Tamblyn v. State

• Decision Date: 15 June 2020
• Docket Number: S-19-0212
• Citation: 465 P.3d 440
• Parties: George Everette TAMBLYN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

465 P.3d 440

George Everette TAMBLYN, Appellant (Defendant),

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

S-19-0212

Supreme Court of Wyoming.

June 15, 2020

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

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.

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

KAUTZ, Justice.

[¶1] The district court found George Everette Tamblyn guilty of second-degree sexual abuse of a minor, third-degree sexual abuse of a minor, and incest. Mr. Tamblyn argues the victim, his five-year-old daughter M.B. (six years old at the time of trial), was not competent to testify as a witness. He further asserts that due to her incompetency, as well as her behavior and refusal to answer questions at trial, he was denied his right to confront a witness against him in violation of the Confrontation Clause of the Sixth Amendment and Article 1, § 10 of the Wyoming Constitution. We affirm.

ISSUES

[¶2] Mr. Tamblyn raises one issue, which we separate into two:

1. Did the district court abuse its discretion in finding the victim competent to testify as a witness?

2. Was Mr. Tamblyn denied his right to confront a witness against him in violation of the Sixth Amendment of the United States Constitution and Article 1, § 10 of the Wyoming Constitution ?

FACTS

[¶3] M.B. is the biological daughter of Mr. Tamblyn and Ella Baldwin. In February 2017, Ms. Baldwin was charged with child endangerment based on her use of methamphetamine. As a result, the Department of Family Services (DFS) took M.B. into protective custody. In January 2018, M.B. was living with her foster mother but was having unsupervised overnight visits with each of her parents.

[¶4] On January 10, 2018, M.B. told Ms. Baldwin that Mr. Tamblyn had "pulled his privates out of his pocket and showed it to her." The incident occurred on January 7, 2018, while M.B. was having an overnight visit at Mr. Tamblyn's house. Later that night, M.B. told her foster mother that Mr. Tamblyn had "made her touch his pee-pee." M.B.’s allegations were reported to DFS, which in turn reported them to the Natrona County Sheriff's office.

[¶5] The next day, January 11, 2018, Baleigh Hite conducted a forensic interview of M.B. at the Child Advocacy Project (CAP) center. The interview was videotaped. M.B. informed Ms. Hite that Mr. Tamblyn had showed her his "pee-pee" and told her she had to "suck it." When he said that, M.B. "did nothin" but did touch his "pee-pee" with her hand. When Ms. Hite asked M.B. what Mr. Tamblyn's "pee-pee" looked like, M.B. said it was "disgusting." She also said it felt "hot." Ms. Hite asked M.B. to draw a picture of Mr. Tamblyn's "pee-pee." M.B. drew an object resembling a penis and colored it red because, according to M.B., red means "super hot."

[¶6] M.B. told her counselor, Lauren Jackson, that Mr. Tamblyn showed her his private parts and she touched them. She also disclosed that (1) she showed Mr. Tamblyn her private parts, he liked it, and he kissed them; (2) Mr. Tamblyn "peed all over her hands" and it was "sticky and yellow and orange in color"; (3) Mr. Tamblyn asked her "to suck his privates," showed her how to do so by showing her "pictures on his phone of a little girl sucking privates," and M.B. sucked Mr. Tamblyn's penis; and (4) Mr. Tamblyn took a blue kitchen spoon and "put[ ] it down her butt." M.B. reported the abuse occurred in Mr. Tamblyn's living room and drew pictures of "her dad sitting in a recliner [with] his privates in his pocket being pulled out and [her] standing there" and her "sucking his penis." When Ms. Jackson showed M.B. a diagram of a male body and circled the penis, M.B. exclaimed, "that's yucky." When asked what she meant, M.B. responded, "daddy showed me that." M.B. told Ms. Jackson that Mr. Tamblyn's penis "felt hard, like his bone was coming out of his pee-pee" and his pubic hair was "brown like his hair." She also said she loved and missed her daddy and wished he would stop showing her his "damn privates" so she could be with him again.

[¶7] Natrona County Sheriff Officer Taylor Courtney interviewed Mr. Tamblyn on January 12, 2018. This interview was also videotaped. Mr. Tamblyn initially claimed his penis could have been "hanging out" of the fly of his pajama pants on the morning of January 7, while M.B. was having an overnight visit at his house. However, after being confronted with M.B.’s disclosures, including her description of his penis, Mr. Tamblyn eventually admitted M.B. had touched his penis twice while she was re-adjusting her position on his lap. He said the first time she touched his penis she did so over his clothing; the second time, however, she touched his bare penis. He initially claimed he did not have an erection at the time but later admitted it was possible he had a partial erection.

[¶8] Mr. Tamblyn was charged with one count of first-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314 (LexisNexis 2019) based on Mr. Tamblyn having placed his penis in M.B.’s mouth (Count 1); two counts of second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315 (LexisNexis 2019) based on M.B. touching Mr. Tamblyn's penis with her hand and Mr. Tamblyn touching her genitals (Counts 2 and 3, respectively); one count of third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316 (LexisNexis 2019) based on Mr. Tamblyn having taken immodest, immoral or indecent liberties with M.B. (Count 4), and one count of incest in violation of Wyo. Stat. Ann. § 6-4-402 (LexisNexis 2019) (Count 5). Prior to trial, Mr. Tamblyn requested a hearing to determine whether M.B. was competent to testify. The district court held a hearing and found M.B. competent.

[¶9] Mr. Tamblyn waived his right to a jury trial. At the bench trial, M.B. did not testify that she touched Mr. Tamblyn's penis, only that he showed it to her. However, Ms. Baldwin, M.B.’s foster mother, Ms. Hite and Ms. Jackson testified to what M.B. had reported to them, including that Mr. Tamblyn had shown M.B. his penis and she had touched it. Officer Courtney relayed Mr. Tamblyn's admission that M.B. had touched his penis twice. Mr. Tamblyn's probation officer recounted her conversations with him in late January in which he said M.B. touched his penis with her foot and he would sometimes get a "tickle or start[ ] getting an erection" when M.B. would sit on his lap and wiggle around. Portions of the videos of the CAP interview and Officer Courtney's interview with Mr. Tamblyn were played for the court.

[¶10] S.H., Mr. Tamblyn's niece, testified he inserted his fingers into her vagina and "fingered her" on two different occasions in 2002, when she was 8-9 years old. After the first incident, he told her that if she used lotion, next time it would not hurt. S.H. reported the abuse in 2011. Casper Police Officer Joey Wilhelm testified he interviewed Mr. Tamblyn in 2011 and Mr. Tamblyn admitted during that interview that he rubbed S.H.’s vagina once and inserted his finger into her vagina twice. This interview was recorded and played for the court at trial.¹

[¶11] At the close of the State's evidence, Mr. Tamblyn moved for a directed verdict on all counts. The State conceded there was no evidence other than M.B.’s counseling records supporting Counts 1 and 3 (Mr. Tamblyn placing his penis in M.B.’s mouth and touching her genitals, respectively), and those counts should be dismissed. The district court agreed and dismissed those counts but denied Mr. Tamblyn's motion as to the remaining counts. At the close of the evidence, the court found Mr. Tamblyn guilty of Counts 2, 4 and 5. Because Mr. Tamblyn had previously pled no contest to second-degree sexual assault of a minor based on his abuse of S.H., the district court sentenced him to a mandatory sentence of life imprisonment without the possibility of parole on Count 2. See Wyo. Stat. Ann. § 6-2-306(e). The district court also sentenced him to 10-15 years imprisonment on each of Counts 4 and 5. All sentences were ordered to run concurrent to each other. Mr. Tamblyn timely appealed.

STANDARD OF REVIEW

[¶12] We review a district court's competency determination for an abuse of discretion. Young v. State , 2018 WY 53, ¶ 14, 418 P.3d 224, 227 (Wyo. 2018). "Determining whether the trial court abused its discretion involves consideration of whether the court could reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner." Id. (quotations omitted). With respect to child witness competency determinations,

"[w]e do not presume to place ourselves in the shoes of the trial court in these cases by reading a cold record. The trial court sees the witness’ facial expressions, inflections in her voice and watches her mannerisms during examination. These observations are a vital part of the ultimate ruling on competency."

Id. , ¶ 14, 418 P.3d at 227-28 (quoting Gruwell v. State , 2011 WY 67, ¶ 25, 254 P.3d 223, 231 (Wyo. 2011) and Seward v. State , 2003 WY 116, ¶ 32, 76 P.3d 805, 819 (Wyo. 2003) ).

[¶13] Mr. Tamblyn's Confrontation Clause argument is a question of law reviewed de novo. Schmidt v. State , 2017 WY 101, ¶ 22, 401 P.3d 868, 878 (Wyo. 2017) (citing Bruce v. State , 2015 WY 46, ¶ 19, 346 P.3d 909, 916 (Wyo. 2015) ). See also, Bush v. State , 2008 WY 108, ¶ 48, 193 P.3d 203, 214 (Wyo. 2008) ("Issues arising under the constitution are questions of law which we review de novo .") (citing Hannon v. State , 2004 WY 8, ¶ 11, 84 P.3d 320, 328 (Wyo. 2004) ).

DISCUSSION

[¶14] Mr. Tamblyn argues the district court abused its discretion in finding M.B. competent to testify. He also contends that due to her incompetency, as well as her behavior...