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Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.
Before KITE, C.J., and HILL, BURKE, DAVIS, JJ., and DEEGAN, D.J.
DEEGAN, District Judge.
[¶ 1] Appellant appeals his dual convictions by jury for violating Wyo. Stat. Ann. §§ 6-2-303(a)(vi) and 6-2-303(a)(viii) (West 2010), each proscribing, in the disjunctive, Sexual Assault in the Second Degree. The district court merged the convictions for purposes of sentencing only, imposing concurrent sentences of not less than three (3) nor more than five (5) years incarceration. Separate financial assessments were imposed in respect of each conviction.
[¶ 2] Appellant appeals on the basis of sufficiency of the evidence to establish he was in a position of authority as required by Wyo. Stat. Ann. § 6-2-303(a)(vi), prosecutorial misconduct in two counts and violation of his constitutional right to not be exposed to double jeopardy by the sufferance of two convictions for the same criminal act under disjunctive provisions of one statute. We affirm in all respects excepting the propriety of permitting two convictions to stand. In this respect, we reverse and remand for further proceedings in accord with this opinion.
[¶ 3] The victim, KO, was a twenty (20) year old freshman at Northwest Community College in Powell, Wyoming on April 15, 2010. At age fifteen (15), KO was diagnosed by a physician with fibromyalgia and arthritis, conditions which caused her musculoskeletal pain. Her doctors recommended massage therapy, amongst other modalities, to relieve her pain. A woman named Marion Bishop administered massage therapy to KO all during her high school years in Thermopolis, Wyoming. When KO arrived in Powell around September 2009 to attend Northwest Community College, she sought out a new massage therapist. Upon the advice of a local chiropractor, Jessica Tobin, KO selected Appellant, a forty-five (45) year old man who utilized space in Ms. Tobin's office. While there was no evidence Appellant was in fact a certified massage therapist in another state (Wyoming does not require certification), the card he gave to KO indicated he was a certified massage therapist.
[¶ 4] KO advised Appellant she sought out his services because she suffered from fibromyalgia and arthritis. As she started her massage regimen with Appellant, KO followed the same procedure she had followed all during her high school years when she was regularly administered massage therapy by Ms. Bishop: she removed all of her clothing and positioned herself under a sheet— all outside the presence of the massage therapist. When she was ready for the massage to begin, the massage therapist would enter the room and begin the massage. Ms. Bishop or Appellant would administer
massage to the various parts of KO's body, all the time working around the sheet draping her so as to allow her to maintain her privacy in respect of her intimate parts. Until the incident in question, this is how Appellant conducted himself. Ms. Bishop testified it was important for a massage therapist to establish a sense of trust with a client, stating that " the more that they trust me, the more relaxed they would be. And the more relaxed they are, the more they benefit from it." Between September 2009 and April 15, 2010, KO received more than a dozen massages from Appellant— all without incident until April 15, 2010.
[¶ 5] On April 15, 2010, KO made arrangements for a massage by Appellant. It took place at the private space made available to Appellant at the offices of Ms. Tobin. Because she was menstruating, KO, as was her practice in such circumstances, shed all of her clothing except for her panties. She was wearing a tampon.
[¶ 6] The massage treatment began. First prone, then supine, KO submitted herself to Appellant's massage ministrations and followed his instructions— as she always had with Ms. Bishop and with Appellant. She completely trusted Appellant, as she had Ms. Bishop in Thermopolis. KO had informed Appellant, prior to the massage, that her legs, hips and knees were particularly bothering her and would thus need special attention.
[¶ 7] Once KO was supine, Appellant massaged KO's knees, then her hips. Then, towards the end of the massage, unexpectedly and without her consent, Appellant, according to KO, slipped his hand inside her underwear and digitally penetrated her vagina. As he was doing this, he was touching her breasts with his other hand. Appellant had never previously massaged KO in any area close to her vagina. As Appellant continued in-and-out motions with his fingers in her vagina, her tampon was pushed further up into her vagina in a painful way. In shock, KO said nothing.
[¶ 8] At the conclusion of the massage session, Appellant told KO, " I hope you enjoyed this. It's one of my nontraditional massages." KO said nothing to Appellant. She paid him the agreed sum of $25.00 (the student rate quoted to KO by Appellant), dressed, left the building, drove several blocks in her vehicle, pulled over, and broke down crying.
[¶ 9] The next day, KO interrupted her college schedule and drove home to Thermopolis. Her parents were out of town. At Sunday services two days later, she informed her LDS bishop what had happened. That evening, her parents now returned home, she informed them of the incident. The local Chief of Police immediately responded to their home. He advised KO to report the incident to local law enforcement in Powell. She and her parents travelled to Powell the following day and reported the incident to Officer Brown of the Powell Police Department.
[¶ 10] Officer Brown made arrangements for a recorded phone call by KO to Appellant. During the call, Appellant repeatedly apologized to KO for putting his fingers in KO's vagina during the massage. He averred he thought they would both enjoy it. He stated other clients had enjoyed such an experience. He reiterated it was one of his non-traditional massages. He claimed he had massaged closer to her vagina during KO's previous massage session, so he thought it would be alright to go further. He stated there was no excuse for his digital penetration of KO.
[¶ 11] Two days after the recorded call, Appellant appeared at the Powell Police Department for an interview. Without knowledge his previous phone conversation with KO had been recorded, Appellant denied digitally penetrating KO or touching her breasts. He characterized a non-traditional massage as simply paying more attention to the hips and legs. He later provided a written statement in which he claimed he did no more than KO had requested.
[¶ 12] KO finished her spring semester at NWCC on-line and with some in-class time. Once the semester was over, she determined never to return to Powell again. In September 2010, she began a church mission in Virginia, to last eighteen months.
[¶ 13] Appellant went to trial before a jury on a consolidated Information charging him in two counts within the same statute and founded on the same act: a violation of Wyo. Stat. Ann. § 6-2-303(a)(vi) and a violation of Wyo. Stat. Ann. § 6-2-303(a)(viii).
[¶ 14] In voir dire, the prosecutor averred the burden of proof in the case was proof beyond a reasonable doubt, although not proof beyond all doubt. Defense counsel explored the topic as well, even assigning percentages to the preponderance and clear and convincing standards of proof. He elicited agreement from the venire that, if selected to serve as jurors, each would adhere to the standard of proof beyond a reasonable doubt. In other remarks, the prosecutor did the same.
[¶ 15] The court read Instructions Nos. 6 and 7 to the jury before opening remarks, repeating these instructions to the jury before closing remarks. These were the elements instructions for each of the two charges, and each instruction advised the jury as to the burden of proof it was to apply to each charge, namely: proof beyond a reasonable doubt. Instruction No. 9, read to the jury before closing remarks, explained the presumption of innocence and included language repeating the State's burden of proof as being proof beyond a reasonable doubt.
[¶ 16] In opening remarks, the prosecutor painted the alleged victim, KO, as a person who from an early age suffered recurrent aches and pains that set her apart from other children. This condition was eventually diagnosed at age fifteen as fibromyalgia and arthritis. The prosecutor told the jury KO had strong religious beliefs. He averred she was a strong young woman who agreed, in spite of the assault against her, to engage in a recorded telephone conversation with Appellant. He claimed Appellant called KO a liar when he denied having digitally penetrated her in his statement to law enforcement given after the recorded telephone conversation. He asked the jury to consider the evidence about to be presented and hold Appellant accountable for what he had done. He reminded the jury the degree of proof required for conviction of either charge was proof beyond a reasonable doubt. In his opening remarks, defense counsel repeated the degree of proof required for conviction on either charge.
[¶ 17] In his examination of KO, the prosecutor elicited the following: her sympathetic parents were in court watching her testify; she felt different from other children when she was young on account of her physical ailments; she had certain physical limitations; she was prescribed medication to alleviate her chronic pain; she was the salutatorian of her high school graduating class; she followed her dream of attending college after high school; she was an impecunious college student happy to be able to pay only $25 for a massage therapy session (the sessions were not covered by insurance); she was a good student studying her chosen field of pre-nursing; she suffered terribly from an emotional standpoint after the assault; she became so disaffected with Powell as the scene of the assault that she had to finish up part of her semester's course work on-line; and, once the semester was complete, she declined to return to Northwest Community College at all, for the time giving up her college career altogether because of the assault, and wishing never to return to Powell, Wyoming again. Instead, she commenced an eighteen month mission with her church. She planned to return to college somewhere else, but was unsure about pursuing the same career path.
[¶ 18] The prosecutor examined KO about her faith, eliciting she is a faithful member of the Church of Jesus Christ of Latter Day Saints who practices the tenets of her faith, including the proscription against pre-marital sexual relations, to include no intercourse and no sexual touching. The prosecutor questioned KO as to whether or not she had ever had any kind of a sexual relationship with a male prior to the assault, and she indicated she had not. When asked by the prosecutor if it was her wish to save herself for marriage, KO answered in the affirmative.
[¶ 19] In closing argument to the jury, the prosecutor stated the following in respect of the state's burden of proof:
First off, you have to know whose the burden of proof is, and I think by now it's
been drilled to your head that it's the State's burden of proof. Okay. Well, that doesn't mean a whole lot unless you know what the burden of proof is. It's one of beyond a reasonable doubt. And I told you this in voir dire in the opening. It is the highest burden that any party will face in any courtroom in the United States. And for obvious reasons. It should be. It should be.
But it's not an insurmountable burden. The State of Wyoming— you are not permitted to attempt to define what " beyond a reasonable doubt" is. It is what it states. But sometimes it helps to know what something isn't to understand what it is.
It is not proof beyond all doubt. It is not proof to a mathematical certainty. And certainly it is not the State's obligation to prove the complete impossibility of [the Defendant's] innocence. You may think to yourself, " Wait a minute. So we can potentially be convicting someone who is not guilty?" No. That's not what it says at all. It just says proof beyond a reasonable doubt.
So what does that mean? How do you make that decision? You do it just like [you do] in your everyday lives when you decide to go to the store, when you decide to believe this friend and not that friend when they are telling you different stories. You use your everyday common sense to determine: Does this make sense? Is what the State's saying reasonable? Is what the defense claims, is that reasonable? If it's not reasonable, you disregard it, just like you do in your everyday lives.
[¶ 20] The prosecutor later added:
It's a tough job that you do as jurors. There is no doubt about it. It's a tough job. I know it's human nature to forgive. But under your oath, that's not your right. Forgiveness is up to [KO], not you. Under your oath, your job is to find justice. Your job is to hold [the Defendant] accountable to what happened to [KO] on April 15th of 2010. If [KO] somewhere down the road decides to forgive [the Defendant], that's up to you— that's up to her not you.
[¶ 21] In his closing argument, defense counsel on more than one occasion re-visited the proposition the jury was guided by the standard of proof beyond a reasonable doubt in considering each charge. In rebuttal, the prosecutor stated:
What's the one thing no one's ever asked from the defense: How do you think [KO] feels? At least he's being attacked for something he did. [KO] was put through that, and she didn't ask for any of it. And not once has the defense asked you to consider her. Not once.
The defendant got exactly what was coming to him, and he is here because of his own conduct. [KO] is not here because of anything she did. She's here because of what [the Defendant] did. And I ask you to hold him accountable for that conduct.
[¶ 22] After deliberating, the jury convicted Appellant of both counts charged in the Consolidated Information. The parties agreed one criminal act supported both convictions, and, as a result, the sentences ought to merge. The District Court, being of like mind, imposed two concurrent terms of not less than three (3) nor more than five (5) years incarceration. However, the District Court entered two convictions and imposed separate (non-merged) financial assessments in respect of each one.
[¶ 23] This appeal followed.
[¶ 24] We discern the following issues.
Issue # 1:
Whether or not there was sufficient evidence to support a jury finding of " position of authority" as required for conviction under Wyo. Stat. Ann. § 6-2-303(a)(vi).
Issue # 2:
Whether or not the prosecutor, in his closing argument to the jury, engaged in prosecutorial misconduct when he attempted to define the term " reasonable doubt."
Issue # 3:
Whether or not the prosecutor, in his opening remarks and closing argument, as well as in development of the evidence, urged the jury to convict Appellant on an improper basis by painting the victim as a ...