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Najera v. State

August 21, 2009

FELIX NAJERA, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge.

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

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

BURKE, J., delivers the opinion of the Court; VOIGT, C.J., files a specially concurring opinion.

[¶1] Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts. He also contends that the sentences for the incest convictions should merge with the sexual assault sentences. We find that sufficient evidence exists to support the convictions and affirm all of the convictions. We also determine that five of the six incest sentences should merge with the corresponding sexual assault sentences and reverse and remand for entry of a new Judgment and Sentence.

ISSUES

[¶2] Appellant presents these issues:

1. Did the trial court err in denying [Appellant]'s motion for acquittal on counts I and III-VI?

2. Should the incest counts merge for charging and sentencing with the sexual assault charges?

FACTS

[¶3] Appellant was convicted of twelve felony counts involving improper sexual conduct with his two daughters.*fn1 The twelve counts included: two counts of second-degree sexual assault (counts I and IV) in violation of Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2005); one count of third-degree sexual assault (count II) in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii); and three counts of third-degree sexual assault (counts III, V, and VI) in violation of Wyo. Stat. Ann. §§ 6-2-304(a)(iii) and 6-2-303(a)(vi). Five of the sexual assault counts involve the use of Appellant's authority to gain compliance of the victims, while the sixth was predicated upon the difference in age between Appellant and his victim. Appellant contends that there was insufficient evidence to support his conviction on the five counts involving the use of his authority. The remaining six convictions (counts VII through XII) are for felony incest in violation of Wyo. Stat. Ann. § 6-4-402(a).*fn2 Appellant does not challenge his convictions on those counts.

[¶4] On April 17, 2006, the youngest victim (age 13) told her brother and older sister (age 15) that Appellant had sexually abused her the previous night. The older sister responded by revealing that she had also been abused in the past by Appellant. They called their mother and told her what had happened. Mother telephoned the family doctor. The doctor was not in and the office manager advised mother to take the girls to the emergency room and to call the police. In response to that suggestion, Mother told the office manager that she would "wait to see if it happened again." The next day, Mother apparently changed her mind and took the girls to the doctor's office. The staff at the office called the police, and the investigation began. Appellant was subsequently charged and tried. He was found guilty on all counts and was sentenced to: 10-20 years on each count of second-degree sexual assault to be served concurrently; 10-15 years on each count of third-degree sexual assault to be served concurrently with each other and consecutively to his sentences for second-degree sexual assault; and 3-5 years on each count of incest to be served concurrently with each other and consecutively to his sentences for all other counts. He then filed this appeal.

DISCUSSION

Sufficiency of the Evidence

[ΒΆ5] Appellant moved for judgment of acquittal following the ...


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