439 P.3d 753
Wyo.2019Background
- Three girls (A.B., age 9; E.C., age 8; N.C., age 7) alleged sexual touching by their grandfather, Douglas Clayton Jones; disclosures arose after a family camping trip and conversations at home.
- Child Advocacy Project (CAP) forensic interviews were recorded soon after initial reports; each child described touchings under a blanket in Mr. Jones's chair, instructions to keep it a secret, and similar modalities of contact.
- Mr. Jones was charged with three counts of second-degree sexual abuse of a minor and three counts of third-degree sexual abuse of a minor; the jury convicted on all counts and the court imposed consecutive sentences for the second-degree counts.
- Before trial and during cross-examination defense counsel raised implied charges of improper influence, recent fabrication, and possible suggestion (including timing of a photograph shown to A.B. and mother/daughter conversations).
- The State sought admission of redacted CAP interview recordings under W.R.E. 801(d)(1)(B) as prior consistent statements to rebut implied charges of fabrication/influence; the district court admitted the recordings and the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior consistent statements (W.R.E. 801(d)(1)(B)) | State: recordings rehabilitate witnesses after implied charges of recent fabrication/improper influence | Jones: recordings were hearsay, prejudicial, offered without line-by-line on-record consistency analysis, and some statements made after alleged corrupting influence so probative value diminished | Admission not an abuse of discretion; requirements of 801(d)(1)(B) met and cross-examination implied fabrication/influence before admission |
| Timing of admitting prior consistent statements (before impeachment) | State: pretrial record and defense conduct signaled fabrication theory, so anticipatory admission permissible | Jones: admitting before an in-court attack impermissibly preempted defense and required explicit 403 balancing | Court held pre-admission impeachment occurred via cross-examination; anticipatory admission doctrine clarified—admitting before attack can be error but was not here |
| Probative vs. prejudicial balancing (W.R.E. 403) | State: redacted videos were probative to rebut implied fabrication without vouching | Jones: court failed to expressly weigh prejudice and risk of cumulative "piling on" | Court found implicit careful consideration, redactions limited scope, and no improper vouching by CAP interviewers |
| Sufficiency of evidence for second-degree sexual abuse (intent/sexual gratification & touching intimate parts) | State: circumstantial evidence (repeated similar touchings, blanket to conceal, secrecy) permits inference of sexual gratification; A.B.'s testimony supports touching of intimate area over underwear | Jones: no evidence of sexual gratification and A.B. denied direct touching of intimate parts | Court held evidence sufficient: concealment, repetition, secrecy support inference of sexual gratification; A.B.'s testimony of touching "a little over my privates" satisfied sexual contact element |
Key Cases Cited
- Lancaster v. State, 43 P.3d 80 (Wyo. 2002) (describing careful redaction and line-by-line analysis as one proper way to admit prior consistent statements)
- Marquess v. State, 256 P.3d 506 (Wyo. 2011) (standard of appellate review for admissibility and discussion of prior consistent statements)
- Griggs v. State, 367 P.3d 1108 (Wyo. 2016) (enumerating 801(d)(1)(B) requirements and cautioning diminished probative value when motive precedes prior statements)
- Tome v. United States, 513 U.S. 150 (U.S. 1995) (federal rule limitation on admitting prior consistent statements made after alleged motive arose—contrast with Wyoming approach)
- Jones v. State, 393 P.3d 1257 (Wyo. 2017) (circumstantial evidence—use of concealment such as blankets—as probative of sexual gratification)