Summary 2009 WY 17

Summary of Decision issued February 12, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Montez v. State

Citation: 2009 WY 17

Docket Number: S-08-0089

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant Montez: Michael H. Reese, Contract Appellate Counsel, of Michael Henry Reese, PC, Cheyenne, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Appellant was convicted by a jury of one count of unlawful possession of marijuana and two counts of taking immodest, immoral, or indecent liberties with a minor.

Ineffective Assistance: The two counts of taking immodest, immoral or indecent liberties with a child were charged under Wyo. Stat. Ann. § 14-3-105(a) which was repealed effective July 1, 2007. The charged crimes occurred on March 10, 2007. Wyo. Stat. Ann. § 8-1-107 provides that the repeal of a statute does not affect pending actions. Appellant next questioned the constitutionality of the statute. However, he did not provide analysis of how the failure to define the word “knowingly” made the statute unconstitutionally vague as applied to his conduct. Furthermore, the Court has previously determined that no instruction on the meaning of “knowingly” need be given in cases brought under Wyo. Stat. Ann. § 14-3-105 because the term does not have a technical meaning under the law which is different from its ordinary meaning. Appellant next argued that trial counsel did not object to testimony from Mother that included “he’s a rapist,” which he characterized as hearsay. The Court determined it was an out of court statement introduced to show its effect upon the person hearing it. In addition, during direct testimony, Appellant stated that he had just completed ten years in prison for sexual assault. The jury was well aware of Appellant’s prior sexual assault conviction. Appellant then contended that trial counsel should have moved for mistrial because of the “he’s a rapist” statement. Having determined that the statement was not hearsay and not unfairly prejudicial, the Court concluded that a motion for mistrial would not have been granted. Counsel is not ineffective for failing to make a motion that would not have been granted. The Court did not discuss Appellant’s contention that trial counsel was ineffective for failing to move for a judgment of acquittal because he did not present analysis of the evidence or cogent argument. Appellant contended that counsel provided ineffective assistance by failing to object to the district court’s rejection of a proposed instruction defining the word “knowingly.” The Court analyzed this issue as a review of jury instructions and found no error. The elements instructions and the verdict form required the jury to find Appellant’s acts to have been done knowingly. The Court has long held that in the context of Wyo. Stat. Ann. § 14-3-105, the word has no technical meaning under the law. Appellant objected to direct testimony from two law enforcements officers. The Court noted that because the parties stipulated that the substance found was marijuana, the Appellant could not have been prejudiced by the officer’s statement. Appellant contended that trial counsel should have objected to an officer’s statement that he thought Appellant was not under the influence of alcohol. The Court has recognized that the question of whether someone is intoxicated is open to the observation of all persons, thus the officer’s opinion was a lay opinion and not subject to Daubert-type analysis.
Cumulative Error: Not having found ineffective assistance of counsel or any other error, the Court could not find cumulative error.

Conclusion: Appellant failed to prove either deficient performance by trial counsel or resultant prejudice and has therefore, failed to prove ineffective assistance of counsel.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bdsp43 .

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