Brown v. State, 90-194

• Decision Date: 30 August 1991
• Docket Number: No. 90-194,90-194
• Citation: 817 P.2d 429
• Parties: James Franklin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 429

817 P.2d 429

James Franklin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-194.

Supreme Court of Wyoming.

Aug. 30, 1991.

Wyoming Public Defender Program, Leonard D. Munker, State Public Defender, Barbara Lauer, Asst. Public Defender, Gerald M. Gallivan, Director, Wyoming Defender Aid Program, and Kenneth M. McLaughlin, Legal Intern, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

THOMAS, Justice.

The focus in this appeal by James Franklin Brown (Brown) is that the trial court failed to confine the proof offered by the State to the essential elements of the charged offenses and that the product of this error was to deprive him of his right to a fair trial and a unanimous verdict. Brown complains specifically of the admission of evidence of uncharged misconduct, without proper scrutiny and without appropriate limiting instructions; the refusal of the trial court to limit the consideration of uncharged misconduct and to restrict the jury in its deliberations to those acts specified in a bill of particulars; and the failure of the State to carry its burden of proof as to the submission by the victims because of Brown's exercise of a position of authority. As a final proposition, the doctrine of cumulative error is raised. We are satisfied that, of the specters asserted in Brown's appeal, none of them actually materialized except for a failure of proof with respect to Count VII of the information. The conviction on Count VII is reversed. Otherwise, the judgment and sentence is affirmed.

Appellant states the issues to be:

"I. Whether the trial court erred in admitting evidence of uncharged misconduct without a showing that such evidence was substantially needed to prove a material fact relevant to an element of a charged offense.

"II. Whether the trial court erred in failing to instruct the jury that evidence of uncharged misconduct was admitted for limited purposes and could not be used to prove the appellant's character and that he acted in conformity therewith in committing the charged offenses.

"III. Whether the trial court erred in failing to restrict the prosecution to proof of the acts specified in the bill of particulars.

"IV. Whether the trial court erred in failing to instruct the jury that it could only convict the appellant of the specific acts set forth in the bill of particulars.

"V. Whether the trial court's failure to limit the jury's consideration of evidence of uncharged misconduct, and the trial court's refusal to restrict the jury's deliberations of those acts specified in the bill of particulars, resulted in denial of appellant's right to a unanimous verdict.

"VI. Whether the trial court erred in failing to grant judgments of acquittal on Counts IV, V, VI and VII due to insufficient evidence that appellant had used his position of authority to cause his victims to submit.

"VII. Whether the trial court erred in failing to grant a judgment of acquittal on Count VII after finding that the evidence demonstrated that appellant had not committed the act specified in the bill of particulars as constituting Count VII.

"VIII. Whether the cumulative effect of the errors discussed above was such as to deny the appellant his right to a fair trial and substantial justice."

The State, in its Brief of Appellee, reframes those issues and states them in this way:

"I. Whether the trial court abused its discretion by admitting evidence of appellant's sexual assaults on M.P. and C.P.

"II. Whether there was a variance between the bill of particulars, the indictment, and the evidence which prejudiced the appellant.

"III. Whether the trial court should have rejected appellant's instruction requiring a unanimous verdict.

"IV. Whether appellant was properly convicted of second degree sexual assault because he used his position of authority to cause his victims to submit to the sexual assaults.

"V. Whether there was cumulative error."

The record in this very unsavory case can only be described as lurid. We present only so much of the facts of the tragedy inflicted upon innocent children as is necessary to explain the court's opinion. In February of 1989, Brown's oldest stepchild, M.P., left Brown's home and went to live with her natural father in Oregon. While she was in Oregon, M.P. admitted to an assistant district attorney that Brown had sexually assaulted her. A charge of sexual assault was filed, and an Oregon warrant was issued for Brown's arrest. On November 28, 1989, Brown was arrested in Wheatland on the warrant issued in Oregon.

The mother of the several victims, A.P., initially supported Brown's claims that he had not molested M.P. A few days after Brown's arrest, however, she found a bag of burned photographs under the seat of Brown's pickup truck. Although most of those pictures were sufficiently burned so that the subject could not be recognized, A.P. could tell that one of them, which had been cut into pieces rather than burned, had been taken in her bedroom. The photograph depicted a partially clothed female exposing her genitals and anus to the camera. A.P.'s suspicions were aroused, and she then asked her younger daughter, C.P., whether M.P. had ever said anything to C.P. about being molested. C.P. advised her mother that, prior to the time she left for Oregon, M.P. had admitted being sexually abused by Brown. A.P. then took the cut-up photograph to the local sheriff. It was pieced together, and the sheriff had A.P. make a statement. Subsequently, Brown's younger stepdaughter, C.P., and Brown's stepson, S.P., both informed the authorities that they had been sexually abused by Brown.

As a product of this investigation, the Platte County attorney filed a criminal complaint on January 5, 1990 in which Brown was charged with multiple counts of sexual assault and taking indecent liberties with a minor. Subsequently, the State filed an information setting out six counts of second degree sexual assault and five counts of indecent liberties with a minor. Of these eleven counts, one count of second degree sexual assault and three counts of indecent liberties with a minor were subsequently dismissed. The remaining counts were: Count I charged second degree sexual assault (statutory rape of S.P. in violation of § 6-2-303(a)(v), W.S.1977); Counts II and III charged the taking of indecent liberties with C.P. in violation of § 14-3-105, W.S.1977; Counts IV, V, and VI charged second degree sexual assault (based upon a position of authority) upon C.P., in violation of § 6-2-303(a)(vi), W.S.1977; and Count VII charged second degree sexual assault, again based upon a position of authority, upon M.P., in violation of § 6-2-303(a)(vi). ¹ Brown filed a Motion for a Bill of Particulars detailing the several charges, and a response was filed by the State.

At trial, each of the children testified about abuse received at the hands of Brown. M.P. testified that when the family still resided in LaPine, Oregon, prior to the time they moved to Wheatland, Brown produced some pornographic magazines and had her look at them. Two days later, according to her testimony, Brown fondled her breasts and genitals while she was sitting on Brown's lap. Brown then took photographs of her in the nude. She stated that Brown threatened to make copies of those pictures and "spread them all over town" if she told anyone what he had done. After that, first in Oregon, but continuing after the family had moved to Wheatland Brown used his hands, tongue, and penis to penetrate or attempt to penetrate M.P.'s vagina on numerous occasions. M.P. also testified about an incident that occurred in the family living room in Wheatland. In her words, "[h]e wanted me to go down and suck his penis, and I wouldn't. I backed off. * * * He said he would make me do it some other time."

The younger stepdaughter, C.P., testified about Brown's mistreatment of her. According to her testimony, the first sexual contact occurred when Brown showed her some pornographic magazines and then fondled her breast. She stated that Brown told her that her mother and grandmother would hate her if she told anyone what had happened. After that, Brown began playing with her breasts and vagina with his fingers and his tongue. She testified that these assaults occurred from three to five nights each week. She also testified that Brown had sexual intercourse with her once a week. She testified that these assaults continued until shortly before Brown was arrested. In her testimony, C.P. described two of these incidents of sexual intercourse in detail.

C.P. also testified that Brown took nude photographs of her vagina and breasts and made her perform fellatio on him. He threatened C.P. with using the pictures to get even with her if she told anyone about what he had done. C.P. also identified the photograph that A.P. had found in the pickup truck, the one that had been cut to pieces, as one of those that Brown had taken of her.

When S.P. testified, he stated that Brown had assaulted him in the garage behind the family's home in Wheatland. He stated that Brown had him bend over, covered his head with a towel, and then placed something "five fingers around" in S.P.'s anus.

It is not surprising that Brown was found guilty on all seven of the charged counts. The testimony of the children is strong and essentially unrefuted.

Brown's first two issues relate to the propriety of the admission of evidence of uncharged misconduct. He complains that he was unfairly prejudiced in view of the fact that evidence was presented to the jury concerning numerous uncharged incidents of sexual misconduct between himself and both M.P. and C.P. Rule 404(b), W.R.E., relates to the admissibility of evidence of such uncharged crimes, wrongs, or acts. That rule provides as follows:

"Other crimes,...