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Curl v. State WY 80 P. Bundy, Student Intern. Joseph B. Meyer, Atty.

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Hackl, Deputy Atty. The testimony of his youthful victims was pivotal to jury convictions on two counts of taking immoral or indecent liberties and two counts of second-degree sexual assault. Curl ass error to the district court's admission of testimony from corroborative witnesses and claims the State failed to prove one sexual assault.

Finding no error in the admission of testimony and sufficient direct evidence, we affirm. The admission of testimony stating that the defendant was guilty of sexual abuse was error per se and plain error and denied appellant of his right to a trial by jury.

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The admission of testimony of witnesses vouching for the credibility of [minor victim VD] and [minor victim LS] was error per se and plain error. The trial court committed reversible error when witnesses testified to prior consistent statements under W. Error was committed when statements admitted under D 1 B [sic] were improperly used to rehabilitate unimpeached witnesses.

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The trial court erred in failing to grant appellant's motion for acquittal at the close of the evidence as the state failed to prove all elements of second degree sexual assault. When CD's ten-year-old playmate, VD, told his mother that Curl had taken him off by himself in order to show him men's magazines, VD's mother summoned the police.

Investigation raised concerns that Curl had victimized at least four children, ten years of age and under, and interviews with his daughter and her friend and with his stepson and his playmate substantiated those concerns. Two of the children were examined by physicians.

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CD confirmed his stepfather's efforts to isolate VD, testifying that Curl "took [VD] upstairs and - well, when I was with my sister he yelled back down to clean out the room. Now, when we're saying "your thing and did it get hard," are we talking about your penis? Well, I went downstairs and he put my face up to the wall and he let me down. He said, "I want to see how tall you are.

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CD indicated Curl would fondle and fellate him, demanding reciprocation. Curl also attempted to sodomize his stepson, telling the boy in a menacing fashion to keep these things secret.

Robert Prentice, the physician who examined CD after Curl's arrest, testified that CD had reported a course of events identical to those the boy later described in court, including attempted anal penetration, further asserting that such grim scenes had been reenacted "maybe 15 or 20" times.

Prentice's examination revealed damage that could have occurred with an attempt at anal penetration:.

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I was looking for evidence of trauma of the anus since he had alleged anal penetration. And I was surprised in one sense - because usually we don't find much, especially on males on physical exam - to see that there was a scar. With an attempt at anal penetration, the scar could have formed with tearing of the [perineal] tissue.

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With a good deal of prompting, TS testified that Curl had touched her vaginal area and tried to insert his penis there. As was the case with her stepbrother, these insults had occurred over a period of at least two years, accompanied by a harsh warning: "If you tell mom, I'm going to get you. Carol Schiel, the physician who examined TS after Curl's arrest, recounted TS's statement that she was at the doctor's office because her father was putting his penis in her vagina.

According to Dr. Schiel, a physical examination of TS revealed an abnormal thickening of the hymenal area, reddening in the area between the vagina and the rectum, and increased tenderness in the rectal area, which "physical findings were consistent with the history that she gave me. The record is devoid of evidence which contradicts any material portion of the testimony of Curl's young victims. Schiel's opinion, as an expert, as to Curl's guilt in the assault upon his daughter, TS. If such were indeed the case, it would constitute error per se, necessitating reversal of that conviction.

Stephens v. State, P. The obvious rationale for this rule is that it is the jury, themselves, who are the sole experts in the realm of witness credibility. Saldana v.

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Schiel testified as to the child's narrative of the events necessitating medical examination. TS reported that her father had put his penis into her vagina. Schiel then described her physical findings and engaged in the following exchange with the prosecutor:.

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What was your assessment, then, of [TS], looking at these physical findings in relation to her history that you had? Schiel's opinion on Curl's actions.

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Had Dr. Schiel responded directly to the prosecutor's artless query, reversal would be required as to Curl's conviction for second-degree sexual assault upon his daughter. Just as clearly, however, Dr. Schiel beneficently interrupted, not to express her opinion as to Curl's actions but to clarify her notes as to whom TS had identified her father rather than her stepfather.

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Betzle v. We hold that Dr. Schiel's testimony was given with proper foundation and did not invade the province of the jury by offering any opinion as to Curl's actions.

Curl relies on McCone v. James v.

Abuse of discretion occurs when a court's decision, or decision-making process, exceeds the bounds of measured reason in light of those matters properly before that court. Martinez v.

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Curl's hearsay objection, at trial, to her testimony concerning what her son had told her was overruled because the statements were offered not for the truth of the matter asserted, but only "to show what prompted the witness, [VD's mother], to call the police. The prosecutor then inquired on re-direct as to VD's mother's observations of her son's demeanor at the time he was telling police what had happened to him.

Curl's counsel then renewed his hearsay objection, but voiced no complaint or objection concerning VD's mother's putative comments on her son's credibility. Warhawk v. Testimony which helps illuminate some other aspect of the case will not be labeled plain error simply because it has the collateral effect of bolstering the credibility of another witness.

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Brown v. VD's mother's challenged testimony is, in fact, strikingly reminiscent of the expert's testimony in Brown. Here, VD's mother testified that her son seemed to be talking to the police in a "sincere" manner.

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While it may have been implicit, VD's mother never testified that she believed her son's version of the events nor did she say her son was telling the truth. Bennett v.

Here, VD's mother testified that her son appeared to be telling the truth to police officers. Although that testimony might have had the collateral or incidental effect of supporting VD's credibility, it was not a direct comment on his credibility or veracity and cannot be said to constitute error.

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Saldana, P. Again, we analyze admissibility questions under the abuse of discretion standard. James, P. The sum and substance of Curl's defense was that his victims were not worthy of belief and his disingenuous efforts to claim otherwise, on appeal, are tardy and unavailing.

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See Eckert v. Allen, P. Montoya v. However, little supportive case law and less logic is offered to bolster his argument that consistency requires a virtual identity or congruence between the testimony of the principal witness and the subsequent statements.

Mueller and Laird C. Professor Mueller notes that it is the consistency, rather than the substance of the consistent statement, which takes such a statement out of the realm of objectionable hearsay and tends to prove the value of the original statement. Montoya, P. Error, if any, may be considered harmless when the content of challenged consistent statements is clearly cumulative of prior testimony. Logically, however, material information presented for the first time to support a prior "consistent statement" has no antecedent with which to be consistent or inconsistent and is, therefore, inadmissible.

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Thereafter, VD testified as follows:. When did this happen, when you were talking about Playboy?

Was this before you looked at the Playboy or after? With the victim's testimony that Curl had an erection and "it felt like he was coming on," Curl is ill-situated to argue that there would be a lesser degree of criminality in rubbing his erection against his youthful victim's hip bone as opposed to the child's rectum.

In the absence of allegations of attempted penetration, no material difference exists between the two s, the indecency of which is consistent for purposes of W. That argument ignores CD's testimony to a protracted course of sexual abuse at the hands of his stepfather, stretching back two years to a time when the "family" lived in a mobile home. It also conveniently avoids mention of Dr. Prentice's testimony:.

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And [CD] was unable to specifically say how often that molestation had occurred. He estimated, quote, "maybe 15 or 20," unquote. ZIP: 49509 49548 49418 49519 49528

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