Appeal from the District Court of Uinta County, The Honorable Dennis L. Sanderson, Judge.
The opinion of the court was delivered by: Golden, Justice
Before KITE, C.J., and GOLDEN, HILL, VOIGT,*fn1 and BURKE, JJ.
[¶1] Appellant, Jeffrey D. Holloway, was convicted after a jury trial of one count of second degree sexual abuse of a minor and sentenced to three to eight years in prison. He seeks reversal of that conviction on the basis of prosecutorial misconduct. We will affirm.
[¶2] Holloway raises the following issue for our review:
Was Mr. Holloway denied due process of law by the prosecutor's misconduct in pursuing a charge she knew was not supported by any evidence?
[¶3] On December 3, 2008, the victim, a fourteen-year-old girl, reported to police that she had been involved in a sexual relationship with Holloway, aged twenty-six years, in October 2008. Among other things, the victim reported going to Holloway's house on the morning of October 24 after getting off the school bus and having sex with him. The victim also reported having sex with Holloway "6-7 times" during the two-week period preceding October 24.
[¶4] The State ultimately charged Holloway with three counts of second degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(i) (LexisNexis 2009), with each count pertaining to an act of sexual intercourse occurring on October 22, 23, and 24, respectively. After a preliminary hearing, the case was bound over to district court and proceeded to trial on July 8, 2009.
[¶5] Following jury selection and before opening statements, and in the course of a hearing on a series of motions, the prosecutor, defense counsel, and the district court judge discussed the prosecutor's concern that the victim's testimony might not support Count III, which related to the alleged incident of sexual intercourse on October 24. The prosecutor thought she had filed a motion to dismiss that charge, but her file review showed she had not. Ultimately, the prosecutor decided not to dismiss the charge until she had an opportunity to evaluate the victim's testimony regarding the events of October 24.*fn2 Defense counsel objected to continuing with Count III, but the district court determined its only option under the circumstances was to wait and see what testimony came out at trial.
[¶6] When the victim testified at trial, she specifically recalled engaging in sexual intercourse with Holloway on October 23. However, she was unable to remember whether she had sex with him on October 24, nor could she recall if sexual intercourse occurred on October 22. Based on the victim's lack of memory about October 22 and 24, the prosecutor elected to dismiss Counts I and III, and that decision was relayed to the jury by the district court before the second day of trial. The case was eventually submitted to the jury on the sole remaining count (Count II), and the jury returned a verdict of guilty. The district court sentenced Holloway to serve three to eight years in prison. This appeal followed.
[¶7] Holloway insists that reversible error occurred when the prosecutor pursued the October 24 criminal charge, a charge he claims the prosecutor clearly knew was not supported by any evidence. He contends that the prosecutor's actions violated several rules of professional conduct and resulted in a denial of his due process right to a fair trial. The State counters that the prosecutor had a reasonable belief that some incriminating evidence existed to support the charge -- the victim's initial statements to police -- and, therefore, did not violate her ethical duties by pursuing it.
[¶8] In addressing a claim of prosecutorial misconduct, our focus is on the prejudicial effect of the misconduct. In Gabbert v. State, 2006 WY 108, ¶ 21, 141 P.3d 690, 697 (Wyo. 2006), abrogated on other grounds by Granzer v. State, 2008 WY 118, 193 ...