Ridinger v. State, 010721 WYSC, S-20-0090

Docket Nº:S-20-0090
Opinion Judge:KAUTZ, Justice.
Party Name:MARTIN ALAN RIDINGER, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
Attorney:Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan. Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assist...
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Case Date:January 07, 2021
Court:Supreme Court of Wyoming

2021 WY 4

MARTIN ALAN RIDINGER, Appellant (Defendant),


THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-20-0090

Supreme Court of Wyoming

January 7, 2021

Appeal from the District Court of Albany County The Honorable Tori R.A. Kricken, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M. Mercer, Assistant Attorney General. Argument by Ms. Mercer.


KAUTZ, Justice.

[¶1] Martin Alan Ridinger appeals from his conviction for first-degree sexual assault. He claims the State's delay in bringing charges against him denied him due process and the prosecutor improperly commented on his right to remain silent during closing argument. We affirm.


[¶2] Mr. Ridinger raises two issues: 1. Did the State's delay in charging Mr. Ridinger violate his right to due process under the Fifth Amendment to the United States Constitution?

2. Did the prosecutor's comments during closing argument violate Mr. Ridinger's right to remain silent under the Fifth Amendment to the United States Constitution and art. 1, § 11 of the Wyoming Constitution?


[¶3] In 2010, SW was staying with Keith and Krystal Porter in Laramie, Wyoming.1 In the early morning hours of July 1, 2010, while the Porters were asleep in their bedroom and SW was asleep on the living room couch, John Schnitker and Mr. Ridinger arrived at the house. SW and Mr. Porter woke up and "hung out" with Mr. Schnitker and Mr. Ridinger in the living room. After a few hours, Mr. Schnitker and Mr. Ridinger offered to take SW to the store to buy cigarettes. She agreed to go with them; Mr. Porter stayed home.

[¶4] Mr. Schnitker drove, Mr. Ridinger sat in the front passenger seat, and SW sat in the back seat behind Mr. Schnitker. Instead of going to buy cigarettes, Mr. Schnitker went to Walmart and bought bottles of air duster. After he and Mr. Ridinger huffed some air duster, Mr. Schnitker said he needed to stop at his grandmother's house to "grab something really quick."

[¶5] Mr. Schnitker parked the car between the house and a shed, got out of the car, opened SW's door, pulled down his pants, and stuck his penis in her face. She pushed him away with her hand and told him to take her home. Mr. Schnitker then reached for her underwear; SW told him, "Please don't. I'm on my period." Mr. Schnitker ignored her, pulled down her underwear, took out her tampon, and penetrated her vagina with his penis.

In the meantime, Mr. Ridinger had moved from the front-passenger seat to the back-passenger seat. While still penetrating her vagina with his penis, Mr. Schnitker flipped SW over from her back to her stomach, grabbed her hair with his hand, and forced her mouth on Mr. Ridinger's penis. At some point, Mr. Schnitker told Mr. Ridinger "it was his turn" and they switched positions, with Mr. Ridinger penetrating SW's vagina with his penis and Mr. Schnitker forcing SW to perform fellatio on him.

[¶6] Mr. Schnitker and Mr. Ridinger eventually got back into the front seats of the car, and Mr. Schnitker drove to a Loaf 'N Jug on South Third Street to buy cigarettes. They then took SW back to the Porters' house. When SW got out of the car, Mr. Schnitker made her kiss him and told her if she told anybody what had happened, she would be dead. When she got inside the Porters' house, she collapsed to the floor and started crying. Mrs. Porter called the police.

[¶7] Albany County Sheriff's Deputy Bill Smith and Sergeant Curtis Hicks responded to the Porter residence. SW told them Mr. Schnitker and Mr. Ridinger had sexually assaulted her and described the details and location of the assault. Sergeant Hicks went to the scene to gather evidence, including SW's tampon, but found nothing. Mrs. Porter drove SW to the hospital, where a Sexual Assault Nurse Examiner (SANE nurse) prepared a rape kit, including taking swabs of SW's cervix. The nurse noted SW was menstruating and found a red abrasion on her cervix. Subsequent DNA testing revealed the presence of Mr. Ridinger's DNA on SW's cervical swabs and clothing.

[¶8] The State charged Mr. Ridinger with two counts of first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(1) (LexisNexis 2019) based on the vaginal intercourse (Count 1) and fellatio (Count 2). Mr. Ridinger did not testify at trial, but the State played for the jury a recorded interview he had with a detective in August 2018. During the interview, Mr. Ridinger initially denied knowing SW and having sex with her. However, upon being confronted with SW's accusations against him, Mr. Ridinger admitted SW asked him to have a threesome with her and Mr. Schnitker. He claimed she performed fellatio on him in Mr. Schnitker's vehicle while parked in the grandmother's driveway. He denied having vaginal intercourse with her.

[¶9] Mr. Schnitker also testified the sexual encounter was consensual. He told the jury that while they were at the Porters' house, he and Mr. Ridinger "grop[ed]" and kissed SW and she "grop[ed]" each of them. They left the Porters and drove to his grandmother's house because they wanted to have a threesome and he wanted to see his cousin, who was staying there. Once they arrived at his grandmother's house, Mr. Schnitker watched the horses while SW and Mr. Ridinger "were making out in the back seat, fooling around." SW eventually began rubbing Mr. Schnitker's chest and said, "[C]ome on, don't you want to get in on this?" Mr. Schnitker reclined his seat, unbuttoned his pants, and SW began giving him oral sex. After a few minutes, he went to the back seat and had vaginal intercourse with SW while she performed fellatio on Mr. Ridinger. He denied SW was on her period or that he removed a tampon. After about 10 minutes, Mr. Schnitker returned to the driver's seat and drove to two different Loaf 'N Jugs on South Third Street to buy cigarettes. Because he did not have an ID, the stores refused to sell to him. After dropping Mr. Ridinger off on Fourth Street, he and SW drove to a Kum and Go, where he went inside and purchased cigarettes while SW stayed in the vehicle. He then dropped SW off at the Porters' house.

[¶10] Mr. Porter told the jury he woke up at about 2:30-3:30 a.m. on July 1, 2010, because he heard "inappropriate noises" coming from the spare bedroom. He described the noises as "whispering, giggling sounds of - like what could have been [sexual] foreplay or was foreplay at the time." He went to the spare bedroom where he found Mr. Schnitker with his hand up SW's nightgown and SW groping Mr. Ridinger. Mr. Porter told them they were being too loud and Mr. Schnitker and Mr. Ridinger had to leave. SW grabbed a coat and went with them. Mr. Porter woke up Mrs. Porter and told her "there was some weird things going on," and he believed SW "would come back to [the] house at some point and claim rape." A few hours later, he observed a vehicle pull up in the alley. SW exited the car from the back seat and walked up the driveway "like nothing had even happened." As soon as she got in the house, she collapsed to the floor and "started crying and said she'd been raped." Mr. Porter admitted he did not know what had occurred after SW left the home with Mr. Schnitker and Mr. Ridinger.

[¶11] The jury found Mr. Ridinger guilty on Count 1 (vaginal intercourse) and not guilty on Count 2 (fellatio). The district court sentenced him to 30-50 years imprisonment. Mr. Ridinger appealed.

[¶12] Additional facts will be provided as needed in our discussion of the issues.


1. Due Process/Pre-Charging Delay

[¶13] The offense occurred on July 1, 2010. The State, however, did not file charges against Mr. Ridinger until February 15, 2019, over 8½ years later. Mr. Ridinger argues the lengthy pre-charging delay violated his Fifth Amendment right to due process. Our review is de novo. Remmick v. State, 2012 WY 57, ¶ 15, 275 P.3d 467, 470 (Wyo. 2012); Humphrey v. State, 2008 WY 67, ¶ 32, 185 P.3d 1236, 1246 (Wyo. 2008) (citations omitted).

[¶14] "Wyoming has no statute of limitations for criminal offenses, and prosecution for such offenses may be commenced at any time during the life of the offender." Phillips v. State, 835 P.2d 1062, 1069 (Wyo. 1992) (citing Story v. State, 721 P.2d 1020, 1026 (Wyo. 1986)). Excessive delay in bringing charges, however, may violate due process. Fortner v. State, 843 P.2d 1139, 1142 (Wyo. 1992) (citation omitted). To establish a due process violation, the defendant must show: (1) the State intentionally delayed bringing charges to gain a tactical advantage over him and (2) he suffered actual prejudice as a result of the pre-charging delay. Humphrey, ¶ 34, 185 P.3d at 1247 (citing United States v. Marion, 404 U.S. 307, 323-26, 92 S.Ct. 455, 465-66, 30 L.Ed.2d 468 (1971)) (other citations omitted). See also, Fortner, 843 P.2d at 1142 ("Wyoming has taken a conjunctive approach to the Marion rule which requires the defendant to establish both an improper prosecutorial motivation which caused the delay and substantial prejudice resulting from it.") (emphasis in original) (citation omitted). Mr. Ridinger has failed to satisfy either prong.

[¶15] Mr. Ridinger claims "[i]t is impossible to ever prove emphatically exactly what the State was thinking" when it decided to pursue the charges 8½ years after the incident. However, he argues the record shows the State opted not to bring charges against him in 2010 "when memories were sharp and evidence could...

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