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Triplett v. State

Supreme Court of Wyoming

December 15, 2017

DESMOND OTTO TRIPLETT, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Natrona County The Honorable Catherine E. Wilking, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General; Philip Murphy Donoho, Assistant Attorney General. Argument by Mr. Donoho.

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

          KAUTZ, J.

         [¶1] A Natrona County jury found Desmond Otto Triplett guilty of one count of immodest, immoral or indecent liberties with a minor and three counts of second-degree sexual abuse of a minor. He appeals two issues. First, he argues that the indecent liberties charge was duplicitous in that it alleged a single charge based on a course of conduct occurring during a twenty-eight month period. He contends that the State should have identified a specific single act and date as the basis for its charge. Mr. Triplett next argues that the State committed prosecutorial misconduct by violating a pretrial order requiring notice to the trial court before inquiring into a specific area of facts.

         [¶2] We determine that Mr. Triplett waived any duplicity defects by failing to object as required by W.R.Cr.P. 12(b)(2). We further hold that the district court did not abuse its discretion in determining that a single question asked by the prosecution, while potentially in violation of the pretrial order, did not prejudice the defendant. Accordingly, we affirm.


         [¶3] Mr. Triplett presents the following issues:

1. Was Mr. Triplett denied his fundamental right to
a fair trial and a unanimous verdict by the duplicitous charges?
2. Was Mr. Triplett denied his right to a fair trial due to prosecutorial misconduct?

         The State identifies the same subject matters, but argues the issues to be decided within those areas are more specific. We restate the State's issues as:

1. Did Mr. Triplett waive any claim that the indecent liberties charge was duplicitous?
2. Did the prosecutor commit prosecutorial misconduct by asking a question on cross examination potentially in violation of a pretrial order?


         [¶4] The State charged Mr. Triplett with one count of taking immodest, immoral or indecent liberties with a minor, TP, during a time span from March 1, 1975 through June 31 (sic), [1] 1977. The district court read that charge to Mr. Triplett, and then asked, "do you understand the charge against you in Count One as well as the potential penalties, sir?" Mr. Triplett responded, "Yes, Ma'am." The State also charged Mr. Triplett with other crimes, including three counts of second degree sexual abuse of a minor, KW. The charges related to KW alleged conduct occurring in 2010 through 2013.

         [¶5] Mr. Triplett did not file an objection to any of the charges against him. He did not object to any jury instruction about the indecent liberties charge.

         [¶6] Before trial, the State filed notice of its intent to introduce evidence against Mr. Triplett under W.R.E. 404(b). Some of that evidence showed Mr. Triplett had engaged in additional sexual activity with the alleged victims, with his daughter, JB, and with his niece's sister, MD. The district court determined that some of the proposed evidence relating to other alleged victims was admissible. However, it ruled that evidence regarding JB (Mr. Triplett's daughter) and MD (Mr. Triplett's niece's sister) was inadmissible because "the times were not clear, and the places where those things may have occurred were not clear." The district court stated "that sort of information (about JB and MD) is not to come forward in any way, shape or form. If, during trial, you believe that somehow someone's opened the door on that or you believe it has somehow become admissible, counsel need to approach the bench, and we'll take up that matter outside of the jury's hearing."

         [¶7] At trial, the State presented evidence of many alleged sexual encounters between Mr. Triplett and TP which occurred between March 1, 1975 and the end of June 1977.[2]The State did not identify any single event as constituting the immodest, immoral or indecent liberties which were charged. Rather, in closing the prosecutor described the entire course of Mr. Triplett's relationship and sexual encounters with TP during the twenty-eight month period, and then simply told the jury "it's up to you to decide if it was immoral, indecent, immodest." The district court instructed the jury that the elements of the charge related to TP were only that during the twenty-eight month time frame Mr. Triplett "knowingly took immodest, immoral or indecent liberties with TP." The jury was not given any further specificity on which act, or acts, allegedly constituted the crime. The defense was in step with this non-specific course of conduct approach to the crime. In closing, Mr. Triplett's attorney told the jury to consider the totality of the circumstances and "look at when these things were occurring and just decide, you know, is he guilty of - of indecent, immoral acts - you know, that's a two-way street."

         [¶8] During the trial, Mr. Triplett called four character witnesses who testified that, in their opinion, Mr. Triplett had good character. Two of those witnesses were Mr. Triplett's daughters, and sisters of JB. The first of Mr. Triplett's daughters to testify, Ms. Wilson, provided the following testimony on direct examination by Mr. Triplett's counsel:

Q. And how do you know the defendant?
A. He's my father.
. . . .
Q. And do you have any children of your own?
A. I do.
Q. Okay. How ...

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