FAUBION v. The State Of Wyo.

• Decision Date: 18 June 2010
• Docket Number: Case Number: S-09-0076,S-09-0077
• Parties: JACK ELSWORTH FAUBION,Appellant(Defendant),v. THE STATE OF WYOMING,Appellee(Plaintiff).
• Court: Wyoming Supreme Court

2010 WY 79

JACK ELSWORTH FAUBION, Appellant(Defendant),

v. THE STATE OF WYOMING, Appellee(Plaintiff).

Case Number: S-09-0076

S-09-0077

Appeal From The District Court Of Campbell County

Decided: 06/18/2010

Representing Appellant:

Diane M. Lozano, State Public Defender; and Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee:

Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

APRIL TERM, A.D. 2010

Appeal from the District Court of Campbell County

The Honorable John C. Brackley, Judge

Representing Appellant:

Diane M. Lozano, State Public Defender; and Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee:

Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.

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

HILL, J^*., delivers the opinion of the Court; VOIGT, C.J., files as specially concurring opinion.

HILL, Justice.

[ 1]In these consolidated appeals, Appellant, Jack Elsworth Faubion (Faubion), challenges his ten convictions for third degree sexual assault.In Case No. S-09-0076, Faubion was convicted of four such counts after a trial to the court, sitting without a jury.In Case No. S-09-0077, with respect to an additional six counts that were charged at a later date, Faubion entered pleas of nolo contendere in accordance with W.R.Cr.P. 11(a)(1)(A).Wyo. Stat. Ann. 6-2-304(a) (LexisNexis 2009)¹ provides:

(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:

(i) and (ii) Repealed by Laws 2007, ch. 159, 3.

(iii) The actor subjects a victim to sexual contactunder any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vii) without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim.

Sexual contact is defined by statute as: touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts. Wyo. Stat. Ann. 6-2-301(a)(vi) (LexisNexis 2009). Intimate parts are defined as; the external genitalia, perineum, anus or pubes of any person or the breast of a female person. Wyo. Stat. Ann. 6-2-301(a)(ii) (LexisNexis 2009).Faubion was charged with sexual assaults which were committed under this statutory circumstance: The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit. Wyo. Stat. Ann. 6-2-303(a)(vi) (LexisNexis 2009). Position of authority is defined as: that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person. Wyo. Stat. Ann. 6-2-301(a)(iv) (LexisNexis 2009).

[ 2]Faubion contends that he did not hold a position of authority as contemplated by the applicable statute, and, hence, could not be found guilty under the factual circumstances of this case.Further, he contends that the district court erred by not considering the lesser included offense of sexual battery at the bench trial.

[ 3]We will affirm all of Faubion s convictions.

ISSUES

[ 4]Faubion provides this statement of the issues:

I.Did Faubion, a chiropractor, hold a position of authority causing the victims to submit to sexual contact?

II.Did the trial court err in not considering the lesser included offense of sexual battery in the bench trial?

The State rephrases the issues as follows:

I.Sufficient evidence was presented to allow the district court to find [Faubion] held a position of authority over his victims.

II.Using the plain error standard of review, the district court did not err in not considering the crime of sexual battery at the bench trial.

[ 5]The State posits a third issue in its brief that is not included in its statement of the issues.It contends that, with respect to the pleas of nolo contendere, Faubion did not preserve the issue of whether or not he was in a position of authority over his victims.Faubion addresses this contention in his reply brief.

FACTS AND PROCEEDINGS

[ 6]A detailed description of each of the eleven crimes is not relevant to our consideration of the substantive issues.Very briefly, Faubion was convicted of touching the breasts or pubes of his patients in the course of performing chiropractic treatment.

[ 7]Faubion did not deny that in the course of treating the victims at issue that he may well have inadvertently touched the breasts and/or pubes of these patients.In each instance, the patients testified that Faubion cupped, or groped, or otherwise touched their breasts (and in one case the pubes) as alleged in the complaints against him.The testimony of the victims was clear and unequivocal to that effect.The record reveals that many of these victims returned to Faubion one or more times after being touched in what they eventually came to discern as being an unlawful manner of touching.The record also revealed that Faubion s conduct was not called to the attention of law enforcement authorities until after the victims had compared notes, so to speak, about their treatment at Faubion s chiropractic office.

[ 8]As noted above, Faubion conceded that he may have made some incidental contact with the victims intimate parts, but, to the extent that may have happened, it was merely incidental to the treatment techniques that he used in his ordinary practice of chiropractic medicine and that the treatment techniques he used are usual in his individual practice and in chiropractic in general.Further, he denied that any of the touching was done with the intention of sexual arousal, gratification or abuse, although whether or not that was the case is not pursued as an issue in this appeal.Several victims testified to what could be viewed as inappropriate comments to patients such as calling one sexy, complimenting one on her youthfulness (despite being married and having children), and then asking her if she was going out to the bars to chase boys.

[ 9]Two other chiropractors testified as experts during the trial.The first was a chiropractor from Gillette with whom Faubion had worked earlier in his career.He testified that skin-on-skin touching was not customary in chiropractic practice in his experience (i.e., the patient s skin is always covered by clothing, or some other covering, at all times).A second chiropractor, from Oregon, testified as an expert and his view was that skin-on-skin contact was common, especially when making adjustments that require focused tactile acuity.That testimony included his opinion that in performing anterior rib adjustments it is often necessary to use skin-on-skin treatment.He also testified that it would not be uncommon for there to be incidental contact with a patient s breast tissue in the course of such treatments.However, he excluded such contacts as those described by Faubion s patients (cupping, groping, etc.).That expert also testified that when adjusting in the area of the complex of muscles, tendons, and joints associated with the groin, that some incidental/inadvertent contact with the pubes can occur.

DISCUSSION

Standard of Review

[ 10]The parties are not in accord as to what the standard of review should be in this case.Faubion perceives the issue as one of law because this Court is called upon to construe what the legislature intended when it wrote the statutes at issue, and especially the statute that uses the phrase position of authority. Thus, Faubion contends the issue is one of law and not of fact.The State, on the other hand, contends that Faubion is challenging the sufficiency of the evidence and the standard of review pertinent to that issue should be applied here.We conclude that both standards need to be applied in this case.

[ 11]To the extent we are called upon to construe the statute, we take note that [i]f a statute is clear and unambiguous we do not resort to the general principles of statutory construction. LM v. Laramie County Dept. of Family Servs. (In re MN), 2007 WY 189, 4, 171 P.3d 1077, 1080 (Wyo. 2007).Where a statute is unambiguous the rule of lenity has no role to play.Crain v. State, 2009 WY 128, 10, 218 P.3d 934, 940 (Wyo. 2009).

[ 12]The State contends that the issue is one of sufficiency of the evidence.To the extent the sufficiency of the evidence is called into question, we will apply this standard of review:

In discussing the facts of this case, we apply the principle that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised.We accept as true evidence favorable to the State; we disregard evidence favorable to the defendant in conflict with the State's evidence; and we afford to the State's evidence every favorable inference which may reasonably and fairly be drawn from it.Harvey v. State, Wyo., 596 P.2d 1386 (1979); Hovee v. State, Wyo., 596 P.2d 1127 (1979). Heretofore we have had occasion to apply these concepts only to cases tried before juries.We have no compunction, however, in joining other courts which have applied these concepts in trials to the court.Simmons v. State, 255 Ark. 82, 498 S.W.2d...