BILLY M. CARRIER, JR., Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Laramie County The Honorable
Steven K. Sharpe, Judge
of the State Public Defender: Diane Lozano, State Public
Defender; Tina N. Olson, Chief Appellate Counsel. Argument by
K. Michael, Wyoming Attorney General; David L. Delicath,
Deputy Attorney General; Christyne M. Martens, Senior
Assistant Attorney General; Caitlin F. Young, Assistant
Attorney General. Argument by Ms. Young.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant Billy Carrier was convicted of sexually abusing his
minor step-granddaughter multiple times. He challenges his
convictions, raising issues related to the denial of his
motion for a new trial and alleged cumulative error. We
Appellant presents two issues that, as detailed in the
discussion section below, include several subparts. They can
generally be framed as follows:
1. Did the district court abuse its discretion by denying
Appellant's motion for a new trial?
2. Did cumulative error warrant reversal of Appellant's
Appellant is the step-grandfather of MK, a girl who was
around five years old when she was first sexually
abused. The first instance of sexual abuse
occurred when MK spent a weekend with her grandparents. MK
was sitting on Appellant's lap in the living room,
covered by a blanket. Appellant pulled her pants down and
inserted his finger into her vagina for a few minutes.
On another occasion, when MK was about seven years old, she
was again at her grandparents' home and took a shower. MK
did not get all of the shampoo out of her hair, so her
grandmother had her return to the bathroom with Appellant so
he could help rinse it out. Appellant closed the bathroom
door after he and MK went in, and the bathtub faucet was
turned on. MK knelt down between the tub and the toilet and
put her head under the faucet to rinse her hair. Appellant
went behind her, pulled down her pants, and began rubbing his
penis against her rear on and around her anus. The incident
ended when MK's grandmother called out from another room
to ask what was taking so long.
A third incident occurred when MK was again staying the night
at her grandparents' home. While MK was in bed, Appellant
entered her bedroom, removed her covers, and then pulled down
her pajama pants. Appellant then pulled down his own pants
and penetrated her vagina with his penis while MK pretended
to be asleep. Yet a fourth occasion occurred when Appellant
again entered MK's bedroom while she slept and repeated
this same type of sexual abuse. After these events, MK bled
[¶6] MK told her mother about the abuse, but her mother
did not believe her. Later on, MK was attending church and
overheard a congregation member speak about surviving sexual
abuse. MK approached this person and revealed that Appellant
had been sexually abusing her. The two then reported the
abuse to the pastor, who in turn notified MK's mother.
It took several weeks for MK's mother to do anything, but
eventually she took MK to see a nurse practitioner, Jennifer
Davis. At the time of Nurse Davis' examination, MK was
nine years old. Nurse Davis examined MK and noted that
MK's vaginal opening was abnormally large for a child of
that age. Nurse Davis also noticed possible abnormal
thickening of MK's vagina that could have been caused by
a laceration that had scarred. Based upon her findings, Nurse
Davis referred MK to Carrie Kassahn, a sexual assault nurse
Nurse Kassahn noted a similar area of thickening when she
examined MK, and she documented potential vaginal
irregularities with several photographs. She noted a
thickening near MK's hymen that would be uncommon for a
girl of her age. After the examination, the matter was
referred to law enforcement for investigation.
Appellant was initially charged with and convicted of four
counts of first-degree sexual abuse of a minor. However, that
conviction was vacated, and a new trial was ordered pursuant
to W.R.A.P. 21, because Appellant's trial counsel was
found to be ineffective for medical reasons.
The State amended the charges it pursued in the second trial,
asserting three counts of first-degree sexual abuse of a
minor, and one count of second-degree sexual abuse of a
minor. The statutes setting forth these offenses state in
§ 6-2-314. Sexual abuse of a minor in the first
(a) An actor commits the crime of sexual abuse of a minor in
the first degree if:
(i) Being sixteen (16) years of age or older, the actor
inflicts sexual intrusion on a victim who is less than
thirteen (13) years of age[.]
§ 6-2-315. Sexual abuse of a minor in the second
(a) Except under circumstance constituting sexual abuse of a
minor in the first degree as defined by W.S. 6-2-314, an
actor commits the crime of sexual abuse of a minor in the
second degree if: . . .
(ii) Being sixteen (16) years of age or older, the actor
engages in sexual contact of a victim who is less than
thirteen (13) years of age[.]
Wyo. Stat. Ann. §§ 6-2-314(a)(i) &
6-2-315(a)(ii) (LexisNexis 2017).
The obvious distinction between the two offenses is that
first-degree sexual abuse requires intrusion, whereas
second-degree sexual abuse requires sexual contact. These
terms are defined by statute, but do not require further
elaboration here. See Wyo. Stat. Ann. §
6-2-301(a)(vi) and (vii) (LexisNexis 2017).
The case proceeded to retrial, and a jury found Appellant
guilty of all counts. Appellant then filed a motion for new
trial under W.R.Cr.P. 33, alleging a number of errors during
the second trial. The district court denied the motion. It
then sentenced Appellant to not less than ten nor more than
fifteen years on the second-degree sexual abuse conviction,
and not less than thirty nor more than forty-five years on
each of the three first-degree sexual abuse convictions. The
sentences for the first-degree convictions are to be served
concurrently, and the sentence for the second-degree
conviction will be consecutive to the first-degree
convictions and suspended in favor of ten years of probation.
This appeal timely followed sentencing.
the district court abuse its discretion by denying
Appellant's motion for new trial?
Appellant argues that the district court wrongly denied his
motion for a new trial for five separate reasons. In that
motion, he claimed the following errors: (1) admitting two
photographs of MK's vagina into evidence and allowing the
State to show the photographs to the jury: (2) prohibiting
the defense from eliciting testimony concerning allegations
of sexual abuse MK is claimed to have made against
Appellant's son; (3) prohibiting the defense from playing
the entire recording of Appellant's interview with law
enforcement; (4) introducing improper opinion testimony
through Nurse Practitioner Davis; and (5) the
prosecutor's reference to that testimony in closing
[¶14] In criminal cases, new trials are permitted if
"required in the interest of justice." Emerson
v. State, 2016 WY 44, ¶ 11, 371 P.3d 150, 153 (Wyo.
2016) (quoting W.R.Cr.P. 33(a)). A district court's
decision to grant or deny a motion for a new trial is
reviewed for an abuse of discretion. Id.;
Willoughby v. State, 2011 WY 92, ¶ 8, 253 P.3d
157, 161 (Wyo. 2011). This Court has often explained that a
district court abuses its discretion when it could not have
reasonably concluded as it did. Emerson, ¶ 11,
371 P.3d at 153. Thus, our primary focus is on the
reasonableness of the choice the trial court made.
Id. "If the trial court could reasonably
conclude as it did and the ruling is one based on sound
judgment with regard to what is right under the
circumstances, it will not be disturbed absent a showing that
some facet of the ruling is arbitrary or capricious."
Id. (citations omitted).
Appellant first contends that the district court abused its
discretion in denying his motion for a new trial because it
admitted two photographs depicting MK's vagina and
allowed the State to display them prominently to the jury.
The photos were taken by Nurse Kassahn during her sexual
assault examinations of MK. Appellant objected to the
introduction of these photos, arguing (as he does on appeal)
that they were irrelevant and prejudicial, and that they
should not therefore have been received under W.R.E. 401
through 403. The State asserted that the photos showed
evidence that MK suffered vaginal intrusion, an element of
three of the charges. The district court overruled the
objection and received the photographs.
The State utilized the photos during the testimony of Nurse
Davis and Nurse Kassahn to explain a perceived abnormality
with MK's vagina. Both nurses testified that an area on
the lower left side of MK's hymen caused some concern,
and that the pictures depicted an irregularity. Appellant