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Wall v. State

Supreme Court of Wyoming

January 9, 2019

BRENT U. WALL, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Uinta County The Honorable Joseph B. Bluemel, Judge

          Representing Appellant: Donna D. Domonkos, Domonkos Law Office, LLC, Cheyenne, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Sam Williams, Assistant Attorney General. Argument by Mr. Williams.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.


         [¶1] Brent Wall was convicted of one count of first degree sexual assault of a minor. On appeal he claims that his right to be present at every stage of the trial was violated and that he was denied effective assistance of counsel. We find no reversible error and affirm.


         [¶2] Mr. Wall presents two issues on appeal, which we restate as:

1. Did the district court commit reversible error when it responded to a juror note expressing confusion over DNA testimony without informing either party of the juror note and the court's response to it?
2. Was Mr. Wall's right to effective assistance of counsel denied: a) by trial counsel's conflict of interest; and b) when trial counsel did not adequately pursue a theory of intentional secondary DNA transfer?


         [¶3] MW is the biological daughter of Sandra Bell-Wall and Brent Wall, the defendant in this case. Ms. Bell-Wall and Mr. Wall divorced in 2000, and Ms. Bell-Wall was given primary custody of MW, who was then about two, and her three-year-old sister CW. MW lived with her mother, sister, and half-brother in Urie, Wyoming, until December 2012.

         [¶4] In 2012, MW was fourteen and had engaged in a number of troubling behaviors, including the use of fake social media profiles to lure classmates into conversations (also known as catfishing), sexually explicit conversations, falsely accusing family members of hurting her, committing self-harm by cutting her arms and torso, and generally being rebellious. When MW threatened to commit suicide, MW, her mother, and her father and stepmother, Arlee Wall, met with a counselor. It was decided that MW would move to Evanston, Wyoming to live with her father and stepmother and their two younger children.

         [¶5] After MW moved in with her father and stepmother, her behavioral issues abated. In the fall of 2014, however, when she was sixteen years old, she wrecked her car, and after that her grades dropped and her troubling behaviors resurfaced. In early 2015, her grades were continuing to drop, and she had a boyfriend and best friend that her stepmother believed were negative influences. She began catfishing again, and she included in one of her profiles a fake obituary for her little sister. After her own electronic devices were taken from her, she stole electronic devices from her father and stepmother to use for catfishing, and when she was confronted with the theft, she first blamed her young half-sister and then destroyed the devices. In February, she altered and attempted to cash two checks written by her stepmother to her school for lunches.

         [¶6] As discipline for these behaviors, MW had her activities and privileges restricted, and she was required to do chores to earn enough money to pay for the destroyed electronic devices. She was also homeschooled and restricted to her bedroom when not performing chores. All items were removed from her bedroom except her bed, a blanket, a desk, and a bible. She was required to wear shorts and a tank top so her father and stepmother could see if she was cutting herself.

         [¶7] On March 1, 2015, MW's biological mother and sister came for a visit that lasted until about 1:30 that afternoon. After the visit, Ms. Bell-Wall expressed concern that MW seemed sad, and Mr. Wall assured her that MW's restrictions would soon be lifted. Later that afternoon, at about 2:30 p.m., MW's stepmother left to run errands. She arrived back home at about 4:00 and testified that the following then occurred:

Q. Now, when you got back, did you have a conversation with [MW]?
A. I did.
Q. And do you recall that?
A. I do.
Q. And what was that conversation?
A. I was hugging her.
She was crying. I thought she was crying because of the punishment.
I told her, "It's almost over. I know it's hard."
And she says, "You don't know how hard it is."
And I told her, "I do."
And then she told me, "While you were gone, dad made me give him a blowjob."
Q. And how did you react to that?
A. I was shocked that she could even say that.
I stepped back and I looked at her. And she said, "He did. He said you wouldn't believe me, but he did it and I can prove it."
Q. And what did you do?
A. I just - I shook my head and I grabbed a load of groceries and I went in the house.
Brent was sitting on the couch with the two kids when I walked in. And then I went back out for more groceries. She -
Q. And did [MW] bring groceries in or not?
A. Well, she was waiting for me at the car.
Q. And then did you have any more conversation?
A. Yeah. She - she told me that, "He blew it in my mouth and I can prove it."
And I told her, "The mouth cleans itself. Don't you know that?"
And she goes, "But it's there. I haven't ate or drank anything since he did it."
And, I just - I shook my head, and she grabbed a load and followed me into the house.
And Brent asked me what was going on. He could tell that I was angry on my first trip.
And I told him - I just shook my head when he asked me. And I looked at [MK] and I says, "Tell him."
And she gave him a play by play. She told him everything that he had done.
And by that time, it had turned into a second blowjob, in the garage.
And I asked her, I says, "Why are you giving him a play by play? Wasn't he there?"

         [¶8] Mr. Wall then called Ms. Bell-Wall, informed her of what MW was saying, and told her to come and get MW. Ms. Bell-Wall testified that she did not immediately believe MW's allegations, and so when she picked her up, she did not take her to the hospital. She instead bought her a bottle of water and a Dr. Pepper and returned to Mountain View. Ms. Bell-Wall eventually decided to take MW to the hospital in Evanston, and they arrived there at about 10:20 the evening of March 1st.

         [¶9] The hospital contacted law enforcement, and Sergeant Randall Chandler of the Uinta County Sheriff's Office responded and took MW's statement, which he recorded. MW reported that she was doing chores in the garage when her father came into the garage and told her to retrieve a battery charger from his bedroom so he could return it to the garage shelf where it belonged. When she went to the bedroom, her father followed her and asked if she was ready to hear what she had to do to have her restrictions lifted. MW reported that when she said yes, the following occurred:

And so he pulls out this piece of paper and he says, "I wrote them down."
And I made a joke. And I was, like, "Hah. You took notes?"
And he said, "Yeah."
And then he listed them off. One of them said, "Your grades have to be average or better."
And I said, "Okay."
And then he said, "The garage will be finished."
And I said, "Okay."
And then he said, "And you will look in the mirror that I have in my bedroom, and you will find something that you like about yourself every day. Not just that you like, but that you find sexy."
And I said, "Okay."
And then he folded the piece of paper up and he put it in his pocket again, and he said, "And this last one is going to be hard for you and for me. You can think of it as a punishment, or you can not think of it as a punishment. You can think of it as a . . . how to please a man in the right way for the rest of your life."
He said, "From this day forward, you are my sex slave."

         [¶10] MW reported Mr. Wall thereafter forced her to remove her clothing and perform oral sex on him. She also reported that while they were in the bedroom, he vaginally penetrated her with a glass dildo and anally penetrated her with his penis. He then ejaculated into her mouth and gave her wipes with instructions to clean herself up and return to the garage. MW reported that after she returned to the garage and resumed her work, Mr. Wall came into the garage and again forced her to perform oral sex on him until he ejaculated.

         [¶11] MW reported that she experienced pain and bleeding from the anal intercourse, that ejaculate dripped onto the bedroom floor, and that when ejaculate got on her hand in the garage she wiped it on her pants. She also reported that during oral sex she observed an ingrown hair next to Mr. Wall's penis.

         [¶12] After her interview with Sergeant Chandler, MW underwent a sexual assault examination. The physical examination of MW revealed no labial, vaginal, or anal injuries. Oral, labial, vaginal, and anal swabs were taken and provided to law enforcement, along with MW's clothing.

         [¶13] Deputy James Schmidt of the Uinta County Sheriff's Office took over as lead investigator of MW's charges after Sergeant Chandler's initial interview of her. On March 2, 2015, he obtained a search warrant and with another officer searched Mr. Wall's residence. During that search, they seized samples from the master bedroom carpet, a couple of tubes of personal lubricant, and two glass dildos. They took photos of the bed and a nightstand and its contents, and they also took a photo of Mr. Wall's groin area, which showed an ingrown hair. Later in March, they returned with a second search warrant for Mr. Wall's DNA, which they obtained using a buccal swab.

         [¶14] The items and samples obtained from Mr. Wall, his home, and MW were sent to the Wyoming State Crime Lab for testing. The crime lab generally performs different types of testing including both serology testing, which is testing for bodily fluids such as blood, semen, saliva, or urine, and DNA testing. The DNA testing it performs consists of two types, Y-STR (Y chromosome-short tandem repeat profile) and autosomal testing. Christina Buettner, the lab's DNA technical leader, testified that autosomal DNA is "the typical total human DNA that you think of when you hear about DNA analysis." As to Y-STR testing, she testified:

A. We perform a quantitation step that tells us how much DNA is present in a sample. And part of that step also tells us how much male DNA is present in the sample.
If we have a sample that has a very low amount of male DNA in comparison to a high amount of total DNA, so probably a lot of female DNA is present, we will use Y-STR technology on that to target the small amount of male DNA that's present.
Q. Why would that be an effective mechanism in sexual assault cases?
A. In sexual assault cases - in typical sexual assault cases, where the victim is female and typically a suspect is male, there's generally a large amount of victim DNA, especially on intimate samples like vaginal swabs or samples taken directly from the victim's body, in relation to a small amount of male DNA from a perpetrator.

         [¶15] The lab performed autosomal testing on the glass dildos obtained from Mr. Wall's residence. That testing found that MW's DNA was not consistent with the DNA found on the items and excluded her as a DNA contributor, meaning her DNA was not present on either dildo.

         [¶16] When it tested the oral, labial, vaginal, and anal swabs for DNA, the lab began by testing the samples for their ratio of male DNA to total human DNA to determine whether autosomal or Y-STR testing would be appropriate. That ratio testing showed no male DNA in the vaginal or anal samples, and therefore no further analysis was performed on those samples. The ratio testing on the oral swab showed a ratio of one part male for every one hundred parts human DNA, and the testing on the labial swab showed one part male for every 28, 000 parts human DNA. Because of the small amount of male DNA present, the lab performed Y-STR testing on the oral and labial samples.

         [¶17] The Y-STR testing on the oral sample yielded a DNA profile that was consistent with Mr. Wall's profile. The lab also considered the statistical rarity of the DNA profile obtained, and found that it was estimated to occur in one in every 1, 190 individuals. The Y-STR testing on the labial sample produced only a partial profile, which identified only two of twenty-seven locations on the Y-chromosome. That partial profile was consistent with Mr. Wall's DNA profile but was also quite common and was estimated to occur in one in every fifteen individuals. Ms. Buettner explained:

A. A partial DNA sample or partial DNA profile is when we obtain a pretty weak result.
So we - we test for 20 something different locations on the Y chromosome.
And a full profile would be a result at all of those locations. A partial profile is when we obtain results at less ...

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