Jones v. State

Citation439 P.3d 753
Decision Date23 April 2019
Docket NumberS-18-0205
Parties Douglas Clayton JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Benjamin E. Fischer, Assistant Attorney General. Argument by Mr. Fischer.


FOX, Justice.

[¶1] A jury convicted Douglas Clayton Jones of three counts of second-degree sexual abuse of a minor and three counts of third-degree sexual abuse of a minor. He appeals his convictions, challenging the admission of recorded victim interviews and the sufficiency of the evidence. We affirm.

1. Did the district court abuse its discretion in admitting the victims’ prior consistent statements?
2. Was there sufficient evidence to support Mr. Jones’ convictions for second-degree sexual abuse of a minor?

[¶2] During a family camping trip, then nine-year-old A.B. told her mother, Amanda Phillips, that her grandfather, Mr. Jones, had touched her inappropriately. Ms. Phillips’ husband called her sister, Tanya Casanova, to tell her what A.B. had said because Ms. Casanova and her two daughters, eight-year-old E.C. and seven-year-old N.C., lived with Mr. Jones. Ms. Casanova testified that she spoke to her daughters, explaining the difference between a "good touch" and a "bad touch" and that no one should be touching their "private parts." When she asked if there was anything they needed to tell her, N.C. responded that she and "Papa" had a secret and that he had touched her "private parts." E.C. then told her that she and Papa had a secret too. Ms. Casanova testified that she did not ask them any more questions and separated them. After Mr. Jones and his wife left the house, Ms. Casanova called 911 to report the allegations.

[¶3] Consistent with "investigation protocol" when the alleged victims are children, law enforcement arranged for the Child Advocacy Project (CAP) to conduct separate interviews with the girls. During her interview, A.B. explained that Mr. Jones had "rub[bed] on her privates" and "put his whole finger in the hole [she] pee[d] out of" on the camping trip. He told her not to tell anyone. Initially, A.B. said Mr. Jones had never touched her like that before, but later in the interview remembered an incident where she had been sitting with Mr. Jones in his recliner with a blanket covering them. Mr. Jones had told her to look up at the ceiling and touched her "pee pee" underneath the blanket. She told the interviewer that her aunt had taken a picture of her and Mr. Jones while it was happening.

[¶4] E.C. told her interviewer that soon after she, her sister, and her mother moved in with Mr. Jones, "he started touching us in the no[-]no square." She said Mr. Jones usually touched her in his chair when there were other people in the room, but they could not see it because it happened underneath a blanket. She said Mr. Jones "rubbed" her with his hand under her pajamas and over her underwear. Mr. Jones told her, "[I]t’s our secret." Similarly, N.C. told her interviewer that Mr. Jones "touched the private spot [she went] pee with" under her underwear with his fingers. She said it happened in "his favorite chair" underneath a blanket. He also told her to keep it a secret.

[¶5] The State charged Mr. Jones with three counts of second-degree sexual abuse of a minor and three counts of third-degree sexual abuse of a minor.1 Mr. Jones requested a hearing to determine whether A.B., N.C., and E.C. were competent to testify and to explore whether "taint of outside suggestion" would influence their testimony because he had "some worry that the initial interview of E.C. and N.C. was leading on the part of Ms. Casanova." Defense counsel examined A.B., N.C., and E.C. about conversations they had with their mothers and among themselves related to the allegations against Mr. Jones. He questioned Ms. Casanova about what she said to N.C. and E.C. after learning of A.B.’s allegations and asked whether the girls had communicated with one another before their CAP interviews. She testified that N.C. and E.C. had "some contact" because they "live[d] together as a family," but that neither of them spoke to A.B. before their interviews. The court found all three girls competent to testify.2

[¶6] Before trial, Mr. Jones moved to exclude the recorded CAP interviews from evidence on grounds that they were hearsay and would amount to improper vouching for the girls’ credibility. The State argued the prior statements were admissible under W.R.E. 801(d)(1)(B) because they would be offered to rebut Mr. Jones’ charge of fabrication or improper influence. The court commented:

based upon what I heard in [pretrial] arguments in this case, in the competency hearing that was held with respect to all three of the alleged victims ..., reviewing what’s been offered and presented thus far, I think the Defense is asserting fabrication, perhaps improper influence. I remember questions relative to potential taint that [were] raised in the competency hearings and challenges to motive[.]

The court denied the motion without prejudice, telling defense counsel he could revisit the objection when the evidence was presented.

[¶7] At trial, Mr. Jones reserved his opening statement for his case-in-chief, and the State called A.B. as its first witness. She testified that Mr. Jones had touched her "private parts" that she "go[es] pee out of" during the camping trip and that he had been touching her under her pants in a photo of them sitting under a blanket in his chair. During cross-examination, defense counsel asked whether Mr. Jones had reprimanded her for scratching her "privates" on the camping trip before she alleged he had touched her inappropriately; whether she had ever been tempted to shift blame to another person; and whether she had "ever told something [she] later wished [she] could take back." He also asked her if she remembered when someone had first shown her the photograph of her sitting with Mr. Jones in his chair. She responded, "Yeah--ish" and said she believed it was after her CAP interview. Defense counsel asked whether she had previously said she "didn’t remember Papa touching [her] there until [she] saw the photograph," which she denied.

[¶8] N.C. testified that Mr. Jones "did stuff that ... he was not supposed to do. That was in the law." She said that when she sat with him in his chair he did something he "was not supposed to do ... to kids, but it’s like PB and J, but no jelly and the B is actually a P." She explained that "PB and J" meant "pee pee" and that Mr. Jones would "scratch" it and had told her to keep it a secret. When the prosecutor asked her to identify Mr. Jones she said, "I’m not allowed to look at him to help me focus." Defense counsel cross-examined N.C., asking who had told her not to look at Mr. Jones and whether they had helped her prepare to testify. He asked whether she had talked to her mother, the prosecutor, and the CAP interviewers about what Mr. Jones had done. He also asked her what her mother had said to her before she told her about Mr. Jones touching her.

[¶9] E.C. testified that Mr. Jones touched her "private part" underneath a blanket in his chair. He "always" told her not to tell her parents and that it was their "secret." During cross-examination, defense counsel asked who she had talked to about the case, what her mother said to her and N.C. before they told her about Mr. Jones touching them, and whether she did things to try to please her mother.

[¶10] The girls’ mothers also testified. During Ms. Phillips’ cross-examination, defense counsel questioned her about her own history of sexual abuse and how it influenced raising her children. She talked to her children about "good touching" and "bad touching" "at least once a year" and had encouraged them to tell her about any inappropriate touching "since they were, like, in kindergarten." He also asked whether her sister, Ms. Casanova, "wanted attention," to which she responded, "She can be a bit ... on the dramatic side." During Ms. Casanova’s cross-examination, defense counsel asked when and to whom she had shown the photograph of A.B. sitting on Mr. Jones’ lap. She initially responded that she had shown the photograph to her sister and law enforcement after the CAP interview, but then said she was "mistaken on the dates" and must have shown it to them before the interviews, ultimately testifying she was "not exactly sure when [she] shared" the photograph but believed it was before the interviews. He also questioned her about what she had told her children about testifying.

[¶11] Following the testimony of the three girls and their mothers, the State moved to admit the redacted recordings of the CAP interviews over Mr. Jones’ continuing objection. The court reviewed the three recordings before overruling Mr. Jones’ objection, saying

I’m going to still conclude that Rule 801(d)(1)(B) of the Wyoming Rules of Evidence applies, and it provides that some prior consistent statements are not hearsay.... I think that we do have, first, that all three declarants have testified at trial, all three have been subject to cross-examination concerning prior statements.
... And then we have these excerpts, which are, as I see it, prior statements that are consistent with the testimony.
I have to agree that there’s some additional detail, some additional matters; but under the Lancaster versus State case, it has been held that prior consistent statement does not have to be identical to the declarant’s trial testimony to be admissible under Rule 801(d)(1)(B). So we may have some variation, but the gist of

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