Mitchell v. State
| Decision Date | 16 December 1993 |
| Docket Number | No. 93-29,93-29 |
| Citation | 865 P.2d 591 |
| Parties | Mark MITCHELL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, Cheyenne, and Defender Aid Program, Gerald M. Gallivan, Director, John H. Robinson and Ryan R. Roden, Student Interns, Laramie, for appellant.
Joseph B. Meyer, Atty. Gen., Peter J. Mulvaney, Sylvia L. Hackl, Deputy Attys. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Cheyenne, and Prosecution Assistance Program, Theodore E. Lauer, Director, and Beverly Chewning Burton, Student Intern, Laramie, for appellee.
Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.
Of the two evidentiary issues raised in this appeal of the twenty-four year old appellant's conviction of second-degree sexual assault of a ten-year old girl, the major issue questions the admission under Wyo.R.Evid. 404(b), over appellant's objection, of evidence of the appellant's uncharged sexual misconduct to prove motive and intent in the present second-degree sexual assault prosecution. The other issue presented questions the admission, without appellant's objection, of the testimony of two other prosecution witnesses relating the ten-year old girl's out-of-court statement to them about the charged assault.
We have concluded that no prejudicial error occurred, and we affirm the judgment and sentence entered by the trial court.
On the night of March 6, 1991, ten-year old A.J. was staying with appellant's parents in their home while her parents attended an out-of-town concert. Also staying at the home were A.J.'s younger brother and appellant. After all in the house had gone to bed that night, appellant, on two separate occasions, entered the bedroom in which the ten-year old girl was sleeping and sexually assaulted her by inserting his finger inside her vagina. According to the ten-year old victim, appellant told her he would get her if she told anyone about the assault. She did not report the incident for more than a year. After reporting it, she was interviewed by both the county sheriff and an employee of the State Department of Family Services to whom she related the details of the incident.
The prosecution charged the twenty-four year old appellant under WYO.STAT. § 6-2-303(a)(v) (1988) with having committed two separate acts of sexual intrusion against the (a) Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
ten-year old girl by inserting his finger inside her vagina for the purpose of his sexual arousal, gratification or abuse. The statute reads in pertinent part:
* * * * * *
(v) at the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim.
(Emphasis added).
As used in the above-quoted statute, the term "sexual intrusion" means in pertinent part:
(A) Any intrusion, however slight, by any object or any part of a person's body, except the mouth, tongue or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse.
WYO.STAT. § 6-2-301(a)(vii)(A).
After trial to a jury, appellant was found guilty, and he then was sentenced to an enhanced term of a minimum of twenty-five years and a maximum of forty years in the Wyoming State Penitentiary. This appeal followed.
Before the trial began, appellant's trial counsel filed a motion in limine seeking the court's order prohibiting the prosecution's mention at trial of appellant's uncharged misconduct. Appellant's trial counsel filed a memorandum in support of his motion in limine. Opposing the motion, the prosecution in its memorandum stated that through the testimony of the former criminal investigator in the office of the county attorney of Washakie County, Wyoming, and for purposes of proving identity, motive, intent, and victim corroboration, it intended to introduce appellant's 1986 conviction of second-degree sexual assault against a three-year old girl by insertion of his finger inside the child's vagina and appellant's 1986 statement to that investigator admitting the assault and expressing the sexual arousal he experienced while perpetrating the assault.
On the morning of the first day of trial, both counsel met with the trial judge in chambers and orally argued the motion in limine. The prosecution stated it intended to introduce the uncharged misconduct evidence to prove identity, motive, and intent. Further explaining, the prosecution argued that since the charged crime of second degree-sexual assault contained the element of sexual arousal or gratification, the uncharged sexual misconduct evidence would show the sexual arousal or gratification that appellant received from having sexual encounters with young girls. In response, appellant's trial counsel argued that even if the uncharged sexual misconduct evidence were relevant, the unfair prejudice to appellant caused by its admission outweighed its probative value. Remarking that he had read the written memoranda and considered counsels' arguments, the trial judge ruled he would deny appellant's motion and allow the prosecution to introduce the uncharged sexual misconduct evidence for the purposes of showing motive, opportunity, intent or plan.
The first witness to testify for the prosecution was the mother of the ten-year old girl who claimed she was the victim of appellant's sexual assault. In the cross-examination of this witness by appellant's trial counsel, the witness stated her daughter had never mentioned the alleged assault to her for more than a year, but that usually her daughter discussed her problems with her. The prosecution's next witness was the ten-year old child who claimed to be appellant's victim. In the cross-examination, appellant's trial counsel elicited testimony from the child that: she did not remember whether or not she told her mother about the incident; she usually tells her mother when something important happens to her; she became angry with appellant when he did not let her ride a certain horse that his parents owned; she tells lies once in awhile but tries not to lie very much; and at the time of the incident in question she did not try to scream or tell appellant's parents who were in a nearby room what appellant was doing to her.
The prosecution's third witness was the former criminal investigator who had investigated the allegations leading to appellant's 1986 conviction of second-degree sexual assault. Pursuant to the earlier request of appellant's trial counsel, the trial judge gave the jury a limiting instruction before this witness testified. In a nutshell, his direct examination testimony was that on October 24, 1986, in his office at the sheriff's department in Worland, Wyoming, in the course of his investigation, he interviewed appellant and appellant told him, after being advised of his Miranda rights, that while bathing his three-year old niece he touched her breast area and vaginal area and inserted his finger into her vagina, explaining that this activity sexually aroused him. Through this witness the prosecution introduced appellant's 1986 conviction for that criminal behavior.
The prosecution's final witnesses were an employee of the Department of Family Services and the sheriff of Hot Springs County. Without drawing objection from appellant's trial counsel, both testified about what the ten-year old child told them about the alleged incident when they interviewed her more than a year after the alleged incident and six months before trial.
Appellant contends that the trial court committed reversible error in admitting into evidence the former criminal investigator's testimony of appellant's 1986 second-degree sexual assault conviction and his October 24, 1986 statement explaining the sexual arousal he experienced when he committed the sexual assault for which he was convicted. Appellant argues that although the prosecution offered the uncharged sexual misconduct evidence to show appellant's motive or state of mind, viz., he experienced sexual arousal, that motive or state of mind is not an element of the charged crime of second-degree sexual assault. He argues that the prosecution also offered the uncharged sexual misconduct evidence to prove identity, but that identity of the alleged perpetrator was not in issue. In other words, this was not a case in which the perpetrator's identity was unknown and circumstantial evidence was introduced from which identity could be inferred; rather, this was a straightforward case in which the eyewitness victim identified the perpetrator and the perpetrator denied the accusation. Because the prosecution's purposes for introducing the uncharged misconduct evidence were not well-founded and were unnecessary, appellant reasons, that evidence was more unfairly prejudicial than probative because it could prove nothing but the appellant's bad character, which is precisely the reason this type of evidence is excluded under application of Wyo.R.Evid. 404(b).
In response to appellant's argument, the state sets forth this court's well-established standard of review applicable to such evidentiary issues and then applies in that context the five-factor analysis we announced in Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985). The factors we consider are: (1) clarity of proof of the uncharged misconduct; (2) amount of time between the uncharged misconduct and the crime charged; (3) purpose for introduction of the uncharged misconduct; (4) materiality of the uncharged misconduct, i.e., whether an element of the charged crime to which the uncharged...
To continue reading
Request your trial
-
Smith v. State
...witness in the discharge of his duty. The State is required to prove each element of a crime beyond a reasonable doubt. Mitchell v. State, 865 P.2d 591, 596 (Wyo.1993); Wetherelt v. State, 864 P.2d 449, 451 (Wyo.1993); and see Blakely v. State, 474 P.2d 127 (Wyo.1970); State v. Hickenbottom......
-
State v. Lassiter
...universal but shared by many other persons, the courts tend to admit the proof of motive." 936 P.2d at 464 (quoting Mitchell v. State, 865 P.2d 591, 596-597 (Wyo.1993) (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence § 3.15 (1992 & Supp. 1993))) (internal citations [¶ 53.] Mor......
-
Seymore v. State
...Keats v. State, 2003 WY 19, ¶ 28, 64 P.3d 104, 113 (Wyo.2003) (malice as the mens rea element of first-degree arson); Mitchell v. State, 865 P.2d 591, 596, 599 (Wyo.1993) (physical intrusion as the actus reus and sexual arousal, gratification or abuse as the mens rea of second-degree sexual......
-
Lancaster v. State, 00-235.
...credibility is sufficient to invoke W.R.E. 801(d)(1)(B), citing Humphrey, 962 P.2d at 871-72, Curl, 898 P.2d at 374, and Mitchell v. State, 865 P.2d 591, 600 (Wyo.1993). A review of these cases reveals that they do, indeed, countenance this rather broad interpretation of the use of prior co......