Larkins v. State, S-17-0132

• Decision Date: 26 October 2018
• Docket Number: S-17-0133,S-18-0059,S-18-0061,S-18-0060,S-17-0134,S-17-0132
• Citation: 429 P.3d 28
• Parties: Dennis LARKINS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Emily Larkins, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

429 P.3d 28

Dennis LARKINS, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

Emily Larkins, Appellant (Defendant),
v.
The State of Wyoming, Appellee (Plaintiff).

S-17-0132
S-17-0133
S-18-0060
S-18-0061
S-17-0134
S-18-0059

Supreme Court of Wyoming.

October 26, 2018

Representing Appellant Dennis Larkins in Case Nos. S-17-0132, S-17-0133, S-18-0060, S-18-0061: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Christopher G. Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

Representing Appellant Emily Larkins in Case Nos. S-17-0134, S-18-0059: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee State of Wyoming: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Samuel L. Williams, Assistant Attorney General. Argument by Mr. Williams.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

FOX, Justice.

¶1] A jury convicted Dennis Larkins and Emily Larkins of multiple counts of child abuse and one count of abuse of a vulnerable adult. On appeal, they contend that the evidence was insufficient as to some of the counts, that the district court erred when it denied their motion for new trial based on ineffective assistance of counsel, and that the prosecutor committed misconduct during closing argument which warrants reversal. Finding no reversible error, we affirm.

ISSUES

[¶2] Mr. Larkins and Mrs. Larkins raise three interrelated issues on appeal, which we rephrase:

1. Did the State present sufficient evidence:

a. that Mr. Larkins caused physical injury to J.K. and J.T.?

b. that Mr. Larkins and Mrs. Larkins caused mental injury to J.T. and M.D.T.?

c. that Jesus Manzanares was a vulnerable adult?

2. Did the district court err when it denied the Larkins’ Rule 21 motions for a new trial?

3. Did the prosecutor commit misconduct during closing argument which requires reversal?

FACTS

I. Trial Proceedings and Relevant Testimony

[¶3] Jesus Manzanares, M.D.T., J.T., and M.M.T. are the biological children of Mrs. Larkins’ sister, Laura Trujillo, who lives in Colorado. Authorities in Colorado removed the minor children from Ms. Trujillo and placed them with Mrs. Larkins (M.D.T. in 1998; M.M.T. and J.T. in 2007). Jesus Manzanares moved in with the Larkins in 2011. He turned 18 on January 25, 2012. Another child, J.K., and his mother, lived with the Larkins for approximately six months in 2010 and 2011.¹

[429 P.3d 34

A. The Mental and Physical Injuries to J.T.

¶4] When they lived on 10th Street, Mr. Larkins and Mrs. Larkins would punish J.T. by requiring him to hold onto the washer and dryer while Mr. Larkins and Mrs. Larkins spanked him. They would either use a "brown belt or the black belt." Mrs. Larkins would use both belts to spank J.T., while Mr. Larkins would "sometimes" use the black belt. When Mr. Larkins and Mrs. Larkins used the belts to spank J.T., it would leave bruises on J.T.’s bottom, back, and legs.

[¶5] Occasionally, Mrs. Larkins would wet the belt with water before hitting J.T. with it. Mrs. Larkins would also wrap the belt around J.T.’s neck and lift him off the ground by the belt. Mrs. Larkins would tighten the belt around J.T.’s neck so that he could not breathe or talk, leaving red marks on J.T.’s neck. At other times, both Mr. Larkins and Mrs. Larkins would hit J.T. with a wooden backscratcher as punishment. As with the belts, the backscratcher would cause "dark bruises" on J.T.’s bottom and legs. In addition to the beatings, both Mr. Larkins and Mrs. Larkins would tell J.T. that they "didn’t want to see his face again, that he was worthless, and that he wasn’t part of the family."

[¶6] In late April 2015, M.D.T. showed her school psychologist some pictures of bruises on J.T.’s bottom that Mrs. Larkins had inflicted with a belt the day before, at the 10th Street address. The psychologist reported the abuse to authorities.

[¶7] Jennifer Stowers, J.T.’s counselor, began seeing him in September 2015 after he was removed from the Larkins’ home. As part of her examination, Ms. Stowers was "made aware that there was some past trauma in his history," which included "physical abuse." J.T. talked with her about "getting hit with a belt ... [and] being yelled at." Ms. Stowers diagnosed J.T. with post-traumatic stress disorder (PTSD), based on J.T.’s "hypervigilance," "hyperalertness," and "dissociation." This caused J.T. to have "tantrums" where "he would go into his room [at the foster home] and ... start yelling out things, like he wasn’t feeling like he was loved and stuff like that." The PTSD also caused J.T. to have a "diminished interest in participation in significant activities." During their sessions, J.T. would "emotionally almost shut down" when Ms. Stowers would try to discuss the abuse. During one session, J.T. became upset because a mask he saw in the office’s playroom looked like Mr. Larkins. Ms. Stowers testified that, notwithstanding J.T.’s PTSD, he generally "functions normally," but that he was "emotionally ... very flat," and "not very good at expressing his emotions."

B. The Mental Injuries to M.D.T.

[¶8] M.D.T. testified about witnessing Mr. Larkins and Mrs. Larkins physically abuse her younger siblings and Jesus. Most of the beatings M.D.T. witnessed occurred at the 10th Street address. She recalled how they would beat J.T. on "almost ... a daily basis." She watched Mrs. Larkins use a wet belt to whip J.T., and saw her use a belt to choke J.T. She witnessed both Mr. Larkins and Mrs. Larkins beat J.T. with the wooden backscratcher. M.D.T. saw the bruises and welts these beatings left on J.T.’s bottom and lower back. She remembered one occasion when she watched Mr. Larkins beat J.T. with the backscratcher as J.T. screamed for help. She characterized these episodes as "very traumatizing." On one occasion, at the Merritt Road house, M.D.T. tried to intervene while Mrs. Larkins was choking J.T. with the belt, but Mrs. Larkins pushed M.D.T. into a wall.

[¶9] At the West Winds address, M.D.T. also watched the Larkins spank her younger sister, M.M.T., and later saw the bruises the beatings left on M.M.T. She also saw Mr. Larkins, at the West Winds address, whip J.K. with a belt while he called for help, leaving marks and bruises on J.K.’s back and behind his ear.

[¶10] M.D.T. testified that once Mrs. Larkins choked her with her hand. Both Mr. and Mrs. Larkins would also call her "stupid" and "fat." These verbal attacks made her feel "lonely," "worthless," and "alone" to the

[429 P.3d 35

point that she wanted to die. M.D.T. lived with these feelings every day. Sometimes she would cope by cutting herself or making herself throw up. Despite the abuse she witnessed, M.D.T. was reluctant to tell anyone for fear of losing the only family she had known.

¶11] After M.D.T. was removed from the Larkins’ home, she lived at the Cathedral Home in Laramie. Stacey Scholl, the therapist at Cathedral Home, diagnosed M.D.T. with PTSD, depression, anxiety, and substance abuse. Ms. Scholl relied on the reports of the abuse M.D.T. witnessed to diagnose her with PTSD. Because of her mental illnesses, M.D.T. had a difficult time "processing her emotions[,] ... connecting with others, ... [and] function[ing] at times within her [social environment]."

C. The Abuse of Jesus Manzanares

[¶12] Jesus was born with spina bifida and hydrocephalus. He has a hole in his spine and water on his brain. When he was younger, he had to have his right foot amputated. He has a shunt from his brain to his stomach and uses a wheelchair to get around. He also suffers from anxiety and attention deficit hyperactivity disorder (ADHD).

[¶13] In approximately 2011, when he was 17 years old, Jesus went to live with the Larkins in Cheyenne. Because of his disabilities, when Jesus would have particularly bad bowel movements, he would need help cleaning up, but did not ask Mr. Larkins or Mrs. Larkins for help because he "already knew what [the] answer was going to be." Jesus’ grandmother testified that Jesus "has a hard time ... doing things for himself."

[¶14] M.D.T. testified that she would help Jesus clean himself. The Larkins, however, refused to help Jesus clean himself. Instead, they would get "extremely angry" at Jesus and call him "worthless" and "crippled." While in the basement at the Merritt Road house, M.D.T. saw Mrs. Larkins pull Jesus out of his wheelchair and beat him with her hands. Later that day, after Mr. Larkins returned home, he told Jesus that he was "worthless."

[¶15] On another occasion in the basement, Mrs. Larkins pushed Jesus to the ground for having a bowel movement on the couch. Jesus had another bowel movement in the garage and Mr. Larkins and Mrs. Larkins made him wash his clothes in the garage sink by hand without any gloves, while they berated him and told him that he was "sickening." Mr. Larkins also "knocked" him on his head because of his occasional incontinence.

D. The Physical Abuse of J.K.

[¶16] J.K. and his mother lived with the Larkins at the West Winds address for approximately six months in 2010 and 2011. J.K.’s mother gave Mr. Larkins permission to discipline J.K. while she was at work. Mr. Larkins obliged and would punish J.K. for not doing his chores or for being disrespectful to Mrs. Larkins....