Punches v. State, 96-139

• Decision Date: 03 September 1997
• Docket Number: No. 96-139,96-139
• Citation: 944 P.2d 1131
• Parties: James Eugene PUNCHES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1131

944 P.2d 1131

James Eugene PUNCHES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 96-139.

Supreme Court of Wyoming.

Sept. 3, 1997.

Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Diane M. Lozano, Assistant Appellate Counsel; Michael Dinnerstein, Director, Wyoming Defender Aid Program; Walter Eggers III, Student Director, and Joseph D. Richer, Student Intern, Wyoming Defender Aid Program, for Appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General; Kimberly A. Baker-Musick, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; Anthony P. Garcia and Susan E. Schell, Student Interns, Prosecution Assistance Program, for Appellee.

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

GOLDEN, Justice.

Appellant James E. Punches appeals his conviction on one count of incest for which he was sentenced to three and one-half years to five years in prison. He claims inflammatory pretrial publicity and improperly admitted evidence deprived him of a fair trial.

We affirm.

ISSUES

Punches presents these issues for our review:

I. Did the trial court deprive the Appellant of his right to a fair trial by denying the Appellant's Motion to Change Venue, even though inflammatory pretrial publicity in the local papers had prejudiced the public against the Appellant?

II. Did the trial court deprive the Appellant of his fundamental right to a trial by jury when it permitted expert opinion testimony that the complaining witness had been sexually assaulted and a further opinion as to the identity of the perpetrator?

III. Did the trial court deny the Appellant his right to a fair trial by ruling that the prosecution's principal witness was competent to testify even though he admitted he did not know what the truth was?

IV. Did the trial court improperly deny the Appellant his right to confront the prosecution's principal witness with evidence of that witness' dishonest character?

V. Did the trial court deny the Appellant his right to present evidence of his lawful character when it erroneously excluded evidence that the Appellant had no prior convictions or arrests?

VI. Did the trial court deprive the Appellant of his right to a fair trial by refusing to exclude evidence alleging prior bad acts and crimes by the Appellant with which the Appellant was never even charged?

The State rephrases these issues as:

I. Did the district court properly deny Appellant's motion for a change of venue?

II. Did the district court properly admit the testimony of the State's expert witness, Dr. Hansen?

III. Did the district court abuse its discretion when it found the child victim competent to testify against his father?

IV. Did the district court properly exclude evidence of the victim's prior acts?

V. Did the district court properly limit Appellant's evidence of his lawful character?

VI. Did the district court properly admit evidence of Appellant's prior bad acts?

FACTS

On May 10, 1995, a passerby observed Punches having sexual intercourse with his nine-year-old son and later reported the incident to the police. After an initial investigation, the victim was placed in protective custody and eventually examined for sexual and physical abuse at Primary Children's Medical Center in Salt Lake City, Utah. On May 17, 1995, Punches was charged with incest pursuant to WYO. STAT. § 6-4-402(a)(ii). There were newspaper articles about the incident, and Punches filed a motion for a change of venue. After a pretrial hearing, the motion was denied. Pretrial hearings were also conducted on motions to admit evidence of prior bad acts by the defendant and to rule on the competency of the victim as a witness.

In a jury trial, the passerby eyewitness and the victim testified about the sexual abuse on May 10, and the child testified about numerous other incidents of sexual abuse against him by Punches. Physicians from Primary Children's Medical Center testified that the victim had physical injuries consistent with sexual abuse and had emotional problems consistent with severe sexual abuse over a period of time. Several professionals associated with the child's school also testified concerning multiple incidents of sexualized behavior that had been noted as possibly indicating sexual injury or trauma and described the victim's behavior on May 11, 1995, the day after the sexual abuse occurred, as destructive and "out of control." After a three day trial, the jury convicted Punches, and he was sentenced to three and one-half years to five years in the Wyoming State Penitentiary. This appeal followed.

DISCUSSION

In his first argument, Punches asserts that inflammatory pretrial publicity required a change of venue, and the trial court abused its discretion in denying his motion for one. In the alternative, he contends that the district court should have sequestered the jury during the proceedings. Before a jury was seated, newspaper articles ran which Punches asserts prejudiced the public and made it impossible to seat an impartial jury from Sweetwater County.

WYO. R.CRIM. P. 21 provides the following about change of venue:

Rule 21. Transfer from the county for trial.

(a) Prejudice within county.--Upon timely motion of the defendant, the court shall transfer the proceeding as to that In Murry v. State, 713 P.2d 202 (Wyo.1986), this Court established a two-part test to determine whether a change of venue should be granted because of publicity: "First, the nature and extent of the publicity must be considered; second, the difficulty or ease in selecting a jury must be considered along with the amount of prejudice which actually appears during voir dire examination." Id. at 208. However, "there is no requirement that a juror be ignorant of the facts and issues involved in a case." Id. The defendant must demonstrate the existence of an opinion of guilty in the mind of the juror to raise a presumption of partiality. Collins v. State, 589 P.2d 1283, 1289 (Wyo.1979).

defendant to another county, but only if the court is satisfied that there exists within the county where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county.

The district court held a pretrial hearing on the motion to change venue and essentially concluded that the articles which had run were not likely to have been read by a sufficient number in the jury pool to prevent the impaneling of an impartial jury. During voir dire, those jurors who believed they had heard something of the case were questioned concerning the impact of the publicity on their partiality and stated they had not formed an opinion and would be able to render a verdict based on the evidence presented at trial. The decision to grant a change of venue is within the sound discretion of the trial court and will not be overturned unless there has been an abuse of that discretion. Armstrong v. State, 826 P.2d 1106, 1121 (Wyo.1992); Collins, 589 P.2d at 1289. Nothing in the record indicates that the publicity had an effect on those who served on the jury, and we find no abuse of discretion. Armstrong, 826 P.2d at 1122. Nor do we find the court abused its discretion in not sequestering the jury on its own motion. Collins, 589 P.2d at 1291. Defense counsel did not request sequestration and concurred that the jury was not to be sequestered. Relying on Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), Punches claims the court was required to sequester the jury sua sponte because extensive publicity during the trial was highly prejudicial. As discussed in Collins, the Sheppard decision resulted from the "extremely inflammatory publicity" and the "atmosphere of a carnival" created by media attention causing the court to conclude that the guilt found was the verdict of a mob. Collins, 589 P.2d at 1290. Here, a few largely factual stories were run during the trial and, according to our ruling in Collins, these types of stories are not sufficient to warrant finding that the court should have sequestered the jury. Collins, 589 P.2d at 1291.

Punches next contends that the physician expert who testified that the victim's physical injuries were consistent with sexual abuse impermissibly testified as to his guilt. In Stephens v. State, 774 P.2d 60 (Wyo.1989), we held that a witness may not offer an opinion as to the guilt of the defendant and doing so is reversible error. Stephens, 774 P.2d at 68. In this case, Dr. Hansen, a pediatrician from Primary Children's Medical Center, testified as follows:

Q. In your opinion, Doctor, are the scars that were found on [victim's] anus corroborative of sexual abuse?

A. Yes, they are corroborative of sexual abuse.

Q. Why is that?

A. Well, that seems the most likely way they could [have] happened. I do not think they're from constipation, though it's not impossible. That pretty much leaves a traumatic accident; for instance, impaling yourself on fence posts, something like that. We have no history of that. We have a witnessed event. Two and two put together, I do believe that they're that way from sexual abuse and are corroborative of it.

(Emphasis supplied.) Punches contends that the emphasized portion is evidence the expert testified as to his guilt.

In Betzle v. State, 847 P.2d 1010 (Wyo.1993), we said that, consistent with WYO. R. EVID. 702, expert testimony is admissible if helpful to the trier of fact. Id. at 1023. We said that expert testimony meeting the following (1) the challenged testimony assists the jury in understanding some peculiar aspect of the victim's behavior and (2) the challenged testimony does not involve a comment on the credibility or truthfulness of the victim.

avoids invading the province of the jury:

Betzle, 847 P.2d at 1023. Testifying that the injuries were consistent with...