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STATE v. WILSON

July 13, 1990.

STATE OF KANSAS, Appellee,
v.
CRAIG S. WILSON, Appellant.



The opinion of the court was delivered by

The defendant, Craig S. Wilson, appeals his jury convictions of two counts of aggravated criminal sodomy pursuant to K.S.A. 21-3506.

The issues for review relate to: (1) the adequacy of the information and of the jury instructions pertaining to aggravated criminal sodomy; (2) the failure of the trial court to instruct under K.S.A. 60-455 on other crimes evidence; and (3) the admission of a social worker's testimony, which Wilson contends vouched for the alleged victim's credibility.

  We find no error and affirm.

  Facts

  In July 1984, Craig S. Wilson began dating Levoria B. Levoria's son, S.D., was one year old at the time. Wilson moved in with Levoria and they began a sometimes stormy three-year relationship; during this time, S.D. was in his mother's custody. Wilson testified that Levoria trained S.D. to blame Wilson for problems which developed in their home.

  In early October of 1987, Levoria was arrested for various traffic violations and was held in the Wyandotte County Jail for most of that month. S.D. continued to live with Wilson, either at Levoria's apartment or in the home of Wilson's sister.

  At the time of trial, S.D. was five years old. S.D. testified that Wilson put his penis into S.D.'s anus. With the use of anatomically correct dolls, the child showed how Wilson's penis was inserted into S.D.'s anus. S.D. stated this occurred "bunches" of times and that it hurt. S.D. testified that Wilson hit him in the head with his hand and with a belt.

  S.D.'s foster mother testified that S.D. would wake up crying because of bad dreams about Wilson. S.D. told her how Wilson would beat him with an extension cord and put his penis into S.D.'s anus, causing S.D.'s anus to bleed.

  Vanilla B., S.D.'s paternal grandmother, testified that while Levoria was still in jail she received a call from Levoria. Levoria requested that the grandmother take S.D. from Wilson since S.D. had told Levoria, during a telephone conversation, that Wilson had been "messing" with him. Vanilla B. stated that Levoria had also told her of Levoria's suspicion that Wilson had sexually

[247 Kan. 89]

      abused S.D. before Levoria went to jail. Vanilla B. stated that S.D. told her that Wilson had put grease on S.D.'s bottom and had messed with him (S.D.) with his (Wilson's) penis.

  Levoria testified that, after she was released from jail, S.D. told her that a little boy had been "messing with his bottom" and that she had confronted that child's mother regarding the incident. At trial, S.D. denied telling his mother that some little boys had messed with his bottom, only that they had messed with his bike.

  Levoria testified that the only thing S.D. had said about Wilson was that "he whooped him once." She denied that, during a telephone conversation with S.D. while she was in jail, S.D. had made allegations against Wilson of sexual abuse. She stated that, because she was angry with Wilson and wanted him to find out what it was like to be in jail, she made a statement to the police in November 1987 alleging that Wilson had sexually abused S.D. In that statement, Levoria indicated that, upon her release from jail, S.D. told her that Wilson had been forcing S.D. to engage in sexual conduct. She also claimed that she confronted Wilson regarding that allegation and that Wilson denied it, but glanced threateningly at S.D. while doing so.

  Earlier in November 1987, Levoria had taken S.D. to the emergency room at the University of Kansas Medical Center.

  Jan Reynolds, a sexual abuse social worker at the medical center, testified that she received information from S.D., Levoria, and Vanilla B. regarding various types of sexual conduct which Wilson was alleged to have engaged in with S.D. Reynolds stated that Levoria directed S.D. to tell her "what he [Wilson] stuck into him [S.D.]."

  S.D. was then examined by Barbara Sniffen, M.D. Dr. Sniffen was informed by Levoria that Wilson had placed his penis in S.D.'s bottom. Her examination revealed no signs of lacerations or other recent trauma.

  While at the medical center, both Levoria and S.D. were interviewed by Kansas City Police Officer Herman Smithey. Officer Smithey testified that while Levoria told him that Wilson had touched S.D.'s penis, forced S.D. to touch and kiss Wilson's penis, and placed his penis into S.D.'s bottom, S.D. only stated

[247 Kan. 90]

      to him that Wilson had touched his penis and stomach and had struck him in the face with his hand.

  Through the use of a colposcope, Dr. Joyce Adams, a pediatrician at the medical center, detected a one centimeter long scar in S.D.'s anal area. The colposcope is a microscope that magnifies an area fifteen times and allows careful examination of tissue. Dr. Adams estimated that the injury was two to three weeks old. She stated that the injury was consistent with anal penetration by a "penile size object," and consistent with the history given by S.D. On cross-examination, she admitted that the scar could have resulted from penetration by an inanimate object, but that it was unlikely that the scar was caused by a finger unless considerable force had been used.

  Near the end of November 1987, Levoria was admitted to the psychiatric unit at the medical center. Dr. Robin Barr testified that Levoria had been committed by the court and was psychotic during the entire time of her hospitalization.

  Dr. Elizabeth Pennick, a clinical psychologist at the medical center, testified that Levoria was not coherent and was nervous. During an interview with Dr. Pennick, Levoria alluded to the fact that her boyfriend had abused her son, that this had frightened her a great deal, and that she believed her boyfriend had control over her thinking.

  Dr. Pennick testified that despite Levoria's psychotic state she did show concern for her son and that a few weeks earlier Levoria would have been able to respond appropriately regarding a report of sexual abuse of her son. However, Dr. Pennick testified that because of this same disorganized mental state it is implausible that Levoria would have been mentally capable of planning a complicated plot of revenge.

  Levoria left the medical center without authorization in December 1987 and was subsequently picked up and taken to Osawatomie State Hospital.

  In April of 1988, about three months prior to trial, Levoria told Wilson's attorney that Wilson had not sexually abused S.D. Levoria stated that she had forced S.D. to say Wilson had molested him because she was mad at Wilson for leaving her in jail and for not posting bond. She signed an affidavit to that effect which the attorney had prepared.

[247 Kan. 91]

     

  At trial, Levoria testified that she still loved Wilson and wanted to be with him again. She admitted that after learning of S.D.'s anal scar, she began coaching S.D. to ...


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