451 P.3d 758 (Wyo. 2019), S-19-0015, Weston v. State

Docket Nº:S-19-0015
Citation:451 P.3d 758, 2019 WY 113
Opinion Judge:KAUTZ, Justice.
Party Name:Sean Wayne WESTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Attorney:Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson. Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy At...
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Case Date:November 07, 2019
Court:Supreme Court of Wyoming

Page 758

451 P.3d 758 (Wyo. 2019)

2019 WY 113

Sean Wayne WESTON, Appellant (Defendant),

v.

The STATE of Wyoming, Appellee (Plaintiff).

No. S-19-0015

Supreme Court of Wyoming

November 7, 2019

Page 759

[Copyrighted Material Omitted]

Page 760

[Copyrighted Material Omitted]

Page 761

Appeal from the District Court of Uinta County, The Honorable Joseph B. Bluemel, Judge

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Russell Farr, Senior Assistant Attorney General. Argument by Mr. Farr.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

OPINION

KAUTZ, Justice.

[¶1] A jury found Sean Wayne Weston guilty of attempted sexual abuse of a minor in the second degree. Mr. Weston challenges the sufficiency of the evidence to convict him, the jury instructions and the effectiveness of his trial counsel. Our review of the record convinces us the evidence was sufficient to support the jury’s verdict. The jury instructions on the elements of attempted sexual abuse of a minor in the second degree were incorrect. However, the jury instruction errors and any deficiencies in defense counsel’s performance associated with the instructions were not prejudicial because the State presented overwhelming evidence showing Mr. Weston was guilty of the crime. We affirm.

ISSUES

[¶2] The issues on appeal are: 1. Was the evidence presented at trial sufficient to convict Mr. Weston of attempted sexual abuse of a minor in the second degree?

2. Did the district court err in instructing the jury?

3. Was defense counsel’s performance in addressing the jury instructions deficient?

4. Was Mr. Weston prejudiced by incorrect jury instructions and/or his counsel’s deficient performance?

FACTS

[¶3] In the spring of 2015, Mr. Weston, who was 29 years old, and the victim, who was 15 years old, met briefly at the recreation center in Evanston, Wyoming. After they met, Mr. Weston messaged the victim on Facebook and they began communicating regularly through that platform. The Facebook messages were admitted at trial as State’s Exhibit No. 1. The messages were sexually explicit, and we do not need to repeat them verbatim here. It suffices to say Mr. Weston graphically described the sexual activities he wished to perform with the victim and stated many times that he wanted to have sexual intercourse and oral sex with her.

[¶4] Mr. Weston also frequently encouraged the victim to sneak out of her house, go for a walk, or be dropped off at certain places so he could pick her up and take her to his house without her parents knowing. At one point, he asked where she lived, and she said across the street from the Pines Apartments. He said she should "walk over to the Pines" and he would come and get her.

[¶5] On June 24, 2015, Mr. Weston and the victim’s plans became more concrete. Mr. Weston asked the victim if she would sneak out that night, and she said she would "soon" but had to wait until the other people in her house were asleep. Mr. Weston responded, "Sweet. I’m going to take a shower" and "[l]et me know when to get you." He messaged her a little later saying he was out of the shower; the victim responded, "Same." Mr. Weston asked her, "So how long, baby?" and told her to "[j]ust hurry and sneak out[.]"

[¶6] The victim eventually told Mr. Weston that everyone was asleep, and he responded, "So the Pines?" The victim said, "Wait, don’t leave yet" because she was "talking to the cops" about whether she had been involved

Page 762

in a burglary at the Flying J. The victim testified at trial that her statements about the cops were untrue; she was just "trying to figure out a way to get out of" meeting Mr. Weston.

[¶7] Mr. Weston said, "Okay. Then I’ll go home, I guess." The victim asked, "Are you already at the Pines?" and he replied, "No." She asked, "Then where are you?" and he said, "Driving. Are you coming out still?" The victim responded, "Yeah, if the cops ever leave." He responded, "Let me know." Mr. Weston and the victim did not meet in person that night but, over the next several weeks, they continued to communicate in great detail about having sexual intercourse and oral sex. Mr. Weston regularly encouraged the victim to sneak away from her parents and come to his house.

[¶8] The victim testified that on July 26, 2015, she and Mr. Weston Facebook messaged and texted each other.[1] Mr. Weston told her he was going to take his son to the park by her house. He said she should go for a walk and he would pick her up. There was some discussion indicating they wanted to make sure the victim’s family did not know about them being together. The victim mentioned that her younger cousin was with her and asked if Mr. Weston would be "weirded out" if she and her cousin went to the park and laid in the grass. He said, "No, I wouldn’t care. Free country."

[¶9] The two girls went to the park, and Mr. Weston and the victim continued to communicate with one another at the park through text and Facebook messaging. The victim said she and Mr. Weston were about fifteen to twenty feet apart at the park, but they did not speak. Mr. Weston messaged her, saying she was turning him on in her pink shorts and asked if her cousin could watch his son so Mr. Weston and the victim could go "mess around" in his truck. He also said the victim should go on a walk at 5:00 p.m. so he could pick her up.

[¶10] The victim never met with Mr. Weston, and she testified their communication ended when she was sent to a residential youth treatment center. The victim did not report her interactions with Mr. Weston to law enforcement, but officers found their Facebook messages when investigating another matter involving Mr. Weston. The State charged Mr. Weston with attempted second-degree sexual abuse of the victim, and the jury found him guilty. The district court sentenced him to a prison term of eighteen months to five years, and Mr. Weston appealed.

DISCUSSION

Sufficiency of the Evidence

[¶11] Mr. Weston asserts the trial evidence was insufficient to convict him of attempted second-degree sexual abuse of a minor. When reviewing a claim that the trial evidence was insufficient to support a jury’s verdict, we do not consider whether the evidence was sufficient to establish the appellant’s guilt beyond a reasonable doubt. Thompson v. State, 2018 WY 3, ¶ 14, 408 P.3d 756, 760 (Wyo. 2018); Mraz v. State, 2016 WY 85, ¶ 19, 378 P.3d 280, 286 (Wyo. 2016). Rather, we evaluate whether the evidence could reasonably support the jury’s verdict without reweighing the evidence or re-examining the credibility of the witnesses. Id.

[T]his Court examines the evidence in the light most favorable to the State. We accept all evidence favorable to the State as true and give the State’s evidence every favorable inference which can reasonably and fairly be drawn from it. We also disregard any evidence favorable to the appellant that conflicts with the State’s evidence.

Id. (quoting Worley v. State, 2017 WY 3, ¶ 17, 386 P.3d 765, 771 (Wyo. 2017)) (other citations omitted).

[¶12] Mr. Weston was convicted of attempted second-degree sexual abuse of a minor under Wyo. Stat. Ann. § § 6-1-301 and

Page 763

6-2-315 (a)(i) and (b) (LexisNexis 2019). Section 6-1-301 states in relevant part: (a) A person is guilty of an attempt to commit a crime if:

(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person’s intention to complete the commission of the crime[.]

Section 6-2-315(a)(i) states in relevant part: (a) Except under circumstance constituting sexual abuse of a minor in the first degree as defined by W.S. 6-2-314, an actor commits the crime of sexual abuse of a minor in the second degree if:

(i) Being seventeen (17) years of age or older, the actor inflicts sexual intrusion on a victim who is thirteen (13) through fifteen (15) years of age, and the victim is at least four (4) years younger than the actor[.]

Sexual intrusion is defined as: (A) Any intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue or penis, into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse; or

(B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.

Wyo. Stat. Ann. § 6-2-301(a)(vii) (LexisNexis 2019).

[¶13] Mr. Weston concedes the dates and location of the offense, his and the victim’s ages, and that he sent and received the Facebook messages which were the primary evidence against him. He claims, however, the State presented insufficient evidence to establish he had the requisite intent to commit second-degree sexual abuse of a minor or that he took a substantial step to complete the crime.

[¶14] To prove an attempt to commit a crime, the State must show the defendant had the specific intent to complete the crime and took a substantial step to achieve that result. Pearson v. State, 2017 WY 19, ¶¶ 19-20, 389 P.3d 794, 798-99 (Wyo. 2017). See also,

Compton v. State, 931 P.2d 936, 941 (Wyo. 1997) (the State was required to prove the defendant had the intent to perform acts which, if accomplished, would constitute the charged crime and he acted on that intent...

To continue reading

FREE SIGN UP