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In re MM

March 3, 2009

IN THE INTEREST OF MM, A MINOR:
MM, APPELLANT (RESPONDENT),
v.
THE STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES, APPELLEE (PETITIONER).



Appeal from the District Court of Park County The Honorable Gary P. Hartman, Judge.

The opinion of the court was delivered by: Kite, Justice

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

[¶1] MM (Father) appeals from the adjudication order incorporating the jury's verdict that MM (the child) was abused while in his custody. He claims the juvenile court erred by refusing to dismiss the case because the State failed to timely disclose exculpatory evidence. We conclude that the juvenile court properly addressed, pursuant to the Wyoming Rules of Procedure for Juvenile Courts, the State's failure to disclose the evidence by ordering production of the information to Father. In light of the State's production of the evidence to Father prior to trial and the strength of the State's case, we further conclude Father failed to show a violation of his due process rights. Consequently, we affirm.

ISSUE

[¶2] Father presents a single issue on appeal:

Whether the District Court erred by refusing to dismiss the case for the State's failure to timely disclose exculpatory evidence?

The State and guardian ad litem present similar issues.

FACTS

[¶3]On October 12, 2007, the child's daycare provider reported to authorities that the two year old child's vaginal area "appeared to be swollen and bruised" and she had a "goopy" vaginal discharge. A Cody Police Department detective went to the daycare and looked at the reported injury. She took the child into protective custody and arranged for her to be transported to the emergency room at the local hospital.

[¶4] The emergency room physician performed a sexual assault examination. The doctor noted systemic discoloration of the child's labia compatible with potential sexual assault and recommended that the child be seen by her pediatrician. Photographs were taken of the child's genitals during the emergency room examination.

[¶5] On October 16, 2007, the child was examined by her pediatrician. He did not see any bruising or discoloration of the child's genitals. The pediatrician did, however, note that she had labial laxity which was a change from the last time he had examined her. He considered the change to be a "red flag" for abuse. He stated the child's condition was consistent with non-traumatic genital manipulation and penetration.

[¶6] The State filed a petition pursuant to Wyo. Stat. Ann. § 14-3-403, et. seq. (LexisNexis 2007) alleging the child had been abused. Father and VM (Mother) denied the allegations, and a trial was scheduled for February 7 and 8, 2008. A few days prior to the trial, Mother's counsel received a police report which referred to a telephone conversation between the State and the Kempe Children's Center in Colorado on December 12, 2007. The State apparently contracted with the Kempe Children's Center for consultations in child abuse cases. The police report indicated that, after reviewing the photographs of the child's genitals, a doctor with the Kempe Children's Center could not see an injury to the child. The report also stated that the conversation had been recorded by the State.

[¶7] Mother and Father filed a motion to dismiss the neglect petition on the basis that the recording included exculpatory evidence and the State had failed to disclose it in a timely manner as required by the Wyoming Rules of Procedure for Juvenile Courts. The juvenile court denied the motion to dismiss but ordered the State to produce the exculpatory portions of the recording to the respondents. The State produced the entire recording to the respondents on the day before the trial commenced. Over the State's objection, the recording was admitted as evidence at trial and the entire conversation was played for the jury.*fn1

[¶8] The jury returned its verdict finding the allegations that the child was abused while in the custody of Mother and Father to be true, and the juvenile court entered an adjudication order consistent with the jury's verdict. Father appealed.

DISCUSSION

[¶9] Father claims that the State's failure to produce the recording of the conversation with the Kempe Children's Center to the respondents in a timely manner violated the Wyoming Rules of Procedure for Juvenile Courts and the constitutional mandates set forth in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He argues the State's action compelled dismissal of the abuse petition.

[¶10] W.R.P.J.C. 3 states in relevant part:

(b) Discovery by the State. The State shall without the necessity of a request by the Respondent, and within thirty (30) days of service of the applicable petition, furnish to the Respondent and guardian ad litem:

(1) Any material or information within the knowledge, possession or control of the State which tends to negate the involvement of the ...


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