Person v. State

• Decision Date: 29 November 2004
• Docket Number: No. 03-103.,03-103.
• Citation: 2004 WY 149,100 P.3d 1270
• Parties: Daniel PERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

100 P.3d 1270

2004 WY 149

Daniel PERSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Defendant).

No. 03-103.

Supreme Court of Wyoming.

November 29, 2004.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; James C. Worthen, Student Intern; Diane Courselle, Director, Defender Aid Program; and Atoine Tissot, Student Intern. Argument by Ms. Corselle and Mr. Tissot.

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

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

HILL, Chief Justice.

[¶ 1] Appellant, Daniel Person (Person), disputes the validity of his conviction for the crime of taking immodest, immoral or indecent liberties with a minor.¹ The crime was committed on January 6, 2002. Person was 34 years old at that time. The victim of the crime will be identified as CC. CC was 15 years old at the time of the crime and is the son of one of Person's close friends from high school days. A friend of CC's, who was in the same room with CC at the time Person committed the crime, will be referred to as KT. KT was 11 years old at the time of the crime. KT was the son of another of Person's close friends, and Person was KT's godfather. Person contends that the district court erred by refusing to allow the admission of testimony from KT relating to Person's defense that CC had a motive to lie about the incident, that the prosecutor engaged in misconduct by exhorting the jury to convict Person for reasons other than those supported by the evidence, and by preconditioning the jury during voir dire. We will affirm.

ISSUES

[¶ 2] Person provides this statement of the issues:

I. Whether the trial court denied Mr. Person his constitutional right to present a defense by refusing to admit testimony of KT.

II. Whether prosecutorial misconduct occurred when the State argued for the jury to convict Mr. Person for reasons other than the evidence and when the State preconditioned the jury during voir dire.

The State reformulates the issues somewhat:

I. Whether the trial court abused its discretion when it refused to admit KT's inadmissible testimony about the victim?

II. Whether the prosecutor's conduct of voir dire, or his closing argument, violated a clear and unequivocal rule of law in a clear and obvious way, resulting in substantial prejudice to [Person]?

FACTS

[¶ 3] CC had known Person all of his life as a close family friend. On January 5, 2002, CC and his father were fixing a broken sewer pipe in the family home. Person arrived at CC's home, accompanied by KT who was also a friend of both Person and CC. KT asked CC if he wanted to go shooting with Person and KT the following day. The plan included that the friends would stay overnight with Person at his home. CC's parents agreed to let their son go with Person and KT. CC had spent a lot of time with Person and had stayed overnight at his house several times before, usually with KT also there. On the way to Person's house the three stopped at McDonalds to get something to eat.

[¶ 4] Once at Person's home, the three ate their food, watched TV, and played board games and cribbage. They went to a movie at about 9:30 p.m. After the movie they returned to Person's home to watch TV and fall asleep. KT slept on the floor in a sleeping bag, CC slept on the couch, and Person was sitting in a reclining chair. CC was clad in sweat pants that he had borrowed from Person and his own T-shirt. Around 3:00 a.m. Person went to bed, and CC continued to watch TV for a while longer. CC knew that KT was asleep because he tried to talk to him and KT did not respond. CC looked and noticed that his eyes were closed and he was asleep. CC then fell asleep.

[¶ 5] The next thing CC remembered is waking up and finding Person with his hand up the leg of CC's sweat pants and feeling his testicles. CC was scared and thought of running out right away, but because he was scared ("I didn't really know what would happen if I woke up or if I stopped him."), he just rolled over and Person pulled his hand out of CC's pants and left. A short time later, Person returned and this time placed his hand into CC's pants under the waistband and began "rubbing" CC's penis. CC again turned over, but said nothing because he was afraid ("I didn't know if he would hurt me or not."). At this point CC was turned over onto his stomach and Person stopped. CC heard Person go through the kitchen and up the creaky stairs to his bedroom on the second floor of the house. CC then got up and dressed in all of his clothes, left through the sliding-glass door entrance of Person's house, and went home. CC's home was a considerable distance away from Person's house, and it took him almost an hour to make the walk/run home. The molestation occurred between approximately 3:45 and 4:30 a.m. CC said he left Person's house at 4:35 a.m. CC related that KT was asleep on the floor throughout this entire episode. CC thought of waking KT, but was afraid he would wake up Person if he did. CC was concerned about KT but wanted to get home first and tell his parents what had happened.

[¶ 6] During CC's journey home, Person apparently awakened and noticed that CC was gone. Person looked for CC for a time and it was Person shouting CC's name that awakened KT. Person called CC's parents to tell them that he could not find CC and did not know where he was. When CC arrived home, his mother was awake and grabbed him and asked him where he had been. CC told her that Person had "rubbed" him. CC went into his parents' bedroom, lay down on the bed and cried.²

[¶ 7] During his testimony, CC related that his parents had told him that if anything like this molestation ever happened to him, he was to tell them right away. CC indicated that he had not been taught to do that in school, nor had he discussed it with friends. He did not know anyone who had been fondled as Person had done to him, and it had never happened to him before. He did know what "molest" meant from school.

[¶ 8] CC's mother testified that she received a call from Person at about 4:30 a.m. on January 6, 2002, during which he reported that he couldn't find CC. CC's father left and drove to Person's house. CC's father called from Person's house and reported that they could not locate CC and that he had called the sheriff's office. Shortly after that, CC entered the back door of the family home and was confronted by his mother: "He was crying and freezing and he grabbed my shoulder and he said Dan had his hands down my pants. He laid down on my bed and cried." After CC's father returned to the family home, the police were called and CC related his story to the police.

[¶ 9] CC's father also testified about the late night call from Person and that he immediately got up and drove to Person's house. He testified that he and Person walked around Person's property calling CC's name, drove around the general area for a short time, and then went back to Person's house and called the sheriff's office. Shortly after that, CC's mother called Person's house to report that CC was home, and that he claimed to have been molested by Person. CC's father also testified that Person seemed more interested in what CC had said rather than his well-being. CC's father told Person what CC had said and then immediately left Person's house, for fear of what he might do to Person. He repeated the earlier testimony that the police were called and they came and took CC's statement, as well as the statements of the parents.

[¶ 10] KT was called as a defense witness and he testified that, although he stayed overnight frequently with Person, he had never been inappropriately touched by him. It is during KT's testimony that one of the central issues in this case arose. Person's attorney asked whether CC had ever told KT about having sex with someone, and the State objected to that line of questioning. The defense contended that the question was proper because it might have demonstrated a prior inconsistent statement by CC with respect to his sexual experiences. The district court sustained the objection. Defense counsel then moved to another line of questioning, which was how CC got along with his father. The State again objected and the district court sustained the objection on the basis of relevance. Defense counsel asked to make an offer of proof outside the hearing of the jury. Defense counsel contended that CC was often intimidated by his father and that he might be motivated to lie about the molestation incident because of that. The district court stuck to its ruling on unspecified grounds. KT also testified that he slept on the floor beneath the couch where CC was sleeping and that he did not wake up until he heard Person calling CC's name. KT testified that that was at about 1:00 or 2:00 a.m.

DISCUSSION

KT's Testimony

[¶ 11] Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion. We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria. It also means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. In the absence of an abuse of discretion, we will not disturb the trial court's determination. The burden is on the defendant to establish such abuse. Wilde v. State, 2003 WY 93, ¶ 13, 74 P.3d 699, ¶ 13 (Wyo.2...