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Tombroek v. State

October 16, 2009

FREDERIK MARINUS TOMBROEK, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Frederik Tombroek (the appellant) was tried and convicted by a jury of first- degree sexual assault for sexually assaulting the victim, an adult woman with a mental disability. The appellant appeals the conviction on the grounds that the district court abused its discretion by allowing witnesses to testify to prior statements made to them by the victim. The appellant also argues that the State failed to present sufficient evidence to prove an element of the crime charged. Finding no abuse of discretion in admitting the prior statements and finding sufficient evidence for the jury reasonably to conclude as it did, we will affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it allowed the victim‟s mother, the victim‟s sister, the examining doctor, and the investigating police officer to testify about the victim‟s prior consistent statements?

2. Was there sufficient evidence presented to find that the victim was incapable of appraising the nature of her conduct as required by Wyo. Stat. Ann. § 6-2-302(a)(iv) (LexisNexis 2009)?

FACTS

[¶3] Due to the fact-specific nature of the issues in this case, many of the facts will be discussed more thoroughly as we address the separate issues. For purposes of background and context, however, we will briefly preview the case. In May of 2007, as the victim and her sister had lunch together, the victim‟s cell phone began to ring and she became visibly upset. In response to the victim‟s behavior, the victim‟s sister asked her who was calling. The victim disclosed to her sister that their uncle, the appellant, was calling her and that he had sexually assaulted her in the past. The victim‟s sister took her to their parent‟s house where the victim told their mother and father about the sexual assaults. The victim was then taken by her family to the emergency room for a gynecology exam. At the hospital, the victim and her mother provided statements to Officer Brown (the investigating police officer) about the sexual assaults. Also during the course of the victim‟s examination, the victim made statements about the sexual assaults to the nurse and the examining doctor. A few days later, the victim was interviewed on video by the Children‟s Advocacy Project (CAP) about the sexual assaults.

[¶4] The appellant was subsequently arrested and charged with first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(iv). Specifically, the information alleged that the appellant unlawfully inflicted sexual intrusion on the victim, a mentally deficient adult, by having sexual intercourse with her, knowing that she was incapable of appraising the nature of her sexual conduct. During the jury trial, the victim‟s mother, the victim‟s sister, the examining doctor, and the investigating police officer all testified to, among other things, the statements the victim made to them relating to the sexual assaults, including that the victim told them that the appellant was the one who sexually assaulted her. The appellant objected to all of these statements at trial. The appellant was subsequently convicted and sentenced to 14 to 19 years in the state penitentiary. This appeal followed.

DISCUSSION

Did the district court abuse its discretion when it allowed the victim's mother, the victim's sister, the examining doctor, and the investigating police officer to testify about the victim's prior consistent statements?

[¶5] The appellant argues that the district court abused its discretion in admitting two separate statements by the examining doctor as well as statements by the victim‟s mother, the victim‟s sister, and the investigating police officer. We have stated as follows:

The standard for reviewing a trial court‟s rulings on the admissibility of evidence is well known. Such decisions are within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary or capricious manner.

A trial court‟s evidentiary rulings "are entitled to considerable deference," and will not be reversed on appeal so long as "there exists a legitimate basis for the trial court's ruling. . . ." Robinson v. State, 11 P.3d 361, 367 (Wyo. 2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 483 (2001). The appellant bears the burden of proving an abuse of discretion. Even where a trial objection has been made to the admission of evidence, error cannot be found unless "a substantial right of the party is affected. . . ." W.R.E. 103(a)(1). These general rules apply to rulings on the admissibility of hearsay evidence.

Lancaster v. State, 2002 WY 45, ¶¶ 11-12, 43 P.3d 80, 87 (Wyo. 2002) (some internal citations omitted).

[¶6] The appellant‟s first argument is that the district court abused its discretion by admitting two statements from the doctor‟s testimony. The first statement relates to a comment by the victim to the nurse about who had sexually assaulted her, which statement was then relayed from the nurse to the doctor. At trial, the State asked the doctor to repeat what the nurse had told him about the victim‟s statement. The appellant objected to admission of the statement as hearsay.*fn1 The district court allowed the testimony on the ground that the identity of the person who committed the alleged assault was information that a doctor generally relies on in reaching his conclusions. Although the district court did not expressly state that it was relying on the medical exception to the hearsay rule found in W.R.E. 803(4), we assume, as do the parties, that that is what the district court meant by its statement in admitting the evidence. The appellant also claims the district court abused its discretion when it overruled the appellant‟s hearsay objection to testimony by the doctor about a statement made directly from the victim to the doctor about who had sexually assaulted her. The district court did not provide any grounds for admitting this statement. Finally, the appellant contends that the district court committed an abuse of discretion when it admitted testimony from the victim‟s mother, the victim‟s sister, and the investigating police officer relating to the victim‟s prior consistent statements pursuant to W.R.E. 801(d)(1)(B).

[¶7] The appellant argues that the district court improperly admitted the doctor‟s statements under W.R.E. 803(4), which governs the admission of hearsay statements made for medical diagnosis and treatment. However, we have repeatedly stated that "[a] district court judgment may be affirmed on any proper legal grounds supported by the record." Feeney v. State, 2009 WY 67, ¶ 9, 208 P.3d 50, 53 (Wyo. 2009). Accordingly, we do not need to determine whether the doctor‟s testimony relating to the victim‟s ...


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