Trumbull v. State

• Decision Date: 20 August 2009
• Docket Number: No. S-08-0242.,S-08-0242.
• Citation: 2009 WY 103,214 P.3d 978
• Parties: Curtis TRUMBULL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

214 P.3d 978

2009 WY 103

Curtis TRUMBULL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-08-0242.

Supreme Court of Wyoming.

August 20, 2009.

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender and Tina N. Kerin, Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Meri V. Ramsey, Assistant Attorney General. Argument by Ms. Ramsey.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Appellant, Curtis Trumbull (Trumbull), was convicted of two counts of third degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005). The victim of this crime was his own child. She was ten years old at the time the acts constituting the crimes occurred in June and early July of 2006. Trumbull was sentenced to two concurrent sentences of 4-6 years in the Wyoming State Penitentiary. In this appeal, he asserts that the evidence introduced at his trial before the district court sitting without a jury was insufficient to sustain the presiding judge's finding of guilt. He also contends that the district court erred because it did not indicate in the written sentence (or otherwise) that it had considered probation as a potential sentence. We will affirm Trumbull's convictions, but we reverse the sentences imposed and remand this matter to the district court for resentencing.

ISSUES

[¶ 2] Trumbull raises these issues:

I. Was there sufficient evidence to convict [Trumbull]?

II. Did the trial court err in sentencing when it did not consider probation?

The State rephrases those issues as follows:

I. Did the State present sufficient evidence for the trial court to conclude, beyond a reasonable doubt, that [Trumbull] was guilty of two counts of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(ii)?

II. Did the district court properly consider probation thereby rendering harmless any error in pronouncing [Trumbull's] sentence?

FACTS AND PROCEEDINGS

[¶ 3] A couple of prefatory matters deserve brief mention. The record on appeal does not contain a document identified as a Judgment. See W.R.Cr.P. 32(b)(2). As a general rule, in a criminal case the trial court need not articulate detailed findings unless one of the parties requests it before the trial begins. W.R.Cr.P. 23(c). No such request was made in this case. The record does contain an "Order on July 2, 2008 Sentencing."

[¶ 4] Trumbull was charged with, and convicted of, two counts of sexual assault in the third degree, Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005):¹

(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:

....

(ii) The actor is an adult and subjects a victim under the age of fourteen (14) years to sexual contact without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim;

[¶ 5] "Sexual contact" is defined by Wyo. Stat. Ann. § 6-2-301(a)(vi) (LexisNexis 2009) thus:

(vi) "Sexual contact" means touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts;

[¶ 6] "`Intimate parts' means the external genitalia, perineum, anus or pubes of any person or the breast of a female person." Wyo. Stat. Ann. § 6-2-301(a)(ii) (LexisNexis 2009).

[¶ 7] The only witness called by the State at trial was the victim. Her testimony was to the effect that during June and early July of 2006, she visited Trumbull at his home which he shared with his girlfriend Rachel Allen. The victim told about two events that occurred while she was staying with Trumbull. During both of those events Trumbull "massaged" the victim. The victim testified that during the massages Trumbull touched her on her "legs, arms, boobs, privates, butt, and girl spot." The victim was clothed during the massages. In order to demonstrate more clearly for the trial court, the victim pointed out the parts of her body she described, on a demonstrative exhibit. It was evident from the testimony, in combination with the exhibit, that "girl spot" referred to the vaginal area.

[¶ 8] The Presentence Investigation Report contained a recommendation to the district court that Trumbull be sentenced to a term of incarceration, but that the term of incarceration be suspended in favor of supervised probation, or a split-sentence with probation (jail time in local facility followed by probation). It was further recommended that Trumbull be placed in Intensive Supervised Probation and that a number of other stringent conditions be imposed in connection with his probation.

DISCUSSION

Sufficiency of the Evidence

[¶ 9] Trumbull was tried before the district court sitting without a jury. For its statement of the applicable standard of review, Trumbull referred only to cases that restate the jury's place in performing the role of making fact and credibility determinations. The State, on the other hand, referred only to civil or quasi-criminal cases wherein we apply the well-known "clearly erroneous" standard. To ensure there is no confusion in this regard, we quote this long-standing articulation of the pertinent standard of review:

In discussing the facts of this case, we apply the principle that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. We accept as true evidence favorable to the State; we disregard evidence favorable to the defendant in conflict with the State's evidence; and we afford to the State's evidence every favorable inference which may reasonably and fairly be drawn from it. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Hovee v. State, Wyo., 596 P.2d 1127 (1979). Heretofore we have had occasion to apply these concepts only to cases tried before juries. We have no compunction, however, in joining other courts which have applied these concepts in trials to the court. Simmons v. State, 255 Ark. 82, 498 S.W.2d 870 (1973); People v. Johnson, 276 Cal.App.2d 232, 80 Cal.Rptr. 683 (1969). The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.

Fitzgerald v. State, 599 P.2d 572, 574 (Wyo. 1979); see Lopez v. State, 788 P.2d 1150 1152 (Wyo.1990); Tennant v. State, 776 P.2d 761, 763 (Wyo.1989); State v. Maldonado, 108 Hawai'i 436, 121 P.3d 901, 907 (Hawai'i 2005); compare Odhinn v. State, 2003 WY 169, ¶ 13, 82 P.3d 715, 719 (review under "clearly erroneous" standard is correct as to the denial of his motion to dismiss based on lack of a speedy trial); and In re Avery, 2002 WY 87, ¶ 5, 47 P.3d 973, 975 ("clearly erroneous" standard may be correct standard where issue before district court is defendant's classification under the Sex Offender Registration Act).

[¶ 10] The only witness called by the State was the victim and we summarized the gravamen of her testimony above.

[¶ 11] The essence of Trumbull's claim is that, although the evidence established that he may have committed a touching as set out in the governing statute, there was no evidence that the touching was accomplished with the required mens rea, i.e., "... touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor[.]" § 6-2-301(a)(vi). In Mitchell v. State, 865 P.2d 591, 596 (Wyo. 1993) we opined, albeit in a considerably different context:

Of the five-factor analysis in Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), appellant's appeal focuses on only two, viz., purpose and materiality. He contends that the prosecution's stated purposes of motive and identity were bogus in that motive is not an element of the crime charged and identity was not a disputed material issue. Our reading of the second-degree sexual assault statute and the information in this case reveals that this case, like the typical prosecution case, is reducible to three elements: (1) someone committed the criminal act (actus reus) alleged in the information, i.e., intrusion of the perpetrator's finger inside the victim's vagina; (2) the perpetrator possessed the requisite guilty state of mind (mens rea); i.e., for the purpose of sexual arousal, gratification, or abuse; and (3) the perpetrator was the defendant (identity). See, EDWARD J. IMWINKELRIED, UNCHARGED MISCONDUCT EVIDENCE § 3.01 at 3 and § 4.01 at 2 (1992 & Supp.1993). In this particular prosecution, the accused pleaded not guilty, defending on the ground that the crime charged never happened. He asserted the victim had fabricated the allegations. He did not offer to stipulate to any of the three essential elements of the crime charged, such as the occurrence of the criminal act and the perpetrator's possession of the requisite guilty state of mind, while still disputing the identity element. By defending on the ground that the charged crime never happened, the accused necessarily put into material dispute each of the three elements of the charged crime. To accord the accused due process, the prosecution had to prove each one of the three essential elements of the charged crime beyond a reasonable doubt.

[¶ 12] This case presents a considerably different scenario. Trumbull did not attempt to deny that he had massaged his daughter, although he did not himself testify about the incidents at issue. His mother appeared as a witness and her testimony was to the effect that she was present in Trumbull's household on both occasions where the victim claimed to have been the object of sexual contact/abuse. Trumbull's mother testified that s...