Summary 2009 WY 103

Summary of Decision issued August 20, 2009

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

Case Name: Trumbull v. State

Citation: 2009 WY 103

Docket Number: S-08-0242

Appeal from the District Court of Big Horn County, Honorable Dan Spangler, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender and Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Ramsey, Assistant Attorney General.

Issues: Whether the State presented sufficient evidence for the trial court to conclude, beyond a reasonable doubt, that Appellant was guilty of two counts of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(ii). Whether the district court properly considered probation thereby rendering harmless any error in pronouncing Appellant’s sentence of 4-6 years in the Wyoming State Penitentiary

Holdings: Appellant was tried before the district court sitting without a jury. The pertinent standard of review in such instance is that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. Evidence favorable to the State will be accepted as true; evidence favorable to the defendant in conflict with the State's evidence will be disregarded; and the State's evidence will be afforded every favorable inference which may reasonably and fairly be drawn from it. The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.

The essence of Appellant’s claim is that, although the evidence established that he may have committed a touching as set out in the governing statute, there was no evidence that the touching was accomplished with the required mens rea, i.e., “…touching, with the intention of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor. Where a statute criminalizing sexual contact contains an element of sexual gratification, it is not enough to establish that the defendant merely touched the sexual or intimate parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse. However, an oral expression of intent is not required to establish a defendant’s intent. Intent in a sexual assault may be established through defendant’s conduct and circumstances of physical contact. Intent of sexual gratification may be inferred from touching the complainant on more than one occasion, and committing the act after no adults were remaining in the house. In the present action, the trial judge would have been justified in finding “gratification” based upon the two virtually identical touchings. Thus, the evidence was sufficient so that the district court could find that Appellant acted with the intention of sexual arousal, gratification, or abuse.

Although the focus of sentencing was the Presentence Report’s recommendation that Appellant be placed on probation, at no point in the proceedings before the district court, or in its sentencing order did the district court mention the word probation. W.R.Cr.P. 32(c)(2)(D) contains the mandate that if probation is not granted, the order state whether probation was considered by the court. The issue of probation at sentencing involves a fundamental right, and it is too important to be decided on the basis of treating the district court’s absolute silence as a tacit “consideration” of probation. In the face of the matter having been broached to the trial court, an implied, but not actually expressed rejection of probation simply does not suffice. The district court is required to meaningfully adhere to the requirement that probation be considered as an alternative sentence in accordance with the governing rule and the many precedents on that subject (excepting cases punishable by death, life without parole, or a life sentence). Failure to express that plainly in the written sentence will result in reversal of the sentence.

Appellant’s convictions are affirmed. The district court’s sentence is reversed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/mcvopy .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]