Appeal from the District Court of Natrona County. The Honorable W. Thomas Sullins, Judge.
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellant Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury convicted James Rogers of first-degree sexual assault and two counts of third-degree sexual abuse of a minor. Mr. Rogers qualified as a habitual criminal and was thus sentenced to life in prison on the first-degree sexual assault conviction. He received thirteen-to fifteen-year sentences on the remaining two charges to be served concurrently to each other and to the life sentence.
[¶2] On appeal, Mr. Rogers claims that he was not in a position of authority, and that he was incorrectly charged. Furthermore, he argues that his convictions and sentences should have merged and that there was insufficient evidence to sentence him as a habitual offender.
[¶3] We will affirm.
[¶4] Mr. Rogers presents four issues for our review:
1. The relationship alleged between Mr. Rogers and the victim does not constitute a " position of authority." [sic]
2. The acts alleged against Mr. Rogers do not constitute a violation of W.S. § 6-2-316(a)(iv) and, alternatively, counts II and III should merge.
3. The legislature intended that all three counts should merge into a single crime.
4. One prior felony conviction alleged for the purpose of the habitual criminal sentence was not sufficiently proved.
[¶5] On April 11, 2012, James Rogers visited the home of Kevin and Tammy Long. Mrs. Long was at work, and Mr. Long needed to run an errand. When Mr. Long asked Mr. Rogers if he would watch his two children -- his nine-year-old son and his sixteen-year-old developmentally disabled daughter, C.W. Mr. Rogers agreed, and Mr. Long left around 9 p.m.
[¶6] When Mr. Long left, his son was sleeping in his bedroom. Consequently, Mr. Rogers and C.W. were left alone in the living room. Mr. Rogers approached C.W. and began kissing her. He ran his hand up her leg and touched her vagina, and began sucking on her nipples through her shirt. Mr. Rogers then grabbed C.W. by the wrist, pulled hard and directed her into her bedroom. Once in the bedroom, Mr. Rogers closed the door and turned off the light. He proceeded to take off his pants. He also took off C.W.'s clothes and pushed her onto the bed. Mr. Rogers then inserted his penis into C.W.'s mouth and put his fingers into C.W.'s vagina. Mr. Rogers then licked C.W.'s vagina, and proceeded to have intercourse with her. Afterwards, Mr. Rogers ejaculated on C.W. Mr. Rogers then left the home, and C.W. went to sleep without telling anyone about the incident.
[¶7] The next morning, C.W. became upset at school. C.W. confided in her special education teacher, Katie Turner, that she had been raped the night before and described the events in detail. C.W. reported the incident to the police and was then taken to the hospital where a nurse administered a sexual assault kit.
[¶8] After C.W. named Mr. Rogers, the police contacted him. Mr. Rogers admitted to visiting the Longs' home the night before but claimed he left the home when Mr. Long left. Evidence gathered from C.W., the home, and a DNA sample from Mr. Rogers was submitted to the Wyoming State Crime Lab. There, analysts detected the presence of Mr. Roger's sperm in C.W.'s underwear. An analyst testified at trial that the chances the DNA belonged to someone other than Mr. Rogers were one in 5.02 quintillion.
[¶9] The State immediately filed an Information charging Mr. Rogers with four varying degrees of sexual assault in violation of Wyo. Stat. Ann. § § 6-2-302(a)(i), 6-2-316(a)(ii), 6-2-303(a)(vi), and 6-2-316(a)(iv). The Information was eventually amended to include habitual offender status, and one of the four original charges was dropped. A jury trial took place, where after the jury convicted Mr. Rogers of all charges against him: one count of first degree sexual assault in violation of Wyo. Stat. Ann.§ 6-2-302(a)(i); one count of third degree sexual abuse of a minor in violation of Wyo. Stat. Ann.§ 6-2-316(a)(ii); and one count of third degree sexual abuse of a minor in violation of Wyo. Stat. Ann.§ 6-2-316(a)(iv).
[¶10] Following the jury trial, the State presented evidence in support of its allegation that Mr. Rogers was a habitual offender under Wyo. Stat. Ann. § 6-10-201. The State's evidence included a 1978 felony arson conviction in Ohio; a 1990 indecent liberties with a minor conviction in Casper, Wyoming; and three 1995 federal felony firearm convictions, all arising from the same incident. In support of these allegations, the State presented documentation and testimony from several individuals. After the State's presentation of evidence, the jury found Mr. Rogers to be a habitual criminal. Thus, the district court sentenced him accordingly: life imprisonment on the first-degree sexual assault charge, and thirteen-to fifteen-year sentences on each third-degree sexual abuse of a minor charge, to be served concurrently to each other, and to the life sentence. This appeal followed.
Position of Authority
[¶11] P11 Mr. Rogers argues on appeal that the relationship between he and the victim, C.W., does not constitute a position of authority under Wyo. Stat. Ann. § 6-2-316(a)(ii). This statute requires that the accused occupy a " position of authority" in relation to the victim. The State disagrees and contends that because babysitters are tasked with acting in place of a child's parent, and because they have been affirmatively granted the authority to act in the parent's place, they should be considered as occupants of a position of authority.
[¶12] When reviewing an appellant's claims regarding sufficiency of the evidence, this Court examines the evidence in the light most favorable to the State. Faubion v. State, 2010 WY 79, ¶ 12, 233 P.3d 926, 929 (Wyo. 2010). We accept all evidence favorable to the State as true and give the State's evidence every favorable inference which can reasonably and fairly be drawn from it. We also disregard any evidence favorable to the appellant that conflicts with the State's evidence. Id.
[¶13] Wyo. Stat. Ann. § 6-2-301(a)(iv) (LexisNexis 2013) provides:
" Position of authority" means that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person[.] [Emphasis added.]
We have discussed this statute several times and have analyzed what it means to be in a " position of authority." Most recently, in Solis v. State, 2013 WY 152, 315 P.3d 622 (Wyo. 2013), we queried whether a massage therapist holds a position of ...