Walker v. State
| Decision Date | 19 December 2022 |
| Docket Number | S-21-0045, S-22-0042 |
| Citation | 521 P.3d 967 |
| Parties | Joseph R. WALKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames* , Senior Assistant Attorney General; Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Joseph Walker was charged with five counts of third-degree sexual abuse of a minor and one count of attempted second-degree sexual abuse of a minor (Count VI) for acts that occurred between January 19, 2020, to February 9, 2020. At trial, the jury instructions contained identical language for the basis of conviction on Counts I through V. The jury found Mr. Walker guilty of Counts I, II, III, and VI, but acquitted him of Counts IV and V. Mr. Walker appeals his convictions on Counts I, II, III, and VI, claiming the jury instructions were insufficient to direct the jury to a unanimous verdict on each count. We affirm Mr. Walker's convictions on Counts I and VI, and reverse his convictions on Counts II and III.
[¶2] Were the jury instructions plainly erroneous because they did not differentiate between the five counts of third-degree sexual abuse of a minor, inviting the possibility of juror confusion?
[¶3] In January 2020, 34-year-old Mr. Walker moved in with the R family. Mr. and Mrs. R lived in Campbell County with their children, KR (female 15), FR (female 13), AR (female 11), MR (female 9), and DR (male 4). On February 9, 2020, Mrs. R was at the mall with 11-year-old AR when AR told her mother that about a week earlier KR had confided that "something happened" with Mr. Walker in KR's bedroom. Mrs. R immediately returned home to talk to KR, who told her that Mr. Walker had inappropriately touched her on more than one occasion. Mrs. R took the two girls to the Campbell County Sheriff's Department.
[¶4] Sergeant Janaia Hyland, the head of the investigation division, accompanied by Investigator Josh Knittel took Mrs. R's report. After speaking with Mrs. R, Sergeant Hyland interviewed KR alone for "roughly, an hour." KR disclosed Mr. Walker had touched her vaginal area five to ten times in her bedroom. KR stated the first time he touched her was about a week to two weeks after Mr. Walker moved into the R home, and that the last time was approximately two weeks before the interview. KR also reported that on one occasion Mr. Walker attempted to place his face on her vagina, but she pushed him away and ran out of the bedroom.
[¶5] Following these interviews, Sergeant Hyland and Investigator Knittel located Mr. Walker, and he agreed to accompany them to the station. At the station, Mr. Walker denied the allegations. Investigator Knittel placed Mr. Walker under arrest for third-degree sexual abuse of a minor, and Mr. Walker was transported to the detention center.
[¶6] A Felony Information was issued on February 11, 2020, charging Mr. Walker with six counts of third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(i). Counts I through VI initially contained identical language:
On or between January 19, 2020, to February 9, 2020, in Campbell County, Wyoming, under circumstances not constituting sexual abuse of a minor in the first or second degree as defined by Wyoming Statutes § 6-2-314 and § 6-2-315, engaged in sexual contact with a victim who was thirteen (13) through fifteen (15) years of age and the actor being seventeen (17) years of age or older with the victim being at least four (4) years younger than the actor, Third Degree Sexual Abuse of a Minor , in violation of Wyoming Statute § 6-2-316(a)(i), a felony, punishable under Wyoming Statutes § 6-2-316(b) and § 6-10-102, by imprisonment for not more than fifteen (15) years, to which a fine of not more than $10,000.00 may be added;
[¶7] Count VI was later amended from third-degree sexual abuse of a minor to attempted second-degree sexual abuse of a minor. The amended count stated:
On or between January 19, 2020, to February 9, 2020, in Campbell County, Wyoming, with intent to commit a crime, did an act which was a substantial step towards the commission of the crime, under circumstances not constituting sexual abuse of a minor in the first or second degree as defined by Wyoming Statutes § 6-2-314 and § 6-2-315, did attempt to inflict sexual intrusion on a victim who was thirteen (13) through fifteen (15) years of age, and the actor being seventeen (17) years of age or older with the victim being at least four (4) years younger than the actor, Attempted Second Degree Sexual Abuse of a Minor , in violation of Wyoming Statute § 6-2-315(a)(i) and § 6-1-301(a)(i), a felony, punishable under Wyoming Statutes § 6-2-315(b) and § 6-10-102, by imprisonment for not more than twenty (20) years, to which a fine of not more than $10,000.00 may be added.
[¶8] Mr. Walker filed a Motion for Bill of Particulars, arguing that the charging document was legally insufficient.1 He argued that the absence of any distinguishing facts between Counts I through V prevented him from preparing an adequate defense and denied him a unanimous jury verdict because "one juror could convict on one instan[ce] of touching believing it was Count [I], while another juror could believe that [the same] occurrence applied to a different count[.]" The district court granted Mr. Walker's motion.
[¶9] The State responded:
The most logical way to differentiate Counts I–V, because the behavior of Mr. Walker is so similar between occasions, would be to call the events first, second, third, etc. That will allow the jury to differentiate the counts. Theoretically a jury member could say as to Count I that Mr. Walker is Guilty of Third-Degree Sexual Abuse for the second time he entered her room [Mr. Walker's first entry was not charged] but not guilty for the third, fourth, fifth, and sixth time.
The State filed a Bill of Particulars on May 15, 2020, and the matter proceeded to trial on September 9, 2020.
[¶10] At trial, the State called five witnesses. Mrs. R testified to the events leading to her discovery of KR's allegations, the subsequent report to law enforcement, and FR's frequent overnight visits with a friend during the time the acts occurred. AR testified about KR telling her what happened and "blurt[ing] ... out" the secret to her mother. FR testified that during the relevant timeframe, she spent weekends and Monday and Tuesday nights at a friend's house. Sergeant Hyland testified about the steps in her investigation and her interview of KR. In the interview, KR divulged that Mr. Walker had entered her bedroom between five and ten times and had placed his hand on her vagina outside of her panties. Sergeant Hyland stated KR appeared calm during the interview, was responsive to questions, and was able to track what happened and how it occurred. KR estimated it was over a week, between a week and two weeks, after he moved into the R home that Mr. Walker began to touch her, and these episodes ended approximately two weeks before the interview. The final evidence introduced was the stipulated testimony of Investigator Knittel. The district court read Investigator Knittel's affidavit where he attested that he sought and was granted a search warrant for Mr. Walker's cell phone and that after extracting the information, nothing of evidentiary value was found.
[¶11] The only evidence of what occurred between KR and Mr. Walker came through KR's testimony. Because the jury necessarily relied on KR's testimony for the factual basis for each charge, we set forth her testimony in detail.
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...court judge's decision to give or not give a jury instruction is for an abuse of discretion. Walker v. State, 2022 WY 158, ¶ 17, 521 P.3d 967, 976 (Wyo. 2022) (quoting v. State, 2019 WY 30, ¶ 12, 437 P.3d 809, 815 (Wyo. 2019)). The plain error standard is applied, however, when there is no ......