Moe v. State, 03-139.

• Decision Date: 10 May 2005
• Docket Number: No. 03-139.,03-139.
• Parties: Derald L. MOE, Petitioner (Defendant), v. The STATE of Wyoming, Respondent (Plaintiff).
• Court: Wyoming Supreme Court

110 P.3d 1206

2005 WY 58

Derald L. MOE, Petitioner (Defendant), v. The STATE of Wyoming, Respondent (Plaintiff).

No. 03-139.

Supreme Court of Wyoming.

May 10, 2005.

Representing Petitioner: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Respondent: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Assistant Attorney General. Argument by Ms. Morgan.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., Retired.

GOLDEN, Justice.

[¶ 1] Appellant Derald L. Moe was convicted by a jury of one count of taking immodest, immoral or indecent liberties with a sixteen-year-old girl in violation of Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2003), a felony, and was sentenced to two to five years in the Wyoming state penitentiary. He appeals that judgment and sentence, contending that the statute is unconstitutional and that he was denied a fair trial.

[¶ 2] We affirm.

ISSUES

[¶ 3] Moe lists these issues:

1. Is W.S. § 14-3-105 facially unconstitutional?

2. Is W.S. § 14-3-105 unconstitutional as applied in petitioner's case?

3. Did the trial court err in refusing to admit the statements of an unavailable witness for the defense, resulting in a denial of petitioner's rights to present his defense and confront witnesses?

4. Did the prosecutor commit misconduct in closing argument?

The State rephrases the issues in this way:

I. Is Wyoming's indecent liberties statute, Wyo. Stat. Ann. § 14-3-105, unconstitutional on its face?

II. Is Wyo. Stat. Ann. § 14-3-105 unconstitutional as applied in this case?

III. Did the trial court abuse its discretion when it refused to admit the hearsay statements of an unavailable witness for the defense?

IV. Did the prosecutor commit misconduct in his closing argument?

FACTS

[¶ 4] On October 20, 2002, when Moe was 34 years old and AB was 16 years old, the two had sexual intercourse. Moe lived in a trailer house in Gillette, Wyoming, with another man, Dakota Studie. On October 20, 2002, AB, her brother IB, who was 15 years old, and her two friends, AW, 17, and DE, 15, went to Studie's and Moe's trailer to watch movies. After a while, AW and DE left the trailer; however, AB and IB stayed to watch the movie with Moe and Studie. Moe and AB were sitting by each other and some contact occurred. After a time, Moe pushed AB into a bedroom and although she resisted and told him no, he pushed her hands over head, used his foot to push down her pants and had intercourse with her. While Moe and AB were in the bedroom, Studie and IB continued to watch the movie, but IB testified that he did not notice anything unusual because he was very interested in the movie.

[¶ 5] AW and DE returned to the trailer, and eventually AB left with AW. AW testified that AB told her she had sex with Moe and had joked about his "anatomy." Later AB told her other friends and became upset, and AW described AB as distraught and crying as she related the details of the encounter with Moe. AB's distress caused AW to return to the trailer and angrily confront Moe. AW testified that Moe stated to her that the sex had been consensual. When AB returned home, she informed her parents of what had happened, and her mother called police. AB stated to police that the intercourse was nonconsensual and testified that it was nonconsensual although her two accounts differed in the details of the encounter. At the time of her testimony, AB was visibly pregnant with another man's child. Both sides referred to her pregnant condition as evidence of her maturity or the lack of it to legally consent to intercourse.

[¶6] Dakota Studie was listed as a witness for the defense; however, Studie could not be located by the defense and he did not testify at trial. Defense counsel sought to admit Studie's statements to AW and police where he alleged that AB had led Moe by the hand into the bedroom; however, the trial court ruled those statements were inadmissible hearsay. Moe did not testify at trial, and defense counsel submitted jury instructions that its theory was consent as a defense and totality of the circumstances. A jury convicted Moe of one count of indecent liberties, and this appeal, filed one day late, was accepted on writ of certiorari.

DISCUSSION

Standard of Review

[¶ 7] Moe did not raise the issue of unconstitutionality at the trial level and did not object to the prosecutor's closing argument, and we will apply our plain error standard of review to those issues. Pierson v. State, 956 P.2d 1119, 1123 (Wyo.1998). To establish plain error, the record must first clearly present the incident alleged to be error; the appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way; and appellant must prove that he was denied a substantial right resulting in material prejudice against him. Id.

[¶ 8] A trial court's evidentiary rulings are given considerable deference and will not be disturbed on appeal unless the trial court has abused its discretion. Kenyon v. State, 2004 WY 100, ¶ 19, 96 P.3d 1016, ¶ 19 (Wyo.2004). A trial court does not abuse its discretion unless it acted unreasonably and denied the defendant a substantial right. Allegations of prosecutorial misconduct are reviewed with reference to the entire record and hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial. Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000).

Unconstitutionality

[¶ 9] A statute violates due process under the Fifth and Fourteenth Amendments of the United States Constitution on vagueness grounds and is void if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute, Giles v. State, 2004 WY 101, ¶ 11, 96 P.3d 1027, ¶ 11 (Wyo.2004); Misenheimer v. State, 2001 WY 65, ¶ 6, 27 P.3d 273, ¶ 6 (Wyo.2001), and violates equal protection if it encourages arbitrary and erratic arrests and convictions. Misenheimer, ¶ 6; Scadden v. State, 732 P.2d 1036, 1041 (Wyo.1987). A challenge for vagueness can be a facial challenge or an as-applied-to-the-facts challenge. Ochoa v. State, 848 P.2d 1359, 1363 (Wyo.1993). "However, a facial challenge is available in only two situations: (1) when the statute reaches a substantial amount of constitutionally protected conduct, and (2) when the statute is shown to specify no standard of conduct at all." Id. If neither of these situations exists, then only an as-applied challenge is available. Id.

[¶ 10] On numerous occasions this Court has reviewed cases challenging the indecent liberties statute based on void-for-vagueness grounds, and each time the statute has withstood those challenges. Most recently, we have reached that conclusion in our decision in Giles. There, we once again determined that § 14-3-105(a) provides sufficient notice to a person of ordinary intelligence that his conduct is prohibited by statute because the liberties taken "are such as common sense of society would regard as indecent and improper." Giles, ¶¶ 21-29. The statute states in pertinent part:

Except under circumstances constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304, any person knowingly taking immodest, immoral or indecent liberties with any child or knowingly causing or encouraging any child to cause or encourage another child to commit with him any immoral or indecent act is guilty of a felony.

§ 14-3-105(a). Subsection (c) of the statute specifies that "child means a person under the age of eighteen (18) years." § 14-3-105(c).

[¶ 11] Moe contends that the statute is facially unconstitutional for three reasons: first, it gives no or inadequate notice of the type of conduct prohibited and it does not specify a standard of conduct; second, the statute allows arbitrary and discriminatory enforcement; and third, the statute offends due process. These contentions were addressed and rejected in Giles. The doctrine of stare decisis requires that we apply Giles' analysis and conclusions on the issue of facial vagueness and determine that this issue is settled and warrants no new consideration in this appeal.

[¶ 12] In his unconstitutional as-applied argument, Moe contends that the indecent liberties statute, as applied to the facts of his case, is unconstitutionally vague because the statutory language provided no notice that consensual intercourse with a sixteen year old was criminal behavior because that conduct does not offend the third degree sexual assault statute. In Wyoming, sexual contact with a child under the age of sixteen is felony third degree sexual assault. Wyo. Stat. Ann. § 6-2-304(a)(i) (LexisNexis 2003). Because the victim here was sixteen years old, sexual contact with her did not violate the third degree sexual assault statute. However, we have previously determined that extreme age differences between an adult and a minor over the age of sixteen engaged in consensual sexual activity may still constitute indecent liberties in violation of § 14-3-105(a). Pierson, 956 P.2d at 1124. The consent of a minor is not a complete defense to the charge of taking indecent liberties. Id. at 1126.

[¶ 13] Pierson addressed the contention that, because third degree sexual assault provided an age of consent of sixteen, the indecent liberties statute cannot be applied to an adult's sexual activity with a consenting minor over the age of sixteen. Id. at 1124-25. Pierson determined that the indecent liberties statute may apply to this conduct; however, Pierson limited the statute's reach to those cases where a jury, looking at all of the circumstances, determines that the child's consent was not informed consent or the adult's conduct to secure consent violated indecency standards. Id....