Jason Bradley McGill v. State, 2015 WY 132

Background

Defendant Jason McGill was tried for first-degree sexual abuse of his nine-year-old daughter based on an incident allegedly observed by his girlfriend, Jennifer Neumeyer, on Thanksgiving 2013; Neumeyer later recanted before trial but earlier reported and described the event consistently to others and investigators.
The State presented multiple witnesses (victim, Neumeyer, friends who were told by Neumeyer, the investigating deputy, DFS caseworker, and pediatrician); McGill testified as the lone defense witness.
During trial a sheriff’s deputy (Ryan Kerns) testified he did not expect the case to be “as good information-wise as it turned out to be,” prompting a defense motion for mistrial as impermissible vouching/opinion. The court struck the answer and gave a cautionary instruction but denied mistrial.
A prosecution witness called to impeach Neumeyer (Heather Erickson) gave a narrative answer mentioning McGill ‘‘peering’’ at Neumeyer’s other children; defense moved for mistrial under W.R.E. 404(b) for lack of pretrial notice. The court sustained objections, cautioned the jury about impeachment-only use, but denied mistrial.
In rebuttal the prosecutor argued that no one knows McGill’s prior conduct (“You don’t know that”), and defense now claims that implied the State had facts not in evidence. No contemporaneous objection was made at trial.
The Wyoming Supreme Court affirmed: it found no abuse of discretion in denying mistrials, concluded the deputy’s remark violated W.R.E. 701 but was harmless given its brevity and corrective instruction, found Erickson’s 404(b) reference likewise non-prejudicial, and held the prosecutor’s comment did not constitute plain error.

Issues

Issue	McGill's Argument	State's Argument	Held
1. Whether denial of mistrial for deputy’s alleged vouching/opinion was an abuse of discretion	Deputy Kerns’ comment improperly vouched for credibility / opined on case quality and invaded jury province; mistrial required	Comment was not explicit vouching of witness truth or guilt; court cured by striking and instruction; remark minor	Denial affirmed — comment inadmissible under W.R.E. 701 but not so prejudicial to require mistrial
2. Whether denial of mistrial for witness’s unsolicited reference to other misconduct (peering) was an abuse of discretion	Erickson’s 404(b) testimony introduced uncharged misconduct without notice and prejudiced McGill	Statement was narrative, non-solicited, promptly objected to and sustained; jury limited to impeachment use; effect minimal	Denial affirmed — testimony inadmissible absent notice but not sufficiently prejudicial to warrant mistrial
3. Whether prosecutor’s rebuttal remark constituted plain error / misconduct	Prosecutor implied State had independent knowledge of prior bad acts not in evidence, violating argument limits	Remark, read in context, addressed defense theme and asserted lack of known history for anyone; fair response to defense; not clear legal transgression	No plain error — statement reasonable reply to defense and not a clear violation
4. Whether cumulative error requires reversal	Combined errors (vouching, 404(b) mention, rebuttal) so prejudicial as to deny fair trial	Underlying errors are non-prejudicial or nonexistent; no cumulative prejudice	No cumulative error — conviction affirmed

Key Cases Cited

Boucher v. State, 245 P.3d 342 (Wyo. 2011) (standard of review for mistrial denial)
Drury v. State, 194 P.3d 1017 (Wyo. 2008) (abuse of discretion and jury credibility domain)
Warner v. State, 897 P.2d 472 (Wyo. 1995) (mistrial an extreme remedy for prejudicial error)
Whiteplume v. State, 841 P.2d 1332 (Wyo. 1992) (improper vouching by investigator)
Ogden v. State, 34 P.3d 271 (Wyo. 2001) (distinguishing interpretation versus conclusory guilt statements)
United States v. Diaz-Arias, 717 F.3d 1 (1st Cir. 2013) (W.R.E. 701 helpfulness requirement for lay opinion testimony)
United States v. Vazquez-Rivera, 665 F.3d 351 (1st Cir. 2011) (lay opinion usurping jury role)
Roderick v. State, 858 P.2d 538 (Wyo. 1993) (presumption that juries follow court instructions)