Appeal from the District Court of Natrona County The Honorable Scott W. Skavdahl, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] In this appeal, Scott Raymond Budig (the appellant) challenges his conviction for third-degree sexual assault and second-degree sexual abuse of a minor. The appellant asserts that his constitutionally protected right to confrontation was violated and that the prosecutor improperly vouched for the credibility of the victim witnesses. Finding no error, we will affirm.
[¶2] 1. Whether the district court abridged the appellant‟s right to confrontation when it limited the scope of his cross-examination of the victims?
2. Whether the prosecutor unfairly vouched for the credibility of the victims during closing argument?
[¶3]On February 21, 2008, the appellant was arrested and charged with five counts of third-degree sexual assault on one of his stepdaughters (older sister), and one count of second-degree sexual abuse of a minor on his other stepdaughter (younger sister). The appellant pled not guilty and received a jury trial.
[¶4] At the trial, the appellant advanced the theory that his stepdaughters had fabricated their allegations. To support his theory, the appellant moved the district court for permission to admit evidence of, among other things, the girls‟ prior sexual conduct, their manipulative character traits, and their propensity for "meanness." The district court heard the appellant‟s motion and determined that only evidence directly related to the girls‟ relationship with the appellant was admissible, and evidence of other instances of specific conduct not directly related to the appellant was not admissible to prove the girls‟ general character. The district court also held that evidence of the girls‟ past sexual conduct was not admissible.
[¶5] The matter proceeded to trial. The evidence presented included the testimony of an expert witness who described common misconceptions about the behaviors and reactions of victims of sexual abuse.*fn1 Upon hearing the evidence, the jury convicted the appellant of two counts of third-degree sexual assault and one count of second-degree sexual abuse of a minor. The appellant was sentenced to incarceration for a period of not less than four years nor more than nine years on both of the third-degree sexual assault convictions, to be served concurrently. He was also sentenced to not less than four nor more than nine years for the second-degree sexual abuse of a minor, to be served consecutively to the sentence from the third-degree sexual assault convictions. A timely notice of appeal followed.
[¶6] The appellant raises two issues in this appeal. In the first, the appellant claims that his right to confront the witnesses was abridged when the district court prevented him from cross-examining the victims about their past sexual conduct, their manipulative character traits, and their propensity for "meanness." In the second issue, the appellant claims the state committed prosecutorial misconduct by improperly vouching for the credibility of the victims during its closing argument. We will address each of the appellant‟s claims in turn.
Whether the district court abridged the appellant's right to confrontation when it limited the scope of his cross-examination of the victims?
[¶7] The constitutional right to confront a witness arises under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Wyoming Constitution.*fn2 A district court‟s limitation on a defendant‟s constitutional right to confrontation is a question of law which we review de novo. Hannon v. State, 2004 WY 8, ¶ 11, 84 P.3d 320, 328 (Wyo. 2004). Restrictions on a defendant‟s right to confront witnesses are subject to harmless error analysis. Id. We have previously addressed the application of the harmless error standard of review to an alleged abridgment of the right to cross-examine a witness as follows:
[T]he correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness‟ testimony in the prosecution‟s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution‟s case.
Id. at ¶ 25, at 332-33 (quoting Olden v. Kentucky, 488 U.S. 227, 232-33, 109 S.Ct. 480, 483-84, 102 L.Ed.2d 513 (1988)).
[¶8] We recently summarized the limits that a court may properly place upon cross-examination:
The primary right secured by the Confrontation Clause of the United States and Wyoming Constitutions is the right of cross-examination. In order for there to be a violation of the right of confrontation, a defendant must show more than just a denial of the ability to ask specific questions of a particular witness. Rather, a defendant must show that he was prohibited "from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness . . . "to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.‟" Hannon, ¶ 18, 84 P.3d at 330 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986)). The Confrontation Clause guarantees a defendant an "opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435 (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 295, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original)). A defendant‟s right to cross-examination of a witness is not unfettered, but is subject to the trial court‟s "discretion to reasonably limit cross-examination to prevent, among other things, questioning that is repetitive or of marginal relevance." Hannon, ¶ 22, 84 P.3d at 331-32 (quoting United States v. DeSoto, 950 F.2d 626, 629-30 (10th Cir. 1991)); see also Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 483, 102 L.Ed.2d 513 (1988) (per curiam).
Miller v. State, 2006 WY 17, ¶ 8, 127 P.3d 793, 796 (Wyo. 2006) (some citations omitted; emphasis in original). Thus, a district court may reasonably limit a defendant‟s right to cross-examination without abridging his Sixth Amendment right to confrontation.
See Id. at ¶¶ 7-13, at 796-97; Jensen v. State, 2005 WY 85, ¶¶ 7-13, 116 P.3d 1088, 1091-1093 (Wyo. 2005); Schmidt v. State, 2001 WY 73, ¶ 30, 29 P.3d 76, 85-86 (Wyo. 2001).
[¶9]Prior to trial, the appellant filed a Motion to Admit Evidence of Alleged Victims wherein he described character evidence he intended to address during cross-examination for the purpose of showing the victims‟ bias or prejudice. The evidence included allegations related to the victims‟ past sexual conduct, evidence of their lying, their manipulative character traits, and their propensity for meanness. The appellant also requested that he be allowed to cross-examine the older sister regarding a "burn book" and that it be admitted into evidence. This "burn book" was a notebook containing disparaging and strongly-worded statements regarding friends, acquaintances, and schoolmates. The state filed a response and the district court held a hearing. In its Order on Defendant‟s Motion to Admit Evidence of Alleged Victims, the district court examined and specifically addressed each category of character evidence the appellant hoped to use. The district court determined that it would allow the appellant to cross-examine the victims regarding evidence of specific acts of untruthfulness or character for truthfulness, evidence of turning on and off their affections toward appellant, and any facts showing meanness or manipulation that were directly related to the appellant. Also, although the district court refused to allow the appellant to offer the entire "burn book" into evidence, it ruled that the appellant could use one page specifically related to the appellant. The district court, however, refused to permit the appellant to cross-examine the victims about alleged past sexual conduct or other reputation or character evidence not directly related to their interactions with, or attitudes toward, the appellant.
[¶10] In this appeal, the appellant contends that the district court erred when it refused to allow him to cross-examine the victims about 1) past sexual conduct, 2) manipulation, and 3) meanness. In sexual assault cases, such as this, the admissibility of this type of evidence is governed by Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2009), commonly referred to as the "Rape Shield Law."*fn3 This statute sets forth a specific procedure the defendant must follow if he intends to offer "evidence of the prior sexual conduct of the victim, reputation evidence or opinion evidence as to the character of the victim." Wyo. Stat. Ann. § 6-2-312(a); Grady v. State, 2008 WY 144, ¶ 20, 197 P.3d 722, 729 (Wyo. 2008). The statute requires the defendant to give notice of intent to use such evidence and make an offer of proof of its relevancy to the defense, with accompanying affidavits. Wyo. Stat. Ann. § 6-2-312(a)(i) and (ii); Velos v. State, 752 P.2d 411, 414 (Wyo. 1988). If the district court finds the offer of proof sufficient, it conducts an in-camera hearing to decide the admissibility of the evidence by examining whether the "probative value of the evidence substantially outweighs the probability that its admission will create prejudice." Wyo. Stat. Ann. § 6-2-312(a)(iv); Velos, 752 P.2d at 414.
[¶11] The appellant‟s motion, filed pursuant to this statute, set forth the following allegations with respect to the three ...