Summary 2009 WY 54

Summary of Decision issued April 16, 2009

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

Case Name: Bowser v. State

Citation: 2009 WY 54

Docket Number: S-08-0061

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

Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham Macdonald Smith, Assistant Attorney General.

Facts: Appellant appeals his convictions on two counts of immoral or indecent acts with a minor in violation of Wyo. Stat. 14-3-105 (2005). He challenges the district court’s decision permitting the alleged victim, a minor child, to testify at trial by video deposition. He also contends that the seating arrangement at the video deposition violated his constitutional right to confront witnesses against him because he was prevented from seeing the witness while she testified.

Issue: Whether there was a violation of Appellant’s right to confront witnesses against him as a result of failure to follow the requirements of Wyo. Stat. Ann. § 7-11-408.

Holdings: As a general proposition, in criminal cases, witness testimony should be presented by oral testimony of the witness at trial. W.R.Cr.P. 26(a) provides: “In all trials, the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute, or by these rules, by the Wyoming Rules of Evidence, or by other rules adopted by the Supreme Court of Wyoming.” The particular statute at issue in this case is Wyo. Stat. Ann. § 7-11-408 which permits videotaped depositions in sexual assault cases when the victim is a child less than twelve (12) years of age. The statute also establishes a procedure to be followed.
It is undisputed that, in this case, the alleged victim was a child under the age of twelve. It is also undisputed that Appellant was charged with incest and sexual assault. Before ordering that deposition, however, the court “shall find” that the testimony is “relevant and material,” that the “best interests of the child” would be served by permitting the deposition, and that “[a] potential physical or psychological harm to the child is likely to occur . . . which would effectively render the child incapable to testify at the trial.” The court in this action made no specific findings and there was no evidence presented to the court by the State in support of its request to take the deposition.
It appears to be undisputed that the seating arrangement at the deposition resulted in Appellant having, at best, an obstructed view of the witness during her testimony. Pursuant to Wyo. Stat. 7-11-408(d)(i), denial of face-to-face confrontation is permitted only if two conditions are met. The first is that the defendant must be “alleged to have inflicted physical harm or is alleged to have threatened to inflict physical harm upon the child.” Here, it is questionable whether this requirement was met. There is no specific allegation of physical harm in the Information and the State did not allege that Appellant committed or threatened physical harm to the witness in support of its motion to permit the videotape deposition.
The second requirement of the statute that must be satisfied is that “physical or psychological harm to the child is likely to occur if there is a face-to-face confrontation of the child by defendant.” Wyo. Stat. 7-11-408(d)(i). The trial court must also find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis. Here, the district court did not make any finding that this requirement had been satisfied. More significantly, there was no evidence in the record that would support that finding. The State did not present any evidence on the issue. In the absence of such a finding, and evidence to support it, the Appellant was denied his right of face-to-face confrontation.
Use of the deposition in lieu of trial testimony is governed by Wyo. Stat. Ann. § 7-11-408(e). Before the deposition may be introduced at trial the judge must find, after a hearing, that “[a] potential physical or psychological harm to the child is likely to occur if the child is required to testify which would effectively render the child incapable to testify at the trial.” The court made no specific findings and there was no evidence presented by the State in support of its request to use the deposition in lieu of the witness’s testimony. According to the State: “the district court has implicitly adopted the States [sic] uncontroverted showing that a videotape deposition was both in the witness’s best interest as well as that she would be effectively rendered incapable of testifying.” Even if we were to agree that “implicit findings” were sufficient to satisfy the statutory mandate, there is no evidence in the record to support those findings. In the absence of any evidence satisfying the requirement of Wyo. Stat. Ann. § 7-11-408(e)(iv), the district court erred in permitting DM’s testimony to be presented by video deposition.
Having found that there was a failure to comply with Wyo. Stat. Ann. § 7-11-408, it must be determined whether the error was harmless. The State bears the burden of establishing that an error violating a defendant’s constitutional right to confront adverse witnesses is harmless beyond a reasonable doubt. In conducting the analysis, the witness’s testimony must be disregarded in its entirety. “An assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.” Any attempt to determine the impact of the testimony had it occurred in open court or had Appellant been afforded face-to-face confrontation would “involve pure speculation.” Absent this testimony, Appellant’s conviction cannot stand. At most, the remaining evidence establishes that Appellant masturbated in his home, and that he viewed pornography, but it does not establish that the child was present during those incidents. Neither activity is sufficient to sustain convictions for indecent acts with a minor if the minor is not present. It is impossible for the Court to conclude beyond a reasonable doubt that the violations of Appellant’s Sixth Amendment rights were harmless.

Conclusion: The State failed to satisfy the requirements of Wyo. Stat. § 7-11-408 because it failed to provide any evidentiary foundation for the restricted seating arrangement at the deposition or use of the video deposition at trial.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/cbljoc .

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