from the District Court of Natrona County The Honorable W.
Thomas Sullins, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; David E. Westling, Senior Assistant
Appellate Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Benjamin E.
Fischer, Assistant Attorney General. Argument by Mr. Fischer.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
A jury convicted Douglas Clayton Jones of three counts of
second-degree sexual abuse of a minor and three counts of
third-degree sexual abuse of a minor. He appeals his
convictions, challenging the admission of recorded victim
interviews and the sufficiency of the evidence. We affirm.
1. Did the district court abuse its discretion in admitting
the victims' prior consistent statements?
2. Was there sufficient evidence to support Mr. Jones'
convictions for second-degree sexual abuse of a minor?
During a family camping trip, then nine-year-old A.B. told
her mother, Amanda Phillips, that her grandfather, Mr. Jones,
had touched her inappropriately. Ms. Phillips' husband
called her sister, Tanya Casanova, to tell her what A.B. had
said because Ms. Casanova and her two daughters,
eight-year-old E.C. and seven-year-old N.C., lived with Mr.
Jones. Ms. Casanova testified that she spoke to her
daughters, explaining the difference between a "good
touch" and a "bad touch" and that no one
should be touching their "private parts." When she
asked if there was anything they needed to tell her, N.C.
responded that she and "Papa" had a secret and that
he had touched her "private parts." E.C. then told
her that she and Papa had a secret too. Ms. Casanova
testified that she did not ask them any more questions and
separated them. After Mr. Jones and his wife left the house,
Ms. Casanova called 911 to report the allegations.
Consistent with "investigation protocol" when the
alleged victims are children, law enforcement arranged for
the Child Advocacy Project (CAP) to conduct separate
interviews with the girls. During her interview, A.B.
explained that Mr. Jones had "rub[bed] on her
privates" and "put his whole finger in the hole
[she] pee[d] out of" on the camping trip. He told her
not to tell anyone. Initially, A.B. said Mr. Jones had never
touched her like that before, but later in the interview
remembered an incident where she had been sitting with Mr.
Jones in his recliner with a blanket covering them. Mr. Jones
had told her to look up at the ceiling and touched her
"pee pee" underneath the blanket. She told the
interviewer that her aunt had taken a picture of her and Mr.
Jones while it was happening.
E.C. told her interviewer that soon after she, her sister,
and her mother moved in with Mr. Jones, "he started
touching us in the no[-]no square." She said Mr. Jones
usually touched her in his chair when there were other people
in the room, but they could not see it because it happened
underneath a blanket. She said Mr. Jones "rubbed"
her with his hand under her pajamas and over her underwear.
Mr. Jones told her, "[I]t's our secret."
Similarly, N.C. told her interviewer that Mr. Jones
"touched the private spot [she went] pee with"
under her underwear with his fingers. She said it happened in
"his favorite chair" underneath a blanket. He also
told her to keep it a secret.
The State charged Mr. Jones with three counts of
second-degree sexual abuse of a minor and three counts of
third-degree sexual abuse of a minor. Mr. Jones requested a
hearing to determine whether A.B., N.C., and E.C. were
competent to testify and to explore whether "taint of
outside suggestion" would influence their testimony
because he had "some worry that the initial interview of
E.C. and N.C. was leading on the part of Ms. Casanova."
Defense counsel examined A.B., N.C., and E.C. about
conversations they had with their mothers and among
themselves related to the allegations against Mr. Jones. He
questioned Ms. Casanova about what she said to N.C. and E.C.
after learning of A.B.'s allegations and asked whether
the girls had communicated with one another before their CAP
interviews. She testified that N.C. and E.C. had "some
contact" because they "live[d] together as a
family," but that neither of them spoke to A.B. before
their interviews. The court found all three girls competent
Before trial, Mr. Jones moved to exclude the recorded CAP
interviews from evidence on grounds that they were hearsay
and would amount to improper vouching for the girls'
credibility. The State argued the prior statements were
admissible under W.R.E. 801(d)(1)(B) because they would be
offered to rebut Mr. Jones' charge of fabrication or
improper influence. The court commented:
based upon what I heard in [pretrial] arguments in this case,
in the competency hearing that was held with respect to all
three of the alleged victims . . ., reviewing what's been
offered and presented thus far, I think the Defense is
asserting fabrication, perhaps improper influence. I remember
questions relative to potential taint that [were] raised in
the competency hearings and challenges to motive[.]
court denied the motion without prejudice, telling defense
counsel he could revisit the objection when the evidence was
At trial, Mr. Jones reserved his opening statement for his
case-in-chief, and the State called A.B. as its first
witness. She testified that Mr. Jones had touched her
"private parts" that she "go[es] pee out
of" during the camping trip and that he had been
touching her under her pants in a photo of them sitting under
a blanket in his chair. During cross-examination, defense
counsel asked whether Mr. Jones had reprimanded her for
scratching her "privates" on the camping trip
before she alleged he had touched her inappropriately;
whether she had ever been tempted to shift blame to another
person; and whether she had "ever told something [she]
later wished [she] could take back." He also asked her
if she remembered when someone had first shown her the
photograph of her sitting with Mr. Jones in his chair. She
responded, "Yeah--ish" and said she believed it was
after her CAP interview. Defense counsel asked whether she
had previously said she "didn't remember Papa
touching [her] there until [she] saw the photograph,"
which she denied.
N.C. testified that Mr. Jones "did stuff that . . . he
was not supposed to do. That was in the law." She said
that when she sat with him in his chair he did something he
"was not supposed to do . . . to kids, but it's like
PB and J, but no jelly and the B is actually a P." She
explained that "PB and J" meant "pee pee"
and that Mr. Jones would "scratch" it and had told
her to keep it a secret. When the prosecutor asked her to
identify Mr. Jones she said, "I'm not allowed to
look at him to help me focus." Defense counsel
cross-examined N.C., asking who had told her not to look at
Mr. Jones and whether they had helped her prepare to testify.
He asked whether she had talked to her mother, the
prosecutor, and the CAP interviewers about what Mr. Jones had
done. He also asked her what her mother had said to her
before she told her about Mr. Jones touching her.
E.C. testified that Mr. Jones touched her "private
part" underneath a blanket in his chair. He
"always" told her not to tell her parents and that
it was their "secret." During cross-examination,
defense counsel asked who she had talked to about the case,
what her mother said to her and N.C. before they told her
about Mr. Jones touching them, and whether she did things to
try to please her mother.
The girls' mothers also testified. During Ms.
Phillips' cross-examination, defense counsel questioned
her about her own history of sexual abuse and how it
influenced raising her children. She talked to her children
about "good touching" and "bad touching"
"at least once a year" and had encouraged them to
tell her about any inappropriate touching "since they
were, like, in kindergarten." He also asked whether her
sister, Ms. Casanova, "wanted attention," to which
she responded, "She can be a bit . . . on the dramatic
side." During Ms. Casanova's cross-examination,
defense counsel asked when and to whom she had shown the
photograph of A.B. sitting on Mr. Jones' lap. She
initially responded that she had shown the photograph to her
sister and law enforcement after the CAP interview, but then
said she was "mistaken on the dates" and must have
shown it to them before the interviews, ultimately testifying
she was "not exactly sure when [she] shared" the
photograph but believed it was before the interviews. He also
questioned her about what she had told her children about
[¶11] Following the testimony of the three girls and
their mothers, the State moved to admit the redacted
recordings of the CAP interviews over Mr. Jones'
continuing objection. The court reviewed the three recordings
before overruling Mr. Jones' objection, saying
I'm going to still conclude that Rule 801(d)(1)(B) of the
Wyoming Rules of Evidence applies, and it provides that some
prior consistent statements are not hearsay. . . . I think
that we do have, first, that all three declarants have
testified at trial, all three have been subject to
cross-examination concerning prior statements.
. . . And then we have these excerpts, which are, as I see
it, prior statements that are consistent with the testimony.
I have to agree that there's some additional detail, some
additional matters; but under the Lancaster versus
State case, it has been held that prior consistent
statement does not have to be identical to the
declarant's trial testimony to be admissible under Rule
801(d)(1)(B). So we may have some variation, but the gist of
the prior consistent statements is that they address the
incidents of alleged sexual abuse that are alleged in the six
counts in this case.
So I note that we get, then, to the fourth requirement, which
allows the prior consistent statements be offered to rebut an
express or implied charge against the declarant of recent
fabrication or improper influence or motive. . . . [T]he
thrust of the Defense's presentation thus far, both in
the pretrial matters involving challenges to the 404(b)
evidence, challenges to the competency of the victim
witnesses, and in the cross-examination of all three victims
and challenges to and inquiries concerning their
observations, reports relative to the crimes charged in this
case, and the details and reporting of those matters has all
been inquired into. So I believe that these [exhibits] meet
the requirements [of 801(d)(1)(B)].
court played the redacted recordings for the jury.
After the State rested and Mr. Jones presented his
case-in-chief, the jury returned guilty verdicts on all six
counts. The district court sentenced Mr. Jones to 5 to 15
years on the three counts of second-degree sexual abuse of a
minor, each sentence to run consecutively. The court found
that the sentences for the three counts of third-degree