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Swett v. State

Supreme Court of Wyoming

December 21, 2018

ROBERT CLAYTON SWETT, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; James B. Peters, Assistant Attorney General.

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

          KAUTZ, JUSTICE.

         [¶1] A jury found Robert C. Swett guilty of aggravated child abuse. He claims the district court erred by allowing the State to present testimony about an altercation he had in jail while awaiting trial in this case. We conclude the district court abused its discretion by admitting the evidence; however, Mr. Swett was not prejudiced by the error. Consequently, we affirm.


         [¶2] Mr. Swett presents the following issue on appeal:

Did the trial court abuse its discretion by admitting evidence of subsequent bad acts contrary to W.R.E. 404(b) and irrelevant [evidence], contrary to W.R.E. 401?


         [¶3] On July 16, 2016, Kimberly Wegener (Kimberly) gave birth to a healthy baby boy (hereinafter referred to as "the Child"). Mr. Swett was the Child's father. The Child had difficulty gaining weight and, in September 2016, was hospitalized for failure to thrive. During his two-day hospital stay, the Child gained 12 ounces. This led his pediatrician to conclude the parents simply were not feeding the Child enough. The pediatrician, the nurses at the hospital, and a public health nurse worked with the parents to develop strategies to help the Child gain weight. The parents were taught how to hold the Child during feedings, the frequency with which he should be fed, and the amount he should be fed at each feeding. The parents were concerned about the Child spitting up but, although he had a minor reflux issue, the healthcare providers did not see it as an impediment to weight gain. Throughout the fall and winter of 2016, the Child was seen frequently for weight checks. The public health nurse even came to the family's home to help them with feeding issues. Despite those efforts, as of January 2017, the Child's weight was below the first percentile on the growth curve.

         [¶4] On January 13, 2017, Mr. Swett and Barbara Wegener (the Child's grandmother and Kimberly's mother) took the Child to the pediatrician's office. The Child had been vomiting, and he was cold, pale, and not as alert as normal. The Child had bruising on his forehead and redness and scratches on the top of his head. Mr. Swett told the nurse he had dropped the Child in the bathtub the night before, while rinsing him off after a vomiting incident. The pediatrician ordered a CT scan of the Child's head, which revealed a skull fracture and subdural hematoma.

         [¶5] Law enforcement was notified about the Child's injuries, and Sheridan Police Department Detective Daniel Keller went to the hospital to interview Mr. Swett and Kimberly. Mr. Swett told him that, the previous night, he was watching the Child while Kimberly slept. Mr. Swett said the Child had a history of vomiting and, after his 8:00 p.m. feeding, he "immediately threw up," "like a volcano or a fountain, just going all over." Mr. Swett took the Child to the bathroom and washed him off by holding him under the shower. He said he was holding the Child in his left arm "in a cradling fashion" with the shower running and he used his right arm to "reach over to a cabinet above the sink . . . and get some soap, and then wash the child over the tub." Mr. Swett then

described a series of quick events where essentially the child made some sort of turn and slipped from his arms into the tub. He described the child hitting face first in the tub. He described having a difficult time getting control of the child as the child was wet and slippery. He described the child, as he was trying to get control, essentially hitting his head on the side of the tub again or the drain and again falling on his butt before he gained control of him.

         Mr. Swett told the detective that he took the Child to the living room and noticed red marks on his forehead. The Child cried for about five minutes before Mr. Swett was able to calm him and put him to sleep. Mr. Swett said that, when he woke the Child the next morning to feed him, he noticed the red marks had turned dark purple.

         [¶6] The Child's injuries were serious, so he was life-flighted to Children's Hospital in Denver, Colorado, and Mr. Swett accompanied him. The Child stayed at Children's Hospital for several days, during which time he underwent numerous tests and his condition was monitored. A child protection team (CPT) became involved in the case to determine whether the Child's injuries were the result of accidental or non-accidental (abusive) trauma. After speaking with Mr. Swett, observing his behavior, and reviewing the results of various tests, the CPT determined the Child's injuries were the result of child abuse and took him into protective custody.

         [¶7] The State charged Mr. Swett with felony child abuse and later amended the charge to aggravated child abuse, under Wyo. Stat. Ann. § 6-2-503 (LexisNexis 2017):

(b) A person is guilty of child abuse, a felony punishable by imprisonment for not more than ten (10) years, if a person responsible for a child's welfare as defined in W.S. 14-3-202(a)(i) intentionally or recklessly inflicts upon a child under the age of eighteen (18) years:
(i) Physical injury as defined in W.S. 14-3-202(a)(ii)(B), excluding reasonable corporal punishment[.]
. . . .
(c) Aggravated child abuse is a felony punishable by imprisonment for not more than twenty-five (25) years if in the course of committing the crime of child abuse, as defined in subsection (a) or (b) of this section, the person intentionally or recklessly inflicts serious bodily injury upon the victim[.]

         [¶8] Pursuant to Wyoming Rule of Evidence 404(b), Mr. Swett filed a demand for disclosure of other crimes, wrongs, or acts the State intended to use as evidence at trial. The State gave notice that it intended to use evidence of Mr. Swett's acts of violence toward two former significant others and the children they shared with Mr. Swett, and a violent act he committed while in jail on the child abuse charge. The district court refused to allow testimony from Mr. Swett's former significant others but allowed testimony regarding the jail incident to show intent, lack of accident, and motive.

         [¶9] The case went to trial before a jury in September 2017. During the four-day trial, the State presented fifteen witnesses, including Kimberly, Barbara Wegener, the nurse who saw the Child at the pediatrician's office on January 13, 2017, the Sheridan Memorial Hospital radiologist who read the Child's CT scan, two nurses from the Sheridan hospital, the Child's pediatrician, a nurse from Children's Hospital, two social workers from Children's Hospital, Detective Keller, an expert pediatrician with specialized training in child abuse from Children's Hospital, and three witnesses regarding the jail incident.

         [¶10] The defense presented three witnesses, including the public health nurse who helped Mr. Swett and Kimberly with the Child's feeding and weight issues, an expert neurologist, and Mr. Swett. The district court instructed the jury that, in order to convict Mr. Swett of aggravated child abuse, it had to find that he intentionally inflicted serious bodily injury upon the Child, in addition to the other elements of the charge. The district court also instructed the jury on Mr. Swett's theory of defense: "It is the Defendant's theory of defense that the injuries to [the Child] were the result of unintentional acts." The jury returned a verdict of guilty. The district court sentenced Mr. Swett to 18 to 23 years in prison, and Mr. Swett filed a timely notice of appeal. More facts will be provided as necessary to our discussion of the issue on appeal.


         [¶11] By filing a pre-trial demand for notice of other bad acts evidence, Mr. Swett preserved his claim that the district court erred by admitting the evidence at trial. See Garrison v. State, 2018 WY 9, ¶ 12, 409 P.3d 1209, 1213 (Wyo. 2018). When an issue regarding the admissibility of evidence is presented to the district court, we review its decision for abuse of discretion. Triplett v. State, 2017 WY 148, ¶ 23, 406 P.3d 1257, 1262 (Wyo. 2017); Garland v. State, 2017 WY 102, ¶ 24, 401 P.3d 480, 487 (Wyo. 2017).

A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal. The appellant bears the burden of showing an abuse of discretion.

In re GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419 (Wyo. 2017) (quoting Wise v. Ludlow, 2015 WY 43, ¶ 42, 346 P.3d 1, 12 (Wyo. 2015)) (other citations omitted).

         [¶12] If we find the district court erred by admitting the evidence, we must then determine whether the error was prejudicial, requiring reversal, or whether the error was harmless. Foster v. State, 2010 WY 8, ¶ 4, 224 P.3d 1, 4 (Wyo. 2010); W.R.Cr.P. 52. An error is deemed prejudicial when there is a reasonable probability that, in the absence of the improper evidence, the verdict would have been more favorable to the appellant. Bustos v. State, 2008 WY 37, ¶ 9, 180 P.3d 904, 907 (Wyo. 2008) (citing Burton v. State, 2002 WY 71, ¶ 12, 46 P.3d 309, 313 (Wyo. 2002)).


         A. Rule 404(b)

         [¶13] Mr. Swett claims the district court abused its discretion when it admitted evidence of the jail incident under Rule 404(b), which states:

(b) Other crimes, wrongs, or acts. - Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

         [¶14] Our Rule 404(b) jurisprudence requires four elements be satisfied before other bad acts may be ...

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