`consistent with [the witness'] testimony'; and 2) there must be an `express or
implied charge . . . of recent fabrication or improper influence or motive.'"
Makinen v. State, 737 P.2d 345, 349 (Wyo. 1987). See also Lacey v. State, 803 P.2d 1364 (Wyo. 1990), and Baum v. State, 745 P.2d 877 (Wyo.
1987).
[¶20.] W.R.E. 801(d)(1)(B) does not require that
the prior consistent statement be made before the alleged improper influence
arises. In Stephens, 774 P.2d at 71, we explained that a prior consistent
statement can be used as affirmative evidence if the alleged improper influence
antedates the statement. If the prior consistent statement does not precede the
alleged improper influence, the statement may be used only for rehabilitation.
Id. We also
said that, if the trial court finds the improper influence antedated the
consistent statement and yet it still determines the probative value justifies
admission, a limiting instruction must be given, if requested, charging the
statement may be used only for evaluating credibility and not as affirmative
evidence. Id.
[¶21.] In this case, defense counsel made an
express charge of improper influence by implying in the victim's
cross-examination that her claim was fabricated by Robin. According to
Appellant, the improper influence arose when Robin first discussed the
molestation with the victim at Guernsey Reservoir. This would mean the alleged
influence arose before the victim's statements to the foster mother, the social
worker, and the undersheriff. According to our analysis in Stephens, the
victim's prior consistent statements could be used only for
rehabilitation.
[¶22.] Appellant agrees the statements may be
used for rehabilitation, although he contends the trial judge was required to
instruct the jury that the statements could be used only for evaluating
credibility and not as affirmative evidence. In Stephens, however, we said such
a limiting instruction would be required only if it were requested. See also
Sybert v. State, 724 P.2d 463 (Wyo. 1986).
[¶23.] Defense counsel did not request a
limiting instruction. In chambers, the judge, in referring to the charge that
Robin had influenced the victim to fabricate her story, said, "Yes. I think [the
prosecutor] can rehabilitate her on that issue." Defense counsel responded,
"Right. And that I would concede, not the idea that this can be a vehicle to
establish facts that he hasn't been able to establish through his victim."
Defense counsel's comment did not constitute a request for a limiting
instruction. Absent such a request, we hold the trial court did not err by
failing to instruct the jury.
[¶24.] Appellant also claims the statements of
the foster mother, the social worker, and the undersheriff were inconsistent
with the victim's statements and, thus, were inadmissible under W.R.E.
801(d)(1)(B). At trial, when the victim was asked whether she had been hurt, she
responded in the affirmative, and, when she was asked where she was hurt, she
replied, "Somewhere that [Appellant is] not to touch me." When the victim was
asked what part of her Appellant was not supposed to touch, she indicated the
genital area on an anatomically correct doll.
[¶25.] First, Appellant argues it was
inconsistent for the foster mother to testify the victim said Appellant put two
fingers inside of her. When she was testifying, the victim said nothing about
penetration. Second, the social worker testified that, when the victim was given
an anatomically correct doll, she "lifted up the dress and pulled down the
panties and she demonstrated with her hand what had been happening to her, the
rubbing, touching between her legs and on her vagina." When the victim was given
an anatomically correct doll at trial, she did none of these things. Finally,
Undersheriff Murphy testified that, in his interview with the victim, she said a
Bugs Bunny cartoon was showing on television at the time the molestation
occurred. In the victim's testimony, she never mentioned watching
television.
[¶26.] Appellant is correct in his assertion
that W.R.E. 801(d)(1)(B) requires prior statements to be consistent with the
witness' testimony in chief. A failure to require consistency would invite the
dangers sought to be restrained by the hearsay rule. Kelley v. State, 486 So. 2d 578 (Fla.), cert. denied, 479 U.S. 871, 107 S. Ct. 244, 93 L. Ed. 2d 169 (1986). However, the inconsistencies complained about here were minor and
not critical to proving the charge of indecent liberties. Furthermore, any error
in admitting the prior consistent statements is harmless, given the fact the
foster mother's, the social worker's, and the undersheriff's testimony was
merely cumulative of testimony previously given by the victim and
Robin.
[¶27.] Affirmed.
FOOTNOTES
1 W.R.E. 702
provides:
If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.
2 See supra note 1 for
text of W.R.E. 702. W.R.E. 704 provides:
Testimony in the form
of an opinion or inference otherwise admissible is not objectionable because it
embraces an ultimate issue to be decided by the trier of fact.
3 W.R.E. 702 does not
require the expert to base his or her opinion upon objective information. In
Stephens, however, we said that an expert's opinion on the fact of sexual abuse
must be on the basis of objective criteria rather than subjective impressions.
Future cases may involve information which cannot be characterized as either
objective or subjective; however, in this case, Dr. Brungardt had sufficient
objective medical evidence upon which to base her opinion.
URBIGKIT, Chief Justice,
concurring.
[¶28.] I concur. The record demonstrates that
the contact between Dr. Brungardt and the five-year-old child was actually for
the physician to provide medical diagnosis and treatment, R.S. v. Knighton, 125
N.J. 79, 592 A.2d 1157 (1991), and not artificially arranged to create
admissible hearsay evidence during investigative activities. The hearsay
exception, W.R.E. 803(4), specifically allows statements relevant to diagnosis
or treatment. Stephens v. State, 774 P.2d 60 (Wyo. 1989); Annotation, Admissibility of
Statements Made for Purposes of Medical Diagnosis or Treatment as Hearsay
Exception Under Rule 803(4) of the Federal Rules of Evidence, 55 A.L.R.Fed. 689
(1981). The distinction between a treating or testifying physician cannot be
entirely ignored. See Brown v. Com., 812 S.W.2d 502 (Ky. 1991). Cf. Drumm v.
Com., 783 S.W.2d 380 (Ky. 1990). At the very least, we need to apply
the "less inherent reliability" rule. Morgan v. Foretich, 846 F.2d 941, 952 (4th
Cir. 1988), Powell, A.J., concurring in part and dissenting in part; Drumm, 783 S.W.2d at 385.
[¶29.] However, I am far less comfortable with a
further expansion of conviction by nonhearsay hearsay evidence which permits the
additional testimony of the foster mother, the social worker, and then
additionally the undersheriff. Realistically, their testimony was presented
under W.R.E. 801(d)(1)(B) to bolster the testimony of the victim. This means the
more people the victim can be arranged to talk to, the more evidence that can
thereby be created. There should be a limit to this process. United States v.
Mock, 640 F.2d 629 (5th Cir. 1981). Similarly, see McGowan v. Cooper Industries,
Inc., 863 F.2d 1266 (6th Cir. 1988). We reach the stage described by 4 Wigmore,
Evidence § 1124 (Chadbourn rev. 1972) (emphasis added):
When the witness has
merely testified on direct examination, without any impeachment, proof of
consistent statements is unnecessary and valueless. The witness is not helped by
it; for, even if it is an improbable or untrustworthy story, it is not
made more probable or more trustworthy by any number of repetitions of
it.
The limitation governed
by W.R.E. 403, "needless presentation of cumulative evidence," should not
disappear when recitation of what another witness has said is presented under
the umbrella of W.R.E. 801(d)(1)(B). "Like most kinds of evidence, prior
consistent statements offered under Rule 801(d)(1)(B) are excludable pursuant to
Rule 403 where probative worth seems substantially outweighed by dangers of
prejudice or confusion, or by considerations of avoiding delay or waste of
time." 4 D. Louisell & C. Mueller, Federal Evidence § 420 (1991
Supp.).
[¶30.] I concur in this decision because of the
clarity of the victim's testimony which was not realistically contradicted by
any expressed or implied charge of recent fabrication or improper influence. The
testimony of the sister-in-law and the doctor was likewise clear and convincing.
Consequently, I agree with the majority that the additional testimony was, at
worst, "merely cumulative."
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