*1 2005 WY58 MOE, (Defendant), L. Petitioner
Derald Wyoming, Respondent
The STATE of
(Plaintiff).
No. 03-139.
Supreme Wyoming. Court of
May 2005.
Representing Petitioner: Kenneth M. Ko- ski, Defender; State Public Donna D. Do- Kerin, Counsel; miscon- monkos, Tina N. IV.Did commit Appellate closing argument? Argu- duct in his Appellate Assistant Counsel. Senior by Ms. Kerin. ment FACTS Patrick J.
Representing Respondent: General; Crank, Attorney Wyoming Paul S. 20, 2002, [¶ 4] On October General; Rehurek, Deputy Attorney D. Mi- old, years years AB was old Attorney Pauling, Senior Assistant chael two sexual intercourse. Moe lived .had General; Attorney Morgan, Assistant Dee Gillette, Wyoming, with an- trailer house Argument by Morgan. Ms. General. man, Dakota Studie. On October IB, 2002, AB, years brother who was 15 GOLDEN, KITE, HILL, C.J., and Before friends, DE, old, AW, 17, and her two STEBNER, D.J., JJ., VOIGT, *4 went to and Moe’s trailer to watch Studie’s. Retired. while, DE movies. a and left the After AW trailer; however, stayed AB and IB to watch GOLDEN, Justice. and Moe and movie with Moe Studie. L. Moe con- Appellant Deraid was 1] [¶ sitting AB each other and some were jury im- by a of one count victed time, pushed a contact After Moe occurred. modest, a immoral indecent liberties with although AB into a and she resisted bedroom Wyo. girl sixteen-year-old in violation Stat. no, pushed and told him he her over hands 14-3-105(a) (LexisNexis 2003), § a Ann. felo- n head, push pants his foot to down her used years ny, to five in and was sentenced to two and had intercourse with her. While Moe Wyoming penitentiary. appeals He state bedroom, AB in and IB and Studie sentence, contending that judgment and movie, IB testi- to watch but continued and that he is unconstitutional the statute anything fied that did not notice unusual he fair a trial. was denied very in the because he interested movie. was affirm. We [¶ 2] trailer, and DE returned to the [¶ 5] AW eventually and AB left with AW testi- AW.
ISSUES fied AB told her she had sex with Moe “anatomy.” joked and about his Later had Moe lists issues: these [¶ 3] upset, AB told other friends and became her facially § 1. W.S. unconstitu- Is 14-3-105 distraught AB and as and AW described tional? the en- crying related the details of as she § unconstitutional as 2. Is W.S. 14-3-105 AB’s caused counter Moe. distress AW applied petitioner’s in case? angrily trailer confront to return to the and refusing in Did the trial court err 3. to her stated Moe. AW testified an wit- the statements of unavailable admit AB that the had been consensual. When sex defense, in resulting ness for the denial home, parents her she informed returned rights present his petitioner’s defense and happened, what her mother called had and confront witnesses? police inter- police. that the AB stated 4. Did the commit misconduct and testified that course was nonconsensual argument? closing in although her two ac- it was nonconsensual rephrases way: this State the issues in the of the encoun- counts details differed AB testimony, of her was ter. At the time Wyoming’s indecent liberties stat- I. Is visibly man’s child. pregnant with another 14-3-105, ute, § Wyo. Ann. unconsti- Stat. pregnant to her condition Both sides referred on its tutional face? maturity lack of or the it as evidence of Wyo. Ann. 14-3-105 uncon- II. Is Stat. legally consent to intercourse. applied case? as this stitutional listed as a wit- its Dakota Studie was III. Did the trial court abuse discre- defense; however, could ness for the Studie it to admit tion when refused by the and he did not not be defense of an unavailable witness for located statements sought testify at trial. Defense counsel the defense? 1210 ¶ ¶ 101, 11, police (Wyo.2004); AW and 96 P.3d Mi
admit Studie’s ¶ 65, 6, v. alleged that AB had led Moe senheimer WY where he ¶ bedroom; however, (Wyo.2001), pro equal and violates hand into the the trial encourages arbitrary if tection ruled those statements were inadmissi- erratic court ¶ Misenheimer, 6; trial, testify arrests and convictions. hearsay. at ble Moe did (Wyo. v. jury Scadden defense counsel submitted instructions 1987). vagueness A for theory challenge can be that its defense and consent challenge as-applied-to-the-facts facial an totality jury A the circumstances. convict- liberties, challenge. Ochoa Moe of one count of indecent ed “However, late, (Wyo.1993). chal appeal, day a facial accepted filed one (1) lenge only available two situations: on writ of certiorari. when the statute reaches a substantial conduct, constitutionally protected amount of DISCUSSION (2) specify the statute shown to of Review Standard no standard of conduct at all.” If Id. neither [¶ Moe did raise the 7] issue exists, only of these as- situations then uneonstitutionality the trial level and applied challenge available. object prosecutor’s closing to the [¶ On 10] numerous occasions this Court argument, apply our we error challenging has reviewed cases the indecent *5 standard of review to those issues. Pierson v. liberties on void-for-vagueness statute based State, 1119, (Wyo.1998). To grounds, and time with- each the statute has error, establish the record must first challenges. stood those recently, Most we clearly present alleged the incident have reached that conclusion in our decision error; appellant must demonstrate that a There, in again Giles. we once determined unequivocal clear and rule of law was violat 14-3-105(a) provides § that notice sufficient obvious, in a merely argua ed clear and not person ordinary intelligence that his ble, way; appellant prove and must that he prohibited conduct is statute because right resulting was denied a substantial in such liberties taken “are as common sense prejudice against him. material society regard would as improp- indecent and ¶¶ Giles, er.” 21-29. in The statute states A evidentiary trial court’s [¶ 8] pertinent part: rulings given considerable deference and Except constituting under circumstances appeal not be disturbed on unless the first, sexual assault in the second or third court has Kenyon trial abused its discretion. degree ¶ through as defined W.S. 6-2-302 v. WY 6-2-304, any ¶ person knowingly im- (Wyo.2004). A trial court does not modest, or immoral indecent liberties its it abuse discretion unless acted unreason any knowingly child causing or or encour- ably and denied the defendant a substantial any aging cause an- encourage child to right. Allegations prosecutorial miscon other child to commit with him immor- duct are reviewed with reference to the en guilty felony. al or is indecent act of a hinge tire record and on whether a defen prejudiced dant’s ease has been so as to 14-3-105(a). (c) § Subsection of the statute constitute denial of a fair trial. Mazurek v. specifies person that “child means a under (Wyo.2000). (18) age eighteen years.” § 14r-3-
105(e). Uneonstitutionality [¶ 11] Moe contends that is statute facially A pro
[¶ 9] statute violates due unconstitutional for three reasons: first, under the Fifth Fourteenth gives inadequate cess and Amend no notice of type ments the United prohibited States Constitution on conduct and it does grounds conduct; is vagueness specify second, and void if it fails to a standard give person ordinary intelligence arbitrary discriminatory fair statute allows and enforcement; third, notice that contemplated conduct is for statute offends by statute, process. bidden Giles 2004 WY due contentions ad- These were Evidentiary Rulings Giles. doctrine rejected dressed Giles’ apply that of stare decisis requires we was not [¶ 14] Studie available of facial analysis and the issue conclusions trial, testify defense at counsel vagueness determine that this issue tempted to elicit made the statements Studie and warrants no new consideration settled police through to AW and other witnesses’ appeal. testimony police reports. The State ob jected grounds hearsay, and the trial as- In his unconstitutional [¶ 12] objection. ar court sustained the Moe now argument, Moe applied contends refusing trial gues the court erred statute, applied to the indecent liberties testimony. object admit this After State ease, unconstitutionally vague facts of his ed, proffer Moe made a to the indicat court statutory no language provided testify ing that AW had could Studie indicating intercourse with six AJB took notice consensual made statements hand him to Moe’s and led the bedroom. year criminal behavior because teen old was trial court determined statement did degree conduct not offend third does exception hearsay fall under an Wyoming, In sexual sexual assault statute. Later, trial rule and inadmissible'. age of sixteen contact with a child under police court refused to allow officer Wyo. felony degree sexual third assault. testify police about Studie’s statements to the 2—304(a)(i)(LexisNexis 2003). Ann. Stat. 6— officer, ruling that these statements years Because the here sixteen victim any excep not admissible under old, violate sexual contact with tion. degree the third sexual assault statute. However, previously have determined we denying' admis- contends age that extreme differences between eyewitness’s of an that con- sion age and a description adult minor over of sixteen AB’s had tradicted that Moe *6 her her into a activity coerced and forced bedroom engaged consensual sexual by any that were not available other in violation still constitute indecent liberties prejudicially to show consent de- means l4-3-105(a). Pierson, at 1124. of right present him his nied constitutional complete The consent of a minor not a requires State defense reversal. charge lib the of indecent defense properly contends that the district court de- Id. at 1126. erties. prove nied admission when Moe failed to [¶ 13] Pierson addressed the contention unavailable, the provide failed Studie that, pro- degree because sexual notice, third assault required failed to demonstrate sixteen, age provided by of the inde- vided of consent evidence was not other same consent; evidence of and failed to demon- applied cannot to an cent liberties statute be hearsay to the court that Studies’ strate activity consenting with a mi- adult’s sexual by supported circumstantial statements were Id. at 1124-25. age nor over of sixteen. upon guarantees of Based trustworthiness. Pierson determined that the indecent liber- factor, agree this last we the State’s conduct; may apply statute to this how- ties position. ever, Pierson limited the statute’s reach jury, looking cases at all of the those where portions relevant of [¶ 16] The circumstances, child’s determines W.R.E. 804 state:' informed consent or the consent (a) unavailability. Definition of to secure violated —“Una- adult’s conduct consent vailability as a-witness” includes situations indecency 1125-26. Moe’s standards. in which the declarant: presents nothing we factual situation previously found have not (1) considered by. ruling court exempted Is of the constitutional, and, again, once we hold testifying ground privilege from concerning subject the indecent statute is not unconsti- matter state- liberties of his ment; or tutional.
(2) refusing testify opportunity prepare con- for and contest Persists Third, cerning subject hearsay. matter of his statement admission of the the truth of so; despite the court to an order of do or the matter must be asserted evidence of a Fourth, (3) hearsay material fact. memory lack state of the Testifies statement; ment subject probative any must be more than matter of his or other procured evidence which be through could (4) present testify be or to Is unable to Fifth, finally, reasonable efforts. hearing at the of death or then- by supported statement must be circumstan existing physical mental illness or infir- or * * guarantees tial of trustworthiness *.” mity; or (Wyo.1986) Crozier v. (5) hearing absent from the and the Is (quoting Schmunk v. proponent of his statement has been un- (alterations (Wyo.1986)) in original). As procure by process attendance able to his friend, Moe’s roommate and Studie was not a or means. other reasonable witness, disinterested his statement was not A not unavailable declarant is as wit- by any testimony, corroborated and he refusal, exemption, if claim ness may have had an incentive to lie to AW when memory, inability, lack or absence is AW confronted front of Moe Studie either procurement wrongdoing due to the friendship out of fear or during proponent of his statement for the police investigation implication. for fear of purpose preventing witness from guarantees These are not circumstances attending testifying. trustworthiness that would have allowed (b) Hearsay exceptions. following —The proper testimony, admission and we by if not excluded rule find the trial court not err. did declarant as a witness: is unavailable party name and trial be meet adverse and the ment is offered as evidence of a material fact; the court evidence. and the served can specifically and exceptions stantial (6) [*] admitted under proponent (C) [*] n [*] procure through other evidence it, with a fair (B) Other by point his intention party sufficiently in guarantees of hearing interests particulars the'statement address of admission determines However, covered but general Exceptions. for which having equivalent opportunity to it makes known to of purposes the declarant. this to offer the which provide a statement justice reasonable the statement into trustworthiness, —A is more it, exception of the is offered than advance of the (A) statement not including of will best the adverse these rules prepare *7 proponent statement foregoing probative may circum- efforts; unless state- not be to if ror, reasonable ble more error ing abused its discretion record to determine if the defendant’s case ible error. torial misconduct denial of a fair trial. Prosecutorial Misconduct has been so during objected his (quoting English overruled, argument, that (Wyo.1999)). contends standard. favorable verdict.” the State’s personal constituted probability We [¶ to are reviewed under our appellant prejudiced 17] that, was to the review we will Moe beliefs. by looking prosecutor during closing In his final viewed closing argument, by allowing impermissi has the misconduct v. allegations exists, Mazurek, only objection only prosecutor’s as to constitute a If in totality, have burden of the trial court absent the er reverse at the entire and revers arguments enjoyed argument, prosecu- P.3d several insert which made prov if “a at ing right “[I]n order un- for admissible that a substantial has been denied him, and, exception 804(b)(6), result, der the catchall materially [Rule as a he has been W.R.E.], prejudiced. requirements certain must be satis- Mitchell v. First, (Wyo.1999). party’s
fied. failing the declarant must be unavail- 723-24 As Second, party timely object improper able. closing argu the adverse must either to an given ment, have pretrial appellate been notice or a sufficient threshold for reversal is During closing and miscarriage jus after risk rebuttal “a substantial jury’s (Wyo. directing the attention to the State’s tice.” Dice record, police, exhibit Moe’s statement 1992). Reviewing we con the entire prosecutor argued: prosecutor’s comments clude that jury’s on the ver far, a deleterious effect good. pretty have So so Sounds reason- words, dict. two first sentence of his able. Last curred been a tions the —what an indecent of evidence ine at 16 had [Prosecutor]: that I’m consider gize. expectations times earlier es, going to my parents. becoming a witness. He said [*] out into his tains. [defense [Defense [*] One you’re expecting a things to kind n [*] today about her future I’m Moe here. person He’s they have a pregnant. made you have those rose-tinted closing, counsel] asked counsel]: Your look the future holds when going liberty. [AB’s] complains that an indecent are cranked for the putting Clearly, I think there is tons chuckle because Everybody agrees that it’s by who perfect. kid. to have to and I’d level he has kids and It’s I’m prosecutor: items that baby, I maintains, future, about not a It’s not a going up her some Honor, personal maturity. object plans object. He’s this a sat back big and I to live with liberty oc- deep can following he main- you you find confront deal I big to that. and having beliefs couple apolo- glass- imag- ques- rose, And deal and her can I’m innocently house, he can have sex with. it. back into the statement statement, ies. He’s statement Mr. Moe tells gentlemen. You’ll read in there duct that he’s tion tells This is a statement on walk into his offers they accosted distressed, that from And it’s This And, is sexual He’s by couch, watching a you do and and to see spin not has washing Mr. is not a situation where first time viewing them ladies that he was against he viewing hang' and he walked they cyele. not the Moe. how perceives if she nature. observing laundry house, minute machine people out with and watch mov- they his Another sexual them as an would one only gentlemen, the last time innocently sitting not as visitors room he act based It’s how he’s being movie and that he these you point 16-year-old guy and she’s time, up like him to kick interprets what to be somewhat Mr. and that who and sexual. this woman. girls engage [AW] object Moe’s ladies and jumps up upon wants Mr. this con- playfully tells I observa- he sitting would goes girls own sex. you It’s his going I’m to overrule the ob- The Court: you that like that maintain to it’s conduct jection. activity makes what Mr. like liberty immoral Moe did an indecent and view a 16- [Prosecutor]: The —the justification you to return a provides year-old has confronted with an 34-year-old guilty. men should verdict of *8 optimistic going event like 16-year-old girls and looking at not be 16-year-olds that’s all know. thought that into his mind is first comes they everything, they’ve They know are — spin my get cyele I wash- how can they’re ready everything, and experienced wants ing up cranked so she to machine so is conquer the world. And it to illegal, it jump me. That is in bed with surprise that takes stand [AB] and it makes that man inappropriate, it all. I know you, thought I’ve about tells you. guilty. Thank coming ready. I’m by gosh what’s contends the first state- that make her mature? Does Does vouching by improper worldly] and ment experienced, able to constituted make her jury intentionally misled the Certainly prosecutor and the rest of her life? deal with authority figures all believed things to believe that probably all said like not. We liberty Moe ar- had occurred. 16. an indecent we were 1214 (d)The part
gues
argument
of the
prosecutor
the second
should refrain from
disprove
to
evidence of AB’s
jury
intended
which would divert
maturity
give
prosecutor
and the
duty
to
consent
from its
to decide the ease on the
personal
improperly
evidence,
discussed
own
by injecting
be-
issues broader than
general
havior and
beliefs about sixteen-
guilt
of the
innocence
accused under
year-olds
discussing the
law,
rather than
evidence
controlling
by making
predic-
year
particular
maturity.
of this
sixteen
old’s
consequences
tions of
jury’s
of the
part
Moe also claims that
the third
of the
verdict.”
argument stated
misstated his
above
state-
¶ 27.
Wilks,
inaccurately
police,
portrayed
ment to
goal
Because the
of the
[¶21]
involving spin
evidence as sexual innuendo
justice system
criminal
is the attainment of
cycle
disregarding
while
Moe’s claim that he
justice,
prosecuting attorney
the role of the
up
made
cheer
the statement to
AW who was
differs from
that of
advocate in a civil
upset,
inaccurately proclaimed that adult
prosecutor’s special
ease. The
role has been
year
looking
girls
men
old
illegal
at sixteen
States,
in Berger
described
v. United
which
improperly
jury’s
interfered in the
78, 88,
629, 633,
U.S.
55 S.Ct.
appellant case has supporting contention unequal
record statute, of the liberties
application indecent in the possibility problems outlined
dissenting opinion There con- exists. be prohibited, that should but is left
duct be