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Faubion v. State

June 18, 2010

JACK ELSWORTH FAUBION, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).
JACK ELSWORTH FAUBION, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Campbell County. The Honorable John C. Brackley, Judge.

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

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

HILL, J*fn1, delivers the opinion of the Court; VOIGT, C.J., files as specially concurring opinion.

[¶1] In these consolidated appeals, Appellant, Jack Elsworth Faubion (Faubion), challenges his ten convictions for third degree sexual assault. In Case No. S-09-0076, Faubion was convicted of four such counts after a trial to the court, sitting without a jury. In Case No. S-09-0077, with respect to an additional six counts that were charged at a later date, Faubion entered pleas of nolo contendere in accordance with W.R.Cr.P. 11(a)(1)(A). Wyo. Stat. Ann. § 6-2-304(a) (LexisNexis 2009)*fn2 provides:

(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:

(i) and (ii) Repealed by Laws 2007, ch. 159, § 3.

(iii) The actor subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vii) without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim.

"Sexual contact" is defined by statute as: "touching, with the intention of sexual arousal, gratification or abuse, of the victim's intimate parts by the actor, or of the actor's intimate parts by the victim, or of the clothing covering the immediate area of the victim's or actor's intimate parts." Wyo. Stat. Ann. § 6-2-301(a)(vi) (LexisNexis 2009). "Intimate parts" are defined as; "the external genitalia, perineum, anus or pubes of any person or the breast of a female person." Wyo. Stat. Ann. § 6-2-301(a)(ii) (LexisNexis 2009). Faubion was charged with sexual assaults which were committed under this statutory circumstance: "The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit." Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2009). "Position of authority" is defined as: "that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person." Wyo. Stat. Ann. § 6-2-301(a)(iv) (LexisNexis 2009).

[¶2] Faubion contends that he did not hold a "position of authority" as contemplated by the applicable statute, and, hence, could not be found guilty under the factual circumstances of this case. Further, he contends that the district court erred by not considering the lesser included offense of sexual battery at the bench trial.

[¶3] We will affirm all of Faubion's convictions.

ISSUES

[¶4] Faubion provides this statement of the issues:

I. Did Faubion, a chiropractor, hold a "position of authority" causing the victims to submit to sexual contact?

II. Did the trial court err in not considering the lesser included offense of sexual battery in the bench trial?

The State rephrases the issues as follows:

I. Sufficient evidence was presented to allow the district court to find [Faubion] held a "position of authority" over his victims.

II. Using the plain error standard of review, the district court did not err in not considering the crime of sexual battery at the bench trial.

[ΒΆ5] The State posits a third issue in its brief that is not included in its statement of the issues. It contends that, with respect to the pleas of nolo contendere, Faubion did not preserve the issue of whether or not he was in a "position of authority" ...


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