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Moser v. State

Supreme Court of Wyoming

February 7, 2018

JONATHON KENT MOSER, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson; Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne Martens, Senior Assistant Attorney General; and Katherine A. Adams, Assistant Attorney General. Argument by Ms. Adams.

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

          HILL, JUSTICE.

         [¶1] Following a jury trial, Jonathon Moser was convicted of three counts of second degree sexual assault of a minor and one count of first degree sexual assault of a minor. Mr. Moser claims the district court abused its discretion in admitting other acts evidence under W.R.E. 404(b) and in applying the rape shield statute to limit cross-examination of one of the victims. We affirm.


         [¶2] Mr. Moser presents two issues on appeal, which he states as follows:

I. Did the trial court abuse its discretion by allowing the testimony of P.S., J.G., K.J., and A.R. in violation of Rule 404(b)?
II. Did the trial court abuse its discretion by prohibiting Mr. Moser from cross-examining A.C. on her prior experience as a complaining victim?


         [¶3] In 2014, the Rawlins Middle School in Rawlins, Wyoming hired Jonathon Moser as a 7th grade special education teacher for the 2014-2015 school year. In that capacity he was assigned any 7th grade student who had been placed on an individual education program (IEP). Mr. Moser also had volunteer duties, which are extra duties assigned on a volunteer basis and for which a teacher does not receive any additional compensation. Mr. Moser's volunteer duties were assisting with the middle school volleyball program and supervising the tardy detention program.[1]

         [¶4] During the 2014-2015 school year, AC was in the 8th grade at the Rawlins Middle School. She was thirteen years old when the school year began and turned fourteen in October 2014. AC was also on a diversion program, which is a program "where juveniles who are getting in trouble for the first time with law enforcement have an opportunity to do a precourt and an unofficial probation." AC was on the program for a shoplifting charge and was required through the program to meet with a diversion and probation officer.

          [¶5] In February 2015, during a meeting with her probation officer, AC disclosed that on an occasion when she was serving a tardy detention under Mr. Moser's supervision, he required her to sit next to him at his desk and he rubbed her leg and tried to hold her hand. AC described what happened on that occasion with Mr. Moser:

Q. And can you describe for the jury exactly what he was doing with his hand on your leg? When you say "rubbing, " you've got to describe it in detail.
A. I don't know. He was-just, like, had his hand rubbing up and down my leg.
* * *
Q. Where were your hands at, [AC]?
A. In my lap.
Q. And at any point, did Mr. Moser try to touch your hands?
A. Yes.
Q. And can you tell me about that?
A. My hands were, like, folded in my lap, like how they always are. And he would, like, put his hand on top of mine, like that, and would try holding it, but I pulled away.
Q. What did you do when he was touching your leg?
A. I started to, like, move away.
Q. Did he say anything to you as you moved away from him?
A. He told me that - like, as I was moving away, that if I moved, I was going to get another day of detention.
Q. Did you get assigned another day of detention?
A. Yes.

         [¶6] In response to the report from AC, AC's probation officer, who was herself a deputy sheriff, contacted the Carbon County Sheriff's Office. Sheriff's Deputy Tom Lakia responded to that call and spoke with AC and her father and then interviewed AC. Following his interview of AC, Deputy Lakia interviewed several other students identified by AC as possibly having additional information. Through those additional interviews, Deputy Lakia "learned just a little bit of further inappropriate touching with at least two more students, " but none of the interviews revealed touching of genitalia. The touching that was reported involved students who served detentions, participated in volleyball, or both.

         [¶7] Deputy Lakia prepared a report on his findings, and after discussions with school officials and the county attorney's office, the decision was made that there was insufficient evidence to pursue criminal charges against Mr. Moser. It is not clear from the record whether Mr. Moser's 2014-2015 contract with the Rawlins Middle School was terminated or he was placed on administrative leave for the remainder of his contract, but he did leave the school following the investigation into the allegations of inappropriate touching.

         [¶8] In the spring of 2015, the Glenrock High School in Glenrock, Wyoming hired Mr. Moser to fill a special education position which placed him in charge of two severely disabled students. Mr. Moser's duties also included assisting the school's other two special education teachers as needed and essentially working as a team in the special education department. Mr. Moser and the high school's principal, Chris Gray, discussed the possibility of Mr. Moser serving as an assistant freshman volleyball coach, but they never got beyond discussing the idea.

         [¶9] In January 2016, Principal Gray was visited by JB, a student in the high school's 9th grade, along with her mother and grandmother. JB reported that on the prior Friday, she attended a session of Academic Plus for one of her classes.[2] JB reported that her teacher was in and out of the room during the session and on one occasion when her teacher was out of the room, Mr. Moser entered the room, started rubbing her shoulders, and told her when she was done she could come to his classroom. When JB completed her Academic Plus session, she left the room and headed to her locker, which required that she pass Mr. Moser's room.

         [¶10] JB reported that when she passed Mr. Moser's room, he was seated in the entry alcove reading a book and he stood up and said "hi" to JB. He then started kissing her and pulled her into his classroom and pressed her against a countertop in the room. Mr. Moser "started to dry hump" JB and touched her breasts and vagina above her clothing. JB described what happened next:

Q. How long did this go on for?
A. I don't know. A couple of minutes.
Q. Were you and Mr. Moser - were you talking at all during this time?
A. No.
Q. Did you say anything to him as this happened?
A. I just told him that I needed to leave because my mom was downstairs waiting for me.
Q. Was your mom downstairs waiting for you?
A. No. My brother was downstairs waiting for me.
Q. Why did you say your mom was downstairs waiting?
A. I don't know.
Q. Did Mr. Moser say anything back to you?
A. He asked me if there was anything he could do to make me stay.
Q. What did you tell him?
A. I told him, no, that I needed to leave.
Q. Did you leave at that time?
A. Yes.
Q. Where did you go?
A. I went downstairs and I got in the truck with my brother and went home.
Q. [JB], did you tell anyone right away?
A. No.
Q. Why not?
A. Because I was scared.
Q. What were you scared of?
A. I don't know.
Q. When did you tell someone?
A. The Monday after it happened.
Q. Can you explain to us how that came about that you told someone?
A. I saw him in his classroom before - or, like, right when school started, and he just waved at me. And I just had a mental breakdown, and I went to the bathroom and I called my mom and told her she needed to come get me.

         [¶11] Principal Gray reported the incident to law enforcement, and Officer Felton of the Glenrock Police Department responded to the call. During the course of his investigation, Officer Felton located two additional students with similar reports, and he also learned of the earlier Rawlins Middle School investigation. Officer Felton contacted Deputy Lakia in January 2016 to discuss the Rawlins investigation, and Deputy Lakia decided to re-interview the Rawlins witnesses.

         [¶12] Officer Felton and a deputy from the Converse County Sheriff's Office, Deputy Koss, traveled to Rawlins, and together with Deputy Lakia they re-interviewed the Rawlins witnesses. During their first interview of AC, which occurred in January 2016, AC reported the same incident of touching she had reported in her 2015 interview. In a subsequent interview about a week and a half to two weeks later, in February 2016, AC reported an additional incident in which Mr. Moser forced her to have sexual intercourse. AC described that incident:

Q. Okay. So let's talk about the third time you get called down. Did you get called to the office?
A. Yes.
Q. Did you have to go serve detention with Mr. Moser?
A. Yes.
Q. Were there any other kids that day?
A. They called a couple, but no one else showed up.
Q. Did you end up going to Mr. Moser's room for detention?
A. Yes.
Q. Where did you go when you got to the room?
A. To where I normally sat, on the side of the tables, on the right side.
Q. And was the door to the classroom open or closed that day?
A. That day, it was completely closed.
Q. The other days that you served detention, was the classroom door open or closed?
A. It was a little bit open, propped open by a doorstop.
Q. On both of the other days?
A. Yes.
Q. Where did Mr. Moser sit when you got to detention?
A. He grabbed his papers and came over and sat - like, becausethere's separate tables - he sat at this one, and I was at this ...

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