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Dumas v. State

Supreme Court of Wyoming

October 24, 2018

DARREN LEON DUMAS, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal 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.

          Before DAVIS, C.J., and BURKE [*], [†] FOX, KAUTZ and BOOMGAARDEN, JJ.

          BURKE, Justice.

         [¶1] 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.


         [¶2] 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?


         [¶3] 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, they married.

         [¶4] 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."

         [¶5] The next day, Ms. Dumas reached out to the Hope Agency, [1] and 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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[2] 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.

         [¶9] 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.


         [¶10] 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)).


         I. Victim Impact Evidence

         [¶11] 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 car.

         [¶12] 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 the State.

         [¶13] "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 ...

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