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Appeal from the District Court of Laramie County. The Honorable Peter G. Arnold, Judge.
For Appellant: Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.
Before KITE, C.J., and HILL, BURKE, and FOX, JJ., and DONNELL, D.J.
[¶1] A jury found Gilbert Ortiz, Jr., guilty of three counts of second-degree sexual assault. Mr. Ortiz raises seven issues on appeal. We affirm on all issues.
[¶2] 1. Was Mr. Ortiz denied his right to a speedy trial?
2. Did the district court properly admit forensic interview evidence as a prior consistent statement?
3. Did testimony from a forensic interviewer or a detective improperly vouch for the credibility of the victim?
4. Was the Bill of Particulars sufficient for Mr. Ortiz to adequately prepare a defense?
5. Did the circuit court abuse its discretion when it granted an ex parte motion quashing Mr. Ortiz's subpoena to call the victim and her mother as witnesses at a preliminary hearing?
6. Did the district court abuse its discretion when it denied admission of sexualized behavior evidence on relevancy and hearsay grounds?
7. Did the State commit prosecutorial misconduct when it referenced a nonreligious quote from a church sign in its opening statement?
[¶3] While the procedural facts here are extensive, they are nevertheless essential to our legal analysis.
[¶4] In November 2006, eleven-year-old M.O. reported to her mother that her grandfather, Gilbert Ortiz, Jr., had molested her when she was five or six years old, between 2000 and 2002. The State conducted an investigation that eventually yielded charges.
[¶5] A warrant of arrest was served on Mr. Ortiz on April 27, 2010, and he was released on bond the following day. On April 28, 2010, Mr. Ortiz filed a motion waiving his right to a speedy preliminary hearing. An information was filed on May 26, 2010, charging Mr. Ortiz with three counts of first-degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-314 (LexisNexis 2007). Mr. Ortiz entered a plea of not guilty to all three charges at his arraignment on June 10, 2010. The district court then set the trial for August 3, 2010. On July 8, 2010, at Mr. Ortiz's request, the district court reset the trial to October 4, 2010. The district court again, at the request of Mr. Ortiz, reset the trial on September 2, 2010. The new trial was set for November 1, 2010.
[¶6] On October 13, 2010, Mr. Ortiz waived his right to a speedy trial. Additionally, because of a conflict with another trial, on October 15, 2010, Mr. Ortiz filed a motion to vacate the November 1, 2010 trial date. The district court granted Mr. Ortiz's motion on October 18, 2010, and set a hearing on outstanding motions for January 3, 2011.
[¶7] The trial was once again reset on December 8, 2010, to February 7, 2011. On January 7, 2011, Mr. Ortiz filed a motion to dismiss, arguing that his right to due process of law was violated because the trial transcript from his son's divorce case was missing from court records. On January 12, 2011, Mr. Ortiz filed a motion to produce and a motion in limine . In his motion in limine, Mr. Ortiz requested that the district court
preclude expert witness Lynn Huylar from providing any testimony substantiating the credibility of the victim. Additionally, Mr. Ortiz demanded that the district court compel production of certain sexual assault information to the defense. On January 18, 2011, the trial was again reset to April 4, 2011, at the request of Mr. Ortiz. On February 17, 2011, Mr. Ortiz filed a motion to dismiss for lack of speedy trial. In his motion, Mr. Ortiz argued that an unconstitutional delay occurred as a result of the time between the original report of the incident and the filing of the felony information. Eleven days later, on February 28, 2011, Mr. Ortiz filed another waiver of speedy trial. On March 1, 2011, the trial was once again reset, to June 6, 2011.
[¶8] On May 12, 2011, the State filed a motion to vacate trial setting and reset the trial to give the State and the defense more time for plea negotiations. The district court granted the State's motion on May 12, 2011, pursuant to W.R.Cr.P. 48(b)(4), and reset the trial to July 5, 2011. Prior to the July trial setting, on June 3, 2011, Mr. Ortiz filed a motion to have the district court reexamine its earlier order denying Mr. Ortiz's request that the district court perform an in camera review of DFS records to determine whether relevant and exculpatory evidence should be provided to the defense. The trial was reset to September 6, 2011, at a motions hearing on June 17, 2011.
[¶9] The district court issued an order on all pending motions on July 8, 2011. The order denied Mr. Ortiz's motion to dismiss for due process violation; granted Mr. Ortiz's motion to limit the expert testimony of Ms. Huylar; denied Mr. Ortiz's request for production of evidence from Ms. Huylar; granted Mr. Ortiz's motion to have the district court reexamine DFS records; reserved Mr. Ortiz's evidentiary motions until after production of evidence at trial; and granted the State's motion to quash all outstanding subpoenas (and ordered that any future subpoenas comply with the Wyoming Rules of Criminal Procedure and be delivered to the district court for in camera review).
[¶10] At a July 14, 2011 status hearing, the district court expressed concern that the trial had been subject to so many delays, to which Mr. Ortiz's counsel replied, " [m]y client doesn't care. Whatever, Your Honor." At the hearing the trial was reset to September 26, 2011, pursuant to W.R.Cr.P. 48(b)(4).
[¶11] On August 25, 2011, Mr. Ortiz filed a motion requesting a hearing on whether the victim's testimony had been tainted. In response, the district court issued an order vacating and resetting the trial to January 2, 2012. The order also set the hearing on Mr. Ortiz's taint motion for September 9, 2011. On September 8, 2011, Mr. Ortiz filed a motion to bifurcate the September 9 hearing. Following this, on September 14, 2011, Mr. Ortiz retained new counsel.
[¶12] On September 22, 2011, the district court issued an order denying Mr. Ortiz's taint hearing request. In its denial, the district court stated, " [a] competency hearing is not a dress rehearsal for cross-examination at trial."
[¶13] After retaining new counsel, Mr. Ortiz filed a motion, on October 3, 2011, to set a status hearing. On October 6, 2011, the district court issued an order setting the status hearing for November 2, 2011. On October 24, 2011, Mr. Ortiz filed a motion to continue the status hearing. The district court granted the motion that same day and reset the status hearing to October 25, 2011. On October 26, 2011, the district court issued an order requiring any remaining motions be filed by November 21, 2011.
[¶14] On November 14, 2011, the trial was reset to January 3, 2012. Mr. Ortiz filed a Motion for Additional Bill of Particulars as to All Counts of the Information on December 9, 2011.
[¶15] Throughout the initial action, Mr. Ortiz continued to issue subpoenas that did not comply with W.R.Cr.P. 17(d). On December 9, 2011, the State again filed a motion to quash all outstanding subpoenas, and a motion for defense counsel to abide by the Wyoming Rules of Criminal Procedure and prior orders of the district court. The district court granted the motion on December 15, 2011.
[¶16] On December 14, 2011, the State responded to Mr. Ortiz's motion for additional
bill of particulars, stating that under Wyoming law, the bill does not require the time and place of the crime where those are not elements of the crime.
[¶17] On January 3, 2012, the day trial was to have begun, the State filed a motion for dismissal because it had mistakenly charged Mr. Ortiz under a statute that had not been enacted at the time of the alleged crimes.
[¶18] On January 4, 2012, the district court denied Mr. Ortiz's motions for additional bill of particulars and oral motion for a competency hearing for the alleged victim. The next day, the district court dismissed the charges without prejudice, in accordance with the State's motion.
[¶19] Five days later, on January 10, 2012, the State re-filed the charges under the statute in effect at the time of the crimes, Wyo. Stat. Ann. § 6-2-303(a)(v) (LexisNexis 2007). On January 18, 2012, Mr. Ortiz filed a motion to dismiss for lack of a speedy trial.
[¶20] Mr. Ortiz attempted to subpoena the victim, M.O., and her mother, to appear at the January 26, 2012, preliminary hearing in the circuit court for Laramie County. The circuit court quashed the subpoenas pursuant to an ex parte motion to quash filed by the State. When provided the opportunity to present an offer of proof as to why M.O. and her mother's testimony would be relevant to determining probable cause, Mr. Ortiz argued that the circuit court should evaluate the testimony of M.O. and her mother with regard to competency and credibility. The circuit court ruled that a preliminary hearing was not the appropriate venue to engage in discovery, especially to assess competency and credibility, and confirmed the order quashing the subpoenas.
[¶21] On January 30, 2012, the State filed an Affidavit of Probable Cause, an Amended Information, and a Bill of Particulars. The Bill of Particulars identified each count of second-degree sexual assault, the time period during which the alleged acts occurred, and that Mr. Ortiz " inflicted sexual intrusion on the victim via digital penetration." Furthermore, the Bill of Particulars described what the victim was wearing at the time of each of the alleged acts. The Information and Affidavit of Probable Cause contained additional details regarding the investigation and charges.
[¶22] On February 8, 2012, Mr. Ortiz filed a petition for writ of review to the district court requesting a reversal of the circuit court's decision to quash the subpoenas. He also filed another motion to dismiss for lack of speedy trial on February 9, 2012. On February 28, 2012, Mr. Ortiz filed a motion to continue the arraignment and to continue the hearing on his January 18 motion to dismiss for lack of speedy trial.
[¶23] On February 29, 2012, the State filed a motion for immediate trial setting, motion deadlines, and motions hearing. In its motion, the State recounted the history of the proceeding (including the dismissed action), noting " [a]ll continuances except the State's May 12, 2011 Motion to Vacate and Reset were at the behest of defense counsel and the May 12, 2011 Motion was jointly approved by both parties."
[¶24] On March 2, 2012, Mr. Ortiz entered a peremptory disqualification of Judge Campbell and the case was assigned to Judge Arnold. On March 8, 2012, Judge Arnold reset arraignment and the hearing on the motions to dismiss for lack of speedy trial to March 20, 2012. On March 14, 2012, the district court denied Mr. Ortiz's petition for writ of review of the circuit court's preliminary hearing quashing the subpoenas for M.O. and her mother. The district court reiterated the reasoning of the circuit court that " parties may not subpoena witnesses for the purpose of discovery at a preliminary hearing."
[¶25] Mr. Ortiz's motions to dismiss for lack of speedy trial were subsequently denied at the hearing on March 20, 2012.
[¶26] Mr. Ortiz filed a motion to continue arraignment on March 26, 2012. Although the State objected, the district court reset
arraignment to April 12, 2012. On April 9, 2012, the district court issued its order denying Mr. Ortiz's motion to dismiss for lack of speedy trial. In its order, the district court considered all of the Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), speedy trial factors and concluded that Mr. Ortiz was responsible for the majority of delays in the case. At his arraignment on April 12, 2012, Mr. Ortiz again pled not guilty and trial was set for September 25, 2012. On August 21, 2012, Mr. Ortiz filed a motion to reopen and reconsider any and all motions previously filed. That same day, upon the request of Mr. Ortiz, the trial was reset to October 2, 2012. On October 1, 2012, the district court considered Mr. Ortiz's motion to reopen and reconsider all previous motions. The district court denied review of those motions that were final under the initial action, granted several of the motions, and reserved ruling on the other issues for trial.
[¶27] At trial, the State's case centered on M.O.'s testimony that Mr. Ortiz, her grandfather, sexually assaulted her when she was a little girl. In his opening statement, Mr. Ortiz's counsel attacked M.O.'s motivation for making such allegations and questioned her credibility, suggesting she fabricated the report because she did not want to live with her father following the divorce of her parents. Defense counsel stated in his opening:
What is really important that you are going to see, ladies and gentleman, is that the separation and the impending divorce that ensued from that separation has had a drastic effect on this young girl. It had a drastic effect on this young girl to the point that she has now made false allegations of sexual abuse.
. . . .
In fact, what's very important that you are going to see that this disclosure did not occur until this young lady felt she was going to be ripped away from her mom and her mom's family and put into her father's family.
. . . .
So you're going to see through the years that this young lady said these things to adults, people of importance, and it didn't work. But still her dad was over here trying to get custody of her and possibly taking her away. That's what you're going to see, ladies and gentleman. That was the first time that she came out with this disclosure that her grandfather was sexually abusing her.
[¶28] The State rebutted those attacks by calling, as its first witness, forensic interviewer Lynn Huylar and introducing a 2006 forensic interview Ms. Huylar had conducted with M.O. The video highlighted the consistency of M.O.'s allegations dating back to 2006. The State contended that the forensic interview was admissible as a prior consistent statement. Mr. Ortiz's counsel objected to the timing of the introduction of the videotaped interview, arguing that the video should not be admitted until after M.O. had been cross-examined. The district court denied Mr. Ortiz's objection on the grounds that Mr. Ortiz had already argued, in his opening statement, that M.O. had an improper motive and had fabricated her allegations. The district court found the video admissible as a prior consistent statement to rebut Mr. Ortiz's allegations of improper motive.
[¶29] Ms. Huylar's testimony included an introduction of the video and an explanation of forensic interviewing. Later, on cross-examination, Mr. Ortiz's counsel repeatedly and unsuccessfully attempted to solicit testimony from Ms. Huylar regarding M.O.'s credibility and truthfulness.
[¶30] The four-day jury trial concluded on October 5, 2012, 176 days after arraignment on the re-filed charges, and 892 days after his initial arrest. Mr. Ortiz was convicted on all three counts of second-degree sexual assault. Mr. Ortiz submitted a timely notice of appeal.
I. Was Mr. Ortiz denied his right to a speedy trial?
[¶31] Mr. Ortiz argues that his right to a speedy trial was violated. In the ...