Summary 2010 WY 81

Summary of Decision issued June 23, 2010

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

Case Name: Masias v. State

Citation: 2010 WY 81

Docket Number: S-09-0131

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Masias: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel.

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

Facts/Discussion: Manuel Masias was charged with one count of first degree sexual assault and three counts of battery. The jury found him guilty of first degree sexual assault and one count of battery.

Sufficiency of the evidence: Masias contended that a jury could not find that he caused “submission of the victim or that he caused submission by both “physical force:” and “forcible confinement.” The instruction provided alternative bases for conviction and a general verdict form was used. After reviewing the testimony the Court determined there was sufficient evidence to support a finding that Masias caused submission of the victim through application of physical force and through application of forcible confinement. Additionally, the Court previously recognized in Lewis that in determining whether forcible confinement was established, a jury may consider the dynamics of the relationship of the assailant and his victim.
Jury question: The jury requested a dictionary to look up the definition of “submission” during deliberations. The Court conferred with counsel and all agreed that the jury should not be provided a dictionary. The Court reverses a district court’s decision only if it is so plainly erroneous that the judge should have noticed and corrected the mistake even though the parties failed to raise the issue. Wyoming case law indicates that providing the jury with a dictionary is not appropriate. The Court noted Rocky Mountain Trucking Co. v. Taylor and Zanetti Bus Lines, Inc. v. Logan.

Conclusion: There was sufficient evidence to support the jury’s conclusion that Masias found he caused submission of the victim through application of physical force and through application of forcible confinement. A jury may consider the dynamics of the relationship of the assailant and his victim. A district court is not required to define a statutory term unless the term has a technical or legal meaning different than its common meaning. Masias did not establish the likelihood of a more favorable verdict had the word “submission” been defined.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/2uenwon .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 64

Summary of Decision issued May 19, 2010

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

Case Name: Garza v. State

Citation: 2010 WY 64

Docket Number: S-08-0279

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Garza: Diane Lozano, Wyoming State Public Defender; Tina Kerin, Appellate Counsel; Kirk A. Morgan, Assistant Appellate Counsel.

Representing 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: Garza appealed from the Judgment and Sentence convicting him of two counts of second degree sexual assault and imposing a combined prison sentence of twenty-one to twenty-seven years.

Admission of tape recordings: At trial, Garza’s girlfriend KV was called by the State to testify regarding her recollection of the events on the last day that JM alleged Garza assaulted her. Immediately before KV testified, the prosecutor, defense counsel, and the district court discussed the use of certain tape recorded conversations between Garza and KV which occurred while Garza was incarcerated awaiting trial. The prosecutor indicated she would use the recordings for impeachment only if KV denied making certain statements. Garza asserted reversible error in the admission of the tape recordings. He argued that the recordings were improper impeachment material and otherwise irrelevant, inadmissible evidence. The Court agreed with the district court’s ruling that they were admissible as statements by a party opponent under W.R.E. 801(d)(2)(A). The Court also agreed that the recordings were relevant because they showed an indicia of guilt.
Motion for new trial: Garza filed a motion for a new trial based on newly discovered evidence premised on a letter purportedly written by JM in which she recanted her allegations of sexual abuse. The Court’s review of the district court’s denial of the motion revealed no abuse of discretion. Based on his familiarity with the case, the district judge was in the best position to determine the credibility of the recanting evidence. The district court afforded Garza an evidentiary hearing and an opportunity to establish the validity of the victim’s alleged recantation.
Sentencing: The Court found no merit in Garza’s contention that the tenets of Apprendi and Blakely were transgressed. Those cases involved the determination of facts that resulted in an enhancement of a criminal penalty beyond the prescribed statutory maximum. The eleven-to-fifteen-year and ten-to-twelve-year sentences were well within the prescribed statutory range.
Jury instruction: Garza condemned the district court’s decision to give, over his objection, Instruction No. 17 which stated “Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.” The Court agreed the instruction was improper but that it amounted to harmless error in the instant case. The testimony of the victim was corroborated by other evidence. In addition the district court expressly instructed the jury that it must reach a verdict on the charged crimes beyond a reasonable doubt.

Conclusion: Garza was not successful in his attempt to convince the Court that reversible error occurred with respect to any of the issues raised in the appeal.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2ewq5st .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 44

Summary of Decision issued April 16, 2010

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

Case Name: Jones v. State

Citation: 2010 WY 44

Docket Number: S-08-0281

Appeal from the District Court of Campbell County, the Honorable John R. Perry, Judge.

Representing Jones: Michael H. Reese of Michael Henry Reese, PC, Cheyenne, Wyoming.

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

Facts/Discussion: Following a jury trial, Jones was convicted of second degree sexual abuse of a child and sentenced to a term of imprisonment of five to fifteen years.

Motion for judgment of acquittal: Jones contended the district court should have considered the rule articulated in Eagan v. State and the corpus delicti rule in evaluating the adequacy of the State’s evidence. The Eagan rule applies only to testimony by the accused. In the instant case, Jones did not testify and was not the sole witness to the criminal event as the rule mandates. Jones was incorrect in his assumption that insufficient evidence existed beyond Jones’ statement given to the detective. Testimony was also provided by the victim and the victim’s mother.
Sufficiency of the evidence: Jones contended the evidence was insufficient to support the jury’s determination that he touched the victim’s intimate parts with the intention of sexual arousal, gratification or abuse. The Court reviewed the testimony of the victim, his mother and the detective. Although there was no direct testimony that Jones had touched RH’s genitals, the facts could have led the jury to reasonably infer that he had done so with the intent of becoming sexually aroused.
Ineffective assistance of counsel: Jones faulted counsel with failing to request a jury instruction incorporating the Eagan rule and failing to request a bill of particulars to clarify the facts underlying the criminal charge. As the Eagan rule was not applicable, an Eagan instruction would not have been appropriate. Jones failed to explain how a bill of particulars would have altered or significantly aided the defense strategy which was a general denial of any wrongdoing.

Conclusion: The Court agreed there was sufficient evidence for the case to be submitted to the jury. The Court concluded the evidence was sufficient to support the jury’s guilty verdict. The Court found Jones had not shown that defense counsel rendered constitutionally ineffective assistance.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/y5r5tok .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 27

Summary of Decision issued March 16, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Woyak v. State

Citation: 2010 WY 27

Docket Number: S-09-0055

Appeal from the District Court of Laramie County, Honorable Peter G. Arnold, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce E. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: March 16, 2010

Facts: Appellant was convicted of three counts of sexual assault in the second degree in violation of Wyo. Stat. Ann. § 6-2-303(a)(v) (2005) and two counts of sexual exploitation of children in violation of Wyo. Stat. Ann § 6-4-303(b)(ii) (2009).

Issues: Whether the district court violated Appellant's constitutional rights to due process and confrontation by excluding him from a witness competency hearing in violation of Wyo. Stat. Ann. § 7-11-202 and W.R.Cr.P. 43. Whether the district court abused its discretion by failing to conduct an independent competency hearing of a minor child and failing to make a finding supported by competent evidence that the child possessed a memory sufficient to retain an independent recollection of the occurrence as required by Wyoming law. Whether the trial court erred by submitting a verdict form that was unspecific as to the nature of the charges over the objection of Appellant.

Holdings: In the present action, the questioning of Victim 1 went well beyond simple "competency" questions . Rather, it included many questions about the substantive testimony to be given by Victim 1 and the circumstances of the crimes with which Appellant was charged. Given these attendant facts, Appellant's presence could well have been a significant aid to his attorney in formulating additional questions, as well as additional lines of questioning. Thus, it was an error of law for the district court to deny Appellant the right to be present at the competency/taint hearing under the circumstances of this case. For this reason his conviction is reversed because there is no viable basis for a determination that this error was harmless beyond a reasonable doubt.

Because the Court determined that reversible error occurred when the district court excluded Appellant from the competency hearing, which was deemed to be a critical stage of the trial proceedings, it did not substantively deal with the soundness of the district court's conclusion that Victim 1 was competent to testify. However it was noted that a district court is duty bound to conduct a thorough hearing once the child's competency is sufficiently called into question by either party and that it was an oversight by the parties and by the trial court in this action to have that hearing sandwiched into a 45-minute time span while the jury was at lunch. Such timing suggests two things: (1) that the parties were remiss in aiding the district court in recognizing the importance and significance of the issue and the necessity for conducting a meaningful hearing into the competency/taint matters; and (2) that the timing of the hearing did not permit adequate flexibility for a more comprehensive hearing, in light of the taint and competency flaws that became evident at (and before) the limited hearing that was conducted. The appropriate time for such a hearing would have been before jury selection, in a time slot that allowed adequate time for a complete exploration of the issues brought to the fore by the defense counsel, and in a working space that allowed for Victim 1's comfort and Appellant's right to be present . This conclusion is buttressed by Wyo. Stat. § 7-11-408 (2009). That statute allows for videotape depositions in child sexual assault/abuse cases, where circumstances warrant. The defendant is allowed to be present at such depositions and must be able to exercise the right of confrontation at those proceedings. The expectation is that additional proceedings would continue in this case upon remand, and one of the principal orders of business would be a comprehensive consideration of the question of Victim 1's competence to be a witness against Appellant, including whether or not his testimony was tainted by the many persons who talked with him about the case during the time following the incidents that brought Appellant's alleged conduct to light.

Counts IV and V of the verdict form do pose a bit of a problem which demands closer attention in any additional proceedings. In Counts IV and V, Appellant is charged with causing each of the victims to engage in explicit sexual conduct. The instructions defined "explicit sexual conduct" thus: "'Explicit sexual conduct' means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, contact between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person." Notwithstanding, the instruction at issue here is no mere "definitional instruction..." the evidence could well support a finding of guilt on any one of several of the acts included within the boundaries of the definition set out above. It is impossible to tell which jurors found which act or acts to have constituted the violation of the statute. In any further proceedings more care should be taken in crafting any such instructions.

The judgment and sentence of the district court is reversed because Appellant was denied his right to be present at the competency/taint hearing. This matter is remanded to the district court for further proceedings consistent with this opinion.

J. Hill delivered the opinion for the court.

J. Burke dissented. Appellant has not established that he had the right, constitutional or otherwise, to be present at the hearing. In addition, there is a lack of meaningful guidance for future cases. If the decision to exclude is dependent on the circumstances, this Court should provide clear guidance to trial courts for deciding when exclusion is permissible. If exclusion is never permissible, the opinion should state so unequivocally. The district judge in this case properly balanced the important factors. It was aware of the young age of the child, the serious nature of allegations against the defendant, and the risk that the child would be traumatized if confronted by the defendant. It had the opportunity to observe the child and the defendant prior to ruling on the State's request to exclude the defendant. Based upon the information provided, the district court concluded that the defendant should be excluded from the hearing. There is no error in that decision.

The district court's determination that the child victim was competent to testify should also be affirmed. A district court's determination of competency will not be disturbed unless clearly erroneous. In evaluating whether that decision was clearly erroneous, an appellate court may review the entire record, including the trial testimony. A review of the entire record, including the child's trial testimony, shows that the district court's competency determination was not clearly erroneous.

Link: http://tinyurl.com/yzzxr83.

Summary 2010 WY 1

Summary of Decision issued January 4, 2010

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

Case Name: Budig v. State

Citation: 2010 WY 1

Docket Number: S-09-0038

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge.

Representing Appellant Budig: Harry G. Bondi of Harry G. Bondi Law Offices, PC, Casper, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Graham M Smith, Assistant Attorney General.

Facts/Discussion: Budig challenged his conviction for third-degree sexual assault and sexual abuse of a minor. Budig asserts that his constitutionally protected right to confrontation was violated and that the prosecutor improperly vouched for the credibility of the victim witnesses.
Right to confrontation: The Court noted their summary of the limits a court may place on cross-examination in Miller v. State. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. A defendant’s right is not unfettered but subject to the trial court’s discretion to prevent questioning that was repetitive or of marginal relevance. The trial court held a motion hearing regarding the character evidence he intended to address during cross-examination. The Court stated that since none of the evidence was directly related to Budig, its relevance was marginal and its probative value limited. Past sexual conduct evidence falls into the class of evidence the rape shield law was specifically designed to exclude. Budig was given the opportunity to challenge the victims’ credibility, motives, and biases using other admissible evidence.
Improper vouch for credibility of victims: Budig asserted that the prosecutor improperly vouched for the credibility of the victim witnesses in statements he made during closing argument. After reviewing the record provided on appeal and particularly the trial transcripts, the Court found that the prosecutor’s comments relating the victims’ actions to the general behaviors described by the expert were not tantamount to vouching for the victims’ credibility. The statements informed the jury about the relevance of the testimony and suggested how that testimony might assist the jury in determining the facts at issue. Relating the general behaviors described by the expert witness to the specific behaviors exhibited by the victims was important to effective prosecution in the instant case because one defense strategy was to argue that the victims’ behaviors were inconsistent with the allegations made.

Conclusion: The Court held that Budig’s constitutionally protected right to confrontation was not abridged when the district court refused to allow him to question the victims about prior alleged sexual conduct or about specific instances showing the victims’ mean or manipulative character traits, which instances did not involve Budig. The prosecutor did not improperly vouch for the victims’ credibility during closing argument.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/y8gcn4q .

[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.]

Summary 2009 WY 128

Summary of Decision issued October 22, 2009

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

Case Name: Crain v. State; May v. State

Citation: 2009 WY 128

Docket Number: S-08-0215; S-09-0002

Appeal from the District Court of Campbell County and Teton County, the Honorable Dan R. Price II, Judge and the Honorable Nancy J. Guthrie, Judge.

Representing Appellants Crain and May: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and Eric Alden and Kirk A. Morgan, Senior Assistants Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Appellants challenge their convictions for sexual abuse of a minor under the comprehensive amendments to Wyoming’s sexual assault statutes. The statutes at issue in these cases are § 6-2-314 through § 6-2-317.
Statutory construction: Crain and May contend that the statutes under which they were convicted should be construed to mean that if the victim is one day or more past his/her 15th birthday, then the respective statutes do not criminalize the conduct at issue in these cases. The Court has a long-standing rule that it reads statutes relating to the same subject in pari materia so that inconsistencies in one statute may be resolved by looking at another statute on the same subject. When the Court looked at the statutes as a tightly structured scheme of statutory protections designed to effectuate a method of carefully crafted gradations within the subject of sexual assault crimes, it was evident that the Appellants’ argument was absurd.
Constitutionally – vague as applied: The appellants also contended that the statutes at issue were so uncertain in their meaning that persons of ordinary intelligence might be required to guess at their meaning and thus they were constitutionally vague as applied to the facts and circumstances of these two cases. The Court concluded that when the statute is read in pari materia with all the sexual assault statutes and giving the words their ordinary and usual meaning, there was no uncertainty as to the reach of the statutes.

Conclusion: The Court held that the statutes at issue were not ambiguous and did not require the Court to construe them beyond their plain language. In addition, the Court concluded the statutes were not unconstitutionally vague as applied to the two Appellants.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ylm4k8c .

[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.]

Summary 2009 WY 126

Summary of Decision issued October 16, 2009

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

Case Name: Tombroek v. State

Citation: 2009 WY 126

Docket Number: S-08-0015

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

Representing Appellant Tombroek: Tina N. Kerin, Appellate Counsel; Diane E. Courselle, Faculty Director and Whitney L. Michak and Janae E. Ruppert, Student Interns, Defender Aid Program.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Tombroek was tried and convicted by a jury of first-degree sexual assault of an adult woman with a mental disability. Tombroek appealed the conviction on the grounds that the district court abused its discretion by allowing witnesses to testify to prior statements made to them by the victim. He also argued the State failed to present sufficient evidence to prove an element of the crime charged.

Testimony about prior consistent statements: The district court admitted statements from the doctor, the sister, the mother and the investigating officer. Tombroek objected to the statements from the doctor admitted by the district court as a medical exception to hearsay under Rule W.R.E. 801(d)(1)(B). Four requirements must be met before a prior consistent statement will be properly admissible: the declarant testifies at trial; the declarant is subject to cross-examination; the prior statement is consistent with the declarant’s trial testimony and the prior statement is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. After applying the requirements to the facts in the instant case, the Court stated it was clear that all of the statements were properly admitted as prior consistent statements. The Court then considered whether the testimony could be used as substantive evidence or limited to rehabilitative evidence. Tombroek relied on Seward v. State and Wilde v. State. The focus of the Court’s concern in both cases was the vouching nature of the questioned testimony and its resultant prejudice. The Court noted the prosecutor carefully limited his use of the evidence in closing argument to rehabilitation of the victim, lessening any risk of prejudice. The Court found no abuse of discretion in the instant case where the appellant failed at trial to either identify when an alleged motive to fabricate arose or to request a limiting instruction.
Sufficient evidence: Tombroek claimed that the State failed to present evidence from which a jury could reasonably conclude beyond a reasonable doubt that the victim was incapable of appraising the nature of her conduct with regard to the sexual conduct that occurred as required by § 6-2-302(a)(iv). The Court has previously divided the subsection into two parts requiring that there was sufficient evidence of the victim’s mental deficiency or developmental disability to establish that the victim was incapable of appraising the nature of her conduct and that there was sufficient evidence that the defendant knew or reasonably should have known about the victim’s deficiency. Tombroek admitted knowledge of the victim’s situation, testimony was presented and the jury was able to observe the victim as well. It was reasonable to conclude the jury could have concluded as it did.

Conclusion: Appellant failed to demonstrate that the district court abused its discretion in admitting the prior consistent statements. Furthermore, the Court found there was sufficient evidence presented to the jury for it reasonably to conclude that the victim had a disability which made her incapable of appraising the nature of her conduct and that the appellant was aware of both the disability and its effect upon the victim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yz4kus3 .

[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.]