Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge
The opinion of the court was delivered by: Hill, 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] Alfred Lee Baldes (Baldes) appeals his conviction of two counts of third-degree sexual assault, contending insufficiency of the evidence and improper admission of W.R.E. 404(b) evidence. We affirm.
[¶2] Baldes presents the following two issues:
1. Whether the evidence presented at trial was insufficient to sustain Alfred Baldes' conviction, specifically there was insufficient evidence to prove that Mr. Baldes was in a position of authority and that sexual contact occurred, as required by W.S. § 6-2-303(a)(vi) and W.S. § 6-2-304(a)(iii), respectively.
2. Whether the trial court erred and abused its discretion when, following an improper Gleason analysis, it allowed the introduction of W.R.E. 404(b) evidence, specifically the testimony of J.G., which was ultimately not offered for its proper purpose by the State.
[¶3] Baldes was hired by Amedisys Home Healthcare in August of 2009 as a certified nursing assistant (CNA). One of the clients served by Amedisys was K.S., recently deceased, a young man who suffered from Duchenne's muscular dystrophy, a progressive muscle-weakening disease. K.S. was confined to a wheelchair and was unable to independently perform many basic daily tasks due to his disability. K.S. became a client of Amedisys in 2006, and Amedisys developed an individualized care plan with K.S. to provide the services he needed and specifically requested, including getting him out of bed in the morning, brushing his teeth, bathing him, washing his hair, and shaving him. Despite his physical infirmities, K.S. exhibited no deficiencies in his mental faculties: He graduated from high school, held a job at the local movie theater, and testified on his own behalf at trial.
[¶4] Baldes was assigned to care for K.S. just after joining Amedisys in August of 2009. Three days a week, as directed in K.S.'s care plan, Baldes gave K.S. a sponge bath, which included washing K.S.'s genitalia, perineum, and anal area. In mid-January of 2010, approximately five months after Baldes began working with K.S., Amedisys and law enforcement received a report alleging sexual abuse of K.S. by Baldes while Baldes was bathing K.S.
[¶5] Baldes was charged with four counts of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a) (LexisNexis 2011), which 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 2011). Baldes was charged with sexual assaults committed under the statutory circumstances set forth in Wyo. Stat. Ann. § 6-2-303(a)(vi) (LexisNexis 2011): "The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit." The term "position of authority" is defined in Wyo. Stat. Ann. § 6-2-301(a)(iv) (LexisNexis 2011) to mean "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."
[¶6] Two of the four counts were eventually dismissed, and Baldes was tried on two counts of sexual assault in the third degree. The jury convicted ...