JUSTIN N. SPENCE, Appellant (Defendant),
THE STATE OF WYOMING, ppellee (Plaintiff).
from the District Court of Hot Springs County The Honorable
Robert E. Skar, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; James Michael Causey, Senior Assistant
Appellate Counsel. Argument by Mr. Causey.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General;
Katherine A. Adams [*] , Assistant Attorney General.
Argument by Ms. Adams.
DAVIS, C.J., and BURKE [†] , FOX, KAUTZ, and
Appellant, Justin N. Spence, challenges his conviction for
one count of incest. He contends the district court abused
its discretion by allowing the State to elicit improper
vouching testimony from an expert witness. We reverse and
remand for a new trial.
Did the district court abuse its discretion by permitting the
State to use an expert to vouch for the credibility of the
AS is Mr. Spence's niece. She was 14 at the time of the
events at issue. According to AS, on July 4, 2014, she spent
the night at Mr. Spence's home. His girlfriend at the
time, now his wife, Mickie Spence, was also present.
According to AS, that evening the three of them sat around
the apartment watching TV, listening to music, and drinking
alcoholic beverages. At some point, Mr. Spence went into the
bathroom and sent her a text message saying that she was
"so hot." AS texted Mr. Spence asking whether he
had meant to send the message to Mickie, and he responded
that he meant it for AS. Mr. Spence then sent her a picture
of his penis and asked that she send him a nude photo of
herself. AS initially refused, but Mr. Spence kept pushing
the issue telling AS that if she didn't comply,
"something was going to happen." AS went into
another room and sent him a photo of herself in her bra. She
then went out on the porch for a cigarette and was joined by
Mr. Spence. The two went back inside, and Mickie went to bed.
AS again went outside, and Mr. Spence joined her on the
porch. They each had a cigarette and when AS turned to go
back inside, Mr. Spence pulled her onto his lap, held her,
and kissed her. When he stopped, AS went back inside and sat
on the couch. A little later, Mr. Spence came in and sat next
to her. He then put one of his hands inside her pants and
inserted two fingers in her vagina. AS then got up and again
went out on the porch. Mr. Spence did not follow her.
While on the porch, AS received a text from Lane Schmidt, who
invited her to his apartment which was nearby. AS went to Mr.
Schmidt's where she "had a drink" and the two
"had sex." AS did not tell Mr. Schmidt about the
encounter with Mr. Spence. She stayed at Mr. Schmidt's
for about an hour and then returned to the apartment where
she went to sleep on the couch. Prior to going to sleep, she
and Mr. Spence exchanged texts with AS telling Mr. Spence
that he "needed to go to bed." Early the next
morning, she called her mother for a ride and left the
apartment. She did not tell her mother about the incident.
According to AS, the first person she told about the incident
was one of her counselors, Kathryn Saltz. That conversation
occurred on August 12, 2014, prior to a scheduled MDT meeting
involving AS. At the MDT meeting, Ms. Saltz advised the
group that she had concerns about AS. Those concerns included
"destructive type behavior with herself," her
relationship with an eighteen-year-old male (Lane Schmidt),
and "inappropriate sexual stuff between her and her
uncle," Mr. Spence. Once those concerns were raised, the
MDT meeting was terminated and law enforcement was notified.
AS was then interviewed by Thermopolis police officer Melanie
Kress, a Hot Springs County deputy, and DFS caseworker
During that interview, AS was questioned about several
matters, including her drug and alcohol use, possible
involvement in a grass fire, lying to her mother about her
whereabouts, association with adult males, self-harming by
cutting, and having sex with Mr. Schmidt on July 4, 2014.
When AS revealed she had sex with Mr. Schmidt, Officer Kress
told her that Mr. Schmidt could be in trouble because he was
eighteen years old. In response, AS explained she had sex
with Mr. Schmidt because she was drunk and "Uncle Justin
tried to do shit with me." During the interview, AS told
the officers that Mr. Spence had patted her on the
"butt" outside her clothing. She denied that Mr.
Spence had touched "her private parts." AS was
taken into protective custody at the end of the interview.
Law enforcement interviewed Mr. Spence on August 22, 2014. He
told the officers that AS had spent the night at his
apartment but denied serving AS alcohol, asking her to send
him a nude picture, or touching her inappropriately. He also
told the officers that AS had sneaked out of the apartment to
have sex with a neighbor. No criminal charges were brought
against Mr. Spence at that time.
After a brief period at a group home, AS was admitted to the
Wyoming Behavioral Institute (WBI) in Casper for treatment of
her emotional and behavioral issues. She was released from
WBI in November 2014 and returned to live with her mother.
According to one of her counselors, her condition and mindset
did not improve and in less than two months AS was admitted
to a residential psychiatric treatment facility in Utah. She
stayed there for approximately six months. In March 2015, she
returned to Thermopolis for a visit and Officer Kress and Ms.
Preuit interviewed her again.
During this interview, AS, for the first time, told the
investigators that Mr. Spence had texted her a picture of his
penis and demanded that she send him a nude photo of herself.
She also told the officers about the kiss on the porch after
Mickie went to bed and that, while on the couch, Mr. Spence
put his hand up her shorts and inserted his fingers in her
vagina. She also stated that after she returned to the
apartment, following her visit with Mr. Schmidt, she received
a text from Mr. Spence asking why she had slept with Mr.
Schmidt and not him. The next day, Mr. Spence told her to
delete all of their text messages, and she did.
Approximately eight months later, the State initiated
criminal proceedings against Mr. Spence, charging him with
one count of incest for having sexual contact with his niece,
AS, between July 4 and July 5, 2014, in violation of Wyo.
Stat. Ann. § 6-4-402(a)(ii) (LexisNexis
2017). Mr. Spence pleaded not guilty and the
matter proceeded to trial. AS was called as a witness by the
State early in the trial. She testified about the incident.
She was also questioned by the State about her delay in
reporting, the inconsistent statements, and various
behavioral issues. Those same issues were addressed
extensively during cross-examination by defense counsel.
Following her testimony, the State called Phillip Archibald,
a therapist who counseled AS, as an expert witness. Mr.
Archibald testified that he had diagnosed AS with
post-traumatic stress disorder (PTSD) and, over objection,
opined that the PTSD was caused by "the reported sexual
abuse." The prosecutor emphasized this testimony during
closing argument stating:
[W]e heard from Phil Archibald who said that that is what he
diagnosed her as, and he told you what the symptoms would be.
And one of the things that he told you was that the basis for
that diagnosis was sexual abuse. And the sexual abuse that he
determined was what took place on July 4, 2014.
jury returned a guilty verdict, and Mr. Spence was sentenced
to three to five years in prison with credit for time served.
This appeal followed.
Mr. Spence objected to admission of the evidence he
challenges in this appeal. Accordingly, we review for abuse
of discretion. Garriott v. State, 2018 WY 4, ¶
20, 408 P.3d 771, 780 (Wyo. 2018). "A trial court abuses
its discretion when it could not have reasonably concluded as
it did. In this context, 'reasonably' means sound
judgment exercised with regard to what is right under the
circumstances and without being arbitrary or
capricious." Id. (internal citation omitted).
Upon a finding of abuse of discretion, we must then determine
whether the error was prejudicial. "An error is deemed
prejudicial when there is a reasonable probability that, in
the absence of the improper evidence, the verdict would have
been more favorable to the appellant." Swett v.
State, 2018 WY 144, ¶ 12, 431 P.3d 1135, 1140 (Wyo.
2018) (citations omitted).
Mr. Spence contends that the district court erred by allowing
AS's counselor, Phillip Archibald, to testify that the
"underlying basis" of her PTSD was her
"reported sexual abuse." He asserts that Mr.
Archibald "impermissibly vouch[ed] for the credibility
of [AS]." The State counters that Mr. Archibald's
testimony was permissible to explain AS's symptoms and
"her behavior," and that Mr. Archibald's
testimony about the "underlying basis" of her PTSD
was only "incidental bolster[ing]" of AS's
credibility and not impermissible vouching.
W.R.E. 702 permits the admission of opinion testimony from an
expert witness if the expert's "specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue." The rule,
however, does not permit an expert to provide opinion
testimony regarding the credibility of a witness because such
testimony invades the province of the jury. "[T]he
question of credibility is for the jury, who are themselves
expert in that area." Zabel v. State, 765 P.2d
357, 360 (Wyo. 1988). In accord with that general rule, we
have made it clear "that an expert witness cannot vouch
for the truthfulness or credibility of an alleged
victim." Id. We have also recognized, however,
that in an appropriate case:
Expert testimony that discusses the behavior and
characteristics of sexual assault victims and the range of
responses to sexual assault encountered by experts is
admissible. Scadden v. State, 732 P.2d 1036 (Wyo.
1987). Such testimony is relevant and helpful in explaining
to the jury the typical behavior patterns of adolescent
victims of sexual assault. Griego v. State, 761 P.2d
973 (Wyo. 1988). It assists the jury in understanding some of
the aspects of the behavior of victims . . . . Zabel v.
State, 765 P.2d 357 (Wyo. 1988).
Chapman v. State, 2001 WY 25, ¶ 13, 18 P.3d
1164, 1170 (Wyo. 2001) (quoting Frenzel v. State,
849 P.2d 741, 748 (Wyo. 1993)). The evidence is
relevant and admissible to dispel myths the public might hold
concerning a child sexual abuse victim's post-abuse
behavior if that behavior is an issue in the case.
Qualified experts on child sexual abuse may, therefore, use
evidence of CSAAS characteristics of sexually abused children
for the sole purpose of explaining a victim's specific
behavior which might be incorrectly construed as inconsistent
with an abuse victim or to rebut an attack on the
victim's credibility. For example, if the facts of a
particular case show that the victim delayed reporting the
abuse, recanted the allegations, kept the abuse secretive, or
was accommodating to the abuse, then testimony about that
particular characteristic of CSAAS would be admissible to
dispel any myths the jury may hold concerning that behavior.
. . . However, expert testimony of CSAAS cannot be used for
the purpose of proving whether the victim's claim of
abuse is true.
Chapman, ¶ 13, 18 P.3d at 1171 (quoting
Frenzel, 849 P.2d at 749).
Such testimony is admissible even though it may have the
incidental effect of supporting the victim's credibility.
"[I]ncidental bolstering of the victim's credibility
alone does not make the expert testimony improper."
Chapman, ¶ 20, 18 P.3d at 1173. However, there
are limits to the scope of the expert's testimony.
"We stress, however, that it is with great care that
such testimony should be admitted. The pivotal question in
determining the admissibility of PTSD testimony in sexual
assault cases is the testimony's relevance to the issues
in the case." Id., ¶ 21, 18 P.3d at 1173.
We have made it clear that "expert testimony . . .
cannot be used for the purpose of proving whether the
victim's claim of abuse is true." Frenzel,
849 P.2d at 749; Chapman, ¶ 18, 18 P.3d at 1172
("[A] diagnosis of PTSD should not be used to prove the
sexual abuse occurred.").
There is no question that the credibility of AS was at issue
prior to Mr. Archibald's testimony. Both the prosecutor
and defense counsel addressed the issue of delayed reporting
and differing statements from AS in their opening statements.
AS was the second witness called by the State and the State
inquired during direct examination about the prior
statements. AS testified that she did not disclose the July
4, 2014 incident at Mr. Spence's apartment until August
12, 2014, which was 39 days after it occurred. Even then, she
did not disclose the full extent of the alleged abuse. She
did not tell the investigators that Mr. Spence had touched
her genitals until March 2015, when she was home on a visit
from treatment in Utah. AS testified that she had delayed
reporting the full extent of Mr. Spence's abuse because
she did not "want it to blow up" and
"ruin" her family. She explained that, during her
treatment in Utah, she learned she "was allowed to let
it out and not feel bad about it." During
cross-examination, defense counsel questioned AS extensively
about her delayed reporting, her emotional and social
problems prior to July 4, 2014, and her relationship with Mr.
Mr. Archibald was the next witness called by the State. He
testified that he counseled AS from October or November 2015
until August 2016. He diagnosed her with post-traumatic
stress disorder (PTSD). Mr. Archibald explained that the
criteria for a PTSD diagnosis are: 1) a stressor, which can
include physical, emotional, or sexual trauma; 2) intrusive
thoughts about the stressor, including "dreams,
flashbacks, . . . daily thoughts that can be . . .
delusional, . . . [and] thoughts that take away time;"
and 3) the intrusive thoughts interrupt normal functioning.
Mr. Archibald said the symptoms of PTSD can be different in
children than in adults. Because children "aren't
able to express what [the] underlying anxiety is," they
may exhibit behaviors that are not acceptable in school or
public, or they may become socially isolated.
The following colloquy then occurred between the prosecutor
and Mr. Archibald:
Q. [H]ave you worked specifically with stress and/or anxiety
disorders in your clients?
A. Yes, I have.
Q. How many cases do you think you've handled that
involved anxiety or stress disorders in children?
A. Thirty plus.
Q. And in your employment, do you deal specifically [with]
children or do you have a ...