Winters v. State

Decision Date22 July 2019
Docket NumberS-18-0247,S-17-0314
Citation446 P.3d 191
Parties Joshua Ashby WINTERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Keith R. Nachbar, Keith R. Nachbar, P.C., Casper, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams, Senior Assistant Attorney General* , Curtis M. McNiven, Senior Assistant Attorney General. Argument by Mr. McNiven.


KAUTZ, Justice.

[¶1] A jury convicted Joshua Ashby Winters of aggravated kidnapping, sexual abuse of a minor in the first degree, and sexual abuse of a minor in the second degree. The district court sentenced him to a total of 80-115 years in prison. He appeals from his convictions and sentences as well as from the denial of his Wyoming Rule of Appellate Procedure 21 motion for new trial, which raised various claims of ineffective assistance of counsel. We affirm.


[¶2] Mr. Winters raises seven issues on appeal, which we distill to four:

1. Whether Mr. Winters’ trial counsel rendered ineffective assistance of counsel when he failed to (1) challenge the five-year-old victim’s competency; (2) object to inadmissible hearsay; (3) interview any of the State’s witnesses; and (4) consult or call a DNA expert.
2. Whether the district court abused its discretion in admitting other acts evidence under Wyoming Rule of Evidence 404(b).
3. Whether there was insufficient evidence to sustain Mr. Winters’ aggravated kidnapping conviction.
4. Whether double jeopardy principles require the sentences for aggravated kidnapping and sexual abuse of a minor in the first degree to be merged.

[¶3] We provide a brief synopsis of the facts here. Other pertinent facts are included in the discussion of the issues.

[¶4] On July 18, 2016, five-year-old RH accompanied his nine-year old brother, TP, his six-year-old brother, M, and a family friend to the El Marko Bowling Alley in Casper, Wyoming, to play arcade games. While there, they encountered Mr. Winters, a carnival worker who had just finished working at the Central Wyoming Fair & Rodeo. Mr. Winters gave the boys money to play games. At some point, Mr. Winters claimed he was missing money. RH and TP helped Mr. Winters look for the money until they had to leave to report in with their mother at home. According to TP, Mr. Winters told them they "have to come back to help him find his money, then he would give [them] some money." He also told them to tell their mom he was "a friend." The boys went home, but RH returned to the bowling alley alone.

[¶5] It is unclear what occurred at the bowling alley upon RH’s return. What is clear is RH and Mr. Winters eventually left the bowling alley and ended up at the North Platte River. Mr. Winters carried RH across the river. Ms. Kellie Brodrecht, a passing motorist, observed Mr. Winters and RH in the middle of the river. She testified Mr. Winters was "struggling to walk" because the water was "pretty high." She stopped and ran to the point on the river bank where she could see the man and child. By that time, the man and child were across the river. The man was lying on the embankment and the child was in the bushes and trees. She yelled, "Are you okay?" but neither the man nor the child heard her so she yelled louder. This time the child peeked his head out from the trees and looked at her but did not say anything. The man got up, looked at her, said "yeah, yeah, thanks," and waved her off. The man then walked into the trees. Because Ms. Brodrecht had no reason to believe they were in danger, she left. Once they were alone, Mr. Winters put his mouth on RH’s penis and penetrated RH’s anus with his tongue and penis. Mr. Winters threatened to kill RH’s family if he told anyone what had happened.

[¶6] Mr. Winters and RH then walked south on Wyoming Boulevard to Fairside Road, where Mr. Winters left RH crying on the side of the road.1 Shannon Sierra, a passing motorist, eventually found RH and took him to the Mills police station. Casper Police Officer Levi Hallock met RH at the police station. RH’s arms, legs, and clothing were covered with sand, his shorts and the back of his shirt were wet, and his left cheek was slightly swollen. Officer Hallock transported him to the Wyoming Medical Center, where he was seen by a Sexual Assault Nurse Examiner (SANE nurse). The SANE nurse found no physical evidence or injuries indicating a sexual assault or anal penetration had occurred, which she testified was "common." After the exam, RH was transported to the Child Advocacy Project (CAP) center for a forensic interview (CAP interview). RH returned the next morning for a second CAP interview. Later DNA testing of RH’s penile swabs was inconclusive as to the presence of Mr. Winters’ DNA, but similar testing of RH’s anal swabs revealed Mr. Winters to be the major contributor of the mixture of DNA present there.

[¶7] The State charged Mr. Winters with aggravated kidnapping under Wyo. Stat. Ann. § 6-2-201(a)(ii), (b)(ii), and (d) (LexisNexis 2017) (Count 1), sexual abuse of a minor in the first degree under Wyo. Stat. Ann. § 6-2-314(a)(i) and (c) (LexisNexis 2017) (Count 2), and sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b) (LexisNexis 2017) (Count 3). At trial, Mr. Winters admitted he met RH at the bowling alley and they ended up in the river. He claimed, however, RH followed him to the river, RH fell in the river, and he went in the water to save him. They came out of the river on the other side. Mr. Winters said he passed out on the river bank for 10-20 seconds and, when he came to, he saw RH walking away. Mr. Winters got up, grabbed RH’s hand, and walked with RH to a pawn shop where Mr. Winters thought he had left his bags. He left RH in the parking lot while he went into the shop. When he came out, RH was no longer in the parking lot. Mr. Winters explicitly denied ever touching RH in a sexual manner. He also claimed to have been drinking heavily that day.

[¶8] The jury convicted Mr. Winters of all charges. The district court sentenced Mr. Winters to (1) not less than 50 years nor more than 70 years on Count 1; and (2) not less than 30 years nor more than 45 years on Count 2, which was merged with Count 3 for purposes of sentencing. The sentences on Counts 1 and 2 were ordered to run consecutively. Mr. Winters filed a timely notice of appeal challenging his convictions and sentences (Appeal No. S-17-0314).

[¶9] Subsequently, Mr. Winters filed a W.R.A.P. 21 motion, seeking a new trial based on ineffective assistance of trial counsel. After holding a hearing, the district court denied the motion. Mr. Winters appealed from that denial (Appeal No. S-18-0247). We consolidated both appeals.


[¶10] Mr. Winters raises various claims of ineffective assistance of counsel. He also argues the district court abused its discretion in admitting other acts evidence under W.R.E. 404(b) ; there was insufficient evidence supporting his aggravated kidnapping conviction; and double jeopardy principles required his sentences for aggravated kidnapping and first-degree sexual abuse of a minor to be merged. We start with his complaints against trial counsel.

A. Ineffective Assistance of Counsel

[¶11] A criminal defendant has the right to the effective assistance of counsel. U.S. Const. amend. VI ; Wyo. Const., art. 1, § 10 ; Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ("[T]he right to counsel is the right to the effective assistance of counsel." (quotations omitted)). When a defendant claims he has been denied that right, he must show both that counsel’s performance was deficient, and he was prejudiced as a result. Galbreath v. State , 2015 WY 49, ¶ 5, 346 P.3d 16, 18 (Wyo. 2015) ; Strickland , 466 U.S. at 687, 104 S.Ct. at 2064. Counsel acts deficiently when he "fail[s] to render such assistance as would have been offered by a reasonably competent attorney." Galbreath , ¶ 5, 346 P.3d at 18 (quoting Bloomer v. State, 2010 WY 88, ¶ 18, 233 P.3d 971, 976 (Wyo. 2010) ). "Prejudice occurs when there is ‘a reasonable probability that, absent counsel’s deficient assistance, the outcome of [appellant’s] trial would have been different.’ " Id . (quoting Bloomer, ¶ 18, 233 P.3d at 976 ). A failure to establish one of the two prongs dooms an ineffective assistance of counsel claim. Dettloff v. State , 2007 WY 29, ¶ 19, 152 P.3d 376, 382 (Wyo. 2007).

[¶12] Ineffective assistance of counsel claims are "mixed questions of law and fact." Griggs v. State , 2016 WY 16, ¶ 37, 367 P.3d 1108, 1124 (Wyo. 2016). We defer to a district court’s factual findings unless clearly erroneous; we review de novo the court’s legal conclusions, including whether counsel’s conduct was deficient and whether defendant was prejudiced as a result. Id . We "invoke[ ] a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment. [T]he paramount determination is whether, in light of all the circumstances, trial counsel’s acts or omissions were outside the wide range of professionally competent assistance." Schreibvogel v. State , 2010 WY 45, ¶ 47, 228 P.3d 874, 889 (Wyo. 2010) (citations and quotations omitted).

[¶13] Mr. Winters claims trial counsel was constitutionally ineffective for failing to (1) challenge RH’s competency,2 (2) object to the admission of hearsay testimony, (3) interview any of the State’s witnesses, and (4) consult and call a DNA expert.

1. Failure to Challenge RH’s Competency

[¶14] Six months before trial, trial counsel told the district court at a scheduling conference he "believe[d]" he would be filing a motion to challenge RH’s competency as a witness due to RH’s age and the concerns he had after viewing the CAP interviews. But trial counsel "changed [his] mind" and never filed a motion...

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