STATE OF UTAH, Plаintiff and Appellee, v. KENNETH RICHARD KAMROWSKI, Defendant and Appellant.
No. 20120595-CA
THE UTAH COURT OF APPEALS
Filed April 2, 2015
2015 UT App 75
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in which JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.
Third District Court, Salt Lake Department; The Honorable Gary D. Stott; No. 101909360; Joseph Jardine, Attorney for Appellant; Sean D. Reyes and Mark C. Field, Attorneys for Appellee
¶1 Kenneth Richard Kamrowski appeals the trial сourt’s denial of his motion for a new trial on two charges of aggravated sexual abuse of a child. Kamrowski argues that the trial court abused its discretion in denying his motion because the court plainly erred in admitting certain testimony. Kamrowski also argues that insufficient evidence was introduced at trial to support his conviction. We affirm.
¶2 Kamrowski was charged with sexually abusing a child while she was visiting his home. After returning home from one visit, the victim’s stepmother observed that the victim was “really quiet and offish” and had scratched Kamrowski’s face out of a photograph she kept. After her stepmother questioned her, the victim said that “one night [Kamrowski] came into my room, he pulled my underwear and my pajamas over and he was poking me with his fingers.” The victim’s father called the police, and a detective interviewed her about the allegations. The victim told the detective that Kamrowski had abused her on multiple occasions. The detective later interviewed Kamrowski, who denied ever touching the victim sexually.
¶3 The State charged Kamrowski, and he was tried on two counts of aggravated sexual abuse of a child. At trial, the victim’s stepmother testified to the circumstances of the victim’s visit to Kamrowski’s home, the victim’s behavior after rеturning from that visit, and the victim’s statements about the abuse. The victim then testified regarding the two charged instances of abuse. The State also called a number of the victim’s family members to testify about her behavior around the time of the abuse. Kamrowski testified in his own defense, denying that the abuse had happened. Kаmrowski also called six witnesses to testify to his character for truthfulness, including his wife (Wife). Wife testified that she believed Kamrowski had never lied to her and that she considered him an honest man. She also testified that the victim had never talked to her about the abuse. On cross-examination, the State challenged Wife’s testimony that she believed Kamrowski was honest and that the victim had never talked to her about the abuse. The State elicited testimony from Wife that she had received a letter from the victim regarding the abuse and that Wife had written back to her, stating, “Your letter said I didn’t believe you, but [I do] believe you.” The State cоncluded its cross-examination by asking Wife, “So you do believe [the victim] that this happened, correct?” Wife responded, “Well, I do. I’m here for [her], yes.”
ISSUES AND STANDARDS OF REVIEW
¶5 Kamrowski argues that the trial court erred in denying his motion for a new trial. “When reviewing a trial court’s denial of a motion for a new trial, we will not reverse absent a clear abuse of discretion by the trial court.” State v. Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551 (citation and internal quotation marks omitted). Howevеr, we review for correctness any legal determinations made by the trial court in deciding the motion. See State v. Allen, 2005 UT 11, ¶ 50, 108 P.3d 730.
¶6 Kamrowski also argues that the State failed to adduce sufficient evidence at trial for a jury to find him guilty. We will reverse a jury verdict only when the evidence and all reasonable inferences, viewed in a light mоst favorable to the verdict, are “sufficiently inconclusive or inherently improbable” that a reasonable jury must have entertained a reasonable doubt as to the defendant’s guilt. State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).
ANALYSIS
I. The Trial Court Did Not Plainly Err by Allowing Wife’s Testimony.
¶7 Kamrowski argues that the trial court erred by denying his motion for a new trial, because the trial court “committed plain error in permitting [Wife] to testify that she believed [the victim’s] allegations of abuse and disbelieved [Kamrowski’s] protestations of innocence.” To obtain reversal under a plain error theory, a defendant must generally show that an error occurred, that he was
¶8 A witness’s credibility may generally be “attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character.”
¶9 In State v. Harper, a defendant was convicted of two counts of aggravated sexual abuse of a child. 2006 UT App 178, ¶ 1, 136 P.3d 1261. A witness for the State testified on cross-examination that he did not initially believe the victim’s allegations of sexual abuse, because she had lied to him in the past. Id. ¶ 17. On redirect, the State asked the witness, “Do you believe [the victim] now?” and the witness replied, “Yes.” Id. On appeal, the defendant argued
¶10 Here, the State appears to have elicited Wife’s testimony specifically to dispute or minimize the effect of Wife’s direct testimony that she believed Kamrowski was an honest man, that he had never lied to her, and that the victim had never talked to her about the abuse. Indeed, the entirety of the State’s cross-examination of Wife was focused on rebutting her direct testimony:
Q: You just testified that you believe the defendant here is an honest man, correct?
A: Yes, sir.
Q: And let me talk to you about the allegations. You just testified that [the victim] never talked to you about these allegations, correct?
A: Right.
Q: Isn’t it true she wrote you a letter to tell you about the allegations?
A: Yes, that’s right, yeah.
. . . .
Q: And you wrote her a letter back in response, correct?
A: Right.
Q: And in that letter you told her, and I quote, “Hi my sissy girl. I miss you.” That’s what you wrote to her, correct?
. . . .
A: Yes.
Q: And you also told her, “Your letter said I didn’t believe you, but [I do] believe you?”
A: Right.
Q: Correct?
A: Right.
Q: So you do believe [the victim] that this happened, correct?
A: Well, I do. I’m here for [her], yes.
After the State concluded this cross-examination, Kamrowski attempted to rehabilitate Wife’s credibility, asking, “[I]n light of the statement [the victim] has made do you still believe your husband to be an honest man?” to which Wife responded, “Well, they are both honest people. I believe my husband is honest yes.”
¶11 Considered in context with Wife’s other testimony, it is apparent that the testimony elicited by the State on cross-examination was designed to impeach Wife’s credibility or minimize the effect of her testimony regarding Kamrowski’s honesty. By eliciting testimony from Wife as to his truthfulness, Kamrowski opened the door to evidence tending to dispute that testimony, even if such evidence may have been otherwise inadmissible under rule 608.1 See Reed, 820 P.2d at 481.
¶12 Moreover, we are not convinced that Wife’s testimony had any significant effect on the jury’s verdict suсh that Kamrowski would have been prejudiced by any error in its admission. To establish prejudice, Kamrowski must show that there is a “reasonable likelihood of a more favorable outcome” if Wife’s
¶13 Kamrowski has not shown that the trial court erred by allowing Wife’s testimony or thаt he was prejudiced by that testimony. We therefore conclude that the trial court did not abuse its discretion by denying Kamrowski’s motion for a new trial on the basis of plain error.
II. Sufficient Evidence Supports Kamrowski’s Conviction.
¶14 Kamrowski also argues that the evidence presented by the State at trial was insufficient to support the verdict against him. He asserts that the victim’s testimony was “internally inconsistent . . . in many ways and inherently implausible.” Kamrowski relies on this court’s decision in State v. Hoyt, 806 P.2d 204 (Utah Ct. App. 1991), to argue that the jury therefore could not have relied on the victim’s testimony as a basis for guilt without “‘[a]bundant other testimony . . . corroborat[ing] the child’s testimony.’” (Alterations in original.) He claims that such corroborating testimony is lacking and his conviction should therefore be reversed.
¶15 A victim’s testimony establishing the elements of a crime, even if uncorroborated, is generally sufficient to sustain a conviction. See State v. Robbins, 2009 UT 23, ¶ 14, 210 P.3d 288. In evaluating the victim’s testimony, “the jury serves as the exclusive
¶16 Inherently improbable testimony includes those “circumstances where a witness’s testimony is incredibly dubious and, as such, apparently false.” Id. ¶ 18. We will evaluate a witness’s testimony under this “apparently false” theory of inherent improbability “only in those instances where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt.” Id. ¶ 19. And we will overturn the jury’s verdict on this basis only if we are convinced that the inconsistencies render the witness’s credibility “so weak that no reasonable jury could find the defendant guilty beyond a reasonable doubt.” Id. ¶ 18. Thus, inconsistencies with respect to peripheral issues or details of the abuse will generally not implicate the inherent-improbability doctrine but are matters for the jury to resolve in assessing the witness’s credibility. See State v. Gentry, 747 P.2d 1032, 1039 (Utah 1987); State v. Baker, 963 P.2d 801, 809 (Utah Ct. App. 1998).
¶17 Kamrowski asserts that the victim’s testimony at trial was inconsistent with her preliminary-hearing testimony and other pretrial statements with respect to whether she ever fell asleep with the television on, whether Kamrowski woke her to turn off the television or turned it off himself, whether he entered the bedroom with a flashlight or not, whether her eyes were open or closed during the abuse, and how many times Kamrowski abused her. However, we are not persuaded that these are material inconsistencies that so undermine the victim’s credibility that we could properly disregard her testimony. The presence of a flashlight, the state of the television, and the specifics of where the victim was looking during the abuse have “little bearing on the jury’s ultimate determination” of Kamrowski’s guilt. See State v. Lomu, 2014 UT App 41, ¶ 17, 321 P.3d 243.
¶18 While an inconsistency in the victim’s testimony as to the number of times she had been abused would be a closer call, we are not convinced that her trial testimony is actually materially inconsistent with her pre-trial statements. At the preliminary hearing, the victim testified that while she believed she had been abused “probably two or three times,” she could remember details of only two instances of abuse. At trial, defense counsel asked the victim, “You thought it happened three times, but you only remember two times?” to which she responded, “Yeah” and then сonfirmed that she had told her stepmother about only one instance of abuse. Thus, by our reading, the victim’s trial testimony was in fact consistent with her earlier statements. Neither her inability to remember details of an alleged third instance of abuse or the fact that she initially told her stepmother about a single instanсe of abuse but was more forthcoming to investigators or prosecutors renders her statements “inherently contradictory” or otherwise apparently false. Id. ¶ 18.
¶19 Indeed, with respect to the critical issues to which the victim testified, Kamrowski has demonstrated no inconsistency. Kamrowski was charged with aggravаted sexual abuse of a child. The relevant elements of the offenses are that Kamrowski touched the victim’s “anus, buttocks, or genitalia” with “the intent to arouse or gratify the sexual desire of any person.”2
CONCLUSION
¶20 The trial court did not plainly err in аllowing Wife to testify that she believed the victim, because Kamrowski opened the door to such impeachment by eliciting Wife’s testimony as to Kamrowski’s honesty. Thus, the trial court properly denied Kamrowski’s motion for a new trial on this basis. Kamrowski has failed to demonstrate that the victim’s testimony was inherently improbable, and we therefore conclude that the jury’s verdict is supported by sufficient evidence.
¶21 Affirmed.