Beaugureau v. State

• Decision Date: 22 October 2002
• Docket Number: No. 01-94.,01-94.
• Citation: 56 P.3d 626,2002 WY 160
• Parties: Robin BEAUGUREAU, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

56 P.3d 626

2002 WY 160

Robin BEAUGUREAU, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-94.

Supreme Court of Wyoming.

October 22, 2002.

Rehearing Denied November 19, 2002.

Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellant Counsel, Representing Appellant. Argument presented by Ms. Kerin.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Prosecution Assistance Program; and Crystal S. Swanson and Howard Scotland, Student Interns, Representing Appellee. Argument presented by Mr. Scotland.

Before HILL, C.J., and GOLDEN, LEHMAN¹, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, Robin Beaugureau, seeks review of the judgment and sentence of the district court finding her guilty of two counts of child abuse.² She contends that there is insufficient evidence to sustain her convictions on two counts of felony child abuse.³ She also contends that she was denied due process of law and a fair trial because the State prevented her from interviewing one of the victims before trial, that the trial court erred in refusing to inquire into the competency of one of the victims who was called as a witness, that the prosecutor engaged in misconduct during his cross-examination of Beaugureau, and that the trial court erred in not conducting an inquiry into whether or not she needed substitute counsel.

[¶ 2] Although we find serious errors in the proceedings, the errors were not prejudicial and are harmless. Thus, we will affirm.

ISSUES

[¶ 3] Beaugureau provides this statement of the issues:

I. Was there insufficient evidence to convict Appellant of child abuse of the alleged victim, [BC]?

II. Was there insufficient evidence to convict Appellant of child abuse of the alleged victim, [SD] and did the trial court abuse its discretion in allowing the late amendment of the information with regard to the allegation of child abuse of SD?

III. Was Appellant denied due process of law when an agent of the State, a DFS⁴ employee, refused to allow Appellant's trial counsel to interview the alleged victim, [BC], particularly in view of the fact that the prosecutor was allowed to speak with [BC] prior to trial?

IV. Did the trial court err in refusing to examine [BC's] competency prior to the substance of his testimony?

V. Should this Court reverse its position articulated in Dike v. State, 990 P.2d 1012 (Wyo.1999), wherein the Court reaffirmed that "when the jury is presented with contradictory testimony, counsel is allowed to communicate the reasonable inference that one of the witnesses is lying"? [sic] Additionally, did the prosecutor commit prosecutorial misconduct by using contradictions in the testimony to improperly question Appellant?

VI. Did the trial court err in not holding a hearing or inquiry to determine if appellant needed substitute counsel?

The State rephrases the issues in these words:

I. Was there sufficient evidence to convict Appellant of child abuse as to BC?

II. Was there sufficient evidence to convict Appellant of child abuse as to SD, and did the district court abuse its discretion in allowing the State to amend the information with regard to the dates when the child abuse was committed?

III. Was Appellant denied due process of law when the Department of Family Services refused to allow Appellant's counsel to interview victim BC prior to trial?

IV. Did the district court err in refusing to conduct a further competency hearing regarding BC?

V. Did the district court apply the correct rule of law to the facts in the case, should this Court overrule Dike v. State, and did the prosecutor commit misconduct by using contradictions in the testimony during questioning of Appellant?

VI. Did the district court err in not holding a hearing or inquiry to determine if Appellant needed substitute counsel?

FACTS

[¶ 4] The instant appeal is limited to facts that describe two fairly discrete incidents, though the testimony at trial spanned more than a decade and a half worth of instances of ongoing abusive conduct by Beaugureau and her husband, Francis.⁵ Their victims were principally SD and BC.⁶ The first incident relates to Beaugureau's daughter SD (SD was a step-daughter to Francis). Sometime between December 1, 1997 and March 31, 1998, it was alleged that Beaugureau severely beat SD, inflicting physical injury constituting felony child abuse.

[¶ 5] The second incident involved BC. It was alleged that between July 1, 1995 and October 3, 1996, Beaugureau inflicted physical injury on BC constituting felony child abuse. The central incident, although the record bears out more incidents than we care to attempt to count, took place when Beaugureau forced BC to stick his hand into a burning acetylene torch. BC suffered a severe burn during that incident and a skin graft became necessary in order to successfully treat the injury.

[¶ 6] We note at this juncture that the record chronicles incidents of child abuse that span most of the lifetimes of SD and GD (who were 15 and 19 years of age, respectively, at the time of trial) and 15 months in the life of BC. No issue is raised in regard to the volume of evidence that was admitted at trial. It was a part of Beaugureau's trial strategy to attempt to show that Francis was a controlling and manipulative religious zealot who forced Beaugureau to abuse children, and, thus, it was Beaugureau's intention that this great volume of evidence be admitted.

DISUSSION

Sufficiency of the Evidence

[¶ 7] The benchmark for review of sufficiency of the evidence claims is whether the evidence, when viewed in the light most favorable to the State, is such as to permit a reasonable trier of fact to find guilt beyond a reasonable doubt. Statezny v. State, 2001 WY 22 ¶ 15, 18 P.3d 641, ¶ 15 (Wyo.2001); Hadden v. State, 2002 WY 41, ¶ 27, 42 P.3d 495, ¶ 27 (Wyo.2002).

[¶ 8] Applying this standard to the two convictions challenged in this appeal, we need only point out that SD testified that Beaugureau beat her so that she had a bloodied and broken nose, and that BC testified that Beaugureau forced him to thrust his hand into the flame of an acetylene torch. In each instance, the testimony of the victim is sufficient to sustain the respective conviction. It is surplusage, but we note, as well, that there was considerable corroborating evidence in each instance.

Late Amendment of Information

[¶ 9] The trial court permitted the amendment of the information with respect to the count involving SD. The original information set forth a time frame ranging from December 1, 1997 until December 31, 1997. SD's testimony put the salient date as between January and March of 1998. Other corroborating testimony also placed the date of that occurrence in early 1998. The motion to amend was filed on November 29, 1999, and the district court granted the motion on that date. The trial began on November 29, 1999. The State contended that Beaugureau was given ample notice because the motion was delivered to the office of her attorney "four or five days" before the commencement of trial.⁷ The State neglected to also relate that the date of manual service was on Thanksgiving Day, when the defense attorney was not in his office. Although the conduct of the State is in many ways inexcusable and demonstrates a disregard for the time-honored processes of the criminal justice system, we will not let the "criminal go free, merely because the prosecutor blundered." See Meek v. State, 2002 WY 1, ¶¶ 15-19, 37 P.3d 1279, ¶¶ 15-19 (Wyo.2002)

.

[¶ 10] As was the case in Meek, there is no demonstrable prejudice to Beaugureau here. Beaugureau was not charged with an additional or different crime. Beaugureau did not deny the incident at issue, she only contended that she did not beat SD, but rather only gently slapped her in order to bring her out of the fit of hysteria she was suffering. No substantial right belonging to Beaugureau was prejudiced, but the system bears a black mark due to the manner in which this issue was handled.

Denial of Due Process

[¶ 11] Beaugureau contends that her rights to due process of law were denied because the prosecutor interfered with her attorney's efforts to interview BC before trial. The issue was not raised before the trial court, and the parties have agreed that we must review this asserted error under the plain error standard. The arguments by both Beaugureau and the State are wide of the mark. The issue is not whether BC had a right to refuse to talk with Beaugureau's attorney, but whether, as Beaugureau claimed, the State actively interfered with defense counsel's right (as well as duty) to at least try to talk with BC. See Gregory G. Sarno, Annotation, Interference by Prosecution with Defense Counsel's Pretrial Interrogation of Witnesses, 90 A.L.R.3d 1231 (1979 and 2001 Supp.). The record does not bear out Beaugureau's assertion that the prosecution interfered with defense counsel's efforts to interview BC, nor does it demonstrate that the matter was ever called to the attention of the district court. We decline to further consider this issue because it was not raised below in any meaningful manner. We generally will not consider issues that are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered. Bell v. State, 994 P.2d 947, 957 (Wyo.2000); also see Bailey v. State, 12 P.3d 173, 177-79 (Wyo.2000)

.

Hearing on BC's Competence to be a Witness

[¶ 12] Although the context was somewhat different (sexual abuse of a five-year-old child), in English v. State, 982 P.2d 139, 145 (Wyo.1999) we held:

The Wyoming Rules of Evidence provide that "[e]very person is competent to be a witness except as otherwise provided in these rules." W.R.E. 601. "A

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