Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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 typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] Douglas Howard Craft was convicted of two counts of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor upon his three daughters. He appeals, claiming the prosecutor committed misconduct when he questioned a witness about an exhibit that was not admitted as evidence, there was a fatal variance between the charges in the information and the charges proven at trial and the district court abused its discretion when it prohibited his expert witness from testifying about his opinion on what type of sexual abuse allegations were made in this case. Finding no error, we affirm.
[¶2] Mr. Craft presents the following issues on appeal:
I. Did prosecutorial misconduct occur when the prosecutor questioned witnesses on an exhibit he did not intend to submit into evidence?
II. Concerning two of the victims, PC and AXC, was there . . . a fatal variance between the charges alleged and the charges proven at trial?
III. Did the trial court abuse its discretion when it prohibited Mr. Craft's expert witness from providing an opinion as to which class the allegation of sexual abuse falls within?
The State presents essentially the same issues but phrased differently.
[¶3] Mr. Craft is the father of three daughters, AXC, ALC and PC. AXC and ALC are twins and were born in March 2001. PC was born in February 2002, making her just eleven months younger than the twins. Mr. Craft and the girls' mother were divorced, and in 2009 and 2010, he took the girls for weekend visitations at his home.
[¶4] On August 24, 2010, AXC reported to her mother that Mr. Craft had put his penis in her bottom. The mother contacted law enforcement the next day, and a detective arranged for the girls to undergo forensic interviews. During the forensic interviews, each girl separately stated that Mr. Craft had put his penis in her bottom. A few days after the interviews, detectives questioned Mr. Craft and he confirmed that he cuddled with the girls in bed and he may have had an erection at the time.
[¶5] Mr. Craft was charged with three counts of first degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii) (LexisNexis 2011),*fn1 one involving each girl. The information stated that the crimes occurred "[o]n or between March 2009 and March 2010." The matter went to trial and each of the victims testified. AXC and PC gave differing testimony as to when the abuse occurred. The video recordings of the victims' forensic interviews were also admitted into evidence and played for the jury.
[¶6] When ALC testified at trial, she could not identify Mr. Craft in the courtroom. Over defense counsel's objection, the district court allowed the State to show ALC a photograph, which she identified as being of her father. A detective later testified the photograph was of Mr. Craft and it was taken in August 2010.
[¶7] The defense called Dr. Terence Campbell, a forensic psychologist, as its expert witness. He testified that there are three types of sexual abuse allegations-confirmed, fabricated and false. Defense counsel asked Dr. Campbell which type of allegation was made in this case and the prosecutor objected, stating that such testimony would invade the province of the jury. The district court sustained the objection, but Dr. Campbell went on to testify at length about his opinions and the specific facts of the case.
[¶8] In his initial closing argument, the prosecutor did not refer to ALC's and the detective's identification of Mr. Craft in the photograph. However, after defense counsel reminded the jury that ALC could not identify Mr. Craft in the courtroom, the prosecutor stated in rebuttal that ALC had identified the subject in the photograph as her father and the detective confirmed the photo was of Mr. Craft.
[¶9] The jury found Mr. Craft guilty of first degree sexual abuse of a minor for the counts involving ALC and AXC and second degree sexual abuse of a minor for the count pertaining to PC.*fn2 After denying Mr. Craft's renewed motion for judgment of acquittal and motion for a new trial, the district court sentenced Mr. Craft to serve consecutive sentences of ten to fifty years on each first degree conviction and ten to twenty years on the second degree conviction. Mr. Craft appealed.
1. Identification of Defendant Through Photograph
[¶10] Mr. Craft claims the prosecutor committed misconduct by having ALC and the detective identify him from a photograph that was not admitted into evidence and then commenting on it during closing arguments. In general, we review claims of prosecutorial misconduct for plain error if no objection was made at trial or for harmless error if an objection was lodged. Butcher v. State, 2005 WY 146, ¶ 38, 123 P.3d 543, 554 (Wyo. 2005). The State maintains, however, that this issue is not properly raised as prosecutorial misconduct because the prosecutor acted in accordance with the trial court's rulings.
[¶11] The trial was held in January 2012. When ALC was unable to identify Mr. Craft in the court room, the prosecutor asked to approach the bench and proposed to have her look at a photograph of the defendant which was taken around the time of his arrest. ALC had previously testified that she had not seen Mr. Craft at all during that school year and little during the previous year. Defense counsel objected on the grounds that the question had been "asked and answered" because ALC had already stated she could not identify her father in the court room and the photograph had not been listed as an exhibit by the State. The district court overruled the objection and the prosecutor asked ALC if she could identify the person in the photograph, which was marked as State Exhibit 4 but was not introduced into evidence at the trial or shown to the jury. ALC stated the man in the photograph was "[m]y dad." A detective testified later, over defense counsel's objection that the photograph was not listed as an exhibit or provided during discovery, that it was of Mr. Craft and was taken in August 2010. The defense did not object when the State referred to the photograph in its rebuttal closing argument.
[¶12] On appeal, Mr. Craft maintains the State's questioning of witnesses using the photograph and reference to it during closing argument amounted to prosecutorial misconduct. He cites to several cases he claims support the notion that it is improper for counsel to refer to exhibits not admitted into evidence-United States v. Treadwell, 594
(a) Except under circumstance constituting sexual abuse of a minor in the first degree as defined by W.S. 6-2-314, an actor commits the crime of sexual abuse of a minor in the second degree if: . . .
(iii) Being eighteen (18) years of age or older, the actor engages in sexual contact with a victim who is less than eighteen (18) years of age and the actor is the victim's legal guardian or an individual specified in W.S. 6-4-402[.]
F. Supp. 831 (D.D.C. 1984); Mangan v. Broderick & Bascom Rope Co., 351 F.2d 24 (7th Cir. 1965); Gorostieta v. Parkinson, 17 P.3d 1110 (Utah 2009). In Treadwell, 594 F. Supp. at 836-41, the court ruled the inadvertent submission of exhibits to the jury which were not admitted into evidence at trial did not mandate a new trial. The court specifically distinguished other cases that involved direct violation of court rulings and prejudicial error. Id. Mangan, 351 F.2d at 28-31, was a civil case and involved an attorney's deliberate disobedience of the district court's directive to refrain from inquiring into certain evidence. Gorostieta, 17 P.3d at 1118, held that a party may not question a witness about exhibits which were expressly disallowed by the court. The cases cited by Mr. Craft indicate that the attorneys committed misconduct when they violated court orders.
[¶13] In Butcher, ¶ 43 n.8, 123 P.3d at 556 n.8, we provided the following definition of prosecutorial misconduct:
Black's Law Dictionary 1237 (7th ed.1999) defines "prosecutorial misconduct" as "[a] prosecutor's improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly ...