Schmidt v. State, 00-160.

• Decision Date: 13 August 2001
• Docket Number: No. 00-160.,00-160.
• Citation: 29 P.3d 76,2001 WY 73
• Parties: William Wade SCHMIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

29 P.3d 76

2001 WY 73

William Wade SCHMIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-160.

Supreme Court of Wyoming.

August 13, 2001.

Rehearing Denied September 4, 2001.

Representing Appellant: Mike Cornia, Evanston, WY. Argument by Mr. Cornia.

Representing Appellees: Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General. Argument by Ms. Baker.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ., and DAN SPANGLER, D.J. (Ret.).

HILL, Justice.

[¶ 1] Appellant, William Wade Schmidt (Schmidt), brings this ten-issue challenge to his conviction for immoral and indecent acts¹ with a child under the age of 18 years. In this instance, the female victim was 11 years old.

[¶ 2] We affirm.

ISSUES

[¶ 3] Schmidt poses these issues for resolution by this Court:

I. Does the lack of an adequate record for appellate review require reversal[?]

II. Whether the admission of the numerous prior consistent statements of the complainant requires reversal[.]

III. Did the trial court correctly instruct the jury as to the essential elements of the crime[?]

IV. Was a lesser included offense instruction required[?]

V. Did the legislature intend that the indecent liberties statute apply to the alleged conduct[?]

VI. Is W.S. § 14-3-105 void for vagueness in that it allows or invites the jurors to follow their personal predilictions [sic] in deciding guilt or innocence[?]

VII. Is it a violation of the Appellant to equal protection under the Federal and Wyoming Constitutions[?]

VIII. Was the admission of prior inconsistent statements plain error[?]

IX. Did the limitation of cross-examination of the complaining witness deny the Appellant his right to confrontation[?]

X. Was the Appellant denied his right to effective assistance of counsel

In response, the State summarizes the issues thus:

I. Whether the record is adequate for appellate review?

II. Whether the trial court's evidentiary rulings were correct?

III. Whether the trial court properly instructed the jury?

IV. Whether Appellant was properly charged and convicted under the indecent liberties statute?

V. Whether Appellant received effective assistance of counsel?

FACTS

[¶ 4] The evidence at trial showed that at about 1:00 p.m. on Saturday, June 19, 1999, the victim went to Schmidt's home to play with his children, something she frequently did. On that date, she was 11 years of age. When she arrived at the Schmidt household, Schmidt's wife and children were just leaving to go swimming, so the victim returned home. However, the weather had turned to thunderstorms and rain so the victim returned to the Schmidt home because she thought her friends would be returning home soon. She was waiting under a tree in the front yard for her friends to return when Schmidt came out of the house and invited her to come inside. The victim entered the house, and for a few minutes she and Schmidt watched TV. However, because the TV reception was not good, Schmidt turned the TV off and began asking the victim a series of questions. First, he asked if the victim had started puberty, and, not knowing what that meant at that time, she apparently did not answer the question. Schmidt then asked her if she had ever shown anyone her private parts, and the victim answered, "No." At this point, the victim stated she felt scared. Schmidt next asked if she would show her private parts to him, and she again answered, "No." At this point, the victim indicated that she felt "scareder." Next, Schmidt asked the victim if she knew the names of a woman's private parts, and she again answered, "No." Undeterred, Schmidt then asked the victim if she would like to see a book on that subject. The victim initially answered "No," but when Schmidt persisted, she said, "Okay." He left the room and returned with a magazine. Schmidt showed the magazine to the victim and used the words "lips and clip" to describe a woman's private parts. The victim used these words to describe the pictures she was shown by Schmidt:

A. One picture had a line going through it like this and the top picture had a woman spreading her private part open with a man's private part in hers and then on the bottom, it showed his private part all the way in hers.

Q. Were there any other pictures near that one that you saw?

A. Yes.

Q. What did the other picture look like?

A. It had a picture of a—a cliff with a sunset in the background and a tree next to a guy with a woman over his shoulder.

[¶ 5] The victim also indicated that the woman in the picture did not have clothes on and that the man was dressed in armor. Later evidence demonstrated that the victim accurately described photographs from a Penthouse magazine that was seized from Schmidt's bathroom during a search pursuant to warrant of the Schmidt household.

[¶ 6] Next, Schmidt sat down on a couch in his living room and asked the victim if she had ever seen a man's private part, and she said, "No." He then asked her if she would like to see his private part. The victim testified that she felt "scared" but replied, "I guess so," because she felt frightened and "didn't know what to do." To cut this sordid litany short, Schmidt then pulled down his shorts and masturbated in the victim's presence. The victim then left the Schmidt house and returned home.

[¶ 7] Two of Schmidt's issues relate to the introduction in evidence of prior consistent statements of the victim, as well as prior inconsistent statements of members of Schmidt's family. For this reason, it is appropriate that we note at this juncture that, in his opening statement, Schmidt's attorney posited that the evidence to be presented by the defense would show that it was not possible that the events described by the victim could have taken place, i.e., that she was making it all up.

[¶ 8] The victim returned home, washed the dishes, and then went to bed because she felt "sick and yuckie." The next day, which was Father's Day, June 20, 1999, the victim related the events described above to her cousin, who was staying at the victim's home. That cousin testified and repeated what she had been told by the victim. The cousin also testified that the victim was usually "always happy," but on June 20th she was "crying real bad" and was having trouble breathing.

[¶ 9] The victim's stepsister also testified and related that on June 19th, the victim came home and went to bed saying she was sick and the following day related the story of what Schmidt did to her. The stepsister also testified that the victim insisted on having her bedroom window closed, even though it was hot, because if it were open, "he [Schmidt] would be able to come inside our room and kill her because she told or get her because she told."

[¶ 10] The victim also told her Father of the above-described events, and he testified about what she had told him and what his reactions were. He also described her dramatic change in mood and behavior following the June 19th incident, including fear of reprisal from Schmidt. On the day his daughter told him of the incident, the Father went to the Schmidt house and confronted Mrs. Schmidt about the incident, because Mr. Schmidt was not available (he was in the shower). This confrontation created some confusion for the Schmidts because the Father was, at that time, under the impression that the incident had happened on June 20th, rather than June 19th.

[¶ 11] Joyce Coffey, an elementary school guidance counselor with a Master's Degree in counseling, who also had considerable training and experience dealing with children that are the victims of molestation, testified about some of the characteristics of the instant victim in particular, as well as some of the characteristics noted in molestation victims in a more general sense. David Thorne, an employee at Southwest Counseling Service, provided similar expert testimony. During his testimony, another prior consistent statement given by the victim was presented to the jury by means of the reading of a portion of a transcript wherein the victim was interviewed by a Child Advocacy Team. That statement was consistent with her testimony during the trial, as well as her other prior consistent statements set out more fully above.

[¶ 12] Several members of Schmidt's family testified in the defense portion of the trial. Schmidt himself testified briefly, and his testimony was to the effect that he arrived at home from work at about 7:15 a.m. on June 19th, ate breakfast, and then slept until about 4:00 p.m. (which would have him home asleep when the events described by the victim occurred). Schmidt's wife testified that she was home all day on June 19th, except for one hour between 1:00 p.m. and 2:00 p.m. She also testified that her stepson was at home watching a movie when she left at 1:00 p.m. and was still home watching that same movie when she returned an hour later (although she did concede she could not know whether or not he was home for the hour she claimed to be gone).

[¶ 13] Schmidt's son testified that he was home all day on June 19th, and his testimony strongly suggested that the events described by the victim could not have occurred. However, the son was impeached with a prior inconsistent statement he had given at, or very near, the time of the incident wherein he related that he had been gone from home at the time the events testified to by the victim occurred. As a general matter, even the cold record strongly suggested that his testimony was not truthful.

[¶ 14] Schmidt's niece testified and one point made in her testimony was that the victim and Schmidt's son had a two-day long "girlfriend-boyfriend" relationship and that the son had broken off that relationship (suggesting a motive for the victim to lie). The niece initially verified that they were only gone from the house for one hour (to go swimming)...