Appeal from the District Court of Laramie County. The Honorable Steven K. Sharpe, Judge.
For Appellant: Dion J. Custis, Dion J. Custis, P.C., Cheyenne, Wyoming.
For Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
BURKE, Chief Justice.
[¶1] Appellant, Michael Carroll, II, challenges his convictions on two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor. He claims that the district court erred in several evidentiary rulings, and asserts that the prosecutor engaged in misconduct. We find no merit in his claims, and affirm.
[¶2] Appellant raises four issues for our review, which we reordered to facilitate discussion:
1. Was evidence of Appellant's prior conviction for sexual assault improperly admitted?
2. Was evidence of the victim's prior sexual conduct improperly excluded?
3. Was evidence of domestic violence improperly admitted?
4. Did the prosecutor commit misconduct?
In addition, he contends that the cumulative effect of these errors denied him a fair trial.
[¶3] Appellant married Christine Boxley in 1995. They had two children. In the summer of 2004, Appellant's mistress, Miranda Trevino, moved into the Carrolls' home in Pueblo, Colorado. She brought with her three children from a previous marriage, including her oldest daughter, T.T. In 2006, the three adults and five children moved to Cheyenne, Wyoming. Ms. Trevino later gave birth to two more of Appellant's children.
[¶4] According to T.T.'s testimony, beginning in 2009, when she was fourteen, Appellant started taking her into his bedroom for massages. At first, he allowed her to keep her undergarments on but, as time went on, he made her take off her clothes and lie naked on the bed. T.T. testified that Appellant massaged her breasts and vaginal area, " and anywhere else really."
[¶5] In December of 2009, Appellant pled guilty to third-degree sexual abuse of a minor. The victim was a fourteen-year-old girl whom Appellant, a nurse, had met at a medical clinic. As part of his sentence, Appellant was ordered to have no contact with minors. Appellant moved out of his home and into a separate apartment. He often spent time at the home of another mistress. Despite the requirements of Appellant's sentence, Ms. Carroll took T.T. to see him several times. Appellant massaged T.T. again during these visits.
[¶6] On one occasion, Appellant asked T.T. if she had lost her virginity. When she said she had not, he said he could help stretch her out so " it won't hurt that much" when she did. He reminded T.T. that he was a nurse and he knew what he was doing. Appellant took a " sex toy" from the closet and tried to " stimulate" T.T. with the toy and with his fingers. T.T. testified that he penetrated her vagina with his fingers and the sex toy.
[¶7] In August of 2010, Ms. Trevino moved to Pasco, Washington, with her five children, including T.T. Shortly after moving, T.T. disclosed to her mother what Appellant had been doing to her. Ms. Trevino reported the allegations of sexual abuse to the sheriff in Washington. The sheriff's department took initial reports and conducted an interview with T.T. It forwarded the information to the sheriff's office in Cheyenne, Wyoming, where the incidents occurred.
[¶8] Appellant was arrested and charged with two counts of first-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(iii) (LexisNexis 2011), and one count of second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(iv). Following a jury trial, Appellant was convicted on all three charges. He challenges that conviction in this appeal.
Issue 1: Evidence of other crimes, wrongs, or acts
[¶9] Four months prior to trial, the prosecution filed a notice with the district court indicating its intent to introduce evidence of Appellant's prior conviction for third-degree sexual abuse of a minor. Following a hearing, the district court issued a decision letter ruling that the evidence was admissible under W.R.E. 404(b). Appellant makes two related claims regarding this evidence.
[¶10] The first is that the district court should have excluded the evidence. Evidentiary rulings are reviewed for abuse of discretion. Edwards v. State, 2007 WY 146, ¶ 7, 167 P.3d 636, 637 (Wyo. 2007). " We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion . . . means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id. (quoting Gabbert v. State, 2006 WY 108, ¶ 24, 141 P.3d 690, 697 (Wyo. 2006)).
[¶11] The second claim is that the district court erred in allowing the prosecutor to refer to the prior conviction when questioning various witnesses. Because Appellant did not object to any of the prosecutor's questions, we review for plain error. Schreibvogel v. State, 2010 WY 45, ¶ 44, 228 P.3d 874, 888 (Wyo. 2010).
To establish plain error, the appellant must show 1) the record clearly reflects the incident urged as error; 2) a violation of a clear and unequivocal rule of law; and 3) that he was materially prejudiced by the denial of a substantial right. Causey v. State, 2009 WY 111, ¶ 18, 215 P.3d 287, 293 (Wyo. 2009). Under the plain error standard of review, we reverse a district court's decision only if it is so plainly erroneous that the judge should have ...