Croy v. State

• Docket Number: S-22-0312
• Decision Date: 19 December 2023
• Parties: KRISTINA EILEEN CROY, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

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2023 WY 124

KRISTINA EILEEN CROY, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-22-0312

Supreme Court of Wyoming

December 19, 2023

Appeal from the District Court of Laramie County The Honorable Peter H. Froelicher, Judge

Representing Appellant: Dion J. Custis of Dion J. Custis, P.C., Cheyenne, Wyoming.

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General. Argument by Ms. Jones.

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

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FENN, JUSTICE

[¶1] Following a jury trial, Kristina Croy was found guilty of involuntary manslaughter. She appeals, claiming there was insufficient evidence to support the jury's verdict. She also asserts the district court abused its discretion when it dismissed a juror prior to deliberations and when it allowed the State to present an extensive rebuttal argument after making a short initial closing summation. We affirm.

ISSUES

[¶2] Ms. Croy raises three issues which we rephrase as follows:

I. Was there sufficient evidence to support the jury's verdict

II. Did the district court abuse its discretion when it dismissed a juror for not following instructions

III. Did the district court abuse its discretion or otherwise deprive Ms. Croy of a fair trial when it declined her request to restrict how the State split its time between initial closing summation and rebuttal argument?

FACTS

[¶3] Ms. Croy operated a small daycare out of her residence. On September 25, 2019, an eight-month-old infant, MG, was one of the children in her care. MG's mother dropped her off at the daycare at approximately 11:15 a.m. Ms. Croy fed MG and put her down for a nap. Before putting MG down, Ms. Croy placed her in a sleepsack with a swaddle attachment. A swaddle attachment is a piece of fabric with Velcro pieces that "look like butterfly wings on the back when they are stretched open[,]" but when those "wings" are wrapped around the infant's torso, they "restrict the movement of the arms, [and] that sleepsack becomes a swaddle." Ms. Croy placed MG in the sleepsack with the wings Velcroed across the infant's torso, restricting the movement of MG's arms. Ms. Croy's employee left to go to lunch around 12:15 p.m., leaving Ms. Croy alone to supervise the 12 children who were in her care that day. At 1:20 p.m., Ms. Croy checked on MG and discovered she was not breathing. She instructed her adult daughter, who was in the house but not working as a daycare provider, to call 911. The paramedics arrived shortly thereafter, attempted to resuscitate MG, and transported her to the hospital. Hospital staff continued resuscitation efforts, but they were ultimately unsuccessful.

[¶4] Because MG was a minor whose cause of death was unknown, the Laramie

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County Coroner was required to conduct an investigation. See Wyo. Stat. Ann. § 7-4-104(a)(i)(H) (LexisNexis 2021) (defining a "coroner's case" as one where the cause of death is unknown); Wyo. Stat. Ann. § 7-4-201(b) (LexisNexis 2021) (requiring the coroner to conduct an investigation whenever she is notified the death is a "coroner's case"). The coroner conducted a parallel investigation with the Cheyenne Police Department.

[¶5] As a result of the investigation, law enforcement officers obtained the following information from the Department of Family Services' employee who was responsible for licensing Ms. Croy's daycare (daycare licenser). Following MG's death, at Ms. Croy's request, the daycare licenser went to the hospital to be with Ms. Croy. Ms. Croy told the daycare licenser she put MG down for a nap in the sleepsack with her arms wrapped, and she could see MG's "fingers poking out from the bottom." Ms. Croy demonstrated this position for the daycare licenser with her arms and wiggled her fingers. The daycare licenser believed this meant Ms. Croy had swaddled MG. Ms. Croy reported checking on MG at least twice after putting her down for a nap, and on both occasions, she saw MG had rolled or turned into a position Ms. Croy did not like. Ms. Croy repositioned MG, but she did not indicate whether she had changed the swaddle attachment to free MG's arms. The final time she checked on MG, Ms. Croy found MG had rolled so she could not see MG's face. When Ms. Croy turned MG over, she found the infant was not breathing.

[¶6] After completing her investigation, the coroner concluded MG died from positional asphyxia as a result of being improperly swaddled. The State charged Ms. Croy with involuntary manslaughter. Ms. Croy's case proceeded to a six-day jury trial. The jury convicted Ms. Croy of one count of felony involuntary manslaughter. Ms. Croy was sentenced to five-to-seven years in prison, suspended in lieu of five years of supervised probation. This appeal timely followed.

DISCUSSION

I. Was there sufficient evidence to support the jury's verdict?

[¶7] The standard of review we apply to sufficiency of the evidence claims is well established:

This 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.

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Martens v. State, 2023 WY 93, ¶ 16, 535 P.3d. 891, 897 (Wyo. 2023) (quoting Thompson v. State, 2018 WY 3, ¶ 14, 408 P.3d 756, 761 (Wyo. 2018)). "[W]e do not consider whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but instead whether or not the evidence could reasonably support such a finding by the factfinder. We will not reweigh the evidence nor will we re-examine the credibility of witnesses." Id., 535 P.3d at 896 (quoting Thompson, ¶ 14, 408 P.3d at 760). We defer to the jury and assume they believed the evidence adverse to Ms. Croy because they found her guilty. Id. (quoting Thompson, ¶ 14, 408 P.3d at 760).

[¶8] Ms. Croy argues there was insufficient evidence to support the verdict in this case because the State's expert based her opinion regarding MG's cause of death on double hearsay. Ms. Croy asserts a finding of positional asphyxia was necessary for a conviction in this case, and without the expert's testimony, the jury was left to speculate about MG's cause of death. The State argues this evidence was received without a limiting instruction and could be used for any purpose. The State also asserts the jury received other significant evidence surrounding the cause of death, including from Ms. Croy's own expert, all of which supports a finding MG died from positional asphyxia.

[¶9] The State's expert, Dr. Kelly Lear, based her opinion in part on statements Ms. Croy made to the daycare licenser following the incident, including that MG had been swaddled in a sleepsack and Ms. Croy found MG with her face obscured. Dr. Lear testified this information was "part of the key history" she needed to form her opinion that MG did not have the ability to breathe because her face was obstructed by something in the environment.

[¶10] Although Dr. Lear relied on hearsay, her opinion was admissible. We have recognized the Wyoming Rules of Evidence (W.R.E.) expressly allow an expert to use hearsay when forming an opinion, if other experts in that field would rely on similar evidence. See Hayes v. State, 935 P.2d 700, 703-04 (Wyo. 1997) (citing W.R.E. 703; McGinn v. State, 928 P.2d 1157, 1162-63 (Wyo. 1996); LP v. Natrona Cnty. Dep't of Pub. Assistance and Soc. Servs., 679 P.2d 976, 1004 (Wyo. 1984)). In this case, Dr. Lear testified forensic pathologists often rely on statements from friends, family members, and others who witnessed the events when attempting to determine the cause of death. The record establishes contract pathologists, like the one who performed the autopsy in this case, must rely on information from the coroners, who in turn receive that information from a variety of sources. Thus, experts in the field of forensic pathology typically rely on the type of hearsay utilized by Dr. Lear when forming their opinions. Further, during the trial, Ms. Croy did not make a hearsay objection to Dr. Lear's testimony or to the admission of her report.^[1] "'If evidence comes in without objection the jury may use it for

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any legitimate purpose,' and we may rely on it in determining the sufficiency of the evidence to support a conviction." Deephouse v. State, 2023 WY 37, ¶ 16, 527 P.3d 1261, 1265 (Wyo. 2023) (quoting Neidlinger v. State, 2021 WY 39, ¶¶ 31-32, 482 P.3d 337, 346-47 (Wyo. 2021)). Dr. Lear's testimony was substantive evidence the jury could consider when reaching its verdict.

[¶11] The jury also heard other evidence pertaining to MG's cause of death. Two witnesses testified Ms. Croy swaddled MG before putting her down for a nap that day. The jury watched a video, recorded by a camera located in the daycare, that showed Ms. Croy carrying MG into the kitchen with the infant's arms still wrapped in the swaddle. Ms. Croy removed the sleepsack as she attempted to perform CPR. The jury learned DFS regulations prohibit swaddling an infant without a doctor's note, and even with a doctor's note, an infant cannot be swaddled once she is able to roll independently. Multiple witnesses testified swaddling an infant who can roll poses a danger of asphyxiation because the baby may suffocate if she rolls over with her arms restricted and cannot roll herself back over. The daycare licenser trained Ms. Croy in safe sleep practices, and Ms. Croy knew she should not be swaddling an infant who could roll. The sleepsack itself contained warnings that it should not be used on an infant who could roll independently. The State presented evidence MG was able to roll independently. Ms. Croy told the daycare licenser she had...