Dougherty v. State

• Decision Date: 22 June 2016
• Docket Number: S–15–0218
• Citation: 2016 WY 62,373 P.3d 427
• Parties: Ricky L. Dougherty, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

373 P.3d 427

2016 WY 62

Ricky L. Dougherty, Appellant (Defendant)

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

S–15–0218

Supreme Court of Wyoming.

June 22, 2016

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL, Justice.

[¶1] After a jury convicted Ricky Lee Dougherty of one count of child endangering/obscene act for exposing himself in front of an eleven-year-old girl and then masturbating in a Cheyenne park, Mr. Dougherty contends on appeal that the district court did not properly instruct the jury as to the definition of the word “presence” as it is used in the charging statute, Wyo. Stat. Ann. § 6–4–403(b)(iii). Also, Mr. Dougherty argues that the district court improperly admitted evidence of his prior bad acts in the form of court documents rather than testimony. We will reverse.

ISSUES

[¶2] Mr. Dougherty presents two issues for our review:

1. The trial court erred in refusing to instruct the jury on the meaning of “presence” in W.S. § 6–4–403(b)(iii).

2. The trial court improperly admitted Exhibits 9A and 9B.

FACTS

[¶3] On July 1, 2014, eleven-year-old MT, her mother, and sisters were fishing at Lions Park in Cheyenne. MT noticed Mr. Dougherty pacing behind her, and when she turned around for the last time, he was within two to four feet of her with his hands in his pants and “playing with himself.” MT reported this to her mother who then observed that Mr. Dougherty was partially exposed and masturbating. MT's mother then reported the incident to police.

[¶4] Mr. Dougherty denied any wrongdoing when questioned by law enforcement—he only admitted that he was rubbing himself because of sciatic pain. Nevertheless, Mr. Dougherty was charged with one count of child endangering-obscene act pursuant to Wyo. Stat. Ann. § 6–4–403(b)(iii) (LexisNexis 2015). Under this statute, it is illegal to “[c]ommit any indecent or obscene act in the presence of a child.” The State moved to join the instant case with a previous charge on an unrelated incident in a different park with a different victim where Mr. Dougherty allegedly engaged in similar conduct. The district court granted the State's motion.

[¶5] Prior to trial the State also filed a notice of its intent to introduce W.R.E. 404(b) evidence concerning Mr. Dougherty's previous convictions for sexual misconduct and other criminal activity, arguing that those prior convictions showed proof of motive and intent. Mr. Dougherty objected to the admission of the convictions citing concerns with the age of the conviction, their relevance (not stemming from sexual misconduct), and the prejudicial nature outweighing the evidence's probative value. The court ruled that the State could use a limited number of Mr. Dougherty's convictions for similar behavior to demonstrate motive, intent, and lack of mistake. Upon the State's motion, the court also granted the State leave to dismiss the companion case, in which the victim was an infant.

[¶6] At trial on the single remaining charge, the State admitted evidence regarding Mr. Dougherty's prior bad acts but limited that evidence to certified copies of two judgments and sentences for convictions of child endangering-obscene act crimes. Prior to the admission of the documents, Mr. Dougherty expressed his concern with the documents but ultimately did not object. However, at his request, the court issued a limiting instruction before the introduction of those documents.

[¶7] Prior to trial when filing his proposed jury instructions, Mr. Dougherty requested the district court to give an instruction defining the word “presence” used in the charging statute, § 6–4–403(b)(iii). Citing a Florida case, Mr. Dougherty requested that the term “presence” be defined as “more than a child merely being in the vicinity where an indecent or obscene act occurs. A violation cannot occur unless a child sees or senses that a[n] indecent or obscene act is happening.” In opposition to this request, the State voiced its concerns about using a definition from a mid-level Florida court about a word that was not otherwise “unconstitutionally vague.” After trial and after the dismissal of the companion case, the court indicated that it would not provide the definition of the word “presence.” Mr. Dougherty objected but the court decision was made. The court stated that it did not feel that further instruction on the definition of the word would help the jury to better do its job.

[¶8] The jury returned a guilty verdict and the Court sentenced Mr. Dougherty to serve four to five years in prison. This appeal followed. Additional facts will be provided.

DISCUSSION

Jury Instructions

[¶9] Mr. Dougherty first argues on appeal that the trial court erred when it refused to instruct the jury on the definition of the term “presence” after first ruling that it would give the instruction. Mr. Dougherty argues that his trial strategy and specifically his cross-examination of the victim was tailored based upon the trial court's decision at the beginning of the trial to allow a jury instruction on the definition of the word “presence.” Dougherty argues that the ruling change effected a change of the elements in the statute and thus the presentation of his case was tailored to that earlier ruling.

[¶10] Regarding the proper standard of review on this issue, Mr. Dougherty submits that his argument involves review of an issue of law, but we disagree and conclude that abuse of discretion remains the correct standard under which to review his argument. We review a district court's decision on jury instructions for an abuse of discretion. Adekale v. State , 2015 WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015) (quoting Budder v. State , 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 2010) ). District courts have substantial latitude to tailor jury instructions to the facts of the case. Id. “A trial court does not abuse its discretion by referring the jury to instructions that, when viewed as whole and in the context of the entire trial, fairly and adequately cover the issues.” Id.

[¶11] The following is also instructive when reviewing a district court's decision regarding jury instructions:

When we review claims of error involving jury instructions, the district court is afforded significant deference. Luedtke v. State , 2005 WY 98, ¶ 28, 117 P.3d 1227, 1232 (Wyo.2005). A district court is “given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found.” Id. (citations omitted); see also Hawes v. State , 2014 WY 127, ¶ 15, 335 P.3d 1073, 1078 (Wyo.2014). Its ruling on an instruction must be prejudicial to constitute reversible error. Heywood v. State , 2007 WY 149, ¶ 26, 170 P.3d 1227, 1234 (Wyo.2007) (citation omitted), abrogated on other grounds by Granzer v. State , 2008 WY 118, 193 P.3d 266 (Wyo.2008). Because the purpose of jury instructions is to provide guidance on the applicable law, prejudice will result when the instructions confuse or mislead the jury. Id.

Brown v. State , 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 2015).

[¶12] Upon filing his proposed jury instructions, Mr. Dougherty asked that the court define the word “presence,” as it is used in § 6–4–403(b)(iii), as “more than a child merely being in the vicinity where an indecent or obscene act occurs. A violation cannot occur unless a child sees or senses that a[n] indecent or obscene act is happening.” After approving Mr. Dougherty's proposal before trial, at the close of evidence, as the district court was sifting through jury instructions, it inquired about the instruction that defined the word “presence.” Specifically, the court's colloquy went as follows:

The Court: ... [Defense Counsel], you proposed an instruction follow [ing] the analysis set forth in Warner v. Florida . In my interpretation of your proposal of that particular instruction was that it was targeted a lot more at the now-dismissed docket than it was at this docket. But tell me your position on that proposed instruction at this time.

[Defense counsel]: Your Honor, I still believe strongly in the definition. I think it should be used in the jury instruction. I'm sure the State is confident that they have evidence that the child saw or sensed it.

...

[Prosecutor]: Well, Your Honor, we would respectfully object to that instruction. And I mean no disrespect. We don't believe that is the law. Just as we argued in that 191 docket, so we would make the same argument in this docket. Thank you.

The Court: ... The Court is not going to, in this docket, deliver this instruction to the jury. I don't think it helps the jury do their job. I don't think it adds anything, and it won't be numbered and it won't be delivered to the jury.

[¶13] In consideration of whether it was error for the court to reverse its earlier ruling on the proposed definition we begin with our own case law. This Court has said, “In general, a court should honor its earlier rulings unless there is a legitimate reason not to do so.” Daniels v. State , 2014 WY 125, ¶ 13, 335 P.3d 483, 487 (Wyo. 2014). Other cases, while not directly on point, have observed lower courts changing a ruling mid-trial. Mr. Dougherty directs us to Munoz v. State , 2013 WY 94, ¶ 16, 307 P.3d 829, 834 (Wyo. 2013). There, this Court found that the reversal of a pre-trial W.R.E. 404(b) ruling mid-trial deprived the defendant of his right to a fair trial. In comparison with the instant case, while the district court also changed its ruling, it explained its reasoning...