Summary 2007 WY 127

Summary of Decision issued August 6, 2007

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Case Name: Sanderson v. State

Citation: 2007 WY 127

Docket Number: 06-14

Appeal from the District Court of Johnson County, the Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Michael J. Krampner, of Krampner, Fuller & Hambrick, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Assistant Attorney General. Argument by Mr. Delicath.

Issues: Whether the character evidence admitted was in violation of W.R.E. 404(a). Whether the indecent liberties with a minor statute, Wyo. Stat. Ann. § 14-3-105(a) was unconstitutional as applied to Sanderson’s conduct. Whether the prosecutor committed misconduct during closing and rebuttal arguments. Whether there was sufficient evidence of physical injury to sustain the felony child abuse convictions.

Facts/Discussion: Sanderson appealed his conviction for one count of immodest, immoral or indecent acts with a child and two counts of felony child abuse.
Character Evidence: The Court reviewed the record to determine whether Sanderson objected to the contested testimony in a way that put the improper character evidence issue before the court. The review showed that Sanderson made no argument and did not give the trial court notice that his objection to the counselor’s testimony was on the basis that it was inadmissible character evidence. The trial court had no opportunity to cure any error. Therefore the Court reviewed the claim for plain error. Sanderson’s argument that the counselor testified that Mrs. Sanderson was “sickly” was not supported by the record so the Court did not further analyze that point. The Court has previously recognized that expert testimony is admissible to explain victim behavior. The Court has held that Child Sexual Abuse Accommodation Syndrome is relevant and admissible to dispel myths the public might hold, as for example in the instant case, concerning recantation behavior. The record shows the recantation issue was prominent at trial. Under the circumstances, the counselor’s testimony describing AS and TS as compliant did not violate W.R.E. 404(a). The testimony related directly to the victims and not Sanderson. The Court then considered the statement regarding typical incestuous families. The context indicated to the Court that the testimony explained why the victims and their mother changed their stories and ultimately recanted. In light of the recantations at issue, the testimony that put those recantations squarely before the jury and the expert’s value to the jury in explaining the victims;’ behavior, Sanderson did not convince the Court that the testimony was impermissible. As there was a permissible purpose for the evidence, the Court could not say it was a violation of a clear and unequivocal rule of law.
As-Applied Constitutional Challenge: Sanderson challenged the indecent liberties statute as unconstitutionally vague. The Court has stated it is well settled that it is not facially unconstitutional. The Court focused on Sanderson’s specific conduct to answer the basic question of whether the statute provides sufficient notice that this specific conduct was illegal. Sanderson in his argument asserted only those facts favorable to his defense. The applicable standard of review requires the Court to consider the facts and inferences most favorable to the prosecution. Viewing the evidence in the light most favorable to the State, it is impossible not to conclude that the common sense of society would regard Sanderson’s conduct as prohibited under the statute. The Court concluded the statute was not unconstitutional as applied to Sanderson.
Prosecutorial Misconduct in Closing and Rebuttal Arguments: Sanderson argued that several statements made by the prosecutor during closing argument and rebuttal statements were reversible error. After the Court reviewed the record they agreed with the State that the statements were not improper in context. The Court referred to Metzger v. State and Moe v. State for examples of cases where the prosecutor made statements that superficially seemed improper. Given the defense theory of the case and that no personal guarantees were made about the prosecutor’s personal beliefs concerning the facts, the Court stated the argument did not constitute misconduct.
Sufficiency of “Physical Injury” Evidence: The Court reviews the evidence in the light most favorable to the State to determine whether a reasonable and rational individual would have found the essential elements of the crime were proven beyond a reasonable doubt. Because the statute’s structure is that of a list, the Court applied the principle of ejusdem generis or of the “same general kind or class.” The Court stated the testimony was sufficient for the jury to come to the conclusion that Sanderson exposed both daughters to enough starting fluid to cause “impairment of a bodily organ.” The State presented the jury with sufficient evidence to establish “physical injury.”

Holding: The Court held there was a permissible purpose for the contested evidence and stated that its admission was not a violation of a clear and unequivocal rule of law. The indecent liberties statute was not unconstitutional as applied to Sanderson. Given the defense theory of the case and that no personal guarantees were made about the prosecutor’s personal beliefs concerning the facts, the Court stated the arguments made during closing and rebuttal did not constitute misconduct. The State presented the jury with sufficient evidence to establish “physical injury.”

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3bjylf .