Trumbull v. State, S-08-0242.
| Court | United States State Supreme Court of Wyoming |
| Citation | 2009 WY 103,214 P.3d 978 |
| Docket Number | No. S-08-0242.,S-08-0242. |
| Parties | Curtis TRUMBULL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Decision Date | 20 August 2009 |
v.
The STATE of Wyoming, Appellee (Plaintiff).
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.
[¶ 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?
[¶ 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.
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...
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...parts of an individual. The law at issue requires the presence of intent of sexual arousal, gratification, or abuse." Trumbull v. State , 2009 WY 103, ¶ 13, 214 P.3d 978, 981 (Wyo. 2009). However, "[b]ecause direct evidence of intent is rare, and circumstantial evidence is most often the on......
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MBP v. State
...that are applicable to cases tried to a jury. In re CG , 2011 WY 28, ¶ 10, 248 P.3d 186, 188–89 (Wyo. 2011) (quoting Trumbull v. State , 2009 WY 103, ¶ 9, 214 P.3d 978, 980 (Wyo. 2009) ). We decide whether the evidence could reasonably support the finding by the factfinder. Neidlinger v. St......
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MBP v. State
...that are applicable to cases tried to a jury. In re CG, 2011 WY 28, ¶ 10, 248 P.3d 186, 188-89 (Wyo. 2011) (quoting Trumbull v. State, 2009 WY 103, ¶ 9, 214 P.3d 978, 980 (Wyo. 2009)). We decide whether the evidence could reasonably support the finding by the factfinder. Neidlinger v. State......
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Starrett v. State, S–11–0284.
...required by law is a Rule 32 error. On two recent occasions we have considered the consequences of Rule 32 errors. In Trumbull v. State, 2009 WY 103, 214 P.3d 978 (Wyo.2009), we considered a district court's failure to mention probation during the sentencing hearing and also in the written ......