Jack Elsworth FAUBION, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Jack Elsworth Faubion, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
Nos. S-09-0076, S-09-0077
Supreme Court of Wyoming
June 18, 2010
2010 WY 79
Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Jenny L. Craig, Assistant Attorney General. Argument by Ms. Craig.
HILL, Justice*.
[¶1] In these consolidated appeals, Appellant, Jack Elsworth Faubion (Faubion), challenges his ten convictions for third degree sexual assault. In Case No. S-09-0076, Faubion was convicted of four such counts after a trial to the court, sitting without a jury. In Case No. S-09-0077, with respect to an additional six counts that were charged at a later date, Faubion entered pleas of nolo contendere in accordance with W.R.Cr.P. 11(a)(1)(A).
(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
(i) and (ii) Repealed by Laws 2007, ch. 159, § 3.
(iii) The actor subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vii) without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim.
“Sexual contact” is defined by statute as: “touching, with the intention of sexual arousal, gratification or abuse, of the victim‘s intimate parts by the actor, or of the actor‘s intimate parts by the victim, or of the clothing covering the immediate area of the victim‘s or actor‘s intimate parts.”
[¶2] Faubion contends that he did not hold a “position of authority” as contemplated by the applicable statute, and, hence, could not be found guilty under the factual circumstances of this case. Further, he contends that the district court erred by not considering the lesser included offense of sexual battery at the bench trial.
[¶3] We will affirm all of Faubion‘s convictions.
ISSUES
[¶4] Faubion provides this statement of the issues:
- Did Faubion, a chiropractor, hold a “position of authority” causing the victims to submit to sexual contact?
- Did the trial court err in not considering the lesser included offense of sexual battery in the bench trial?
The State rephrases the issues as follows:
- Sufficient evidence was presented to allow the district court to find [Faubion] held a “position of authority” over his victims.
- Using the plain error standard of review, the district court did not err in not considering the crime of sexual battery at the bench trial.
[¶5] The State posits a third issue in its brief that is not included in its statement of the issues. It contends that, with respect to the pleas of nolo contendere, Faubion did not preserve the issue of whether or not he was in a “position of authority” over his victims. Faubion addresses this contention in his reply brief.
* This case was reassigned to Justice Hill on April 15, 2010.
[¶6] A detailed description of each of the eleven crimes is not relevant to our consideration of the substantive issues. Very briefly, Faubion was convicted of touching the breasts or pubes of his patients in the course of performing chiropractic treatment.
[¶7] Faubion did not deny that in the course of treating the victims at issue that he may well have inadvertently touched the breasts and/or pubes of these patients. In each instance, the patients testified that Faubion “cupped,” or “groped,” or otherwise touched their breasts (and in one case the pubes) as alleged in the complaints against him. The testimony of the victims was clear and unequivocal to that effect. The record reveals that many of these victims returned to Faubion one or more times after being touched in what they eventually came to discern as being an unlawful manner of touching. The record also revealed that Faubion‘s conduct was not called to the attention of law enforcement authorities until after the victims had “compared notes,” so to speak, about their treatment at Faubion‘s chiropractic office.
[¶8] As noted above, Faubion conceded that he may have made some incidental contact with the victims’ intimate parts, but, to the extent that may have happened, it was merely incidental to the treatment techniques that he used in his ordinary practice of chiropractic medicine and that the treatment techniques he used are usual in his individual practice and in chiropractic in general. Further, he denied that any of the touching was done with the intention of sexual arousal, gratification or abuse, although whether or not that was the case is not pursued as an issue in this appeal. Several victims testified to what could be viewed as inappropriate comments to patients such as calling one “sexy,” complimenting one on her youthfulness (despite being married and having children), and then asking her if she was going out to the bars to chase boys.
[¶9] Two other chiropractors testified as experts during the trial. The first was a chiropractor from Gillette with whom Faubion had worked earlier in his career. He testified that “skin-on-skin” touching was not customary in chiropractic practice in his experience (i.e., the patient‘s skin is always covered by clothing, or some other covering, at all times). A second chiropractor, from Oregon, testified as an expert and his view was that “skin-on-skin” contact was common, especially when making adjustments that require focused tactile acuity. That testimony included his opinion that in performing anterior rib adjustments it is often necessary to use “skin-on-skin” treatment. He also testified that it would not be uncommon for there to be incidental contact with a patient‘s breast tissue in the course of such treatments. However, he excluded such contacts as those described by Faubion‘s patients (“cupping,” “groping,” etc.). That expert also testified that when adjusting in the area of the complex of muscles, tendons, and joints associated with the groin, that some incidental/inadvertent contact with the pubes can occur.
DISCUSSION
Standard of Review
[¶10] The parties are not in accord as to what the standard of review should be in this case. Faubion perceives the issue as one of law because this Court is called upon to construe what the legislature intended when it wrote the statutes at issue, and especially the statute that uses the phrase “position of authority.” Thus, Faubion contends the issue is one of law and not of fact. The State, on the other hand, contends that Faubion is challenging the sufficiency of the evidence and the standard of review pertinent to that issue should be applied here. We conclude that both standards need to be applied in this case.
[¶11] To the extent we are called upon to construe the statute, we take note that “[i]f a statute is clear and unambiguous we do not resort to the general principles of statutory construction.” LM v. Laramie County Dept. of Family Servs. (In re MN), 2007 WY 189, ¶ 4, 171 P.3d 1077, 1080 (Wyo. 2007). Where a statute is unambiguous the rule of lenity has no role to play. Crain v. State, 2009 WY 128, ¶ 10, 218 P.3d 934, 940 (Wyo. 2009).
In discussing the facts of this case, we apply the principle that the evidence should be examined in the light most favorable to the State when a question of the sufficiency of the evidence is raised. We accept as true evidence favorable to the State; we disregard evidence favorable to the defendant in conflict with the State‘s evidence; and we afford to the State‘s evidence every favorable inference which may reasonably and fairly be drawn from it. Harvey v. State, Wyo., 596 P.2d 1386 (1979); Hovee v. State, Wyo., 596 P.2d 1127 (1979). Heretofore we have had occasion to apply these concepts only to cases tried before juries. We have no compunction, however, in joining other courts which have applied these concepts in trials to the court. Simmons v. State, 255 Ark. 82, 498 S.W.2d 870 (1973); People v. Johnson, 276 Cal.App.2d 232, 80 Cal.Rptr. 683 (1969). The function of the finder of fact in cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review. Trumbull v. State, 2009 WY 103, ¶ 9, 214 P.3d 978, 980 (Wyo. 2009).
Validity of Nolo Contendere Pleas
[¶13] We will briefly address this issue, although the State‘s presentation of it is not entirely clear.
(2) Conditional Pleas.—With the approval of the court and the consent of the attorney for the state, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right, on appeal from the judgment, to seek review of the adverse determination of any specified pretrial motion. A defendant who prevails on appeal shall be allowed to withdraw the plea.
[¶14] The State contends that the reservation of the issue was not in writing and that Faubion did not otherwise make it clear what it was he wanted to reserve for appellate review. In Walters v. State, 2008 WY 159, ¶¶ 14-21, 197 P.3d 1273, 1277-79 (Wyo. 2008) we set out in explicit detail how this Court will view such reservations as that at issue in this case.2 It suffices here to note that the upshot of the State‘s argument is that we would be required to remand the second half of this case back to the district court and allow Faubion to withdraw his plea and plead anew. Id., ¶ 26, 197 P.3d at 1280. We do not think the State seriously intended that to be an appropriate result in this case.
[¶15] The plea agreement was not in writing and other requirements of the pertinent rule were not precisely followed in the proceedings below. Nonetheless, the record is very clear that both parties, and the presiding judge, went into the nolo contendere proceeding fully aware that the issue to be preserved for appeal was whether or not a chiropractor, acting in circumstances such as those at issue here, is subject to the rigors of the applicable sexual assault statutes. The decision reached on that issue would be dispositive to the entirety of the second part of this case. If Faubion was not a member of one of the categories of persons contemplated by the “position of authority” language, then he could not be found guilty of the charges lodged against him in either the first part of this case, or the second part. We find it unnecessary to evaluate this issue further, and we will exercise our discretion to address the substantive issue. See Tucker v. State, 2009 WY 107, ¶¶ 12-19, 214 P.3d 236, 240-2 (Wyo. 2009).
“Position of Authority”
[¶16] Faubion contends that the language contained in the definition of “position of authority” cannot be stretched to reach the conduct at issue in these cases. We iterate that language here: “that position occupied by a parent, guardian, relative,
[¶17] In a case which involved sexual conduct between a student and her coach/teacher we addressed a “vagueness” claim directed at this same statute. We find that discussion to be instructive here as well:
Section 6-2-303(a)(vi), W.S. 1977 makes it criminal for any person in a position of authority over a victim to use that position to cause the victim to submit. “Position of authority” is further defined as:
* * * “[T]hat position occupied by a parent, guardian, relative, household member, teacher, employer, custodian and [or] any other person who by reason of his position is able to exercise significant influence over a person.” Section 6-2-301(a)(vi).
The State did not rely separately on appellant‘s position as a teacher, although that relationship was obviously a factor in appellant‘s status. Rather, the State prosecuted and appellant was convicted under the last phrase of the definition: “any other person who by reason of his position is able to exercise significant influence over a person.” It is this phrase which appellant challenges for vagueness.
Appellant argues that under this statute it is a crime for anyone to convince another to have sex with him by using emotional involvement, and extends this construct to apply to numerous hypothetical situations, including the marriage relationship. We do not find appellant‘s characterization of the law persuasive, since common sense will be applied by this court to the statutory language. Dover v. State, supra [664 P.2d 536, 540 (Wyo. 1983)].
First, this court follows the principle announced by the United States Supreme Court in United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), that “vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Sorenson v. State, Wyo., 604 P.2d 1031, 1034 (1979); Sears v. State, Wyo., 632 P.2d 946, 951 (1981).
This case involves a very young woman, then in high school, who was in large part controlled by the attention and demands of appellant as her teacher, coach and confidant. It is not necessary, nor does the law permit us to examine the constitutionality of the statute by inventing situations in which the law‘s application might seem absurd or invalid. Sanchez v. State, supra, 567 P.2d 270; In re Romer, Wyo., 436 P.2d 956 (1968).
Second, the words employed by the legislature in announcing the law must be given their plain and ordinary meaning. McArtor v. State, Wyo., 699 P.2d 288, 292 (1985); Hurst v. State, Wyo., 698 P.2d 1130 (1985). It is helpful to look to Burton‘s Legal Thesaurus, which defines authority as: “[J]urisdiction, legal power, legitimacy, prerogative, right to adjudicate, right to command, right to determine, right to settle issues, rightful power.” Black‘s Law Dictionary, 5th ed. (1979) defines authority as: “Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction. Often synonymous with power.”
From these sources it is apparent that the legislature used the word “authority” to mean an externally granted power, not a self-generated control. One in a position of authority is a person who acquires that status by virtue of society and its system of laws granting to him the right of control over another. For example, society grants to a jailer power over his prisoner, and, therefore, the jailer is in a position of authority over the prisoner. Likewise, the teacher or coach is vested with power by a grant from society. The legislature enacted the statute to prohibit persons in such positions of authority from using those positions to cause any individual who might be subject to authoritative power to submit to sexual acts.
In this case, appellant was the victim‘s teacher and coach. As reposed in our educational system, society vested him with an authoritative status over her.
Appellant, however, seems to argue that his position as a teacher is somehow separable from his holding a position of authority. We think it is not. The State‘s structural positing of this case, in not relying on the fact that appellant was a teacher to show that he was in a position of authority over MBS, does not somehow negate the fact that appellant indeed occupied that position. Absent the fact that appellant was the victim‘s teacher, none of the events for which appellant was charged and convicted would have occurred. In light of these facts, we decline appellant‘s invitation to strike the statute as void for vagueness. A plethora of trial evidence comprehensively demonstrated that appellant was in a position of authority over MBS. A person of ordinary sensibilities in appellant‘s position clearly should have known that his conduct was forbidden.
Scadden v. State, 732 P.2d 1036, 1042-43 (Wyo. 1987).
[¶18] We think that line of reasoning applies to the issue Faubion raises here. Chiropractic practice is governed by statute.
[¶19] It appears that Wyoming‘s statute is exceptionally inclusive both as written and as construed in Scadden. See, e.g., Morosco, The Prosecution and Defense of Sex Crimes, supra, §§ 8.02[1] (Protected Special Relationships) and 8.03[1] (Issues of Legal Sufficiency of Evidence, Terms and Conditions Within Criminal Offenses); State v. Denton, 149 S.W.3d 1, 17-20 (2004) (Tennessee statute criminalizing acts committed by person using terms “authority figure” or “supervisory or disciplinary power” does not encompass physician/patient relationship); also see generally, Annotation, Jay M. Zitter, Conviction of Rape or Related Sexual Offenses on Basis of Intercourse Accomplished under the Pretext of, or in the Course of, Medical Treatment, 65 A.L.R.4th 1064 (1988 and Supp. 2009). We are satisfied that the challenged statute‘s language encompasses the circumstances presented here. Neither Faubion‘s testimony, nor that of the expert witness called to testify on his behalf, can serve to rebut the testimony of his victims that they were, indeed, victims of a chiropractor who exceeded the bounds of the statute that was applied to prosecute him for his criminal acts. We are also satisfied that the evidence presented by the complaining witnesses is sufficient to sustain the convictions entered by the district court.
Lesser Included Offense
[¶20] Faubion did not contend in the district court that
(a) Except under circumstances constituting a violation of W.S. 6-2-302 through 6-2-304, 6-2-314 through 6-2-317 or 6-2-502, an actor who unlawfully subjects another person to any sexual contact is guilty of sexual battery.
(b) Sexual battery is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.
[¶21] We agree with the State that, because this issue was not raised in the district court, we are compelled to consider this issue only under the plain error doctrine. That doctrine provides:
In order to establish plain error, the defendant must show that the record patently demonstrates the district court transgressed a clear and unequivocal rule of law and such violation adversely affected his substantial right.
Sandoval v. State, 2009 WY 121, ¶ 6, 217 P.3d 393, 395 (Wyo. 2009) (citing Manes v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004)).
[¶22] Faubion identifies the issue he raises in this regard as an issue of law which must be reviewed de novo. No authority is cited to support that contention, and this Court is unable to find support for it in any quarter. We have read Faubion‘s brief as generously as it can be read, and it contains no cogent argument or pertinent authority that the failure of the district court to sua sponte consider the statute at issue as a lesser included offense, of the offenses duly charged, constitutes plain error.
CONCLUSION
[¶23] We hold that
VOIGT, C.J., files as specially concurring opinion.
VOIGT, Chief Justice, specially concurring.
[¶24] I concur in the result reached by the majority. I write separately only to emphasize the inappropriate attempted use in this case of the conditional plea concept provided in
[¶25] I agree with the majority that these circumstances do not present a situation where the appellant should be allowed to withdraw his pleas under