Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge.
Representing Appellant: Galen B. Woelk, Aron and Hennig, LLP, Laramie, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶1] In 2011, Lance Bean was arrested for the 1972 rape and murder of Sharon Reher. He was charged with first-degree murder, rape, and attempted rape. The jury acquitted him of the rape and murder charges, but convicted him of attempted rape. The district court sentenced Mr. Bean to a suspended sentence of five to eight years in prison, and placed him on probation for five years. Mr. Bean appeals, claiming that the district court abused its discretion when it failed to exclude touch DNA evidence, and that there was insufficient evidence to convict him of attempted rape. We affirm.
[¶2] We rephrase the issues as follows:
1. Did the district court abuse its discretion when it denied Mr. Bean's motion to exclude results of touch DNA testing?
2. Was there sufficient evidence to support Mr. Bean's conviction and the district court's denial of his motion for judgment of acquittal?
Ms. Reher's Party and Subsequent Events
[¶3] On Saturday, April 15, 1972, Sharon Reher hosted a party at her new apartment in Laramie, Wyoming. At least sixteen people attended that party, approximately six females and ten males, including Mr. Bean. During the party, several games were played, including a game referred to as the "blanket game, " which involved draping a blanket over a person's head. The person was then told to remove the article of clothing that he or she needed the least. The point of the game was to get the person to remove the blanket. Mr. Bean participated in the blanket game and, as a result, was present in Ms. Reher's bedroom at various times and had one of Ms. Reher's blankets or sheets draped over him during the course of the evening.
[¶4] Around 2:00 a.m., some of the attendees of the party went home; others, including Kirby Ring, Steve Hamblin, Jay Schwartz, Jim Schwartz, Joe Schumacher, Mr. Bean, and Ms. Reher went to a bar in downtown Laramie. One hour later, at approximately 3:00 a.m., Mr. Bean and Mr. Schumacher left the bar.
[¶5] Around 4:30 a.m., Mr. Ring, the brother of Ms. Reher's boyfriend, drove her home from the bar. Mr. Ring was the last person to see Ms. Reher alive. Ms. Reher's brother, Ronald Reher, found her body in her apartment on Monday morning, April 17, 1972. After calling his parents and his work, Mr. Reher called the police.
[¶6] When he arrived at the scene, Detective Vincent Valdez of the Laramie Police Department found Ms. Reher's body on the bed on top of the bed spread and other bedding. Her pants had been pulled down over her hips, exposing her pubic area. Her jacket, shirt, and bra had been pushed up, exposing her breasts, and a pair of torn pink panties was on the bed next to her left hip. Ms. Reher's head and arms were dangling over the top part of the mattress, which had been separated from the wall and headboard. There was a large wound on the right side of her neck and a pool of blood had accumulated on the floor beneath her head. Some blood had been splattered on the heater and on the wall near the heater. There was bruising over Ms. Reher's right eye, on the left side of her chin, and on the bridge of her nose. In addition, there was an abrasion on her left knee, a bruise on her right knee, a bruise on her left wrist, and there were two cuts on her left hand.
[¶7] Detective Valdez photographed the scene and he and Detective Gary Puls collected evidence. Ms. Reher's body was then transported to the funeral home where an autopsy was performed. The coroner estimated Ms. Reher's time of death to be between 5:00 a.m. and 6:00 a.m. on April 16, 1972. The coroner also collected a sperm sample, estimating that Ms. Reher had engaged in intercourse one or two days prior. He informed Detective Valdez that "as near as he could determine, [the sperm] were two to three days old, maybe longer, possibly five days old or longer." The source of the sperm was never identified and the sample was not retained.
[¶8] Detective Valdez conducted an investigation that included interviewing and collecting physical evidence from a number of suspects. Some physical evidence, including hair and pubic hair samples taken from Ms. Reher and the suspects, fingerprints found at the crime scene, the panties, and bedding, was sent to the FBI crime lab for testing. (In 1972, DNA testing was not performed.) Detective Valdez was unable to whittle his investigation to a single suspect. As a result, the case was unsolved for almost forty years. The case remained essentially untouched during that time, with the exception of evidence sent for testing in 2000 and again in 2005.
[¶9] In 2011, Laramie Police Detective Joel Senior began working on the "cold case." After his review of the evidence, Detective Senior selected areas of Ms. Reher's clothing and other items, including a portion of a fingernail that had been found in Ms. Reher's sink, to test for DNA. He submitted those items to the Wyoming State Crime Laboratory. Based largely on those test results, the State charged Lance Bean with three counts of first-degree murder: first-degree murder in perpetration of rape, and the alternative charges of murder in the first degree in perpetration of attempted rape, and murder in the first degree, purposely and with premeditated malice, all in violation of Wyo. Stat. § 6-54 (Michie 1957). Charges of rape and attempted rape, both in violation of Wyo. Stat. § 6-63 (Michie 1957, as amended and re-enacted by 1965 Wyo. Sess. Laws, ch. 89, § 1, and 1971 Wyo. Sess. Laws, ch. 70, § 1), were added in the State's Second Amended Felony Information, filed on November 21, 2014.
Motion in Limine
[¶10] Prior to the trial, Mr. Bean filed a motion in limine which sought to exclude DNA evidence at trial. After a hearing, the district court denied the motion, holding that the "results from the DNA tests do not suggest that the samples were so tainted as to make them unreliable and inadmissible." The court concluded that the jury "should be allowed to consider the evidence and determine the weight to afford to [it]." DNA evidence was admitted at trial and was a significant part of the State's case.
DNA Testing and Evidence at Trial
[¶11] Kathryn Normington from the Wyoming State Crime Laboratory testified that the lab performs two kinds of DNA testing: autosomal STR and Y-STR. The testing methodology is the same, regardless of whether the DNA tested is "touch DNA" or more traditional DNA from saliva, blood, or other bodily fluids. Autosomal testing examines the entire DNA profile, all of the DNA a person inherited from both his or her mother and father. Y-STR testing eliminates the female DNA and looks only to the Y-chromosome, which is inherited by males through their father. While Y-STR is not as unique as autosomal DNA (the same Y-chromosome passes from father to son and is identical within the paternal line), it is useful when looking for male and not female DNA profiles.
[¶12] Results from the testing can either result in the exclusion of an individual, a conclusion that the individual cannot be excluded, or no conclusion. Results exclude an individual when that person's DNA could not be consistent with or can be excluded from the unknown DNA being tested. When a person's DNA cannot be excluded, statistical analysis is performed to determine how rare or common that DNA profile is. The statistics will indicate the percentage of the population possessing the particular DNA profile and, therefore, the probability that the person whose DNA cannot be excluded was a contributor to the unknown DNA. When no conclusion is drawn, there is insufficient data to determine whether an individual's DNA is consistent or inconsistent with the unknown DNA being tested.
[¶13] Ms. Normington testified that, with the exception of the fingernail and the cutouts from the bedspread and mattress pad, all of the items submitted for DNA testing contained what is referred to as "touch DNA." In order to fully understand the DNA evidence presented and Mr. Bean's arguments concerning that evidence, it is important to understand what touch DNA is and some of the issues that arise when touch DNA is evaluated. Touch DNA is
the genetic information recovered from epithelial (skin) cells left behind when a person makes contact with an object. During the commission of a crime, an assailant can leave touch DNA samples behind . . . on a victim's clothing or other items implicated in the crime. Touch DNA uses the same STR and PCR technology used to test more traditional sources of DNA--blood, semen, saliva, and other bodily Fluids--to test recovered epithelial cells. The difference between "traditional" DNA testing--the testing of bodily fluids--and touch DNA testing is that material from which the DNA is collected, not the method by which the DNA sample is analyzed.
Victoria Kawecki, Comment, Can't Touch This? Making a Place for Touch DNA in Post-Conviction DNA Testing Statutes, 62 Cath. U. L. Rev. 821, 828-29 (2013). The amount of skin cells and corresponding DNA left on any particular object depends on a number of factors, including the rate at which an individual sheds skin cells (which can vary), the friction with which an item is touched, and even whether the person touching the item has dry or sweaty skin.
[¶14] Touch DNA testing "is possible even if the sample contains only seven or eight cells from the outermost layer of  skin." Davis Phillips, State v. Carver: A Cautionary Tale about the Use of Touch DNA as Inculpatory Evidence in North Carolina, 49 Wake Forest L. Rev. 1545, 1558 (2014) (citation and internal quotation marks omitted). Touch DNA is also subject to what is known as secondary transfer. This refers to the "possibility that an individual or an object may serve as a conduit between a source and a final destination without any direct encounter." David L. Faigman, et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, 4 Mod. Sci. Evidence § 30:13 (2015-2016 ed.). "[I]f person A touches person B, and person B touches a pen, person A's DNA can be found on the pen." State v. Carver, 725 S.E.2d 902, 909 ( N.C. Ct. App. 2012) (Hunter, J., dissenting), aff'd, 366 N.C. 372 ( N.C. 2013). The risk of secondary transfer, combined with the ability to detect even trace amounts of touch DNA, results in a greater likelihood of misleading or confusing results. Phillips, 49 Wake Forest L. Rev. at 1559.
[¶15] With this background in mind, we turn to the DNA testing results in this case. Autosomal STR testing resulted in a patchwork of data. With the exception of the sperm found on the bedspread, all of the autosomal test results indicated mixtures of DNA from more than one contributor.
• The fingernail found in Ms. Reher's bathroom sink contained DNA from which both Ms. Reher and Mr. Bean could not be excluded.
• DNA from sperm found on the bedspread came from a single contributor and was consistent with Ronald Ring, Ms. Reher's boyfriend.
• DNA found on the mattress pad excluded Mr. Bean and all other suspects as contributors.
• DNA from swabs taken from the left side of the panties was consistent with Ms. Reher and another unknown person, who was never identified; it was inconclusive regarding Mr. Bean and a number of other suspects.
• DNA from swabs taken from the back of the panties was consistent with Ms. Reher and did not exclude another unknown individual; there was no conclusion regarding Mr. Bean, and all other suspects could be excluded.
• Swabs from the right side belt area of Ms. Reher's pants demonstrated DNA consistent with Ms. Reher, and there was a mixture from which Ms. Reher, Mr. Bean, and another unknown individual could not be excluded. All other suspects could be excluded.
[¶16] Y-STR testing indicated the following:
• DNA on the fingernail was consistent with or did not exclude Mr. Bean.
• Blood splatter on the heater near Ms. Reher's bed contained a mixture of DNA which revealed no conclusion with respect to Ronald Ring and Mark Richards, and excluded the remaining suspects, including Mr. Bean. (Because Y-STR only tests male DNA, it did not indicate whether the blood was Ms. Reher's.)
• The cutout from the bedspread revealed a single source of DNA that was consistent with Ronald Ring and no one else.
• DNA from the cutout from the mattress pad excluded all suspects.
• The profile obtained from the swabs on the left side of the panties indicated the presence of a mixture from which Mr. Bean and another unknown person could not be excluded as possible contributors. One distinct profile from the side of the panties was consistent with Mr. Bean, and no conclusions could be made regarding Donal Rich. The remaining suspects could be excluded.
• Swabs from the back of the panties demonstrated the presence of a mixture of DNA from which Mr. Bean and Steve Hamblin could not be excluded as possible contributors. Additionally, one distinct profile was consistent with Mr. Bean, and Steve Hamblin could not be excluded as a contributor.
• Swabs from the right side of the panties demonstrated the presence of a mixture of DNA from which Mr. Bean and another unknown individual could not be excluded as possible contributors. One distinct profile was consistent with Mr. Bean, and no conclusions could be made regarding Jay Schwartz, Neil Scratch, Steve Hamblin, James Schwartz, or Ronald Reher. The remaining suspects could be excluded.
• Analysis of swabs from the left belt area of the pants showed a mixture of DNA. No conclusion could be made regarding Mr. Bean, Ronald Ring, or Donal Rich. The remaining suspects could be excluded.
• Swabs taken from the left sleeve/wrist of Ms. Reher's jacket demonstrated the presence of a mixture, with no conclusion as to Neil Scratch, Mr. Bean, Steve Hamblin, Ronald Ring, Mark Richards, Donald Richardson, or Donal Rich. The remaining suspects could be excluded.
• Y-STR tests of DNA from swabs taken from the lower front of Ms. Reher's t-shirt resulted in no conclusions with respect to Mr. Bean, Mark Richards, Donald Richardson, or Donal Rich. The remaining suspects could be excluded as contributors.
• The DNA profile from swabs taken from the lower front surface of Ms. Reher's bra was a mixture from which Mr. Bean and an additional individual could not be excluded, and one distinct profile was found to be consistent with Mr. Bean. No conclusions could be made with respect to Joseph Schumacher, Ronald Reher, Ronald Ring, or Mark Richards. The remaining suspects could be excluded.
• Finally, swabs taken from the cuff of Ms. Reher's pant legs indicated the presence of a mixture of DNA from which no conclusion could be drawn regarding Mr. Bean, Steve Hamblin, or Donal Rich. The remaining suspects could be excluded as contributors.
[¶17] Ms. Normington testified that the statistics regarding the probability that there will be a match of the Y-STR DNA ...