445 P.3d 983
Wyo.2019Background
- Duane L. Jackson was charged with three counts of first-degree sexual abuse of a minor; jury convicted on Counts I and III, acquitted on Count II, and the district court later entered a judgment of acquittal on Count III.
- The Information described all three counts identically; at trial the victim (age seven) described three separate incidents (on the bed, in the bathroom, and a digital penetration incident).
- At the jury-instruction conference the parties debated whether the verdict form or instructions must identify the specific factual basis for each count; defense objected citing Heywood but submitted proposed instructions that did not resolve the ambiguity and did not submit an alternative verdict form.
- The court accepted the parties’ agreed-upon instructions and a verdict form that did not differentiate Counts I and II; defense counsel had earlier raised the concern but then accepted the instruction language submitted at trial.
- Jackson moved for judgment of acquittal (denied) and later challenged sufficiency of evidence, the jury’s verdict form/instruction description, and alleged ineffective assistance for (1) not cross-examining the child victim and (2) not testifying.
- The Wyoming Supreme Court affirmed: (1) Jackson waived the challenge to the instructions/verdict form under the invited-error doctrine; (2) evidence was sufficient for Count I (sexual intrusion/sexual intercourse established); (3) counsel was not ineffective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Jackson waived appellate review of ambiguous jury instructions and verdict form ("Description Issue") | Jackson: instructions and verdict form were indistinguishable for Counts I & II, preventing identification of conduct underlying conviction; reversible error | State: defense invited/waived the error by proffering and accepting the instructions and failing to propose an alternate verdict form | Waived under the invited error doctrine; appellate review declined |
| Whether evidence was sufficient to sustain conviction on Count I | Jackson: State failed to prove penetration, sexual purpose, and that he was ≥16 | State: victim testimony, drawings, and SANE report supported at least slight penetration and age evidence showed defendant was adult | Evidence sufficient: jurors could reasonably find sexual intercourse/penetration and defendant’s age met statutory requirement |
| Whether counsel was ineffective for declining to cross-examine the victim | Jackson: failure to cross-examine deprived him of effective representation | State: decision was strategic and reasonable; counsel considered and declined cross-examination | Not ineffective: decision was reasonable trial strategy and no prejudice shown |
| Whether counsel was ineffective for not calling Jackson to testify | Jackson: denying his testimony violated his rights and resulted in prejudice | State: Jackson knowingly, voluntarily waived his right to testify after consultation and court colloquies | Not ineffective: waiver was knowing and voluntary; Jackson failed to show prejudice |
Key Cases Cited
- Heywood v. State, 170 P.3d 1227 (Wyo. 2007) (discussing need for verdict specificity in multi-incident prosecutions)
- Toth v. State, 353 P.3d 696 (Wyo. 2015) (explaining invited error/waiver bars appellate review)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (distinguishing waiver from forfeiture)
- Pryor v. State, 212 P.3d 635 (Wyo. 2009) (holding slightest penetration suffices for sexual intercourse in criminal statute)
- Nunamaker v. State, 401 P.3d 863 (Wyo. 2017) (clarifying invited error and reviewability)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishing two-part ineffective assistance test)