Technicalities and trauma

A deputy district attorney discusses the complexities involved in prosecuting a case involving incest

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Editor's note: What follows is the second part of a series on incest that will run throughout this week. It is the policy of the Craig Daily Press not to print the names of the accused or victims in the cases of sexual assault.

The day before the trial that would lead to the conviction of her father on charges of sexual assault and incest, a former Craig teen met with the prosecutor in a conference room at the Holiday Inn to discuss her testimony.

Mesa County Deputy District Attorney Bryan Garrett, who prosecuted the case, said the discussion with the girl, who would be the key witness in the case, was a matter of preparation and building trust.

"She has to be able to trust me and I have to be able to trust her before we can walk into a courtroom," Garrett said. "'Hi, my name's Bryan and in a minute you're gonna go on the stand and we're gonna talk about some very awful things that happened to you in your childhood,' doesn't work."

Garrett took over the case in April after District Attorney Bonnie Roesink was dismissed. According to Garrett, members of the District Attorney's office in Moffat County had personal information regarding the victims that the defense was considering as evidence. Because defense attorney Sheryl Uhlmann was considering calling some of them as witnesses, none of the lawyers in the 14th Judicial District staff were allowed to work the case.

That's when Garrett took over.

"I felt like I had a lot of work to do and a lot of hurdles to overcome in this case," Garrett said.

With the trial only weeks away, and three boxes of reports in front of him, Garrett promptly filed for a continuance. He found himself in the middle of an already complicated situation.

Shortly after Garrett took the case, two charges were dismissed because of a "discovery violation" by Roesink, Garrett said.

The District Attorney's office in Moffat County failed to turn over a file to the defense, Garrett said.

Because of the violation, two of the charges against the Craig man evaporated on a technicality.

Roesink said Tuesday morning she could not comment on the case.

Craig Police Detective Storm Fallon, who worked the case, said the dismissal of the charges was disappointing, especially since those charges had alleged incest against another of the man's daughters.

"It's a shame they got dismissed," Fallon said. "Those charges were as valid as what we took to trial."

Garrett picked up the reins and prepared a case with no physical evidence, a situation he said is "extremely common" in sexual assault cases.

"I've had very few sex assault cases where I actually had physical evidence," Garrett said.

Garret said cases involving incest can be even more difficult because sometimes the allegations don't come to light until years after the crime is committed.

Garrett presented a case based on the victim's testimony of the abuse. He sent a caseworker, a detective, foster parents, the victim's sister and a family friend to the stand to testify that the victim's trial testimony was consistent with what she had said previously.

This made for a rocky trial in which the jury was ushered in and out of the courtroom on multiple occasions while the lawyers debated points of law, especially "hearsay."

Hearsay was a major issue in the trial, Garrett said.

The legal definition of hearsay is "an out-of-court statement made for the truth of the matter asserted," Garrett said.

Garrett brought in numerous witnesses to testify to out-of-court statements made by the victim, ostensibly to prove the truth of the matter asserted -- that the victim was sexually abused by her father.

Normally, hearsay is inadmissible.

"One of the exceptions to the hearsay rule is what we call a prior consistent statement," Garrett said.

Prior consistent statements are admissible in that they are not asserted to prove the statement is true but to show that the witness' testimony is consistent.

The prosecution and the defense often argued about how to apply the "prior consistent statement" exception. The defense argued that the only allowable statements were those made prior to the time when a "motive to fabricate" occurred. This wouldn't have left the prosecution much to work with, considering the victim disclosed the abuse after her alleged motive to lie. This motive, the defense argued, was to secure her placement in custody with her grandparents in California.

Garrett presented a 1999 Colorado Supreme Court case he said "broadened" the hearsay rule.

"There are other reasons you can use (prior consistent statements)," Garrett said. "For example, to show a memory is still reliable."

Judge Richard Doucette often sided with the prosecution, overruling objections made by the defense.

"Every time we turned around she (Uhlmann) was objecting," Fallon said. "How many times did she make a motion for a mistrial?"

The defense called for a mistrial several times after witnesses accidentally spoke about matters the court had already ruled were inadmissible.

"There was a lot of things the court ordered we were not allowed to talk about at trial," Garrett said.

The prosecutor said it is difficult for witnesses to refrain from discussing items that were "part and parcel" to what they experienced.

Moffat County Social Services caseworker, Matt Harris "slipped" when he said he had investigated allegations the defendant was abusing his "daughters."

The use of "daughters" instead of "daughter" launched a lengthy debate between attorneys. After the judge ordered the jury to leave the room, Uhlmann argued about the inadmissibility of any references to the defendant's other daughters. She called for a mistrial. She said there was no way to "un-ring the bell" that had been rung, inviting the jurors to wonder about allegations regarding the other daughters.

Garrett argued the witness had made an honest mistake. Harris had been instructed to avoid those areas.

"I spent more time instructing my witnesses about what they couldn't say," Garrett said.

Doucette settled the matter, telling the witness to keep the restrictions in mind. The judge offered to instruct the jury to disregard the statement but said that would likely only cause further speculation by the jury.

Uhlmann agreed under protest.

Doucette said, "Apparently, I have a stronger faith in the jury system than anyone in this room."

Later, Fallon nearly misspoke on the witness stand as Uhlmann pressed her under cross-examination. The defense attorney interrogated Fallon about the times she re-interviewed the victim. Uhlmann was hinting that Fallon might have pushed the victim to add to her story because not enough was known to sustain a charge.

"I don't know if I can answer that," Fallon said during the cross examination.

Uhlmann reworded the question slightly.

"I don't know if I can answer that," Fallon repeated.

"There wasn't enough information from the first interview to sustain a charge," Uhlmann asserted again.

"Not from (the victim), no," Fallon said.

That was admissible but it wasn't the whole truth.

Garrett said he wished Fallon had just spoke her mind because Uhlmann asked for it.

"She opened that door," Garrett said.

But Fallon held strong.

"Should I have just blurted it out? Yeah, I should have, because she opened the door for me," Fallon said.

The truth was that Fallon's visit that day was to tie up some loose ends. Fallon also needed to talk to the victim about her younger sister's allegations -- allegations of incest and sexual assault.

Allegations that led to charges which had already been filed.

Allegations later dismissed on a technicality.

The Craig man was found guilty Friday of sexual assault on a child by a person in a position of trust and aggravated incest.

He is to be sentenced in October. He faces a mandatory eight years to life in a Department of Corrections prison.

Jeremy Browning can be reached at 824-7031 or jbrowning@craigdailypress.com.

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