Najera v. State
| Decision Date | 21 August 2009 |
| Docket Number | No. S-08-0203.,S-08-0203. |
| Citation | 214 P.3d 990,2009 WY 105 |
| Parties | Felix NAJERA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
Representing Appellee: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts. He also contends that the sentences for the incest convictions should merge with the sexual assault sentences. We find that sufficient evidence exists to support the convictions and affirm all of the convictions. We also determine that five of the six incest sentences should merge with the corresponding sexual assault sentences and reverse and remand for entry of a new Judgment and Sentence.
[¶ 2] Appellant presents these issues:
1. Did the trial court err in denying [Appellant]'s motion for acquittal on counts I and III-VI?
2. Should the incest counts merge for charging and sentencing with the sexual assault charges?
[¶ 3] Appellant was convicted of twelve felony counts involving improper sexual conduct with his two daughters.1 The twelve counts included: two counts of second-degree sexual assault (counts I and IV) in violation of Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2005); one count of third-degree sexual assault (count II) in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii); and three counts of third-degree sexual assault (counts III, V, and VI) in violation of Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vi). Five of the sexual assault counts involve the use of Appellant's authority to gain compliance of the victims, while the sixth was predicated upon the difference in age between Appellant and his victim. Appellant contends that there was insufficient evidence to support his conviction on the five counts involving the use of his authority. The remaining six convictions (counts VII through XII) are for felony incest in violation of Wyo. Stat. Ann. § 6-4-402(a).2 Appellant does not challenge his convictions on those counts.
[¶ 4] On April 17, 2006, the youngest victim (age 13) told her brother and older sister (age 15) that Appellant had sexually abused her the previous night. The older sister responded by revealing that she had also been abused in the past by Appellant. They called their mother and told her what had happened. Mother telephoned the family doctor. The doctor was not in and the office manager advised mother to take the girls to the emergency room and to call the police. In response to that suggestion, Mother told the office manager that she would "wait to see if it happened again." The next day, Mother apparently changed her mind and took the girls to the doctor's office. The staff at the office called the police, and the investigation began. Appellant was subsequently charged and tried. He was found guilty on all counts and was sentenced to: 10-20 years on each count of second-degree sexual assault to be served concurrently; 10-15 years on each count of third-degree sexual assault to be served concurrently with each other and consecutively to his sentences for second-degree sexual assault; and 3-5 years on each count of incest to be served concurrently with each other and consecutively to his sentences for all other counts. He then filed this appeal.
[¶ 5] Appellant moved for judgment of acquittal following the State's case-in-chief.3 The district court denied the motion. Appellant contends that there was insufficient evidence to support the challenged convictions. We apply the following standard of review:
In reviewing the sufficiency of the evidence in the context of a denial of a motion for judgment of acquittal, we examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.
Martin v. State, 2007 WY 2, ¶ 32, 149 P.3d 707, 715 (Wyo.2007) (citations omitted).
[¶ 6] Appellant contends that the evidence presented at trial was insufficient to sustain convictions on counts I, III, IV, V, and VI. Each of these counts required the jury to find that Appellant was "in a position of authority over the victim and use[d] this position of authority to cause the victim to submit." Wyo. Stat. Ann. §§ 6-2-303(a)(vi), 6-2-304(a)(iii). It is uncontested that Appellant, as the victims' father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims' submission.
[¶ 7] We addressed this argument in Brown v. State, 817 P.2d 429, 439-40 (Wyo. 1991). In Brown, the defendant was the victims' stepfather. He was convicted of multiple counts of sexual assault and taking indecent liberties with a minor. Id. at 432-33. On appeal, he contended that his convictions should be reversed because there was insufficient evidence to prove he used his position of authority to cause the victims to submit to sexual abuse. Id. at 439-40. We affirmed the convictions after finding that the State presented sufficient evidence to prove this element. In doing so, we stated:
A stepfather, as a parental figure, generally is in a position to exercise authority and control over stepchildren. The testimony in this case showed that Brown was directly involved with discipline of C.P. At least one of the charged crimes occurred when the children's mother was absent, and Brown was, in fact, supervising C.P. Brown's role as a stepfather gave him both access (in the context of opportunity) to, and influence over, these children. It is evident that the children understood this, because it was unnecessary that Brown threaten them in order to obtain coerced obedience to his outrageous sexual demands. In most instances, those threats occurred only after the children had submitted. There is no question that, given these circumstances, the jury reasonably could have inferred, as it did, that any resistance by these children was undermined by Brown's authority and his role in the household. Clearly, that was enough to satisfy the statutory requirement of use of a position of authority. We hold that the jury properly found, under the standard of beyond a reasonable doubt, that appellant invoked his position of authority to commit the counts of sexual assault against C.P.
Id. at 440 (emphasis added).
[¶ 8] Brown is not a perfect parallel for the current case because the facts are different. The quoted portion, however, is just as applicable here. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. On one occasion, Appellant explicitly told the older victim that "if I would ever say anything, it would be my fault that me and my mom were out on the streets." The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims' father to gain compliance. With one exception, all incidents of abuse occurred in each victim's bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house.
[¶ 9] Appellant's argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that we should interpret the statute in this manner. We conclude that the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims' submission.
[¶ 10] In his second issue, Appellant contends that the incest sentences should be merged with the sexual assault sentences. He did not raise this argument below. Accordingly, we review for plain error. Bush v. State, 2008 WY 108, ¶ 29, 193 P.3d 203, 210 (Wyo.2008). "Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Id., ¶ 29, at 210-11.
[¶ 11] Appellant contends that the six incest convictions, counts VII through XII, should merge with their respective sexual assault charges, counts I through VI, for sentencing.4 Merger of sentences implicates a defendant's constitutional right to be free of multiple punishments for the same offense. Bilderback v. State, 13 P.3d 249, 253 (Wyo. 2000). This right is one component of the constitutional prohibition against double jeopardy. Id. Consequently, the analytical framework necessary to...
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