Wednesday, September 26, 2012

Summary 2012 WY 125

Summary of Decision September 26, 2012

Justice Voigt delivered the opinion for the Court. Reversed and remanded for a new trial.
Justice Burke concurred in part and dissented in part with whom Chief Justice Kite joins.


Docket Number: S-11-0194

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

Representing Appellant: Tara B. Nethercott and Gay V. Woodhouse, Woodhouse Roden, LLC, Cheyenne, Wyoming.  Argument by Ms. Nethercott.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General.  Argument by Mr. Pope.

Date of Decision: September 26, 2012

Facts: The appellant was convicted of one count of first-degree sexual abuse of a minor and eight counts of second-degree sexual abuse of a minor. After a jury trial, the appellant was convicted of all nine of the charges against him.  In this appeal, he raised eight issues where he claimed there was error in his trial.  Due to the number of issues in the appeal, additional facts are discussed in the full opinion when relevant.

Issues: Whether the district court’s decision that the victim was competent to testify was clearly erroneous. Whether the district court abused its discretion when it admitted computer forensic evidence and family photos into evidence under W.R.E. 404(b).  Whether the district court commented improperly upon the weight of the evidence.  Whether the district court erred when it determined that the appellant’s statement to Deputy Peech was given voluntarily.  Whether plain error occurred when Deputy Peech expressed his opinion that the appellant was lying during the interview. Whether plain error occurred when the district court instructed the jury that there need be no corroboration of the victim’s testimony in order to convict the appellant. Whether the State presented sufficient evidence to sustain each of the convictions. Whether the appellant received ineffective assistance of trial counsel.

Holdings: After a careful review of the record, the Court could not say that the appellant received a fair trial.  Therefore, the Court reversed the appellant’s convictions and remanded for a new trial.

BURKE, Justice, concurring in part and dissenting in part, with whom KITE, Chief Justice, joins.

Appellant identified eight appellate issues.  I disagree with the majority’s resolution of several of those issues.  Ultimately, however, I agree that all of Appellant’s convictions must be reversed because of error related to the admission of evidence concerning the pornographic websites. Although Appellant’s convictions for Counts Two through Nine should be reversed, I cannot agree with the majority’s conclusion that there was insufficient evidence to support those convictions. 

The issues and discussion are included in the full opinion.

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

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