Triplett v. State

• Decision Date: 15 December 2017
• Docket Number: S-16-0298
• Citation: 406 P.3d 1257
• Parties: Desmond Otto TRIPLETT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

406 P.3d 1257

Desmond Otto TRIPLETT, Appellant (Defendant),

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

S-16-0298

Supreme Court of Wyoming.

December 15, 2017

Representing Appellant: Office of the 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: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Philip Murphy Donoho, Assistant Attorney General. Argument by Mr. Donoho.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

KAUTZ, J.

[¶1] A Natrona County jury found Desmond Otto Triplett guilty of one count of immodest, immoral or indecent liberties with a minor and three counts of second-degree sexual abuse of a minor. He appeals two issues. First, he argues that the indecent liberties charge was duplicitous in that it alleged a single charge based on a course of conduct occurring during a twenty-eight month period. He contends that the State should have identified a specific single act and date as the basis for its charge. Mr. Triplett next argues that the State committed prosecutorial misconduct by violating a pretrial order requiring notice to the trial court before inquiring into a specific area of facts.

[¶2] We determine that Mr. Triplett waived any duplicity defects by failing to object as required by W.R.Cr.P. 12(b)(2). We further hold that the district court did not abuse its discretion in determining that a single question asked by the prosecution, while potentially in violation of the pretrial order, did not prejudice the defendant. Accordingly, we affirm.

ISSUES

[¶3] Mr. Triplett presents the following issues:

1. Was Mr. Triplett denied his fundamental right to a fair trial and a unanimous verdict by the duplicitous charges?

2. Was Mr. Triplett denied his right to a fair trial due to prosecutorial misconduct?

The State identifies the same subject matters, but argues the issues to be decided within those areas are more specific. We restate the State's issues as:

1. Did Mr. Triplett waive any claim that the indecent liberties charge was duplicitous?

2. Did the prosecutor commit prosecutorial misconduct by asking a question on cross examination potentially in violation of a pretrial order?

FACTS

[¶4] The State charged Mr. Triplett with one count of taking immodest, immoral or indecent liberties with a minor, TP, during a time span from March 1, 1975 through June 31 (sic),¹ 1977. The district court read that charge to Mr. Triplett, and then asked, "do you understand the charge against you in Count One as well as the potential penalties, sir?" Mr. Triplett responded, "Yes, Ma'am." The State also charged Mr. Triplett with other crimes, including three counts of second degree sexual abuse of a minor, KW. The charges related to KW alleged conduct occurring in 2010 through 2013.

[¶5] Mr. Triplett did not file an objection to any of the charges against him. He did not object to any jury instruction about the indecent liberties charge.

[¶6] Before trial, the State filed notice of its intent to introduce evidence against Mr. Triplett under W.R.E. 404(b). Some of that evidence showed Mr. Triplett had engaged in additional sexual activity with the alleged victims, with his daughter, JB, and with his niece's sister, MD. The district court determined that some of the proposed evidence relating to other alleged victims was admissible. However, it ruled that evidence regarding JB (Mr. Triplett's daughter) and MD (Mr. Triplett's niece's sister) was inadmissible because "the times were not clear, and the places where those things may have occurred were not clear." The district court stated "that sort of information (about JB and MD) is not to come forward in any way, shape or form. If, during trial, you believe that somehow someone's opened the door on that or you believe it has somehow become admissible, counsel need to approach the bench, and we'll take up that matter outside of the jury's hearing."

[¶7] At trial, the State presented evidence of many alleged sexual encounters between Mr. Triplett and TP which occurred between March 1, 1975 and the end of June 1977.² The State did not identify any single event as constituting the immodest, immoral or indecent liberties which were charged. Rather, in closing the prosecutor described the entire course of Mr. Triplett's relationship and sexual encounters with TP during the twenty-eight month period, and then simply told the jury "it's up to you to decide if it was immoral, indecent, immodest." The district court instructed the jury that the elements of the charge related to TP were only that during the twenty-eight month time frame Mr. Triplett "knowingly took immodest, immoral or indecent liberties with TP." The jury was not given any further specificity on which act, or acts, allegedly constituted the crime. The defense was in step with this non-specific course of conduct approach to the crime. In closing, Mr. Triplett's attorney told the jury to consider the totality of the circumstances and "look at when these things were occurring and just decide, you know, is he guilty of—of indecent, immoral acts—you know, that's a two-way street."

[¶8] During the trial, Mr. Triplett called four character witnesses who testified that, in their opinion, Mr. Triplett had good character. Two of those witnesses were Mr. Triplett's daughters, and sisters of JB. The first of Mr. Triplett's daughters to testify, Ms. Wilson, provided the following testimony on direct examination by Mr. Triplett's counsel:

Q. And how do you know the defendant?

A. He's my father.

....

Q. And do you have any children of your own?

A. I do.

Q. Okay. How many?

A. Five.

Q. Where is your dad currently residing?

A. In my house.

Q. With your five children?

A. Yes.

Q. Are you afraid to leave him alone with those children?

A. God, no. He watches them for me all the time.

Q. Okay. How long—when you were growing up, did you grow up with your dad?

A. Oh, yes.

Q. Your whole life?

A. Yep.

Q. Okay. And in those times, did you ever feel he was looking at you in any way that was inappropriate?

A. No.

Q. Did you ever feel that he talked to you inappropriately?

A. No.Q. Talked about female things that were inappropriate?

A. No.

[¶9] On cross examination, the State's attorney then posed the following questions to Ms. Wilson:

Q. Ms. Wilson, you have a lot of siblings?

A. I do.

....

Q. And some of your other siblings have made accusations that your dad did touch them inappropriately?

A. Yes.

[¶10] At this point Mr. Triplett's attorney asked to approach the bench. There, at side bar, he objected to the State's last question. He argued that the question violated the Court's order precluding information about JB's claims without first obtaining leave from the district court judge. The prosecutor agreed that the question related to JB's accusations, but asserted that the evidence was not offered under W.R.E. 404(b), but instead under W.R.E. 404(a). After the district court ruled that the State could not inquire any further, Mr. Triplett's attorney moved for a mistrial. The district court took that motion under advisement, and directed defense counsel to provide an appropriate limiting instruction. Ultimately, the district court denied the motion for a mistrial. The defense declined to request a limiting or curative instruction.

[¶11] The jury found Mr. Triplett guilty of the indecent liberties charge involving TP and of three counts of second degree sexual abuse of a minor, KW. It acquitted him on two other indecent liberties charges.

DISCUSSION

I. Duplicitous Charges/Waiver

[¶12] Mr. Triplett claims the indecent liberties charge involving TP was duplicitous because it alleged that the crime occurred over a period of twenty-eight months, without making any election as to what specific act constituted taking immodest, immoral or indecent liberties with a minor. The State asserts that Mr. Triplett waived this argument by failing to raise it in the district court, and urges this Court to decline to consider the matter. To appreciate Mr. Triplett's argument, and to avoid any similar problems in the future, it is appropriate to review the principle prohibiting duplicity.

[¶13] "Duplicity is the charging of separate offenses in a single count." 5 Wayne R. LaFave, Criminal Procedure§ 19.3(d), 336 (4^th ed. 2017). "The prohibition against duplicity ... began as and remains a rule of pleading." Cooksey v. State, 359 Md. 1, 752 A.2d 606, 609 (2000). Duplicity "present[s] a danger that the jury may convict a defendant although not reaching a unanimous agreement on precisely which charge is the basis for the conviction" in violation of "[t]he Sixth Amendment guarantee ... to a unanimous jury verdict[.]" United States v. Washington, 653 F.3d 1251, 1262 (10^th Cir. 2011) (quoting United States v. Schneider, 594 F.3d 1219, 1228 (10^th Cir. 2010) and United States v. Linn, 31 F.3d 987, 991 (10^th Cir. 1994) ). "Duplicitous indictments are prohibited because they fail to give adequate notice of the charge to be defended, because they present the hazard of a non-unanimous jury verdict and because they make a precise pleading of prior jeopardy impossible in the event of a later prosecution." State v. Ramsey, 211 Ariz. 529, 124 P.3d 756, 759 (Ariz. Ct. App. 2005).

[¶14] Wyoming has long prohibited duplicity in charging, holding that "no man should be tried or convicted for several offenses when he is charged with but one." McInturff v. State, 808 P.2d 190, 193 (Wyo. 1991) (quoting Edelhoff v. State, 5 Wyo. 19, 33, 36 P. 627, 632 (1894) ). Our precedent clearly prohibits charging multiple separate offenses in a single count. Schuler v. State, 2008 WY 47, ¶ 15, 181 P.3d 929, 933 (Wyo. 2008). However, our precedent also clearly holds that if duplicitous charging is not raised before trial, the duplicity defect is waived. Id., ¶ 22, 181 P.3d at 934.

[¶15] Some criminal stat...