Ingersoll v. State
| Decision Date | 16 June 2022 |
| Docket Number | S-21-0226 |
| Parties | David Edward INGERSOLL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, and GRAY, JJ., and KRICKEN, D.J.
[¶1] David Edward Ingersoll was convicted by a jury of sexual abuse of a minor in the second degree. He argues plain error occurred at trial when several State witnesses vouched for the credibility of other State witnesses and/or offered opinions of his guilt. We affirm.
[¶2] Mr. Ingersoll raises two issues, which we restate as follows:
[¶3] In April or May 2019, Mr. Ingersoll met SS, his cousin, at a family funeral. Mr. Ingersoll was forty-eight years old; SS was fifteen. Mr. Ingersoll gave SS a ride from the funeral service to the graveyard. After the funeral, Mr. Ingersoll and SS communicated every day via various social media. Mr. Ingersoll told SS he loved her; "[he would] marry her;" "[he would] have sex with [her] every night;" and "he [would] have kids with [her]." SS posted a picture on social media showing her with Mr. Ingersoll and referring to him as her "best friend."
[¶4] Around July 4, 2019, SS was at Walmart with her parents and her older sister, VL, when they encountered Mr. Ingersoll and engaged in friendly conversation. SS subsequently left her family to go to the electronics and toy departments; Mr. Ingersoll followed her. As SS walked by the family bathroom, Mr. Ingersoll pulled her into the bathroom; kissed her; and penetrated her vagina with his penis, causing her to bleed. When he was finished, Mr. Ingersoll told SS to hide behind the bathroom door and let him leave first. After SS left the bathroom, VL called her on her cellphone and said the family was waiting for her in the car. SS returned to the family's car. Mr. Ingersoll texted SS and told her not to reveal the bathroom incident to anyone. When SS told him she was bleeding, Mr. Ingersoll advised her to report it was her menstrual period.
[¶5] Later that evening or the next day, SS told VL she "had sex" with Mr. Ingersoll in the bathroom at Walmart and she was bleeding. VL told their mother, but their mother did not believe VL. SS informed their mother about the bleeding but did not reveal the bathroom incident. About a week later, on July 12, 2019, their mother took SS to the doctor for the bleeding. Because SS told the doctor she did not have sex, the doctor did not perform a sexual assault examination.
[¶6] Three days later, on July 15, 2019, VL told her counselor, Jennifer Banks, that SS said she had sex with Mr. Ingersoll in the Walmart bathroom. Ms. Banks, who was also SS's counselor, confronted SS; SS denied having sex with Mr. Ingersoll. Nevertheless, Ms. Banks reported the allegations to the Department of Family Services (DFS), which reported it to the Sheridan Police Department. A week later, Sergeant James Hill and a DFS caseworker interviewed SS, who admitted she was friends with Mr. Ingersoll but denied any sexual contact occurred at Walmart.
Sergeant Hill suspended his investigation.
[¶7] In October 2019, SS gave her teacher a letter detailing the sexual encounter with Mr. Ingersoll in the Walmart bathroom. The teacher informed SS's parents and school staff about the letter, and the staff reported it to Sergeant Hill. SS also wrote a letter to her mother describing the encounter and apologizing for lying. Sergeant Hill and the DFS caseworker interviewed SS a second time. This time, SS informed them Mr. Ingersoll had sex with her in the Walmart bathroom. Mr. Ingersoll was charged and convicted by a jury of second-degree sexual abuse of a minor in violation of Wyoming Statute § 6-2-315(a)(i) (LexisNexis 2021). The district court sentenced him to 16-20 years in prison. This appeal followed.
[¶8] At trial, SS, VL, Ms. Banks, and Sergeant Hill testified for the State. Mr. Ingersoll contends these witnesses impermissibly vouched for the credibility of other State witnesses and/or offered opinions of his guilt.
[¶9] "Evidentiary rulings are ... committed to the sound discretion of the district court and are not subject to appellate second guessing absent an abuse of discretion." Cazier v. State , 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo. 2006) (citing Lopez v. State, 2004 WY 103, ¶ 21, 98 P.3d 143, 149 (Wyo. 2004) ). In this case, however, because no objection was made to the subject testimony, our review is for plain error. Id. To satisfy the plain error standard, Mr. Ingersoll " ‘must show (1) the record is clear about the incident alleged as error; (2) a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial right resulting in material prejudice.’ " Mendoza v. State , 2021 WY 127, ¶ 12, 498 P.3d 82, 85 (Wyo. 2021) (quoting Ridinger v. State , 2021 WY 4, ¶ 33, 478 P.3d 1160, 1168 (Wyo. 2021) ) (other citation omitted).
[¶10] The first prong of plain error review is satisfied because the alleged improper testimony is clearly reflected in the record. Id. , ¶ 13, 498 P.3d at 85. To satisfy the second prong of plain error review, Mr. Ingersoll " ‘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.’ " Ridinger , ¶ 34, 478 P.3d at 1168 (quoting Brown v. State , 2019 WY 102, ¶ 13, 450 P.3d 208, 211 (Wyo. 2019) ). As we will explain, Mr. Ingersoll did not meet his burden on the second prong with respect to any of the subject testimony. Therefore, we need not address the third prong. Id. , ¶ 43, 478 P.3d at 1170.
[¶11] At trial, SS told the jury about meeting Mr. Ingersoll at the funeral and their subsequent communications over social media. She recounted him pulling her into the Walmart bathroom and penetrating her vagina with his penis. She explained to the jury that she initially denied the sexual abuse occurred to avoid getting him in trouble. However, she eventually wrote letters to her teacher and her mother describing the abuse. With respect to the letter to her mother, the following exchange occurred between SS and the prosecutor:
(Emphasis added). After writing the letters to her teacher and mother, SS testified she disclosed the Walmart incident to Sergeant Hill.
[¶12] Mr. Ingersoll claims SS improperly vouched for VL's credibility when she told the jury that, after reading her letter, her mother "finally believed [VL]." "It is settled law that ‘[a] witness may not comment on the truthfulness or veracity of another witness.’ " Fairbourn v. State , 2020 WY 73, ¶ 85, 465 P.3d 413, 432 (Wyo. 2020) (quoting McGinn v. State , 2015 WY 140, ¶ 14, 361 P.3d 295, 299 (Wyo. 2015) ) (other citations omitted).
The purpose of this rule is to preserve the integrity of the jury process by protecting the jury's right to act as the final determiner of the credibility of the witnesses. We have stated, however, that a trial court does not necessarily commit plain error when it allows testimony which illuminates some aspect of the case even though the testimony incidentally bolsters the credibility of another witness.
Strickland v. State , 2004 WY 91, ¶ 22, 94 P.3d 1034, 1045-46 (Wyo. 2004) (quoting Blumhagen v. State , 11 P.3d 889, 894 (Wyo. 2000) ) (internal citations omitted).
[¶13] SS did not improperly comment on VL's credibility or encroach on the jury's duty to determine VL's credibility. SS did not testify VL was truthful or that her mother believed VL because VL was a truthful person. SS simply described the effect of her letter on her mother. Placed in context with the remainder of SS's testimony, this testimony "illuminate[d]" the course of events, from SS's initial disclosure to VL; her subsequent denials to her mother and Ms. Banks; and finally her disclosure of the sexual encounter to her teacher, her mother, and Sergeant Hill. Any effect SS's testimony may have had on VL's credibility "was purely incidental and ... not plain error." Garriott v. State , 2018 WY 4, ¶ 43, 408 P.3d 771, 786 (Wyo. 2018). See also, Byerly v. State , 2019 WY 130, ¶ 27, 455 P.3d 232, 243 (Wyo. 2019) .
[¶14] VL testified that after the family returned home from Walmart, SS was "nervous and shaky and scared and her eyes were watering." When VL asked what was wrong, SS said she was bleeding. VL responded, "Oh, it must be your period." The next day, SS told VL, "I only bled for a day, sis." VL told the jury:
And, I was like, "How is that possible?" The only way that would have happened if you only bled for a day is one thing you're spotting, or, two, you had intercourse and you stretched yourself to where you bled. And those are the only explanations, but yet she...
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