*1 (Wyo.1989), proof for an to form instance when the insufficient the evidence was larceny guilt a was suffi- for a inference bailee held to be the reasonable basis appel- (the complex to beyond reasonable doubt cient facts were tried the a Hospital. for Memorial jury). a bailee rather than The law lant was court to appel- possible the found the larceny it is Since theft and has been recodified and basis, must reverse. on that guilty lant language simplified, proof has its specific the crime must still be bailee, of a statutory definition The against the beyond-a-rea- made and tested 6-3-402(b), simply: accompanies § “ Wyo.Stat. sonable-doubt standard. 6-3- § person than the means a other ‘Bailee’ 402(d) (1988). 2 LaFave & See also Scott, possesses rightfully property who owner supra at 8.1 6-3-401(a)(i) §§ Criminal Law Wyo.Stat. Substantive property.” § 8.8. to (1988). bailee was the That definition of a jury concern- given instruction to the holding, In so we do not condone the subject perti- all of bailment. the propose suggest appellant’s actions or instances, proper- nent the “owners” at remedy that no law exists. This matter services) in this case ty (money or at issue had, inception, markings the from its of a possession, of gave “ownership,” not mere problem the appellant civil between property appellant. See Wells Hospital. appellee The failed in Memorial (Wyo.1980). No 613 P.2d the of a its effort to establish existence agreement be- express bailment existed to deceive or defraud. crime intent anyone paid appellant who tween brief, appellee In its used terms such as him. not instructed money to “bilk,” billed,” billed,” “over and “double subject, reasonably could it have nor great at trial and a deal beyond a reasonable doubt inferred along those same lines. law implied or that an constructive necessarily not such does define behavior being. into came See Cox bailment criminal, being though might even as 651 P.2d readily remedy subject civil organized taught The classes were courts. knowledge. Hospital’s full with Memorial with instructions Reversed and remanded which can be drawn fairest inference judgment the district court enter a Hospital that Memorial from the record is guilty of the finding appellant not appellant like final did not result. charged. crimes the definition simply was not a bailee under jury. note given a “bailee” decision, by this we do intend “high spоrt” of a perpetuate stakes narrow borderline be- riding
defendant bailee, embezzlement, larceny by
tween Wayne R. pretenses. and false & LaFave (Defendant), RIVERA, Kerry Appellant Scott, Je., Austin W. Substantive CRIMINAL (1986). Stapleman v. 8.8 See also Law 680 P.2d Wyoming, The STATE of States, Wyo. v. United McCann (Plaintiff). Appellee (1880). actually If the facts which were No. 90-163. jury in this presented to the case crimes, against any one of those measured Wyoming. Supreme Court If basically same. the result would be 30, 1992. Oct. prove that appellee intended to bailee, appellee would appellant was a Rehearing 1993. Denied Jan. by producing ad- achieved that result importantly, by proof more ditional given
having additional instructions State,
jury. Tennant v. See *3 Program, Defender Public Munker, Defender,
Leonard D. State Public Slaughter, K. Donald Asst. Public Defend- er, Counsel, Gosar, Appellate ap- Dave for pellant. Gen., Atty. Sylvia L.
Joseph Meyer, B. Hackl, Gen., Mary B. Deputy Atty. Guth- rie, Gen., appellee. Deрuty Atty. C.J., MACY, THOMAS, Before CARDINE, URBIGKIT,* GOLDEN, JJ.
THOMAS, Justice. in this emanat- primary issues on of sexual assaults from convictions admissibility girls, two minor relate Kerry Rivera Specifically, of evidence. (Rivera) occurred contends that error profiling; into evidence of admission opinion evidence on the admission guilt; of other bad acts and evidence 404(b). A Wyo.R.Evid. further violation respect to significant claim is raised with jeopardy clauses of of the double violation arising and federal constitutions state charges convictions indecent out of argument. at time of oral * ChiefJustice in- MB in March of 1988. MB each also was and sexual
liberties years include the claim old at the time of the assault. issues sixteen stance. Collateral a claim of credit error and The sexual assault count with cumulative imposed because of charged provi- the sentences MB as a violation of the against error 6-2-302(a)(i), We hold no pretrial confinement. sions of and the sexual as- respect to admission of evi- occurred sault BJL was as a viola- but, in 6-2-302(a)(iii). in this ease provisions dence tion of the of § liberties, properly charge indecent while After a trial resulted in convictions merged jury, into the presented counts, all Rivera was sentenced to not less purposes charge of sexual assault years than five nor more than ten on each accept the concession of punishment. We minor, charge indecent liberties with *4 pre- issue of state with not less than six more than ten and to nor judgment confinement. The and sen- trial charge first-degree of years on each of ex- of the trial court are affirmed tences assault, provision that all sexual cept that one sentence for indecent liberties concurrently. four sentences were to run aside, properly credit is to be is set and addition, judgment pro- In and sentence pretrial confinement. awarded given vided that Rivera was to “be credit Springs County for time served the Hot with, and convicted Rivera was Jail, days, in the amount of 282 said credit of, first-degree assault in violation applied against to be the minimum and 6-2-302(a)(i) (1988) in Wyo.Stat. § maximum sentence ordered herein [empha- instance, 2—302(a)(iii) Wyo.Stat. and § 6— sis added].” (1988)1in and the other violations (1986)2 Wyo.Stat. 14-3-105 with re- § Appellant, In his Brief of Rivera states spect separate minor female victims. two the issues as follows: 1989, BJL, August years then sixteen profiling I. Whether evidence of DNA old, complained of a sexual аssault Riv- properly admitted at trial. investigation era. In the course of the Appellant’s II. complaint, Whether constitutional law enforcement officers right abrogated information of an earlier assault to a fair trial was when received 1. which pertinent statute is found in Wyo.Stat. ished as follows: who does not subsection felony punishable by imprisonment assault shall terms of subsection less than five tim calculated to cause submission of the (50) years; a victim commits (a)Any degree if: (b) An actor who is convicted of sexual (i) (a) An actor convicted of sexual assault (iii) (i) The actor causes submission of the vic- penalty provision for the sexual assault physical victim has not through actor knows or provides, Sexual part: actor who inflicts victim is [******] [*] victim is (b) force or forcible the actual 6-2-302(a) аssault in the first (5) years [*] of this section qualify Wyo.Stat. § pertinent part: punished by physically helpless a sexual assault in the first consented; reasonably (c) of this section if: [*] physically helpless, application, reasonably under the criteria of nor (1988) sexual intrusion on [*] more than confinement; 6-2-306 shall be or the extended should know provides, [*] degree * * and that for not victim, (1988) *. [*] pun- fifty is a and 2. Wyo.Stat. tentiary not more than ten for not less than five first or second act is shall be fined not less than one hundred dol- who gree commit with child to lars dollars or immoral or lows: more (b) Any person knowingly taking (i) Sexual assault in the (c)An actor convicted of sexual assault (i) knowingly causing of this section shall be ($100.00) qualifies is a He is guilty separate acts ($1,000.00) ****** [******] cause or felony punishable by imprisonment § 14-3-105 being indecent under the criteria of subsection him nor more than one thоusand degree; felony, encourage sentenced for two of sexual assault in liberties with imprisoned (1986) (5) years immoral or indecent or (10) years, first or second encouraging any punished another child to provides: or for conviction immodest, any or both. as fol- (2) peni- child life; de- or interrupted in con- than more once the trial court admitted argument apparently travention of Bennett State. terminated light removed bulb. Appellant’s constitutional III. Whether jeopardy from double be free asleep, again, BJL fell but la- awakened was violated. to discover had pulled ter that Rivera down improperly the trial court IV. Whether jeans panties past her He her knees. purported prior bad admitted evidence top of pen- was on her and had achieved acts. vagina of her with his BJL penis. etration Appellant’s Whether convictions V. get her told Rivera off of after pursuant the doc- be reversed while, should complied went into bath- error. trine of cumulative got up boy- BJL room. went to her credit- Appellant apartment nearby. Whether should be friend’s which was She VI. credit- days boyfriend ed with 282 time served to be happened told her what had minimum ed the maximum and night apart- rest spent the at his Appellant’s concur- phases terms of all Although ment. BJL testified that she rent sentences. slept boyfriend, in the same bed with engage said she did includes the same State following morning, intercourse. The Appellee, re- in its Brief of issues *5 police boyfriend took BJL to the station them in this fashion: states complaint against where she made her Riv- relating I. Whether the police then erа. The officers took her to properly profiling was admitted. examination, hospital a medical the where a psychologist, II. a clinical Whether kit, including a rape the utilization of was hospital and a social school counselor Charges and performed. gave opinions Appel- the worker their indecent a filed liberties with minor were guilt. lant’s against Rivera. Appellant have III. Whether the should degree tried first sexual assault been police investigating The officer the accu- taking a child. and indecent liberties with might that MB have sation BJL learned information that was material. The officer as- IV. Whether evidence of earlier prosecutor sought the MB as a Appellant properly in- and out saults the was investigation MB 404(b), revealed troduced under Rule W.R.E. witness. Their counselor; the contacted her school told was error. V. Whether there cumulative by Riv- raped that she had been counselor Appellant VI. Whether should era; sought with and the counselor’s advice given credit on concurrent sen- she the in- to whether should tell pretrial incarceration. tences coun- vestigator prosecutor. and the The investigation The of Rivera was institut- tell selor advised she should them about complaint by she ed because of a BJL that this event. August, sexually assaulted in had been police MB facts the disclosed these drinking BJL at a 1989. had been beer prosecutor. officer and the In March she that she party night, that testified living with MB and her father were evening, Earlier in the was intoxicated. (MB’s husband), her who aunt and relatives argument her she boyfriend, an with after in-laws, in future a also werе Rivera’s him. She was discuss- up had broken with - a dwelling Thermopolis. was Rivera wife, with and his and Riv- this Rivera MB and Rivera member of that household. the stay invited at their home for era her to when MB went to were alone the house gone had in the night. wife to bed Rivera’s obtain Rivera’s fiancee’s bedroom to bedroom; living in the room on Rivera was her typewriter with to do homework. couch; living and the victim was time, his asked her to rub At that Rivera they BJL room on floor while talked. administering the off, While she was back. then dozed but was awakened because rub, hand and grabbed her arguing back Rivera and his wife were about pants, making contact being sleep Her it down his light on in the bedroom. shoved sup- file a protested, MB and Rivera Rivera did motion in limine to penis. with his her despite press concerning “Post-Trau- her on bed then threw (the Syndrome” rape-trauma her stop he and leave matic Stress that should insistence alone, accomplished syndrome) intercourse which was denied. The witness- finished, Rivera includes in this asserted penetration. When he was es whom with room, following not to tell testified in the order: telling after issue he left officer; worker; police hospital social anyone. emergency technician at the medical immediately MB took a shower because hospital; nurse who assisted BJL’s “dirty.” day, The she felt next she wrote examination; examining physi- medical sister, informing had been to her she letter victims; counselor; cian; the school raped by Rivera. She asked her sister psychologist. police and the clinical The away reading it be- the letter after throw investigated officer testified he had was afraid someone else would cause she rapes physi- to 300 that absence rape. find out read about injuries testi- cal unusual. He also incident, told a friend day after MB way fied about his observation of the vic- raped by About that she had been Rivera. behaved, tims BJL acted how later, to whom she called the sister week presence investiga- at the initiation of she had written the letter and discussed hospital tion. The social worker testified time, her. At MB told her rape with general rape the reactions in vic- about anyone she had not told else sister tims as she had them. She also observed she it would family because was afraid as to BJL’s and demean- testified behavior aunt problems everyone and her cause before, during, following the medi- make her and her father move out of would performed. cal examination living. where the house emergency medical techni- *6 in the first de- charges of assault nurse, examining respectively, cian and the gree indecent minor liberties with a examining the same was of tenor. The alleging MB filed the violation of then were physician stated demeanor was BJL’s the same and later consolidated with “flat,” depressed, somewhat and tearful at arising charges complaint out of the course, times. Of of the Additional facts included BJL. will be victims included not the actual events issues connection with discussion of addition, but, of the sexual their assaults by Rivera. asserted feelings reactions and to what first address the issue of high had occurred. The school crisis coun- by truthfulness a as to the of the victims selor testified about MB’s emotional state psychоlogist, a at the clinical social worker discussing upon her and while assault high hospital, and the school counselor. reactions to that the coun- assault with far-ranging, although claims are Rivera’s psychologist The clinical testified as selor. specifically his reference to Bennett discussing rape expert, symptoms an P.2d 879 would general, stages and the victims and the upon testimony opinion an seem to focus stages timing of the of sexual that victims guilt. as to Rivera’s The claims seem through. it go assault He also testified is upon admissibility an attack of the include not unusual for female victims of sexual rape encompassing the trauma report evidence assaults not to the sexual assaults argument move to about the syndrome, feelings and discussed their of shame and experts amounting fеelings a com- their that the assault have victims, veracity by part, on the of the caused some conduct on their ment is, may the testi- fault. None then culminate claim that that been their upon expressed opinion Rivera’s an as mony constituted comment of these witnesses victims, guilt. credibility of these are sus- of the nor did None contentions prece- any opinion guilt by the record in the case or state as to Rivera’s tained Wyoming. dent in or innocence. victims, vouching credibility of the discusses testimony that
Expert constituting any testimony there nor was of sexual characteristics the behavior guilt. opinion an as to Rivera’s responses range of and the victims assault experts is assault encountered argues evidentiary a claim of Rivera also State, 732 P.2d admissible. Scadden arising admission improper out of the error testimony is rele (Wyo.1987). Such uncharged of other bad acts into evidence explaining to the helpful in vant 404(b). Wyo.R.Evid. He con- contrary to of adolescent patterns typical behavior violated admission of this evidence tends Griego v. of sexual assault. victims constitutionally guaranteed It assists the (Wyo.1988). P.2d 973 presumed innocent. Rivera he must be aspects understanding of the some a claim that in his motion limine included long as so of victims of the behavior ex- of other acts should be bad credibility or on the is no comment there denied based cluded. That motion was victims, in it does not of the truthfulness prosecution upon the affirmation jury. Zabel province of the vade the mo- testimony would demonstrate The order 404(b) tive, intent, plan. Wyo.R.Evid. or at Riv testimony of the witnesses provides as follows: trial, testimony of together with the era’s crimes, acts.—Evi- wrongs, or Other skillful, victims, strategic, and crimes, wrongs acts is of other dence prosecutor. Even tactical decision prove the character of not admissible to testimony did corroborate though the acted person in order to show that he victims, is and one effect of corroboration may, howev- conformity therewith. It credibility of the support or bolster er, purposes, for other be admissible witnesses, to a viola that does not amount motive, proof opportunity, such as against vouching for credi the rule tion of intent, plan, knowledge, preparation, bility. identity, mistake or acci- or absence of [emphasis dent added]. cases, expert per
Under our
trial,
prosecution called as wit-
At
sоmeone is a
opinion
state an
mitted to
course,
lived in
but,
young
two
women who
nesses
victim of sexual
testified
of those witnesses
credibility
of Utah. One
expert cannot vouch for
after the assault
that in June of
our
victim.
It is well established
BJL, she
*7
the assault on
prior
MB
jury is the arbiter of
but
that the
jurisprudence
consuming too much
out after
expert
passed
had
credibility, and the
or
truthfulness
time, she was
party. At that
pre
alcohol at a
infringe upon that
permitted to
is not
be-
awakened
years old. She was
qualities in fifteen
jury by those
rogative fondling her.
She
State,
Rivera was
941
Pena;
expect
only
present.
pattern
Tru
to find
similar DNA
of discretion is
abuse
250,000
State,
(Wyo. 1988).
in one
individual out of
in the Cau-
jillo
750 P.2d
v.
population. Specifically,
casian
Rivera’s
record,
analysis of the
we con-
From our
concern
the
is that
introduction into evi-
the Utah
of
victims
clude
dence of statistical information
invaded
in the Bishop
factors
meets the
identified
province
of the
in this instance.
testified,
young
of
women
Both
these
test.
contradiction,
parties
general
discuss the
clearly and without
that Riv-
admissi
bility
attempted a
assault
each
of such evidence under the test of
era
relevancy
a time
found in
them at
unable
Cullin v.
helpless.
(Wyo.1977),
Both of
P.2d
or in
and were
those
accordance with
consent
during the
in Frye
occurred
summer of
criteria articulated
v. United
assaults
States,
(D.C.Cir.1923).
in
is not
time from the
293 F.
which
remote
P.2d
charged.
Buhrle
with which Rivera
offenses
quoted
States,
Dyas
this
The material issues that
evidence was
United
demonstrate,
denied,
helped
(D.C.App.1977),
A.2d
to es-
cert.
offered
tablish,
intent,
motive, plan,
were Rivera’s
U.S.
98 S.Ct.
Martinez v.
juries
State,
testing, and
conclusion was that
Dist.1989);
v.
260 Ga.
its
5
Caldwell
State,
dealing
complex
(1990);
technology
with such
278,
Cobey
436
v.
393 S.E.2d
might give
weight and deference
(1989),
undue
31,
A.2d 391
cert.
559
Md.App.
80
such evidence.
In Pearson v.
811
542,
(1989);
denied,
Md.
One matter repeatedly minor. We have noted the cern one court about the duplication. jeopardy probability impact In three-fold of the double statistical Schwartz, (Minn. prohibits clause. We that it 447 N.W.2d have said State v. prosecution 1989), held it was second for the same offense the court error acquittal; prosecution permit testimony from the after an a second trial court to conviction; expert frequency pat the same after a the DNA offense multiple punishments for the same offense. population in the Caucasian tern in issue approximately thirty-three bil Birr denied, 940, 110 S.Ct. publicity noted recent cert. 496 U.S. lion. The court
943
State,
not
in
other.
(1990);
v.
offense is
included
“The
Tuggle
671
110 L.Ed.2d
State,
punished
(Wyo.1987);
properly
v.
defendants can
be
Garcia
(1989); Larry G. State v. Davis: Frye
DNA Evidence and the Use Missouri, (1992); 60 UMKC L.Rev. 577 DeBenedictis, Report
Don J. DNA Raises
Concerns, 1992); ABA 20 (July Journal Stephanie Goldberg, B. A Day New EISENBARTH, Appellant Dennis DNA?, (April 1992); 78 ABA Journal (Plaintiff), Theofilos, Note, Kathryn Korkos DNA Fingerprinting: The Evidence Definitive HARTFORD FIRE INSURANCE COM Trial, Mem.St.U.L.Rev. Criminal PANY, corpo insurance Connecticut (1992); Thompson William C. & Simon ration, and authorized to do licensed Ford, Acceptance Typing: DNA Wyoming, Ap business in the State of Weight the New Genetic Identification (Defendant). pellee Tests, (1989). Compare 75 Va.L.Rev. People Cal.App.4th Barney, 91-230. No. Cal.Rptr.2d questioning lack of Supreme Wyoming. Court laboratory procedures. standardization years, may recognized Nov. 1992. a few profile testimony, although continu- Rehearing Denied Dec. 1992. evidence, hot completely as useful understanding safe from error. Our testing parallels in DNA current
variations analysis and
scientific conclusions about