Brown v. State

2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2, 2015 WL 93430
CourtWyoming Supreme Court
DecidedJanuary 7, 2015
DocketS-14-0100
StatusPublished
Cited by11 cases

This text of 2015 WY 4 (Brown v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. State, 2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2, 2015 WL 93430 (Wyo. 2015).

Opinion

DAVIS, Justice.

[T1] A jury convicted Appellant Gregory Brown of one count of attempted second-degree sexual abuse of a minor, but acquitted him of three other child sexual abuse charges. He now challenges that conviction and his sentence on three procedural grounds. Appellant claims the district court erred in not declaring a mistrial after one potential juror made an improper remark and others who were ultimately excused became emotional during questioning at the bench during voir dire. He also asserts that the district court impermissibly invaded the province of the jury by supplementing an instruction on the charge of which he was convicted after the jury expressed confusion about the alleged act to which it pertained. Finally, he argues that he was denied due process because his sentence was imposed more than one year after his conviction. We affirm.

ISSUES

[T2] 1. Did the district court abuse its discretion by not granting a mistrial due to a potential juror's statement that Appellant "should be locked up," and because other potential jurors became emotional during voir dire?

2. Did the district court abuse its discretion in supplementing the jury instructions to reflect the allegations in the Information to clarify the conduct charged?

3. Did the delay between Appellant's conviction and sentencing violate his constitnu-tional right to speedy sentencing?

FACTS

[13] Although the underlying facts of this case are not particularly pertinent to this appeal, we will summarize them to provide context for the charges and proceedings be *1024 fore the district court. When AI. was approximately five years old, her mother married Appellant. As AI. matured, Appellant's behavior towards her became inappropriate and disturbing. Two incidents were the basis for the charges against him with regard to A.L.

[14] The first occurred when AI. was thirteen years old. The victim testified that in the summer of 2007, she had fallen asleep in her bed while Appellant was "spooning" with her. When AI. awoke, Appellant's finger was inside her bra, stroking her near her breast.

[15] The second event occurred in December of that same year. ALI. testified that after watching a seary movie ("Halloween") alone together, Appellant and AI. went to her room to sleep on the bed. During the night, A.I. awoke to find Appellant reaching up her shirt toward her breasts. She pushed his hand away several times before he attempted to put his hand down AL's pants, eventually reaching as far as her pubic hair. Having thwarted Appellant's advance, AL. fell back asleep. She later woke up to find her shirt pulled up and his face between her bare breasts while he touched them with his hands. AI. rolled over onto her stomach and the episode ended.

[16] ALI. initially kept these incidents secret, but later told her mother everything. Al's mother immediately took her and the other children from the home, reported the incidents to law enforcement, and then filed for divorce shortly thereafter. However, she subsequently asked the county attorney's office not to pursue charges because she did not believe Appellant would do anything like he had to A.I. again.

[17] Three years later, A.L.'s mother was disturbed when she learned from her children that Appellant was engaging in the same apparent grooming conduct with his new girlfriend's daughter, K.M. Appellant had been observed lying on his bed with K.M. while they watched television, and he also kissed her on the lips. AL's mother reported her concerns to the Department of Family Services. Appellant was not charged criminally for any of his actions at this point. Soon thereafter, however, Appellant's son recorded a cell phone video of Appellant placing his bare foot in K.M.'s crotch area, which prompted the State to prosecute him for that event and his conduct with A.L.

[18] We now turn to the procedural events relating to Appellant's claims of error. Appellant was charged with four counts of child sexual abuse: Count I, second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)@ii), based upon the first incident where Appellant's finger was inside AL's bra, stroking her near her breast; Count II, second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(a)(iii), based upon the second incident when Appellant pulled up A.I.'s shirt and put his face between her breasts while touching them; Count III, attempt to commit second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-1-801(a)@) and § 6-2-315(a)@iii), based upon the second incident when Appellant attempted to put his hand down AL's pants; and Count IV, third degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(iv), based upon the recorded incident involving Appellant's girlfriend's daughter K.M.

[19] The circuit court held a preliminary hearing, found probable cause on all counts, and bound the case over to the district court. Appellant was arraigned and pled not guilty to all four charges. The case proceeded to trial in due course.

[110] Before voir dire began, the district court told counsel that it preferred to resolve issues during jury selection in open court, even if the cireumstance involved a sensitive matter. Specifically, the judge advised:

I want you to be careful about telling people that they automatically get to come into my office if there is an issue that they feel is sensitive.... I don't have time to take all these people in my office. Some of the things can be resolved at the bench. I realize in a case like this, especially if they were victims of sexual assault or whatever, that they don't want to talk about it in front of everyone, but some of them can be brought up to the bench and we can quietly do it and we can resolve it there. For the ones we can't that we need more time *1025 and more privacy on, we'll come in here. But it will take five days to get a jury if we haul everybody in here. So you are free to tell them if there is something sensitive we can go up to the bench and talk to the judge about it, but don't say we are all automatically going to go into my office.

[111] With these ground rules in place, voir dire began. After swearing in the potential jurors and explaining generally what the case was about, the district court admonished them that they were to answer questions posed by counsel without expressing their opinions about the case, if any of them had formed one. In other words, they were to answer questions concerning whether they had formed opinions either yes or no, and if the answer was yes, to wait for further questioning or direction from the court.

[1 12] Shortly thereafter, when the prosecutor asked whether any potential jurors would have difficulty fairly deciding a case involving sexual abuse of a minor, several raised their hands. The first potential juror called upon said the matter was personal, and she was therefore allowed to approach the bench to explain outside of the hearing of the venire. After she emotionally explained that she had been the victim of sexual abuse, the district court dismissed her for cause without objection from either party.

[1183] After this first potential juror was excused, J.R. was called to be examined for cause in her place. Unfortunately, J.R.

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Bluebook (online)
2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2, 2015 WL 93430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-wyo-2015.