Appeal from the District Court of Uinta County The Honorable Dennis L. Sanderson, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Miachel G. Maier, the appellant, was convicted of both first-degree and attempted first-degree sexual assault. He now appeals those convictions, arguing that he was prejudiced by the admission of hearsay testimony and by prosecutorial misconduct in closing argument. He also argues that he was denied his right to effective assistance of counsel at trial due to his attorney's failure to object to either the hearsay testimony or the prosecutor's closing remarks. We affirm.
[¶2] 1. Did the district court commit plain error by admitting hearsay testimony by one of the state's witnesses?
2. Did the prosecutor commit misconduct in the presentation of his closing argument?
3. Did defense counsel provide ineffective assistance by failing to object to the hearsay testimony and to the prosecutor's statements in his closing argument?
[¶3] On the night of January 8, 2010, MY and her friend, Charles Vitale (Vitale), went to the Hornet's Nest bar in Evanston, Wyoming. After a couple hours, the pair left and went to another bar, the Legal Tender. While there, MY's sister, TY, contacted her and asked her to pick up TY's boyfriend, the appellant, from work, and bring him to the bar. MY did so at approximately midnight. Over the course of the evening, MY consumed three beers and three shots of hard liquor.
[¶4] The appellant and MY disagree regarding their interactions while at the Legal Tender. MY testified that she barely spoke with the appellant and never danced with him, flirted with him, or kissed him. Vitale testified that he did not recall MY dancing with anyone or sitting on anyone's lap. Another member of the group at the bar, Michael Caves, agreed with Vitale that MY did not dance with anyone or sit on anyone's lap while at the Legal Tender. The appellant, on the other hand, testified that MY sat on his lap and was "flirting because she was kind of playing with her hair and smiling at me."
[¶5] Shortly before 2:00 a.m., TY picked up the appellant from the bar on her way home from work. At the same time, MY drove herself and Vitale in a separate vehicle to TY's apartment. At the time, MY lived in Salt Lake City and intended to spend the weekend at her sister's apartment. Shortly after arriving at TY's apartment, MY began to feel sick and went to the bathroom and passed out for a couple hours. TY left to go to work before 3:00 a.m., while MY was still in the bathroom. Eventually, MY tried to crawl to her sister's bedroom and remembers getting as far as the hallway, but has no recollection as to how she got into the bed. The appellant testified that he helped her to bed because she was stumbling and incoherent.
[¶6] MY woke up when she felt someone's fingers in her vagina. The appellant and MY disagree as to what happened next. MY testified that "I pulled up my pants and he pulled them back down and tried to stick his penis in me and I pulled them back up again." The appellant, on the other hand testified as follows:
I pulled her panties to the side and I inserted my finger part way inside of her vagina; and she was somewhat moving her hips with it, so I thought that she was--I--I thought in my mind that she was liking it, so that's when I proceeded to pull out my penis and I touched her with it. But when she pulled up her pants, I was, like, all right, this isn't what she wants to do. I pulled up mine and I left the bedroom.
MY went back to sleep and stayed in bed until she woke up later that morning. Vitale and the appellant were already awake, and TY had just returned from work. The appellant's and MY's testimony differed as to MY's demeanor that morning. While MY contends that she immediately told Vitale that she wanted to leave, the appellant and TY testified that MY remained in the apartment living room with the group for about an hour before leaving. As Vitale was driving, MY told him that she thought she was raped by the appellant. Vitale took MY to her sister CY's house. After being informed of the events, CY called the police and took MY to the hospital.
[¶7] A couple weeks prior to these events, MY and TY were together at TY's apartment while the appellant was at work. They were both sending the appellant sexually explicit text messages regarding a potential three-way sexual act. The appellant told TY he didn't believe that MY wanted to participate. In response, TY took a picture of MY in her underwear and sent it to the appellant. A few days later, on December 28, the appellant and MY had the following exchange on Facebook:
Appellant: I know this might sound a little weird but [TY] and [I] want to know if you want to have a threesome with us? [I]t has always been a fantasy of hers and we are really hopeing [sic] you will do this for us. Love, Mike
MY: Dude your [sic] such a retard!!!! The answer would be no!!!
[¶8] The jury found the appellant guilty of sexual assault in the first degree and attempt to commit sexual assault in the first degree. The appellant now appeals those convictions.
Did the district court commit plain error by admitting hearsay testimony by one of ...