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Spence v. State

Supreme Court of Wyoming

May 16, 2019

JUSTIN N. SPENCE, Appellant (Defendant),
v.
THE STATE OF WYOMING, ppellee (Plaintiff).

          Appeal 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.

          Before DAVIS, C.J., and BURKE [†] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          OPINION

          BURKE, JUSTICE.

         [¶1] 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.

         ISSUE

         [¶2] Did the district court abuse its discretion by permitting the State to use an expert to vouch for the credibility of the alleged victim?[1]

         FACTS

         [¶3] 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.

         [¶4] 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.

         [¶5] 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.[2] 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 Christi Preuit.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.

         [¶10] 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).[3] 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.

         The 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.

         STANDARD OF REVIEW

         [¶11] 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).

         DISCUSSION

         [¶12] 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.

         [¶13] 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).[4]

         [¶14] 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.").

         [¶15] 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. Schmidt.[5]

         [¶16] 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.

         [¶17] 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 ...

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