Neidlinger v. State

• Decision Date: 08 March 2021
• Docket Number: S-19-0149, S-20-0125
• Citation: 482 P.3d 337
• Parties: Terry Earl NEIDLINGER, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

482 P.3d 337

Terry Earl NEIDLINGER, Sr., Appellant (Defendant),

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

S-19-0149, S-20-0125

Supreme Court of Wyoming.

March 8, 2021

Representing Appellant: Devon Petersen of Fleener Petersen, LLC, Laramie, Wyoming

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Timothy P. Zintak, Assistant Attorney General. Argument by Mr. Zintak.

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

DAVIS, Chief Justice.

[¶1] Terry Neidlinger was charged with two counts of first-degree sexual assault, one count of aggravated assault and battery, and two counts of voyeurism. Following a three-day jury trial, he was convicted of one count of first-degree sexual assault and the two counts of voyeurism. He was acquitted of the other charges.

[¶2] On appeal, Mr. Neidlinger challenges the sufficiency of the evidence to support the conviction of first-degree sexual assault. He claims that there was insufficient evidence for a jury to find that he caused the victim to submit to sexual intrusion by threat, or that the victim reasonably believed that he had the present ability to execute the threat. He also maintains that the district court abused its discretion in the placement of certain special interrogatories on the verdict form. Finally, he appeals the denial of his motion for a new trial based on ineffective assistance of counsel. We affirm the conviction, but we remand for correction of a clerical error in the judgment and sentence.

ISSUE

[¶3] Mr. Neidlinger raises three issues on appeal, which we restate as:

1. Was there sufficient evidence to support a conviction of sexual assault in the first degree?

2. Did the district court abuse its discretion in utilizing a special verdict form that required the jury to answer questions related to the charged offense before it was required to make a finding of guilt?

3. Did the district court err in denying Mr. Neidlinger's W.R.A.P. 21 motion for a new trial?

FACTS

[¶4] This case arose from a relationship between Debra Heying and Terry Neidlinger. Ms. Heying considered Mr. Neidlinger's residence to be her second home, and she often stayed there. The events leading up to Mr. Neidlinger's arrest and convictions culminated on June 8, 2018, when Ms. Heying reported that he had sexually assaulted her.

[¶5] On that date, Ms. Heying reported to the emergency room ("ER") at Campbell County Health in Gillette. She complained of severe pain in her rectum, and she reported that a man she knew penetrated her there with his penis. Peter Chase, M.D., an ER physician, and Nancy Stolpe, a Sexual Assault Nurse Examiner ("SANE Nurse"), evaluated Ms. Heying.

[¶6] Dr. Chase later testified that he observed several injuries, including one to her rectal area that appeared to be the result of anal penetration. He also noted that the patient reported that she was "assaulted with strangulation, assaulted with penetrating object/penis."

[¶7] As a SANE Nurse, Nurse Stolpe was tasked with collecting evidence from Ms. Heying and treating her injuries. Nurse Stolpe noticed and documented a number of injuries, including tenderness in the right breast, a dark purple circular mark on the front of her left hip, and bruising on the right side of her face and on her lower left and right legs, an elbow abrasion, and bruises on her wrist and the back of her right ear. She also documented a tear on Ms. Heying's rectum that was approximately four centimeters in length. She later testified that she had never seen a rectal tear

of that size before, and that it was consistent with the version of events Ms. Heying reported.

[¶8] During defense counsel's cross-examination of Nurse Stolpe at trial, she testified that Ms. Heying came into the ER at about 6:20 p.m. and stated that Mr. Neidlinger "told [her] to lay on [her] side, said if [she] opened [her] mouth he would stick something in it, knock [her] teeth out, and cut [her] tongue out." Nurse Stolpe further testified that Ms. Heying indicated that he "put [her] head between his legs and [choked her] out," and then anally assaulted her. Nurse Stolpe also testified that she took a DNA swab of the area around and inside Ms. Heying's rectum, which later revealed when tested by Kimberly Ley, a forensic DNA analyst with the Wyoming State Crime Lab, that the two contributors of the swabbed fluid were 3.57 septillion times more likely to be Debra Heying and Terry Neidlinger than Debra Heying and an unknown individual.

[¶9] Deputy Jeff Mooney with the Campbell County Sheriff's Office was dispatched to the emergency room due to the reported sexual assault. Upon arrival, Deputy Mooney spoke with Ms. Heying as she was being prepared for administration of a sexual assault kit. He testified at trial that Ms. Heying reported she had been anally assaulted by Terry Neidlinger, and also indicated that she was bleeding from her rectum. During cross-examination, he also testified it was hard for him to get Ms. Heying focused on the details of the assault, but that she essentially reported that when she woke up to get something to eat, Mr. Neidlinger threatened her and demanded that she get into his bed. He further indicated that Ms. Heying told him that Mr. Neidlinger threatened to knock her teeth out and cut her tongue out if she did not comply with his demands, and that when she complied with his request that she lay on her side, he assaulted her.

[¶10] On June 8 and 9, 2018, Campbell County Sheriff's Office Investigator Kristen Antle interviewed Ms. Heying to gather further information about the assault. Ms. Heying told Investigator Antle that Mr. Neidlinger threatened her with a knife that had a rainbow design on it.

[¶11] On June 12, 2018, deputies with the Campbell County Sheriff's Office executed a search warrant at Mr. Neidlinger's residence and an arrest warrant. When the deputies arrived, they found Mr. Neidlinger in bed.

Numerous knives were scattered around the bedroom. A knife like the one Ms. Heying described to Investigator Antle was found on the side of the bed on which Mr. Neidlinger was sleeping, and "it was within about six feet ... of where he was laying."

[¶12] Also on June 12, 2018, the State charged Mr. Neidlinger in case CR 8403 with the felony offenses of First Degree Sexual Assault, in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (Count I); Aggravated Assault and Battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii)(b) (Count II); First Degree Sexual Assault, in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (Count III); First Degree Sexual Assault, in violation of Wyo. Stat. Ann. § 6-2-302(a)(ii) (Count IV); and misdemeanor Battery, in violation of Wyo. Stat. Ann. § 6-2-501(b) (Count V). The State later amended the Information on July 12, 2018, to drop one of the first-degree sexual assault counts, Count III, while the remaining counts (IV and V) were renumbered III and IV.

[¶13] Investigator Antle interviewed Mr. Neidlinger on June 13, 2018. She testified that during this interview, Mr. Neidlinger denied having anal intercourse with Ms. Heying, and that when he was asked about the possibility of his DNA being found on the DNA swab of her rectum, he stated "that she possibly could have DNA in her anus because of rolling around in the sheets." Investigator Antle further testified that in a recorded telephone call that Mr. Neidlinger gave two additional explanations as to why his DNA could have been found in Ms. Heying:

A. One explanation was that he was sweating really badly in blankets, and when he had left to go to the hospital, upon his return she was then wrapped in those same blankets, and that's possibly how his DNA could be found in her anus.

Another explanation was that during a sexual encounter with another woman, there may be some old residue that she maybe had scooped up and stuck up her anus herself.

[¶14] Also during the interview, Mr. Neidlinger disclosed that he had "nude pictures" of Debra Heying on his cell phone, and claimed that the pictures and a video had been taken with her consent. Ms. Heying indicated otherwise in subsequent interviews. After further investigation into the contents of Mr. Neidlinger's cell phone, on July 26, 2018, the State charged him in case CR 8464 with two felony counts of voyeurism in violation of Wyo. Stat. Ann. § 6-4-304(b)(i) for capturing images or video without Ms. Heying's consent or knowledge.

[¶15] On August 30, 2018, defense counsel moved to join cases CR 8403 and CR 8464 pursuant to Rule 13 of the Wyoming Rules of Criminal Procedure ("W.R.Cr.P."). She argued that the facts and circumstances alleged were all part and parcel of the same case, and that both cases related to the relationship between the defendant and Ms. Heying. The State did not object to joinder, and in fact conceded that "had the State been aware of the voyeurism or the alleged voyeurism, it all would have been done in the same Information." On September 5, 2018, the district court granted the motion and joined the cases for trial.

[¶16] After a three-day trial, the jury found Mr. Neidlinger guilty of first-degree sexual assault for the June 8, 2018 anal intrusion, as charged in Count III of CR 8403, and guilty of the two counts of voyeurism based on the photos and video found on his phone, as charged in CR 8464.

[¶17] On May 15, 2019, the district court sentenced Mr. Neidlinger to not less than twenty years nor more than thirty years imprisonment on Count III in case CR 8403, to run concurrent with both sentences in case CR 8464. In CR 8464, the district court sentenced Mr. Neidlinger to not less than twenty months nor more than twenty-four months incarceration for both counts, to run concurrent with each other and the first-degree sexual assault conviction in case CR 8403. Mr. Neidlinger timely appealed the judgment and sentence relating to the sexual assault.

[¶18] On October 11, 2019, Mr. Neidlinger, through new cou...