Mersereau v. State

Decision Date26 September 2012
Docket NumberNo. S–11–0194.,S–11–0194.
Citation286 P.3d 97,2012 WY 125
PartiesAdam J. MERSEREAU, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

286 P.3d 97
2012 WY 125

Adam J. MERSEREAU, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0194.

Supreme Court of Wyoming.

Sept. 26, 2012.


[286 P.3d 102]


Representing Appellant: Tara B. Nethercott and Gay V. Woodhouse, Woodhouse Roden, LLC, Cheyenne, Wyoming.
Argument by Ms. Nethercott.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.


Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] The appellant, Adam J. Mersereau, was convicted of one count of first-degree sexual abuse of a minor and eight counts of second-degree sexual abuse of a minor. In this appeal, he raises eight issues where he claims there was error in his trial. After a careful review of the record, we cannot say that the appellant received a fair trial. Therefore, we reverse the appellant's convictions and remand for a new trial.

[286 P.3d 103]

ISSUES

[¶ 2] 1. Whether the district court's decision that the victim was competent to testify was clearly erroneous.

2. Whether the district court abused its discretion when it admitted computer forensic evidence and family photos into evidence under W.R.E. 404(b).

3. Whether the district court commented improperly upon the weight of the evidence.

4. Whether the district court erred when it determined that the appellant's statement to Deputy Peech was given voluntarily.

5. Whether plain error occurred when Deputy Peech expressed his opinion that the appellant was lying during the interview.

6. Whether plain error occurred when the district court instructed the jury that there need be no corroboration of the victim's testimony in order to convict the appellant.

7. Whether the State presented sufficient evidence to sustain each of the convictions.

8. Whether the appellant received ineffective assistance of trial counsel.

FACTS

[¶ 3] The details of the factual allegations underlying the convictions in this case are somewhat confusing and difficult to organize into a meaningful and understandable timeline. Suffice it to say, the appellant was charged with one count of first-degree sexual abuse of a child, wherein it was alleged that the appellant anally penetrated his four-year-old stepson in the family car. The charges were brought after the victim had been examined by the family's physician assistant, a sexual assault nurse examiner, and a forensic interviewer. While being interviewed by Deputy Peech with the Converse County Sheriff's Department regarding the allegation, the appellant made statements that led to eight counts of second-degree sexual abuse of a child. These charges alleged that the appellant had engaged in various instances of sexual contact with the victim while the appellant was giving the victim a bath. After a jury trial, the appellant was convicted of all nine of the charges against him. Due to the number of issues in the appeal, additional facts will be discussed when relevant.

DISCUSSION
Whether the district court's decision that the victim was competent to testify was clearly erroneous

[¶ 4] One month before the trial began, the district court held a hearing to determine whether the victim, who was four years old at the time of the crimes and five years old at the time of trial, was competent to testify. The district court heard testimony from the victim, a forensic psychologist, and a psychologist hired by the appellant. Thereafter, the district court concluded that the victim was competent to testify. The district court found specifically that the victim could recognize the difference between the truth and a lie and that he appeared to appreciate the need to testify truthfully, he had the ability to recall specific events and had the ability to speak about them, and he had the capacity to understand simple questions. The appellant argues that the record does not support the district court's decision and, instead, demonstrates that the victim was not competent to testify.

[¶ 5] This Court reviews a district court's findings regarding the competency of a child to testify as follows:

It is a well-established principle of law that competency of witnesses to testify is a question within the sound discretion of the trial court. However, when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous.

English v. State, 982 P.2d 139, 145 (Wyo.1999) (internal citations and emphasis omitted). We must give a considerable amount of deference to the trial court because it “is in a far better position to judge the demeanor, truth, and veracity of the witness[.]” Gruwell v. State, 2011 WY 67, ¶ 25, 254 P.3d 223, 231 (Wyo.2011). Therefore,


[286 P.3d 104]

“[w]e do not presume to place ourselves in the shoes of the trial court in these cases by reading a cold record. The trial court sees the witness' facial expressions, hears inflections in [his] voice and watches [his] mannerisms during examination. These observations are a vital part of the ultimate ruling on competency.”

Id. (quoting Seward v. State, 2003 WY 116, ¶ 32, 76 P.3d 805, 819 (Wyo.2003)).


[¶ 6] The Wyoming Rules of Evidence presume that “[e]very person is competent to be a witness except as otherwise provided in these rules.” W.R.E. 601. “A person is generally competent to testify if he can understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying.” Simmers v. State, 943 P.2d 1189, 1199 (Wyo.1997). Further, a witness' intelligence, not his age, should guide a court in determining whether the witness is competent to testify. Baum v. State, 745 P.2d 877, 879 (Wyo.1987).

[¶ 7] This Court has adopted a five-part test for the district courts to consider when determining whether a child is a competent witness. The district court must determine whether the child has:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

Larsen v. State, 686 P.2d 583, 585 (Wyo.1984).


[¶ 8] In its decision letter, the district court analyzed the five-part test and determined that the victim was competent to testify. The appellant argues, however, that the district court's conclusions are not supported by the record. After a careful review of the record, we agree with the appellant's argument, and hold that the district court's decision was clearly erroneous.

[¶ 9] The district court concluded that the victim was able to differentiate between the truth and a lie, and that he “appeared [ ] to appreciate the need for him to testify truthfully.” At the competency hearing, the victim properly recognized that it would “not be the truth” to say he was outside or in California during his testimony. He also understood it was the truth to say he was currently in Wyoming. He properly stated that it was “not the truth” to say the prosecutor's shirt was purple, while it would be the truth to say it was blue. The record clearly demonstrates that, when asked simple questions, the victim understood the difference between a truth and a lie.

[¶ 10] However, the question of whether the victim appreciated the need to testify truthfully is problematic. At the competency hearing, the child was not asked by the district court, the prosecutor, or defense counsel whether he understood he was required to tell the truth in a courtroom. Nor was he ever asked if he understood, from a moral perspective, why it is important to tell the truth and not to tell lies, especially in the courtroom. The State points out that the forensic interviewer informed the victim that he needed to tell the truth during the forensic interview. Unfortunately, that does not demonstrate that the victim understood and appreciated the need to tell the truth in the courtroom.

[¶ 11] Immediately before his trial testimony, the district court told the victim that he needed to tell the truth, and the victim responded that he understood. However, we are not convinced, based upon the meager evidence at the competency hearing, that the victim truly did understand that obligation. This is borne out by the fact that at the competency hearing and at the trial, the victim testified to verifiably untrue information, including how many family members and pets he had. In fact, the victim gave incorrect information about how many grandmothers, pets, and sisters he had immediately after being reminded by the district court that he needed to tell the truth.1 We also

[286 P.3d 105]

have significant concern that the victim's imagination regarding his non-existent pets was intertwined with his testimony regarding the incident where the appellant allegedly anally penetrated him:

[PROSECUTOR]: So you remember it was in the morning. Were you in the car for a long time or not very long?

[VICTIM]: Very long.

Q. Did your mom get mad that you were gone so long?

A. No, she had a cat.

Q. She what?

A. She had a cat.

Q. She had an [sic] a cat?

A. Yeah.

Q. Did you have a pet?

A. A dog. It was a boy.

Q. A boy dog?

A. Yeah.

Q. Now, when you came home on that long trip with your dad, do you remember what you did when you got home?

A. Yeah, fed the cat.

Q. You fed the cat?

A. Yeah.

Based upon all of these circumstances, we find that the district court's decision finding the victim was competent to testify was clearly erroneous....

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