from the District Court of Natrona County The Honorable
Daniel L. Forgey, Judge.
Representing Appellant: Office of the State 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;
Christyne M. Martens, Senior Assistant Attorney General; Eva
La, Assistant Attorney General. Argument by Ms. La.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury found Shaun Kenneth Hamilton guilty of five counts of
sexual assault and sexual abuse of a minor for acts involving
two victims. He appeals his conviction, claiming that there
was prosecutorial misconduct amounting to cumulative error
when the prosecutor, during closing argument, defined the
burden of proof, denigrated Mr. Hamilton's defense, and
shifted the burden of proof. We affirm.
We rephrase the issue as follows: Was Mr. Hamilton denied his
right to a fair trial by the cumulative error of two or more
instances of prosecutorial misconduct?
There are two victims in this case, JP and KB. Mr. Hamilton
is KB's stepfather, and lived with KB and her mother. KB
testified that in 2015, when she was fourteen, Mr. Hamilton
sexually assaulted her in her bedroom. The following day, KB
went to school and told a friend about the incident, and the
friend reported it to the school principal. The principal
called the Wyoming Department of Family Services (DFS), and
then called KB out of class. After speaking to the principal
about the incident, KB left with a DFS caseworker. The DFS
caseworker took KB to the Children's Project Center for a
forensic interview and then to the hospital for a sexual
assault kit examination. During the sexual assault kit exam,
the nurse collected oral swabs from KB and DNA swabs from
KB's abdomen. The Casper Police Department (CPD) obtained
a search warrant for KB's residence, where they collected
KB's mattress topper from her bed, a blanket, a pair of
panties, a pair of sports pants, a black shirt, and a white
towel. CPD also served Mr. Hamilton with a search warrant to
perform a biological evidence kit exam on him. DNA tests
confirmed that DNA collected from KB's abdomen swabs and
mattress topper was consistent with Mr. Hamilton's semen,
and Mr. Hamilton's penile swabs were consistent with the
DNA profiles of both KB and Mr. Hamilton.
When it began investigating KB's case, CPD re-opened an
earlier case involving charges of sexual assault of JP, the
child of a woman Mr. Hamilton dated in 2009. JP testified
that Mr. Hamilton sexually assaulted her three different
times when she was five or six years old. JP's mother
reported the incidents to DFS and CPD, but no charges were
filed against Mr. Hamilton at that time.
The State combined KB's and JP's cases, and charged
Mr. Hamilton with one count of first-degree sexual assault in
violation of Wyo. Stat. Ann. §§ 6-2-302(a)(i) and
6-2-306(a)(i), one count of first-degree sexual abuse of a
minor in violation of Wyo. Stat. Ann. §§
6-2-314(a)(iii) and (b), for the incident related to KB; and
one count of second-degree sexual abuse of a minor in
violation of Wyo. Stat. Ann. §§ 6-2-314(a)(i) and
(c), and two counts of second-degree sexual abuse of a minor
in violation of Wyo. Stat. Ann. §§ 6-2-315(a)(ii)
and (b) for the incidents related to JP.
After a four-day trial, the jury convicted Mr. Hamilton on
all five counts. On the two counts related to KB, he was
sentenced to a term of not less than 32 years nor more than
36 years, and a term of not less than 10 years nor more than
15 years, to be served concurrently. On the three counts
related to JP, he was sentenced to not less than 18 years nor
more than 20 years on each count, to be served concurrently
and consecutively to the counts related to KB. Mr. Hamilton
timely filed his notice of appeal. Additional facts,
testimony, and argument will be set forth below, as
Mr. Hamilton failed to object to the prosecutor's
statements during his closing argument at trial. Our review
is therefore limited to a search for plain error. Watts
v. State, 2016 WY 40, ¶ 6, 370 P.3d 104, 106 (Wyo.
2016). "Normally, we would determine whether each
incident of alleged misconduct by the prosecutor caused
sufficient prejudice to require a reversal."
Id. at ¶ 7, 370 P.3d at 106. Mr. Hamilton,
however, argues that it was the cumulative effect of all
three instances of alleged prosecutorial misconduct that
denied him his right to a fair trial. Our plain error review
is therefore: 1) whether the record is clear about each
incident alleged to be misconduct; 2) whether each instance
of alleged misconduct actually transgressed a clear and
unequivocal rule of law; and 3) if two or more instances of
alleged misconduct violate clear and unequivocal rules of
law, whether the cumulative effect of the misconduct
prejudiced Mr. Hamilton to such an extent that his trial was
other than fair and impartial. Id.
Mr. Hamilton denied his right to a fair trial by the
cumulative error of two or more instances of prosecutorial
Mr. Hamilton contends that there were three instances of
prosecutorial misconduct during the prosecutor's closing
argument: 1) the prosecutor defined reasonable doubt for the
jury; 2) the prosecutor denigrated the defense; and 3) the
prosecutor shifted the burden of proof from the State to the
defendant. Prosecutorial misconduct is "[a]
prosecutor's improper or illegal act (or failure to act),
esp[ecially] involving an attempt to persuade the jury to
wrongly convict a defendant or assess an unjustified
punishment." Watts, 2016 WY 40, ¶ 8, 370
P.3d at 107 (quoting Craft v. State, 2013 WY 41,
¶ 13, 298 P.3d 825, 829 (Wyo. 2013)). "Allegations
of prosecutorial misconduct are reviewed by reference to the
entire record and hinge on whether a defendant's case has
been so prejudiced as to constitute denial of a fair
trial." Talley v. State, 2007 WY 37, ¶ 9,
153 P.3d 256, 260 (Wyo. 2007). Although it was prosecutorial
misconduct for the prosecutor to attempt to define reasonable
doubt and to suggest that Mr. Hamilton carried any burden of
proof, Mr. Hamilton failed to prove cumulative error.
Applying our standard of review, we will find that Mr.
Hamilton was not prejudiced to such an extent that his trial
was anything other than fair and impartial.
Mr. Hamilton argues that the prosecutor attempted to define
reasonable doubt to the jury, in violation of the law, when
the prosecutor made the following statements during his
Before I get to the overwhelming evidence against [Mr.
Hamilton] in this case, I want to discuss with you the burden
of proof. I want to talk to you about what it is and also
what it is not. It is proof beyond a reasonable doubt, a
burden the State welcomes. We welcome that. We're talking
about a man's freedom. We should be held to that burden,
and we ask you to hold us to that burden. But it is not proof
beyond any possible doubt. You heard a lot of possibilities
coming from [defense counsel]. Well, could it have possibly
been this, could it have possibly been that. The burden is
not proof beyond any possible doubt. The burden of proof is
beyond a reasonable doubt. And a reasonable doubt
doesn't just come from any lame excuse the ...