Derald L. MOE, Petitioner, (Defendant), v. The STATE of Wyoming, Respondent, (Plaintiff).
No. 03-139
Supreme Court of Wyoming.
Nov. 23, 2005.
2005 WY 149
[¶15] With respect to medical testimony, “[w]e do not invoke a standard of reasonable medical certainty with respect to such causal connection. Testimony by the medical expert to the effect that the injury ‘most likely,’ ‘contributed to,’ or ‘probably’ is the product of the workplace suffices under our established standard.” Pino v. State ex rel. Wyo. Workers’ Safety & Compensation Div. (In re Pino), 996 P.2d 679, 685 (Wyo. 2000) (internal citations removed). There is testimony in the record from P.A. Loflin that Ms. Taylor‘s current problems “probably do relate to that initial injury on the 2nd of March 2002.” However, a hearing examiner is entitled to disregard an expert opinion if he finds the opinion unreasonable, not adequately supported by the facts upon which the opinion is based, or based upon an incomplete and inaccurate medical history provided by the claimant. Franks v. State ex rel. Wyo. Workers’ Safety & Compensation Div. (In re Franks), 2002 WY 77, ¶18, 46 P.3d 876, 879-80 (Wyo. 2002); Clark v. State ex rel. Wyo. Workers’ Safety & Compensation Div., 934 P.2d 1269, 1271 (Wyo. 1997).
[¶16] It is the obligation of the trier of fact to sort through and weigh the differences in evidence and testimony, including that obtained from medical experts. Morgan v. Olsten Temporary Services, 975 P.2d 12, 16 (Wyo. 1999). “The task of determining the credibility of the witnesses and weighing the evidence is assigned to the [hearing examiner], and its determination will be overturned only if it is clearly contrary to the great weight of the evidence.” Hurley, 6 P.3d at 138.
“Where the testimony of a disinterested witness is not directly contradicted but there are circumstances which controvert the testimony or explain it away, or if such testimony is clouded with uncertainty and improbability, or otherwise appears to be unreliable or unworthy of belief, the trier of fact is not bound to accept it. Justice does not require a court or jury to accept as an absolute verity any statement of a witness merely because it is not directly or specifically contradicted by other testimony, and there are many things which may properly be considered in determining the weight that should be given the direct testimony of a witness even though no adverse verbal testimony is adduced. If such testimony is evasive, equivocal, confused, or otherwise uncertain, it may be disregarded.”
[¶17] While we recognize that evidentiary conflicts exist and the parties dispute the proper weight to be given the evidence, we find that substantial evidence exists to support the findings of the hearing examiner. Because the testimony of P.A. Loflin could properly be construed as equivocal and based upon an inadequate medical history, the hearing examiner was not required to accept it. Additionally, Ms. Taylor‘s discharge from physical therapy in July 2002 and her admission that she was pain free for several months thereafter support the finding that her initial injury had resolved by July 2002. In light of such evidence, the hearing examiner could reasonably have concluded that Ms. Taylor failed to establish a causal connection between her current medical problems and the 2002 work injury.
[¶18] The decision of the OAH is affirmed.
Representing Petitioner: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, JJ., and STEBNER, D.J., Retired.
GOLDEN, Justice.
[¶1] A jury convicted 34-year-old Donald L. Moe of one count of taking immodest, immoral or indecent liberties with a 16-year-old girl in violation of
FACTUAL CONTEXT
[¶2] In this Court‘s original opinion in this case, we set out the facts and circumstances of the events of the afternoon of October 20, 2002, when the alleged nonconsensual sexual intercourse between Moe and AB occurred. In order to provide the factual context in which the instant legal issue is framed, we find it useful to relate in more specific detail the events of that afternoon and the events at trial as disclosed by the record. Around noon that day, AB, her 15-
[¶3] As soon as AW and DE returned to the trailer, AW and AB left the trailer, leaving IB, DE, Moe and Studie at the trailer. AW and AB drove to a convenience store to call AB‘s parents and tell them they would be late; they were supposed to be home by 4:00 p.m., and it was then about 3:50 p.m. At the convenience store, AB told AW about Moe‘s assault. AW and AB were gone from the trailer for about fifteen to twenty minutes.
[¶4] After AW and AB returned to the trailer, AB and DE left the trailer to see AB‘s friend, Mike. AW and IB remained at the trailer with Moe and Studie. At this time, neither Moe nor Studie said anything about “the incident” to AW and IB. AB and DE went to Mike‘s home, but he was not there; at this time, AB told DE about Moe‘s assault. Next, AB and DE went to see AW‘s friend, Bradley, at his workplace. For about three minutes AB told Bradley about Moe‘s assault.
[¶5] After talking to Bradley, AB and DE drove back to Moe and Studie‘s trailer to pick up AW and IB. AB, DE, AW, and IB then left the trailer. When they were about one to two blocks away from the trailer, AB became upset, AW asked her what was wrong, and, according to AW, “it took a few minutes” before AB told her what Moe had done. AB got out of the car and walked home. AW turned the car around and returned to Moe and Studie‘s trailer. At the trailer, AW confronted Moe, and then Studie.
[¶6] At trial, Moe‘s counsel cross-examined AW about her confrontation of Moe and Studie. AW testified that, in the confrontation, Moe denied that AB had told him “no” and said their encounter was consensual. Moe‘s counsel then asked about AW‘s confrontational conversation with Studie. AW testified that she turned to Studie and asked, “Tell me what happened.” The prosecutor objected, claiming that Studie‘s statement to AW was inadmissible hearsay. The trial court sustained the objection. Moe‘s counsel then asked AW what her understanding was, after her conversation with Studie, as to what Studie believed about what happened between Moe and AB. The prosecutor again objected on hearsay grounds, and the trial court sustained the objection. Moe‘s counsel then told the trial court, “I would suggest that the hearsay is admissible because of declarant unavailable.” Moe‘s counsel told the trial court that he was willing to make an offer of proof as to his investigator‘s efforts to locate Studie. Moe‘s counsel said that Studie had told AW, when she confronted him and Moe, that he did not see anything wrong. The trial court said that Studie‘s statement did not fall within one of the hearsay exceptions.
[¶7] The trial court then recessed for thirty minutes. Following the recess, the trial court told the prosecutor and Moe‘s counsel that it had reviewed
DISCUSSION
[¶8] In Moe‘s appellate brief, Moe asserted that Studie‘s statements to AW were admissible under
[¶9] First, the record clearly shows that in trial Moe failed to raise the present sense impression exception to the hearsay rule. When the trial court sustained the prosecutor‘s hearsay objection, Moe only told the trial court that “the hearsay is admissible because of declarant unavailable;” Moe then said he was willing to make an offer of proof as to his investigator‘s efforts to locate Studie. Moe‘s use of the term “declarant unavailable” seemingly invoked
[¶10] Second, on appeal Moe failed to analyze the issue under our plain error standard of review, the elements of which are well-settled and need not be stated here. That failure aside, Moe‘s appellate position on the present sense impression exception is not supported by cogent argument or pertinent authority. The most that Moe offers in his brief, at page 34, is “[t]he statements of Studie should have been admissible under
[¶11] Third, on the merits of the issue, there can be no doubt that Studie‘s statements to AW when she confronted him do not meet the requirements of a present sense impression exception under
- the declarant perceived an event or condition;
- the declarant utters a statement which describes or explains the event or condition perceived;
- the declarant utters that descriptive or explanatory statement while perceiving the event or condition or immediately after perceiving the event or condition.
[¶12] According to Moe, AB‘s consent to sexual intercourse with Moe was a crucial fact that needed to be established because that was Moe‘s theory of defense. According to Moe, Studie‘s statements to AW were evidence of that crucial fact. As applied to Studie‘s statement to AW, the first element
- After the “event,” AB waited about five minutes for AW and DE to return to the trailer.
- As soon as AW and DE returned to the trailer, AB and AW left the trailer and drove to a convenience store, called AB‘s parents, and then returned to the trailer, having been gone about fifteen to twenty minutes.
- As soon as AB and AW returned to the trailer, AB and DE left the trailer to see AB‘s friends Mike and Bradley; AB talked to Bradley for about three minutes. The exact amount of time before AB and DE returned to the trailer is unknown, but conservatively the amount was at least ten minutes.
- As soon as AB and DE returned to the trailer, they picked up AW and IB and drove away. They drove one to two blocks before AB emotionally told AW what Moe had done to her in the bedroom. AB got out of the car and started walking home, and AW drove back to the trailer and confronted Moe and Studie. The exact amount of time elapsed before AW returned to the trailer is unknown, but conservatively the amount was at least five minutes.
- Adding the foregoing amounts of time, one finds that at least thirty-five minutes elapsed between the “event” and Studie‘s statements to AW.
[¶13] Research of our cases in which the present sense impression exception was in issue revealed no case in which this Court had to interpret the term “immediately thereafter” in a context similar to the time frame in this case. See Glenn v. State, 2003 WY 4, ¶¶ 8-12, 61 P.3d 389, 392 (Wyo. 2003); Kolb v. State, 930 P.2d 1238, 1246 (Wyo. 1996); Young v. State, 849 P.2d 754, 766 (Wyo. 1993). A dictionary definition of the word “immediately” is “without interval of time; straightway.” Merriam-Webster‘s Collegiate Dictionary 578 (2000). The authors of a leading evidence treatise inform us that
[t]he time requirement is strict, for it is the major factor in assuring trustworthiness.... The phrase “immediately thereafter” accommodates the human realities that the condition or event may happen so fast that the words do not quite keep pace, and proving a true match of words and events may be impossible for ordinary witnesses, so it would be foolish to require a statement to be truly simultaneous with the event or condition. The exception allows enough flexibility to reach statements made a moment after the fact, where a small delay or “slight lapse” ... is not enough to allow reflection, which would raise doubts about trustworthiness.
More significant delays—those measured in minutes or hours ... bar resort to
F.R.E. 803(1) because they do permit time for reflection and lessen or remove the assurance of trustworthiness.4
[¶14] Because we review evidentiary rulings against an abuse of discretion standard, it is evident that the meaning to be given the phrase “or immediately thereafter” is a matter for the exercise of sound judicial discretion. The phrase should not be used to admit statements that do not fit within the rationale of the exception. Studie‘s statement to AW approximately thirty-five minutes after the event does not fit within that rationale.
[¶15] Based upon the above and foregoing analysis, we find no error. We affirm Moe‘s judgment and sentence.
VOIGT, Justice, dissenting, with which STEBNER, District Judge, Retired, joins.
[¶16] While I concur with the rationale and result of this limited opinion, I continue to dissent for the reasons set forth in Moe v. State, 2005 WY 58, ¶ 27, 110 P.3d 1206, 1215 (Wyo. 2005) (Voigt, J., dissenting).