Griswold v. State

994 P.2d 920, 1999 Wyo. LEXIS 200, 1999 WL 1267369
CourtWyoming Supreme Court
DecidedDecember 30, 1999
Docket99-45
StatusPublished
Cited by36 cases

This text of 994 P.2d 920 (Griswold v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200, 1999 WL 1267369 (Wyo. 1999).

Opinion

GOLDEN, Justice.

Appellant Homer Griswold (Griswold) appeals his conviction for ten counts of second degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303 and two counts of indecent liberties in violation of Wyo. Stat. Ann. § 14 — 3-105. Griswold’s main issues focus on the merger of his sentences with respect to the indecent liberties and second degree sexual assault charges and the admission of expert testimony he claims went to the ultimate issue of whether the children were victims and their credibility as witnesses.

After reviewing the ten issues Griswold raises, we affirm the judgment and sentence.

ISSUES

Griswold presents ten issues on appeal:

*923 1. Was defendant entitled to judgment of acquittal as to Counts VI and XII as a matter of law for allegations occurring after July 1, 1997. For any such allegation 'in Counts VI and XII prior to July 1, 1997, should defendant’s sentences merge with those imposed for Counts I and VII[?]
2. Did the court abuse its discretion and commit error in its admission of the testimony of vague and remote “prior bad acts”[?]
3. Did the court err in permitting the state’s expert to testify as to statements made to his associate by the children when such statements were made for purposes of litigation and not for purposes of medical diagnosis and treatment!?]
4. Did the court err in permitting Dr. Sirotnak to render an opinion that AO was a victim of sexual abuse!?]
5. Was there sufficient evidence upon which a verdict of guilt as to Count V could be returned or sustained!?]
6. Did the court err in permitting testimony that vouched for the credibility of the children, TM and AO[?]
7. Did the court err in allowing improper rebuttal testimony!?]
8. Did the court err in failing to grant defendant a continuance!?]
9. Did the State engage in willful unethical and oppressive misconduct to distract defendant’s trial attorney from devoting needed attention to the defense of appellant and, by such misconduct, cause, in part, appellant to receive ineffective assistance of counsel!?]
10. Was defendant denied his rights under the Sixth Amendment of the U.S. Constitution and Article I, § 10 of the Wyoming Constitution, to the effective assistance of counsel!?]

As Appellee, the State phrases the issues:

I. Whether appellant’s convictions as to Counts VI and XII should be vacated, or the sentences on those counts be merged with the sentences on Counts I and VII.
11. Did the district court abuse its discretion in admitting the challenged “prior bad acts” evidence?
III. Was the testimony of Dr. Sirotnak regarding Michelle Kelly’s report properly admitted?
IV. Did the trial court properly admit Dr. Sirotnak’s opinion testimony that AO was a victim of sexual abuse?
V. Was the evidence presented as to Count V sufficient to sustain appellant’s conviction?
VI. Did the challenged testimony of Dr. Sirotnak and John Noteboom impermissi-bly vouch for the credibility of AO and TM?
VII. Did the district court abuse its discretion in allowing the challenged testimony of Dr. David Corwin during the State’s rebuttal case?
VIII. Did the district court abuse its discretion in denying appellant a continuance?
IX. Should appellant’s ninth and tenth appellate claims be summarily rejected by this Court?

FACTS

On December 18, 1997, approximately two weeks after seven-year old AO returned home from a ten month stay as a foster child with Beth and Homer Griswold, AO’s fifteen-year old brother picked her up from the babysitter. Later that evening when her brother told her to go to bed, AO refused and began crying uncontrollably. Eventually, AO disclosed that Griswold had forced her to perform fellatio on him while TM, her foster sibling, was in the room. The brother left his mother a note describing what AO told him. After briefly speaking with AO, the mother reported the matter to the Department of Family Services (DFS).

Investigating the report, DFS employees interviewed AO and TM individually. Using her own terminology, TM told DFS during the interview, and later testified at trial, that Griswold anally and vaginally penetrated both her and AO, forced both of them to perform fellatio on him, and performed cunnilingus on both of the girls. After the interviews, DFS referred the girls to a local pediatrician and a local mental health counselor for diagnosis and treatment. Both girls were examined by the pediatrician on December *924 26, 1997. Shortly thereafter, the multi-disci-plinary Kempe Child Protection Team at Denver Children’s Hospital also conducted psychological, anal, and genital exams.

Following the examinations, the Kempe Child Protection Team diagnosed the girls as victims of sexual abuse. Dr. Sirotnak, the director of the program, concluded the evidence indicated repeated, traumatic anal penetration of TM, and, to a lesser degree, of AO. This conclusion was further supported by the girls’ accounts of what occurred during their stay with the Griswolds. Both AO and TM vividly described frequent instances of oral, digital, and penile intrusion and numerous occasions on which Griswold forced them to perform fellatio. They reported, with graphic details, that this abuse sometimes occurred when he was alone with one of them and sometimes when they were both present. TM resided with the Griswolds from March of 1996 to November of 1997, and AO resided with them from late January to early December of 1997.

On April 16, 1998, Griswold was charged with ten counts of second degree sexual assault, in violation of Wyo. Stat. Ann. §§ 6-2-303(a)(v), 6-2-306, and 6-10-102, and two counts of taking indecent liberties with a child, in violation of § 14-3-105. Counts I through V alleged sexual assault of AO by fellatio, penile intrusion of the anus, cunnilingus, digital intrusion of the vaginal area, and penile intrusion of the vaginal area. Count YI alleged indecent liberties with AO. The dates for these charges were January 31 through December 2, 1997. Counts VII through XII mirrored those allegations with respect to TM, and alleged dates of March 23, 1996, through November 21, 1997. Gris-wold was ultimately bound over on all charges, and a jury found him guilty on all twelve counts. The district court sentenced him to five concurrent terms of life imprisonment to run consecutively with another five concurrent terms of life imprisonment for the ten counts of sexual assault. In addition, he was sentenced to two nine to ten-year terms of imprisonment for the two indecent liberties counts to ran consecutive with the other terms. Griswold appealed to this Court.

DISCUSSION

Argument One: Convictions Should be Vacated or Merged

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Bluebook (online)
994 P.2d 920, 1999 Wyo. LEXIS 200, 1999 WL 1267369, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griswold-v-state-wyo-1999.