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Brown v. State

Supreme Court of Wyoming

January 7, 2015

GREGORY BROWN, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)

As Corrected January 20, 2015.

Page 1021

[Copyrighted Material Omitted]

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Appeal from the District Court of Sweetwater County. The Honorable Nena James, Judge.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Martin L. Hardsocg, Deputy Attorney General; Devin Kenney, Student Intern. Argument by Mr. Kenney.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


DAVIS, Justice.

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[¶1] A jury convicted Appellant Gregory Brown of one count of attempted second-degree sexual abuse of a minor, but acquitted him of three other child sexual abuse charges. He now challenges that conviction and his sentence on three procedural grounds. Appellant claims the district court erred in not declaring a mistrial after one potential juror made an improper remark and others who were ultimately excused became emotional during questioning at the bench during voir dire. He also asserts that the district court impermissibly invaded the province of the jury by supplementing an instruction on the charge of which he was convicted after the jury expressed confusion about the alleged act to which it pertained. Finally, he argues that he was denied due process because his sentence was imposed more than one year after his conviction. We affirm.


[¶2] 1. Did the district court abuse its discretion by not granting a mistrial due to a potential juror's statement that Appellant " should be locked up," and because other potential jurors became emotional during voir dire?

2. Did the district court abuse its discretion in supplementing the jury instructions to reflect the allegations in the Information to clarify the conduct charged?

3. Did the delay between Appellant's conviction and sentencing violate his constitutional right to speedy sentencing?


[¶3] Although the underlying facts of this case are not particularly pertinent to this appeal, we will summarize them to provide context for the charges and proceedings before

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the district court. When A.I. was approximately five years old, her mother married Appellant. As A.I. matured, Appellant's behavior towards her became inappropriate and disturbing. Two incidents were the basis for the charges against him with regard to A.I.

[¶4] The first occurred when A.I. was thirteen years old. The victim testified that in the summer of 2007, she had fallen asleep in her bed while Appellant was " spooning" with her. When A.I. awoke, Appellant's finger was inside her bra, stroking her near her breast.

[¶5] The second event occurred in December of that same year. A.I. testified that after watching a scary movie (" Halloween" ) alone together, Appellant and A.I. went to her room to sleep on the bed. During the night, A.I. awoke to find Appellant reaching up her shirt toward her breasts. She pushed his hand away several times before he attempted to put his hand down A.I.'s pants, eventually reaching as far as her pubic hair. Having thwarted Appellant's advance, A.I fell back asleep. She later woke up to find her shirt pulled up and his face between her bare breasts while he touched them with his hands. A.I. rolled over onto her stomach and the episode ended.

[¶6] A.I. initially kept these incidents secret, but later told her mother everything. A.I.'s mother immediately took her and the other children from the home, reported the incidents to law enforcement, and then filed for divorce shortly thereafter. However, she subsequently asked the county attorney's office not to pursue charges because she did not believe Appellant would do anything like he had to A.I. again.

[¶7] Three years later, A.I.'s mother was disturbed when she learned from her children that Appellant was engaging in the same apparent grooming conduct with his new girlfriend's daughter, K.M. Appellant had been observed lying on his bed with K.M while they watched television, and he also kissed her on the lips. A.I.'s mother reported her concerns to the Department of Family Services. Appellant was not charged criminally for any of his actions at this point. Soon thereafter, however, Appellant's son recorded a cell phone video of Appellant placing his bare foot in K.M.'s crotch area, which prompted the State to prosecute him for that event and his conduct with A.I.

[¶8] We now turn to the procedural events relating to Appellant's claims of error. Appellant was charged with four counts of child sexual abuse: Count I, second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(iii), based upon the first incident where Appellant's finger was inside A.I.'s bra, stroking her near her breast; Count II, second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(iii), based upon the second incident when Appellant pulled up A.I.'s shirt and put his face between her breasts while touching them; Count III, attempt to commit second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-1-301(a)(i) and § 6-2-315(a)(iii), based upon the second incident when Appellant attempted to put his hand down A.I.'s pants; and Count IV, third degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(iv), based upon the recorded incident involving Appellant's girlfriend's daughter K.M.

[¶9] The circuit court held a preliminary hearing, found probable cause on all counts, and bound the case over to the district court. Appellant was arraigned and pled not guilty to all four charges. The case proceeded to trial in due course.

[¶10] Before voir dire began, the district court told counsel that it preferred to resolve issues during jury selection in open court, even if the circumstance involved a sensitive matter. Specifically, the judge advised:

I want you to be careful about telling people that they automatically get to come into my office if there is an issue that they feel is sensitive. . . . I don't have time to take all these people in my office. Some of the things can be resolved at the bench. I realize in a case like this, especially if they were victims of sexual assault or whatever, that they don't want to talk about it in front of everyone, but some of them can be brought up to the bench and we can quietly do it and we can resolve it there. For the ones we can't that we need more time

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and more privacy on, we'll come in here. But it will take five days to get a jury if we haul everybody in here. So you are free to tell them if there is something sensitive we can go up to the bench and talk to the judge about it, but don't say we are all automatically going to go into my office.

[¶11] With these ground rules in place, voir dire began. After swearing in the potential jurors and explaining generally what the case was about, the district court admonished them that they were to answer questions posed by counsel without expressing their opinions about the case, if any of them had formed one. In other words, they were to answer questions concerning whether they had formed opinions either yes or no, and if the answer was yes, to wait for further questioning or direction from the court.

[¶12] Shortly thereafter, when the prosecutor asked whether any potential jurors would have difficulty fairly deciding a case involving sexual abuse of a minor, several raised their hands. The first potential juror called upon said the matter was personal, and she was therefore allowed to approach the bench to explain outside of the hearing of the venire. After she emotionally explained that she had been the victim of sexual abuse, the district court dismissed her for cause without objection from either party.

[¶13] After this first potential juror was excused, J.R. was called to be examined for cause in her place. Unfortunately, J.R. disregarded the court's instruction not to express an opinion when questioned about his ability to be fair, and the following exchange took place within the hearing of the venire:

Prosecutor : Well, I do need to ask, if there is something that you would have raised your hand, what would it have been?
Potential Juror, J.R.: With what this case is. I mean, I was just -- I couldn't -- I'm not going to be able to be fair about it. I mean, my opinion, I guess.
Prosecutor : Okay.
Potential Juror, J.R.: Goes back to the prejudice thing.
Prosecutor : Is this based on a personal experience for you? The question that I was just on.
Potential Juror, J.R.: No, it's nothing personal. It's my opinion. My opinion is he should be locked up.

[¶14] Defense counsel immediately moved for a mistrial, claiming that the entire jury pool had been contaminated by J.R.'s opinion that Appellant " should be locked up." In the alternative, he asked the district court to give an instruction on the presumption of innocence. The judge replied that although she had already advised the potential jurors not to state an opinion, she could not " stop them from blurting things out." J.R. was excused for cause, but the court determined the outburst did not warrant a mistrial. It then advised the potential jurors to disregard J.R.'s statement and that Appellant was presumed to be innocent.

[¶15] Voir dire resumed, and the prosecutor continued to ask potential jurors questions regarding their experiences with sexual assault or sexual abuse, and whether they would be able to set aside any feelings they had and render a verdict based solely on the evidence presented. Several potential jurors raised their hands, with some becoming very emotional in subsequent questioning. The first person called on requested to approach the bench and was dismissed for cause because she was a victim of sexual abuse and was also the parent of a child who had been sexually abused.

[¶16] At this point, defense counsel suggested that such personal conversations with potential jurors would more appropriately take place in chambers, out of the sight as well as the hearing of the venire. He pointed out that two potential jurors who had been examined at the bench had been shaking and crying while divulging very sensitive experiences, and that other potential jurors could observe the emotional state these individuals were in when they were discussing their circumstances. The prosecutor agreed. The judge settled on considering whether to examine particular jurors in chambers on an ad hoc basis; that is, she planned to decide on a case-by-case basis whether the level of emotion shown by a potential juror rendered examination in chambers more appropriate than at the bench in the sight of the rest of the panel.

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[¶17] Other potential jurors subsequently had to share very personal details of their lives, some doing so at the bench and others in chambers, after which they were excused for cause. All were victims of sexual abuse or parents of children who had been sexually abused. Defense counsel renewed his motion for a mistrial because of the cumulative effect of potential jurors becoming visibly emotional and upset at the bench in sight of the panel, and because of J.R.'s stated opinion that Appellant should be locked up. The ...

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