Mаtthew Len JONES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
S-15-0222, S-16-0201
Supreme Court of Wyoming.
April 28, 2017
2017 WY 44
[para. 31] The jury was сlearly and properly instructed in Instruction No. 17 that it had to find that Ms. Blevins acted intentionally in order to find her guilty. When the correct elements of the crime are read together with the definition of exploitation, a jury would have understood that the “intentional” rather than the “reckless” language from the definition of exploitation applied to Ms. Blevins’ case.
[para. 32] Furthermore, the evidence at trial established that Ms. Blevins acted intentionally. She knew Mr. Tefertiller was aging and suffering from various mental and physical problems. She admitted that she saw his condition detеriorating during the relevant time frame and even said that she considered him to be vulnerable. Nevertheless, Ms. Blevins repeatedly asked Mr. Tefertiller for money under the ruse that she was using it to obtain her RN degree and would pay him back after she did so. In truth, she used very little of the money for school. Ms. Blevins used the money to pay her bills, gave some to her sister, and even went on a vacation. The elements instruction contained the correct mens rea and the evidence clearly established that Ms. Blevins acted intentionally. Consequently, the district court‘s failure to edit the definition of exploitation to include only the intentional mental element did not prejudice her.
CONCLUSION
[para. 33] The evidence presented at trial was sufficient to support the jury‘s verdict that Ms. Blevins was guilty of intentional exploitation of a vulnerable adult. It established that Mr. Tefertiller was a vulnerable adult because he was unable to manage and take care of his assets and, to some extent, himself without assistance as a result of his advanced age, physical impairments and/or mental impairments.
[para. 34] Because Ms. Blevins was charged with felony еxploitation of a vulnerable adult, the district court should have crafted the instruction defining “exploitation” to include only the “intentional” language. However, the elements instruction stated the proper mental element and the evidence was sufficient to establish that Ms. Blevins acted intentionally.
[para. 35] Affirmed.
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
Representing Appellee: Peter K. Michael, Wyoming Attorney Genеral; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General. Argument by Ms. Martens.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
DAVIS, Justice.
[para. 1] Matthew Jones filed the first of these consolidated appeals to challenge his conviction for second-degree sexual assault of a minor.1 Before submitting a brief in that appeal, he moved the district court for a new trial, claiming that his trial counsel was ineffective. His second appeal contests the denial of that motion. We affirm.
ISSUES
[para. 2] Jones raises three issues, two of which we combine, and all of which we simplify and restate as follows:
- Did the district court err in concluding that Jones failed to show that his attorney was ineffective either in pretrial proceedings or at trial?
- Was the evidence sufficient to show that Jones harbored the intent to achieve sexual arousal, gratification, or abuse when he had the minor victim touch him?
FACTS
[para. 3] AR and her six-year-old daughter, IR, had recently moved into a new apartment in
[para. 4] After AR had finished cleaning the kitchen after dinner, Jones’ wife started preparing root beer floats for dessert, and AR went to IR‘s bedroom where IR and Jones and his son had been playing video games to tell them about the dessert. The boy was still absorbed in a game, but Jones was reclining on the bed with his waist raised off the mattress while IR straddled his lap. Both had their hands underneath a blanket draped across Jones’ midsection, and they appeared shocked and surprised at her sudden appearance. AR asked Jones, “What is this?” He removed his hands from the blanket, and with what she perceived to be a guilty look, replied that they “were just playing a game.”
[para. 5] AR took the girl to the kitchen, and on the pretext of smoking a cigarette, drew her sister into anothеr bedroom to tell her what she had just seen. Her sister recommended that she ask IR what she and Jones had been doing, and so after her guests had departed she did so. The child began to cry and told her mother that Jones had pulled his “pee pee” out through a hole in his pajama pants and had her touch it. AR then initiated a three-way telephone conversation with her sister and their mother, who was at that time working out of town. Their mother asked AR to try to handle the matter within the family, and suggested that she first speak to Jones and his wife about IR‘s report.
[para. 6] The next day, accompanied by her sister, AR spoke to them for approximately forty-five minutes before they left for Kemmerer. Jones claimed his penis might have fallen out while he was wrestling and playing with IR, and she accidentally touched it, but he slapped her hand away and scolded her for it. Two days later, on Wednesday, May 28, 2014, AR contacted law enforcement and met that evening with Carbon County Deputy Sheriff Rakoczy at his office.
[para. 7] Consistent with his agency‘s policy, the deputy arranged for IR to be interviewed by a forensic examiner with the Children‘s Advocacy Project in Casper. Kristi DePoorter conducted and video-recorded that interview on June 2, 2014. Jones was charged with second-degree sexual abuse of IR nearly a month later.
[para. 8] On December 11, 2014, Jones’ attorney filed a motion for a hearing to test IR‘s competency to testify. Meanwhile, counsel reviewed the video of DePoorter‘s interview and eventually retained Shontay Roe to evaluate the quality of that interview.3 His impression after viewing the video was that IR would likely be found competent, but that he might have a basis to argue that her memory had been tainted by suggestive interviewing techniques.4
[para. 9] Ms. Roe, however, did not agree. She concluded that the interview was as well-conducted as it could have been, and that while DePoorter used some leading questions to extract additional information from IR, they were appropriate because they were not aimed at obtaining any specific information. DePoorter did not appear to Roe to be going for any particular answer or even going in any particular direction. Nevertheless, Roe assisted defense counsel by directing him to areas where IR‘s memory of the events
[para. 10] The competency hearing took place in district court chambers on January 9, 2015. The judge noted that he had reviewed the video of IR‘s forensic interview, and he informed the attorneys that he would be doing the lion‘s share of the examination of the child, but that counsel for the parties could examine IR further after he finished. Thе court found that the video and its own inquiry showed that IR had the mental capacity to differentiate between truth and lies and understood her duty to tell the truth. IR likewise exhibited an independent memory, both in general and relating to the events that brought her into court, and that she was able to tell what she remembered in response to questions.5 The court was particularly impressed by the child‘s resistance to conforming her memory to any suggestions by the forensic interviewer. Consequently, it deemed IR competent to testify.
[para. 11] A month later, following a two-day trial, Jones was convicted of second-degree sexual abuse of IR. The district court sentenced him to imprisonment for six to ten years, he appealed, and as noted above, before briefing he moved for a new trial on the ground that his trial attorney was ineffective, as permitted by
[para. 12] The district court held an evidentiary hearing on that motion on April 12, 2016, and denied it on June 22.6 Jones took a timely appeal from that decision.
DISCUSSION
Ineffective Assistance
[para. 13] Jones argues that his attorney was ineffective in preparing for and presenting a defense at both the competency hearing and trial. With respect to the former, he criticizes сounsel for failing to challenge the forensic interview as tainting IR‘s memory, allegedly failing to seek out an expert witness who could assist with that challenge, failing to investigate whether IR suffered from any developmental disabilities, and failing to investigate whether AR had tainted the child‘s memory. As for counsel‘s trial performance, Jones argues that he did not adequately cross-examine the girl or otherwise attempt to challenge the credibility of her accusation against Jones.7
[para. 14] To establish that counsel was ineffective, Jones must show that under the circumstances at the time of a challenged act or omission, his attorney‘s performance fell below that of a reasonably competent lawyer, and that it is reasonably probable that absent the deficient performance the outcome of the proceeding would have been more favorable to him. Griggs v. State, 2016 WY 16, para. 36, 367 P.3d 1108, 1124 (Wyo. 2016). This Court does not evaluate counsel in hindsight, but from the perspective available at the time. Mraz v. State, 2016 WY 85, para. 44, 378 P.3d 280, 291 (Wyo. 2016).
[para. 15] When an ineffective assistance claim is first reviewed by a district court
[para. 16] When an ineffectiveness claim rests on the failure to call an expert witness, the defendant must show that one was available to testify in a manner consistent with his theory of the case. Moreover, once he shows that such an expert was available, the defendant must also show that counsel‘s decision regarding the use of an expert reflected incompetency rather than a reasonable tactical choice. Id. paras. 38, 367 P.3d at 1124-25. For instance, using an expert to help prepare a case may be more valuable than having the expert testify. Id. para. 39, 367 P.3d at 1125.
[para. 17] Similarly, when the brevity of cross-examination is claimed to be a sign of ineffectiveness, we need to be sensitive to the strategic risks created by even “that one last question” on cross-examination. The witness may be given an opening or opportunity, either then or on redirect examination, to reconcile apparent inconsistencies, to provide additional testimony unfavorable to the examiner‘s client, or to enhance the credibility of unfavorable testimony already given. Mraz, para. 48, 378 P.3d at 292.
[para. 18] The evidence presented at the Rule 21 hearing showed that counsel‘s interest in working with children led him to become a high school teacher before he attended law school. He took several courses in child psychology and development as a part of his education as a teacher, and he also took courses on those subjects to imprоve his legal work as a guardian ad litem.
[para. 19] He reviewed the recording of IR‘s forensic interview and entered the competency hearing with the perspective developed through that experience and education, and like the district court after him, he concluded that the child was probably competent to testify.8 Although IR had speech difficulties, he did not believe they were an indication of any mental impairment. Consequently, he decided not to contest IR‘s general capacity to testify. Jones does not challenge the district court‘s conclusion that IR was competent to testify, and he provides us with no basis to conclude that counsel‘s evaluation was any less reasonable than the court‘s.
[para. 20] Jones suggests that counsel should have investigated whether IR suffered from some intellectual disability, but in light of the fact that the seven-year-old was attending second grade, which was appropriate for her age, it was unlikely that she had such a disability or that it would render her incompetent to testify. Counsel‘s and the court‘s conclusions are reasonable based on the evidence, аnd they are not speculative like those Jones offers.
[para. 21] Jones’ argument similarly falls short of establishing that counsel did not challenge the forensic interview as tainting IR‘s memory because he failed to investigate that issue and obtain an expert witness who could support that claim.9 The first two experts counsel asked to evaluate the forensic interview and potentially testify at trial could not take the case because their practices were too busy, but one of them recommended Shontay Roe. As already noted, Ms. Roe concluded that Ms. DePoorter conducted the interview in as professional a manner as possible, using leading questions sparsely and in an appropriate way to facilitate communication from the child, but without promoting any particular
[para. 22] However, Ms. Roe‘s review of the video permitted her to suggest areas where IR‘s memory of details and chronology might be attacked at trial through discrepancies in her story, and by contrasting her and hеr mother‘s accounts of the facts with those of Jones’ wife and children. Counsel cannot be faulted for deciding not to call Roe as a witness at either the competency hearing or trial, and Jones has not advised us of any expert who would provide an assessment of the interview more favorable to him than that of Ms. Roe.
[para. 23] We also reject Jones’ suggestion that counsel was ineffective because he lost the video of the forensic interview for a period of time. The record shows that the State sent the video to counsel on August 15, 2014, but that it was misplaced until sometime between November 25 and December 4, 2014. We fail to see how that slip-up could be deemed prejudicial when counsel and Roe were able to thoroughly review and evaluate the video before the competency hearing.
[para. 24] The district court determined that counsel appropriately raised the issue of IR‘s competence by filing the motion that led to the competency hearing. The court observed that it advised Jones’ attorney that it would be questioning the child, and that it in fact did so thoroughly in an effort to elicit sufficient information to evaluate her competency.11 Given the use of that procedure, the court found no deficiency in counsel‘s performance at the hearing, and it also highlighted counsel‘s efforts to procure an expert to evaluate IR‘s forensic interview who could potentially testify at the hearing.
[para. 25] Similar deficiencies attend Jones’ argument that counsel should have explored the notion that AR tainted IR‘s version of what Jones did to her at the competency hearing and trial. Jones recognizes that сounsel telephoned AR to try to interview her, and that AR never returned the call. He suggests that this was not enough and that counsel should have kept calling. He asks us to speculate that what was likely to be unappreciated persistence might have dissolved the unwillingness of a mother to cooperate with the defender of a man she believed assaulted her young daughter. Jones suggests no source other than AR from whom counsel might have derived evidence that she tainted IR‘s recollection. The law required counsel to perform as a reasonably competent attorney, not to accomplish something likely to be impossible in these circumstances.
[para. 26] We also find no merit in Jones’ assertion that counsel did not adequately cross-examine IR or otherwise attempt to challenge the credibility of her accusation against Jones at trial. The district court reached the same conclusion after observing the examination of counsel and the testimony of Jones’ expert at the Rule 21 hearing.12 It noted that Jones’ position at the hearing was largely that while counsel cross-examined thе child, he should have done more. However, the expert did not point to any particular shortcoming that likely would have changed the outcome of the trial, and ignored counsel‘s strategic decision to avoid the risks that further examination might entail.
[para. 28] In contrast, the record indicates that counsel attacked the testimony of IR and AR through the testimony of Jones’ wife and children. They indicated that Jones’ daughter, not AR, had gone to IR‘s room to announce that dessert was ready, that Jones’ son was in a position to see what was happening on IR‘s bed, and that IR had confused the chronolоgy of rather minor events that took place that evening.
[para. 29] Counsel focused much of his defense on innuendo by Jones’ wife that AR had been smoking marijuana just before the group arrived at her apartment, as well as the claim of Jones’ daughter that AR had spent most of the evening too busy in playing games on a Kindle Fire to interact with her guests. Although at the Rule 21 hearing Jones and his expert witness indicated that they could not discern any purpose to that aspect of the defense, we think the purpose was evident. Counsel wanted to paint AR‘s attention and рerception as impaired to the point that she misconstrued what she saw in IR‘s room, that she conveyed that misunderstanding and her subsequent speculation to her daughter, and that she then pressed the child to adopt them.
[para. 30] Counsel‘s plan in that regard was instrumental in his decision to limit his cross-examination of IR in response to some fortuitous statements she made during the State‘s direct examination. The child explained that after their guests left, her mother took her aside and asked what she and Jones had been doing when she walked in on them. She said she did not want to answer, but her mother insisted. Consequently, she informed her mother that Jones had grabbed her hand and made her touch his “pee-pee.” At that point, the State posed several poorly worded questions to which IR responded in a fashion that suggested her version of the events was what AR told her to say.
[para. 31] Counsel testified at the Rule 21 hearing that he altered his cross-examination plan on the fly so as to prevent IR from retracting those potentially valuable statements. They helped validate his theory that a misperception by AR became a child‘s accusation of criminal behavior.
[para. 32] We agree with the district court that these were the actions of a reasonably competent attorney, and that they did not unfairly prejudice Jones’ case. Counsel provided Jones with effective assistance.
Sufficiency of the Evidence
[para. 33] Jones presents an extremely narrow challenge to the sufficiency of the State‘s evidence. He claims only that there was no evidence that the acts for which he was convicted were accompanied by the required intent to achieve sexual arousal, gratificatiоn, or abuse, as required by the definition of sexual contact (an element of the offense of second-degree sexual abuse of a minor) contained in
[para. 34] When reviewing a challenge to the sufficiency of evidence to support a conviction, we must decide whether any rational trier of fact could have found that the essential elements of a charged crime were proven beyond a reasonable doubt on the evidence presented. Butler v. State, 2015 WY 119, para. 6, 358 P.3d 1259, 1262 (Wyo. 2015). In doing so, we assume that the State‘s evidence is true, disregard any evidence favoring the defen
[para. 35] IR testified that Jones placed her hand on his penis. This alone suggests nothing so much as a sexual intent. That inference is further enhanced by Jones’ effort to mask his actions by placing a blanket over his midsection, and IR‘s statement that his reaction to the touching was to “just smile.”13 This evidence was sufficient to allow rational jurors to reasonably conclude beyond a reasonable doubt that Jones caused IR to touch him for sexual arousal or gratification.
CONCLUSION
[para. 36] Jones’ attorney provided effective representation, and the evidence was sufficient to support his conviction. The conviction and sentence are therefore affirmed.