Brown v. State

• Decision Date: 09 October 2019
• Docket Number: S-19-0021
• Citation: 450 P.3d 208
• Parties: Raymond Martin BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

450 P.3d 208

Raymond Martin BROWN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-19-0021

Supreme Court of Wyoming.

October 9, 2019

Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.

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

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

BOOMGAARDEN, Justice.

[¶1] A jury convicted Raymond Martin Brown of sexual assault in the third degree and intentional abuse of a vulnerable adult. The district court sentenced him to a total of four to twelve years in prison. On appeal, Mr. Brown argues the district court committed plain error by admitting hearsay evidence, and that the evidence was insufficient to support the jury verdict. We affirm.

ISSUES

[¶2] Mr. Brown raises two issues, rephrased as:

I. Whether the district court committed plain error when it admitted hearsay testimony from several witnesses and a video recording of SA’s interview with the Children’s Advocacy Project.

II. Whether the evidence was sufficient for the jury to convict Mr. Brown of sexual assault in the third degree and intentional abuse of a vulnerable adult.

FACTS

[¶3] In early July 2017, the Kelly Walsh High School Class of 2007 gathered in Casper to celebrate its ten-year reunion with various activities, including a party at the Keg & Cork, a local bar. SA went to the Keg & Cork with her cousin, Lauren Lein, and her cousin’s husband, Nicholas Lein.

[¶4] Mr. Brown, a fellow member of the Class of 2007, also went to the Keg & Cork that night. At the bar, Mr. Brown met SA for the first time, began kissing her, and took her hand to lead her to his truck. In the truck, Mr. Brown continued kissing SA, and then began touching her breasts and vaginal area. He then grabbed SA’s hand, and placed it on his genitals. SA twice told Mr. Brown to stop. After SA told Mr. Brown to stop the second time, Mr. Brown stated he had to use the restroom and stepped out of the truck to do so.

[¶5] As soon as Mr. Brown left the truck, SA returned to the bar and told her cousin someone had just done "sex stuff" with her. After hearing this, Mrs. Lein got her husband’s attention, and told him what SA had just told her. SA then showed them the truck and described the clothes of the individual who took her to the truck. SA then identified that individual as Mr. Brown. Mrs. Lein confronted Mr. Brown, ordered him to leave the bar, hit him, and then called 9-1-1. Police officers arrived and Officers Craig Burns and Alyssa Baedke spoke with SA about what had happened. The following Monday, Rosemary Bartle, a forensic interviewer and a licensed professional counselor with the Children’s Advocacy Project (CAP), interviewed SA.

[¶6] On November 30, the State charged Mr. Brown with two felonies: sexual assault in the third degree, in violation of Wyo. Stat. Ann. § 6-2-304(a)(iii),¹ and abuse of a vulnerable adult, in violation of Wyo. Stat. Ann. § 6-2-507(a).² Over the course of a four-day trial, the State presented evidence that falls into two general categories: evidence regarding SA’s disability, and evidence concerning the sexual contact.

[¶7] With respect to the second alternative circumstance of sexual assault in the third degree and to intentional abuse of a vulnerable adult, the jury had to find SA had a disability. See Wyo. Stat. Ann. §§ 6-2-304(a)(iii), 6-2-302(a)(iv) (LexisNexis 2019) (sexual assault in the third degree requires a showing that the defendant knew or reasonably should have known that the victim "through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim’s conduct.") (emphasis added); see also Wyo. Stat. Ann. §§ 6-2-507, 35-20-102(a)(xviii) (LexisNexis 2019) (defining a "vulnerable adult" as someone "eighteen (18) years of age or older who is unable to manage and take care of [herself or her] money, assets or property without assistance as a result of ... mental disability

[.]") (emphasis added). To support this finding, the State presented evidence from Dr. Kenneth Bell that SA, a thirty-one-year-old woman with Down syndrome, cannot live and spend money on her own without "the assistance of a guardian and a payee." To compensate for this inability, SA’s mother holds both legal conservatorship and guardianship over SA and her money. SA’s mother testified that although SA continuously makes noteworthy achievements—such as holding a job, having a "fiancé" who is a young man with Down syndrome

, and going out to bars with her friends—those accomplishments are possible only if facilitated by a family member. SA’s IQ-to-age equivalency placed her reasoning at the level of an individual seven years and eight months old.

[¶8] In addition to SA’s disability, the jury had to find that Mr. Brown engaged in sexual contact with SA. See Wyo. Stat. Ann. §§ 6-2-304(a)(iii), 6-2-302(a)(i) (sexual assault in the third degree occurs when an actor "subjects a victim to sexual contact under" either circumstance offered by the State) (emphasis added); see also Wyo. Stat. Ann. §§ 6-2-507(a), 35-20-102(a)(ii)(E), (xxii) (defining "abuse" in the abuse of a vulnerable adult statute to include "sexual abuse," and defining "sexual abuse" to include "sexual contact ") (emphasis added). To support the sexual contact finding, the State called SA to testify about what happened at the bar and in Mr. Brown’s truck. Additionally, the State called SA’s cousin, SA’s cousin’s husband, Officers Burns and Baedke, and Ms. Bartle to testify, among other things, about SA’s statements to them about what happened the night of the assault. The State also played for the jury the video recording of Ms. Bartle’s CAP interview with SA. Finally, the State called a forensic scientist from the biological and DNA unit of the Wyoming State Crime Lab to testify about DNA that officers recovered from the truck, SA, and Mr. Brown.

[¶9] At trial, Mr. Brown primarily argued that he was either not the person who assaulted SA, or, if he was, he was too intoxicated to form the requisite intent. With respect to his intoxication, the State presented evidence that Mr. Brown had a retrograde blood alcohol level anywhere between 0.14 and 0.23 at the time of the assault (depending on Mr. Brown’s regular level of alcohol intake). However, two witnesses testified that, despite his intoxication, Mr. Brown appeared coherent during that time.

[¶10] The jury convicted him of sexual assault in the third degree, under both circumstances referenced above, and intentional abuse of a vulnerable adult. The district court sentenced Mr. Brown to concurrent sentences of four to twelve years for sexual assault in the third degree and four to eight years for intentional abuse of a vulnerable adult. This timely appeal followed.

[¶11] Additional facts are set forth below as necessary.

DISCUSSION

I. The district court did not plainly err when it admitted alleged hearsay testimony and a video recording of SA’s interview with the Children’s Advocacy Project.

[¶12] Mr. Brown argues the district court erred when it admitted hearsay testimony from five witnesses—Mrs. Lein, Mr. Lein, Officer Baedke, Officer Burns, and Ms. Bartle—and the CAP interview video. We conclude that Mr. Brown fails to establish plain error with respect to the alleged hearsay because he cannot establish the district court transgressed a clear and unequivocal rule of law and because Mr. Brown suffered no material prejudice from the admission of the hearsay evidence.

[¶13] We review for plain error because Mr. Brown did not object to the challenged testimony or admission of the CAP video at trial. See Schreibvogel v. State , 2010 WY 45, ¶ 26, 228 P.3d 874, 884 (Wyo. 2010). "Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice." Id. ¶ 19, 228 P.3d at 882 (citing Causey v. State , 2009 WY 111, ¶ 18, 215 P.3d 287, 293 (Wyo. 2009) ). With respect to the second requirement, Mr. Brown "must demonstrate the existence of a clear and unequivocal rule of law which the particular facts transgress in a clear and obvious, not merely arguable, way." Id. ¶ 30, 228 P.3d at 885 (quoting Causey , ¶ 19, 215 P.3d at 293 ).

A. The record clearly preserves each alleged error.

[¶14] The record clearly preserves each alleged error, thus satisfying the first plain error requirement. Mrs. Lein testified about what SA told her at the bar after the assault. Mrs. Lein testified that SA came to her and said that "[a] man just took me to his truck in the parking lot ... and did sex stuff." When she asked what SA meant by "sex stuff," SA said that "[h]e put his tongue in my mouth and tried going up my shirt."

[¶15] Mrs. Lein then asked SA to show her where the "sex stuff" happened and the man. SA showed her the truck—identified at trial as Mr. Brown’s truck—and then Mrs. Lein asked if SA could identify the man who did the "sex stuff." Mrs. Lein testified that SA said the man "was wearing a black shirt," and, after looking around the bar, SA pointed at Mr. Brown. Finally, Mrs. Lein confirmed for the jury that Mr. Brown was the same person SA identified that night in the Keg & Cork.

[¶16] Next, Mr. Lein testified about what happened as he was getting ready to leave the bar. After Mrs. Lein got his attention, he "walked up to her, and she [told him] that some guy had tried to take [SA] out to the vehicle and do sex stuff with her."

[¶17] Officer Burns testified about his interview with SA on the night of the assault. He testified that SA told him "she was at the bar and a male...