Lajeunesse v. State

• Decision Date: 03 March 2020
• Docket Number: S-19-0024
• Parties: Joseph D. LAJEUNESSE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

458 P.3d 1213

Joseph D. LAJEUNESSE, Appellant (Defendant),

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

S-19-0024

Supreme Court of Wyoming.

March 3, 2020

Representing Appellant: Robert J. O’Neil, Robert J. O’Neil, PC, Gillette, Wyoming. Argument by Mr. O’Neil.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.

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

GRAY, Justice.

[¶1] Joseph LaJeunesse was convicted of two counts of sexual intrusion on a victim under Wyo. Stat. Ann. § 6-2-314(a)(i) (actor sixteen or older and victim under thirteen). He appeals his convictions claiming the district court improperly admitted testimony of other wrongs or acts under W.R.E. Rule 404(b) and improperly admitted testimony about the victim’s earlier statements to a forensic interviewer under W.R.E. Rule 801(d)(1)(B). He also contends the district court erred in allowing the State to amend the charging documents at the end of the State’s presentation of evidence, and this error denied him the opportunity to effectively cross-examine witnesses in violation of the Confrontation Clause of the United States and Wyoming Constitutions. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court err when it admitted W.R.E. Rule 404(b) evidence at trial?

2. Did the district court err when it admitted testimony under W.R.E. Rule 801(d)(1)(B) at trial?

3. Did the district court err when it allowed the State to amend the Felony Information after the State had presented its witnesses?

FACTS

[¶3] In 2015, when C.L. was seven years old, she, her parents, and her three siblings moved from Colorado to Gillette, Wyoming. The family lived with Mother’s parents in a two-bedroom apartment on Stanley Street. C.L. lived in the apartment until May 31, 2016, when she was taken into custody by the Department of Family Services for reasons unrelated to this appeal.

[¶4] During two forensic interviews conducted while C.L. was in State custody, C.L. described times where her father, Mr. LaJeunesse, initiated sexual contact with her. These events occurred after the family moved from Colorado to Stanley Street. The first incident occurred when C.L. was taking a shower. She reported that Mr. LaJeunesse entered the bathroom, shut the door, and knelt by the tub. He then licked C.L.’s vaginal area. The second incident occurred while C.L. was taking a nap. Her father climbed onto the top bunk bed where C.L. was resting. He removed her pajama bottoms and underwear, and "[p]ut his private in [her] bottom."

[¶5] An arrest warrant was issued for Mr. LaJeunesse on January 31, 2017, charging him with two counts of first-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-314(a)(i), (c). After a three-day trial, a jury found Mr. LaJeunesse guilty of both counts. The district court sentenced him to not less than thirty years in prison on each count to run consecutively. Mr. LaJeunesse timely appeals.

Procedural History

[¶6] Prior to trial, the State notified Mr. LaJeunesse it would seek admission of W.R.E. Rule 404(b) evidence. The State planned to present testimony from Mr. LaJeunesse’s three adult nieces about sexual encounters with Mr. LaJeunesse when the nieces were children in the late 1990s.¹ Mr. LaJeunesse objected, claiming the proposed 404(b) evidence was not offered for a proper purpose under the rule, and it was more prejudicial than probative. The district court heard arguments and received exhibits on the question of the admissibility of this evidence. It found that, although a close call, the probative value of the evidence outweighed the potential for unfair prejudice—"provided the State limits the testimony of the nieces so as to prevent it from becoming unnecessarily cumulative." It then admitted the testimony of these witnesses for the purpose of establishing motive as allowed by the rule. The district court ordered that a limiting instruction be given to the jury prior to the testimony at trial and required the parties to stipulate to an instruction or to propose their own. On appeal, Mr. LaJeunesse claims the alleged incidents were inadmissible because they were too remote in time and dissimilar from the current charges.

[¶7] Mr. LaJeunesse also objected to the district court’s admission of the testimony of forensic examiner, Brandi Tonkel, about statements made by C.L. during forensic interviews. After defense counsel made opening statement and C.L. had testified, the State moved to admit Ms. Tonkel’s testimony as evidence of C.L.’s prior consistent statements under W.R.E. Rule 801(d)(1)(B). Mr. LaJeunesse argued neither the defense opening statement or cross-examination of C.L. raised an express or implied charge that C.L.’s testimony was the result of recent fabrication, improper influence, or motive. The district court allowed the testimony, and Mr. LaJeunesse renews his argument on appeal.

[¶8] At the close of the State’s presentation of evidence, the State moved to amend the dates set forth in the Felony Information. The Felony Information originally alleged the crimes occurred between December 1, 2015, and May 31, 2016, based on information provided by C.L.’s grandmother. The State later learned from C.L.’s grandfather that C.L. and her family took up residence in the Stanley apartment around March 10, 2015. The State moved to amend the Information to conform to the evidence presented at trial. At trial, Mr. LaJeunesse objected, claiming an amendment at this stage of the trial prevented him from bringing alibi witnesses for the expanded period of time and violated his due process right to notice of the charges against him. He asked for a continuance. The district court denied Mr. LaJeunesse’s request for a continuance and allowed the amendment. On appeal, Mr. LaJeunesse abandons his argument relating to alibi witnesses. He claims the amendment was untimely, and he was substantially prejudiced because it denied him the opportunity to effectively cross-examine C.L. and Ms. Tonkel, the only two substantive witnesses at trial.

STANDARD OF REVIEW

[¶9] In his first two issues, Mr. LaJeunesse contends the district court erred when it admitted testimony under W.R.E. Rules 404(b) and 801(d)(1)(B). This Court reviews alleged errors in the admission of evidence for an abuse of discretion. Hutchinson v. Taft , 2010 WY 5, ¶ 27, 222 P.3d 1250, 1257 (Wyo. 2010). "Determining whether the trial court abused its discretion involves the consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Ortiz v. State , 2014 WY 60, ¶ 67, 326 P.3d 883, 897 (Wyo. 2014) (citations omitted). "A trial court’s evidentiary rulings are entitled to considerable deference, and will not be reversed so long as there exists a legitimate basis for the trial court’s ruling." Id. (citation and internal quotation marks omitted).

I. Did the district court err when it admitted W.R.E. Rule 404(b) evidence at trial?

[¶10] Mr. LaJeunesse claims the district court abused its discretion when it allowed testimony alleging earlier acts of sexual abuse of his nieces when they were children under W.R.E. Rule 404(b). This rule provides:

(b) Other crimes, wrongs, or acts. —Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident ....

W.R.E. Rule 404(b). District courts apply a mandatory test in determining the admissibility of W.R.E. Rule 404(b) evidence:

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Griggs v. State , 2016 WY 16, ¶ 128, 367 P.3d 1108, 1143 (Wyo. 2016) (citations omitted).

[¶11] "In Gleason [v. State , 2002 WY 161, ¶ 30, 57 P.3d 332, 343 (Wyo. 2002),] we set forth factors that the district court must examine to determine the admissibility of 404(b) evidence, and we required the court to articulate its findings." Garrison v. State , 2018 WY 9, ¶ 11, 409 P.3d 1209, 1213 (Wyo. 2018). We do not require the trial court to make express findings on each factor. Gleason v. State , 2002 WY 161, ¶ 28, 57 P.3d 332, 343 (Wyo. 2002). These Gleason factors are:

1. How clear is it that the defendant committed the prior bad act?

2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged crime and the prior bad act?

... The trial court should [then] weigh [the following] factors against the probative value of the evidence:

1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.

2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.

3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again.

4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a

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