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Bowser v. State

April 16, 2009

STEVEN R. BOWSER, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Platte County. The Honorable John C. Brooks, Judge.

The opinion of the court was delivered by: Burke, Justice.

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

[¶1] Steven Bowser appeals his convictions on two counts of immoral or indecent acts with a minor in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2005).*fn1 Mr. Bowser challenges the district court's decision permitting the alleged victim, a minor child, to testify at trial by video deposition. He also contends that the seating arrangement at the video deposition violated his constitutional right to confront witnesses against him because he was prevented from seeing the witness while she testified. We conclude that the State failed to present sufficient evidence to support use of the video deposition at trial and the seating arrangement at the deposition. Consequently, we reverse.

ISSUE

[¶2] Mr. Bowser raises several issues in this appeal. We, however, find that the following issue raised by the State is dispositive:

Was there a violation of Mr. Bowser's right to confront witnesses against him as a result of failure to follow the requirements of Wyo. Stat. Ann. § 7-11-408?

FACTS

[¶3] On February 6, 2007, the State charged Mr. Bowser with one count of incest, two counts of immoral or indecent acts with a minor, and two counts of third-degree sexual assault. The indecent acts charges were based upon two incidents in which Mr. Bowser was accused of masturbating in DM's presence. Mr. Bowser entered a plea of not guilty to all charges. On July 24, 2007, Mr. Bowser moved for a hearing to determine DM's competence to testify. Two weeks later, the State filed a Motion for Testimony by Videotaped Deposition. The motion stated that DM was seven years old and "susceptible to feelings of intimidation by the accused offender," and that she was "receiving ongoing psychological counseling in regard to difficulties . . . experienced in coping with [her] victimization." It also stated that, "[t]here is a concern among counsel for the State as well as [DM's] private counselor that a courtroom will be so intimidating to [DM] that [she] will be unable to testify against [her] father."

[¶4] The court held a hearing and considered both parties' motions.*fn2 The State argued that DM would not be able to testify in a courtroom setting and that she would be intimidated by Mr. Bowser's presence. The State introduced no testimony, affidavits, or other evidence to support its claims. Mr. Bowser objected to DM's video deposition based on his Sixth Amendment right to confront the witnesses against him. The court ruled that the video deposition was permissible, but that Mr. Bowser was entitled to be in the same room as DM during the questioning. The court stated, however, that the State could "arrange the seating so that this little girl doesn't have her dad looking her square in the eyes." The court also granted Mr. Bowser's request for a competency hearing.

[¶5] The video deposition occurred on August 16, 2007. Before questioning began, Mr. Bowser objected to the seating arrangement because he could not observe DM during her testimony. Mr. Bowser and DM were seated on the same side of the conference table. Another person, apparently DM's therapist, was seated between Mr. Bowser and DM. The seating arrangement resulted in an inability of Mr. Bowser and DM to see each other during her testimony. On August 20, 2007, after the district court had viewed the video, it held a motion hearing in which it considered DM's competency and Mr. Bowser's confrontation objection. The court found DM competent to testify and overruled the confrontation objection.

[¶6] The trial took place on August 21-22, 2007. DM was the first witness for the State but did not testify in person. Instead, her video testimony was played for the jury.*fn3 At the trial's conclusion, Mr. Bowser was found guilty of two counts of indecent liberties and acquitted on all other charges. The court sentenced Mr. Bowser to four to eight years of imprisonment on each count, to be served consecutively. The sentence on the second count was suspended in favor of four years of probation. Mr. Bowser appeals.

STANDARD OF REVIEW

[¶7] Mr. Bowser contends that his constitutional right to confront witnesses has been violated. The question of whether a defendant's confrontation right has been violated is an issue of law that we review de novo. Proffit v. State, 2008 WY 102, ¶ 5, 191 P.3d 963, 966 (Wyo. 2008). The issue raised by the State is whether Wyo. Stat. Ann. § 7-11-408 was complied with in the district court. To the extent our review requires us to interpret the statute, we do so de novo. RK v. State ex rel. Natrona County Child Support Enforcement Dep't, 2008 WY 1, ¶ 10, 174 P.3d 166, 169 (Wyo. 2008). The statute requires certain findings of fact, which we will discuss. We review findings of fact for clear error. Baker v. Speaks, 2008 WY 20, ¶ 9, 177 P.3d 803, 806 (Wyo. 2008). Lastly, the current case implicates the ...


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