Rogers v. State

Decision Date05 November 2021
Docket NumberS-21-0027
Citation498 P.3d 66
Parties Sean Alan ROGERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

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

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

GRAY, Justice.

[¶1] Sean Alan Rogers was originally charged with one count of first-degree sexual assault and one count of delivery of a controlled substance. Sixteen days before trial, the State amended its information to include one count of second-degree sexual abuse of a minor. A jury found Mr. Rogers guilty of second-degree sexual abuse of a minor and acquitted him of the other two charges. He appeals, claiming the district court abused its discretion when it allowed the State to amend the information and that it violated his right to a speedy trial. We affirm.

ISSUES

[¶2] The issues are:

1. Did the district court abuse its discretion when it allowed the State to amend the information sixteen days prior to trial?
2. Was Mr. Rogers deprived of his right to a speedy trial?
FACTS
A. Underlying Facts

[¶3] On June 14, 2019, Brandy Blaylock—accompanied by her two children, AG, her fifteen-year-old daughter, and XG, her thirteen-year-old son—went to the hospital in Gillette. Ms. Blaylock was admitted and she asked a friend, Mr. Rogers, if he would come pick up her children. Mr. Rogers picked them up and took them to his home, where they spent the night. The next day, he rented a car and took AG, XG, and a friend of his, Tyler Loman, on a road trip. AG and XG testified that the group drove first to Fort Collins and then to Denver, Colorado, where Mr. Rogers bought marijuana and marijuana product known as wax.1

[¶4] Late that night, the group returned to Mr. Rogers’ home in Gillette. AG and XG testified that on their return, they smoked the marijuana and wax in the garage. According to AG, the wax was much stronger than marijuana in plant form. She testified that her head "really hurt and [she] felt dizzy." AG and XG eventually went to the basement to sleep. AG testified that she was awakened by Mr. Rogers. The next thing she remembers is waking up on Mr. Rogers’ bedroom floor with Mr. Rogers on top of her. AG stated that she felt him "inside" of her and that she "tried to scream" but "nothing came out." She testified that she was still under the influence of marijuana. After this, she went into the bathroom and noticed that her shirt was wet and her clothes were disheveled. She returned home the next day and threw her shirt and pants under her bed. A couple of weeks later, she told her mother what had happened. Her mother retrieved her clothes and took them to the police station where she and AG reported AG's account of the assault to law enforcement.

[¶5] Mr. Rogers recounted events differently. He testified that he, AG, XG, and Mr. Loman drove, not to Colorado, but to Cheyenne, where he purchased tobacco and CBD oil at two separate smoke shops. He testified that after the group returned to Gillette, AG and XG went downstairs where they had slept the previous night. He remained in the garage where he drank two beers and slept until the next morning. Mr. Rogers also testified that he did not assault AG.

[¶6] Crime lab analysis found seminal fluid on AG's pants and shirt. DNA profiles of the sperm samples were consistent with Mr. Rogers’ DNA. Nonsperm samples "demonstrated the presence of a mixture [of DNA] from which" Mr. Rogers, AG, and an additional unidentified individual could not be excluded.2

B. Initial Charges

[¶7] On October 17, 2019, the State charged Mr. Rogers with one count of first-degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-302(a)(iii),3 and one count of delivery of a controlled substance, in violation of Wyo. Stat. Ann. § 35-7-1031(a)(ii).4 At his arraignment on November 15, 2019, Mr. Rogers pled not guilty to both counts. Mr. Rogers filed a written demand for speedy trial. The district court set a motion cut-off deadline of January 24, 2020, and a trial for March 23, 2020.

C. Trial Continuances

[¶8] On March 19, 2020, citing the COVID-19 pandemic, the district court continued Mr. Rogers’ trial to May 5, 2020, a date within 180 days of his arraignment. On April 17, 2020, the district court notified the parties—that due to the worsening pandemic and this Court's Order Adopting Temporary Plan to Address Health Risks Posed by the COVID-19 Pandemic (COVID-19 Restriction Order), which recommended in-person proceedings be suspended until May 31, 2020—it proposed continuing Mr. Rogers’ trial beyond the W.R.Cr.P. 48, 180-day speedy trial deadline. Trial was set for July 14, 2020. On May 15, 2020, an updated COVID-19 Restriction Order loosened some of the recommendations for non-jury in-person proceedings, but it also recommended that no jury trials take place until August 3, 2020, and then only after development of written plans to assure the safety of all participants in those trials. On June 5, 2020, the district court again continued Mr. Rogers’ jury trial to comply with the recommendations in the updated order. Trial commenced on August 3, 2020.

D. The Amended Information

[¶9] On June 30, 2020, the State filed a motion to amend the information to add a charge of second-degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-315(a)(i).5 As grounds, the State asserted it had "recently received information" from a telephone call made by Mr. Rogers from jail. Based on that call, the State believed Mr. Rogers might allege AG consented to the assault, in contrast to the position he had taken in his police interviews which was that the assault never occurred. The State argued its request to amend the information adding a new charge was justified because of "the new alleged circumstances." The call underlying the State's motion was between Mr. Rogers and his pastor. Mr. Rogers objected to the amendment arguing the conversation was protected by the clergyman-penitent privilege and any use of it would violate his constitutional right to free exercise of religion. On July 17, 2020, the district court granted the motion to amend the information. At his arraignment on the added charge, Mr. Rogers pled not guilty.

E. The Verdict

[¶10] The jury convicted Mr. Rogers of second-degree sexual abuse of a minor and acquitted him of first-degree sexual assault and delivery of a controlled substance. The district court sentenced him to a prison term of between thirteen and seventeen years. Mr. Rogers appeals.

DISCUSSION
I. Did the district court abuse its discretion when it allowed the State to amend the information sixteen days prior to trial?

[¶11] Wyoming Rule of Criminal Procedure 3(e) governs motions to amend an information. It provides:

(e) Amendment of information or citation. ... The court may permit an information or citation to be amended:
(1) With the defendant's consent, at any time before sentencing.
(2) Whether or not the defendant consents:
(A) At any time before trial if substantial rights of the defendant are not prejudiced.
(B) At any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.

W.R.Cr.P. 3(e) (emphasis added). If a defendant does not consent to an amendment, as was the case here, the court may permit an amendment to the information "any time before trial if substantial rights of the defendant are not prejudiced." W.R.Cr.P. 3(e)(2)(A).

[¶12] When the State moved to amend the information adding the second-degree sexual abuse of a minor charge, Mr. Rogers argued that his communications were protected by the "clergyman-penitent privilege," and that use of the phone call between him and his pastor would "have a chilling effect on [his] First Amendment rights" and would violate his right to the free exercise of religion. The district court granted the State's motion, reasoning:

[Mr. Rogers’] arguments regarding the recording of his allegedly privileged communication are a red herring. Whether the State can use the evidence obtained from the recording is a wholly different question from whether the State can amend the information. Based upon the current record, the Court cannot determine if the communication remained privileged or the privilege was waived. It appears [Mr. Rogers] knowingly spoke on a recorded line without making any request for a confidential communication. However, that is irrelevant to the question of whether [Mr. Rogers’] substantial rights would be prejudiced by allowing an amended charge. ... [T]he Court concludes that [Mr. Rogers’] substantial rights will not be prejudiced by amending the information to include a charge based upon the exact same facts underlying the existing charges.

[¶13] On appeal, Mr. Rogers does not raise privileged communication or violation of his First Amendment constitutional rights—his arguments below. He argues, instead, that the district court abused its discretion when it granted the motion to amend the charge sixteen days before trial after concluding his substantial rights were not prejudiced. He asserts that the amendment was untimely given that the evidence underlying it was not new; it violated W.R.Cr.P. 3 by charging a new offense; it was illegal as he received no preliminary hearing on the new charge; and it prejudiced him because he had insufficient time to prepare to defend against the new charge. The State argues that Mr. Rogers waived these arguments because he failed to raise them below.

[¶14] An argument may not be made for the first time on appeal. Davis v. State , 2018 WY 40, ¶ 32, 415 P.3d 666, 678 (Wyo. 2018) ; Black v. State , 2017...

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5 cases
  • Gilbert v. State
    • United States
    • Wyoming Supreme Court
    • 23 Mayo 2022
    ...trial because the only objection appellant made at trial was that the testimony was hearsay); Rogers v. State, 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) argument may not be made for the first time on appeal . . . . Parties are bound by the theories they advance below because it is not ......
  • Borja v. State
    • United States
    • Wyoming Supreme Court
    • 3 Febrero 2023
    ...we have repeatedly held we will not consider an issue raised for the first time on appeal. Rogers v. State , 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) (citing Davis v. State , 2018 WY 40, ¶ 32, 415 P.3d 666, 678 (Wyo. 2018) ; Black v. State , 2017 WY 135, ¶ 15, 405 P.3d 1045, 1051 (Wyo......
  • Gilbert v. State
    • United States
    • Wyoming Supreme Court
    • 23 Mayo 2022
    ...trial because the only objection appellant made at trial was that the testimony was hearsay); Rogers v. State , 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) ("An argument may not be made for the first time on appeal .... Parties are bound by the theories they advance below because it is n......
  • Borja v. State
    • United States
    • Wyoming Supreme Court
    • 3 Febrero 2023
    ...and we have repeatedly held we will not consider an issue raised for the first time on appeal. Rogers v. State, 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) (citing Davis State, 2018 WY 40, ¶ 32, 415 P.3d 666, 678 (Wyo. 2018); Black v. State, 2017 WY 135, ¶ 15, 405 P.3d 1045, 1051 (Wyo. 2......
  • Request a trial to view additional results

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