Summary
concluding jury's decision to believe child sexual assault victim who recanted and then reasserted accusations during trial was not unreasonable
Summary of this case from Mitchell v. StateOpinion
No. 05-16-00557-CR
05-26-2017
TIMOTHY GREGG, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 366th Judicial District Court Collin County, Texas
Trial Court Cause No. 366-82296-2015
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Evans
Opinion by Justice Lang-Miers
In a three-count indictment, the State charged Timothy Gregg with continuous sexual abuse of a child and two counts of indecency with a child. Appellant pleaded not guilty. A jury found appellant guilty and the court assessed punishment at imprisonment for 65, 10, and 10 years, respectively. On appeal, appellant argues that the evidence is insufficient to support the convictions and the trial court abused its discretion by excluding certain evidence. We affirm the judgments.
I. BACKGROUND
KS was eight years old when she told her maternal Grandmother that appellant, KS's stepfather, had been sexually abusing her. KS did not give Grandmother many details. Grandmother told Mother, and they argued. Mother questioned whether KS was lying. Appellant denied the accusations, left home, and did not return. Mother was distraught that appellant was gone. Grandmother was unsure what to do, so she called another daughter in California. That daughter called the police, and the police went to KS's home. Over the next couple of days, a forensic examiner interviewed KS at the Children's Advocacy Center and KS underwent a sexual assault examination at a local hospital. KS gave many sensory details to the forensic examiner about the abuse and said it had been going on for months. The SANE exam showed that KS had redness and tenderness in her vagina and an abnormal injury to her hymen that were consistent with "something that had been happening chronically." The police arrested appellant.
Over the next nine months, KS recanted the allegations and was interviewed two more times at the Children's Advocacy Center. Mother also learned that KS had watched pornography on a phone, and Mother's friend encouraged KS to tell the forensic examiner about that.
The forensic examiner testified that in the first two interviews, KS was "actively listening, engaged, and paying attention to what I said . . . . Her responses were complete, and . . . she could state things and spontaneously answer questions[.]" She said KS also corrected her when she got things mixed up. She said the second interview was a reaffirmation, not a recantation. But in the third interview, KS's posture and demeanor were "quite different" from the first two interviews. KS "was closed off and . . . her responses were very limited, and she answered exactly what she had to to get the question answered, and, really very, very different." In the third interview, KS said she lied and was sorry she had put an innocent man in jail. However, the forensic examiner did not seem concerned about the recantation or the pornography. She testified that the pornography KS saw "was very limited" and did not "make sense . . . versus what she had said in her first outcry[.]" The police detective also was not concerned about KS's recantation because KS expressed "the outside influences that she has -."
At trial, KS confirmed the sexual abuse and described it in detail. And she said Mother "kept crying and crying and crying in front of me, and, like, talking to [appellant] in front of me, saying, 'I miss you. I wish you were home. I love you.' And the bad thing about it is, she would talk to [him] in front of me. She'd go to my room and talk to [him] in front of me, and it made me feel - ." KS said she was afraid Mother was going to hurt herself because she caught Mother in her closet about to tie a belt around her neck. She said she recanted "because [she] didn't want [Mother] to be sad." After she recanted, Mother's attitude toward KS changed and Mother showed KS more attention.
The senior vice president and clinical director of the Children's Advocacy Center in Collin County explained sexual abuse of children generally. He also talked about the general behavior of child victims when the perpetrator is a family member and other family members do not support or believe the child. He said children "often think, if I can just take it back in some way or tell somebody, it will make it all go away." He said children do not realize what is involved, such as the police, CPS, court, and "[t]he easiest way for a child to make this thing that's really flying or going really fast to stop is to say it didn't happen." He testified that children want to be happy and "will try to do things to make the adults in their life happy but also to try and predict their environment." He said it would not surprise him if a child wanted to try to make the child's mother happy by recanting accusations of sexual abuse.
Appellant sought to impeach KS's credibility. In addition to rigorous cross-examination, appellant sought to introduce records from a previous CPS investigation into allegations of physical abuse by KS against appellant. Appellant argued that the records showed KS had reported "similar allegations" that CPS "ruled out." The State objected to the admission of the records and the court excluded the records.
On appeal, appellant challenges the sufficiency of the evidence to support the convictions and the exclusion of the CPS records.
II. SUFFICIENCY OF THE EVIDENCE
Appellant frames his first two issues as complaining that the convictions are not supported by sufficient evidence, but because his real complaint is about KS's credibility, we refer to the evidence only generally and not in specific detail.
A. Standard of Review
In reviewing a challenge to the sufficiency of the evidence to support a conviction, we consider the evidence in the light most favorable to the verdict and determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). If the evidence is conflicting, we presume the jury resolved the conflicts in favor of the verdict. Id.
B. Applicable Law
To convict appellant of continuous sexual abuse of a child as charged by the indictment, the State was required to prove that appellant (1) during a period that was thirty or more days in duration, (2) committed two or more acts of sexual abuse against KS, (3) KS was younger than age fourteen, and (4) appellant was older than age seventeen and not KS's spouse. See TEX. PENAL CODE ANN. § 21.02(b), (c) (West Supp 2016). As to element (2), the State alleged four acts of aggravated sexual assault of a child and three acts of indecency with a child. See id. §§ 21.11(a)(1), (c)(2) (West 2011) (indecency with a child); 22.021(a)(1)(B)(i), (iii) (iv), (v), (2)(B) (West Supp. 2016) (aggravated sexual assault of a child). These offenses alleged contact of KS's sexual organ by appellant's sexual organ, penetration of KS's sexual organ by appellant's fingers and sexual organ, contact of KS's anus by appellant's sexual organ, contact of KS's genitals by appellant's hand, contact of KS's hand by appellant's genitals, and contact of KS's buttocks by appellant's sexual organ.
To convict appellant separately of the two counts of indecency with a child, the State had to allege sexual contact with KS's breasts. See id. § 21.02(c)(2) (indecency with child by touching breast of child not included within definition of "act of sexual abuse" for purposes of continuous sexual abuse of child); see also Price v. State, 434 S.W.3d 601, 606 (Tex. Crim. App. 2014) (explaining when defendant may be convicted of continuous sexual abuse of child and separate act of sexual abuse). As charged by the indictment, the State had to prove appellant intentionally and knowingly, with the intent to arouse or gratify the sexual desire of any person, engaged in sexual contact (1) by touching KS's breast with his mouth and (2) by touching KS's breast with his hand, and at the time of the offenses KS was younger than seventeen. See TEX. PENAL CODE ANN. § 21.11(a).
C. Discussion
At trial, KS testified about the various acts of sexual abuse constituting continuous sexual abuse of a child and indecency with a child. A child victim's testimony alone is sufficient to support a conviction for continuous sexual abuse of a child and indecency with a child. See TEX. CODE CRIM. PROC. ANN. art. 38.07 (West Supp. 2016); Lee v. State, 186 S.W.3d 649, 655 (Tex. App.—Dallas 2006, pet. ref'd). In addition to KS's testimony, the results of her SANE exam showed she had injuries consistent with sexual abuse.
But appellant does not address any of this evidence or challenge any element of the State's proof. Instead, he argues that KS was so unbelievable that the jury acted unreasonably by convicting him. Appellant concedes that credibility determinations are the exclusive province of the jury. Jackson v. Virginia, 443 U.S. 307, 326 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) ("jury is the sole judge of credibility and weight to be attached to the testimony of witnesses"). Nevertheless, he asks us to second-guess the jury's decision to believe KS. He "implore[s] this Court to review at length the testimony . . . [and] the reporter's record in its entirety" and argues that "[t]here really does come a point where a person, an accuser, loses all credibility." He characterizes KS's testimony as "Yes, it happened, no it did not happen, wait, just kidding, yes it did happen, and then no, this time I really mean it did not happen." He argues that this is one of those cases where "the doubt rises to a level of reasonable and beyond, and even further beyond." We disagree.
We have reviewed the record in its entirety and conclude that the jury's decision to believe KS was not unreasonable. KS gave very detailed testimony about the abuse, did not waiver in her accusations, and had injuries consistent with sexual abuse. In addition, the State's experts explained why a child without familial support may recant allegations of sexual abuse. Appellant cross-examined KS and the other witnesses, and the jury made its credibility determinations. Having viewed the evidence in the appropriate light, we conclude any rational jury could find the essential elements of the offenses beyond a reasonable doubt. We resolve issues one and two against appellant.
II. EXCLUSION OF EVIDENCE
In issue three, appellant argues that the trial court abused its discretion by excluding the records of the prior CPS investigation. He argues that the records were admissible under the business records exception to the hearsay rule and were necessary to his defense and impeachment of KS's credibility. See TEX. R. EVID. 803(6) (hearsay exception for business records).
A. Standard of Review
We examine a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Id. at 83.
B. Discussion
At a hearing outside the presence of the jury, appellant offered the CPS records showing that CPS had investigated allegations by KS of physical abuse by appellant and "ruled out" physical abuse. He offered the records as business records through Amanda Haines, a CPS master investigator who closed the prior case but did not investigate the allegations.
The records showed that KS turned in a school writing assignment that accused appellant of hitting her and her siblings with a "spikey" belt and stated she saw, through a peephole in her room, appellant choking her little brother. KS's teacher reported the allegations and CPS became involved. After an investigation, CPS "ruled out" physical abuse because there were no marks on the children, there was no peephole in KS's room, and Mother and appellant had not used a belt on the children in about five months. During the investigation, which was around the same time appellant was sexually abusing KS, KS did not report any sexual abuse by appellant. Haines testified that "ruled out" did not mean the child lied.
The report defined "physical abuse" as "physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child . . . excluding . . . reasonable discipline by a parent, guardian . . . that does not expose the child to a substantial risk of harm."
One of the objections lodged by the State was that the records contained hearsay within hearsay. We agree. Even when a party lays the proper foundation for admission of a business record, if the business record contains "information from a person who is outside the business and who has no business duty to report or to report accurately, those statements are not covered by the business records exception." Garcia v. State, 126 S.W.3d 921, 926-27 (Tex. Crim. App. 2004). Instead, "[t]hose statements must independently qualify for admission under their own hearsay exception[.]" Id.
The CPS records appellant sought to introduce contained statements from KS, KS's brother, Mother, Grandmother, appellant, and other relatives of KS. None of those is a CPS employee or had a business duty to report or to report accurately. See id. Consequently, after the State objected to the records as containing hearsay within hearsay, appellant's burden was to provide the trial court with an independent hearsay exception for each of those statements he sought to admit into evidence. Id. Because appellant did not do so, the trial court did not abuse its discretion by excluding the records. We resolve issue three against appellant.
IV. CONCLUSION
We affirm the trial court's judgments.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160557F.U05
JUDGMENT
On Appeal from the 366th Judicial District Court, Collin County, Texas
Trial Court Cause No. 366-82296-2015.
Opinion delivered by Justice Lang-Miers. Justices Bridges and Evans participating.
Based on the Court's opinion of this date, the judgments of the trial court are AFFIRMED. Judgment entered this 26th day of May, 2017.