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The People v. Mark Douglas Strong

May 23, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK DOUGLAS STRONG, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F02260)

The opinion of the court was delivered by: Blease , Acting P. J.

P. v. Strong CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Mark Douglas Strong appeals his convictions for multiple sex offenses. He contends: (1) the trial court erred in denying his motion to exclude his confession under Miranda v. Arizona (1966) 384 U.S.436 [16 L.Ed.2d 694] (Miranda); (2) the trial court prevented him from presenting a defense by sustaining an objection to a cross-examination question; and, (3) there is not substantial evidence to support his conviction of lewd and lascivious conduct against one of the children. We disagree and affirm.

RELEVANT FACTUAL BACKGROUND

Between August 8, 2008, and March 9, 2009, defendant babysat his friend's, Heather and Richard, 5-year old children, F. and O. In mid-March 2009, while defendant was watching the children, Heather returned home early and found defendant in F.'s bedroom, kneeling down, leaning over her. Startled, defendant jumped up and said F. had been crying and he was consoling her. F. denied she had been crying. Heather told Richard she did not want defendant baby-sitting the children any more.

About a week later, Heather noticed F. "dry humping" a stuffed animal. When Heather asked F. about it, she answered she had a "naughty secret." She appeared scared, worried and hesitant to talk, but told Heather that defendant had touched her genitals, made her orally copulate him, and touch and lick his penis. She said this had been happening since school started and had happened 10 times. Heather then spoke to O. O. was also scared, but said defendant had exposed his penis and tried to make O. touch it and on another occasion defendant had touched O.'s genitals.

During his investigation, Sacramento City Police Officer Galliano interviewed F., O. and defendant. F. told Officer Galliano that defendant made both her and O. touch his penis. She also said she had licked defendant's penis more than once. O. reported that on defendant's demand, he had touched and licked defendant's penis and defendant had touched O.'s genitals through his pants.

About two weeks later, F. and O. were interviewed by a specialist in interviewing child sexual assault victims (SAFE). F. reported every time defendant came over, he tried to get her to suck and lick his penis. The last time he came over, they were watching television and he exposed himself to her and told her to open her mouth. When she refused, he tried to put it into her mouth. On another occasion, he came in to her bedroom, took out his penis and told her to open her mouth. She refused, and he tried to put it in her mouth. This time, his penis touched the outside of her mouth. F. also described the look and feel of defendant's penis. O. initially denied anything improper occurred. Later, he said that defendant had touched his penis once.

Officer Galliano recorded his interview of defendant. During the interview, defendant said the children had seen his penis because he had gone to the bathroom with the door open. He initially denied harming the children, touching them or asking them to touch or lick his penis. Later, he admitted his penis was exposed twice and F. touched it on her own. He admitted he let that happen twice, even though he knew it was wrong, and admitted he got an erection. He then admitted there had been three incidents involving F. He also admitted he had asked her if she had ever licked a penis, but denied asking her to lick his.

At trial, F. testified that defendant showed her his penis, asked her to touch it with her mouth and touched it to her lips, between one and five times. She denied ever touching his penis with her hand, or putting it in her mouth and denied he had ever asked her to lick it. She denied telling the police she had licked his penis or that she had ever felt his penis. O. denied any inappropriate contact between defendant and himself. He denied ever seeing defendant's penis, being asked to touch or lick it and denied being touched by defendant.

Dr. Urquiza testified as an expert in Child Sexual Abuse Accommodation Syndrome (CSAAS). He testified that the components of CSAAS are secrecy, helplessness, entrapment/accommodation, delayed/unconvincing reporting and retraction.

Defendant testified on his own behalf. Defendant testified he suffered from bipolar disorder and post traumatic stress disorder. He continued to deny anything sexual or inappropriate happened with O. As to F., he testified while he was reading to her, she touched his crotch. He removed her hand, but she put it back and squeezed his crotch. A few days later, while they were watching television she again put her hand on his crotch. Unbeknownst to him, at the time, his zipper was broken and his underwear was exposed. Defendant was concerned by her behavior, but did not say anything to F.'s parents, because he was worried about their reaction, particularly as he had seen Richard be violent. A few days later when he was reaching for something on a shelf, F. grabbed him around the waist and her face went into his crotch. He demanded to know what was going on and asked her if she had ever licked a penis, because that appeared to be what she was trying to do to him. He did not call Child Protective Services because he was concerned about Richard's temper. Defendant denied ever exposing his penis to the children, asking F. to suck his penis, putting his penis in or near F.'s mouth, and telling F. or O. to touch or lick his penis. Several character witnesses also testified on defendant's behalf.

PROCEDURAL BACKGROUND

Defendant was charged with two counts of oral copulation with F. (Pen. Code,*fn1 §§ 288.7, subd. (b), 289; counts 1 & 2), attempted oral copulation with F. (§§ 664, 288.7,subd. (b), 289; count 3), two counts of committing a lewd or lascivious act with F. (§ 288, subd. (a); counts 4 & 5), attempted commission of a lewd or lascivious act with F. (§§ 664, 288, subd. (a); count 6), oral copulation with O. (§ 288.7, subd. (b), 289; count 7) and two counts of committing a lewd or lascivious act with O. (§ 288, subd. (a); counts 8 & 9.) It was further alleged defendant had committed the offenses against multiple victims. (§ 667.61, subd. (e)(5).)

Defendant made a motion in limine to exclude his statements to Officer Galliano, based on Miranda. Following an Evidence Code section 402 hearing, the court denied the motion.

Following a jury trial, defendant was found guilty of counts 1-6 and count 9 and the multiple victim enhancement was found true. Defendant was found not guilty on count 8, and the jury was unable to reach a verdict on count 7. Accordingly, count 7 was dismissed.

Defendant was sentenced to a determinate term of seven years on count 3, two consecutive terms of 15 years-to-life for counts 1 and 9. On counts two four and five, defendant was sentenced to concurrent 15 years-to-life terms and a three year concurrent term on count 6. Various ...


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