Appeal from the District Court of Johnson County. The Honorable William J. Edelman, Judge.
Representing Appellant: Office of the 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: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny Lynn Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury found Michael Allan Lindstrom guilty of three counts of first degree sexual abuse of a minor and three counts of second degree sexual abuse of a minor for acts involving two victims. The jury also found him guilty of two counts of aggravated assault and two counts of first degree sexual assault for acts involving an adult victim. He appeals claiming the district court abused its discretion when it allowed the State to introduce un-noticed character evidence and amend the information to conform to one of the minor victim's video deposition testimony. He also contends the cumulative effect of two instances of prosecutorial misconduct denied him his right to a fair trial. We affirm.
[¶2] The issues for our determination are:
1. Whether the district court abused its discretion in allowing the State to present character evidence without proper notice or a Gleason hearing.
2. Whether the district court abused its discretion when it allowed the State to amend the information to bring it into conformity with the minor victim's video deposition.
3. Whether Mr. Lindstrom was denied his right to a fair trial due to prosecutorial misconduct.
[¶3] In October 2012, Kari Packard, a caseworker with the Wyoming Department of Family Services (DFS), contacted the Buffalo Police Department after six year old CS, Mr. Lindstrom's second cousin, drew a picture of a naked male and made statements suggesting Mr. Lindstrom had been sexually inappropriate with her. Ms. Packard subsequently interviewed CS in Casper. During the interview, CS stated that Mr. Lindstrom touched her in sexual ways while they were at her great grandmother's home in Buffalo. In a follow-up interview with the caseworker and Buffalo police officer Adrian Keeler, CS again reported that Mr. Lindstrom had touched her in sexual ways.
[¶4] In February 2013, in the course of investigating a separate matter, Officer Keeler interviewed TR. TR told the officer that Mr. Lindstrom, with whom she had previously had a relationship resulting in the birth of
a son, had been at her home several times during the summer and fall of 2012 and had raped her.
[¶5] In March 2013, Officer Keeler spoke with Mr. Lindstrom. He denied having been in Buffalo except on August 18, 2012, when his parole officer gave him a travel pass. According to the police officer, he interviewed other individuals who said they had seen Mr. Lindstrom in Buffalo several times in the summer and fall of 2012. Officer Keeler and caseworker Packard then re-interviewed TR. TR reiterated that Mr. Lindstrom had been at her home several times in 2012 and had sexually assaulted her. During this interview, she also stated the Mr. Lindstrom had sexually assaulted their son, PR.
[¶6] In July of 2013, the Johnson County attorney's office issued a warrant for Mr. Lindstrom's arrest and charged him with two counts of first degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) and (c) (LexisNexis 2013) and two counts of second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b) (LexisNexis 2013) for acts involving CS; three counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2013) and two counts of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2013) for the acts involving TR; and one count of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor for the acts involving PR. Prior to trial, the State filed and the district court granted a motion to dismiss one of the sexual assault charges involving TR.
[¶7] Also before trial, the State moved for an order allowing the testimony of CS and PR to be taken by videotape deposition so they would not have to meet Mr. Lindstrom face-to-face in the courtroom. Mr. Lindstrom filed a motion for a competency and taint hearing. Prior to a hearing on the motions, the parties filed a stipulated motion stating that PR had been placed in acute care and was not capable of testifying and requesting that in CS's best interest her competency hearing and trial deposition be scheduled for the same day so that she would have to appear only once. The district court granted the motion and set the matter for a competency/taint hearing and videotape deposition on November 12, 2013. After the hearing, the district court found the child competent to testify and the parties proceeded with the trial deposition. During the deposition, CS testified that Mr. Lindstrom had on different occasions inserted his finger in her anus several times, made her touch his penis and made her perform fellatio on him.
[¶8] TR testified that Mr. Lindstrom came to her home in June 2012. They sat on the couch making small talk and watching PR play. Mr. Lindstrom asked TR if they could be in a relationship again, TR said no and he asked if he could at least " get a piece of ass." She again said no and Mr. Lindstrom called her a bitch. TR took PR to his room and Mr. Lindstrom followed. PR began to show Mr. Lindstrom his room and his toys. After watching them for a few minutes, TR left them alone.
[¶9] TR came back to the room about thirty minutes later when she heard PR say, " I don't want to do that." The door was shut, she opened it and she saw Mr. Lindstrom and PR in PR's bed. TR testified that it looked like Mr. Lindstrom was pulling up his pants and PR's pants. She asked them what they were doing and Mr. Lindstrom said they were watching a movie. PR ran to her and grabbed hold of her waist. He was trembling. She picked him up and he whispered in her ear that Mr. Lindstrom had made him touch his penis and pretend it was a Popsicle. She asked Mr. Lindstrom what he had done and he denied doing anything. They argued and she told Mr. Lindstrom that he needed to leave.
[¶10] TR threatened to call the police and, carrying PR, headed to her bedroom to get her cell phone. She made it to the bathroom, put PR down and told him to go in the bathroom and lock the door. Mr. Lindstrom followed her, grabbed her around the throat and said if she told anyone he would kill her. He shoved her against the wall and told PR to open the bathroom door. PR complied and Mr. Lindstrom told TR to go into the bathroom. Mr. Lindstrom made TR perform fellatio on him and then told her to touch PR's penis. She refused and he
slapped her. She hit him in the face and he began pulling down her pants and underwear. He grabbed PR's hand and told him to touch her. She pushed PR's hand away. Mr. Lindstrom forced her head down onto his penis. Then he held a Swiss army knife to her throat and told her to do the same thing to PR or he would kill her. After she complied, Mr. Lindstrom made TR and PR get into the shower and he urinated on TR. Mr. Lindstrom then got dressed and stepped out of the bathroom. TR locked the door. Mr. Lindstrom pounded on the door, cussing and yelling that he was going to kill TR. Finally, Mr. Lindstrom left the house.
[¶11] TR testified that Mr. Lindstrom came back to her home in September 2012. They argued and Mr. Lindstrom pushed her against the wall, held the knife to her throat and again threatened to kill her if she told anyone what he had done. She testified that Mr. Lindstrom returned in late December or early January. Again they argued and Mr. Lindstrom became angry and physically and sexually assaulted TR. He then bound PR's hands with electrical tape and sexually assaulted him.
[¶12] In addition to CS and TR, the State also presented the testimony of DFS employees and police officers who were involved in investigating the allegations against Mr. Lindstrom. Their testimony about their interviews with CS, PR and TR tended to corroborate the allegations of child abuse and sexual assault. The State also presented expert testimony tending to show that CS's behavior was consistent with that of a child who had been sexually abused.
[¶13] After a five day trial, the jury found Mr. Lindstrom guilty on the ten remaining counts. The district court sentenced him to six terms of life in prison without the possibility of parole on the convictions for first and second degree sexual abuse of a minor, with the first three sentences to be served concurrently to each other and the last three sentences to be served concurrently to each other and consecutively to the first three. The district court sentenced Mr. Lindstrom to four terms of forty to fifty years imprisonment on the convictions for first degree sexual assault and aggravated ...