State v. Kamrowski

2015 UT App 75
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
KENNETH RICHARD KAMROWSKI,
Defendant and Appellant.

Opinion
No. 20120595-CA
Filed April 2, 2015

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

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and STEPHEN L. ROTH
concurred.

CHRISTIANSEN, Judge:

¶1 Kenneth Richard Kamrowski appeals the trial court’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.
 State v. Kamrowski

BACKGROUND

¶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 returning 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.
Kamrowski 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 concluded 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.”

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 State v. Kamrowski

¶4 The jury found Kamrowski guilty on both counts.
Kamrowski filed a motion for a new trial, arguing that the trial
court erred in allowing Wife to testify that she believed the victim.
The trial court denied the motion, and Kamrowski appeals.

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). However,
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 most 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

20120595-CA 3 2015 UT App 75
 State v. Kamrowski

prejudiced by the error, and that the error should have been
obvious to the trial court. State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993). Specifically, Kamrowski argues that the State’s
question, “So you do believe [the victim] that this happened,
correct?,” together with Wife’s response, violated rule 608 of the
Utah Rules of Evidence, and that the error should have been
obvious to the trial court.

¶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.” Utah R. Evid. 608(a).
This rule “permits testimony concerning a witness’s general
character or reputation for truthfulness or untruthfulness but
prohibits any testimony as to a witness’s truthfulness on a
particular occasion.” State v. Rimmasch, 775 P.2d 388, 391 (Utah
1989), superseded on other grounds by Utah R. Evid. 702. However,
once a defendant offers witnesses as to his reputation for
truthfulness, he opens the door for the prosecution to impeach
those character witnesses. State v. Watts, 639 P.2d 158, 161 (Utah
1981). “In accordance with Rule 608, Utah courts have consistently
held that impeachment evidence is admissible if it goes to
credibility, even though it introduces evidence which would be
otherwise inadmissible.” State v. Reed, 820 P.2d 479, 481 (Utah Ct.
App. 1991). Thus, a party may generally offer “‘any testimony
which would tend to dispute, explain or minimize the effect of
evidence that has been given by one’s opponent.’” State v. Harper,
2006 UT App 178, ¶ 18, 136 P.3d 1261 (quoting State v. Sanders, 496
P.2d 270, 274 (Utah 1972)).

¶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

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that this testimony was evidence of the victim’s truthfulness on a
particular occasion and was inadmissible under rule 608. Id. ¶ 18.
However, this court concluded that the defendant had opened the
door to the admission of such evidence by eliciting testimony about
the victim’s honesty, holding that because the defendant raised the
issue of whether the witness believed the victim’s story, “the State
could ‘minimize the effect of [that] evidence.’” Id. ¶ 19 (alteration
in original) (quoting Sanders, 496 P.2d at 274).

¶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?”

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 State v. Kamrowski

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 such 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

1. We note that the admission of such impeachment testimony does
tend to carry a risk of unfair prejudice to a defendant. Thus, a trial
court may properly exclude such evidence if it determines that the
probative value of the impeachment evidence is substantially
outweighed by the danger of unfair prejudice. Utah R. Evid. 403.
However, Kamrowski has not raised a rule 403 challenge to this
testimony, and we therefore do not determine whether the trial
court plainly erred on that basis here.

20120595-CA 6 2015 UT App 75
 State v. Kamrowski

testimony were excluded. See State v. Dunn, 850 P.2d 1201, 1208
(Utah 1993). On direct examination, Wife testified that she believed
Kamrowski had never lied to her and that she considered him an
honest man. The State attempted to impeach Wife’s testimony with
her concession that she believed the victim despite Kamrowski’s
denial that the abuse had occurred. On redirect, Wife stated that
Kamrowski and the victim “are both honest people,” and that she
still believed Kamrowski was honest. Considered as a whole,
Wife’s equivocal testimony that, essentially, she believed both
Kamrowski and the victim is simply unlikely to have swayed the
jury in any meaningful way. We therefore conclude that it is not
reasonably likely that the jury’s verdict was affected by Wife’s
testimony.

¶13 Kamrowski has not shown that the trial court erred by
allowing Wife’s testimony or that 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

20120595-CA 7 2015 UT App 75
 State v. Kamrowski

judge of both the credibility of witnesses and the weight to be given
particular evidence.” State v. Workman, 852 P.2d 981, 984 (Utah
1993). However, while “the court must ordinarily accept the jury’s
determination of witness credibility, when the witness’s testimony
is inherently improbable, the court may choose to disregard it.”
Robbins, 2009 UT 23, ¶ 16.

¶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 pre-
trial 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.

20120595-CA 8 2015 UT App 75
 State v. Kamrowski

Lomu, 2014 UT App 41, ¶ 17, 321 P.3d 243. Rather, these
inconsistencies relate only to peripheral issues and therefore are
not material and do not render the victim’s testimony inherently
improbable. See Robbins, 2009 UT 23, ¶¶ 16, 18.

¶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
confirmed 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
instance 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 aggravated 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 Utah Code Ann. § 76-5-
404.1(2) (LexisNexis 2008). Kamrowski has identified no

2. The State also needed to prove that the victim was under the age
of fourteen at the time of the abuse and that Kamrowski “occupied
a position of special trust in relation to the victim.” Utah Code Ann.
§§ 76-5-404(1)(b), -404.1(4)(h) (LexisNexis 2008). The State
established these elements through other witnesses whose
testimony Kamrowski does not challenge on appeal.

20120595-CA 9 2015 UT App 75
 State v. Kamrowski

inconsistencies in the victim’s testimony that Kamrowski abused
her in her bedroom at night while she was staying with
Kamrowski, that he pulled down her clothing, and that he had
touched her vagina in the first incident and her buttocks in the
second. Accordingly, we conclude that Kamrowski has failed to
demonstrate material inconsistencies in the victim’s testimony that
would justify disregarding that testimony in considering the
sufficiency of the evidence supporting his conviction. Robbins, 2009
UT 23, ¶ 16. We therefore need not consider whether other
corroborating evidence exists that would nevertheless support the
jury’s verdict. Id. ¶ 18. The record evidence, including the victim’s
testimony, is sufficient to support Kamrowski’s conviction, and we
therefore affirm the jury’s verdict.

CONCLUSION

¶20 The trial court did not plainly err in allowing 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.

20120595-CA 10 2015 UT App 75