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Rivera v. State10/30/1992
an opinion as to the credibility of the victims, nor did they state any opinion as to Rivera's guilt or innocence.
Expert testimony that discusses the behavior and characteristics of sexual assault victims and the range of responses to sexual assault encountered by experts is admissible. Scadden v. State, 732 P.2d 1036 (Wyo. 1987). Such testimony is relevant and helpful in explaining to the jury the typical behavior patterns of adolescent victims of sexual assault. Griego v. State, 761 P.2d 973 (Wyo. 1988). It assists the jury in understanding some of the aspects of the behavior of victims and, so long as there is no comment on the credibility or truthfulness of the victims, it does not invade the province of the jury. Zabel v. State, 765 P.2d 357 (Wyo. 1988). The order of the testimony of the witnesses at Rivera's trial, together with the testimony of the victims, was a skillful, strategic, and tactical decision of the prosecutor. Even though the testimony did corroborate the victims, and one effect of corroboration is to support or bolster the credibility of the witnesses, that does not amount to a violation of the rule against vouching for credibility.
Under our cases, an expert is permitted to state an opinion that someone is a victim of sexual assault but, of course, that expert cannot vouch for the credibility of the victim. It is well established in our jurisprudence that the jury is the arbiter of truthfulness or credibility, and the expert is not permitted to infringe upon that prerogative of the jury by those qualities in the victim. Lessard v. State, 719 P.2d 227 (Wyo. 1986). This case is not, in any way, analogous to Stephens v. State, 774 P.2d 60 (Wyo. 1989), in which Stephens was identified by an expert witness when asked if he had an opinion as to who was the perpetrator of the sexual assault.
The jury that tried Rivera was instructed that it was not bound to accept expert testimony as conclusive. The jury also was told it was up to them to decide what weight to give to this testimony as well as to the testimony of the victims. We discern no error in admission of testimony of these witnesses relating to the rape trauma syndrome or the behavior and reactions of the victims. There was no testimony vouching for the credibility of the victims, nor was there any testimony constituting an opinion as to Rivera's guilt.
Rivera also argues a claim of evidentiary error arising out of the improper admission into evidence of other uncharged bad acts contrary to Wyo.R.Evid. 404(b). He contends admission of this evidence violated the constitutionally guaranteed right that he must be presumed innocent. Rivera included in his motion in limine a claim that evidence of other bad acts should be excluded. That motion was denied based upon the affirmation by the prosecution that the testimony would demonstrate motive, intent, or plan. Wyo.R.Evid. 404(b) provides as follows:
Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident [emphasis added].
At trial, the prosecution called as witnesses two young women who lived in Utah. One of those witnesses testified that in June of 1989, after the assault upon MB but prior to the assault on BJL, she had passed out after consuming too much alcohol at a party. At that time, she was fifteen years old. She was awakened because Rivera was fondling her. She changed sleeping places with her boyfriend wh
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