LEON VAN BUREN FREER, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
S-22-0267
IN THE SUPREME COURT, STATE OF WYOMING
August 15, 2023
2023 WY 80
APRIL TERM, A.D. 2023
The Honorable F. Scott Peasley, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General. Argument by Mr. Woykovsky.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
BOOMGAARDEN, Justice.
[¶1] After a jury trial, Leon Van Buren Freer was convicted on twenty-one counts related to sexual abuse against his daughter AF. Mr. Freer challenges his convictions, arguing the district court abused its discretion when it admitted a sexually explicit photograph of Mrs. Freer (AF‘s mother) and a pornographic father–daughter incest video under
ISSUES
[¶2] We rephrase the issues as:
- Whether the district court abused its discretion by admitting a sexually explicit photograph of Mrs. Freer and a pornographic father–daughter incest video under
W.R.E. 404(b) . - Whether the prosecutor committed prosecutorial misconduct by eliciting
W.R.E. 404(b) testimony from AF and Mrs. Freer resulting in prejudicial error.
FACTS
[¶3] AF was born in 2006 and lived with her parents and two brothers. In March 2021, AF reported to the Department of Family Services (DFS) that Mr. Freer had sexually abused her. Lieutenant Benjamin Peech from the Converse County Sheriff‘s Office investigated the report, interviewed AF, Mr. Freer, and Mrs. Freer, and eventually seized several items from Mr. Freer, including a cell phone and various other electronic devices.
[¶4] In its fifth and final amended information, the State charged Mr. Freer with twenty-seven counts including sexual abuse of a minor, sexual exploitation of a child, manufacturing child pornography, and voyeurism.
[¶5] Mr. Freer filed a demand for written notice of the State‘s intent to use
[¶6] The district court held a hearing to address the parties’ 404(b) contentions. The court issued a written order several days later. In the order, the court performed a full Gleason analysis and determined the evidence related to adult pornography and some internet searches would be excluded. It also held some of Mr. Freer‘s internet searches, the age-difficult and incest pornography found on Mr. Freer‘s phone, the sexually explicit photographs and videos of Mr. Freer and Mrs. Freer, and the evidence concerning DFS’ investigation could be introduced at trial, subject to other evidentiary objections. The court reserved ruling on any other evidence the State had of Mr. Freer‘s uncharged bad acts against AF and stated “no such evidence shall be introduced without the court‘s prior permission.”
[¶7] The district court held a four-day jury trial in May 2022. The State first called AF.
[¶8] The State elicited testimony from six other witnesses, including Detective Peech who testified about his investigation and extracting images and videos from Mr. Freer‘s electronic devices. Mrs. Freer testified about the punishments Mr. Freer imposed on AF, witnessing Mr. Freer‘s hands on AF‘s breasts when he was measuring her for a bra, and witnessing Mr. Freer on top of AF between her legs. The State also admitted several exhibits including photographs Mr. Freer took of AF‘s vagina, a similar sexually explicit photograph of Mrs. Freer, and a video depicting father–daughter incest pornography. After it rested, the State moved to dismiss six counts. The defense called Mr. Freer‘s mother and Mr. Freer. The State recalled Detective Peech in rebuttal. Additional trial facts are discussed below where necessary to our legal analysis.
[¶9] The jury returned a guilty verdict on the remaining twenty-one counts. The district court sentenced Mr. Freer to three consecutive sets of concurrent prison terms totaling 20 to 30 years on seven counts of sexual abuse of a minor in the first degree; 10 to 15 years on ten counts of sexual abuse of a minor in the second degree; and 6 to 10 years on one count of sexual abuse of a minor in the third degree, two counts of sexual exploitation of a child, and one count of voyeurism.2
[¶10] Mr. Freer timely appealed.
DISCUSSION
I. The district court did not abuse its discretion when it admitted a sexually explicit photograph of Mrs. Freer and a pornographic father–daughter incest video under W.R.E. 404(b) .
[¶11] Mr. Freer filed a demand for written notice of the State‘s intent to use 404(b) evidence. We treat such a demand as an objection and therefore review the district court‘s admission of 404(b) evidence for an abuse of discretion. Anderson v. State, 2022 WY 119, ¶ 11, 517 P.3d 583, 588 (Wyo. 2022) (citing Barrett v. State, 2022 WY 64, ¶ 41, 509 P.3d 940, 948 (Wyo. 2022)). “Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence.” Id. (quoting Klingbeil v. State, 2021 WY 89, ¶ 32, 492 P.3d 279, 286 (Wyo. 2021)). “We will not disturb the trial court‘s determination of the admissibility of evidence unless the court clearly abused its discretion. We need only determine whether the court could have reasonably concluded as it did.” Id. (citations omitted). Mr. Freer has the burden to show an abuse of discretion. Id. ¶ 15, 517 P.3d at 589 (citation omitted).
[¶12]
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial.
[¶13] We have stated “[a] core principle of Wyoming Rule of Evidence 404(b) is that the defendant in a criminal case should not be convicted because he is an unsavory person, nor because of past misdeeds, but only because of his guilt of the particular crime charged.” Olson v. State, 2023 WY 11, ¶ 13, 523 P.3d 910, 913–14 (Wyo. 2023) (quoting Jackson v. State, 2021 WY 92, ¶ 10, 492 P.3d 911, 915 (Wyo. 2021)). “To guard against the misuse of
When a defendant files a pretrial demand for notice of the State‘s intent to introduce uncharged misconduct evidence, the State must identify the evidence. The district court then must hold a hearing in which the State offers a relevant and proper purpose for admissibility under Rule 404(b) and explains why the evidence is more probative than unfairly prejudicial. In that hearing, the district court must then conduct an exacting analysis of the Gleason factors:
(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.3
Id. (quoting Mitchell v. State, 2020 WY 142, ¶ 22, 476 P.3d 224, 233 (Wyo. 2020)); see also Gleason v. State, 2002 WY 161, ¶ 27, 57 P.3d 332, 342 (Wyo. 2002) (discussing the procedures to admit evidence under
[¶14] This Court does not apply the Gleason analysis anew on appeal. Barrett, ¶ 48, 509 P.3d at 950 (citation omitted). We instead “determine whether the district court abused its discretion in considering the factors.” Id. (citation omitted). “As long as there is a legitimate basis for the district court‘s decision, we will not disturb it on appeal.” Id. (citation omitted); see also Gleason, ¶ 30, 57 P.3d at 343 (“While the trial court need not make an express finding on every factor . . . , the record must contain sufficient findings to support the trial court‘s conclusions.“).
[¶15] Here, the district court carefully followed the procedures for admitting evidence under
a. The sexually explicit photograph of Mrs. Freer.
[¶16] The State introduced into evidence a 2012 photograph depicting an image of Mr. Freer‘s fingers spreading Mrs. Freer‘s labia open and exposing her vagina. The State asserted the sexually explicit photograph demonstrated Mr. Freer‘s motive and intent because it was similar to a photograph he took of his daughter‘s genitals. Mr. Freer first contends the photograph fails to show Mr. Freer‘s motive and intent to have sexual contact with his daughter, citing Johnson v. State, 872 P.2d 93, 97 (Wyo. 1994), and thus it was not offered for a proper purpose. This Court explained in Johnson the distinction between motive and intent:
In common usage intent and “motive” are not infrequently regarded as one and the same thing. In law there is a distinction between them. “Motive” is the moving power which impels to action for a definite result. Intent is the purpose to use a particular means to effect such result. “Motive” is that which incites or stimulates a person to do an act.
Johnson, 872 P.2d at 97. We have also generally defined motive as “that which leads or tempts the mind to indulge in a particular act.” Anderson, ¶ 22, 517 P.3d at 590 (quoting Barrett, ¶ 49, 509 P.3d at 951). Mr. Freer seems to misunderstand the district court‘s reason for allowing the picture, which is its similarity to the picture he took of AF. The circumstantial inference is that Mr. Freer intended to take a sexually explicit photograph of his daughter similar to the sexually explicit photograph he took of his wife, which is evidence of Mr. Freer‘s motive—a sexual interest in his daughter—and his intent to take a photograph to “effect such result.” Johnson, 872 P.2d at 97. Given this inference, the district court legitimately concluded the photograph was offered for the proper purposes of motive and intent. Id.
[¶17] Mr. Freer also argues the photograph, taken in 2012, is too remote to be relevant to his alleged acts in 2019. “We have declined to set an arbitrary time line for the admissibility of Rule 404(b) evidence.” Barrett, ¶ 57, 509 P.3d at 952 (collecting cases). Rather, the district court has discretion to decide whether other bad acts evidence is too remote to have evidentiary value. Id. (citing Winters v. State, 2019 WY 76, ¶ 85, 446 P.3d 191, 218 (Wyo. 2019)). “The question is ‘one of reasonableness’ considering ‘the context in which the evidence was introduced and the theory supporting its admissibility.‘” Id. (quoting Winters, ¶ 85, 446 P.3d at 218).
[¶18] The district court acknowledged the remoteness of the photograph lessened its probative value but ultimately allowed the photograph to be introduced at trial after analyzing its relevancy and potential for unfair prejudice. Mrs. Freer testified that Mr. Freer had an interest in taking sexual photographs of her for his use. During this point in her testimony, the State introduced the sexually explicit photograph of her genitals. At closing, the State compared that photograph with the similar photograph of AF and discussed Mr. Freer‘s use of such photographs for sexual arousal. The State thus used the sexually explicit photograph of Mrs. Freer consistent with its theory of intent and motive. See id. (quoting Winters, ¶ 85, 446 P.3d at 218). The district court reasonably concluded the photograph was relevant and therefore provided a legitimate basis when it admitted the photograph of Mrs. Freer under
b. The pornographic father–daughter incest video.
[¶19] The video—which law enforcement extracted from Mr. Freer‘s phone—shows actors depicted as underage and engaged in an incestuous relationship with an
[¶20] Mr. Freer relies on the district court‘s statements at trial to assert the court revisited the admissibility of the incest video and the video‘s ultimate admission was unfairly prejudicial. During the trial, the State offered and the district court admitted the video into evidence. The State published certain clips from the video to the jury. On the next day of trial, the court determined it would only allow the video to be used as a demonstrative exhibit and stated the idea of the jury watching the video again was an “oversaturation and unduly prejudicial.” The district court also acknowledged it had already allowed the State to admit hours of other
[¶21] In addition to pointing out the district court‘s own statements at trial, Mr. Freer seems to ask this Court to reapply the Gleason factors in his favor to conclude the father–daughter incest video was unfairly prejudicial. As noted above, we do not perform the Gleason analysis “anew on appeal.” Anderson, ¶ 15, 517 P.3d at 589 (citing Barrett, ¶ 48, 509 P.3d at 950). We focus on how the district court analyzed the factors. Id. (citation omitted).
[¶22] In its
Concerning the incestuous pornography, the charged crimes fit this category; the Defendant is the minor‘s victim‘s father. This specific type of pornography . . . depicting sexual encounters between adults and juveniles of the same relation, the court finds sheds light on the Defendant‘s desire to engage in such a relationship and serves as evidence of the Defendant‘s motive to commit the underlying acts—engaging in sexual intercourse or other sexual behavior with his daughter.
It then found the incest pornography was relevant and not unduly cumulative. The court reasoned that “there is no other evidence available other what is being proffered by the State . . . . [T]he court cannot see that any of this evidence would be cumulative.”
[¶23] The court also noted all the evidence before it had a high chance of unfair prejudice. However, after balancing the Gleason factors, the court reasoned the video was not unfairly prejudicial because: the video did not show the victim, it was no more graphic or disturbing than what Mr. Freer was charged with, and Mr. Freer had no convictions based on the video‘s content or any similar bad acts. The court therefore provided a legitimate basis to admit the incest video under
II. Mr. Freer fails to show he was prejudiced by the alleged prosecutorial misconduct.
[¶24] Mr. Freer did not raise a prosecutorial misconduct objection to the district court. Accordingly, we review for plain error. King v. State, 2023 WY 36, ¶ 33, 527 P.3d 1229, 1242 (Wyo. 2023) (citation omitted). To establish plain error, Mr. Freer “must show (1) the record is clear about the incident alleged as error; (2) a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial right resulting in material prejudice.” Id. (citation omitted). Both parties agree the first prong of the plain error analysis is met. Mr. Freer must therefore show a violation of a clear and unequivocal rule of law and prejudice. Id. (citation omitted).
[¶25] This Court has defined prosecutorial misconduct as “[a] prosecutor‘s improper or illegal act (or failure to act),
[¶26] Mr. Freer alleges the prosecutor committed misconduct by eliciting testimony from AF and Mrs. Freer regarding uncharged bad acts of physical and mental abuse Mr. Freer imposed on AF, which violated the district court‘s
[¶27] In its
(h) Evidence of other uncharged bad acts by the Defendant against the alleged victim will be reserved until the time of trial, but no such evidence shall be introduced without the court‘s prior permission.
(i) For such evidence that is specifically excluded, counsel shall take appropriate steps to ensure witnesses do not testify or infer to such evidence.
(emphasis in original).
[¶28] The State contends the prosecutor did not violate the 404(b) order when he elicited testimony about Mr. Freer‘s physical and mental abuse of AF because, when read in its entirety, the order only required court permission to introduce uncharged bad acts similar in nature to the charged crimes—i.e., sexual abuse. It is true, the court indicated in the “Facts” and “Discussion” sections of the order that it planned to prohibit the prosecution from introducing
[¶29] During AF‘s testimony, in addition to questions about sexual abuse, the prosecutor also inquired about the “roles” her parents played in their family dynamics. AF testified Mr. Freer “handed out the punishments” because he was the one who created all the rules. She stated the types of punishments included, “[s]lapping, punching, getting whipped with a belt, getting beaten with a metal broomstick, not bring able to eat, not being able to use the bathroom, being locked outside, having more chores, not being able to sleep, going without water.” She affirmed that Mr. Freer referred to himself as an authority figure in the home by calling himself “king shit.” She also explained that she received 97 percent of the punishments, that Mr. Freer treated her two brothers differently, and that Mr. Freer regularly referred to her using a variety of profane language.
[¶30] The prosecutor asked Mrs. Freer similar questions. She testified to the chores she and AF did around the house and that Mr. Freer did not treat the children equally. She affirmed Mr. Freer was the disciplinarian in the house and stated when AF was in trouble he would “grab her by the hair, throw her to the floor, and he slapped her across the face where there was a handprint. She had several bruises.” She also testified to
[¶31] Because the State charged Mr. Freer, in part, with first degree sexual abuse of a minor under
[¶32] Whether we review alleged prosecutorial misconduct under harmless error or plain error, we focus on whether the misconduct affected the accused‘s substantial right to a fair trial. Sam v. State, 2017 WY 98, ¶ 65, 401 P.3d 834, 856 (Wyo. 2017) (quoting McGinn, ¶ 13, 361 P.3d at 299); see also Bogard, ¶ 18, 449 P.3d at 321 (“[O]ur ultimate focus and attention is on whether the alleged error affected Mr. Bogard‘s substantial right to a fair trial.” (citations omitted)). Mr. Freer therefore “must show prejudice under ‘circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.‘”5 Klingbeil, ¶ 43, 492 P.3d at 289 (quoting McGinn, ¶ 13, 361 P.3d at 299).
We review the entire record to analyze whether Mr. Freer was prejudiced. King, ¶ 52, 527 P.3d at 1247 (citation omitted). In doing so, we assess the following factors: “1) the severity and pervasiveness of the misconduct; 2) the significance of the misconduct to the central issues in the case; 3) the strength of the State‘s evidence; 4) the use of cautionary instructions or other curative measures; and 5) the extent to which the defense invited the misconduct.” Id. ¶ 53, 527 P.3d at 1247 (citation omitted). The strength of the State‘s case is the most important factor. Id.
[¶33] Assessing the first and second factors against the record in this case, we find the prosecutor‘s alleged misconduct was neither severe nor pervasive or significant to the central issues in the case. AF only briefly, and generally, addressed the physical and mental abuse Mr. Freer imposed on her before discussing the incidents of sexual abuse at issue in detail. Mrs. Freer likewise only briefly discussed Mr. Freer‘s physical and mental abuse against AF. Neither the prosecutor nor defense counsel addressed this testimony during closing arguments.
[¶34] In contrast, and considering the third factor, the State‘s evidence against Mr. Freer was strong. AF described in detail Mr. Freer‘s acts as they related to each count of sexual abuse, supra ¶ 7.6 Mrs. Freer corroborated portions of AF‘s testimony. She testified to witnessing Mr. Freer‘s hands on AF‘s breasts when he was measuring her for a bra and observing Mr. Freer draped over AF while standing between her legs with his hands up by her shoulders and touching their pelvic regions against each other.
[¶35] The prosecutor also presented testimony from Detective Peech who discussed retrieving multiple search histories, images, and videos from Mr. Freer‘s phone and computer,
[¶36] Considering the fourth and fifth factors, we note Mr. Freer did not object to the alleged prosecutorial misconduct below and the jury was not specifically instructed about the physical and mental abuse testimony. After carefully considering each factor, we conclude Mr. Freer has failed to demonstrate the alleged prosecutorial misconduct denied him his substantial right to a fair trial.
CONCLUSION
[¶37] The district court did not abuse its discretion when it admitted the sexually explicit photograph of Mrs. Freer or the pornographic father–daughter incest video under
[¶38] Affirmed.
Notes
- How clear is it that the defendant committed the prior bad act?
- Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?
- Is other evidence available?
- Is the evidence unnecessarily cumulative?
- How much time has elapsed between the charged crime and the prior bad act?