Owen v. State, 94-252

Decision Date28 August 1995
Docket NumberNo. 94-252,94-252
Citation902 P.2d 190
PartiesRandy Lee OWEN, a/k/a Randy Lee Owens, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Sylvia L. Hackl, State Public Defender; and Deborah Cornia, Appellate Counsel, for appellant.

William U. Hill, Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Mary Beth Wolff, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Bruce Horton and Nell C. Howell, Student Interns for the Prosecution Assistance Program, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

MACY, Justice.

Appellant Randy Owen appeals from the judgment and sentence which was entered after he was convicted of one count of second-degree We affirm as modified.

sexual assault, one count of incest, and one count of immodest, immoral, or indecent liberties with a minor child.

ISSUES

Owen presents the following issues for our review:

Issue I

Did multiple charges and convictions for one event constitute a double jeopardy violation against multiple punishments for one offense?

Issue II

Did the admission of the victim's hearsay statements to a physician and a counselor deprive the Appellant of his constitutional right to confrontation?

Issue III

Whether trial counsel's deficient performance deprived the Appellant of his State and Federal Constitutional rights to effective assistance of counsel.

FACTS

Owen was charged with one count of second-degree sexual assault, one count of indecent liberties, and one count of incest. These crimes were alleged to have been committed on the same person--Owen's daughter. The State alleged that Owen inserted his finger into the genital opening of his daughter who was then approximately seven years old.

While Owen's eight-year-old son was watching television in the living room one evening sometime between December 25, 1993, and January 1, 1994, he saw his father touch his sister with his finger on her private area. Approximately three days after this incident happened, the son told his mother about it. The children's mother contacted the Department of Family Services and filed a report. Thereafter, the children and their mother met and talked with a social worker and a police officer. Owen's daughter was taken to see a physician as well as a mental health therapist. All these individuals testified for the State at Owen's trial.

The defense attorney called Owen and several other witnesses in an attempt to show that Owen had not been spending the nights with his family during the time in question and that his ex-wife was simply a scorned woman who was seeking revenge.

After a two-day trial, a jury found Owen guilty of all three charges. The trial court sentenced Owen to be incarcerated for a term of not less than three years nor more than five years on each count, with the sentences to be served concurrently.

DISCUSSION
A. Double Jeopardy

Owen contends that he was subjected to double jeopardy when separate convictions and sentences on the three charges in this case were imposed because the charges arose out of a single incident. He claims that the indecent liberties and incest charges merged into and should have been included within the second-degree sexual assault charge. We disagree with Owen's contention that he cannot be charged with three separate offenses and with his contention that the incest conviction merges into the second-degree sexual assault conviction for purposes of punishment. We agree, however, with Owen's claim that the indecent liberties conviction merges into the second-degree sexual assault conviction for sentencing purposes.

We have repeatedly stated that the double jeopardy clause provides three protections: "[I]t prohibits a second prosecution for the same offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple punishments for the same offense." Rivera v. State, 840 P.2d 933, 942 (Wyo.1992). We are concerned with the third protection in the case at bar.

We apply the statutory elements test which was defined in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), when we analyze the protection against double jeopardy in terms of multiple prosecutions and cumulative punishments. DeSpain v. State, 865 P.2d 584, 589 (Wyo.1993).

We outlined the Blockburger test in our DeSpain decision "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not."

DeSpain, 865 P.2d at 589 (quoting State v. Keffer, 860 P.2d 1118, 1130 (Wyo.1993)). We explained that this test has a two-fold purpose:

[T]he first is to determine whether the offenses have identical elements, and the second is to determine if some elements of either offense are identical to those of the other. In either instance, concerns about double jeopardy are implicated because a second prosecution and sentence for the identical crime or a second prosecution and sentence for a lesser-included crime are proscribed by the double jeopardy clauses of both our state and the federal constitutions. The essence of this test is that, when the elements or the facts of a charged offense make it separate and distinct from another charged offense, then the intention of the legislature to authorize separate or cumulative punishments for both offenses is presumed. In such an instance, the trial court can lawfully impose separate and cumulative sentences if the defendant is convicted of both crimes.

Id.

We have addressed the issue of whether the State can file multiple charges on the basis of a single act and obtain multiple verdicts from the jury on those charges. Vigil v. State, 563 P.2d 1344 (Wyo.1977). In Vigil, we held that prejudice did not attach to charging, trying, and submitting multiple offenses to the jury and receiving separate verdicts on those charges. Id. at 1354. We revisited this issue in Rivera, where we held that a defendant's right not to be placed twice in jeopardy is not violated when the defendant is convicted and punished on two counts even though he committed both acts during the same encounter. Rivera, 840 P.2d at 943 (citing Baum v. State, 745 P.2d 877 (Wyo.1987)). Separate crimes can be charged, tried, and punished under separate statutes. Id.

We went on to discuss the doctrine of merger of offenses for sentencing purposes:

"In deciding whether offenses merge, the question is whether the offenses charged 'necessarily involve' one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act.

"Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant's conduct constituted more than one injury to the Commonwealth."

840 P.2d at 944 (quoting Commonwealth v. Whetstine, 344 Pa.Super. 246, 496 A.2d 777, 779-80 (1985) (citations omitted)).

Owen was charged with second-degree sexual assault, indecent liberties, and incest. The applicable statutes provide in pertinent part:

(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:

. . . . .

(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[.]

WYO.STAT. § 6-2-303(a) (1988) (second-degree sexual assault).

(a) Any person knowingly taking immodest, immoral or indecent liberties with any child ... is guilty of a felony....

(b) As used in this section, "child" means a person under the age of eighteen (18) years.

WYO.STAT. § 14-3-105 (1994) (indecent liberties).

(a) A person is guilty of incest if he knowingly commits sexual intrusion ... or sexual contact ... with an ancestor or descendant or a brother or sister of the whole or half blood.

WYO.STAT. § 6-4-402(a) (Supp.1994) (incest).

(a) As used in this article:

. . . . .

(vi) "Sexual contact" means touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts;

(vii) "Sexual intrusion" means:

(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) (1988) (definitions).

We have compared the second-degree sexual assault, indecent liberties, and incest statutes. Kallas v. State, 704 P.2d 693, 695 (Wyo.1985). In Kallas, we held the following with respect to these statutes:

All three statutes ... concern sexual activities, but one cannot be said to be more specific than the other. The thrust of the second-degree sexual-assault statute and of the indecent-liberties-with-a-minor statute is age. They are more specific in this respect than is the incest statute. The thrust of the incest statute is family relationship. It is more specific in this respect than are the second-degree sexual-assault statute and the indecent-liberties-with-a-minor statute. There is...

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