Summary 2007 WY 25

Summary of Decision issued February 13, 2007

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Case Name: Phillips v. State

Citation: 2007 WY 25

Docket Number: 05-240

Appeal from the District Court of Fremont County, the Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Mackenzie Williams, Student Intern. Argument by Mr. Williams.

Issue: Whether the prosecutor committed misconduct by referring to Appellant as a pedophile during rebuttal closing argument. Whether the district court erred in instructing the jury as to a statutory defense to a crime that was not charged.

Facts/Discussion: A jury found Appellant guilty of third-degree sexual assault and interference with a peace officer. Appellant seeks reversal of the judgment and sentence entered thereafter, on two grounds: one, that the prosecutor committed misconduct during closing argument; and two, that the jury was improperly instructed on the law.

Prosecutor Misconduct: The prosecutor’s statement at issue was made during the State’s rebuttal closing argument, and the statement was followed by an objection, so the Court applied the harmless error standard. They considered the challenged statement in the context of the entire closing argument and in the context of the entire trial. The bases for defense counsel’s objection were that there had been no evidence admitted that Appellant was a pedophile and that the prosecutor’s statement was “simply inflammatory.” The Court concluded Appellant’s objection to the statement should have been sustained and that calling Appellant a pedophile was inflammatory which is also forbidden. However, the Court could not say that the prosecutor’s use of the word “pedophile” produced material prejudice to Appellant. With all the testimony about whether Appellant knew the victim’s real age at the time of the assault, the Court stated it was doubtful the use of this one irrelevant word affected the outcome.

Improper Jury Instruction: The Court agreed with defense counsel’s objection to the instruction given to the jury because it was not directed toward the elements of the crime with which the Appellant was charged. The Court concluded that when all of the instructions were considered together, Appellant could not show that he was prejudiced. While the facts concerning consent were presented to the jury by both sides, the case did not turn on that question. The case turned upon the question of whether Appellant reasonably believed the victim was sixteen years old. A correct instruction that consent is no defense could have been and should have been given. Under the circumstances of the instant case, the Court concluded Appellant was not prejudiced by the mis-worded but fundamentally correct instruction that was given. The instruction was not so misleading that it likely confused the jury.

Holding: Neither the singular occurrence of prosecutorial misconduct in rebuttal closing argument, nor the instructional error prejudiced a material right of Appellant, and he was not denied his right to a fair trial.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/36yaso .