Summary 2014 WY 21

Summary of Decision February 11, 2014

District Judge Lavery delivered the opinion for the Court. Affirmed.

Case Name: DELBERT R. MCDOWELL v. THE STATE OF WYOMING

Docket Number: S-13-0058

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Darrell D. Jackson, Director, and David E. Singleton, Student Intern, University of Wyoming, College of Law, Prosecution Assistance Program. Argument by Mr. Singleton.

Date of Decision: February 11, 2014

Facts: Delbert McDowell appeals his convictions on six counts of sexual abuse of a minor in the third degree under Wyo. Stat. Ann. § 6-2-316(a)(i) and one count of sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(i). He claims the district court erred in holding that testimony he intended to rebut the State’s W.R.E. 404(b) evidence was evidence of his character which opened the door to rebuttal by the State pursuant to W.R.E. 404(a)(1) and W.R.E. 405(a).

Issues: McDowell presents one issue for review by this Court: Did the trial court abuse its discretion when it ruled that defense counsel opened the door and allowed the State to introduce additional 404(b) evidence?

The State rephrases the same issue: Defendants can offer evidence about relevant character traits in their case-in-chief; but on cross-examination, a prosecutor may inquire into relevant specific instances of the defendant’s conduct to rebut the offered character testimony. Here, McDowell called a witness who opined about his good character when interacting with children. On cross-examination, the prosecutor asked the witness if she knew McDowell had two misdemeanor convictions for sexually assaulting children. Did the district court abuse its discretion when it allowed these questions?

Holdings/Conclusion: The district court did not abuse its discretion when it ruled that McDowell opened the door to character evidence under Rule 404(a)(1) and Rule 405(a), and the State’s presentation of rebuttal character evidence did not violate his constitutional right to present a defense. Affirmed.
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[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. 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]

Summary 2009 WY 129

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: Palmer v. State

Citation: 2009 WY 129

Docket Number: S-08-0252

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge.

Representing Appellant Palmer: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior 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 Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Palmer sought review of his four convictions for sexual abuse of a minor in the second degree. Palmer raised issues similar to those raised in May v. State and Crain v. State. The Court applied the same reasoning in the instant case and rejected both of Palmer’s challenges to the affected statutes.
Palmer also sought review of the trial court’s admission of uncharged misconduct evidence which had not been a part of the State’s original W.R.E. 404(b) notice. One of Palmer’s principle objections to the testimony was that it was developed for use at the hearing into a stalking/protection petition filed by the victim’s parents and was not generated by the criminal charges that Palmer faced.
Palmer was given notice that Maxfield would testify and what the gist of her testimony would be. The witness testified that Palmer and the mother of Palmer’s child recruited her to give Palmer an alibi. Palmer raised no pretrial objection below. The State did not perceive the testimony as coming under the umbrella of Rule 404(b) and the witness was not included in the State’s 404(b) notice to Palmer. The Rule is aimed at excluding character evidence when it is used for an improper purpose while at the same time providing for its admission within exceptions. One such exception is evidence which completes the whole story.

Conclusion: The Court concluded that the district court would have been correct in admitting the disputed evidence on the basis that W.R.E. 404(b) analysis does not apply to post-crime “guilty mind” evidence such as that offered by the State in the instant case.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ykvq46w .

[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 2007 WY 183

Summary of Decision issued November 15, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Lawrence v. State

Citation: 2007 WY 183

Docket Number: S-07-0065

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant): Tina N. Kerin, Appellate Counsel, Wyoming State Public Defender Program, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Michael M. Robinson, Senior Assistant Attorney General, Cheyenne, Wyoming.

Issue: Whether the trial court erred in admitting irrelevant and improper character evidence of prior drug use by defense witnesses.

Facts/Discussion: A jury convicted Appellant of attempting to deliver methamphetamine in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) and § 35-7-1042.
Standard of Review: Evidentiary rulings are within the sound discretion of the trial court and are not disturbed absent a clear abuse of that discretion. To the extent that no objection was interposed by defense counsel, the plain error standard applied. The burden was on Appellant.
Testimony relating to Jeff Mathson’s drug use - DCI Agent Justin Mathson’s testimony: The Court agreed with the State that the question was permissible for redirect in the circumstances. The prosecutor limited his inquiry to the single question and therefore did not cross the line between permissible inquiry and prosecutorial overkill. Once Appellant’s counsel opened the door to the line of questioning, he could not legitimately complain when the prosecutor went through it and asked the witness to clarify his cross-examination testimony.
Appellant alleged that DCI Agent Mathson’s utterance constituted improper character evidence but failed to quote the text of the rule of evidence or to provide legal analysis of either the rule or the Blumhagen holding and their application to the DCI Agent’s utterance.
Jeff Mathson’s testimony: Jeff Mathson testified in Appellant’s case-in-chief where defense counsel questioned him regarding his knowledge of another witness’s drug use. The Court agreed with the State’s argument that interest, relationship, bias and corrupt testimonial intent may always be shown either on cross-examination or by extrinsic testimony. The Court held that the trial judge’s relevancy ruling was correct.
Appellant also challenged the admissibility of Mathson’s prior drug use on an evidentiary ground not raised at trial. He invoked W.R.E. 608(b) without quoting the rule’s text, and Blumhagen, concluding that the prosecutor’s question had only the purpose to imply he was not credible in his testimony. The Court agreed with the State that there is a distinction between evidence that impeaches by proof of a witness’s character or disposition for veracity, or the lack thereof, and evidence which establishes a lack of credibility through a showing of such things as bias or undue influence. Witness bias is a proper subject for impeachment. The thrust of Appellant’s direct examination of Jeff Mathson was that he had no bias. The prosecutor’s question and Mathson’s answer revealed evidence from which the jury could reasonably infer that he was not an impartial witness. The Court held that the admission of prior drug use was not plain error.
Testimony relating to Rebecca Pauly’s drug use: Appellant’s argument on this issue was the same as used on the issue of Mr. Mathson’s testimony. For the same reasons, the Court held the trial judge did not err in admitting Ms. Pauly’s prior drug use testimony.

Holding: The cross-examination testimony was not extrinsic evidence and W.R.E. 608(b) did not apply. The Court held that evidence of a witness’s partiality is always relevant.

Affirmed.

J. Golden delivered the opinion.

Link: http://tinyurl.com/yrbofb .

Summary 2007 WY 127

Summary of Decision issued August 6, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Sanderson v. State

Citation: 2007 WY 127

Docket Number: 06-14

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

Representing Appellant (Defendant): Michael J. Krampner, of Krampner, Fuller & Hambrick, Casper, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General; David Delicath, Assistant Attorney General. Argument by Mr. Delicath.

Issues: Whether the character evidence admitted was in violation of W.R.E. 404(a). Whether the indecent liberties with a minor statute, Wyo. Stat. Ann. § 14-3-105(a) was unconstitutional as applied to Sanderson’s conduct. Whether the prosecutor committed misconduct during closing and rebuttal arguments. Whether there was sufficient evidence of physical injury to sustain the felony child abuse convictions.

Facts/Discussion: Sanderson appealed his conviction for one count of immodest, immoral or indecent acts with a child and two counts of felony child abuse.
Character Evidence: The Court reviewed the record to determine whether Sanderson objected to the contested testimony in a way that put the improper character evidence issue before the court. The review showed that Sanderson made no argument and did not give the trial court notice that his objection to the counselor’s testimony was on the basis that it was inadmissible character evidence. The trial court had no opportunity to cure any error. Therefore the Court reviewed the claim for plain error. Sanderson’s argument that the counselor testified that Mrs. Sanderson was “sickly” was not supported by the record so the Court did not further analyze that point. The Court has previously recognized that expert testimony is admissible to explain victim behavior. The Court has held that Child Sexual Abuse Accommodation Syndrome is relevant and admissible to dispel myths the public might hold, as for example in the instant case, concerning recantation behavior. The record shows the recantation issue was prominent at trial. Under the circumstances, the counselor’s testimony describing AS and TS as compliant did not violate W.R.E. 404(a). The testimony related directly to the victims and not Sanderson. The Court then considered the statement regarding typical incestuous families. The context indicated to the Court that the testimony explained why the victims and their mother changed their stories and ultimately recanted. In light of the recantations at issue, the testimony that put those recantations squarely before the jury and the expert’s value to the jury in explaining the victims;’ behavior, Sanderson did not convince the Court that the testimony was impermissible. As there was a permissible purpose for the evidence, the Court could not say it was a violation of a clear and unequivocal rule of law.
As-Applied Constitutional Challenge: Sanderson challenged the indecent liberties statute as unconstitutionally vague. The Court has stated it is well settled that it is not facially unconstitutional. The Court focused on Sanderson’s specific conduct to answer the basic question of whether the statute provides sufficient notice that this specific conduct was illegal. Sanderson in his argument asserted only those facts favorable to his defense. The applicable standard of review requires the Court to consider the facts and inferences most favorable to the prosecution. Viewing the evidence in the light most favorable to the State, it is impossible not to conclude that the common sense of society would regard Sanderson’s conduct as prohibited under the statute. The Court concluded the statute was not unconstitutional as applied to Sanderson.
Prosecutorial Misconduct in Closing and Rebuttal Arguments: Sanderson argued that several statements made by the prosecutor during closing argument and rebuttal statements were reversible error. After the Court reviewed the record they agreed with the State that the statements were not improper in context. The Court referred to Metzger v. State and Moe v. State for examples of cases where the prosecutor made statements that superficially seemed improper. Given the defense theory of the case and that no personal guarantees were made about the prosecutor’s personal beliefs concerning the facts, the Court stated the argument did not constitute misconduct.
Sufficiency of “Physical Injury” Evidence: The Court reviews the evidence in the light most favorable to the State to determine whether a reasonable and rational individual would have found the essential elements of the crime were proven beyond a reasonable doubt. Because the statute’s structure is that of a list, the Court applied the principle of ejusdem generis or of the “same general kind or class.” The Court stated the testimony was sufficient for the jury to come to the conclusion that Sanderson exposed both daughters to enough starting fluid to cause “impairment of a bodily organ.” The State presented the jury with sufficient evidence to establish “physical injury.”

Holding: The Court held there was a permissible purpose for the contested evidence and stated that its admission was not a violation of a clear and unequivocal rule of law. The indecent liberties statute was not unconstitutional as applied to Sanderson. Given the defense theory of the case and that no personal guarantees were made about the prosecutor’s personal beliefs concerning the facts, the Court stated the arguments made during closing and rebuttal did not constitute misconduct. The State presented the jury with sufficient evidence to establish “physical injury.”

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/3bjylf .