Summary 2009 WY 126

Summary of Decision issued October 16, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Tombroek v. State

Citation: 2009 WY 126

Docket Number: S-08-0015

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

Representing Appellant Tombroek: Tina N. Kerin, Appellate Counsel; Diane E. Courselle, Faculty Director and Whitney L. Michak and Janae E. Ruppert, Student Interns, Defender Aid Program.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Tombroek was tried and convicted by a jury of first-degree sexual assault of an adult woman with a mental disability. Tombroek appealed 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. He also argued the State failed to present sufficient evidence to prove an element of the crime charged.

Testimony about prior consistent statements: The district court admitted statements from the doctor, the sister, the mother and the investigating officer. Tombroek objected to the statements from the doctor admitted by the district court as a medical exception to hearsay under Rule W.R.E. 801(d)(1)(B). Four requirements must be met before a prior consistent statement will be properly admissible: the declarant testifies at trial; the declarant is subject to cross-examination; the prior statement is consistent with the declarant’s trial testimony and the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. After applying the requirements to the facts in the instant case, the Court stated it was clear that all of the statements were properly admitted as prior consistent statements. The Court then considered whether the testimony could be used as substantive evidence or limited to rehabilitative evidence. Tombroek relied on Seward v. State and Wilde v. State. The focus of the Court’s concern in both cases was the vouching nature of the questioned testimony and its resultant prejudice. The Court noted the prosecutor carefully limited his use of the evidence in closing argument to rehabilitation of the victim, lessening any risk of prejudice. The Court found no abuse of discretion in the instant case where the appellant failed at trial to either identify when an alleged motive to fabricate arose or to request a limiting instruction.
Sufficient evidence: Tombroek claimed that the State failed to present evidence from which a jury could reasonably conclude beyond a reasonable doubt that the victim was incapable of appraising the nature of her conduct with regard to the sexual conduct that occurred as required by § 6-2-302(a)(iv). The Court has previously divided the subsection into two parts requiring that there was sufficient evidence of the victim’s mental deficiency or developmental disability to establish that the victim was incapable of appraising the nature of her conduct and that there was sufficient evidence that the defendant knew or reasonably should have known about the victim’s deficiency. Tombroek admitted knowledge of the victim’s situation, testimony was presented and the jury was able to observe the victim as well. It was reasonable to conclude the jury could have concluded as it did.

Conclusion: Appellant failed to demonstrate that the district court abused its discretion in admitting the prior consistent statements. Furthermore, the Court found there was sufficient evidence presented to the jury for it reasonably to conclude that the victim had a disability which made her incapable of appraising the nature of her conduct and that the appellant was aware of both the disability and its effect upon the victim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yz4kus3 .

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