400 P.3d 358
Wyo.2017Background
- Appellant Billy Carrier, the step-grandfather of victim M.K., was retried and convicted of three counts of first-degree sexual abuse of a minor (intrusion) and one count of second-degree sexual abuse of a minor (sexual contact) based on multiple incidents spanning ages ~5–9.
- Prior conviction was vacated and retrial ordered due to ineffective assistance of trial counsel for medical reasons; State amended charges for the second trial.
- Medical evidence: two SANE nurses examined M.K. at age nine, photographed a hymenal/vaginal irregularity (described as a thickening) and discussed whether it could reflect prior injury or a congenital variant.
- Defense objections at retrial included (a) admission and prominent display of the two anogenital photographs, (b) exclusion of evidence that M.K. accused another family member, (c) refusal to play the entire recorded police interview of Appellant, (d) alleged improper opinion testimony by Nurse Davis about vaginal size, and (e) prosecutor comments in closing.
- The district court denied a Rule 33 new-trial motion and sentenced Appellant to concurrent thirty–forty-five year terms on first-degree convictions and a consecutive second-degree term (suspended in favor of probation). Appeal followed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Carrier) | Held |
|---|---|---|---|
| Admission of SANE photographs | Photos were relevant to the SANE exams and supported investigation/examination findings | Photos were irrelevant, highly prejudicial, inflammatory and should have been excluded under Rules 401/403 | Court: Photos were relevant and probative; any prejudice did not substantially outweigh probative value — no abuse of discretion |
| Exclusion of evidence that M.K. accused another relative | N/A (State opposed as irrelevant/untimely) | Carrier says jury should have heard prior accusation to impeach/vouch for alternative perpetrator theory; defense never formally offered evidence or made offer of proof at trial | Court: Issue not preserved; no offer of proof — cannot evaluate admissibility; no error shown |
| Rule of completeness — refusal to play entire police interview | Detective testimony about interview was not substantively different from recording; court offered selective playback | Carrier sought to play entire 1.5-hour recording under W.R.E. 106 to provide tone/context | Court: Under W.R.E. 106, completeness does not require playing an entire statement; defense declined court’s offer to identify portions; admission could have raised hearsay/uncharged misconduct/vouching issues — no abuse of discretion |
| Nurse Davis opinion and prosecutor's closing reference | State conceded Davis was not an expert and would avoid opinion; nurse Kassahn (SANE) clarified relevance | Carrier says Davis improperly opined size meant intercourse; prosecutor later referenced that stricken testimony in closing | Court: Stricken testimony was brief; trial court gave curative instruction; jury presumed to follow it; Kassahn’s testimony undermined Davis’s statement — no prejudice, no new trial |
Key Cases Cited
- Emerson v. State, 371 P.3d 150 (Wyo. 2016) (standard for abuse of discretion on new-trial denial)
- Willoughby v. State, 253 P.3d 157 (Wyo. 2011) (abuse-of-discretion review of trial rulings)
- Bhutto v. State, 114 P.3d 1252 (Wyo. 2005) (admissibility and probative/prejudicial balancing for photographs)
- Ramirez v. State, 739 P.2d 1214 (Wyo. 1987) (application of rule of completeness)
- Hayes v. State, 935 P.2d 700 (Wyo. 1997) (permitting more complete presentation where party opened the door)
- Lopez v. State, 98 P.3d 143 (Wyo. 2004) (completeness and jury access to disputed statements)
- Counts v. State, 277 P.3d 94 (Wyo. 2012) (limiting redaction under rule of completeness and cumulative/cumulative analysis)
- McGill v. State, 357 P.3d 1140 (Wyo. 2015) (curative instruction sufficiency and cumulative error analysis)