As Corrected August 11, 2014.
[Copyrighted Material Omitted]
Appeal from the District Court of Sweetwater County. The Honorable Richard L. Lavery, Judge.
For Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.
Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.
[¶1] A jury found Kyle Joseph Anderson guilty of third-degree sexual abuse of a minor, and he appeals. He argues that the prosecutor's manipulation of the rules resulted in judge-shopping which deprived him of his constitutional right to due process. He also contends that the jury was given confusing and conflicting jury instructions regarding venue, which were compounded by the prosecutor's misstatements of the law, and that venue was not established in Sweetwater County. We affirm.
[¶2] 1. Did the prosecutor's tactics amount to judge-shopping so as to deprive the appellant of his right to due process?
2. Was the jury correctly instructed regarding venue?
3. Did the evidence establish that venue in Sweetwater County was proper?
4. Did the prosecutor's misstatement of the law regarding venue in her closing argument constitute reversible error?
[¶3] Mr. Anderson boarded a Greyhound bus in Denver, Colorado, and sat next to B.P., an unaccompanied fifteen-year-old girl, who was travelling from Kansas to Oregon. Mr. Anderson became " touchy-feely" and got into B.P.'s " space." When B.P. feigned sleep, Mr. Anderson reached in her shorts and " stroked" her vagina on top of her underwear for " 10 to 15 seconds." She kept her eyes closed for another thirty minutes, and when she opened her eyes, Mr. Anderson again became " touchy-feely." Another passenger noticed B.P.'s discomfort and forced Mr. Anderson to move to the front of the bus. When the bus arrived in Rock Springs, one of the passengers contacted 911. Officers from the Rock Springs Police Department responded, along with Deputy Wallendorff of the Sweetwater County Sheriff's Office. After speaking with B.P., Deputy Wallendorff located Mr. Anderson and initiated a conversation which eventually led to his arrest.
[¶4] There was conflicting testimony regarding where the bus was when the touching occurred. The bus driver testified that she left Denver at 2:30 a.m. and stopped in Laramie, Wyoming, for a fifteen minute break. After leaving Laramie at 4:15 a.m., the bus drove west, pulling through the truck stop in Rawlins, Wyoming, to look for passengers at 7:00 a.m. There were no passengers in Rawlins and the bus continued west without stopping and arrived in Rock Springs at 9:00 a.m. The driver testified that the bus traveled at a continuous speed of 68 miles per hour.
[¶5] Deputy Wallendorff testified at trial that, although the crime occurred on the bus traveling between Rawlins and Rock Springs, he was unable to pinpoint exactly where it occurred. B.P., who is not a resident of Wyoming, testified that after Mr. Anderson stopped touching her vagina, she continued to pretend to be asleep for " about 30 more minutes." On cross-examination, she said that the timeframe was " 30 or 45 minutes." When she opened her eyes at " probably about 7:00 or 8:00 in the morning," she was not sure where she was. Shortly thereafter, one of the passengers confronted Mr. Anderson and forced him to move to the front of the bus. The passenger said that between thirty minutes and one hour elapsed between this confrontation and the stop in Rock Springs. B.P. testified that she did not remember how much time elapsed from the time she opened her eyes to her arrival in Rock Springs. When defense counsel asked B.P. if she had previously said that this took about two hours, she replied " I'm not sure about the times, but yeah, probably."
[¶6] Mr. Anderson was charged on July 20, 2012, in Sweetwater County, Wyoming, with three violations: third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(i) (LexisNexis 2013), third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(iii) (LexisNexis
2013), and misdemeanor possession of marijuana in violation of Wyo. Stat. Ann. § 35-7-1031(c)(i)(A) (LexisNexis 2013).
[¶7] The case was assigned to Judge James, and Mr. Anderson was arraigned on August 1, 2012. He entered not guilty pleas, and the case was set for a jury trial on November 5, 2012. Mr. Anderson filed a motion to suppress statements he had made to law enforcement officers without having been informed of his rights under Miranda . At the conclusion of the October 30, 2012 hearing on the motion to suppress, Judge James gave her oral ruling suppressing the use of Mr. Anderson's statements to law enforcement.
[¶8] Four days before trial, the State requested a continuance, stating it was having difficulties contacting witnesses. When asked about her diligence in contacting the witnesses, the prosecutor responded, " I don't know that I can answer that today, your honor." Judge James denied the motion for continuance.
[¶9] The next day, the prosecutor filed a motion to dismiss the case without prejudice. Judge James signed the order dismissing the case without prejudice the same day. Also on the same day, the State refiled the same three charges in a new docket. Mr. Anderson was bound over on that refiled case on November 9, 2012. The case was once again assigned to Judge James. On November 16, 2012, the prosecutor filed a motion for the peremptory disqualification of Judge James, and the case was assigned to Judge Lavery.
[¶10] Mr. Anderson filed a new motion to suppress, asserting that Judge James' Miranda ruling should still be binding as " law of the case." At the January 17 hearing on Mr. Anderson's motion to suppress, the prosecutor asserted that the suppression ruling by Judge James was not effective in the newly-filed case. " This is not the same case, it's filed anew, and so I don't believe law of the case applies." On January 24, 2013, Judge Lavery held a hearing on Mr. Anderson's motion to suppress, and issued his order denying the motion.
[¶11] The case proceeded to trial on the charge of third-degree sexual abuse of a minor (the State had dismissed the two other charges). At trial, the State played a portion of Mr. Anderson's interview with the police, the subject of Mr. Anderson's motion to suppress.
[¶12] The jury received, among others, the following instructions:
Instruction No. 7
The law raises no presumption against the defendant but rather, the presumption of law is in favor of his innocence. In order to convict the defendant of the crime charged, every material and necessary element to constitute such crime must be proved beyond a reasonable doubt, and if the jury has a reasonable doubt on any necessary ...