Delbert R. McDOWELL, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).
Representing Appellant: Office of the State Public Defender: Diane M. 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, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Darrell D. Jackson, Director, and David E. Singleton, Student Intern, University of Wyoming, College of Law, Prosecution Assistance Program. Argument by Mr. Singleton.
Before KITE, C.J., and HILL, VOIGT [*], and BURKE, JJ., and LAVERY, D.J.
LAVERY, District Judge.
[¶ 1] Delbert McDowell appeals his convictions on six counts of sexual abuse of a minor in the third degree under Wyo. Stat. Ann. § 6-2-316(a)(i) and one count of sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(i). He claims the district court erred in holding that testimony he intended to rebut the State's W.R.E. 404(b) evidence was evidence of his character which opened the door to rebuttal by the State pursuant to W.R.E. 404(a)(1) and W.R.E. 405(a). Finding no error, the judgment is affirmed.
[¶ 2] McDowell presents one issue for review by this Court:
Did the trial court abuse its discretion when it ruled that defense counsel opened the door and allowed the State to introduce additional 404(b) evidence?
The State rephrases the same issue:
Defendants can offer evidence about relevant character traits in their case-in-chief; but on cross-examination, a prosecutor may inquire into relevant specific instances of the defendant's conduct to rebut the offered character testimony. Here, McDowell called a witness who opined about his good character when interacting with children. On cross-examination, the prosecutor asked the witness if she knew McDowell had two misdemeanor convictions for sexually assaulting children. Did the district court abuse its discretion when it allowed these questions?
[¶ 3] McDowell, who lived in Georgia, came to stay with his brother's family during the summer of 2008, to help build a new bathroom in his home. The amended information, filed January 17, 2012, alleged that on several occasions over the course of two weeks, McDowell approached B.M., his brother's 13-year-old foster daughter, in the house or garage and touched her with his genitals, sometimes inside and sometimes outside her clothing or pajamas.
[¶ 4] The State filed a notice of intent to introduce evidence pursuant to W.R.E. 404(b) on May 23, 2012, and an amended notice the next day. The district court held hearings on the State's notices on May 25, 2012, and May 29, 2012, after McDowell's counsel and the district court had an opportunity to review the second notice and the State had an opportunity to obtain more information about McDowell's prior convictions.
[¶ 5] Pursuant to analysis of the factors this Court prescribed in Gleason v. State, 2002 WY 161, ¶ 27, 57 P.3d 332, 342 (Wyo.2002), the district court limited the scope of extrinsic misconduct evidence the State would be allowed to present at trial. Specifically, the district court ruled that the State could present the testimony of A.M., B.M.'s sister, that on one occasion during the same time frame, McDowell engaged in the same sexual conduct toward A.M., who was 14-years-old, as he directed at B.M., to show McDowell's motive, plan, intent, and absence of mistake. The district court further ruled that B.M.'s testimony that several instances of conduct similar to the charged offenses occurred during the summer of 2009, while her family and McDowell were visiting Florida, would also be admissible for the same reasons, as well as to show a continuing course of conduct toward B.M.
[¶ 6] The district court allowed the State to present the fact that McDowell was a registered sex offender because this evidence explained why B.M. reported the charged offenses two years after they occurred, when she learned McDowell was a registered sex offender. The State asked to present evidence of the felony conviction and two misdemeanor convictions, including facts of the crimes, but the district court limited the State to presenting only the facts of the
felony conviction. The district court indicated preliminarily that presenting the facts of the two misdemeanor offenses in addition to the felony would be unnecessarily cumulative, but reserved a final ruling for trial.
[¶ 7] At the final pretrial conference, on June 1, 2012, the Friday before trial, the district court reaffirmed that it had not determined the admissibility of the misdemeanor convictions. The parties also discussed the proposed testimony of Dorie Steele, McDowell's sister, identified in his pretrial witness list. The State objected categorically that none of Ms. Steele's proposed testimony was relevant. The State argued to the district court that McDowell's amended pretrial memorandum said, " Miss Steele will testify regarding the defendant's upbringing, his role in his children's lives and the rest of the family. She will testify to the effect of the defendant being a registered sex offender and how he responds to that on a day-to-day basis." The district court correctly noted that much of that testimony would not be admissible, except that if the rules of evidence were read broadly, testimony that McDowell is around children all the time and there has never been a problem would probably be admissible as evidence of his character. The district court also warned McDowell that such evidence would open the door for the State to cross-examine Ms. Steele about what she really knew about McDowell's past.
[¶ 8] During the State's case-in-chief, the district court determined that because the misdemeanors occurred near the same time as the felony, they did not add much in the way of probative value. S.D., the victim in the felony case, A.M., and B.M. testified regarding the W.R.E. 404(b) evidence the parties and the district court had anticipated. B.M. testified to three incidents of sexual contact with McDowell; first, in the hotel room the first day while Ms. Steele and Ms. Lynch were sleeping, then at the beach the next day, and finally back in the hotel room after going to the beach.
[¶ 9] Three witnesses testified during the defense's case-in-chief. McDowell's brother, B.M.'s foster father, testified that he discussed the fact that McDowell was a registered sex offender with his mother-in-law, who was watching the children that summer, and with people at his church, but he did not tell his children because they were too young. He did allow McDowell to be around his children, believing that because McDowell was their uncle, he would not abuse them. McDowell's brother also testified on direct examination about how McDowell was with kids:
Q. Okay. Well, describe Uncle Del and how he is with your kids.
A. Uncle Del, how he is with my kids? Uncle Del, I grew up with him. Uncle Del has been touchy-feely, playful ever since youth. Kids always loved Uncle Del, and so did my kids.
Q. You say touchy-feely, playful. Was he that way with ...