Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Golden, Justice.
Before KITE, C.J., and GOLDEN,* HILL, VOIGT, and BURKE, JJ.
Justice Golden retired effective September 30, 2012.
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] A jury convicted Appellant Douglas Craft of sexual exploitation of a child. Craft challenges that conviction on two discrete grounds. First, he claims the State presented insufficient evidence proving the elements of the charged crime, and he faults the district court for not granting his motion for judgment of acquittal at the close of the State's case-in-chief. Craft also contends the jury's verdict is tainted by prosecutorial misconduct. Finding no reversible error, we affirm.
[¶2] Craft phrases his issues for our consideration as follows:
I. Did the district court err when it denied Appellant's motion for judgment of acquittal, for lack of sufficient evidence?
II. Did the prosecutor commit misconduct when he argued the jury should view an exhibit as substantive proof, after he had previously asserted to the hearsay objection that the exhibit was not being offered to prove the truth of the matter asserted?
[¶3] EW, born in 1995, first met Craft at her uncle's home in January 2008 and briefly communicated with him on the internet. Approximately two years later, EW and Craft reconnected and began conversing with each other on Facebook. EW discussed problems she was having at home, and Craft attempted to give her advice. Eventually, they exchanged cell phone numbers, quit communicating on Facebook, and began contacting each other solely through text messages. Initially, the content of their text messages mirrored that of their earlier exchanges on Facebook. However, the tenor of the texts quickly changed.
[¶4] At EW's request, Craft sent her pictures of his tattoos. EW reciprocated by sending Craft a picture of her face. Craft then asked for better pictures and told EW that he wanted to see more skin. EW responded by sending him a picture of her upper body, clothed only in a bra. The conversations then turned to their mutual sexual attraction and whether EW would send Craft nude close-up pictures of herself. She responded by sending a picture with her bare breasts exposed. Craft told EW that she was "hot" and that he wished he could be lying in bed with her. A short time later they engaged in an imaginary sexual encounter; each telling the other through their text messages what they imagined both of them would do.
[¶5] Craft encouraged EW to think of him sexually, telling her he wondered what it would be like to "be with" her and sending her a picture of his genitals. They then exchanged more explicit descriptions of having sex with one another, and Craft asked for a nude picture of EW below the waist. Eventually, EW took a picture of her vagina and sent it to Craft. In the picture, EW sat on her tucked knees in front of her bedroom door. Craft complained that the picture was "very bad" and that he could not see what he wanted to see. However, EW maintained the picture showed the top -- the "formation" -- of her vagina.
[¶6] On February 8, 2010, EW's father discovered on her cell phone a text message conversation between EW and Craft. He saw that EW had sent Craft a picture of her panties, and that Craft had responded that he wanted to take them off her. The father contacted the Campbell County Sheriff's Office. That evening, Deputy Sheriff Mark Raymond spoke with EW and her father at their home and examined the text messages that were on the girl's phone. The deputy noticed that numerous texts had sexual undertones and that Craft had asked EW whether he was going to get some "really good pictures." Deputy Raymond took EW's phone and Sheriff's Investigator Daniel Maul later obtained a warrant directing EW's cellular service provider to produce all text and picture messages which had been deleted from the phone's internal memory. In response to that warrant, Alltel Communications provided ...