Sanderson v. State

• Decision Date: 06 August 2007
• Docket Number: No. 06-14.,06-14.
• Citation: 2007 WY 127,165 P.3d 83
• Parties: Shane SANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

165 P.3d 83

2007 WY 127

Shane SANDERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-14.

Supreme Court of Wyoming.

August 6, 2007.

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

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

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant, Shane Sanderson, appeals his conviction for one count of immodest, immoral, or indecent acts with a child ("indecent liberties"), and two counts of felony child abuse. He argues that the trial court improperly admitted character evidence against him, that the indecent liberties statute is unconstitutional as applied to his conduct, that prosecutorial misconduct deprived him of a fair trial, and that there was insufficient evidence to sustain his child abuse convictions. We affirm.

ISSUES

[¶ 2] We rephrase the issues as follows:

1. Was improper character evidence admitted in violation of W.R.E. 404(a)?

2. Is the indecent liberties with a minor statute, Wyo. Stat. Ann. § 14-3-105(a) unconstitutional as applied to Mr. Sanderson's conduct?

3. Did the prosecutor commit misconduct during closing and rebuttal arguments?

4. Was there sufficient evidence of "physical injury" to sustain the felony child abuse convictions?

FACTS

[¶ 3] On February 13, 2005, while the rest of the family was upstairs, Mr. Sanderson took one of his children, AS, downstairs and gave her a tube of K-Y Jelly. AS was fourteen at the time. He said that it would help relieve her constipation, and that he would tell her how to use it later. He did not mention this to anyone else in the family including Mrs. Sanderson. Two days later, AS told her mother that Mr. Sanderson had rubbed her anal area with K-Y Jelly for about ten minutes in the bathroom the previous night. AS also told her mother that, after the incident in the bathroom, Mr. Sanderson had taken her into her bedroom and massaged her back while "inching down her pants and underwear." Mrs. Sanderson became angry that Mr. Sanderson had given K-Y Jelly to AS without Mrs. Sanderson's knowledge. She was also angry about the incidents in the bathroom and bedroom. She said that AS was too old for Mr. Sanderson to be engaging in that kind of behavior with her.

[¶ 4] After AS disclosed these events, Mrs. Sanderson took her children to her mother's house. Mrs. Sanderson's mother called the county prosecutor and reported that AS may have been sexually abused. The prosecutor then asked the Johnson County Sheriff's Department and the Department of Family Services (DFS) to investigate.

[¶ 5] Sheriff's deputies and the DFS caseworker interviewed Mrs. Sanderson, who told them what AS had said about the incidents in the bathroom and bedroom. The investigators also interviewed the children. AS described the incidents of the previous evening. She also related that Mr. Sanderson had once put automotive starting fluid on a rag and forced her to inhale the fumes to the point that she became ill, and that he later did the same thing to her sister, TS. TS, who was twelve years old at the time, confirmed that her father had exposed her to starting fluid, and said that he put the fluid-saturated cloth in a plastic bag before forcing her to inhale the fumes. TS reported that she became ill, vomited, and missed school that day. AS and TS also told the officers about a number of Mr. Sanderson's other behaviors, such as inspecting AS's genitalia, purportedly to look for ticks, but in such a way as to make AS uncomfortable. They also said that he routinely walked into the bathroom when AS was occupying it, became angry if she locked the bathroom door, and often demanded that AS remove her shirt and show him the bra she was wearing.

[¶ 6] Three and a half weeks after the initial report, AS and TS were separately interviewed and evaluated by a counselor at the DFS caseworker's request. In addition to the free-form interviews, the counselor administered several standardized psychological tests. Those tests indicated that both AS and TS tended to conform to others' expectations and were submissive. The tests also revealed that the two sisters both feared rejection and were insecure.

[¶ 7] Approximately two months after the initial report, officers arrested Mr. Sanderson and charged him with two counts of felony indecent liberties with a child in violation of Wyo. Stat. Ann. § 14-3-105(a)¹ and two counts of felony child abuse in violation of Wyo. Stat. Ann. § 6-2-503(b).² The indecent liberties charges were based on the bathroom incident and the bedroom incident. The child abuse charges were based on the starting fluid incidents.

[¶ 8] At trial, the prosecutor first called TS and AS to the stand and, after two other witnesses, Mrs. Sanderson. All three testified that they had lied, overreacted, or exaggerated in their earlier statements to investigators. In an effort to mitigate possible damage to the State's case because of the recantations, the prosecutor asked other witnesses, including Mrs. Sanderson's mother, two sheriff's officers, the DFS caseworker, and the counselor who had evaluated AS and TS, to describe their recollections of the prior statements of AS, TS, and Mrs. Sanderson. The counselor also testified about dynamics of incestuous families and, more specifically, about recanting behavior in child victims of sexual abuse. The State also presented audio recordings of AS's and TS's interviews with the deputies and the DFS caseworker. Those interviews took place during the first few days after the initial report.

[¶ 9] Mr. Sanderson did not dispute that the bathroom incident with AS had occurred. His defense theory was that his actions were for the health-related purpose of helping to relieve her constipation. He claimed that AS and TS asked him if they could smell the starting fluid, and he contended that any ill effects were short-lived and harmless, and so did not meet the statutory definition of "physical injury" stated in Wyo. Stat. Ann. § 14-3-202(a)(ii)(B).

[¶ 10] The jury convicted Mr. Sanderson of one count of indecent liberties, corresponding to the bathroom incident, and both counts of felony child abuse. It acquitted him on the second indecent liberties count, corresponding to the bedroom incident. The trial court sentenced Mr. Sanderson to 13-18 months imprisonment for each child abuse conviction, and 6-8 years imprisonment for the indecent liberties conviction. The court ordered that all prison terms be served concurrently, and suspended all imprisonment in favor of 4-6 years of intensive supervised probation. Mr. Sanderson now appeals his convictions.

DISCUSSION

Character Evidence

[¶ 11] Mr. Sanderson asserts that the counselor's descriptions of the victims as "compliant," their mother as "sickly," and Mr. Sanderson as "domineering," as well as the counselor's testimony about typical patterns of incestuous families, constituted impermissible character evidence. W.R.E. 404(a) provides that "[e]vidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion." Mr. Sanderson argues that the counselor's testimony should have been excluded under W.R.E. 404(a) because it was "irrelevant for any purpose other than showing that [he] was . . . the kind of dad who would molest his daughter."

[¶ 12] The parties dispute the proper standard of review. Mr. Sanderson contends that he made a proper objection to the relevant testimony. The State argues that while Mr. Sanderson made some objections, he did not object to the specific testimony he now contends was error, and further, that the objections he did make were not on the same basis that he presents on appeal. Under Mr. Sanderson's view, we review admission of evidence for abuse of discretion. Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo.2006). Under the State's argument, we review for plain error. Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.2007).

[¶ 13] Where "the objection was not originally made on the ground now urged, the argument is without force. . . . The objector should lay his finger on the particular point intended to be raised so that the trial court will have notice and an opportunity to cure the alleged error." Valerio v. State, Wyo., 429 P.2d 317, 319 (1967) (quoting Murdock v. State, Wyo., 351 P.2d 674, 679 (1960)). "[I]t is incumbent upon the complaining party to point out with definiteness and particularity the error of which he complains, so that the trial court may pass upon the exact question" to be later reviewed. Valerio, 429 P.2d at 319. As a result, we must determine whether Mr. Sanderson objected to the contested testimony in a way that put the improper character evidence issue before the trial court.

[¶ 14] The defense made many objections to the counselor's expected trial testimony throughout the pretrial process, but none were based on W.R.E. 404(a). The primary argument, among others also not asserted on appeal, was that "what really we are ending up into is a Daubert motion." The reference is apparently to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), a seminal case involving the proper scientific foundation of expert testimony. At trial, Mr. Sanderson also contended that a portion of the counselor's testimony was impermissible vouching. In support of his objection at trial, defense counsel heavily relied on our decisions in Hannon v. State, 2004 WY 8, 84 P.3d 320 (Wyo.2004), and Seward v. State, 2003 WY 116, 76 P.3d 805 (Wyo.2003). These cases do not involve character evidence and are not relevant to the issue presented on appeal.

[¶ 15] At trial,...