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Mayhew v. State

Supreme Court of Wyoming

April 9, 2019

WILLIAM A. MAYHEW, Appellant (Defendant),
v.
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 State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellant Counsel. Argument by Mr. Westling.

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

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

          DAVIS, Chief Justice.

         [¶1] A jury found William Mayhew guilty of four counts of third-degree sexual assault related to his abuse of three minors during the 1990s and early 2000s. On appeal, Mr. Mayhew claims the district court erred in admitting photos and videos as other acts evidence under W.R.E. 404(b). He also contends that the district court abused its discretion in admitting evidence not identified in the State's pretrial disclosure and without proper foundation. We affirm.

         ISSUES

         [¶2] Mr. Mayhew presents two issues on appeal, which he frames as follows:

I. Did the trial court abuse its discretion by admitting evidence pursuant to W.R.E. 404(b) that did not fit an acceptable purpose and was used solely to prove the character of the Defendant?
II. Did the trial court abuse its discretion by admitting evidence not listed in the pretrial proceedings and without proper foundation?

         FACTS

         [¶3] William Mayhew lived near his grown daughter and her family in Sheridan, Wyoming, starting in the early 1990s. She and her husband had three daughters: HS, born in 1989; MT, born in 1992; and ST, born in 1997. In May 2015, MT revealed to her aunt that Mr. Mayhew, her grandfather, had sexually abused her and her sisters. MT's aunt informed MT's father, and he reported the allegations to law enforcement.

         [¶4] Following an investigation, the State charged Mr. Mayhew with five counts of third-degree sexual assault: two counts for acts against HS; one count each for acts against MT and ST; and one count for acts against AR, a boy who grew up in Mr. Mayhew's neighborhood.[1] Before trial, Mr. Mayhew requested notice of the State's intent to submit other acts evidence under W.R.E. 404(b). In response, the State provided its Rule 404(b) notice, followed by three addenda, which identified the following other acts evidence the State intended to introduce:

--testimony by the director of a children's program at a local church, along with related emails, concerning the church's 2012 decision to terminate Mr. Mayhew as a Sunday school instructor for violating the church's policy against adults transporting children alone;
--testimony by a former director of the Joy Junction Children's Ministry concerning a 2009 complaint from the mother of a five-year-old girl that when she picked up her daughter from a swimming pool activity, she saw that Mr. Mayhew had her daughter's legs wrapped around him;
--testimony that arresting officers found a box at Mr. Mayhew's home that contained photos of young girls who were Joy Junction participants;
--photos and videos of young girls taken by Mr. Mayhew while participating in children's programs;
--testimony by Mr. Mayhew's wife's younger sister that in 1962, when she was ten years old, Mr. Mayhew pinned her against a pillar and rubbed his hands on her crotch area, and a few weeks later took her to a cabin in the woods where he fondled her, pinned her down, and tried to remove her underwear;
--testimony that in law enforcement's examination of Mr. Mayhew's computers, it discovered the use of programs and techniques used in the child exploitive community, twenty-four media files of children classified as closely related to child erotica, and 5, 785 files that contained children;
--testimony by Mr. Mayhew's daughter that he sexually abused her beginning when she was four years old and continuing until she was about twelve years old, including five specific incidents during that period; and
--testimony by Mr. Mayhew's wife that after the local church terminated him from Sunday school activities, she saw him burn a collection of photos in their fireplace, and testimony by HS that she also witnessed the burning of photos, which her grandmother told her were from Joy Junction.

         [¶5] The State offered the other acts evidence for the purposes of showing Mr. Mayhew's motive, intent, and lack of mistake or accident. Mr. Mayhew objected to the evidence, and on December 5, 2017, the district court heard argument on the State's notice. During the hearing, the State narrowed its proffered other acts evidence and sought admission only of Mr. Mayhew's daughter's testimony and the photos and videos of young girls Mr. Mayhew took while participating in youth activity programs.

         [¶6] The district court issued an oral ruling, in which it applied the Rule 404(b)-required factors, which was followed by a summary written order that found the proffered evidence admissible. The court found that the evidence was relevant to Mr. Mayhew's motive and intent, and that its probative value was not substantially outweighed by its potential for unfair prejudice.

         [¶7] At trial, the victims of the charged conduct described Mr. Mayhew's sexual abuse.[2] HS testified that Mr. Mayhew sexually abused her from the age of five until she was about ten or eleven years old. She testified that on multiple occasions, he would have her lie on his bed, face down and clothed, and he would lie on top of her, bouncing up and down. He called this the "smooshing game." On other occasions, Mr. Mayhew had her apply lotion to his erect penis. He also on multiple occasions directed HS to lie on his bed, unclothed from the waist down, spread her legs, and touch herself, with him sometimes moving her hands when she "wasn't doing it right." HS also described occasions when Mr. Mayhew would instruct her to use a vibrating massager on her vagina while he masturbated, would shower with her and wash her entire body, and would fondle her between her legs while driving with her in his truck.

         [¶8] During HS's testimony, a letter Mr. Mayhew had written to HS after she confronted him with her abuse allegations was admitted into evidence without objection. The letter read, with the emphasis in the typed original:

I have tried to write a letter to you this past year (some several pages long) but the words just didn't seem right. At times I felt I was not worthy to even communicate with you.
What I found out during this time is I am not a person of words. Because of my rapid deteriorating health and your position of me not being able to talk to you, this appears to be the best communication avenue for me right now.
I just wanted you to know from my heart and soul I am truly sorry for the verbal and physical abuse I have done to you. It was wrong, wrong. Please, please forgive me, please.
I am also asking that during my last days that you visit often and allow my great granddaughter and great grandson [to] be around me and your grandma together.

         [¶9] MT testified that Mr. Mayhew began sexually abusing her when she was five or six years old and that the abuse continued until sometime before she reached puberty. She described three specific memories of the abuse. The first incident occurred during a game of dress-up when she was five years old. Mr. Mayhew had her lie on his bed and use a vibrating massager on her genital area.[3] On another occasion, Mr. Mayhew played a blindfold game with MT that required her to guess the identity of objects while blindfolded, one of which was his erect penis. The third incident involved a game that Mr. Mayhew called "squish it." During that game, he had MT lie on the floor, face up and clothed, and he would lie on top of her. MT could feel his erect penis when he did this.

         [¶10] AR testified to a single incident of abuse that occurred during the summer of 1995, when he was about ten years old. AR lived near the Mayhews and would occasionally visit to play with their dog. On one such occasion, Mr. Mayhew brought out a vibrating massager and encouraged AR to use it on himself. AR testified that Mr. Mayhew initially showed AR how to use it on his leg and then he encouraged him to move the vibrator closer to his crotch area. Mr. Mayhew then put his hand on AR's crotch outside his pants to show him where to place the vibrator, while saying "Doesn't that feel good?" AR felt panicky, fled the Mayhew home, and reported the incident to his father.

         [¶11] In addition to the victims' testimony concerning the charged conduct, the State presented the other acts evidence the district court had ruled admissible. Mr. Mayhew's daughter testified that from the time she was four or five years old, he would make her wash his erect penis while he took baths. She also testified to specific incidents of abuse, including an incident when she was five or six, during which Mr. Mayhew told her, her sister, and a neighborhood friend they were going to play doctor and instructed them to get in a closet. He then called each child out individually, and when he called her out, he told her to take off her clothes and lie down, and then proceeded to examine her body, including her vagina, visually and with his hands.

         [¶12] The daughter described another incident that occurred during that same timeframe, in which she wet her pants and Mr. Mayhew ordered her to remove her clothes in front of her brother and sister and lie on the floor. He then put her in a diaper, touching her vagina while doing so, and made her wear nothing but the diaper.

         [¶13] The final incident the daughter testified to occurred when she was in the third or fourth grade. Mr. Mayhew would initiate games of hide and seek with the children and during one such game, he had her sit on his lap when she found him, and she could feel his erect penis.

          [¶14] From the photos and videos the district court had ruled admissible, nine photos and six videos were offered and admitted into evidence. The photos were of young girls, most wearing swimming suits, and a few in shorts or skirts, with a focus on the girls' lower bodies and genital areas. Of the six videos admitted into evidence, four of them recorded clothed young girls straddling a table, with Mr. Mayhew encouraging them to scoot down the table without the use of their hands, a maneuver that required the girls to repeatedly thrust their hips. Another video showed a young girl in a skirt playing on monkey bars, and the final video was of a young girl in a park, wearing a skirt and sitting in a way that showed her underwear, with the recording focused on her underwear-covered genital area.

         [¶15] Mr. Mayhew testified in his defense. As to the allegations contained in the other acts testimony of his daughter, he testified that he was a heavy drinker during his daughter's youth, and he could not recall that period of time. Although he could not recall that period, he testified as follows concerning her allegation that he made her wash his erect penis when he bathed:

A. One of the elements that stands out to me has to do with the male private part. And I'm sorry, but I can't say the name. Private part. I hope you understand what I'm talking about. That situation that stands out to me deals with the use of soap on my private part when it's stiff. For all the men in this room here -
[Objection sustained.]
A. My experience has been that it hurts, it hurts because the soap is - back then all the soaps around were alkalin[e] based and - it may be like the female private parts, using that alcohol-based soaps and that to clean is okay, but not for sensitive areas. And for the use of that is - I wouldn't have allowed that. I just wouldn't allow that. It hurts.

         [¶16] Concerning his daughter's allegation that she felt Mr. Mayhew's erect penis when he had her sit on his lap during a game of hide-and-seek, Mr. Mayhew testified:

That's an interesting one. We lived on Gilbert. And one of the fun things we always did was we had fun with the hide and seek. It's a good thing for Dad. And one of the instances indicated here was that we had a - in the hide and seek there was a - if you'd understand, we had specific spots that we all liked to hide, because they were good spots to hide. And this particular one had the foundation and the furnace. And it was narrow, very narrow. In fact, for a 240-pound individual, it was a very tight squeeze to get in there, but it was a good spot to hide where there wasn't any lights.
That particular instance that was presented to the court is that spot. Because it's so narrow, there's no way - there's no way that anyone could sit on me because I couldn't sit because I'd have to stand up because it was so narrow. And so in that particular case, the closest that would come to that would be to sit on my knee. If you understand, if I'm sitting sideways hiding, that would the only way that somebody could be right with me, touching me, on me, would be to sit on my knee. Most of the time, obviously, I would stand up or kneel, but not - there's no way to lay down. No way to sit on my rear and have somebody sit on me.

         [¶17] Concerning the photos of children in his possession, Mr. Mayhew testified:

The purpose of that was really simple. The families involved were families that, like you and me, we like pictures. We love pictures and especially of our family. And one of the things that we did was we took pictures, not only I, but other teachers, and we did something very simple. Without charge but under love, we went ahead and we did the pictures, shots, made prints, and the kids could take them home. The children could take them home. And response back with that, as you heard here this morning that parents received them and it was a great item that was used for our ministry that we had . . . .

         [¶18] Mr. Mayhew provided no testimony on direct examination concerning the videos. On cross-examination, he agreed that he took the videos, that he did not have the capability to make or provide copies of those to parents, and that he did not share them with parents of the children in the videos.

         [¶19] With respect to the charged conduct, Mr. Mayhew denied that he inappropriately touched his granddaughters or AR with his hand or with a vibrator or that he had any sexual contact with his granddaughters or AR. Concerning the incident with AR, he admitted that AR was present on an occasion when he was using a vibrating massager on his own leg, but he denied using the massager in a sexual manner or touching AR. He testified:

A. As I was using the massager, [AR] said, "Give me the massager." And he says, "I'm tough."
And I said, "Well, what do you mean by 'tough?'"
He says, "I'm tough."
I says, "Okay. Let's see how tough you are." And I said what I want you to do is - and I pointed to the side of his head. And I said, "I want you to go with the vibrator from your head down to your ankle, and I'd like to have you do it two times, and we'll see how tough you are."
Q. And then what happened?
A. Well, he got on his knees and did exactly that, went
from there but only down to his knees, of course, and did it twice. And I says - I don't know what he said, but I said, "You are tough."

         [¶20] Concerning the letter of apology he wrote to HS, Mr. Mayhew testified:

Q. . . . And you also admit that you did write that letter to [HS]; it's your apology?
A. For the verbal and physical abuse. Nothing said about sexual.

         [¶21] The jury found Mr. Mayhew guilty of four counts of third-degree sexual assault, and the district court sentenced him to consecutive prison terms totaling twenty-eight to thirty-five years. Mr. Mayhew timely appealed his conviction to this Court.

         DISCUSSION

         [¶22] Mr. Mayhew contends the nine photos and six videos were impermissible character evidence and that the district court therefore erred in admitting them under Rule 404(b).[4] He further claims the district court erred in admitting the massaging vibrator into evidence. We find no abuse of discretion in either ruling.

         A. Other Acts Evidence

         1. Standard of Review

         [¶23] Mr. Mayhew preserved his objection when he filed his pretrial demand for notice of other acts evidence, and we therefore review the district court's decision for an abuse of discretion. Swett v. State, 2018 WY 144, ¶ 11, 431 P.3d 1135, 1140 (Wyo. 2018).

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.

Id. (quoting In re GAC, 2017 WY 65, ¶ 32, 396 P.3d 411, 419 (Wyo. 2017)).

         2. Rule 404(b)-Required Analysis

         [¶24] Rule 404(b) governs the admissibility of other acts evidence. It provides:

(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.

W.R.E. 404(b).

         [¶25] Our precedent mandates a procedure that a trial court must follow and factors that it must consider in ruling on the admissibility of other acts evidence. Moser v. State, 2018 WY 12, ...


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