Harnetty v. State, S-18-0129

• Decision Date: 27 February 2019
• Docket Number: S-18-0129
• Citation: 435 P.3d 368
• Parties: Paul Michael HARNETTY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

435 P.3d 368

Paul Michael HARNETTY, Appellant (Defendant),

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

S-18-0129

Supreme Court of Wyoming.

February 27, 2019

Representing Appellant: Linda Devine, Devine Law Office, Laramie, Wyoming; Timothy K. Newcomb, Appellate Consultation, Laramie Wyoming. Argument by Ms. Devine.

Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Russell W. Farr, Senior Assistant Attorney General; Caitlin F. Harper, Senior Assistant Attorney General. Argument by Mr. Farr.

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

FOX, Justice.

[¶1] Paul Michael Harnetty was an OB/GYN in Casper, Wyoming. A jury convicted him of sexually assaulting two of his patients. He contends that there was insufficient evidence to convict him, the district court erred when it denied his proposed theory of defense instruction, and the court erred when it denied his W.R.Cr.P. 34 motion for arrest of judgment. We affirm.

ISSUES

[¶2] We rephrase the issues as:

1. Did the State present sufficient evidence that Dr. Harnetty was in a "position of authority"?¹

2. Did the district court err when it rejected Dr. Harnetty’s proposed theory of defense instruction that asked the court to instruct the jury on a different crime than the one the State had charged?

3. Did the district court err when it denied Dr. Harnetty’s post-trial motion for arrest of judgment?

FACTS

[¶3] Dr. Harnetty was an OB/GYN at Community Health Center in Casper, Wyoming. He was K.L.’s and K.C.’s doctor while both were pregnant.

K.L.’s Testimony

[¶4] Dr. Harnetty delivered K.L.’s first child in 2013. K.L. became pregnant with her second child in April 2015 and continued to see Dr. Harnetty. Approximately four months into her pregnancy, during a regular checkup, Dr. Harnetty rubbed his clothed "genitals against [K.L.’s], put his hand on [her] stomach, and made a comment about how pregnant women turn him on."

[¶5] At a later appointment, K.L. brought her friend along "just to be on the safe side[.]" When Dr. Harnetty first walked into the examination room and saw K.L.’s friend, he asked if K.L. and her friend had ever been intimate together and whether the two of them would be interested in having sexual relations with him.

[¶6] Later, on approximately August 17, 2015, K.L. had another appointment with Dr. Harnetty to discuss the results of her ultrasound. Dr. Harnetty wanted to check her cervix to see if K.L. had "started dilating." While Dr. Harnetty was checking K.L.’s cervix, she "felt his hand turn, and then he started ... rubbing [her] clitoris with his thumb in a very caressing way." After K.L. gave him a concerned look, Dr. Harnetty then "turned his hand again and stuck one of his fingers up [her] anus." K.L. testified that she had never before had a "rectal exam done by an OB/GYN." Dr. Harnetty’s actions left K.L. "shocked" and wondering "what the hell just happened." K.L. attempted to get another OB/GYN, but could not "because [of her Medicaid] insurance or because of how far along [she] was." She even considered using a midwife, but because she had needed an emergency C-section with her first child, K.L. continued to see Dr. Harnetty.

[¶7] Near the end of her pregnancy, in approximately October 2015, K.L. saw Dr. Harnetty for another checkup, and Dr. Harnetty wanted to check her cervix. Again, Dr. Harnetty "stuck two fingers up [her] anus." K.L. looked at Dr. Harnetty before he left the room and he told her, "I just like to watch the expression on your face." K.L. testified that, at other appointments, Dr. Harnetty would grab her breasts over her shirt, "grope" her buttocks, and tell her that "he wanted to get [her] pregnant."

[¶8] During the pregnancy, K.L. learned she had low amniotic fluid. Dr. Harnetty told her that she had a "high-risk" pregnancy because of her amniotic fluid. After she had an ultrasound, she received a call from Community Health in which they told her that "[W]e see some concerns, so you need to come in this afternoon." K.L. rushed to the office, "freaking out" and crying, only to have Dr. Harnetty tell her that he "just wanted to see [her]." After K.L. called Community Health and complained about Dr. Harnetty, they found another doctor for her. The new doctor informed her that she did not have a high-risk pregnancy, but rather, "a perfect, normal pregnancy" and did not "check [her] cervix once."

K.C.’s Testimony

[¶9] K.C. also saw Dr. Harnetty at Community Health for her pregnancy. She was pregnant with twins and had a "high-risk" pregnancy. During an exam in October 2013, the "first exam," K.C. testified that Dr. Harnetty did a pelvic exam

, and instead of focusing on her cervix or uterus, Dr. Harnetty used his thumb to "rub[ ] [her] clitoris back and forth" for around three to four minutes. K.C. felt like Dr. Harnetty was "trying to arouse [her] instead of focus[ing] on the" purpose of the exam.

[¶10] At another exam in December 2013, or January 2014, the "last exam," K.C. testified that Dr. Harnetty examined her again to "check on [her] contractions." And, again, Dr. Harnetty focused instead on "rubbing against [her] clitoris." K.C. testified that she was "scared." K.C. had never had an OB/GYN rub or touch her clitoris during an exam.

[¶11] K.C. explained that she undressed and allowed Dr. Harnetty to do the exams on her because he was the doctor and "you kind of have to." While he was rubbing her clitoris, she knew "something" was "wrong" but didn’t know how to stop it because of the "delicate situation [of] being pregnant" and because she had a high-risk pregnancy. She felt like she had to "get through" it. She would not have let Dr. Harnetty do these things to her if "he wasn’t [her] doctor."

The Charges, Verdict, and Sentence

[¶12] The State initially charged Dr. Harnetty with three counts of second-degree sexual assault and one count of third-degree sexual assault against K.L., and three counts of second-degree sexual assault against K.C.² The State charged the second-degree sexual assaults under Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2013), the "position of authority" subsection:

(a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:

(vi) The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit[.]

[¶13] At the beginning of the trial, the district court raised concerns with Counts 7 and 8 because they contained identical language. Both concerned second-degree sexual assaults of K.C. On the second day of trial, the State moved to amend Count 7 as the "first time" and Count 8 as the "last time." Dr. Harnetty objected given the late stage of the proceedings. The district court took the matter under advisement. On the fourth day of trial, the State and Dr. Harnetty agreed the State would dismiss Count 7 and "Count Eight [would] be amended as [the State] requested of the Court." The court granted that motion.

[¶14] The jury convicted Dr. Harnetty of one count of second-degree sexual assault against K.L. (Count 6), and one count of second-degree sexual assault against K.C. (Count 8). The district court sentenced him to consecutive terms of ten to fifteen years on each count. Additional facts and proceedings are discussed below as necessary.

DISCUSSION

I. The State presented sufficient evidence that Dr. Harnetty was in a position of authority

[¶15] Dr. Harnetty contends that the State did not present sufficient evidence he was in a position of authority. He argues the legislature did not intend to include an OB/GYN within the "position of authority" subsection of the sexual assault statutes.

A. Standard of Review

[¶16] To evaluate whether the State provided sufficient evidence to meet its burden, we " ‘examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom.’ "

Kite v. State , 2018 WY 94, ¶ 35, 424 P.3d 255, 265 (Wyo. 2018) (quoting Pearson v. State , 2017 WY 19, ¶ 10, 389 P.3d 794, 796 (Wyo. 2017) ). "We disregard any evidence that conflicts with the State’s evidence." Villarreal v. State , 2017 WY 81, ¶ 26, 398 P.3d 512, 520 (Wyo. 2017) (citing Pena v. State , 2015 WY 149, ¶ 16, 361 P.3d 862, 866 (Wyo. 2015) ). After examining the State’s evidence, whether direct or circumstantial, the sole inquiry is "whether a rational trier of fact could find that the essential elements of a crime were proven beyond a reasonable doubt." Flores v. State , 2017 WY 120, ¶ 12, 403 P.3d 993, 996 (Wyo. 2017) ; see also Villarreal , 2017 WY 81, ¶ 26, 398 P.3d at 520.

B. An OB/GYN is in a position of authority over patients during an examination

[¶17] Under the second-degree sexual assault statute at issue, the State had to prove Dr. Harnetty inflicted sexual intrusion on K.L. and K.C. while in a position of authority and that he used that authority to cause the victims to submit. Wyo. Stat. Ann. § 6-2-303(a)(vi). "Position of authority" is defined as:

[T]hat 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). Dr. Harnetty does not fall within the enumerated categories. The issue is whether an OB/GYN is "by reason of his position, [ ] able to exercise significant influence over a [patient]."

[¶18] The term "authority" as used in the statute "mean[s] an externally granted power, not a self-generated control." Scadden v. State , 732 P.2d 1036, 1042 (Wyo. 1987). "Wyoming’s statute is exceptionally inclusive both as written and as construed in Scadden ." Faubion v. State , 2010 WY 79, ¶ 19, 233 P.3d 926, 931 (Wyo. 2010). We have previously determined the extent to which the "position of authority" statute applies to those in the medical, or a...