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Winters v. State

Supreme Court of Wyoming

July 22, 2019

JOSHUA ASHBY WINTERS, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Natrona County The Honorable W. Thomas Sullins, Judge

          Representing Appellant: Keith R. Nachbar, Keith R. Nachbar, P.C., Casper, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Katherine A. Adams, Senior Assistant Attorney General [*] , Curtis M. McNiven, Senior Assistant Attorney General. Argument by Mr. McNiven.

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

          KAUTZ, Justice.

         [¶1] A jury convicted Joshua Ashby Winters of aggravated kidnapping, sexual abuse of a minor in the first degree, and sexual abuse of a minor in the second degree. The district court sentenced him to a total of 80-115 years in prison. He appeals from his convictions and sentences as well as from the denial of his Wyoming Rule of Appellate Procedure 21 motion for new trial, which raised various claims of ineffective assistance of counsel. We affirm.

         ISSUES

         [¶2] Mr. Winters raises seven issues on appeal, which we distill to four:

1. Whether Mr. Winters' trial counsel rendered ineffective assistance of counsel when he failed to (1) challenge the five-year-old victim's competency; (2) object to inadmissible hearsay; (3) interview any of the State's witnesses; and (4) consult or call a DNA expert.
2. Whether the district court abused its discretion in admitting other acts evidence under Wyoming Rule of Evidence 404(b). 3. Whether there was insufficient evidence to sustain Mr. Winters' aggravated kidnapping conviction.
4. Whether double jeopardy principles require the sentences for aggravated kidnapping and sexual abuse of a minor in the first degree to be merged.

         FACTS

         [¶3] We provide a brief synopsis of the facts here. Other pertinent facts are included in the discussion of the issues.

         [¶4] On July 18, 2016, five-year-old RH accompanied his nine-year old brother, TP, his six-year-old brother, M, and a family friend to the El Marko Bowling Alley in Casper, Wyoming, to play arcade games. While there, they encountered Mr. Winters, a carnival worker who had just finished working at the Central Wyoming Fair & Rodeo. Mr. Winters gave the boys money to play games. At some point, Mr. Winters claimed he was missing money. RH and TP helped Mr. Winters look for the money until they had to leave to report in with their mother at home. According to TP, Mr. Winters told them they "have to come back to help him find his money, then he would give [them] some money." He also told them to tell their mom he was "a friend." The boys went home, but RH returned to the bowling alley alone.

         [¶5] It is unclear what occurred at the bowling alley upon RH's return. What is clear is RH and Mr. Winters eventually left the bowling alley and ended up at the North Platte River. Mr. Winters carried RH across the river. Ms. Kellie Brodrecht, a passing motorist, observed Mr. Winters and RH in the middle of the river. She testified Mr. Winters was "struggling to walk" because the water was "pretty high." She stopped and ran to the point on the river bank where she could see the man and child. By that time, the man and child were across the river. The man was lying on the embankment and the child was in the bushes and trees. She yelled, "Are you okay?" but neither the man nor the child heard her so she yelled louder. This time the child peeked his head out from the trees and looked at her but did not say anything. The man got up, looked at her, said "yeah, yeah, thanks," and waved her off. The man then walked into the trees. Because Ms. Brodrecht had no reason to believe they were in danger, she left. Once they were alone, Mr. Winters put his mouth on RH's penis and penetrated RH's anus with his tongue and penis. Mr. Winters threatened to kill RH's family if he told anyone what had happened.

         [¶6] Mr. Winters and RH then walked south on Wyoming Boulevard to Fairside Road, where Mr. Winters left RH crying on the side of the road.[1] Shannon Sierra, a passing motorist, eventually found RH and took him to the Mills police station. Casper Police Officer Levi Hallock met RH at the police station. RH's arms, legs, and clothing were covered with sand, his shorts and the back of his shirt were wet, and his left cheek was slightly swollen. Officer Hallock transported him to the Wyoming Medical Center, where he was seen by a Sexual Assault Nurse Examiner (SANE nurse). The SANE nurse found no physical evidence or injuries indicating a sexual assault or anal penetration had occurred, which she testified was "common." After the exam, RH was transported to the Child Advocacy Project (CAP) center for a forensic interview (CAP interview). RH returned the next morning for a second CAP interview. Later DNA testing of RH's penile swabs was inconclusive as to the presence of Mr. Winters' DNA, but similar testing of RH's anal swabs revealed Mr. Winters to be the major contributor of the mixture of DNA present there.

         [¶7] The State charged Mr. Winters with aggravated kidnapping under Wyo. Stat. Ann. § 6-2-201(a)(ii), (b)(ii), and (d) (LexisNexis 2017) (Count 1), sexual abuse of a minor in the first degree under Wyo. Stat. Ann. § 6-2-314(a)(i) and (c) (LexisNexis 2017) (Count 2), and sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(ii) and (b) (LexisNexis 2017) (Count 3). At trial, Mr. Winters admitted he met RH at the bowling alley and they ended up in the river. He claimed, however, RH followed him to the river, RH fell in the river, and he went in the water to save him. They came out of the river on the other side. Mr. Winters said he passed out on the river bank for 10-20 seconds and, when he came to, he saw RH walking away. Mr. Winters got up, grabbed RH's hand, and walked with RH to a pawn shop where Mr. Winters thought he had left his bags. He left RH in the parking lot while he went into the shop. When he came out, RH was no longer in the parking lot. Mr. Winters explicitly denied ever touching RH in a sexual manner. He also claimed to have been drinking heavily that day.

         [¶8] The jury convicted Mr. Winters of all charges. The district court sentenced Mr. Winters to (1) not less than 50 years nor more than 70 years on Count 1; and (2) not less than 30 years nor more than 45 years on Count 2, which was merged with Count 3 for purposes of sentencing. The sentences on Counts 1 and 2 were ordered to run consecutively. Mr. Winters filed a timely notice of appeal challenging his convictions and sentences (Appeal No. S-17-0314).

         [¶9] Subsequently, Mr. Winters filed a W.R.A.P. 21 motion, seeking a new trial based on ineffective assistance of trial counsel. After holding a hearing, the district court denied the motion. Mr. Winters appealed from that denial (Appeal No. S-18-0247). We consolidated both appeals.

         DISCUSSION

         [¶10] Mr. Winters raises various claims of ineffective assistance of counsel. He also argues the district court abused its discretion in admitting other acts evidence under W.R.E. 404(b); there was insufficient evidence supporting his aggravated kidnapping conviction; and double jeopardy principles required his sentences for aggravated kidnapping and first-degree sexual abuse of a minor to be merged. We start with his complaints against trial counsel.

         A. Ineffective Assistance of Counsel

         [¶11] A criminal defendant has the right to the effective assistance of counsel. U.S. Const. amend. VI; Wyo. Const., art. 1, § 10; Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984) ("[T]he right to counsel is the right to the effective assistance of counsel." (quotations omitted)). When a defendant claims he has been denied that right, he must show both that counsel's performance was deficient, and he was prejudiced as a result. Galbreath v. State, 2015 WY 49, ¶ 5, 346 P.3d 16, 18 (Wyo. 2015); Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Counsel acts deficiently when he "fail[s] to render such assistance as would have been offered by a reasonably competent attorney." Galbreath, ¶ 5, 346 P.3d at 18 (quoting Bloomer v. State, 2010 WY 88, ¶ 18, 233 P.3d 971, 976 (Wyo. 2010)). "Prejudice occurs when there is 'a reasonable probability that, absent counsel's deficient assistance, the outcome of [appellant's] trial would have been different.'" Id. (quoting Bloomer, ¶ 18, 233 P.3d at 976). A failure to establish one of the two prongs dooms an ineffective assistance of counsel claim. Dettloff v. State, 2007 WY 29, ¶ 19, 152 P.3d 376, 382 (Wyo. 2007).

         [¶12] Ineffective assistance of counsel claims are "mixed questions of law and fact." Griggs v. State, 2016 WY 16, ¶ 37, 367 P.3d 1108, 1124 (Wyo. 2016). We defer to a district court's factual findings unless clearly erroneous; we review de novo the court's legal conclusions, including whether counsel's conduct was deficient and whether defendant was prejudiced as a result. Id. We "invoke[] a strong presumption that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable judgment. [T]he paramount determination is whether, in light of all the circumstances, trial counsel's acts or omissions were outside the wide range of professionally competent assistance." Schreibvogel v. State, 2010 WY 45, ¶ 47, 228 P.3d 874, 889 (Wyo. 2010) (citations and quotations omitted).

         [¶13] Mr. Winters claims trial counsel was constitutionally ineffective for failing to (1) challenge RH's competency, [2] (2) object to the admission of hearsay testimony, (3) interview any of the State's witnesses, and (4) consult and call a DNA expert.

         1. Failure to Challenge RH's Competency

         [¶14] Six months before trial, trial counsel told the district court at a scheduling conference he "believe[d]" he would be filing a motion to challenge RH's competency as a witness due to RH's age and the concerns he had after viewing the CAP interviews. But trial counsel "changed [his] mind" and never filed a motion for a competency hearing because he believed RH was competent to testify. He explained at the Rule 21 hearing that although the CAP interview gave him "the impression [RH] had some issues with memory," he believed those issues were "no different than [those] an adult might have in the same situation."

         [¶15] Mr. Winters now faults trial counsel for failing to challenge RH's competency to testify. According to him, RH's testimony, as well as the statements he made in the CAP interviews, in particular the second CAP interview, [3] clearly demonstrate RH's inability to understand, receive, remember, and narrate impressions of what occurred. Moreover, while the district court made some inquiry as to whether RH understood an oath is a promise to tell the truth, Mr. Winters argues it failed to make any inquiry as to whether RH understood what it means to tell the truth and the importance of doing so at trial. Finally, he tells us counsel's failure to challenge RH's competency as a witness was prejudicial because RH was the only eye-witness (besides himself) to the events.

         [¶16] "[Wyoming Rule of Evidence 601] presumes . . . 'every person is competent to be a witness except as otherwise provided in these rules.'" Hutchinson v. State, 2012 WY 155, ¶ 5, 290 P.3d 174, 176 (Wyo. 2012) (quoting W.R.E. 601). Indeed, "few persons are inherently incapable of testifying in some manner which is potentially useful." Larsen v. State, 686 P.2d 583, 585 (Wyo. 1984). That includes children, as it is intelligence, not age, which is the deciding factor in determining a witness's competency to testify. Id. at 585-86 ("The age of the victim witness in this case [three at the time of the abuse and five at the time of trial] does not mandate a finding of incompetency."); Mersereau v. State, 2012 WY 125, ¶ 6, 286 P.3d 97, 104 (Wyo. 2012) ("[A] witness' intelligence, not his age, should guide a court in determining whether the witness is competent to testify."), abrogated on other grounds by Rodriguez v. State, 2019 WY 25, ¶¶ 28, 37, 435 P.3d 399, 407-10 (Wyo. 2019). The question is whether the child can "'understand, receive, remember and narrate impressions and is sensible to the obligations of the oath taken before testifying.'" Mersereau, ¶ 6, 286 P.3d at 104 (quoting Simmers v. State, 943 P.2d 1189, 1199 (Wyo. 1997)). In deciding that question, we consider whether the child has:

(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.

Larsen, 686 P.2d at 585 (quotations omitted).

         [¶17] "Considering the entirety of RH's testimony," the district court concluded "RH was clearly competent to testify." As a result, Mr. Winters had failed to show trial counsel's performance in not contesting RH's competency to be deficient or prejudicially so. In so deciding, the court did not explicitly address the Larsen factors. However, at the Rule 21 hearing, the State cross-examined trial counsel concerning how each factor was satisfied in this case. Reviewing RH's testimony as a whole, as we must, cf. Young v. State, 2018 WY 53, ¶ 15, 418 P.3d 224, 228 (Wyo. 2018) (in deciding whether the district court properly ruled a child witness was competent to testify, "[w]e do not single out isolated statements, but look at the child's entire testimony"), we agree RH satisfied the Larsen factors. His testimony (which Mr. Winters primarily relies upon to establish deficient performance) confirms trial counsel's belief prior to trial that RH was competent to testify and thereby demonstrates no possible prejudice to Mr. Winters from counsel failing to challenge RH's competency.[4]

         [¶18] Prior to RH testifying, the district court stated: "I think the [c]ourt should probably make a preliminary inquiry, especially relative to his understanding the oath and competency to proceed." It then proceeded to ask RH how old he was, whether he was in school and its location, whether he understood he had "been called as a witness in this case to testify," whether he understood what an oath was, whether an oath is "a promise to tell the truth," whether he would be willing to promise to tell the truth, and whether he understood he was "being asked to testify about things that were last summer." RH responded he was six-years-old and in school "[a]t Michigan," understood why he was there, knew an oath was a promise to tell the truth, and was willing to promise to tell the truth. He then took the oath "solemnly swear[ing] . . . that [his] testimony will be the truth, the whole truth, and nothing but the truth." (Emphasis added). Considering the judge's questions and RH's answers in their entirety, RH understood the obligation to speak the truth at trial.

         [¶19] RH's trial testimony also shows he had the mental capacity at the time of the occurrence to receive an accurate impression of it and a memory sufficient to retain an independent recollection of the occurrence. He knew his age, his family members, the ages of his brothers (TP and M), what grade he was in, the location of his school in Michigan, where and who he lived with (in Michigan with "Shantel [his stepmom] and my daddy"), [5]and the number and names of his pets. He also remembered the incident and certain unique details surrounding it, which were corroborated by other independent adult witnesses, including Mr. Winters himself. Specifically, RH testified:

• He met Mr. Winters at the bowling alley (corroborated by the bowling alley manager and Mr. Winters).
• Mr. Winters gave him and his brothers money to play arcade games (corroborated by the bowling alley manager and Mr. Winters).
• Mr. Winters claimed to have lost money at the bowling alley (corroborated by the bowling alley manager and Mr. Winters) and he helped him look for it (corroborated by Mr. Winters).
• He and Mr. Winters eventually left the bowling alley (corroborated by the bowling alley manager) and ended up at the river (corroborated by Ms. Brodrecht and Mr. Winters).
• Mr. Winters hid a bag on the way to the river (corroborated by law enforcement).
• Mr. Winters carried him across the river (corroborated by Ms. Brodrecht and Mr. Winters).
• A female asked him and Mr. Winters if they were okay; he did not respond but Mr. Winters said "[w]e're all right" (collaborated by Ms. Brodrecht and Mr. Winters).
• He was found alone on the side of a road and was picked up by a different passing motorist with children in the car; this passing motorist brought him to the police station (corroborated by law enforcement and Ms. Sierra).
• He was transported from the police station to the doctor (corroborated by law enforcement and the SANE nurse).

         [¶20] Finally, RH had the mental capacity to understand the attorneys' questions concerning the abuse and to express in words his memory of it. He told the jury Mr. Winters "humped my leg," "put his pee pee in my butt," "stuck his tongue in my butt," and "put his mouth on [my] pee pee." He testified that when Mr. Winters was "humping" him, Mr. Winters was laying on him and "going up and down." He also explained his "pee pee" is in "[f]ront."

         [¶21] Nevertheless, Mr. Winters claims RH was not competent and was not properly evaluated for competency. As to the first Larsen factor, he argues there was no inquiry as to whether RH understood what it means to tell the truth and the importance of doing so as the judge's inquiry was limited to whether RH understood an oath is a promise to tell the truth. Mr. Winters misstates the scope of the judge's inquiry. The judge asked not only whether RH understood an oath is a promise to tell the truth but also ensured RH's willingness to tell the truth. RH then took an oath promising to do so at trial. We have found the first Larsen factor to be satisfied based upon similar circumstances. See Watters v. State, 2004 WY 155, ¶ 18, 101 P.3d 908, 915 (Wyo. 2004) (concluding the first Larsen factor is satisfied where the witness "acknowledged that an oath was a promise to tell the truth and that she was willing to take one").

         [¶22] Certainly, a child's understanding of what it means to tell the truth and the importance of doing so may support a district court's competency determination. See, e.g., Griggs, ¶¶ 16, 18-19, 367 P.3d at 1120 (affirming district court's competency determination under the first Larsen factor where victims distinguished between the truth and a lie, gave examples of each, and stated lying is "wrong"); Sisneros v. State, 2005 WY 139, ¶ 35, 121 P.3d 790, 801 (Wyo. 2005) (affirming district court's finding that victim was competent, in part, because "she indicated she understood [her] responsibility [to tell the truth while in court], and repeated numerous times that lying was 'bad'"). However, we have never required such explicit findings to establish the first Larsen factor and decline to do so here. Indeed, even a child's demonstrated understanding of what it means to tell the truth and his being told he "needed to tell the truth" prior to his trial testimony are not conclusive as to his competency if his testimony otherwise reveals he did not understand and appreciate the need to tell the truth in the courtroom. Mersereau, ¶¶ 9-11, 286 P.3d at 104-05.

         [¶23] In Mersereau, the victim distinguished between the truth and a lie and provided examples of each at the competency hearing. Mersereau, ¶ 9, 286 P.3d at 104. Nevertheless, at trial, he testified to verifiably false information he knew was not true and commingled his imagination concerning his non-existent pets with the alleged abuse. Id., ¶¶ 11-12, 286 P.3d at 104-05. We concluded the district court's competency determination was clearly erroneous because the child victim's testimony revealed him to be incompetent. Id. In this case, on the other hand, while RH was never explicitly asked whether he understood what it means to tell the truth and the need to do so at trial, there is no indication RH did not understand his obligations nor was his testimony patently false or based on a commingling of real and imagined events or objects.

         [¶24] Turning to the remaining factors, Mr. Winters claims RH's testimony shows he could not competently remember, recall, and articulate simple answers to questions posed to him about the abuse. For example, he claims RH was inconsistent as to how he ended up in the river (claiming Mr. Winters wanted him to go into the river and took his hand but then claiming he "slipped" into the water) and why he returned to the bowling alley after checking in at home (first claiming his brother M told him to return and then claiming he did not know why he returned). Such inconsistencies, however, go to RH's credibility and the weight to be given his testimony, not his competency. Griggs, ¶ 24, 367 P.3d at 1121 (inconsistencies in child witness's testimony "have more to do with her credibility and the weight to be accorded her testimony than her competence to testify"); Sisneros, ¶ 37, 121 P.3d at 802 (same); see also Young, ¶ 19, 418 P.3d at 229 ("[C]ompetence is not the same as credibility.").

         [¶25] Mr. Winters also claims RH gave non-sensical answers. For instance, when asked the positions of his and Mr. Winters' bodies when Mr. Winters "humped" his leg, RH stated his body was "[s]cared" and Mr. Winters' body was "Good. But he got sick." When asked what he meant by the latter response, he said, "When he went to jail, he got sick."[6]Similarly, when asked whether RH stayed in one place after Mr. Winters left him on the side of the road, he responded, "I walked into a lady's car." (Emphasis added). And finally, when asked how he got to the other side of the river, RH said he swam yet admitted he did not know how to swim. These allegedly non-sensical answers correspond directly with the nature and quality of the questions posed to him. Moreover, they demonstrate the need to consider a child's testimony as a whole, rather than hone in on isolated statements as Mr. Winters does.

         [¶26] The State asked RH "[h]ow were your bodies" and "how was [Mr. Winters'] body" when Mr. Winters humped his leg. (Emphasis added). Although the State was seeking the position of RH's and Mr. Winters' bodies, it was not illogical, given the form of the question, for RH to respond with the condition or quality of their bodies, i.e., "Scared" and "Good. But he got sick." Indeed, once the State clarified the question, RH responded Mr. Winters was "[l]aying down . . . [o]n me." Similarly, the State asked RH whether he stayed where he was or "walk[ed] somewhere else" after Mr. Winters left him on the side of the road; not surprisingly, RH responded, "I walked into a lady's car." (Emphasis added). And, prior to asking RH how he got to the other side of the river, trial counsel asked RH how Mr. Winters got in the river. RH responded, Mr. Winters "walked down to there and he holded me and he was swimming." Trial counsel then asked, "And so now you're both in the river, right?" and RH said, "Yeah." Thus, when counsel asked RH, "How did you get to the other side? Did you walk or swim?" RH logically interpreted "you" to mean both him and Mr. Winters. (Emphasis added). From context, RH obviously meant Mr. Winters swam across the river while holding RH.

         [¶27] Finally, Mr. Winters claims RH testified to an impossibility. When the State asked RH whether his "clothes ever c[a]me off," he responded, "Huh-uh . . . they stayed on." According to Mr. Winters, he could not have stuck his penis and tongue in RH's anus if RH's clothes never came off. But Mr. Winters could have accessed RH's genitals by lowering RH's shorts, in other words, without RH's clothes ever "com[ing] off." Or RH could have been referring to the fact that while his shorts came off, his shirt remained on. Trial counsel's questions on cross-examination did not clarify the matter. He asked RH whether he knew what "naked" meant; RH said he did not. Counsel defined it as meaning "you have no clothes on at all, like when you take a bath" and RH indicated he understood. RH then testified Mr. Winters was "naked" but he was "never naked." Again, that RH was "never naked" certainly does not render the sexual abuse an impossibility.

         [¶28] Admittedly, RH's testimony was not perfect. But "a witness need not be perfect to be competent to testify." Griggs, ¶ 12, 367 P.3d at 1119. Rather, RH needed to satisfy the Larsen factors and his testimony reveals he did so. Because RH was clearly competent to testify, Mr. Winters was not prejudiced by trial counsel's failure to challenge his competency.

         2. Failure to Object to Inadmissible Hearsay

         [¶29] The State initially called Casper Police Officer Levi Hallock as a witness prior to RH testifying. Officer Hallock described responding to the Mills police station upon receiving notice RH had been found.[7] Officer Hallock eventually placed RH in his patrol car to speak with him. Officer Hallock explained:

A. . . . I first asked him if he was all right. And he told me that he was not all right, he was not okay. I asked him if he had been at the bowling alley playing video game[s] with his brothers. He told me that the brothers had been playing games. I spoke with him and asked him if he had left the bowling alley with his brothers or anyone else. He told me that he had left the bowling alley with the guy that gave him things.
Q. Okay.
A. Do you want me to continue?
Q. Yeah. What happened then?
A. Continuing, I asked [RH] . . . if he had gone anywhere,
and he told me that the . . . man had taken him . . . by the river to ...

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