Monn v. State , 1991 Wyo. LEXIS 92 ( 1991 )

CARDINE, Justice.

Appellant Curtis Monn was convicted of incest, taking indecent liberties with a minor, and second degree sexual assault. The issue he presents is whether the State, by examination of his wife in eliciting her testimony, improperly put into evidence statements his wife gave to an investigator. Because no challenge to the testimony was made at trial in the form of a proper objection, we examine this case under the plain error doctrine.

We affirm.

Monn states the issue:

“Whether by allowing the recorded statement of previously convicted witness Sarah Monn to be read into evidence the trial court erred and allowed otherwise inadmissible hearsay statements to be read into evidence before the jury thus violating appellant’s Sixth Amendment right of confrontation.”

Appellant’s convictions arose from incidents with his daughter, PP, in 1984 and with his step-daughter, CGM, from 1987 to 1989. The daughter, PP, was 15 years old when the sexual assault occurred. The sexual assaults against the step-daughter, CGM, began when she was in the third grade and occurred daily.

At trial, both victims testified in detail about Monn’s sexual assaults and indecent acts. CGM testified that she was required to sleep with her stepfather Monn and her mother Sarah. She was not allowed to wear underwear to bed. Monn wore only a t-shirt. CGM identified various sexual paraphernalia and described how Monn would use them on her or force her to use them on her mother. She testified that Monn touched her with his penis on her vagina, anus and mouth. She testified that she saw Monn ejaculate and that he had ejaculated into her mouth. Evidence also showed that CGM, Monn, and Sarah Monn had Gardnerella or bacterial vaginitis, a disease sexually transmitted, and that CGM had an enlarged vagina consistent with penetration by an adult male.

PP, Monn’s daughter, testified that she went to live with Monn in January of 1984. She was forced to sleep naked with Monn and her stepmother Sarah. Monn forced PP to have oral sex and intercourse with him. She left the house the first chance she had which was a few days later. During May 1989, PP informed the Natrona County sheriff’s office that appellant might be engaging in a sexual relationship with his ten-year-old stepdaughter.

On May 11, 1989, Sarah Monn gave a sheriff’s investigator a statement recounting the sordid details of Monn’s sexual abuse, assaults, incest and intercourse with these young girls. Ten days before trial, Sarah Monn met with the prosecuting attorney and reviewed and reaffirmed her statement preparatory to trial and testifying. And so Sarah Monn was also called as a witness for the State. She testified that she had been imprisoned for incest. She testified that PP had slept in bed with Monn and herself. Then her memory began to fade. To some questions concerning sexual activity she responded by saying she could not remember; to other questions she responded without equivocation, sometimes contrary to the statement she gave to the sheriff’s investigator. For example, she denied that a vibrator was used for sexual purposes. About CGM being told “not to say anything,” when asked what CGM said “besides it hurt,” Sarah Monn, contrary to her statement, said she did not know. She denied anything else occurred, then admitted appellant “made her [CGM] get down there by my vagina and lick it * * *.” When asked about the last time anything happened, she said she did not know, then related the time. She stated that she never touched CGM in a sexual manner nor had CGM touched her in a sexual manner, which was inconsistent with her prior statement. The State’s attorney undertook to impeach the witness with her prior inconsistent statements or to refresh her recollection by questioning her about the statements she made to a Natro-na County sheriff’s investigator on May 11, 1989. In response to the prosecuting attorney’s questioning, Sarah Monn read the answers to questions from her statement. Her answers were that she had seen Monn use the vibrator on CGM, and CGM had been forced to use the vibrator on her; that Monn promised CGM candy for engaging in sexual acts; and that the sexual acts hurt CGM.

The only objection interposed by Monn’s counsel during Sarah Monn’s testimony was the following:

“Q. [By the State]: Why don’t you go ahead and read the rest, if you don’t remember it, following that what [sheriff’s investigator] said?

“[Monn’s counsel]: Objection, I am not sure what the question is. Counsel is just going to have her read.

“[The State]: I am sorry, it is on the same line of questioning and what did she say, referring to [CGM] when she said it hurt. What did she say?”

This objection was inadequate to draw the court’s attention to a possible hearsay problem. United States v. Johnson, 802 F.2d 1459, 1465 n. 14 (D.C.Cir.1986). Due to the absence of an objection adequate to alert the trial court to a problem, the admission of this hearsay must rise to plain error before it will be considered by this court. Schmunk v. State, 714 P.2d 724, 739 (Wyo.1986); W.R.E. 103(d); W.R.A.P. 7.05; W.R.Cr.P. 49(b).

To invoke the plain error doctrine, three elements must be established. First, the record must clearly show what occurred at the trial without resort to speculation. Second, the existence of a clear and unequivocal rule of law must have been violated in an obvious way. Third, this violation must have adversely affected some substantial right of the accused. McLaughlin v. State, 780 P.2d 964, 971 (Wyo.1989).

We question that even the first element of our plain error doctrine is satisfied, in that what occurred at trial is often not clearly shown. Thus, while the prosecutor’s questions and witness Sarah Monn’s answers clearly appear in the record, it is often unclear whether the witness was answering the question from her own knowledge and memory, was answering on the basis of refreshed memory, or was reading her answer from her transcribed prior statement which she had before her. The record does demonstrate that Sarah Monn was an uncooperative witness who either did not remember certain events or who blatantly testified falsely that she did not remember statements she had reviewed and affirmed with the prosecuting attorney just ten days earlier. She also testified, contrary to her statement, that no sexual activity involving the victims took place. Her statements to the investigator were used in her examination as prior inconsistent statements, for impeachment, as affecting her credibility, and to refresh her recollection.

We cannot conclude that a clear and unequivocal rule of law was violated in an obvious way as required by the second element of our plain error doctrine. Appellant argues that Sarah Monn’s statements to the sheriff’s investigator were hearsay and the State did not meet the requirement for admitting the statement under the past recollection recorded exception. W.R.E. 803(5). However, Sarah Monn did not simply state she could not remember anything; she also denied certain sexual activity which was inconsistent with her statements to the sheriff’s investigator. Inconsistent statements may be found in evasive answers, the inability to recall, silence, or changes of -position. United States v. Dennis, 625 F.2d 782, 795 (8th Cir.1980). Except for silence, Sarah Monn’s testimony is characterized by these types of responses. Prior inconsistent statements are admissible under W.R.E. 613(b):

“(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).”

Sarah Monn did attempt to explain the statements by claiming to have made them under stress. Monn’s counsel interrogated Sarah Monn concerning these statements on cross-examination. We cannot say that had Monn’s counsel properly brought the issue before the court, he would have not been afforded the opportunity to interrogate Sarah Monn before the statements were read. Thus, we cannot say on the basis of the record that the requirements of W.R.E. 613(b) were not met.

Lastly, appellant’s claim that the trial court erroneously permitted the State to put Sarah Monn’s prior statement in evidence pursuant to a hearsay exception in W.R.E. 803(5) must fail. Some authority does exist to suggest that past recollections may be admissible under the 803(5) exception when the credibility of a witness’s lack of memory is questionable. United States v. Williams, 571 F.2d 344, 349 (6th Cir.), cert. denied 439 U.S. 841, 99 S.Ct. 131, 58 L.Ed.2d 139 (1978); United States v. Insana, 423 F.2d 1165, 1170 (2d Cir.), cert. denied 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970). This statement, however, was never offered into evidence pursuant to W.R.E. 803(5), and the requirements of the rule never became a requirement in this case.

We cannot conclude that the use of Sarah Monn’s statements to the sheriffs investigator resulted in a violation of a clear and unequivocal rule of law. Finally, we are comfortable in finding that whatever occurred did not affect a substantial right of the accused. Sarah Monn’s testimony was confusing at best. Only a very bold person would undertake to say what effect it may have had upon the jury. But more significantly, there was ample other evidence from which the jury found that appellant had committed the crimes of which he was found guilty. PP testified clearly and unequivocally that appellant had taken sexual advantage of her when she was 15 years old. CGM testified at length about appellant’s sexual aggression toward her. She testified graphically as to the different tactics appellant used to molest her sexually. Her testimony was corroborated by that of nurse Kenna Holman concerning the existence of a sexually transmitted disease in appellant, Sarah Monn, and CGM. Her testimony of sexual assault was also corroborated by Dr. Joanne Hedgecoek’s testimony that CGM’s vaginal opening was abnormally large, consistent with penetration by an adult male, and that CGM’s vaginal disease could, to her knowledge, only be transmitted through sexual intercourse. There was not plain error in the examination of Sarah Monn, nor was there prejudicial error in the trial of this case.

Affirmed.

CARDINE, J., concurs.

URBIGKIT, C.J., files a dissenting opinion.