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Carrier v. State

Supreme Court of Wyoming

August 1, 2017

BILLY M. CARRIER, JR., Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Laramie County The Honorable Steven K. Sharpe, Judge

         Representing Appellant:

          Office of the State Public Defender: Diane 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; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] 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 affirm.

         ISSUES

         [¶2] 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 convictions?

         FACTS

         [¶3] Appellant is the step-grandfather of MK, a girl who was around five years old when she was first sexually abused.[1] 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.

         [¶4] 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.

         [¶5] 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 vaginally.

          [¶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.

         [¶7] 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 examiner.[2]

         [¶8] 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.

         [¶9] 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.

         [¶10] 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 pertinent part:

§ 6-2-314. Sexual abuse of a minor in the first degree; penalties.
(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 degree; penalties.
(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).

         [¶11] 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).

         [¶12] 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.

         DISCUSSION

         Did the district court abuse its discretion by denying Appellant's motion for new trial?

         [¶13] 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 argument.

          [¶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).

         Admission of Photographs

         [¶15] 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.

         [¶16] 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 points ...


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