Appeal from the District Court of Sweetwater County. The Honorable Richard L. Lavery, Judge.
Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury found Allen Joseph Collins guilty of one count of second degree sexual abuse of a minor. He appeals his conviction, claiming the prosecutor committed misconduct in several instances during closing arguments. We conclude Mr. Collins failed to show he was prejudiced by any prosecutorial misconduct and affirm the conviction.
[¶2] The issue for our determination is:
Whether prosecutorial misconduct occurred when in closing and rebuttal argument the prosecutor commented on defense counsel's failure to produce certain evidence and the fact that Mr. Collins did not confess, gave the jury a choice between finding either that the two child witnesses had lied or Mr. Collins was guilty, and referred to one of the child witnesses as a hero.
[¶3] In the summer of 2013, JP and his friend CT, both nine years old, were playing outside the apartment complex where they lived in Rock Springs, Wyoming. JP ran up the stairs to his apartment and told his mother that he had seen Mr. Collins, who lived in the same complex, put his hand down the front of CT's shirt. JP's mother found CT on the stairs outside their apartment and asked her if what JP had said was true. CT said it was. JP's mother told CT she needed to tell her mother. Later, when JP's mother learned that CT had not told her mother, she contacted CT's mother and told her what the children had reported. CT's mother talked with CT and later JP and both children repeated that Mr. Collins had put his hand down the front of CT's shirt. CT's mother contacted the Rock Springs police department. A Wyoming Department of Family Services (DFS) employee conducted a forensic interview with CT. During the interview, CT reiterated her earlier statement. Mr. Collins was arrested and charged with one count of second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(b) (LexisNexis 2013).
[¶4] At trial, the State presented the testimony of CT and her mother, JP and his mother, a Ph.D. psychologist with expertise in treating adolescent victims of child abuse, and the police detective who interviewed JP and Mr. Collins. JP's mother testified about her son reporting to her what he had seen and her subsequent conversations with CT and CT's mother. JP testified that he saw Mr. Collins put his hand down CT's shirt and Mr. Collins was smiling as he did so. CT testified Mr. Collins put his hand down her shirt and squeezed her breast. She also testified Mr. Collins had done this to her between ten and twenty times. Rock Springs police detective Clay Jarvie testified
he interviewed JP and JP confirmed he had seen Mr. Collins put his hand down CT's shirt.
[¶5] Detective Jarvie also testified about his interview with Mr. Collins. During the testimony, the State played the tape recording of the interview. Several times during the interview, Mr. Collins denied putting his hand down CT's shirt. He said if it happened it was unintentional or " a freaking accident." Late in the interview, Detective Jarvie told Mr. Collins a story about a time when he personally had a lapse in judgment. After hearing the detective's story, Mr. Collins asked what would happen if he said he had experienced a lapse in judgment.
[¶6] Also during Detective Jarvie's testimony, the State played the tape recording of a telephone call Mr. Collins made to his daughter while he was in jail. During the conversation, his daughter asked what had happened. Mr. Collins responded:
Well, I'll tell you. I've been doing everything right and everything. These kids were down in front of my place, making a mess, and I told them to get going, get going home, you know, and stuff, and --
. . . .
--I kind of touched the one a little bit, she's only nine years old, up by the chest. Didn't mean to. She went home --
. . . .
--and tells her mother. Well, they called the cops and got me for that shit.
[¶7] Through the State's witnesses, the defense attempted to show the investigation was incomplete and Detective Jarvie coerced Mr. Collins into making incriminating statements during the interview. The defense also attempted to show the DFS interview of CT was handled improperly and CT was coached into saying Mr. Collins had touched her breast between ten and twenty times. Alternatively, the defense attempted to show that if touching did occur, it was accidental and not for the purpose of causing sexual arousal, gratification or abuse.
[¶8] After the State rested, the defense moved for a judgment of acquittal, which the district court took under advisement. The defense then rested without putting on any evidence. The jury found Mr. Collins guilty of second degree sexual abuse of a minor. Mr. Collins filed a motion for judgment of acquittal and a new trial. The district court denied the motion and sentenced Mr. Collins to serve thirteen to fifteen years in prison. Mr. Collins appealed.
STANDARD OF REVIEW
[¶9] Mr. Collins contends prosecutorial misconduct occurred in four instances. First, he claims the prosecutor improperly commented in closing argument that defense counsel had failed to produce the transcript of the DFS interview of CT. Defense counsel objected to the prosecutor's comments at the time and those comments were the basis for the motion for new trial. We, therefore, review the district court's rulings on the objection and motion for an abuse of discretion. Willoughby v. State, 2011 WY 92, ¶ 8, 253 P.3d 157, 161 (Wyo. 2011). An abuse of discretion occurs when the district court could not have reasonably concluded as it did. Id.
[¶10] Defense counsel did not object when the other three instances of alleged prosecutorial misconduct occurred. We, therefore, review for plain error. Fennell v. State, 2015 WY 67, ¶ 23, 350 P.3d 710 (Wyo. 2015), citing Anderson v. State, 2014 WY 74, ¶ 40, 327 P.3d 89, 99 (Wyo. 2014). Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice. Id.
1. Comments on evidence the defense did not produce.
[¶11] During the DFS interview, CT told the forensic interviewer that Mr. Collins put his hand inside her shirt twice--the first time she met him and then again the time JP witnessed it. The interviewer then asked, " Do you think it's happened more than five
times?"  The interview transcript did not indicate whether CT answered the question. The interviewer continued, " More than ten times? Is that a yes? Okay. How about more than 20 times? No? So maybe somewhere between 10 and 20 times?"
[¶12] On direct examination, the State's expert testified that children generally have difficulty articulating the number of times an event occurred and, rather than saying something happened " x" number of times, they are more likely to say it happened a lot. The expert testified that forensic interviewers are trained not to ask a child how many times something happened. On cross-examination, the expert testified that a forensic examiner would want to stay away from questions like those the interviewer asked CT. Later in the trial, defense counsel used the forensic interview transcript during cross-examination of CT to show that the interviewer asked the sort of questions the State's expert said should not be asked. Defense counsel also used the transcript to show that CT did not say Mr. Collins touched her breast between ten and twenty times; rather, the interviewer asked if that was so and CT merely responded, " Yes." Additionally, he ...