Appeal from the District Court of Sheridan County. The Honorable John G. Fenn, Judge.
For Appellant: Lisa K. Finkey, Gillette, Wyoming.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; John A. Brodie, Assistant Attorney General. Argument by Mr. Brodie.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] Jason Bradley McGill was convicted of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(i)(c). Mr. McGill argues that the district court abused its discretion when it denied his motions for a mistrial based on improper vouching testimony by one of the State's witnesses and on introduction of uncharged misconduct evidence without prior notice to the defendant. Mr. McGill also asserts that the prosecutor committed misconduct in her rebuttal closing argument. Together, Mr. McGill alleges that these amount to cumulative error which requires reversal of his conviction. We affirm.
[¶2] 1. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on vouching testimony of a State's witness?
2. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on testimony of a State's witness that introduced uncharged misconduct evidence?
3. Did the prosecutor's statement in rebuttal to defense counsel's closing argument constitute plain error?
4. Did cumulative error occur warranting the reversal of Mr. McGill's conviction?
[¶3] Mr. McGill spent Thanksgiving Day 2013 with his three children from his second marriage; his live-in girlfriend, Jennifer Neumeyer; and her three children from previous relationships. Mr. McGill and Ms. Neumeyer began arguing early in the day. The argument escalated when Mr. McGill's ex-wife, Cristi McGill, called during Thanksgiving dinner and Mr. McGill allowed his children to speak with their mother. Later that evening, after the children were in bed, Mr. McGill and Ms. Neumeyer also retired. Their argument continued and Mr. McGill left their bedroom. Ms. Neumeyer followed him a few minutes later. While walking down the hall, Ms. Neumeyer noticed that the bedroom door of Mr. McGill's nine-year-old daughter, HM, was open. Ms. Neumeyer later reported to authorities that when she looked in, she witnessed Mr. McGill performing oral sex on his daughter while she lay in bed.
[¶4] Ms. Neumeyer did not immediately report the incident to authorities, instead she talked to a few friends about what had occurred. After one of these friends insisted that she report what she had seen, Ms. Neumeyer spoke with a case worker from the Department of Family Services (DFS) in Sheridan, Wyoming, and a Sheridan county sheriff's deputy. Mr. McGill was arrested a few days after Ms. Neumeyer's report to authorities and charged with sexual abuse of a minor in the first degree.
[¶5] Ms. Neumeyer's description of the events that took place on Thanksgiving remained consistent until shortly before trial. At that time, she recanted, claiming that she concocted the story because she was jealous of Cristi McGill and wanted her out of Mr. McGill's life. Nevertheless, trial proceeded as scheduled. The State called a number of witnesses, including the victim, Cristi McGill, Ms. Neumeyer, and friends of Ms. Neumeyer in whom she confided after the Thanksgiving incident. The State also called the deputy who performed the investigation, the DFS case worker who worked on the case, and the victim's pediatrician. For the defense, Mr. McGill was the only witness to testify.
[¶6] The jury convicted Mr. McGill of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6-2-314(a)(i)(c), and Mr. McGill was sentenced to 25 to 35 years in prison. Mr. McGill timely filed his notice of appeal. Additional relevant facts will be addressed throughout the discussion section.
I. Did the district court abuse its discretion when it denied Mr. McGill's motion for a mistrial based on vouching ...