James Edward ROGERS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. S-14-0057.
Supreme Court of Wyoming.
March 27, 2015.
2015 WY 48
[¶85] What is critical here is that the record is entirely devoid of evidence that Mr. Bruce stopped being the aggressor and that Mr. Laster became the aggressor. That is, Mr. Bruce presented no evidence that at some point during the altercation, he attempted to stop his own aggression and withdraw or retreat from the situation. None of the evidence cited by Mr. Bruce addresses this controlling question. Mr. Laster‘s possession of firearms is not relevant to the inquiry because Mr. Bruce presented no evidence that Mr. Laster threatened him with the weapons or that Mr. Bruce was even aware of the weapons. Likewise, Mr. Bruce‘s own injuries, the bloody knuckles and the bump on his head, and his statements that the Lasters “fucked him,” reveal nothing concerning who acted as the aggressor during the continuing altercation. In the absence of evidence that Mr. Bruce stopped being the aggressor and Mr. Laster became the aggressor, Mr. Bruce failed to make a prima facie case that would have suрported the giving of a self-defense instruction. The self-defense instruction requested by Mr. Bruce would have simply been an invitation to the jury to engage in speculation or conjecture, and the district court thus properly refused to give the instruction.
CONCLUSION
[¶86] We find no error in the district court‘s admission of the deceased victim‘s 911 call, its rulings on Mr. Bruce‘s motions for judgment of acquittal, its curative instruction regarding the inadmissible hearsay, or its refusal to instruct the jury on self-defense. Affirmed.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
HILL, Justice.
[¶1] A jury convicted James Rogers of first-degree sexual assault and two counts of third-degree sexual abuse of a minor. Mr. Rogers qualified as a habitual criminal and was thus sentenced to life in prison on the first-degree sexual assault conviction. He received thirteen- to fifteen-year sentences on the remaining two charges to be servеd concurrently to each other and to the life sentence.
[¶2] On appeal, Mr. Rogers claims that he was not in a position of authority, and that he was incorrectly charged. Furthermore, he argues that his convictions and sentences should have merged and that there was insufficient evidence to sentence him as a habitual offender.
[¶3] We will affirm.
ISSUES
[¶4] Mr. Rogers presents four issues for our review:
- The relationship alleged between Mr. Rogers and the victim does not constitute a “position of authority.” [sic]
- The acts alleged against Mr. Rogers do not constitute a violation of
W.S. § 6-2-316(a)(iv) and, alternatively, counts II and III should merge. - The legislature intended that all three counts should merge into a single crime.
- One prior felony conviction alleged for the purpose of the habitual criminal sentence was not sufficiently proved.
FACTS
[¶5] On April 11, 2012, James Rogers visited the home of Kevin and Tammy Long. Mrs. Long was at work, and Mr. Long needed to run an errand. When Mr. Long asked Mr. Rogers if he would watch his two children—his nine-year-old son and his sixteen-year-old developmentally disabled daughter, C.W. Mr. Rogers agreed, and Mr. Long left around 9 p.m.
[¶6] When Mr. Long left, his son was sleeping in his bedroom. Consequently, Mr. Rogers and C.W. were left alone in the living room. Mr. Rogers approached C.W. and began kissing her. He ran his hand up her leg and touсhed her vagina, and began sucking on her nipples through her shirt. Mr. Rogers then grabbed C.W. by the wrist, pulled hard and directed her into her bedroom. Once in the bedroom, Mr. Rogers closed the door and turned off the light. He proceeded to take off his pants. He also took off C.W.‘s clothes and pushed her onto the bed. Mr. Rogers then inserted his penis into C.W.‘s mouth and put his fingers into C.W.‘s vagina. Mr. Rogers then licked C.W.‘s vagina, and proceeded to have intercourse with her. Afterwards, Mr. Rogers ejaculated on C.W. Mr. Rogers then left the home, and C.W. went to sleep without telling anyone about the incident.
[¶7] The next morning, C.W. became upset at school. C.W. confided in her special education teacher, Katie Turner, that she had been raped the night before and described the events in detail. C.W. reported the incident to the police and was then taken to the hospital where a nurse administered a sexual assault kit.
[¶8] After C.W. named Mr. Rogers, the police contacted him. Mr. Rogers admitted to visiting the Longs’ home the night before but claimed he left the home when Mr. Long left. Evidence gathered from C.W., the home, and a DNA sample from Mr. Rogers was submitted to the Wyoming State Crime Lab. There, analysts detected the presence of Mr. Roger‘s sperm in C.W.‘s underwear. An analyst testified at trial that the chances the DNA belonged to someone other than Mr. Rogers were one in 5.02 quintillion.
[¶9] The State immediately filed an Information charging Mr. Rogers with four varying degrees of sexual assault in violation of
[¶10] Following the jury trial, the State presented evidence in support of its allegation that Mr. Rogers was a habitual offender under
DISCUSSION
Position of Authority
[¶11] Mr. Rogers argues on appeal that the relationship between he and the victim, C.W., does not constitute a position of authority under
[¶12] When reviewing an appellant‘s claims regarding sufficiency of the evidence, this Court examines the evidence in the light most favorable to the State. Faubion v. State, 2010 WY 79, ¶ 12, 233 P.3d 926, 929 (Wyo.2010). We accept all evidence favorable to the State as true and give the State‘s evidence every favorable inference which can reasonably and fairly be drawn from it. We also disregard any evidence favorable to the appellant that conflicts with the State‘s evidence. Id.
[¶13]
“Position of authority” means that position occupied by a parent, guardian, relative, household member, teacher, employer, custodian or any other person who, by reason of his position, is able to exercise significant influence over a person[.] [Emphasis added.]
We have discussed this statute several times and have analyzed what it means to be in a “position of authority.” Most recently, in Solis v. State, 2013 WY 152, 315 P.3d 622 (Wyo.2013), we queried whether a massage therapist holds a position of authority over a client. There, we concluded that, yes, “a
According to the victim, she needed the services of a massage therapist, and, to this end, sought out the services of the Appellant. According to the victim‘s testimony, the Appellant held himself out as one with knowledge, experience and skill in the field of massage therapy. After first disrobing, as she had done in the past for her previous massage therapist, the victim followed the Appellant‘s every instruction, including shifting the position of her body during the massage therapy session so as to enable him to apply his ministrations. Importantly, the victim testified she completely trusted the Appellant; her previous massage therapist, Ms. Bishop, testified a relationship of trust between a massage therapist and a client is essential to a successful therapy regimen. This scenario clearly satisfies the “power differential” explicated in Baldes.
[¶14] While contemplating the plain meaning of “position of authority,” we reviewed some general definitions in Faubion:
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.
Faubion, ¶ 17, 233 P.3d at 930 (quoting Scadden v. State, 732 P.2d 1036, 1042-43 (Wyo.1987)). In Faubion, we applied the aforementioned concepts in determining that a chiropractor held a position of authority, reasoning that chiropractic practice is governed by statute, there is a fiduciary or trust relationship between a patient and his healers, and chiropractors govern themselves by a variety of ethical codes. Id. at ¶ 18, 233 P.3d at 931.
[¶15] Similarly, in Baldes v. State, 2012 WY 67, 276 P.3d 386 (Wyo.2012), we concluded that
[a]lthough there are distinct differences between the job duties of a chiropractor and a certified nurse assistant, when we focus on the power and control asрects of those positions with respect to the clients or patients they serve, the same reasoning applies. Power differentials exist in professional situations in which a service provider has knowledge, experience, and authority that the client seeks and needs from the provider. In a situation involving a provider of medical services, a client may be rendered exceptionally vulnerable by the nature of the illness or disability for which he seeks services.
Baldes, ¶ 11, 276 P.3d at 389. However, the “power differential” concept we discussed in Baldes was limited to professional situations. Here, there is no professional context. This is a babysitter/charge sсenario, but the legislature did not specifically mention babysitter in its list of positions of authority. Yet, the legislature included the term “custodian,” and also provided a catchall that includes “any other person who, by reason of his position is able to exercise significant influence over a person.”
[¶16] “Custodian” is defined as a “person, institution or agency responsible for the child‘s welfare and having legal custody of a child by court order, or having actual physical custody and control of a child and acting in loco parentis.”
[¶17] Here, Mr. Rogers was left in charge of the children while their father went to collect a paycheck. It does not matter for how long he was left with the children or whether he was paid. Mr. Rogers clearly occupied the role as the children‘s babysitter and accordingly was in а position of authority over the children. He was the only adult present in the residence. According to our standard—examining the evidence in the light most favorable to the State and accepting it as true, along with affording it every favorable inference that may reasonably and fairly be drawn—we conclude that Mr. Rogers was serving in a position of authority over the victim, C.W., under
Sufficiency of the Evidence—Indecent Liberties with a Minor
[¶18] Mr. Rogers argues that the acts alleged against him did not constitute a violation of
[¶19] Mr. Rogers argues that fondling the victim did not rise to the level of that required under
[¶20] In determining whether there was sufficient evidence to sustain a conviction, we apply the following standard of review:
[W]e examine and accept as true the State‘s evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whеther the supporting evidence is direct or circumstantial.
Swan v. State, 2014 WY 38, ¶ 14, 320 P.3d 235, 239 (Wyo.2014).
[¶21] We said in Solis, ¶ 61, 315 P.3d at 635 n. 3:
It has been long recognized the prosecution may charge as it sees fit, even in instances where the charges are based on a single act. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985). See also, Rivera v. State, 840 P.2d 933, 943 (Wyo.1992) (abrogated on other grounds by Springfield v. State, 860 P.2d 435 (Wyo.1993)) (double jeopardy not implicated when two separate criminal charges are founded on same act). The key inquiry is whether, upon conviction of multiple counts based upon a single act, a defendant‘s multiple convictions can stand in the face of a double jeopardy challenge. Ball, 470 U.S. at 865 [105 S.Ct. 1668].
Here, the prosecutor chose to charge Mr. Rogers with third-dеgree sexual abuse of a
(a) Except under circumstance constituting sexual abuse of a minor in the first or second degree as defined by
W.S. 6-2-314 and6-2-315 , an actor commits the crime of sexual abuse of a minor in the third degree if:....
(iv) Being seventeen (17) years of age or older, the actor knowingly takes immodest, immoral or indecent liberties with a victim who is less than seventeen (17) years of age and the victim is at least four (4) years younger than the actor.
[¶22] We said in Dougherty v. State, 2010 WY 127, ¶ 11, 239 P.3d 1176, 1180 (Wyo.2010) about Sorenson:
Sorenson, 604 P.2d at 1035 quoted, with approval, the comments of the Colorado Supreme Court when considering the constitutionality of a similar statute:
“* * * * when we take into consideration that the purpose of the act was to protect the morals of the child, that the Legislаture employed apt words to describe the offense, because it is evident that the acts constituting the offense mean such as the common sense of society would regard as indecent and improper. People v. Hicks, 98 Mich. 86, 56 N.W. 1102. True, what shall be regarded as ‘immodest, immoral and indecent liberties’ is not specified with particularity, but that is not necessary. The indelicacy of the subject forbids it. The common sense of the community, as well as the sense of decency, propriety, and morality which people generally entertain, is sufficient to apply the statute to each particular case, and point out unmistakably what particular conduct is rendered criminal by it. State v. Millard, 18 Vt. 574, 46 Am.Dec. 170. * * * *” Dekelt v. People, 44 Colo. 525, 99 P. 330, 331-332 (1909)
In Dougherty, we explained the definitions further:
The definition of “indecent” approved in Sorenson, 604 P.2d at 1034 n. 3, states: 1. “not decent * * * * b: not conforming to generally accepted standards of morality: tending toward or being in fact something generally viewed as morally indelicate or improper or offensive: being or tending to be obscene.” “Obscene” is often recognized to be synonymous to “indecent,” i.e., “not conforming to generally accepted standards of morality; tending toward or being in fact something generally viewed as morally indelicate or improper.” Webster‘s Third New Int‘l Dictionary 1147 (2002). Black‘s Law Dictionary 1182 (9th ed.2009) defines “obscene” as “[e]xtremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.” Thus, while the statutory terms “indecent” and “obscene” are somewhat imprecise, they are generally regarded as synonymous and “indecent” has been defined in prior cases, thereby providing the ordinary citizen with notice of the types of conduct that are prohibited. Griego, 761 P.2d at 976 (indicating that interpretation of statutory language in other cases provides notice to citizens of what conduct is prohibited).
Dougherty, ¶ 12, 239 P.3d at 1180–81.
[¶23] Keeping our precedent in mind, we turn to the facts of the instant case. C.W. testified that that Mr. Rogers began fondling her and kissing her in the home‘s living room. Mr. Rogers then pulled C.W. to the bedroom by her wrist. Mr. Rogers pushed her onto the bed, turned off the light, and grabbed her legs and pulled her to the
[¶24] When examining the evidence in the light most favorable to the State, and affording it every favorable inference that may reasonably and fairly be drawn, we conclude that the district court reasonably could have concluded that Mr. Rogers committed indecent liberties with a minor in violation of
Merger
[¶25] Mr. Rogers argues thаt his three convictions should merge into one single crime. The State disagrees, and argues that Mr. Rogers was properly convicted of and sentenced for three separate and distinct crimes. We agree with the State.
[¶26] Because Mr. Rogers did not raise this issue below, we review for plain error on appeal. Sweets v. State, 2013 WY 98, ¶ 19, 307 P.3d 860, 867 (Wyo.2013). To demonstrate plain error, an appellant must show that the record clearly reflects the alleged error, that the error violated a clear and unequivocal rule of law, and that the alleged error affected a substantial right causing material prejudice.
[¶27] In Sweets v. State, we determined the Blockburger “same elements” test is the sole test we will use in determining the propriety of merging two sentences in order to avoid double jeopardy. Sweets, ¶ 49, 307 P.3d at 875. In the same instance, we abandoned the “same facts or evidence” test, which we previously used together with the “same elements” test, to evaluate claims of double jeopardy based on multiple punishments. Id.
[¶28] Turning to Mr. Rogers’ argument, he contends that both of his third-degree sexual abuse convictions arose out of a single incident and should merge. The charging affidavit attached to the original information identified numerous and distinct acts of alleged sexual abuse and assault committed by Mr. Rogers on C.W.: 1) kissing C.W. on her mouth and on her breasts; 2) forcing C.W. to perform oral sex on him; 3) performing oral sex on C.W. and 4) penetrating C.W.‘s vagina with his penis. The State addressed Mr. Rogers’ specific conduct throughout the trial and in its closing. While Mr. Rogers could have requested a bill of particulars from the State, requiring it to make “more specific allegations in the information,” he did not do so.
[¶29] Mr. Rogers was charged and tried on three counts: one count of first-degree sexual assault in violation of
[¶30] Those statutes read as follows:
(a) Any actor who inflicts sexual intrusion on a victim сommits a sexual assault in the first degree if:
(i) The actor causes submission of the
victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement;
(a) Except under circumstance constituting sexual abuse of a minor in the first or second degree as defined by
W.S. 6-2-314 and6-2-315 , an actor commits the crime of sexual abuse of a minor in the third degree if:....
(ii) Being twenty (20) years of age or older, the actor engages in sexual intrusion with a victim who is either sixteen (16) or seventeen (17) years of age, and the victim is at least four (4) years younger than the actor, аnd the actor occupies a position of authority in relation to the victim[.]
(a) Except under circumstance constituting sexual abuse of a minor in the first or second degree as defined by
W.S. 6-2-314 and6-2-315 , an actor commits the crime of sexual abuse of a minor in the third degree if:....
(iv) Being seventeen (17) years of age or older, the actor knowingly takes immodest, immoral or indecent liberties with a victim who is less than seventeen (17) years of age and the victim is at least four (4) years younger than the actor.
In our reading of these three statutes, each is quite distinct from the other. The first statute focuses оn submission of the victim. The second statute,
Habitual Offender Status
[¶31] The district court sentenced Mr. Rogers as a habitual offender under
[¶32] When reviewing the application of the habitual offender status, we apply the same standard of review as is applied to analyze the sufficiency of the evidence of the substantive charge. Lopez v. State, 2006 WY 97, ¶ 24, 139 P.3d 445, 454 (Wyo.2006). Although stated above, we will repeat the standard:
[W]e examine аnd accept as true the State‘s evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. This standard applies whether the supporting evidence is direct or circumstantial.
[¶33] The Wyoming Legislature has determined that an individual is a habitual criminal if he is convicted of a violent felоny and he has two or more felony convictions on charges separately brought and tried, arising out of separate occurrences.
[¶34] Here, Mr. Rogers had three previous convictions that were introduced into evidence and used against him to prove that he was in fact a habitual offender. Mr. Rogers claims that the State did not present sufficient evidence to prove that one offеnse in particular was in fact a felony. We will refer to this offense as the “Ohio Offense.” When the State presented evidence to the jury, it had to prove that each offense was a felony and that Mr. Rogers was the person previously convicted of those felonies. See Chavez v. State, 604 P.2d 1341, 1350 (Wyo. 1979).
[¶35] Mr. Rogers argues that the statute identified in journal entries from Ohio presented by the State in this case does not clearly demonstrate that he was convicted of a felony because the cited statute contains both felony and misdemeanor provisions. However, along with the journal entries, the Stаte also presented testimony from Brent Bartell, a clerk from Cuyahoga County Ohio Court of Common Pleas, to clarify and compensate for the document‘s deficiencies in felony identification. Mr. Bartell explained that a “journal entry” in Ohio is similar to that of a “judgment and sentence” in Wyoming. “... [I]n Ohio, the Court speaks through its journal entry, which is actually signed by the judge. And in this particular case, was a journal entry of sentencing based on the language used in the actual journal entry.” Mr. Bartell confirmed that the journal entries in question were equivalent to a judgment and sentence specifically for thе Cuyahoga County Court of Common Pleas, he explained, was specifically a court for felony convictions. When asked whether there was anything in the State‘s Exhibit 901 that identified that this conviction was a felony, Mr. Bartell testified that Mr. Rogers’ sentence of one to ten years in the Ohio State Reformatory was also evidence of a felony conviction because “[i]n Ohio, misdemeanors are up to six months, and anything over six months is considered a felony offense for terms of sentencing.” Nevertheless, Mr. Rogers argues that State‘s Exhibit 901 fails to specify the subsection of the statute that Mr. Rogers violated. He notes that in Ohio, a verdict that does not specify the subsection of the statute violated only results in a conviction of the lesser offense. However, Mr. Bartell‘s testimony shows that the exhibit presented by the State was the equivalent of a judgment and sentence and not a verdict. Mr. Bartell‘s testimony clearly shows that Mr. Rogers was convicted of a felony in Ohio.
[¶36] The State also had to prove that it was, in fact, Rogers who committed all three crimes being used against him to prove that he was a habitual offender. A fingerprint comparison/analysis expert presented testimony on behalf of the State. She looked at all three fingerprint cards from each distinct conviction. Her conclusion revealed that each of the cards were from the same person—Mr. Rogers.
[¶37] Given the foregoing testimony presented by the State, we conclude that a reasonable and rational trier of fact could have concluded that Mr. Rogers committed the Ohio offense, and that Rogers was the individual who committed all three felonies. The district court properly sentenced Mr. Rogers to life in prison.
CONCLUSION
[¶38] We conclude that the jury properly concludеd that James Rogers was in a position of authority when he sexually assaulted C.W. Furthermore, the jury was also correct when it concluded that there was sufficient evidence to convict Mr. Rogers for third-degree sexual abuse of a minor under
[¶39] Affirmed.