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Adam J. Mersereau v. the State of Wyoming

September 26, 2012

ADAM J. MERSEREAU, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge

The opinion of the court was delivered by: Voigt, Justice.

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

VOIGT, J., delivers the opinion of the Court; BURKE, J., files a concurring in part and dissenting in part opinion, in which KITE, C.J., joins.

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] The appellant, Adam J. Mersereau, was convicted of one count of first-degree sexual abuse of a minor and eight counts of second-degree sexual abuse of a minor. In this appeal, he raises eight issues where he claims there was error in his trial. After a careful review of the record, we cannot say that the appellant received a fair trial. Therefore, we reverse the appellant's convictions and remand for a new trial.

ISSUES

[¶2] 1. Whether the district court's decision that the victim was competent to testify was clearly erroneous.

2. Whether the district court abused its discretion when it admitted computer forensic evidence and family photos into evidence under W.R.E. 404(b).

3. Whether the district court commented improperly upon the weight of the evidence.

4. Whether the district court erred when it determined that the appellant's statement to Deputy Peech was given voluntarily.

5. Whether plain error occurred when Deputy Peech expressed his opinion that the appellant was lying during the interview.

6. Whether plain error occurred when the district court instructed the jury that there need be no corroboration of the victim's testimony in order to convict the appellant.

7. Whether the State presented sufficient evidence to sustain each of the convictions.

8. Whether the appellant received ineffective assistance of trial counsel.

FACTS

[¶3] The details of the factual allegations underlying the convictions in this case are somewhat confusing and difficult to organize into a meaningful and understandable timeline. Suffice it to say, the appellant was charged with one count of first-degree sexual abuse of a child, wherein it was alleged that the appellant anally penetrated his four-year-old stepson in the family car. The charges were brought after the victim had been examined by the family's physician assistant, a sexual assault nurse examiner, and a forensic interviewer. While being interviewed by Deputy Peech with the Converse County Sheriff's Department regarding the allegation, the appellant made statements that led to eight counts of second-degree sexual abuse of a child. These charges alleged that the appellant had engaged in various instances of sexual contact with the victim while the appellant was giving the victim a bath. After a jury trial, the appellant was convicted of all nine of the charges against him. Due to the number of issues in the appeal, additional facts will be discussed when relevant.

DISCUSSION

Whether the district court's decision that the victim was competent to testify was clearly erroneous [¶4] One month before the trial began, the district court held a hearing to determine whether the victim, who was four years old at the time of the crimes and five years old at the time of trial, was competent to testify. The district court heard testimony from the victim, a forensic psychologist, and a psychologist hired by the appellant. Thereafter, the district court concluded that the victim was competent to testify. The district court found specifically that the victim could recognize the difference between the truth and a lie and that he appeared to appreciate the need to testify truthfully, he had the ability to recall specific events and had the ability to speak about them, and he had the capacity to understand simple questions. The appellant argues that the record does not support the district court's decision and, instead, demonstrates that the victim was not competent to testify.

[¶5] This Court reviews a district court's findings regarding the competency of a child to testify as follows:

It is a well-established principle of law that competency of witnesses to testify is a question within the sound discretion of the trial court. However, when children are called into the courtroom to testify, we have held that once the child's competency is called into question by either party, it is the duty of the court to make an independent examination of the child to determine competency, and that determination will not be disturbed unless shown to be clearly erroneous.

English v. State, 982 P.2d 139, 145 (Wyo. 1999) (internal citations and emphasis omitted). We must give a considerable amount of deference to the trial court because it "is in a far better position to judge the demeanor, truth, and veracity of the witness[.]" Gruwell v. State, 2011 WY 67, ¶ 25, 254 P.3d 223, 231 (Wyo. 2011). Therefore,

"[w]e do not presume to place ourselves in the shoes of the trial court in these cases by reading a cold record. The trial court sees the witness' facial expressions, hears inflections in [his] voice and watches [his] mannerisms during examination. These observations are a vital part of the ultimate ruling on competency."

Id. (quoting Seward v. State, 2003 WY 116, ¶ 32, 76 P.3d 805, 819 (Wyo. 2003)).

[¶6] The Wyoming Rules of Evidence presume that "[e]very person is competent to be a witness except as otherwise provided in these rules." W.R.E. 601. "A person is generally competent to testify if he can understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying." Simmers v. State, 943 P.2d 1189, 1199 (Wyo. 1997). Further, a witness' intelligence, not his age, should guide a court in determining whether the witness is competent to testify. Baum v. State, 745 P.2d 877, 879 (Wyo. 1987).

[¶7] This Court has adopted a five-part test for the district courts to consider when determining whether a child is a competent witness. The district court must determine whether the child has:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

Larsen v. State, 686 P.2d 583, 585 (Wyo. 1984).

[¶8] In its decision letter, the district court analyzed the five-part test and determined that the victim was competent to testify. The appellant argues, however, that the district court's conclusions are not supported by the record. After a careful review of the record, we agree with the appellant's argument, and hold that the district court's decision was clearly erroneous.

[¶9] The district court concluded that the victim was able to differentiate between the truth and a lie, and that he "appeared [] to appreciate the need for him to testify truthfully." At the competency hearing, the victim properly recognized that it would "not be the truth" to say he was outside or in California during his testimony. He also understood it was the truth to say he was currently in Wyoming. He properly stated that it was "not the truth" to say the prosecutor's shirt was purple, while it would be the truth to say it was blue. The record clearly demonstrates that, when asked simple questions, the victim understood the difference between a truth and a lie.

[¶10] However, the question of whether the victim appreciated the need to testify truthfully is problematic. At the competency hearing, the child was not asked by the district court, the prosecutor, or defense counsel whether he understood he was required to tell the truth in a courtroom. Nor was he ever asked if he understood, from a moral perspective, why it is important to tell the truth and not to tell lies, especially in the courtroom. The State points out that the forensic interviewer informed the victim that he needed to tell the truth during the forensic interview. Unfortunately, that does not demonstrate that the victim understood and appreciated the need to tell the truth in the courtroom.

[¶11] Immediately before his trial testimony, the district court told the victim that he needed to tell the truth, and the victim responded that he understood. However, we are not convinced, based upon the meager evidence at the competency hearing, that the victim truly did understand that obligation. This is borne out by the fact that at the competency hearing and at the trial, the victim testified to verifiably untrue information, including how many family members and pets he had. In fact, the victim gave incorrect information about how many grandmothers, pets, and sisters he had immediately after being reminded by the district court that he needed to tell the truth.*fn1 We also have significant concern that the victim's imagination regarding his non-existent pets was intertwined with his testimony regarding the incident where the appellant allegedly anally penetrated him:

[PROSECUTOR]: So you remember it was in the morning. Were you in the car for a long time or not very long?

[VICTIM]: Very long.

Q. Did your mom get mad that you were gone so long?

A. No, she had a cat.

Q. She what?

A. She had a cat.

Q. She had an [sic] a cat?

A. Yeah.

Q. Did you have a pet?

A. A dog. It was a boy.

Q. A boy dog?

A. Yeah.

Q. Now, when you came home on that long trip with your dad, do you remember what you did when you got home?

A. Yeah, fed the cat.

Q. You fed the cat?

A. Yeah.

Based upon all of these circumstances, we find that the district court's decision finding the victim was competent to testify was clearly erroneous. While the victim could identify the difference between the truth and a lie when asked direct questions about whether something was a truth or a lie, there is no evidence to support the conclusion that he understood the obligation to tell the truth while testifying.

[¶12] We are aware that the district court and this Court determine only the competency of the victim, and not his credibility. See Watters v. State, 2004 WY 155, ¶ 18, 101 P.3d 908, 916 (Wyo. 2004). Here, the fact that the victim was telling verifiable untruths (that he knew were not true) on the witness stand has nothing to do with his credibility in this analysis. Instead, it demonstrates that he, for whatever reason, was unable to appreciate the need to tell the truth in the courtroom.

[¶13] Further, we cannot find that this error was harmless. The victim was the only witness to the appellant's criminal conduct, and without his testimony there was no allegation of the criminal conduct except through information provided to third parties. We find that this lack of evidence is sufficiently prejudicial to the appellant that it warrants reversal of his convictions and a remand for a new trial.

[¶14] The appellant has also claimed that the victim's testimony was tainted by his mother and the forensic interviewer. Because this issue was not brought to the district court's attention at the competency hearing, and because we are reversing for a new trial based upon the overreaching competency issue, we decline to address whether the victim's testimony was tainted. However, we will note that, based upon the record that is before this Court, it is not a far-fetched conclusion that the victim's testimony was tainted.

[¶15] The victim's mother testified that she believed that the statement, "Daddy put his peepee in my butthole," may have evolved from an incident that occurred approximately six to seven months before the alleged sexual abuse was investigated by law enforcement. She explained that, after watching a story on the news about stepparents molesting their stepchildren, she asked the victim "if daddy ever stuck [his] peepee in your butt hole." She also testified that, after the victim had been examined by the physician's assistant, she called her sister and her sister-in-law and told each of them that the victim had said that "Daddy stuck his peepee in [his] butt hole." These conversations took place in front of the victim. Further, the forensic interviewer focused on the same phrase during her interview of the victim. She told the victim that his mother told her that "dad put his peepee in your butthole," and used the phrase approximately thirty-five more times throughout the course of the interview. While we are not holding that this evidence does, in fact, definitively demonstrate taint, we caution the district court that this is a significant issue that should be resolved if there is a retrial.

Whether the district court abused its discretion when it admitted computer forensic evidence and family photos into evidence under W.R.E. 404(b)

[¶16] Before the trial began, the district court considered whether the State could produce uncharged misconduct evidence pursuant to W.R.E. 404(b). Specifically, the State wanted to introduce several photos of the victim and his brother engaging in various innocent activities in the nude, images from the appellant's computer which the State alleged to be child pornography, and evidence that the appellant visited several pornographic websites on the internet. The district court heard testimony from the appellant's wife and Agent Timmons, with the Division of Criminal Investigation. After the hearing, the district court issued a decision letter, in which it determined the photos of the victim and his brother, and the fact that the appellant visited pornographic websites and that there was child pornography found on his computer were admissible, while the actual images of child pornography were too prejudicial to be admitted.

[¶17] We review a district court's decision regarding the admission of uncharged misconduct evidence pursuant to W.R.E. 404(b) as follows:

We review claims of error concerning the improper admission of W.R.E. 404(b) evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo. 2006). A trial court abuses its discretion when it could not have reasonably concluded as it did. Id. In this context, "reasonably" means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious. Id.

Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010) (quoting Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007)). Even if a district court abused its discretion in admitting uncharged misconduct evidence, we must also determine whether the error was prejudicial. Rolle, ¶ 9, 236 P.3d at 264. "'Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made.'" Id. (quoting Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo. 2010)).

[¶18] W.R.E. 404 prohibits the use of evidence of a defendant's character or trait to prove that he acted in conformity with that character or trait. W.R.E. 404(a) and (b). However, evidence of uncharged misconduct may be admissible to prove a defendant's "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." W.R.E. 404(b). Use of this type of evidence carries the risk of significant prejudice to the defendant and, therefore, we have developed a mandatory procedure before evidence may be admitted under W.R.E. 404(b):

[B]ecause uncharged misconduct evidence carries an inherent danger for prejudice, we have also adopted a mandatory procedure for testing its admissibility: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted. We do not apply this test on appeal; rather, it is intended to be conducted by the trial court.

For proper appellate review of the admissibility of evidence under W.R.E. 404(b), the record must reflect that the trial court required the State not only to identify the proper purpose for which uncharged misconduct evidence is being offered, but also to explain how or why it is probative, and why it is more probative than prejudicial . . . . To make sure there is no doubt in the future that this is a required process, we will repeat it now, in the body of this opinion:

In determining the probative value of prior bad acts evidence, the trial court should consider the following factors:

1. How clear is it that the defendant committed the prior bad act?

2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged crime and the prior bad act?

Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence:

1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.

2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.

3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again.

4. The comparative enormity of the charged crime and the prior bad act. When the prior act is a more serious offense than the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable light.

5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b).

6. Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act.

Gleason v. State, 2002 WY 161, ¶¶ 18, 27, 57 P.3d 332, 340, 342-43 (Wyo. 2002).

[¶19] Here, the district court held a pretrial hearing on the matter and heard testimony regarding information found on the appellant's computer, including photos of the victim and his younger brother in the nude, suspected child pornographic images of girls, and visits to pornographic websites.*fn2 The State argued the photos of the victim and his brother in the nude, and apparently the images of suspected child pornography, would be properly introduced to show the appellant's course of conduct and motive--namely his desire for "sexual intercourse with children" and that he "has a fetish with anal sex." While the proper purpose for the admission of the websites was not clear from the State's argument, the district court interpreted that motive was the alleged proper purpose. Further, the State provided minimal explanation as to the balancing of the probative value of all of the evidence versus the potential for prejudice against the appellant. The State simply stated that the information was "a big part of that puzzle" and was not unduly prejudicial. The State further stated: "If the defense wants a limiting instruction not to consider child pornography for the wrong reason, I understand that, but they are relevant and probative, Your Honor."

[¶20] Despite the State's thin attempt to demonstrate why the evidence was admissible under W.R.E. 404(b), the district court engaged in a somewhat more thorough analysis in its decision letter. The district court analyzed each piece of evidence individually, and gave some consideration to each of the Gleason factors. After completing its analysis, the district court found that the photos of the victim and his brother and the fact that the appellant visited pornographic websites that might contain child pornography were admissible. The district court concluded that the actual images that may be child pornography were too prejudicial for the jury to see, but the district court did allow testimony that child pornography was found on the computer. A review of the record demonstrates that the uncharged misconduct evidence was substantially more prejudicial than probative in this case and, therefore, the district court abused its discretion in finding otherwise.

[¶21] With respect to the nude photos of the victim and his brother, the district court found that the State offered the photos to prove motive, which is a proper purpose. The district court then found that the appellant's possession of nude photographs of his children was relevant to show motive, considering that he was charged with sexually abusing his son. When evaluating the probative value of the evidence, the district court found that it was clear that the appellant either took or possessed the photos of his children. The district court also found that, while the appellant argued that the photos were normal photos that parents take of their children, it was for the jury to determine whether they were innocent or more sinister. The district court determined that there was no other evidence available, because these were the only nude photos of the children. The district court also found that the photos were taken in a relatively close period of time to the offenses the appellant was accused of committing. With respect to the prejudicial nature of the photos, the district court concluded that the photos were not necessarily reprehensible, but could be prejudicial if the jury did not believe them to be innocent family photos, and that the children in the photos are sympathetic victims. It determined that the photos were not very similar to the charged acts because they don't show sexual abuse, and that the enormity of the charged crime is much more significant than any bad conduct demonstrated in the photos. The district court recognized that the appellant had not been convicted of a crime associated with the photos and, while it recognized that there was a prejudicial danger associated with admitting the photos, that danger did not substantially outweigh the probative value of showing motive. Finally, the district court stated that, if requested by the appellant, it would provide a jury instruction about the limited nature of the evidence.

[¶22] The district court then went on to find that the pornographic images from the computer were too prejudicial to be admissible. Importantly, the district court recognized that these images could not be "established definitely" as child pornography, although the images appeared to show minors engaged in sexual acts. The district court also recognized that there was other evidence available to establish motive.

[¶23] Finally, the district court analyzed whether testimony regarding the pornographic websites was admissible. Again, the district court found that the State sought to offer the evidence to show motive, which is a proper purpose, and the fact that the appellant was visiting websites that depicted child pornography was highly relevant to the charged offenses. With respect to balancing the probative value versus the danger of unfair prejudice, the district court found that it was clear that the appellant viewed the aforementioned pornographic images, the appellant admitted that he visited pornographic websites, and the appellant did not dispute the issue on which the State was offering the evidence. The district court determined that the websites were the only evidence available to show that the appellant possessed child pornography, as the district court determined that the images themselves could not be admitted. The district court also found that the evidence was not cumulative and there was nothing presented to show that the images were not recently downloaded. Specifically in regard to prejudice, the district court recognized that viewing child pornography is reprehensible and there was some danger that the jury would be tempted to punish the appellant for that behavior. While victims of child pornography are sympathetic, the district court believed that would be mitigated by the fact that the persons in the images were not parties in the case or was their identity known. The district court recognized that possessing child pornography is quite different from sexually abusing a child and, although it is a serious crime, is not as serious as facing multiple counts of sexual abuse of a minor. Finally, the district court found that the appellant had not been previously convicted of a crime for this behavior, and that any potential prejudice could be remedied through a jury instruction. Therefore, the evidence was admissible.

[¶24] Although the district court "applied" the Gleason test, some of the factors were not appropriately analyzed, and we cannot find that the district court could have reasonably concluded that the probative value of any of this evidence was not substantially outweighed by the potential unfair prejudice to the appellant. This Court's biggest concern is with the district court's conclusion that the fact that the appellant visited pornographic websites was admissible. First and foremost, the facts presented at the hearing did not establish that the pornographic websites the appellant visited actually contained child pornography. At the hearing, the Division of Criminal Investigation (DCI) agent testified as follows:

[PROSECUTOR]. Did you visit any [sic] of those two web sites?

[WITNESS]. Unfortunately, I could not, due to the state policy, we are on the state network, and my director would be involved in that, and I didn't want that.

When defense counsel conducted a voir dire of the agent, it was reiterated that this agent actually had no independent knowledge of what images were found on these websites:

[DEFENSE COUNSEL]. And you never visited this site?

[WITNESS]. No, I have not.

Q. And is this talking about child girls or child boys?

A. I have not visited the site, but this is what my co-workers mentioned that they described from the site from them seeing.

Q. So you have no knowledge of the site at all?

A. No.

Q. And then let's go back to the one above that. It says www.slutload.com.watch, and it has a bunch of indecipherable letters and numbers. And then it says incest/sex/video/family/taboo. Have you ever visited ed [sic] that?

A. No, I have not.

Q. You don't know what that does, correct?

A. No, as I mentioned before, I don't visit these sites from my state computer.

[¶25] These passages demonstrate that the DCI agent actually had no knowledge of whether the sites visited by the appellant contained any child pornography at all, and the agent had never visited the sites himself to see the content. Instead, his testimony was based upon what he had "heard" from his co-workers. In reality, this testimony was nothing more than speculation and was used to paint the appellant in a bad light in front of the jury. The State was able to insinuate that the appellant regularly looked at child pornography when going to these websites, when there was no evidence showing that these websites actually contained child pornography. Perhaps if it was certain that the websites did indeed contain child pornography, the admission of the evidence would be relevant and more probative than prejudicial. However, the fact that the appellant goes to pornographic websites does not tend to prove that he had a motive for sexually abusing the victim--a four-year-old boy. See Simpson v. State, 523 S.E.2d 320, 321, 322 (Ga. 1999) ("interest in sexual activity does not necessarily point to deviant behavior, even circumstantially[]" (internal citation omitted); "Under this rule, sexually explicit material cannot be introduced merely to show a defendant's interest in sexual activity. It can only be admitted if it can be linked to the crime charged."). Furthermore, the only conclusion that can be drawn from the testimony is that the appellant might be looking at child pornography on the internet. This inference is substantially more unfairly prejudicial to the appellant than it is probative of anything in dispute.

[¶26] Further, this Court is troubled by the fact that so much of the district court's analysis regarding the admissibility of the websites was based upon images the district court had already determined were inadmissible because they were too prejudicial. The district court found that, because the images had been deemed inadmissible, there was no other evidence available to show that the appellant downloaded and possessed child pornography. The question is not whether other evidence of the specific uncharged misconduct is available. The question is whether there is other evidence of the proper purpose available--in this case motive. Even if the district court had determined there was other evidence of motive, we cannot find that visits to pornographic websites makes it more likely that the appellant has a "fetish with anal sex," as alleged by the State at trial, or that he is sexually attracted to children, as alleged on appeal.

[¶27] This Court is additionally concerned that the district court relied upon the images of suspected child pornography in determining the admissibility of the websites. While we commend the district court for recognizing the prejudicial nature of the images, the DCI agent still testified at trial that images of suspected child pornography were found on the computer. It was apparently presumed that these images came from one of the websites discussed by the agent. However, our review of the record does not show a link between the two, and there was no testimony at the hearing regarding the actual source of the images. The agent also testified that the images had not been affirmatively identified as child pornography, that he was not a certified forensic physician, and that he had no expertise in identifying child pornography. Nonetheless, the State was able to make the assertion that the appellant looked at websites that contained child pornography (which was not conclusive) and he downloaded images of child pornography onto his computer (also not conclusive). Again, while commending the district court's attempt to mitigate prejudice by ruling the images themselves inadmissible, we are concerned that the jury heard that there were child pornography images but was not given any description of what the images contained. Considering that the appellant was accused of sexually abusing his four-year-old son, it is quite possible the jury assumed the images were of small children, perhaps boys, engaged in sexual behavior, which is not what the images depicted. Leaving theses facts to the imagination of the jury members likely was very prejudicial to the appellant. Not only did the jury hear about information that put the appellant in a bad light, but it also left the jury to speculate about what the facts actually were. This does not equate to a fair trial.

[¶28] Finally, the nude photos of the victim and his brother were not relevant or probative to show the appellant's motive for assaulting the victim. At the hearing, the State claimed the photos were relevant and probative to show the appellant had a "fetish with anal sex." On appeal, the State argued that the photos show that the appellant was sexually attracted to children--more specifically his child. Unfortunately, neither party designated the photos as part of the record on appeal, which makes it much more difficult to determine whether these photos are more sinister than innocent family photos. The district court found that:

These images show the children taking baths or potty training. Other images, however, are more disturbing. Many of the offered images show E.A.M. and L.A.W. playing outdoors in the mud while nude, with mud smeared on the children's body and genitalia. Others show [the appellant] sitting in the bathtub with L.A.W. on his lap. At least three of the images focus on the children's genitals or buttocks. One picture shows a young child face down on a bed with his buttocks and hips extended up into the air.

Viewing this evidence in the light most favorable to admission, we still find that concluding these photos are relevant or probative to show that the appellant had a fetish with anal sex or that he was sexually attracted to the victim is far-fetched. Perhaps if the photos depicted the victim engaging in some sort of inappropriate behavior dealing with the buttocks area or showed the appellant engaging in some sort of sexually suggestive activity with the victim, we would find a different result. But the fact that even the district court leaves open the possibility that these photos may be innocent in nature demonstrates that an insinuation to the contrary would be more unfairly prejudicial to the appellant than what very minimal (if any) probative value the photos may have.

[¶29] We cannot find that admission of any of this evidence at trial was harmless. The State did not present overwhelming evidence of the appellant's guilt on the first-degree sexual abuse charge.*fn3 While we find, as explained below, that sufficient evidence was presented to sustain a conviction for first-degree sexual abuse, we also find that, if this evidence had not been admitted, there is a "reasonable possibility that the verdict might have been more favorable to the [appellant]." Rolle, 2010 WY 100, ¶ 9, 236 P.3d at 264 (quoting Vigil, 2010 WY 15, ¶ 11, 224 P.3d at 36). This evidence put the appellant in an extremely bad light in front of the jury because of conduct in which he may or may not have engaged, and while we cannot say that the evidence had a definitive impact on the verdict, we cannot say that it did not affect the way the jury perceived him or the evidence. For these reasons, we find that the admission of the websites and the photos of the victim and his brother, pursuant to W.R.E. 404(b), was prejudicial error.

Whether the district court commented improperly upon the weight of the evidence

[¶30] Immediately before the DCI agent testified about his forensic investigation of the appellant's computer, the district court gave the jury the following instruction:

During the trial pictures of the alleged victim and his brother were allowed into evidence depicting them without their clothes on. I believe you are about to hear evidence that there were child pornography websites on the defendant's computer. This evidence is being admitted for a limited purpose. If you ultimately find beyond a reasonable doubt that the defendant committed one or more of the charged acts, you may consider the evidence pertaining to the naked photographs or the websites for the limited purpose of considering the defendant's motive, intent, knowledge, or presence or absence of mistake.*fn4

The appellant argues that this instruction--specifically that the district court informed the jury that they would hear about child pornography websites--injected the district court's opinion regarding the weight or quality of the evidence at the trial.

[¶31] The appellant did not object to the instruction when given by the district court at trial; therefore, our review is limited to a search for plain error. Walker v. State, 2012 WY 1, ¶ 6, 267 P.3d 1107, 1110 (Wyo. 2012). "Plain error is established only 'when 1) the record is clear about the incident alleged as error, 2) there was a transgression of a clear and unequivocal rule of law, and 3) the party claiming error was denied a substantial right which materially prejudiced him.'" Id. (quoting Black v. State, 2002 WY 72, ¶ 7, 46 P.3d 298, 300 (Wyo. 2002)).

[¶32] The record is clear that the district court's instruction stated that the jury was going to "hear evidence that there were child pornography websites on the [appellant's] computer[,]" satisfying the first part of the plain error standard. With respect to the second part of the standard, the appellant argues that the district court expressed an opinion regarding the evidence to the jury. The State counters that the district court's comment did not relate to the weight or value of the evidence and, instead, "was the introduction of a limiting instruction to prevent the jury from improperly using the evidence." While we agree with the State that the general tenor of the instruction was meant to be a limiting instruction, we find that the district court's comment that the jury would hear that there were child pornography websites on the appellant's computer was a violation of a clear and unequivocal rule of law.

[¶33] We have expressed that trial judges must "be careful and cautious and not comment on the evidence. Phillips v. State, 597 P.2d 456, 458 (Wyo. 1979) (quoting In re Nelson's Estate, 72 Wyo. 444, 266 P.2d 238, 261 (1954)).

"We have repeatedly said that a judge, in the trial of a case before a jury, should abstain from expressing or indicating by word, deed or otherwise his personal views upon the weight or quality of the evidence. Expressions of opinion, or remarks, or comments upon the evidence which have a tendency to indicate bias on the part of the trial judge, especially in criminal cases, are regarded as an invasion of the province of the jury and prejudicial to an accused. [Citations omitted.]" Spear v. Commonwealth, 213 Va. 599, 194 S.E.2d 751, 753 (Va. 1973).

Id. Here, the district court invaded the province of the jury by informing it that, before it heard any testimony from the DCI agent, it was going to hear evidence that there were child pornography websites on the appellant's computer. This statement was problematic because, as explained above, the evidence did not show that the appellant went to child pornography websites on his computer. At best there was a factual dispute as to whether the websites actually did contain child pornography. That issue should have been properly resolved by the jury. However, the district court informed the jury that the websites did contain child pornography. Therefore, the district court's statement was improper and a violation of a clear and unequivocal rule of law.

[¶34] We also find that the appellant was materially prejudiced by the district court's statement to the jury. Instead of the appellant being afforded the opportunity to dispute the evidence presented by the State, he was put at a significant disadvantage when the district court told the jury what the evidence was going to show. This is particularly prejudicial here, considering that the evidence did not, in fact, show that the appellant was visiting child pornography websites on his computer. We find that the district court's statement to the jury constituted plain error.

Whether the district court erred when it determined that the appellant's statement to Deputy Peech was given voluntarily

[ΒΆ35] The appellant was interviewed immediately before and after his arrest by Deputy Peech with the Converse County Sheriff's Department. He claims that the statements he made during the interview were involuntary because he was fatigued, he was not free to leave, he was threatened by Deputy Peech, and he was subjected to coercive and psychological trickery when Deputy Peech appealed to his religious beliefs. While the appellant filed in the district court a motion to suppress his statement as involuntary, the motion was based only upon the total length of time of the interview. Thus, the substance of the appellant's claim, as presented in his appeal, is being ...


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