Mayhew v. State

• Decision Date: 09 April 2019
• Docket Number: S-18-0130
• Parties: William A. MAYHEW, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

438 P.3d 617

William A. MAYHEW, Appellant (Defendant),

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

S-18-0130

Supreme Court of Wyoming.

April 9, 2019

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

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

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

DAVIS, Chief Justice.

[¶1] A jury found William Mayhew guilty of four counts of third-degree sexual assault related to his abuse of three minors during the 1990s and early 2000s. On appeal, Mr. Mayhew claims the district court erred in admitting photos and videos as other acts evidence under W.R.E. 404(b). He also contends that the district court abused its discretion in admitting evidence not identified in the State’s pretrial disclosure and without proper foundation. We affirm.

ISSUES

[¶2] Mr. Mayhew presents two issues on appeal, which he frames as follows:

I. Did the trial court abuse its discretion by admitting evidence pursuant to W.R.E. 404(b) that did not fit an acceptable purpose and was used solely to prove the character of the Defendant?

II. Did the trial court abuse its discretion by admitting evidence not listed in the pretrial proceedings and without proper foundation?

FACTS

[¶3] William Mayhew lived near his grown daughter and her family in Sheridan, Wyoming, starting in the early 1990s. She and her husband had three daughters: HS, born in 1989; MT, born in 1992; and ST, born in 1997. In May 2015, MT revealed to her aunt that Mr. Mayhew, her grandfather, had sexually abused her and her sisters. MT’s aunt informed MT’s father, and he reported the allegations to law enforcement.

[¶4] Following an investigation, the State charged Mr. Mayhew with five counts of third-degree sexual assault: two counts for acts against HS; one count each for acts against MT and ST; and one count for acts against AR, a boy who grew up in Mr. Mayhew’s neighborhood.¹ Before trial, Mr. Mayhew requested notice of the State’s intent to submit other acts evidence under W.R.E. 404(b). In response, the State provided its Rule 404(b) notice, followed by three addenda, which identified the following other acts evidence the State intended to introduce:

--testimony by the director of a children’s program at a local church, along with related emails, concerning the church’s 2012 decision to terminate Mr. Mayhew as a Sunday school instructor for violating the church’s policy against adults transporting children alone;

--testimony by a former director of the Joy Junction Children’s Ministry concerning a 2009 complaint from the mother of a five-year-old girl that when she picked up her daughter from a swimming pool activity, she saw that Mr. Mayhew had her daughter’s legs wrapped around him;

--testimony that arresting officers found a box at Mr. Mayhew’s home that contained photos of young girls who were Joy Junction participants;

--photos and videos of young girls taken by Mr. Mayhew while participating in children’s programs;

--testimony by Mr. Mayhew’s wife’s younger sister that in 1962, when she was ten years old, Mr. Mayhew pinned her against a pillar and rubbed his hands on her crotch area, and a few weeks later took her to a cabin in the woods where he fondled her, pinned her down, and tried to remove her underwear;

--testimony that in law enforcement’s examination of Mr. Mayhew’s computers, it discovered the use of programs and techniques used in the child exploitive community, twenty-four media files of children classified as closely related to child erotica, and 5,785 files that contained children;

--testimony by Mr. Mayhew’s daughter that he sexually abused her beginning when she was four years old and continuing until she was about twelve years old, including five specific incidents during that period; and--testimony by Mr. Mayhew’s wife that after the local church terminated him from Sunday school activities, she saw him burn a collection of photos in their fireplace, and testimony by HS that she also witnessed the burning of photos, which her grandmother told her were from Joy Junction.

[¶5] The State offered the other acts evidence for the purposes of showing Mr. Mayhew’s motive, intent, and lack of mistake or accident. Mr. Mayhew objected to the evidence, and on December 5, 2017, the district court heard argument on the State’s notice. During the hearing, the State narrowed its proffered other acts evidence and sought admission only of Mr. Mayhew’s daughter’s testimony and the photos and videos of young girls Mr. Mayhew took while participating in youth activity programs.

[¶6] The district court issued an oral ruling, in which it applied the Rule 404(b) -required factors, which was followed by a summary written order that found the proffered evidence admissible. The court found that the evidence was relevant to Mr. Mayhew’s motive and intent, and that its probative value was not substantially outweighed by its potential for unfair prejudice.

[¶7] At trial, the victims of the charged conduct described Mr. Mayhew’s sexual abuse.² HS testified that Mr. Mayhew sexually abused her from the age of five until she was about ten or eleven years old. She testified that on multiple occasions, he would have her lie on his bed, face down and clothed, and he would lie on top of her, bouncing up and down. He called this the "smooshing game." On other occasions, Mr. Mayhew had her apply lotion to his erect penis. He also on multiple occasions directed HS to lie on his bed, unclothed from the waist down, spread her legs, and touch herself, with him sometimes moving her hands when she "wasn’t doing it right." HS also described occasions when Mr. Mayhew would instruct her to use a vibrating massager on her vagina while he masturbated, would shower with her and wash her entire body, and would fondle her between her legs while driving with her in his truck.

[¶8] During HS’s testimony, a letter Mr. Mayhew had written to HS after she confronted him with her abuse allegations was admitted into evidence without objection. The letter read, with the emphasis in the typed original:

I have tried to write a letter to you this past year (some several pages long) but the words just didn’t seem right. At times I felt I was not worthy to even communicate with you.

What I found out during this time is I am not a person of words. Because of my rapid deteriorating health and your position of me not being able to talk to you, this appears to be the best communication avenue for me right now.

I just wanted you to know from my heart and soul I am truly sorry for the verbal and physical abuse I have done to you. It was wrong, wrong. Please, please forgive me, please.

I am also asking that during my last days that you visit often and allow my great granddaughter and great grandson [to] be around me and your grandma together.

[¶9] MT testified that Mr. Mayhew began sexually abusing her when she was five or six years old and that the abuse continued until sometime before she reached puberty. She described three specific memories of the abuse. The first incident occurred during a game of dress-up when she was five years old. Mr. Mayhew had her lie on his bed and use a vibrating massager on her genital area.³ On another occasion, Mr. Mayhew played a blindfold game with MT that required her to guess the identity of objects while blindfolded, one of which was his erect penis. The third incident involved a game that Mr. Mayhew called "squish it." During that game, he had MT lie on the floor, face up and clothed, and he would lie on top of her. MT could feel his erect penis when he did this.

[¶10] AR testified to a single incident of abuse that occurred during the summer of 1995, when he was about ten years old. AR lived near the Mayhews and would occasionally visit to play with their dog. On one such occasion, Mr. Mayhew brought out a vibrating massager and encouraged AR to use it on himself. AR testified that Mr. Mayhew initially showed AR how to use it on his leg and then he encouraged him to move the vibrator closer to his crotch area. Mr. Mayhew then put his hand on AR’s crotch outside his pants to show him where to place the vibrator, while saying "Doesn’t that feel good?" AR felt panicky, fled the Mayhew home, and reported the incident to his father.

[¶11] In addition to the victims’ testimony concerning the charged conduct, the State presented the other acts evidence the district court had ruled admissible. Mr. Mayhew’s daughter testified that from the time she was four or five years old, he would make her wash his erect penis while he took baths. She also testified to specific incidents of abuse, including an incident when she was five or six, during which Mr. Mayhew told her, her sister, and a neighborhood friend they were going to play doctor and instructed them to get in a closet. He then called each child out individually, and when he called her out, he told her to take off her clothes and lie down, and then proceeded to examine her body, including her vagina, visually and with his hands.

[¶12] The daughter described another incident that occurred during that same timeframe, in which she wet her pants and Mr. Mayhew ordered her to remove her clothes in front of her brother and sister and lie on the floor. He then put her in a diaper, touching her vagina while doing so, and made her wear nothing but the diaper.

[¶13] The final incident the daughter testified to occurred when she was in the third or fourth grade. Mr. Mayhew would initiate games of hide and seek with the children and during one such game, he had her sit on his lap when she found him, and she could feel his erect penis.

[¶14] From the photos and videos...