Dino Kachoian v. State ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00250-CR
Dino Greg KACHOIAN,
Appellant
v.
The STATE of Texas,
Appellee
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2008-CRS-000369-D4
Honorable Mark Luitjen, Judge Presiding1
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: May 12, 2010
AFFIRMED
A jury found Dino Kachoian guilty of two counts of aggravated sexual assault of a child, and
the trial court sentenced him to concurrent 45-year terms of imprisonment. We affirm.
1
… Sitting by assignment.
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BACKGROUND
The complainant, Jackie, was approximately six-years old when she alleged Kachoian, her
biological father, sexually abused her.2 Jackie is a special needs child who requires speech and
occupational therapy. Jackie’s full scale intelligence quota is 70, which is lower than 98 percent of
the population.
An aide from Jackie’s school observed Jackie masturbating and reported the incident to the
child’s kindergarten teacher. Jackie’s teacher spoke with the child about the incident and discovered
Kachoian had committed improper sexual acts with his daughter. Following Jackie’s statements,
Child Protective Services and the police were notified.
Jackie was subsequently taken to the hospital for a medical evaluation. Although the Sexual
Assault Nurse Examiner did not find any signs of trauma to Jackie’s vagina, she saw Jackie’s anus
dilate rapidly and observed a scar near the child’s anus. Jackie also spoke with a psychologist and
a forensic interviewer following her allegations of abuse. The child reported multiple acts of sexual
abuse by Kachoian, including instances where Kachoian penetrated her anus and vagina with his
hand and penis. Kachoian was indicted for two counts of aggravated sexual assault of a child based
upon his alleged anal and vaginal penetration of his daughter. He pleaded not guilty to the charged
offenses and proceeded to a jury trial.
At trial, Jackie’s kindergarten teacher, Julia Cantu, testified she learned from an aide that
Jackie was masturbating at school. Cantu spoke with Jackie about the incident and inquired about
why she was touching her body in such a manner. When the child did not respond to Cantu’s
question, Cantu asked Jackie, “Who does it?” Jackie responded, “My daddy.” Cantu questioned
2
… To protect the identity of the victim, we will refer to the child as “Jackie.”
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Jackie further and asked the child, “When?” In response, Jackie answered “Now” and “You know,
when I get home from school.” Jackie demonstrated to Cantu how she was touched by her father
by placing her hand on her vagina and “rocking [her pelvis] back and forth, doing some movements.”
Jackie further told Cantu her father had kissed her on the lips.
An investigative supervisor from the Texas Department of Family and Protective Services,
Griselda Lerma, testified she spoke with Kachoian following Jackie’s allegations of abuse. Lerma
stated Kachoian denied abusing his daughter and began crying when she confronted him about
Jackie’s allegations. She noted Kachoian reported that he may have accidently touched Jackie when
he was bathing the child and that “if he did that, he was sorry.”
The State introduced a videotaped interview between Jackie and Lupita Martinez, a forensic
interviewer with the Children’s Advocacy Center. On the videotape, Jackie told Martinez she felt
uncomfortable when her father touched her “colita,” a word Jackie used for both “penis” and
“vagina.” Jackie informed Martinez that Kachoian used his penis to touch her “colita.” When asked
by Martinez “how does it feel when he puts his colita in your colita?” Jackie replied “[b]ad.” Using
anatomically correct dolls to describe various events, Jackie also reported to Martinez that Kachoian
touched her “in [the] butt” and that Kachoian’s penis would “spit” on her. After the videotape was
played to the jury, Martinez testified about Jackie’s allegations of abuse. Martinez informed the jury
that Jackie “pointed to her vagina” when describing Kachoian’s acts and stated “dad touched her
vagina with his penis.”
The jury also heard testimony from the Sexual Assault Nurse Examiner who examined
Jackie, America Garza. Nurse Garza testified she examined Jackie and learned from the child that
her “butt” hurt. Jackie reported to Nurse Garza that Kachoian had touched her “butt” and vagina
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with his hand. Nurse Garza testified she did not observe any evidence of physical trauma to Jackie’s
vagina, but observed evidence of trauma to the child’s anus. According to Nurse Garza, she
observed a .5 centimeter healing tear located at the six o’clock position of Jackie’s anus. Nurse
Garza also observed Jackie’s anus dilate 1.25 centimeters in less than eight seconds after placing the
child in a prone knee chest position. Nurse Garza noted she observed a small amount of stool in
Jackie’s anus during her examination.
Dr. Amando Garza, a pediatrician, informed the jury that he is “very suspicious of sexual
molestation” as to Jackie. He testified it is common to find no sign of physical trauma in a sexual
abuse case. Dr. Garza explained to the jury that children who have had anal penetration commonly
have anal tears, like Jackie, between the three o’clock and nine o’clock positions of the anus. He
acknowledged that a sexual abuse victim’s anus generally dilates about 2 centimeters, whereas
Jackie’s dilated only about 1.25 centimeters. Although Jackie’s anal dilation measured 1.25
centimeters, Dr. Garza explained that it is very difficult to get an accurate measurement regarding
a child’s anal dilation. Finally, Dr. Garza opined the residual stool observed in Jackie’s anus did not
cause her anus to dilate when the child was placed in the prone knee chest position. He testified he
“would be very suspicious of child abuse” if a child’s anus, like Jackie’s, dilated in less than eight
seconds.
Dr. Gregorio Pina, a psychologist who specializes in the treatment of abused children,
testified about his evaluation and treatment of Jackie following her allegations of abuse. Dr. Pina
testified Jackie exhibited behaviors consistent with other sexual abuse victims.3 He stated Jackie
3
… Some of these symptoms include: anxiety; masturbation; hyper-vigilance; sleeping problems; unusual fear
of men; advanced knowledge of sexual matters; and explosive behavior.
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reported that Kachoian had used his hand to touch her vagina and his penis to touch her anus and
vagina. Dr. Pina testified the child described her father’s penis as rough on her vagina. He stated
Jackie performed a “[p]elvic thrusting” motion as she told him about her father’s conduct, “suck[ing]
her stomach in and let[ting] it out as part of th[e] thrusting.” Dr. Pina testified Jackie told him she
feared her mother “would find out about her father putting her colita in his front colita and then
rubbing it.” Jackie further told Dr. Pina about mouth to mouth kissing with her father and that
Kachoian had licked and kissed her vagina as well. Dr. Pina stated he met with Jackie for
approximately six sessions and that the child remained consistent with her allegations during those
meetings.
Maria Merino, Jackie’s mother, testified her daughter is afraid of Kachoian and does not want
to see him. Merino stated her daughter began to tremble and grabbed her hand when she saw her
father at the mall during the summer of 2008.
Jackie was allowed to testify via closed circuit television during trial. Jackie stated she was
female and then identified her private parts. Although Jackie had previously reported to multiple
persons that Kachoian had engaged in inappropriate behavior, she recanted her prior statements at
trial. During trial, Jackie was asked, “Did your dad ever do anything to your private parts?” and
“Has your dad ever done anything bad to you?” Contrary to her prior statements, Jackie replied
“[n]o.” The child further testified that she is afraid of Kachoian.
Although Kachoian did not testify during trial, he presented the testimony of a pediatrician,
Dr. Charles Hyman. Dr. Hyman indicated he reviewed photographs of the alleged victim, read the
child’s medical/psychological reports, and watched her forensic interview. He opined the anal
dilation observed by Nurse Garza is not necessarily an indication of sexual abuse because such
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dilation may occur “in the normal population” or if there is a stool present in the anus. Dr. Hyman
disagreed with Nurse Garza’s observation of a healing anal tear, stating that Garza misinterpreted
the muscle tissue surrounding Jackie’s anus. He further noted that even if Jackie did have an anal
scar, approximately 2 percent of non-abused children have such scars.
After hearing the evidence, the jury found Kachoian guilty of two counts of aggravated sexual
assault of a child. The trial court subsequently sentenced Kachoian to concurrent 45-year terms of
imprisonment. This appeal followed.
SUFFICIENCY OF THE EVIDENCE
In his fourth issue, Kachoian claims the evidence is factually insufficient to support
his convictions for aggravated sexual assault of a child. See TEX . PENAL CODE ANN .
§ 22.021(a)(1)(B)(i), (2)(B) (Vernon Supp. 2009) (providing that a person commits the offense of
aggravated sexual assault of a child if he intentionally or knowingly causes the penetration of the
anus or sexual organ of a child by any means and the child is younger than fourteen years of age).
When considering a factual sufficiency challenge, we look at the evidence in a neutral light giving
almost complete deference to the jury’s determinations of credibility. Lancon v. State, 253 S.W.3d
699, 705 (Tex. Crim. App. 2008). We reverse only if the evidence supporting the verdict is so weak
that the verdict seems clearly wrong and manifestly unjust or if the evidence supporting the verdict
is outweighed by the great weight and preponderance of the available evidence. Watson v. State, 204
S.W.3d 404, 414-15 (Tex. Crim. App. 2006). This court measures the factual sufficiency of the
evidence against the elements of an offense as defined by a hypothetically correct jury charge.
Wooley v. State, 273 S.W.3d 260, 268 (Tex. Crim. App. 2008).
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The victim’s description of what occurred does not need to be precise, and wide latitude is
given to the statements of a child victim of sexual abuse. See Villalon v. State, 791 S.W.2d 130, 134
(Tex. Crim. App. 1990). The prosecution may prove penetration by circumstantial evidence, and
there is no requirement that the child victim be able to testify as to penetration. Id. at 133. “Proof
of penetration, however slight, is sufficient so long as it is shown by proof beyond a reasonable
doubt.” Rodriguez v. State, 762 S.W.2d 727, 732 (Tex. App.—San Antonio 1988), pet. dism’d,
improvidently granted, 815 S.W.2d 666 (Tex. Crim. App. 1991).
When all of the evidence is viewed in a neutral light in this case, we cannot say the jury’s
findings are clearly wrong or manifestly unjust or that they are against the great weight and
preponderance of the evidence. The record shows the jury viewed the videotape of Jackie’s forensic
interview wherein she details the sexual acts committed by her father. The jury heard Jackie’s
statement regarding Kachoian’s use of his penis to touch her “colita” and her response to Martinez’s
question that it felt “bad” when her father “puts his colita in your colita.” It also heard Jackie inform
Martinez that Kachoian touched her “in [the] butt” and that his penis would “spit” on her.
The record demonstrates the statements Jackie made during her forensic interview concerning
vaginal and anal penetration are consistent with the statements she made to her psychologist. Dr.
Pina testified the child reported that Kachoian used his penis to touch her anus and vagina. He stated
Jackie described her father’s penis as rough on her vagina, and much like she did when discussing
her father’s conduct with her teacher, Jackie acted out a pelvic thrusting motion to explain her
father’s conduct. Dr. Pina testified Jackie feared her mother “would find out about her father putting
her colita in his front colita and then rubbing it.” In addition, the jury heard Dr. Pina testify that
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Jackie exhibited symptoms consistent with those of other sexual abuse victims, including: self-
stimulation; fear of men; advanced knowledge of sexual matters; and hyper-vigilance.
The record also shows Jackie’s allegations of abuse are consistent with the medical
examination conducted by Nurse Garza. Jackie’s medical examination revealed a rapidly dilating
anus as well as a healing anal tear. The pediatrician who interpreted the results of the examination,
Dr. Garza, testified Jackie’s healing anal tear and immediate dilation of her anus are consistent with
penetration trauma. Dr. Garza testified Jackie’s exam results made him “very suspicious of sexual
molestation.”
To undermine the jury’s verdict, Kachoian cites Jackie’s recantation of her allegations of
abuse at trial. Although Jackie denied on direct examination that Kachoian had engaged in
inappropriate behavior, the jury heard Dr. Pina testify Jackie’s recantation was the result of her
having a psychosis and just shutting down at trial. The jury, as the trier of fact, was free to disbelieve
Jackie’s trial recantation and to rely on her prior statements concerning her father’s abuse. See
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991) (holding trier of fact is free to
disbelieve a complainant’s trial recantation).
Kachoian also argues the jury should have discredited Jackie’s statements to Martinez
because of the manner in which Martinez conducted her forensic interview. The record shows
Martinez was subject to cross-examination about her investigatory technique and whether she made
any errors during her interview of the victim. We are obligated to defer to the jury’s determination
of Martinez’s credibility and whether the statements Jackie made to her are credible and worthy of
belief. See Lancon, 253 S.W.3d at 704-05; Stogiera v. State, 191 S.W.3d 194, 196 (Tex. App.—San
Antonio 2005, no pet.).
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Kachoian further contends Dr. Hyman’s testimony concerning Jackie’s medical examination
undermines the conclusion that anal penetration had occurred. The contravening evidence cited by
Kachoian merely created a fact issue for the jury. As previously emphasized, this court must defer
to the jury’s findings and may not substantially intrude on the fact finder’s role as the sole judge of
the weight and credibility of the witnesses. See Lancon, 253 S.W.3d at 704-05; Stogiera, 191
S.W.3d at 196. The jury had the opportunity to hear the conflicting medical testimony as well as the
testimony of the State’s witnesses. It was able to observe the demeanor of the witnesses and judge
their credibility. Because we will not usurp the function of the jury, we must reject Kachoian’s
complaint on appeal. See Roise v. State, 7 S.W.3d 225, 233 (Tex. App.—Austin 1999, pet. ref’d)
(“‘A decision is not manifestly unjust because the jury [or fact finder] resolved conflicting views of
the evidence in favor of the State.’”). Kachoian’s fourth issue is overruled.
CONFRONTATION CLAUSE
In his first issue, Kachoian argues the trial court violated his right of confrontation when it
allowed the State to introduce the videotape of Jackie’s forensic interview. Kachoian, however, did
not object to the admission of the videotape when it was introduced at trial. Kachoian’s failure to
timely object waived any error in the admission of the videotape. See Wright v. State, 28 S.W.3d
526, 536 (Tex. Crim. App. 2000) (holding appellant’s failure to raise Confrontation Clause objection
at trial waived the challenge on appeal); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.
1990) (holding failure to object at trial waived any claim on appeal that admission of videotape
evidence violated appellant’s rights of confrontation and due process); Acevedo v. State, 255 S.W.3d
162, 173 (Tex. App.—San Antonio 2008, pet. ref’d) (“To preserve denial of a right to confrontation
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error, one must specifically object based on the Confrontation Clause.”). Kachoian’s first issue is
overruled.
EXPERT TESTIMONY
In his third issue, Kachoian complains the trial court erred in allowing Dr. Pina to testify
about the truthfulness of the victim. Although Kachoian objected to Dr. Pina’s testimony as
“repetitive,” he did not object on the basis that Pina’s testimony constituted an impermissible
comment on the truthfulness of the victim. “To preserve error, the complaint on appeal must
comport with the objection lodged in the trial court.” Long v. State, 130 S.W.3d 419, 429 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). Kachoian has failed to preserve this issue for appellate
review because his complaint on appeal is different from his objection at trial. See Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (citations omitted) (“‘An objection stating one legal
theory may not be used to support a different legal theory on appeal.’”). Kachoian’s third issue is
overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his second issue, Kachoian alleges defense counsel rendered ineffective assistance when
he failed to object to the introduction of the videotape of Jackie’s forensic interview. A defendant
is entitled to effective assistance of counsel under both the United States and Texas Constitutions.
U.S. CONST . amend. VI; TEX . CONST . art. I, § 10. The right to effective assistance of counsel does
not guarantee a defendant errorless representation; instead, it affords the defendant an attorney who
is reasonably likely to render effective assistance. Moore v. State, 694 S.W.2d 528, 531 (Tex. Crim.
App. 1985). To establish ineffective assistance of counsel, the appellant must show defense
counsel’s assistance fell below an objective professional standard of reasonableness and counsel’s
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actions thereby prejudiced appellant’s defense. Strickland v. Washington, 466 U.S. 668, 687 (1984);
Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999). In order to establish prejudice, an
appellant must show, by a preponderance of the evidence, that “but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Jackson v. State, 973 S.W.2d 954,
956 (Tex. Crim. App. 1998).
When reviewing an ineffective assistance claim, “[a]n appellate court looks to the totality of
the representation and the particular circumstances of each case.” Thompson, 9 S.W.3d at 813.
There is a strong presumption that defense counsel’s conduct fell within the wide range of reasonable
professional assistance. Id. To defeat this presumption, the “record must affirmatively demonstrate
the alleged ineffectiveness.” Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). Direct
appeal is usually an inadequate vehicle for raising an ineffective assistance of counsel claim because
the record is generally undeveloped. Thompson, 9 S.W.3d at 813-14. Moreover, “trial counsel
should ordinarily be afforded an opportunity to explain his actions before being denounced as
ineffective.” Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003).
Kachoian did not file a motion for new trial. As a result, defense counsel’s reasoning for
failing to object to the admission of the videotape evidence does not appear in the record. Counsel’s
conduct in connection with the videotape could have been part of a reasonable trial strategy. See
Garza v. State, 213 S.W.3d 338, 347-48 (Tex. Crim. App. 2007) (recognizing trial counsel’s failure
to object to hearsay testimony that allegedly violated the Confrontation Clause could have been
grounded in legitimate trial strategy); see also McKinny v. State, 76 S.W.3d 463, 473 (Tex.
App.—Houston [1st Dist.] 2002, no pet.) (noting, in context of ineffective assistance claim,
“advocates must be free to choose not to make [objections] even if they have a legal basis for doing
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so”). Without more, we must defer to the decisions of defense counsel and conclude Kachoian has
not overcome the strong presumption that counsel’s conduct was reasonable. Kachoian’s second
issue is overruled.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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