White v. State
| Decision Date | 19 December 2003 |
| Docket Number | No. 02-268.,02-268. |
| Parties | Ronald Lee WHITE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, Public Defender; and Donna D. Domonkos, Appellate Counsel.
Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General.
Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and JAMES, D.J.
[¶ 1] In June 2002, a Carbon County jury found the appellant, Ronald Lee White, guilty of soliciting a minor under age sixteen to engage in illicit sexual relations in violation of Wyo. Stat. Ann. § 14-3-104 (LexisNexis 2003), a felony.1 On appeal, the appellant contends that the prosecutor committed misconduct by eliciting improper hearsay, character, and victim impact testimony during the prosecution's case-in-chief and improperly shifting the burden of proof and vouching for the credibility of a witness during closing argument. We affirm.
[¶ 2] The appellant presents the following issues for our review:
Whether the prosecutor committed prosecutorial misconduct when he elicited prejudicial victim impact statements, vouched for the credibility of the State's witness, shifted the burden of proof and elicited hearsay testimony of a prior bad act without notice to defense counsel?
[¶ 3] On September 16, 2001, Iva Bilger (Bilger) asked the victim, age fifteen, to babysit Bilger's four-month-old son for a few hours. According to the victim, the appellant knocked on Bilger's door while the victim was babysitting and identified himself as the infant's grandfather. The appellant stated that he was "passing through" and "wanted to see the baby." Believing the appellant to be Bilger's father, the victim allowed the appellant to enter the apartment. The victim heard the appellant lock the front door upon entering the apartment, prompting her to wonder "What's going to happen to me"? The appellant began staring at the victim because, he said, she was "beautiful...." He commented that "he wished he was younger because younger guys should like" the victim and asked the victim's thoughts on interracial dating and younger girls dating "older guys" (the appellant stated he was forty-two years of age).
[¶ 4] The appellant then reportedly informed the victim that he was "7 inches long," that she "could try it" and if that was not "big enough" for her, she could "move on to bigger and better." When the victim attempted to refocus the appellant's attention by playing with the infant, the appellant removed the infant. According to the victim, the appellant then asked about her personal hygiene, how much the victim "would charge him to have sex" with her, and whether she was interested in that proposition. The victim became "real hot" and "real nervous" and needed to take off her jacket, but the appellant told her she couldn't take off the jacket unless she also took off her shirt. The appellant told the victim about his body piercings, offered similarly to pierce the victim and buy her jewelry, and said that the victim should stop by his trailer if she was ever in Wamsutter. The appellant eventually stated that he should leave before Bilger returned and that if the victim told anyone about the encounter, he would put his "boot in [her] ass and take [her] out south." Bilger testified that the following day, the appellant phoned her and admitted that he asked the victim to "marry him, have sex with him"; "he wanted a sexual marriage relationship with her."
[¶ 5] Deputy Jeff Walton of the Carbon County sheriff's office first interviewed the victim on September 17, 2001. The contents of that interview according to the deputy's testimony appear to coincide with the victim's trial testimony.2 Deputy Walton interviewed the appellant on September 18, 2001. According to Deputy Walton, the appellant admitted that he was alone with the victim at Bilger's residence and told the victim how "beautiful or good looking she was." The appellant stated that he and the victim discussed her breakup with a twenty-one-year-old boyfriend and she mentioned that she liked dating older men. Deputy Walton testified that the appellant provided conflicting information regarding several details, including the amount of time he was alone with the victim. The appellant did not testify at trial. [¶ 6] In June 2002, a jury found the appellant guilty of soliciting a minor under age sixteen to engage in illicit sexual relations in violation of Wyo. Stat. Ann. § 14-3-104. The district court sentenced the appellant to serve a four- to five-year term of imprisonment and to pay $3,060.00 in restitution for the victim's counseling and funds expended on the victim's behalf, $2,235.00 in public defender's fees, and other mandatory fees. The appellant appeals from that judgment and sentence.
[¶ 7] We review allegations of prosecutorial misconduct "`by reference to the entire record....'" Mazurek v. State, 10 P.3d 531, 542 (Wyo.2000) (quoting English v. State, 982 P.2d 139, 143 (Wyo.1999)
). Such allegations "`hinge on whether a defendant's case has been so prejudiced as to constitute denial of a fair trial.'" Mazurek, 10 P.3d at 542 (quoting English, 982 P.2d at 143).
Prosecutorial misconduct "has always been condemned in this state." Valerio v. State, 527 P.2d 154, 156 (Wyo.1974). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error ... affected the accused's "substantial rights." The accused's right to a fair trial is a substantial right. Wyo. Const. art. 1, §§ 6, 9, and 10; and see, e.g., Jones v. State, 580 P.2d 1150, 1154 (Wyo.1978)
. Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused. Jones v. State, 735 P.2d 699, 703 (Wyo.1987). We read this standard to be in consonance with the standard followed by the United States Supreme Court[.]
[¶ 8] The appellant did not object to any of the alleged misconduct at trial. On appeal, it is therefore incumbent upon the appellant to demonstrate plain error in that "the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right." Compton v. State, 931 P.2d 936, 939 (Wyo.1997).
[¶ 9] The appellant contends that, on redirect examination, the prosecutor elicited improper hearsay and W.R.E. 404(b) testimony from Bilger regarding an incident involving the appellant and Bilger's neighbor. The appellant's trial counsel, not the prosecutor, first referred to the alleged incident during his cross-examination of Bilger and utilized it extensively in attempting to attack Bilger's credibility and support the appellant's theories of the case.
[¶ 10] On cross-examination, Bilger testified as follows:
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