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Larkins v. State

Supreme Court of Wyoming

October 26, 2018

DENNIS LARKINS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff). EMILY LARKINS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

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

         Representing Appellant Dennis Larkins in Case Nos. S-17-0132, S-17-0133, S-18-0060, S-18-0061:

          Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Christopher G. Humphrey, Assistant Appellate Counsel. Argument by Mr. Humphrey.

         Representing Appellant Emily Larkins in Case Nos. S-17-0134, S-18-0059:

          Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

         Representing Appellee State of Wyoming:

          Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Samuel L. Williams, Assistant Attorney General. Argument by Mr. Williams.

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

          FOX, Justice.

         [¶1] A jury convicted Dennis Larkins and Emily Larkins of multiple counts of child abuse and one count of abuse of a vulnerable adult. On appeal, they contend that the evidence was insufficient as to some of the counts, that the district court erred when it denied their motion for new trial based on ineffective assistance of counsel, and that the prosecutor committed misconduct during closing argument which warrants reversal. Finding no reversible error, we affirm.

         ISSUES

         [¶2] Mr. Larkins and Mrs. Larkins raise three interrelated issues on appeal, which we rephrase:

1. Did the State present sufficient evidence:
a. that Mr. Larkins caused physical injury to J.K. and J.T.?
b. that Mr. Larkins and Mrs. Larkins caused mental injury to J.T. and M.D.T.?
c. that Jesus Manzanares was a vulnerable adult?
2. Did the district court err when it denied the Larkins' Rule 21 motions for a new trial?
3. Did the prosecutor commit misconduct during closing argument which requires reversal?

         FACTS

         I. Trial Proceedings and Relevant Testimony

         [¶3] Jesus Manzanares, M.D.T., J.T., and M.M.T. are the biological children of Mrs. Larkins' sister, Laura Trujillo, who lives in Colorado. Authorities in Colorado removed the minor children from Ms. Trujillo and placed them with Mrs. Larkins (M.D.T. in 1998; M.M.T. and J.T. in 2007). Jesus Manzanares moved in with the Larkins in 2011. He turned 18 on January 25, 2012. Another child, J.K., and his mother, lived with the Larkins for approximately six months in 2010 and 2011.[1]

         A. The Mental and Physical Injuries to J.T.

         [¶4] When they lived on 10th Street, Mr. Larkins and Mrs. Larkins would punish J.T. by requiring him to hold onto the washer and dryer while Mr. Larkins and Mrs. Larkins spanked him. They would either use a "brown belt or the black belt." Mrs. Larkins would use both belts to spank J.T., while Mr. Larkins would "sometimes" use the black belt. When Mr. Larkins and Mrs. Larkins used the belts to spank J.T., it would leave bruises on J.T.'s bottom, back, and legs.

         [¶5] Occasionally, Mrs. Larkins would wet the belt with water before hitting J.T. with it. Mrs. Larkins would also wrap the belt around J.T.'s neck and lift him off the ground by the belt. Mrs. Larkins would tighten the belt around J.T.'s neck so that he could not breathe or talk, leaving red marks on J.T.'s neck. At other times, both Mr. Larkins and Mrs. Larkins would hit J.T. with a wooden backscratcher as punishment. As with the belts, the backscratcher would cause "dark bruises" on J.T.'s bottom and legs. In addition to the beatings, both Mr. Larkins and Mrs. Larkins would tell J.T. that they "didn't want to see his face again, that he was worthless, and that he wasn't part of the family."

         [¶6] In late April 2015, M.D.T. showed her school psychologist some pictures of bruises on J.T.'s bottom that Mrs. Larkins had inflicted with a belt the day before, at the 10th Street address. The psychologist reported the abuse to authorities.

         [¶7] Jennifer Stowers, J.T.'s counselor, began seeing him in September 2015 after he was removed from the Larkins' home. As part of her examination, Ms. Stowers was "made aware that there was some past trauma in his history," which included "physical abuse." J.T. talked with her about "getting hit with a belt . . . [and] being yelled at." Ms. Stowers diagnosed J.T. with post-traumatic stress disorder (PTSD), based on J.T.'s "hypervigilance," "hyperalertness," and "dissociation." This caused J.T. to have "tantrums" where "he would go into his room [at the foster home] and . . . start yelling out things, like he wasn't feeling like he was loved and stuff like that." The PTSD also caused J.T. to have a "diminished interest in participation in significant activities." During their sessions, J.T. would "emotionally almost shut down" when Ms. Stowers would try to discuss the abuse. During one session, J.T. became upset because a mask he saw in the office's playroom looked like Mr. Larkins. Ms. Stowers testified that, notwithstanding J.T.'s PTSD, he generally "functions normally," but that he was "emotionally . . . very flat," and "not very good at expressing his emotions."

         B. The Mental Injuries to M.D.T.

         [¶8] M.D.T. testified about witnessing Mr. Larkins and Mrs. Larkins physically abuse her younger siblings and Jesus. Most of the beatings M.D.T. witnessed occurred at the 10th Street address. She recalled how they would beat J.T. on "almost . . . a daily basis." She watched Mrs. Larkins use a wet belt to whip J.T., and saw her use a belt to choke J.T. She witnessed both Mr. Larkins and Mrs. Larkins beat J.T. with the wooden backscratcher. M.D.T. saw the bruises and welts these beatings left on J.T.'s bottom and lower back. She remembered one occasion when she watched Mr. Larkins beat J.T. with the backscratcher as J.T. screamed for help. She characterized these episodes as "very traumatizing." On one occasion, at the Merritt Road house, M.D.T. tried to intervene while Mrs. Larkins was choking J.T. with the belt, but Mrs. Larkins pushed M.D.T. into a wall.

         [¶9] At the West Winds address, M.D.T. also watched the Larkins spank her younger sister, M.M.T., and later saw the bruises the beatings left on M.M.T. She also saw Mr. Larkins, at the West Winds address, whip J.K. with a belt while he called for help, leaving marks and bruises on J.K.'s back and behind his ear.

         [¶10] M.D.T. testified that once Mrs. Larkins choked her with her hand. Both Mr. and Mrs. Larkins would also call her "stupid" and "fat." These verbal attacks made her feel "lonely," "worthless," and "alone" to the point that she wanted to die. M.D.T. lived with these feelings every day. Sometimes she would cope by cutting herself or making herself throw up. Despite the abuse she witnessed, M.D.T. was reluctant to tell anyone for fear of losing the only family she had known.

         [¶11] After M.D.T. was removed from the Larkins' home, she lived at the Cathedral Home in Laramie. Stacey Scholl, the therapist at Cathedral Home, diagnosed M.D.T. with PTSD, depression, anxiety, and substance abuse. Ms. Scholl relied on the reports of the abuse M.D.T. witnessed to diagnose her with PTSD. Because of her mental illnesses, M.D.T. had a difficult time "processing her emotions[, ] . . . connecting with others, . . . [and] function[ing] at times within her [social environment]."

         C. The Abuse of Jesus Manzanares

         [¶12] Jesus was born with spina bifida and hydrocephalus. He has a hole in his spine and water on his brain. When he was younger, he had to have his right foot amputated. He has a shunt from his brain to his stomach and uses a wheelchair to get around. He also suffers from anxiety and attention deficit hyperactivity disorder (ADHD).

         [¶13] In approximately 2011, when he was 17 years old, Jesus went to live with the Larkins in Cheyenne. Because of his disabilities, when Jesus would have particularly bad bowel movements, he would need help cleaning up, but did not ask Mr. Larkins or Mrs. Larkins for help because he "already knew what [the] answer was going to be." Jesus' grandmother testified that Jesus "has a hard time . . . doing things for himself."

         [¶14] M.D.T. testified that she would help Jesus clean himself. The Larkins, however, refused to help Jesus clean himself. Instead, they would get "extremely angry" at Jesus and call him "worthless" and "crippled." While in the basement at the Merritt Road house, M.D.T. saw Mrs. Larkins pull Jesus out of his wheelchair and beat him with her hands. Later that day, after Mr. Larkins returned home, he told Jesus that he was "worthless."

         [¶15] On another occasion in the basement, Mrs. Larkins pushed Jesus to the ground for having a bowel movement on the couch. Jesus had another bowel movement in the garage and Mr. Larkins and Mrs. Larkins made him wash his clothes in the garage sink by hand without any gloves, while they berated him and told him that he was "sickening." Mr. Larkins also "knocked" him on his head because of his occasional incontinence.

         D. The Physical Abuse of J.K.

         [¶16] J.K. and his mother lived with the Larkins at the West Winds address for approximately six months in 2010 and 2011. J.K.'s mother gave Mr. Larkins permission to discipline J.K. while she was at work. Mr. Larkins obliged and would punish J.K. for not doing his chores or for being disrespectful to Mrs. Larkins. As punishment, Mr. Larkins would require J.K. to get in the "front-lean rest position," a push-up position J.K. was required to hold with his arms extended until Mr. Larkins allowed him to stop.

         [¶17] In January 2011, while being punished this way, J.K. could not hold the position because of an unrelated shoulder injury. As further punishment, Mr. Larkins used a belt to whip J.K. on his back and punched him on the side of the head. The belt left bruises on J.K.'s back and Mr. Larkins' hand left a mark on the side of J.K.'s head. The next day at school, J.K. reported the abuse to the school nurse and to Deputy Michael Poteet of the Laramie County Sheriff's Office. Deputy Poteet took pictures of J.K.'s injuries. Mr. Larkins was arrested shortly after, but the Laramie County District Attorney's Office dismissed the charges for insufficient evidence. The State refiled this charge against Mr. Larkins after the other children came forward with their accounts of abuse in the home.

         E. The Recordings of Mr. Larkins' and Mrs. Larkins' Interviews with Detective Johnson

         [¶18] Detective Zach Johnson of the Cheyenne Police Department interviewed separately Mrs. Larkins and Mr. Larkins during his investigation of the abuse allegations. Those interviews were played, without objection, to the jury. Mr. Larkins' interview, conducted at the Cheyenne Police Department, was a video recording, while Mrs. Larkins' interview was conducted at her home and was an audio recording.[2]

         [¶19] The State played Mr. Larkins' interview first. In it, Detective Johnson repeatedly asked Mr. Larkins if he thought the children were lying. Mr. Larkins said that he did. He also told Detective Johnson, "Have I thought of beating their a** until bloody? Yes, I have. . . . Have I? No." When the conversation turned to the phrase "reasonable corporal punishment," Detective Johnson told Mr. Larkins that it meant "legal punishment," "physical, spanking, things like that," to which Mr. Larkins responded: "We'll beat their a**, yeah . . . . We'll spank their a**, we'll beat their a**, yeah." Mr. Larkins clarified, however, that he meant only with their hands.

         [¶20] During the interview, Detective Johnson stated that "I don't have a dog in this fight," and that he was only "the finder of fact." He also stated that he did not "want to have to tell [the people he has to report to] . . . we have this evidence, but [Mr. Larkins] and [Mrs. Larkins] said no, that never happened." At the end of the interview, when Detective Johnson discussed the backscratcher and some earlier statements Mr. Larkins had made regarding the backscratcher, Mr. Larkins stated, "We have a lawyer for that," and ended the interview.

         [¶21] In both interviews, Detective Johnson discussed how all the children were forensically interviewed. He asserted that:

I'm also trained in forensic interview[s]. I didn't do these forensic interviews . . . but I'm actually trained in them too. And you can tell when the kids have been coached as opposed to when they actually have contextual details [inaudible] to things that have happened, because they'll be able to say, yes, this happened but they won't be able to describe it. They won't be able to give things around it. So there's no signs of coaching or anything like that. So that's why -- they're credible statements from the children.
There's 20 some thousand research articles by psychiatrists and people like that, people way smarter than I'll ever be, that research forensic interviewing of children that actually show forensic interview of a child is more credible than a statement from you or me as an adult because of how the information is gathered.[3]

         [¶22] In addition, during her interview, Mrs. Larkins referenced "the whole civil stuff with the DA's office" and that she had a separate attorney for that matter. Towards the middle of the interview, Mrs. Larkins also stated, "this is where I'd like my lawyer." However, she then immediately told Detective Johnson that they could keep talking, and the interview continued.

         [¶23] After the State played Mr. Larkins' interview, and while it was playing Mrs. Larkins' interview, the district court, outside the presence of the jury, voiced its concerns about some of the statements contained in the interviews. The court observed that, in both interviews, Detective Johnson appeared to be vouching for the children's credibility, and that, in Mr. Larkins' interview, the jury heard him request counsel and "invoke[] . . . his right to remain silent." Both Mr. Larkins' and Mrs. Larkins' counsel told the court that they had reviewed the recordings, identified those issues, and had decided that they would not object to playing the recordings. Mr. Larkins' counsel stated that she "thought there were a lot of good things that came out for us on that video." Similarly, Mrs. Larkins' counsel told the court that she wanted the recording played because it helped establish that Mrs. Larkins' defense-that these incidents did not happen-had been consistent from the beginning.

         [¶24] The district court then asked each defense counsel if they wished to have the court issue a limiting instruction about some of the objectionable material in the recordings. Neither counsel requested a limiting instruction because they did not want to draw further attention to the objectionable material.

         F. The Charges

         [¶25] In fall 2015, after M.D.T. had reported the abuse of J.T. in late April 2015, the State charged Mr. Larkins with one count of causing physical injury to J.K, in Docket No. 32-780. Then, in Docket No. 32-782, the State charged Mr. Larkins with two counts of physical injury to J.T., one count of mental injury to J.T., one count of physical injury to M.M.T., one count of mental injury to M.M.T., one count of mental injury to M.D.T, and one count of abuse of a vulnerable adult regarding Jesus.[4] In Docket No. 32-781, the State charged Mrs. Larkins with three counts of physical injury to J.T., one count of mental injury to J.T., one count of physical injury to M.M.T., one count of mental injury to M.M.T., one count of mental injury to M.D.T., and one count of abuse of a vulnerable adult.

         [¶26] The State moved, without objection, to join all three dockets for trial. The district court granted the State's motion, all three dockets were joined, and they proceeded to trial together. Towards the close of the evidence at trial, with no objection, the State moved to amend the Information to clarify the specific acts that it alleged constituted the physical injury to J.T. The district court granted the request. Thus, the charges, as they were submitted to the jury, other than those regarding M.M.T., [5] were:

J.T.
Mr. Larkins: two counts of physical injury caused between January 1, 2014 and December 31, 2014: with the black belt and with the backscratcher.
Mrs. Larkins: three counts of physical injury: one with the belt and one of choking him with the belt between January 1, 2014 and December 31, 2014; and one unspecified count for injuries inflicted on April 19, 2015.
Both: one count of mental injury caused between January 1, 2014 and April 30, 2015.
J.K.
Mr. Larkins: one count of physical injury caused on January 13, 2011.
M.D.T.
Both: one count of mental injury caused between January 1, 2014 and April 30, 2015.
Jesus
Both: one count of abuse of a vulnerable adult caused between January 1, 2014 and December 31, 2014.

         Additional information regarding the charges and testimony relevant to these charges is discussed below.

         G. Verdict and Sentence

         [¶27] The jury convicted Mr. Larkins of two counts of physical abuse of J.T., one count of mental abuse of J.T., one count of mental abuse of M.D.T., one count of abuse of a vulnerable adult, and one count of physical abuse of J.K. The jury convicted Mrs. Larkins of three counts of physical abuse of J.T., one count of mental abuse of J.T., one count of mental abuse of M.D.T., and one count of abuse of a vulnerable adult. The district court sentenced Mr. Larkins to between three and five years in prison on each count. It ordered three counts to run concurrently, and ordered the remainder to also run concurrently, but suspended the remainder in favor of five years of probation to start after he served his imposed sentence. Thus, Mr. Larkins received an imposed sentence of three to five years in prison, with a consecutive term of probation for five years. The district court sentenced Mrs. Larkins to three concurrent sentences of between 18 and 36 months in prison, and three concurrent sentences of three to five years in prison. The former sentences were imposed, while the latter were suspended in favor of five years of probation.

         [¶28] Both Larkins timely appealed the district court's judgments and sentences.

         II. Rule ...


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