Dennis Harold Griffin v. State ( 2007 )

Opinion Issued November 8, 2007

Opinion Issued November 8, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00809-CR

DENNIS HAROLD GRIFFIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 248th District Court

Harris County, Texas

Trial Court Cause No. 1068569

MEMORANDUM OPINION

          Appellant Dennis Harold Griffin pleaded not guilty to the felony offense of aggravated sexual assault of a child. See Tex. Pen. Code Ann. § 22.021.  The jury found Griffin guilty and, upon finding true two enhancements included in the indictment, assessed punishment at thirty years’ confinement.  In three issues, Griffin contends that the evidence is legally and factually insufficient to support a guilty verdict and that he was unfairly prejudiced by a tainted in-court identification.  We affirm.

Background

          In 2005, when S.R. was thirteen years old, she lived with her grandmother, who was her legal guardian and cared for her most of her life.  S.R. had been diagnosed at a young age with ADHD and bi-polar disorder, and attended a special school to help with her learning and developmental disabilities. Her grandmother testified that, at thirteen years old, S.R. had the mental capacity of a seven-year-old.

          In early 2005, Griffin, a thirty-seven-year-old, made contact with S.R. on an adult phone chat line while her grandmother was at work.  Griffin told S.R. that his name was Stefan and that he was eighteen years old.  S.R. told Griffin that she was seventeen years old and gave him her phone number, and they talked on the phone several times.

          On February 7, 2005, at 6:00 a.m., S.R. left her house to meet Griffin, taking her grandmother’s car and cell phone without permission.  With Griffin on the phone directing her, S.R. drove across town and eventually met Griffin in a parking lot.  Although she realized he was older than eighteen, S.R. allowed Griffin to drive her, in her car, to his apartment. Shortly after arriving, they went to Griffin’s bedroom and Griffin had sexual intercourse with S.R. 

          S.R. stayed at Griffin’s apartment for four weeks, during which time he had sexual intercourse with her on several occasions.  S.R.’s grandmother filed a missing person’s report, as well as a stolen vehicle report.  While staying at Griffin’s apartment, S.R. sometimes left by herself and sometimes went out with Griffin.  S.R. met Griffin’s fiancée multiple times and even drove her to work twice.  Sometime during the four weeks that S.R. was at Griffin’s apartment, she returned to her grandmother’s house and removed several items, which she intended to pawn for money.  On March 1, 2005, one of Griffin’s cousin’s drove S.R. (in his own car) back to her grandmother’s house. 

          Shortly after S.R. recounted to her grandmother what had occurred, S.R.’s grandmother took her to Texas Children’s Hospital where medical professionals examined her.  The sexual assault nurse did not see physical evidence of abuse.  The nurse noted a white discharge in the vaginal area and collected swabs.  The anal swab tested positive for semen in tests done by a Houston Police Department serologist, but it contained an insufficient amount of DNA to make a comparison.

          The same day that S.R. returned home, HPD Officer Pena stopped a car that had been reported stolen and linked to a juvenile runaway.  The car was S.R.’s grandmother’s car.  The car’s driver reported an address where he had seen S.R. with Griffin and described him.  Officer Pena went to the residence, but no one was home. Based on this information, Officer Smith created a photo array, which included Griffin’s driver’s license photo.

          In April 2005, S.R. and her grandmother visited the Children’s Assessment Center, where a caseworker showed the photo array to S.R.  The Assessment worker did not caution S.R. that the person who assaulted her might not be in the photo array.  Rather, the Assessment worker asked her to identify which man she called “Stefan.” S.R. identified Griffin’s driver’s license photograph.  The police issued a warrant for Griffin.  Shortly thereafter, police stopped Griffin for a traffic violation. Griffin identified himself to the officer as Stefan Griffin.  The officer positively identified him as Dennis Harold Griffin and arrested him.

          S.R. testified, but had difficulty in remembering answers to many questions asked of her. She testified to facts that are inconsistent with her prior statements in interviews with police officers and medical personnel. She could not remember the location of Griffin’s apartment, its description, the length of her stay, or the number of times they had sexual intercourse.  S.R. did not recall meeting Griffin’s fiancée, nor did she remember the names of his friends.  S.R. provided few specific details, but made clear that she had sexual intercourse with Griffin.

Several witnesses testified that they observed S.R. with Griffin during the four weeks in question. One of them, Griffin’s fiancée, Betty Johnson, testified that she had met Griffin on a chat line in 2004 and that he had used the name Stefan.  She stated that Griffin lived with her in February and March of 2005, and that S.R. never stayed overnight with them.  However, she testified that she saw S.R. and Griffin together during that time, that S.R. had driven her to work on multiple occasions, and that she never saw S.R. out of Griffin’s presence.

Legal and Factual Sufficiency

          Griffin contends that the evidence is legally and factually insufficient to support a guilty verdict due to a lack of physical evidence and corroborating testimony.

A. Standard of Review

When evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005).  The standard is the same for both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact.  See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). 

When evaluating factual sufficiency, we consider all the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt.  Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  Under the first prong of Johnson, we cannot conclude that a verdict is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson, 204 S.W.3d at 417. Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id.  Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  We must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict.  See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 

B. Sexual Assault of a Child

          A person commits the offense of sexual assault of a child if the actor intentionally or knowingly causes the penetration of the sexual organ of a child by any means. Tex. Pen. Code Ann. § 22.021(a)(1)(B).  A “child” is defined as a person younger than seventeen years of age who is not the spouse of the defendant.  Tex. Pen. Code Ann. § 22.011(c)(1).  Sexual assault of a child is aggravated when the victim is younger than fourteen years of age.  Tex. Pen. Code Ann. § 22.021(a)(2)(B).  The State does not have to prove that the defendant knew the victim was younger than fourteen years of age.  See Vasquez v. State, 622 S.W.2d 864, 865 (Tex. Crim. App. 1981) (State does not have to prove Appellant knew victim was under seventeen years of age, because that would recognize defense of ignorance or mistake, contrary to legislative intent); see also Jackson v. State, 889 S.W.2d 615, 617 (Tex. App.—Houston [14th Dist.] 1994, writ ref’d) (“The State has long denied the defense of ignorance or mistake in relation to sexual offenses involving children.”).

C. Legal Sufficiency

          Griffin contends that the evidence is legally insufficient to support a guilty verdict because no medical evidence of a sexual assault exists, no physical evidence exists identifying him as the perpetrator, and “the record shows multiple problems with the credibility and reliability of [S.R.] as a witness.”

Griffin’s assertions notwithstanding, the uncorroborated testimony of a sexual assault victim under fourteen years of age is alone sufficient to warrant a conviction, without medical or physical evidence. See Tex. Code Crim. Proc. Ann. § 38.07 (Vernon Supp. 2006); see also Sandoval v. State, 52 S.W.3d 851, 854 n.1 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. 1978) (victim’s testimony alone was sufficient evidence of penetration and sufficient to identify defendant as assailant without medical evidence).

          In a legal sufficiency analysis, we view the evidence in a light most favorable to the State, and therefore do not evaluate the credibility of witnesses.  See Dewberry, 4 S.W.3d at 740.   Under this standard, the record shows that Griffin had sexual intercourse with S.R. multiple times and that S.R. identified Griffin in court as the assailant.  We therefore hold that the evidence is legally sufficient to support the verdict.

D. Factual Sufficiency

Griffin asserts that the evidence is factually insufficient for the same reasons that he claims the evidence is legally insufficient.  Griffin points to S.R.’s testimony that he claims was unreliable due to her lack of memory regarding certain facts, inconsistencies in her story, and her motive to lie.

The fact-finder alone determines the weight to place on contradictory testimonial evidence because that determination depends on the fact-finder’s evaluation of credibility and demeanor.  Cain v. State, 958 S.W.2d 404, 408–09 (Tex. Crim. App. 1997). As the determiner of the credibility of the witnesses, the fact-finder may choose to believe all, some, or none of the testimony presented.  Id. at 407 n.5.  The fact-finder is the exclusive judge of the witnesses’ credibility and the weight to be given to their testimony.  Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). As an appellate court, we must avoid re-weighing the evidence and substituting our judgment for that of the fact-finder. Johnson v. State, 967 S.W.2d 410, 412 (Tex. Crim. App. 1998); see also Wilson v. State, 863 S.W.2d 59, 65 (Tex. Crim. App. 1993); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).

The defense had the opportunity to expose any inconsistencies in S.R.’s testimony and the jury was free to evaluate S.R.’s testimony and believe some, all, or none of it. See Glockzin v. State, 220 S.W.3d 140, 147 (Tex. App.—Waco 2007, pet. ref’d) (“the jury was free to accept [victim’s] testimony over that of other witnesses, including [defendant], and disregard any ‘inconsistencies’”); see also Perez v. State, 113 S.W.3d 819, 838–39 (Tex. App.—Austin 2003, pet. ref'd).  Griffin contends that S.R. lied to prevent getting in trouble with her grandmother for running away.  However, a motive to lie does not overcome a victim’s testimony, if the jury chooses to believe that testimony. See Dalgleish v. State, 787 S.W.2d 531, 534 (Tex. App.—Beaumont 1990, writ ref’d) (rejecting insufficiency challenge, although defendant argued minor’s version was not worthy of belief.)  We must defer to the jury’s findings.  “A jury decision is not manifestly unjust merely because the jury resolved conflicting views of evidence in favor of the State.”  Herrero v. State, 124 S.W.3d 827, 835 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (quoting Cain, 958 S.W.2d at 410).  We note that some physical evidence supports S.R.  The nurse found semen in S.R.’s vaginal area, which corroborates S.R.’s account that sexual intercourse occurred. Furthermore, several witnesses saw Griffin and S.R. together.  The State’s evidence was not so obviously weak or contrary to the overwhelming weight of the evidence as to be factually insufficient. We hold that factually sufficient evidence supports the verdict.

Identification

Griffin further contends that he was unfairly prejudiced by an in-court identification, which is tainted by an impermissibly suggestive pre-trial photographic identification. In support, Griffin observes that the social worker, who conducted the photographic identification, did not admonish S.R. that her offender’s photograph may not be included.

A. Background

Houston Police Department Officer Smith compiled an array that contained Griffin’s driver’s license photo, along with photos of six other similar looking males.  Griffin does not contend that the array’s layout was suggestive.  Officer Smith gave the photo array to the social worker who interviewed S.R.  Officer Smith testified that although it is normal police procedure to tell a witness that the perpetrator may or may not be included in the photo array, the social worker did not so caution S.R.  Instead, the social worker showed S.R. the photo array and asked her to point out the man with whom she had sexual intercourse.  S.R. identified Griffin as the perpetrator.  Officer Smith showed the photo array to S.R. again after she finished her interview with the social worker, and asked her to be sure that Griffin was the man with whom she had intercourse. S.R. again identified Griffin and signed her name below his photograph. At no time did either the social worker or Officer Smith suggest the man who was their suspect.

          The trial court ruled that the photographic identification was not suggestive, but the State chose not to offer it into evidence. Officer Smith testified that S.R. correctly identified Griffin in the photo array. While on the stand, S.R. identified Griffin at trial.

B. Standard of Review

When challenging the admissibility of a pre-trial identification, a defendant has the burden to show, by clear and convincing evidence based on the totality of the circumstances, that the pre-trial identification procedure was impermissibly suggestive, and that it created a substantial likelihood of irreparable misidentification.  Barley v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995).  If a court finds that a pre-trial identification procedure was impermissibly suggestive, it must then consider the factors enumerated in Neil v. Biggers to determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.  409 U.S. 188, 199, 93 S. Ct. 375, 382 (1972). 

If the suggestiveness of the pre-trial identification procedure turns on the evaluation of the credibility and demeanor of the witnesses, it is a mixed question of law and fact, and we give almost total deference to the trial court’s findings.  Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997); Loserth v. State, 963 S.W.2d 770, 772 (Tex. Crim. App. 1998).

C. Pre-trial Photographic Identification

          “Suggestiveness may be created by the manner in which a pretrial identification procedure is conducted, for example, a police officer may point out the suspect or suggest that a suspect is included in a lineup or photographic array.” Barley, 906 S.W.2d at 33.  However, “a pre-trial identification procedure is not impermissibly suggestive merely because a witness may have believed one of the individuals was a suspect.”  Abney v. State, 1 S.W.3d 271, 275 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d); see also Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992).  The social worker’s failure to properly admonish S.R. alone does not itself render the pre-trial identification impermissibly suggestive because “a complaining witness normally assumes that a photographic array includes a suspect.”  Burkett v. State, 127 S.W.3d 83, 88 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also Johnson v. State, 901 S.W.2d 525, 534 (Tex. App.—El Paso 1995, pet. ref’d).  Griffin asserts, however, that this case can be distinguished because S.R. was vulnerable to suggestion, and felt that she was required to identify someone, as evidenced by her testimony: 

Q: Did they tell you that you had to pick somebody from that set of photographs?

A: Yes.

Q: Did they tell you that you had to pick somebody?

A: Well, no, they told me which one, like.

Q: Did they tell you that the person was guaranteed to be in that set of pictures?

A: No.

Q: Did they in any way, the detective ever point to the person that he wanted you to pick?

A: No.

* * *

Q: Did he ever indicate which person in that photo spread he wished for you to pick?

A: No.

Q: I’ll come back.  Did he ever tell you you had to pick somebody in that set of pictures?

A: Yes.

Q: He did tell you you had to pick somebody?

A: Well, no.

The Court: What did he tell you?

A: He told me which one of these persons is the, you know, dude that I was with.

Although S.R.’s testimony is contradictory, there is evidence in the record to suggest that S.R. was not compelled to make an identification; we defer to the trial court’s determination of the credibility of S.R.’s testimony.  Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Guzman, 955 S.W.2d at 89.  We thus hold that Griffin has not met his burden to show by clear and convincing evidence that the failure to admonish S.R. caused the identification to be impermissibly suggestive.  As a result, we do not reach the issue of whether the in-court identification was tainted under the Biggers factors. 

Conclusion

          We hold that the evidence is legally and factually sufficient to support the conviction.  We further hold that Griffin did not provide clear and convincing evidence that the pre-trial photo array was impermissibly suggestive.  We therefore affirm the judgment of the trial court.

                                                                             Jane Bland

                                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

Do not publish.  Tex. R. App. P. 47.2(b).