Metzger v. State

4 P.3d 901, 2000 Wyo. LEXIS 103, 2000 WL 381446
CourtWyoming Supreme Court
DecidedApril 14, 2000
Docket99-85
StatusPublished
Cited by41 cases

This text of 4 P.3d 901 (Metzger 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
Metzger v. State, 4 P.3d 901, 2000 Wyo. LEXIS 103, 2000 WL 381446 (Wyo. 2000).

Opinions

HILL, Justice.

Appellant, David Metzger (Metzger), seeks review of his convictions and sentences for two counts of indecent liberties: -with a child. Metzger asserts that witnesses were erroneously permitted to vouch for the credibility of the victim, that the trial court abused its discretion in denying a motion for mistrial, that the jury was not adequately or clearly instructed, and that the prosecutor engaged in prejudicial misconduct throughout the trial, We conclude that no reversible errors occurred and, hence, we affirm.

ISSUES

Metzger raises these issues:

I. Did the trial court abuse its discretion by allowing one expert witness and one lay witness to testify that they believed the alleged victim when she accused Mr. Metz-ger of these crimes?
II. Should the trial court have immediately granted a mistrial after a prosecution witness testified to inadmissible and highly prejudicial hearsay evidence that included accusations of uncharged misconduct; was the court's failure to do so an abuse of discretion?
III. Was jury Instruction 8, describing the two counts against Mr. Metzger based on the Information filed in this case, ambiguous because it gave the jurors no way to 'distinguish between the two counts charged?
IV. Did the prosecutor deprive appellant of his due process right to a fair trial by: (1) Appealing to the passions and prejudices of the jury, (2) appealing to community outrage in voir dire and in his closing argument, (8) asking questions during his direct examination that encouraged prejudicial hearsay testimony, and (4) addressing 404(b) evidence during his closing argument that was outside the permissible seope of its admissibility at trial?

The State submits this summary of the issues:

IA. Did the district court abuse its discretion when it permitted a witness on cross-examination by the State to testify that his Department of Family Services investigative report, stating that there was insufficient credible evidence to substantiate the child victim's allegations, did not [904]*904mean that he did not believe what the child victim told him?
IB. Was plain error committed when the child victim's father testified that, when she acknowledged to him that she was telling the truth, he believed her?
II. Did the district court abuse its discretion when it denied appellant's request for a mistrial after a child witness testified to what the child vietim had told her?
III. Did the trial court properly instruct the jury with respect to both charges of indecent liberties with a minor?
IV. Did the prosecutor commit prosecuto-rial misconduct in voir dire, in his questioning of witnesses, or in his closing argument?

FACTS

In order to achieve as great a level of clarity as possible, and at the same time preserve the anonymity of child witnesses and their parents, we set out below a list of the principal participants as we will refer to them throughout this opinion:

Metzger: As noted above, he is the appellant in this case.

EM: Is the victim of the crimes of which Metzger stands convicted. EM was Metz ger's niece and was cight years of age at the time of the incidents.

Father: Is father to EM and brother to Metzger. At the time the crimes were committed, Metzger was living with his brother and his family because he was unemployed.

Mother: Is mother to EM.

AG: Is another minor female. Metzger pleaded nolo contendere to taking indecent liberties with her. At the time of that occurrence, she was seven years of age. That event occurred closely in time to the crimes at issue in this appeal. AG was a friend of EM and a frequent visitor to EM's home.

In addition to the above persons, we will also make reference to the testimony of several other witnesses, but their identities will be clear in context as we set out the other material facts pertinent to the resolution of the issues raised in this appeal.

This case originated when EM began having difficulties at school. Her Mother sought the assistance of school counselors in order to address EM's deteriorating behavior and school grades. After an initial evaluation at school, EM was referred to mental health experts for more aggressive counseling and treatment. In the first session, EM broke down sobbing and revealed that Metzger had compelled her to touch his "privates" on two separate occasions. Later questioning disclosed that what EM meant by "privates" was Metzger's penis. Metzger lived in the same household as EM and often served as her babysitter if neither parent nor EM's older brother was available to supervise her. EM's revelations came in early December of 1997, over a year and one-half after the crimes occurred. An investigation was completed, and Metzger was charged with two counts of knowingly taking immodest, immoral or indecent liberties with a child in violation Wyo. Stat. § 14-38-1105 (Michie 1994 Supp.)1

DISCUSSION

Testimony Vouching for the Credibility of EM

Metzger contends that two witnesses were allowed to testify to the credibility of EM, and that those errors are of critical importance in this case because the only evidence supporting the convictions was the report made by EM. We accept the premise that [905]*905the only evidence linking Metzger with these crimes was the testimony of EM.

We embark on our analysis by restating our holding in Stephens v. State, 774 P.2d 60 (Wyo.1989). Our conclusion in that case was that reversal of a conviction for violation of § 14-3-105 was compelled because two expert witnesses who were called to testify by the State were permitted to testify, over defense objections, to their opinions that the victim's father was the perpetrator of the crime. 774 P.2d at 65, 66. No such testimony was permitted in this case. A second part of our holding was that a third expert who was called as a witness by the State was permitted to testify that the victim told him that the perpetrator was his father and, further, in response to the question posed by the prosecutor, "Do you believe [the viectim]?" the expert answered, "Yes." 774 P.2d at 66. Our conclusion in Stephens was that "testimony offering an opinion as to the guilt of the defendant, when elicited by a prosecuting attorney, should be perceived as error per se." 774 P.2d at 68. We also rested our decision in Stephens on the conclusion that it is error to permit an expert to vouch for the credibility of a victim who did testify. Id.

In the instant case, it was the defense who called the so-called "expert" witness who gave erroneous testimony. The record does not reflect that he was treated or qualified as an expert witness, but certainly his testimony suggested that he was a person who could be perceived by the jury as an expert. That witness was Mike Baden, a child protection investigator for the Department of Family Services, who testified under direct examination by counsel for Metzger that he had prepared a report concerning the allegations made by EM. At defense counsel's insistence, she was permitted to treat Baden as a hostile witness. In his report, Baden concluded that EM's complaint was "unsubstantiated" and that "...

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Cite This Page — Counsel Stack

Bluebook (online)
4 P.3d 901, 2000 Wyo. LEXIS 103, 2000 WL 381446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metzger-v-state-wyo-2000.