Solis v. State

• Decision Date: 11 December 2013
• Docket Number: No. S–12–0246.,S–12–0246.
• Citation: 315 P.3d 622
• Parties: Jaime SOLIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

315 P.3d 622

Jaime SOLIS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0246.

Supreme Court of Wyoming.

Dec. 11, 2013.

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

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Before KITE, C.J., and HILL, BURKE, DAVIS, JJ., and DEEGAN, D.J.

DEEGAN, District Judge.

INTRODUCTION

[¶ 1] Appellant appeals his dual convictions by jury for violating Wyo. Stat. Ann. §§ 6–2–303(a)(vi) and 6–2–303(a)(viii) (West 2010), each proscribing, in the disjunctive, Sexual Assault in the Second Degree.¹ The district court merged the convictions for purposes of sentencing only, imposing concurrent sentences of not less than three (3) nor more than five (5) years incarceration. Separate financial assessments were imposed in respect of each conviction.

[¶ 2] Appellant appeals on the basis of sufficiency of the evidence to establish he was in a position of authority as required by Wyo. Stat. Ann. § 6–2–303(a)(vi), prosecutorial misconduct in two counts and violation of his constitutional right to not be exposed to double jeopardy by the sufferance of two convictions for the same criminal act under disjunctive provisions of one statute. We affirm in all respects excepting the propriety of permitting two convictions to stand. In this respect, we reverse and remand for further proceedings in accord with this opinion.

BACKGROUND

[¶ 3] The victim, KO, was a twenty (20) year old freshman at Northwest Community College in Powell, Wyoming on April 15, 2010. At age fifteen (15), KO was diagnosed by a physician with fibromyalgia and arthritis, conditions which caused her musculoskeletal pain. Her doctors recommended massage therapy, amongst other modalities, to relieve her pain. A woman named Marion Bishop administered massage therapy to KO all during her high school years in Thermopolis, Wyoming. When KO arrived in Powell around September 2009 to attend Northwest Community College, she sought out a new massage therapist. Upon the advice of a local chiropractor, Jessica Tobin, KO selected Appellant, a forty-five (45) year old man who utilized space in Ms. Tobin's office. While there was no evidence Appellant was in fact a certified massage therapist in another state (Wyoming does not require certification), the card he gave to KO indicated he was a certified massage therapist.

[¶ 4] KO advised Appellant she sought out his services because she suffered from fibromyalgia and arthritis. As she started her massage regimen with Appellant, KO followed the same procedure she had followed all during her high school years when she was regularly administered massage therapy by Ms. Bishop: she removed all of her clothing and positioned herself under a sheet—all outside the presence of the massage therapist. When she was ready for the massage to begin, the massage therapist would enter the room and begin the massage. Ms. Bishop or Appellant would administer massage to the various parts of KO's body, all the time working around the sheet draping her so as to allow her to maintain her privacy in respect of her intimate parts. Until the incident in question, this is how Appellant conducted himself. Ms. Bishop testified it was important for a massage therapist to establish a sense of trust with a client, stating that “the more that they trust me, the more relaxed they would be. And the more relaxed they are, the more they benefit from it.” Between September 2009 and April 15, 2010, KO received more than a dozen massages from Appellant—all without incident until April 15, 2010.

[¶ 5] On April 15, 2010, KO made arrangements for a massage by Appellant. It took place at the private space made available to Appellant at the offices of Ms. Tobin. Because she was menstruating, KO, as was her practice in such circumstances, shed all of her clothing except for her panties. She was wearing a tampon.

[¶ 6] The massage treatment began. First prone, then supine, KO submitted herself to Appellant's massage ministrations and followed his instructions—as she always had with Ms. Bishop and with Appellant. She completely trusted Appellant, as she had Ms. Bishop in Thermopolis. KO had informed Appellant, prior to the massage, that her legs, hips and knees were particularly bothering her and would thus need special attention.

[¶ 7] Once KO was supine, Appellant massaged KO's knees, then her hips. Then, towards the end of the massage, unexpectedly and without her consent, Appellant, according to KO, slipped his hand inside her underwear and digitally penetrated her vagina. As he was doing this, he was touching her breasts with his other hand. Appellant had never previously massaged KO in any area close to her vagina. As Appellant continued in-and-out motions with his fingers in her vagina, her tampon was pushed further up into her vagina in a painful way. In shock, KO said nothing.

[¶ 8] At the conclusion of the massage session, Appellant told KO, “I hope you enjoyed this. It's one of my nontraditional massages.” KO said nothing to Appellant. She paid him the agreed sum of $25.00 (the student rate quoted to KO by Appellant), dressed, left the building, drove several blocks in her vehicle, pulled over, and broke down crying.

[¶ 9] The next day, KO interrupted her college schedule and drove home to Thermopolis. Her parents were out of town. At Sunday services two days later, she informed her LDS bishop what had happened. That evening, her parents now returned home, she informed them of the incident. The local Chief of Police immediately responded to their home. He advised KO to report the incident to local law enforcement in Powell. She and her parents travelled to Powell the following day and reported the incident to Officer Brown of the Powell Police Department.

[¶ 10] Officer Brown made arrangements for a recorded phone call by KO to Appellant. During the call, Appellant repeatedly apologized to KO for putting his fingers in KO's vagina during the massage. He averred he thought they would both enjoy it. He stated other clients had enjoyed such an experience. He reiterated it was one of his non-traditional massages. He claimed he had massaged closer to her vagina during KO's previous massage session, so he thought it would be alright to go further. He stated there was no excuse for his digital penetration of KO.

[¶ 11] Two days after the recorded call, Appellant appeared at the Powell Police Department for an interview. Without knowledge his previous phone conversation with KO had been recorded, Appellant denied digitally penetrating KO or touching her breasts. He characterized a non-traditional massage as simply paying more attention to the hips and legs. He later provided a written statement in which he claimed he did no more than KO had requested.

[¶ 12] KO finished her spring semester at NWCC on-line and with some in-class time. Once the semester was over, she determined never to return to Powell again. In September 2010, she began a church mission in Virginia, to last eighteen months.

[¶ 13] Appellant went to trial before a jury on a consolidated Information charging him in two counts within the same statute and founded on the same act: a violation of Wyo. Stat. Ann. § 6–2–303(a)(vi) and a violation of Wyo. Stat. Ann. § 6–2–303(a)(viii).

[¶ 14] In voir dire, the prosecutor averred the burden of proof in the case was proof beyond a reasonable doubt, although not proof beyond all doubt. Defense counsel explored the topic as well, even assigning percentages to the preponderance and clear and convincing standards of proof. He elicited agreement from the venire that, if selected to serve as jurors, each would adhere to the standard of proof beyond a reasonable doubt. In other remarks, the prosecutor did the same.

[¶ 15] The court read Instructions Nos. 6 and 7 to the jury before opening remarks, repeating these instructions to the jury before closing remarks. These were the elements instructions for each of the two charges, and each instruction advised the jury as to the burden of proof it was to apply to each charge, namely: proof beyond a reasonable doubt. Instruction No. 9, read to the jury before closing remarks, explained the presumption of innocence and included language repeating the State's burden of proof as being proof beyond a reasonable doubt.

[¶ 16] In opening remarks, the prosecutor painted the alleged victim, KO, as a person who from an early age suffered recurrent aches and pains that set her apart from other children. This condition was eventually diagnosed at age fifteen as fibromyalgia and arthritis. The prosecutor told the jury KO had strong religious beliefs. He averred she was a strong young woman who agreed, in spite of the assault against her, to engage in a recorded telephone conversation with Appellant. He claimed Appellant called KO a liar when he denied having digitally penetrated her in his statement to law enforcement given after the recorded telephone conversation. He asked the jury to consider the evidence about to be presented and hold Appellant accountable for what he had done. He reminded the jury the degree of proof required for conviction of either charge was proof beyond a reasonable doubt. In his opening remarks, defense counsel repeated the degree of proof required for conviction on either charge.

[¶ 17] In his examination of KO, the prosecutor elicited the following: her sympathetic parents were in court watching her testify; she felt different from other children when she was young on account of her physical ailments; she had certain physical limitations; she was prescribed medication to...