Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1]Appellant was convicted by a jury of one count of unlawful possession of marijuana and two counts of taking immodest, immoral, or indecent liberties with a minor. He now appeals those convictions, making multiple accusations of ineffective assistance of trial counsel. Concluding to the contrary, we affirm.
[¶2] We will re-state and re-order the issues as follows:
1. Did trial counsel provide ineffective assistance by failing to move to dismiss the immodest, immoral, or indecent liberties with a minor charges on the ground that the statute had been repealed?
2. Did trial counsel provide ineffective assistance by failing to move to dismiss the immodest, immoral, or indecent liberties with a minor charges on the ground that the statute was unconstitutional?
3. Did trial counsel provide ineffective assistance by failing to raise a hearsay objection to certain testimony by the victims‟ mother?
4. Did trial counsel provide ineffective assistance by failing to move for a mistrial based upon certain testimony by the victims‟ mother?
5. Did trial counsel provide ineffective assistance by failing to move for a judgment of acquittal?
6. Did trial counsel provide ineffective assistance by failing to object to the district court‟s rejection of a proposed instruction defining the word "knowingly" as an element of the crime of taking immodest, immoral, or indecent liberties with a minor?
7. Did trial counsel provide ineffective assistance by failing to object to portions of law enforcement officers‟ testimony on the ground that such was expert testimony that was inadmissible under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)?
8. Do the foregoing alleged deficiencies constitute cumulative error?
[¶3] Claims of ineffective assistance of trial counsel, brought for the first time on appeal, require this Court to conduct "a de novo review of the facts pertinent to the claim of ineffective assistance." Pendleton v. State, 2008 WY 36, ¶ 9, 180 P.3d 212, 215 (Wyo. 2008) (citing Barker v. State, 2006 WY 104, ¶ 16, 141 P.3d 106, 113 (Wyo. 2006)). In meeting his burden of proving ineffective assistance of counsel, Appellant must prove that counsel‟s performance was deficient and that Appellant was prejudiced by that deficient performance. Id. at ¶ 20, 180 P.3d at 218-19 (citing Frias v. State, 722 P.2d 135, 145 (Wyo. 1986)). Deficient performance means "that counsel made errors so serious that counsel was not functioning as the "counsel‟ guaranteed [appellant] by the Sixth Amendment." Id. To show prejudice, Appellant must prove that "counsel‟s errors were so serious as to deprive [appellant] of a fair trial, a trial whose result is reliable." Id. Stated differently, prejudice means that there is "a reasonable probability that, absent the deficiency in counsel‟s performance, the result of the proceedings would have been different." Id. at ¶ 21, 180 P.3d at 219.
We examine the conduct of defense counsel in light of all the circumstances in determining whether the identified acts or omissions fall outside the ambit of professionally competent assistance, bearing in mind the function of counsel is to make the adversarial testing process work in every case. We do not evaluate the efforts of counsel from a perspective of hindsight but, rather, we endeavor to reconstruct the circumstances surrounding counsel‟s challenged conduct and evaluate the professional efforts from the perspective of counsel at the time. We invoke a strong presumption that counsel rendered adequate and reasonable assistance making all decisions within the bounds of reasonable professional judgment. The burden is upon the defendant to overcome this presumption that, in light of the circumstances, the challenged action or failure of the attorney might be considered sound trial strategy.
Bloomquist v. State, 914 P.2d 812, 820 (Wyo. 1996) (internal quotation marks and citations omitted).
[¶4] The two minor children [the children] who were the victims in this case lived in an apartment with their mother [Mother] and her boyfriend [Boyfriend]. On March 10, 2007, Boyfriend and Appellant spent the afternoon and evening consuming alcohol and smoking marijuana. At about 8:30 p.m., Mother put the children to bed in the bottom bed of a bunk bed, with one child at each end of the bed. She dimmed the overhead light, left the door ajar, and went back into the living room, where Boyfriend and Appellant were located.
[¶5] Shortly after Mother entered the living room, she and Boyfriend began arguing because Mother thought he should not drink any more alcohol that evening. They ended the argument by agreeing that Mother would drive Boyfriend to his parents‟ house. Mother informed Appellant of this plan and told him she "would be right back." When Mother and Boyfriend left, Appellant was fully clothed.
[¶6] As she left the apartment, Mother left the front door open a foot or two, and left the living room lights on. As she started to drive away, she saw the living room lights turn off. Mother and Boyfriend had driven only a few blocks when Boyfriend said Mother "shouldn‟t leave the kids alone with [Appellant] because he‟s a rapist." In response, Mother turned around and drove back to the apartment.
[¶7] Mother and Boyfriend returned to the apartment within five to ten minutes after they left. Upon their return, Mother had to unlock the front door, using her key in the deadbolt lock. Mother entered the apartment and noticed immediately that Appellant‟s shoes were on the floor in front of the couch, but Appellant was not there. Mother and Boyfriend proceeded to the children‟s bedroom, where they noticed the light had been turned off. Mother turned the light on and saw Appellant in bed with the children, naked from the waist down, and with an erect penis. Mother instinctively picked up a small foam-rubber bat and began beating Appellant with it. Boyfriend pulled Appellant from the bed, and began beating him with his fists while dragging him toward the living room.
[¶8] Mother placed a 911 call and police officers soon arrived. The officers separated Appellant and Boyfriend. Appellant, whose face was badly beaten, was taken to the hospital for treatment. There, he was found to be in possession of marijuana. Shortly thereafter, an Amended Felony Information was filed, charging Appellant with one count of unlawful possession of marijuana, and two counts of taking immodest, immoral, or indecent liberties with a minor.
Did trial counsel provide ineffective assistance by failing to move to dismiss the immodest, immoral, or indecent liberties with a minor charges on the ground that the statute had been repealed?
[¶9] The two counts of taking immodest, immoral, or indecent liberties with a child were charged under Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2005). That statute was repealed effective July 1, 2007. Act of July 1, 2007, ch. 159, 2007 Wyo. Laws 393. The charged crimes in this case occurred on March 10, 2007. The jury ...