Appeals court tosses sex assault conviction due to deficient lawyer performance

Graham

By Gretchen Schuldt

A defense lawyer who failed to seek a child protective services report indicating that a child made a false accusation of sexual abuse was ineffective in representing a man later accused of assaulting the same girl, the state Court of Appeals has ruled.

The lawyer, Gary Kryshak, was ineffective even though he testified that he was pursuing a different defense strategy, District IV Court of Appeals Judge Rachel A. Graham wrote for a three-judge appeals panel. 

"The CPS report contained information that was not only material but also could have significantly enhanced counsel’s chosen strategy," Graham wrote. She was joined in her opinion by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.

The panel reversed Shane A. Stroik's conviction and ordered a new trial.

Kryshak also erred when he did not object to a prosecutor's inference that Stroik's strong sex drive made it more likely that he assaulted the five-year-old girl, referred to in the decision only as "Amy." Kryshak, however, adequately addressed the insinuation in his closing argument, Graham said.

Amy's parents were separated and going through a contentious divorce at the time of the alleged assault by Stroik in 2016, according to the decision. Amy lived largely with her father and stayed with her mother and Stroik, who were in a relationship, every other weekend.

Amy told her father that Stroik had touched here "meme," meaning vagina, and her father reported it to the family social worker. 

The girl was interviewed by a forensic interviewer and repeated her allegation.

"At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald," Graham wrote. "However, it is undisputed that Stroik was not bald."

Amy also said that her paternal grandfather also had repeatedly assaulted her. The grandfather died earlier that year.

When police interviewed Stroik and Amy's mother, both said Amy had made an earlier allegation of sexual assault against a cousin, but nothing came of the child protective services (CPS) investigation.

Kryshak, Graham said, "was aware that there had been a CPS investigation into Amy’s statements about her cousin’s conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy’s prior allegation against her cousin."

During his opening statement, the prosecutor "made several comments about Stroik’s 'sex drive,' ” Graham said. For example, "the prosecutor asserted that Stroik had a 'very high sex drive' and therefore, according to the prosecutor, 'the presumption of course is that [he touched Amy] for a sexual purpose.' ” 

The prosecutor also questioned Amy's mother about how frequently she and Stroik had sex.

"Do you remember saying that it was more sex than you ever had before?" he asked at one point.

He also asked her about Stroik's interest in pornography, although none of it involved child pornography.

"Trial counsel did not object to any of this questioning," Graham said.

When Amy testified, she was unclear about whether Stroik assaulted her.

"When the prosecutor initially asked Amy if she knew 'why we’re here today,' she responded, 'No,' ” Graham wrote. "Amy went on to testify that she remembered 'going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik],' but that she did not remember anything happening between her and Stroik."

She offered other contradictory testimony as well, but was clear in testimony that her paternal grandfather assaulted her and she remembered those things.

A jury found Stroik guilty of first-degree sexual assault, and Portage County Circuit Judge Robert Shannon sentenced him to five years and eight months in prison and six years of  extended supervision, according to the state's online court records system.

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Stroik, with a new lawyer, Assistant State Public Defender Tristan S. Breedlove, filed a post-conviction motion seeking access to the child protective services report on Amy's earlier accusation against her nine-year-old cousin. Circuit Judge Thomas Flugaur granted the request, according to online court records.

Amy's mother reported that alleged assault in February 2016, five months before Stroik supposedly assaulted her.

Amy told her mother that the cousin touched her vagina and would not stop, Graham said.

"However, when interviewed by a CPS social worker, Amy 'denied that [her cousin] touched her (vagina) or any other part of her body,' ” Graham said. "According to the report, Amy told the social worker 'that she did tell her mother [that her cousin had touched her], but then indicated she didn’t know why she told her mother that.' Following its investigation, CPS determined that the allegation would “be entered as unsubstantiated” because Amy told the social worker that the statement she made that led to the investigation was inaccurate and because CPS was aware of no other evidence to support the original allegation."

During a postconviction hearing in Stroik's case, Kryshak testified he 'vaguely' remembered that Amy had accused her cousin of sexual assault.

The attorney also said that he “did not recall talk[ing] to anyone about whether the allegation ever occurred,” assumed that it had not, and believed that Shannon would not let him get that evidence in, Graham said. 

"Counsel testified that his overall strategy was 'focused on other issues,' specifically, the alleged sexual assaults by Amy’s paternal grandfather, which 'everybody took … for a fact,'” Graham wrote. "Counsel explained that his trial strategy was 'to blame' the grandfather for the sexual assaults that Amy attributed to Stroik." 

Kryshak's oversight was significant.

"We ... agree that evidence of Amy’s prior allegations against her cousin would have been admissible at trial, and that Stroik’s counsel would have been able to use the evidence to suggest that the abuse that Amy allegedly suffered from her grandfather had resulted in a false allegation against another male relative," Graham wrote.

The state argued on appeal that the evidence did not conclusively show that Amy made a false accusation, but Stroik, to have the evidence admitted, needed only to show that a reasonable person could find that Amy made a false allegation, Graham said. 

"Trial counsel wanted the jury to conclude the following," Graham said. "Amy had been sexually abused by her grandfather, who she loved. This caused her to become confused and to make a false allegation against Stroik. The information from the CPS report would have provided a basis for the jury to find that Amy had made a similar allegation, also false, about a different male relative after allegedly being assaulted by her grandfather."

Testimony about Stroik's sex drive should not have been admitted, the appeals panel said, but Kryshak dealt with it in his closing argument, Graham said.

"We agree with the argument that trial counsel eventually made in his closing argument—the fact that Stroik was allegedly interested in frequent sex with Laura was not relevant to or probative of whether he would be sexually gratified by a prohibited touching of a five-year-old child," Graham wrote.