Jones v. State

2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47, 2010 WL 1508207
CourtWyoming Supreme Court
DecidedApril 16, 2010
DocketS-08-0281
StatusPublished
Cited by5 cases

This text of 2010 WY 44 (Jones 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
Jones v. State, 2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47, 2010 WL 1508207 (Wyo. 2010).

Opinion

GOLDEN, Justice.

[11] Following a jury trial, Kenneth Er-mil Jones was convicted of second degree sexual abuse of a child and sentenced to a term of imprisonment of five to fifteen years. Jones challenges his conviction, raising claims regarding the district court's denial of his motion for judgment of acquittal, the sufficiency of the evidence supporting the jury's verdict, and ineffective assistance of trial counsel. We affirm.

ISSUES

[y2] Jones presents these issues for our consideration:

I. Trial counsel made a Rule 29 motion at the close of the prosecution's case in chief. The [district] court denied the Defendant's Rule 29 motion. Did the district court err in denying Appellant's motion for judgment of acquittal?
II. Was there sufficient evidence to sustain a guilty verdiet in this case for sexual abuse of a minor?
III. Was there ineffective assistance of counsel for 1) failure to seek a bill of particulars in light of an absence of detail about which conduct constituted sexual abuse and/or 2) failure to submit an Eagan instruction?

*869 FACTS

[y38] In September and October of 2007, Jones lived in a mobile home occupied by his girlfriend, LW (hereinafter Mother), and her two young children, RH (age seven) and TH (age six). One morning, Mother returned home early from work and discovered Jones in bed with RH. Mother noticed that Jones' front was pressed against RH's back, in what she described as a "spooning" position. Mother woke Jones, ordered him out of the room, and told him he was not allowed to be in the same bed as her son. However, she again found Jones in bed with RH on another occasion.

[T4] Around mid-October, Mother eviet-ed Jones from the mobile home and instructed him to stay away from her and the boys. She also contacted the Wyoming Department of Family Services and the Gillette Police Department. Following an investigation, which included interviews with both RH and Jones, the State charged Jones with one count of sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(i) (LexisNexis 2009). 1

[y5] At trial, RH testified Jones would crawl into bed with him after his mother left for work, and that both of them would be wearing only their underwear. RH testified that, on those occasions, Jones would place his body against RH's back and his hands on RH's belly. RH also stated there were times he would wake up in his mother's bedroom, lying in bed with Jones. RH further testified Jones occasionally touched him on the parts of his body that his "underwear covers up," both in the "front" and the "back," where nobody is supposed to touch. He stated that when Jones touched him in the back, it was usually when he was in trouble and was getting a spanking. However, when Jones touched him in the front, it was "different" and not when he was in trouble. RH stated Jones' hand would be moving as he touched him in the front.

[y6] Detective Rebecca Elger of the Gillette Police Department testified regarding her interview of Jones, which was conducted shortly after Mother reported his behavior with RH to police and the Department of Family Services. According to Detective El-ger, Jones admitted to sleeping in the same bed with RH on several occasions and eud-dling with him. He reported he felt a void when Mother would go to work and "that he would go and get [RH] and bring him to the bed and cuddle with him, or he would go to [RH's] bed and cuddle with him there." Jones revealed he would get an erection when he cuddled with RH, and that he would always push away from RH because he did not want RH to notice his reaction. Jones also acknowledged he may have touched RH's penis as he was helping RH tuck in his shirt, or at times when RH would sit on his lap to do homework, but he insisted it was always accidental.

[y7] At the close of the State's case, defense counsel moved for a judgment of acquittal. The district court denied the motion, concluding the State had made a prima facie showing of the necessary elements of the charged crime. Thereafter, the defense rested without presenting any evidence. The jury found Jones guilty of the charged offense, and the district court imposed a prison sentence of five to fifteen years. This appeal followed.

DISCUSSION

Denial of Motion for Judgment of Acquittal

[T8] The salient W.R.Cr.P. 29(a) reads as follows: portion of

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, informa *870 tion or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

When ruling upon a motion for judgment of acquittal, a trial court is called upon to determine, as a matter of law, whether in its opinion there is sufficient evidence to sustain the charge. On review of the denial of a motion for judgment of acquittal, this Court has the same duty. Montez v. State, 2009 WY 17, ¶ 18, 201 P.3d 434, 440 (Wyo.2009). We recently reiterated the principles governing a judgment of acquittal motion:

[The district court must assume the truth of the evidence of the State and give to the State the benefit of all legitimate inferences to be drawn from that evidence. If a prima facie case is demonstrated when the evidence is so examined, the motion for judgment of acquittal properly is denied. It is proper to grant a motion for judgment of acquittal only if there is no substantial evidence to sustain the material allegations relating to the offense that is charged. Such a result is indicated if the evidence requires the jury to speculate or conjecture as to the defendant's guilt or if a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime when the evidence is viewed in the light most favorable to the State.

Martinez v. State, 2009 WY 6, ¶ 11, 199 P.3d 526, 530 (Wyo.2009) (internal citations omitted).

[19] Jones disagreement with the district court's denial of his motion for judgment of acquittal primarily rests on his contention that the district court should have considered the rule articulated in Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942) and the corpus delicti rule in evaluating the adequacy of the State's evidence. We reject Jones' contention of error for several reasons.

[y10] First, Jones' reliance on the Fagan rule is misplaced. That rule states:

Where an accused is the sole witness of a transaction charged as a crime, ... his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted.

Eagan, 58 Wyo. at 198, 128 P.2d at 226. As indicated, the Hagan rule applies only to testimony by the accused. Cheatham v. State, 719 P.2d 612, 623 (Wyo.1986), Cutbirth v.

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Bluebook (online)
2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47, 2010 WL 1508207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-state-wyo-2010.