from the District Court of Hot Springs County The Honorable
Robert E. Skar, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Kirk A. Morgan,
Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Van E. Snow,
Assistant Attorney General. Argument by Mr. Snow.
DAVIS, C.J., and BURKE [*], [†] FOX, KAUTZ and
Darren Dumas challenges his convictions for strangulation of
a household member and domestic battery. He claims the
district court erred in admitting victim impact evidence, an
opinion as to his guilt, and evidence vouching for the
credibility of the victim. We conclude that Mr. Dumas has
failed to demonstrate plain error, and we affirm.
Mr. Dumas presents a single issue which we will address as
three separate issues:
1. Did the district court commit plain error in allowing the
State to present improper victim impact testimony?
2. Did the district court commit plain error in allowing a
witness to express an opinion that Mr. Dumas was guilty?
3. Did the district court commit plain error in permitting a
witness to vouch for the credibility of the victim?
Ms. Dumas and Mr. Dumas met when they were neighbors in
Evansville, Wyoming, in 2012. They developed a friendly
relationship. They maintained contact after Ms. Dumas moved
to Alabama in 2014, and their friendship developed into a
relationship that was as "romantic as it could be for
long distance." They decided Ms. Dumas would move back
to Wyoming so they "could make a go of it." She
returned to Wyoming in July of 2015, and moved in with Mr.
Dumas at his home in Thermopolis, Wyoming. Nine days later,
The relationship soon soured, and by June of 2016,
"[t]here was a lot more bickering, arguing, [and they]
didn't really see eye to eye on a lot of things."
One source of friction was a group of friends who stayed at
their home as roommates for a time. Mr. Dumas claimed that
when the roommates moved out, they stole "stuff"
from him. On Friday, September 23, 2016, Mr. Dumas accused
Ms. Dumas of cheating, lying, "and being in
cahoots" with the former roommates. She tried to show
him messages on her tablet computer to refute his claims. Mr.
Dumas took the tablet and "smashed it" on Ms.
Dumas's head and "shattered the screen." She
then tried to show him messages from her cell phone, but he
"smashed" that on the dresser. When the two
continued to argue, Mr. Dumas grabbed her by the throat and
pushed her up against the wall. She found it hard to breathe,
and "saw stars briefly."
The next day, Ms. Dumas reached out to the Hope Agency,
employees there arranged a place for her to stay. Before she
left home, however, she wrote two letters to Mr. Dumas saying
that she still loved him, did not want to get divorced, and
would do whatever she had to do to make the marriage work.
She left one letter in the kitchen and the other in their
bedroom. She did not report the previous day's incident
to law enforcement.
On Monday, September 26, 2016, Ms. Dumas returned to the
house to collect some of her belongings, believing that Mr.
Dumas would not be there. However, at around six o'clock
in the evening, Mr. Dumas arrived home with his stepmother
and her three grandchildren. Ms. Dumas went outside to talk
to him, but "of course it escalated into an
argument." She testified that, when they went into the
house, he pushed her up against a cabinet, then grabbed her
wrist with both of his hands and twisted her skin in opposite
directions. Mr. Dumas insisted that Ms. Dumas had to babysit
the grandchildren. They moved into the bedroom to avoid
fighting in front of the children, and she told him she did
not want to babysit. He grabbed her hair, hit her, and
"cupped" her ears.
Ms. Dumas stayed with the children when Mr. Dumas and his
stepmother left. Mr. Dumas returned after about thirty-five
minutes. Ms. Dumas suggested that she would leave since he
was there to watch the children, but he insisted that she
stay to care for the children because he was going to bed.
The argument escalated, and Mr. Dumas struck her in the face,
told her he did not want to talk with her, that their
relationship was over, and he did not want anything to do
with her. When she tried to "hug him goodbye," he
pushed her away, then grabbed her by the throat. According to
Ms. Dumas, "He squeezed, told me it was over, told me to
leave him alone, and it apparently sunk in, because I left
that time. And like I said, that was the last time I saw
him." Ms. Dumas testified that it was difficult to
breathe while his hands were on her, and that it was
"like being trapped underwater gasping for air."
She had difficulty swallowing for about a month.
The next morning, Ms. Dumas went to the Hope Agency to report
what had happened. Agency staff called the Thermopolis
police, and Officer Bobbi Zupan was dispatched to the Hope
Agency. The officer observed redness and bruising on Ms.
Dumas's face and arms, and because Ms. Dumas reported
being choked or strangled, the officer advised her to go to
the emergency room for a medical examination. The hospital
nurse observed Ms. Dumas's injuries, including
petechiae on her neck. The doctor noted that Ms.
Dumas appeared to have three recent injuries: a bruise on her
upper left arm, a bruise on her left forearm, and swelling
behind the ear.
Mr. Dumas was arrested and charged with one count of
strangulation of a household member in violation of Wyo.
Stat. Ann. § 6-2-509(a)(i) (LexisNexis 2015) and one
count of domestic battery in violation of Wyo. Stat. Ann.
§ 6-2-511(a). He was found guilty on both counts and
sentenced to a prison term of two to five years for the
strangulation and a concurrent jail term of 180 days for
domestic battery. Mr. Dumas then filed this appeal.
Mr. Dumas did not object at trial to any of the evidence he
challenges on appeal. Accordingly, we review for plain error.
Carroll v. State, 2015 WY 87, ¶ 11, 352 P.3d
251, 254 (Wyo. 2015).
To establish plain error, the appellant must show 1) the
record clearly reflects the incident urged as error; 2) a
violation of a clear and unequivocal rule of law; and 3) that
he was materially prejudiced by the denial of a substantial
right. Causey v. State, 2009 WY 111, ¶ 18, 215
P.3d 287, 293 (Wyo. 2009).
Carroll, ¶ 11, 352 P.3d at 255 (quoting
Masias v. State, 2010 WY 81, ¶ 20, 233 P.3d
944, 950 (Wyo. 2010)).
Victim Impact Evidence
Mr. Dumas contends the State presented improper victim impact
evidence during the testimony of Janic Bartlow. Ms. Bartlow
was the last witness called by the State. She is an employee
of the Hope Agency. She testified in general about the Hope
Agency, the services it offers to victims of domestic
violence, and her duties there. She testified about her
interactions with Ms. Dumas and her observations of Ms. Dumas
on September 27th. She described Ms. Dumas as
"very distraught, crying." She observed bruises.
Ms. Dumas was "shaking." She took Ms. Dumas to the
hospital and, after Ms. Dumas had been examined and treated,
she drove her back to the Hope Agency. Ms. Bartlow also
testified as to the additional assistance that Hope Agency
provided to Ms. Dumas. It provided Ms. Dumas initial shelter
for three days and also paid the initial deposit and rent for
six months for an apartment that Ms. Dumas obtained in a
different town. The agency provided food for Ms. Dumas,
allowed her to take some clothing from the agency's
"emergency" supply, and filled the gas tank of her
Mr. Dumas contends that Ms. Bartlow's testimony about the
assistance provided by the Hope Agency after her return from
the hospital was "not of consequence to the
determination of whether Mr. Dumas assaulted his wife,"
and was therefore irrelevant and inadmissible. He claims that
this testimony "served only to inflame the passions of
the jury and constitute[d] impermissible victim impact
testimony." The State contends that the evidence was not
intended to inflame the passions of the jury and that Mr.
Dumas's trial strategy rendered the challenged testimony
relevant. Based upon our review of the record, we agree with
"Broadly speaking, victim impact evidence is that
evidence relating to the victim's personal
characteristics and to the physical, emotional, or social
impact of a crime on its victim and the victim's
family." Benjamin v. State, 2011 WY 147, ¶
56, 264 P.3d 1, 14 (Wyo. 2011) (quoting Sweet v.
State, 2010 WY 87, ¶ 41, 234 P.3d 1193, 1207 (Wyo.
2010)). See also Olsen v. State, 2003 WY 46, ¶
151, 67 P.3d 536, 592 (Wyo. 2003) (citing Payne v.
Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597, 2604, 115
L.Ed.2d 720 (1991)). When evidence of a crime's impact on
a victim "is absolutely irrelevant with respect to the
issues before the jury," and the only purpose must have
been to attempt to arouse the passions of the jury, then the
"admission of such evidence is error, and the trial
courts are cautioned not to permit such evidence to be
presented unless there is a clear justification of
relevance." Justice v. State, 775 P.2d 1002,
1010-11 (Wyo. 1989). We have recognized, however, that:
Victim impact testimony may or may not be admissible.
Thomas v. State, 2009 WY 92, ¶ 7, 211 P.3d 509,
511-12 (Wyo. 2009). "The key inquiry on the
admissibility of victim impact testimony during the guilt
phase of a criminal trial is relevancy." White v.
State, 2003 WY 163, ¶ 13, 80 P.3d 642, 649 (Wyo.
2003); Justice v. State, 775 P.2d 1002, 1011 (Wyo.
1989); McCone v. State, 866 P.2d 740, 751 (Wyo.
1993). "Such testimony may be irrelevant if offered . .
. as proof of the victim's loss; the physical, emotional,
or psychological impact on the ...