Watters v. State

• Decision Date: 07 December 2004
• Docket Number: No. 03-80.,03-80.
• Citation: 101 P.3d 908,2004 WY 155
• Parties: James Charles WATTERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

101 P.3d 908

2004 WY 155

James Charles WATTERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-80.

Supreme Court of Wyoming.

December 7, 2004.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel. Argument presented by Ms. Kerin.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek, Deputy Assistant Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Neil D. Skousen and Eric Phillips, Student Interns. Argument presented by Mr. Phillips.

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

HILL, Chief Justice.

[¶ 1] James Charles Watters (Watters) appeals a conviction for first-degree sexual assault for the infliction of sexual intrusion on a victim, his foster daughter (TD), whom he knew or reasonably should have known was incapable of appraising the nature of her conduct because of a mental illness, deficiency or developmental disability. Watters alleges error in the failure of the trial court to require the presence of the victim at a taint hearing, in finding the victim competent to testify, in admitting photographs of explicit sexual conduct between him and the victim pursuant to W.R.E. 404(b), and in excluding evidence of the victim's prior sexual activity with persons other than him. He also claims an abuse of discretion in the term of sentence imposed. Finding no error, we affirm.

ISSUES

[¶ 2] In his brief, Watters sets forth five issues:

I. Whether the trial court erred in not requiring the victim, TD, to be present for a taint hearing?

II. Whether the trial court erred in finding TD competent to testify at trial?

III. Whether the trial court erred in allowing evidence under W.R.E. 404(b)?

IV. Whether the trial court erred in refusing to allow evidence pertaining to the prior sexual activity of TD, thus prohibiting [Watters] from fully presenting his defense of capacity to consent?

V. Whether the trial court abused its discretion in sentencing [Watters] to 24 to 34 years in the Wyoming State Penitentiary for this crime?

The State substantially concurs with Watters' statement of the issues.

FACTS

[¶ 3] TD suffers from severe mental and developmental disabilities. She has a full scale Intelligence Quotient of 59. TD is unable to live by herself because she needs constant supervision in order to properly perform even basic life skills such as personal hygiene. Her condition is severe enough that she is qualified for a Medicaid waiver and other social services. TD was nine or ten years old when she went to live with a foster family, the Watters, in Glenrock, Wyoming. She lived with Watters, who was a police officer, and Watters' wife Denise and their four biological children. TD lived with the Watters family until she turned twenty-one years old, when she moved into the Options Group Home in Casper, Wyoming. Watters and his wife were appointed guardians and conservators for TD after she turned twenty-one.

[¶ 4] In April of 2002, Watters and his wife separated, and he moved out of the marital home. On April 20th, Denise Watters discovered photographs on their computer that explicitly depicted Watters and TD engaging in sexual conduct. She reported the discovery to her daughter, whose husband was a Casper police officer. The computer hard drive was turned over to the police.

[¶ 5] Four days later, Watters visited TD at the group home. Upon seeing Watters approach the house, TD ran to her basement bedroom. TD was "scared that he was going to do something" but she failed to lock the door to her bedroom. Watters entered the bedroom, told TD to remove her pants, and engaged in sexual intercourse with her. Watters and TD then went upstairs, and he obtained permission from the group home supervisor for TD to go with him to pick up a washing machine. Watters and TD left the group home in his truck. After picking up the washing machine, Watters dropped TD off at Liberty Baptist Church, where the group home supervisor said she would meet TD. However, the group home supervisor was unable to go the church, so TD was returned to the group home by the pastor's wife. Immediately after TD returned to the group home, she called her mother and informed her of what Watters had done.

[¶ 6] Watters subsequently was charged with one count of first-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(iv) (LexisNexis 2003)¹ and, in the alternative, one count of second-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2003).² After a jury trial, Watters was convicted on the first-degree sexual assault charge.³ Watters was sentenced to a term of not less than 288 months nor more than 408 months in the State penitentiary.

[¶ 7] Additional facts will be noted in our discussion below as relevant to the specific issues raised by Watters.

DISCUSSION

The Victim's Presence at Taint Hearing

[¶ 8] Prior to trial, Watters moved for a competency and a taint hearing pursuant to Larsen v. State, 686 P.2d 583 (Wyo.1984) and Alicea v. State, 13 P.3d 693 (Wyo.2000). The district court granted the motions and scheduled a combined competency/taint hearing for September 9, 2002. On September 6th, Watters filed a motion to continue the taint portion of the hearing stating that he had been unable to locate two police officers and serve them with subpoenas. Watters presented that motion orally to the district court at the commencement of the September 9th hearing. The district court ruled that it would proceed with the competency hearing and continue the taint part of the hearing to September 13th. The court stated, however, that any evidence or argument related to the question of taint could be presented during the competency hearing if a party desired. Neither party presented any evidence related to taint during the competency hearing. The district court concluded that TD was competent to testify subject to consideration of the evidence on how any taint may have affected her ability to testify truthfully at trial.

[¶ 9] The taint hearing resumed on September 13th. At the outset, Watters complained that the victim, TD, was not present and that he needed her testimony. The district court noted that it did not want to reschedule the taint hearing again because the trial was set for the following Monday, September 16th. The court further noted that TD had been present in court for the competency hearing, and Watters had made no mention that he needed her testimony at the taint hearing:

But my view of what was initially set by me was the competency portion of what I said I would hold as a joint hearing. I ordered that [TD] be here on the 9th [for the competency hearing]. She was here. She participated with my inquiry of her on the record. And after that, I was ready, willing, and able to undertake hearing on other evidence the defense may have. There was no mention of the need for her as a witness on that day, or we could have proceeded. I presume that in granting the defense motion for a continuance, that if they needed to have her here as a witness today, they needed to have her here by subpoena, by stipulation of [the prosecutor], by some other process. And I don't think I can continue the hearing any further, because we've got to start the trial up on Monday morning. And I don't even hear a request for continuance. I'm not sure what the request really is that I'm being asked to rule on.

Watters requested a continuance at that point but the district court did not rule on the motion and proceeded with the hearing. At the conclusion of the hearing, Watters' counsel stated that he had no more evidence to produce. The court then ruled that there was no evidence showing that TD had been tainted.

[¶ 10] Watters argues that the district court erred by not granting his motion to require the victim's presence at the taint hearing. He contends that the very nature of the hearing — to determine whether the victim's testimony was tainted by suggestive or coercive interview techniques or other improper influences — mandated the witness' presence. By denying Watters an opportunity to question TD, he insists that the district court could not make a determination of whether her testimony was tainted. Watters claims that the alleged error is sufficient to support reversal of his conviction and a remand for a new trial.

[¶ 11] The remedy requested by Watters at the taint hearing was for a continuance.

The grant or denial of a motion for continuance is a discretionary ruling. Clearwater v. State, 2 P.3d 548, 553 (Wyo.2000). We, therefore, review the trial court's ruling on [the defendant's] motion for continuance for abuse of discretion. The ultimate question in determining whether an abuse of discretion has occurred is whether the trial court reasonably could have concluded as it did. Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). Review of a court's discretionary ruling on a continuance motion is highly dependent upon individual facts and circumstances. Cardenas v. State, 811 P.2d 989, 994 (Wyo.1991). The party attacking the court's ruling bears the burden of establishing the abuse of discretion. Id.

Sincock v. State, 2003 WY 115, ¶ 25, 76 P.3d 323, ¶ 25 (Wyo.2003).

[¶ 12] At the commencement of the competency hearing, the district court had granted Watters' motion to continue the taint part of the hearing. However, the court explicitly informed the parties that if they could produce any evidence or argument related to the question of taint during the course of the competency hearing, they should do so. The victim was present at the competency hearing and was sworn in as a witness. Watters made no effort to question her regarding taint. It appears that Watters simply assumed that TD would be present when the taint hearing resumed four days...