King v. State
| Docket Number | S-22-0190 |
| Decision Date | 21 April 2023 |
| Citation | 527 P.3d 1229 |
| Parties | Ronald Leroy KING, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] A jury found Ronald Leroy King guilty of immodest, immoral, and indecent liberties with a minor, third-degree sexual assault, and first-degree sexual abuse of a minor. He argues the State presented insufficient evidence at trial to support his third-degree sexual assault conviction and prosecutorial misconduct permeated the trial. We affirm.
[¶2] Mr. King raises two issues which we restate as four:
[¶3] MI and JC are sisters. They grew up in Gillette with their father, MC, and mother, TC, who were best friends with Mr. King and his wife (now ex-wife), Diane King, n/k/a Diane Riley (Ms. King). MI and JC called the Kings "Uncle Ron" and "Aunt Diane."
[¶4] In 1999, when MI was 9 years old and Mr. King was 48 years old, MI would sometimes spend the night at the Kings’ house on Greensburgh Avenue in the Sleepy Hollow subdivision. At first, Mr. King treated MI "really well," buying her candy and renting the newest video games and movies for her to play and watch. He eventually began sitting on the Kings’ fireplace with his sweatpants pulled down, exposing his penis to MI. One night, when she was 11 years old, MI was laying on the Kings’ green couch watching a movie. Mr. King crawled behind her and placed her hand on his "hard" penis for a couple of minutes. Mr. King's breath smelled like cigarettes and cinnamon coffee, which made MI "sick." Mr. King told MI not to tell anyone what had happened, "it was our secret," and "[j]ust remember, I know where you live." MI did not tell anyone about the abuse. In March or April 2001, the Kings moved to Michigan.
[¶5] In April or May 2007, the Kings returned to Gillette and lived with MI and JC's family for a few months. One day, while MI was making a sandwich in the kitchen, Mr. King came into the kitchen, cornered MI, got down on his knees, placed his face into MI's "crotch," and whispered "[o]ne day this is going to be mine." Mr. King stood up, grabbed MI's hand, and placed it on his clothed penis. MI ran away crying and called a friend to pick her up. Again, MI did not tell anyone what happened. The Kings moved out of MI's and JC's home to a townhome on Oregon Avenue in the Westover subdivision.
[¶6] Later that summer, JC, then 12 years old, went to the Kings’ townhome to babysit their grandchildren who were visiting for the summer. When JC and Mr. King (then about 56 years old) were sitting at the dining room table, Mr. King leaned over and told JC, "it would make him pleasurable if he could get [her] wet." Later, while JC was laying on the Kings’ couch, Mr. King crawled over her and pulled her pants down. He "rough[ly]" shoved two of his fingers inside her vagina and moved them in and out. Mr. King told her if she told anyone about the abuse, he would kill her. JC told her parents, but they did not believe her.
[¶7] Twelve years later, in September 2019, Ms. King called MI and asked her if Mr. King had ever touched her. MI broke down crying and told Ms. King that was the reason she stopped going to the Kings’ house. MI called JC, who said Mr. King had also sexually abused her. MI and JC reported the abuse to Troy Hipsag, an investigating officer with the Campbell County Sheriff's Office.
[¶8] Officer Hipsag and his supervisor, Sergeant Janaia Hyland, interviewed Mr. King. Mr. King denied all wrongdoing. However, each time he was confronted with the accusations against him, Mr. King leaned in and said, "I'm sorry, I didn't [or can't] hear you." He never had any difficulty hearing the officers except when asked about the abuse. Mr. King confirmed to the officers "he had a taste for cinnamon" and "sometimes put cinnamon in [his] coffee."
[¶9] The State charged Mr. King with: (a) three counts of taking immodest, immoral, or indecent liberties (indecent liberties) with a child in violation of Wyo. Stat. Ann. § 14-3-105(a) (repealed in 2007) for exposing his penis to MI "[o]n or between November 1999 [and] February 2001," placing his face into MI's clothed pubic area "[o]n or between May 2007 [and] September 2007," and forcing MI to touch his clothed penis "[o]n or between May 2007 [and] September 2007"; (b) one count of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii) (repealed in 2007) for forcing MI to touch/stroke his penis "[o]n or between December 2000 [and] February 2001"; and (c) one count of first-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) (LexisNexis 2021) for digitally penetrating JC's vagina "[o]n or between July 14, 2007 [and] September 1, 2007."1 At the close of the State's trial evidence, the district court granted Mr. King's motion for judgment of acquittal on the two indecent liberties counts relating to his placing his face into MI's clothed pubic area and forcing her to touch his clothed penis on or between May 2007 and September 2007.2 The jury found him guilty of the remaining counts. The court sentenced Mr. King to 8-10 years in prison on the indecent liberties conviction (exposing his penis to MI on or between November 1999 and February 2001), a concurrent sentence of 12-15 years in prison on the third-degree sexual assault conviction (forcing MI to touch/stroke his penis on or between December 2000 and February 2001), and a consecutive sentence of 25-30 years imprisonment on the first-degree sexual abuse of a minor conviction (digitally penetrating JC's vagina on or between July 14, 2007, and September 1, 2007). Mr. King timely appealed.
Ogden v. State , 2022 WY 111, ¶ 13, 516 P.3d 870, 874 (Wyo. 2022).
[¶11] The State charged Mr. King with committing third-degree sexual assault by forcing MI to touch/stroke his penis "on or between December 2000 [and] February 2001." The district court instructed the jury that to find Mr. King guilty of third-degree sexual assault, it had to find beyond a reasonable doubt, inter alia , the assault occurred "[o]n or between December 2000 and February 2001." The jury was also told:
[¶12] Mr. King argues the trial evidence was insufficient to establish he forced MI to touch/stroke his penis on or between December 2000 and February 2001 because MI testified on direct examination and confirmed on cross examination that this incident occurred in 1999 when she was 9 years old. Mr. King accurately recounts MI's testimony on direct and cross examination. However, MI clarified on re-direct that Mr. King forcing her to touch/stroke his penis could have occurred between December 2000 and February 2001 when she was 11 years old. Mr. King acknowledges MI's testimony on re-direct but claims we cannot rely on it because to do so would require us to completely disregard her testimony on direct. According to him, "[b]oth cannot hold true at the same time—that the State's evidence in direct was true, and the State's evidence in redirect was true."
[¶13] MI's testimony on direct and cross examination was inconsistent with her re-direct testimony. Such inconsistency is not surprising given MI's young age at the time of the abuse and the lapse of over twenty years between the abuse and the March 2022 trial. Cf. Craft v. State , 2013 WY 41, ¶ 25, 298 P.3d 825, 832 (Wyo. 2013) ( ). Any inconsistency, however, was for...
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