Adams v. State
| Decision Date | 17 August 2005 |
| Docket Number | No. 04-86.,04-86. |
| Citation | 2005 WY 94,117 P.3d 1210 |
| Parties | Mark ADAMS, Petitioner, v. The STATE of Wyoming, Respondent. |
| Court | Wyoming Supreme Court |
Representing Petitioner: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel; and Tonya A. Morse, Cheyenne, Wyoming. Argument by Ms. Morse.
Representing Respondent: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
[¶ 1] After engaging in sexually explicit communication in a chat room over the Internet with a person whom he thought was a 15 year old female, Mark Adams proposed meeting the young woman for purposes of engaging in sexual activity. He arrived at the proposed meeting place armed with alcohol and condoms and approached a young woman he thought to be the one he had been soliciting, but who was instead an employee of the Casper Police Department, and he was arrested. A jury convicted him of attempted sexual exploitation of a child, in violation of Wyo. Stat. Ann. §§ 6-4-303(b)(ii) and 6-1-301 (LexisNexis 2003), and one count of attempted solicitation to engage in illicit sexual relations, in violation of § 6-1-301 and Wyo. Stat. Ann. § 14-3-104 (LexisNexis 2003). He appeals claiming the district court erred in not dismissing the charges because the Internet communications were between him and a police officer, not a child, and, consequently, the State had produced insufficient evidence of a violation of the statutes. He also contends the district court improperly allowed computer generated evidence to be admitted while refusing to allow him access to the police department's computer, and the prosecutor committed misconduct in his closing argument. Finding no error, we affirm.
[¶ 2] Mr. Adams presents the following issues for review:
I. Whether the trial court erred in denying defendant's (Petitioner herein) pretrial motion to dismiss?
II. Whether the trial court erred in denying defendant's motion for acquittal because the State's evidence was insufficient?
III. Whether prosecutorial misconduct prejudiced the jury and denied the defendant his right to a fair trial?
IV. Whether petitioner was denied a right to a fair trial and denied his constitutional right to present a defense due to evidence being withheld by the State?
The State phrases the issues as follows:
I. Does the Wyoming general attempt statute, Wyo. Stat. Ann. § 6-1-301, apply to situations where a law enforcement officer pretends to be a child on the internet?
II. Did the prosecutor commit misconduct during closing argument?
III. Did the district court abuse its discretion when it admitted evidence of the online communications between petitioner and law enforcement, and did the State withhold evidence from petitioner such that he was denied his right to a fair trial?
[¶ 3] On December 4, 2002, an adult male Casper Police Department detective entered an online "chat room" and posed as a 15 year old female with the screen name "caspurgirl88." He provided a profile indicating he was a female named "Amber" who lived in Casper and whose hobbies were "shopping, boys, partying, and boys," but did not indicate an age or date of birth. Mr. Adams, whose screen name was "maradam21," contacted "Amber" through instant messaging in the Yahoo.com chat room under the category "romance" on the night of December 4, 2002. Two minutes into the conversation, Mr. Adams asked "Amber" how old she was and her response was 15. He proceeded to ask increasingly sexually graphic questions including questions about her anatomy and sexual experience. He offered to teach her about sex and, ultimately, sent nude pictures of himself, including pictures of his penis. After inviting her to his house and describing what he intended to teach her, "Amber" responded that she was afraid of getting pregnant. He told her not to worry about it because he had condoms.
[¶ 4] Arrangements were made to meet at McDonald's on Saturday night, December 7, 2002. In an instant message on December 6, 2002, Mr. Adams again initiated discussion of sexual matters. In this conversation, he admitted he could get in trouble because of their ages and asked her to keep their meeting a secret. "Amber" again expressed her fear of getting pregnant and he agreed to bring wine coolers and condoms with him to McDonald's. Prior to their meeting on December 7, another short instant message conversation occurred at 9:00 p.m.
[¶ 5] Shortly thereafter, the police took a young female dispatcher, fitted with a wire transmitter, to the McDonald's parking lot in an unmarked police car. After driving through the parking lot several times, Mr. Adams parked next to the car and began speaking with the woman. After he told her he had alcohol and condoms, the police arrested him. He was ultimately charged with one count of attempting to cause, induce, entice or coerce a child to engage in, or be used for any explicit sexual conduct, in violation of §§ 6-1-301 and 6-4-303(b)(ii), and one count of attempting to solicit, procure or knowingly encourage anyone under the age of 16 years to engage in illicit sexual penetration or sexual intrusion, in violation of §§ 6-1-301 and 14-3-104.
[¶ 6] Mr. Adams filed a motion to dismiss the charges arguing the statutes required the victim of the crimes charged to be a child, and, under these facts, there was no child victim. The district court denied the motion. Mr. Adams also filed a motion to preserve evidence complaining that he had sought the police department's computer files and that they had not been provided and could be destroyed. The district court granted the motion requiring the police to preserve the e-mail addresses involved in the investigation, the messages between Mr. Adams and "Amber," the chat room profile of "caspurgirl88," any other information stored on the police department's computer relevant to the case, and all notes and reports generated by the police in the course of the investigation.
[¶ 7] After a two day trial, the jury found Mr. Adams guilty on both counts. The district court sentenced him to 24 to 60 months in the Wyoming State Penitentiary on Count I, which was suspended in favor of a split sentence of 60 days in the Natrona County Detention Center and 48 months of supervised probation. On Count II, he was sentenced to a consecutive term of 18 to 36 months in the Wyoming State Penitentiary, which was suspended in favor of 48 months of supervised probation ordered to run concurrently with the probation for Count I. The judgment and sentence was filed on September 22, 2003. The notice of appeal filed February 11, 2004, was not timely and the district court denied Mr. Adams' motion for leave to file a late notice of appeal. However, this Court reinstated the appeal.
[¶ 8] The same theme runs through Mr. Adams' claims that the district court erred in not granting his motion to dismiss the claims prior to trial and not granting his motion for acquittal for lack of sufficient evidence — his contention that he was charged with solicitation of a minor when no actual minor was involved. In both arguments, he appears to ignore the fact that the information charged him, and the jury convicted him, of attempted violation of the statutes. Whether the statutes proscribing attempted inducement of a child to engage in sexual conduct and attempted solicitation of a child to engage in illicit sexual penetration or intrusion require an actual child victim is a question of law which this Court reviews de novo. Rutti v. State, 2004 WY 133, ¶ 9, 100 P.3d 394, ¶ 9 (Wyo.2004).
[¶ 9] Our standard of review for sufficiency of the evidence is well established.
[W]e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). "We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did." Id.
Blakeman v. State, 2004 WY 139, ¶ 11, 100 P.3d 1229, ¶ 11 (Wyo.2004).
[¶ 10] Without question, no child victim exists in this case. However, because the State did not charge Mr. Adams with violation of the child solicitation statutes but with attempting such a violation, that fact is not relevant. The evidence established Mr. Adams believed he was conversing with, and intending to meet and have sexual relations with, a 15 year old girl. He seems to suggest that before charges can be brought under the general attempt statute, there must be an actual minor victim. However, he provides no authority or cogent argument in support of that position.
[¶ 11] Section 6-1-301 provides:
(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; or
(ii) He intentionally engages in conduct which would constitute the crime had the attendant circumstances been as the person believes them to be.
[¶ 12] Mr. Adams was charged with attempting to cause,...
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