Mitchell v. State

2003 WY 160, 81 P.3d 180, 2003 WL 22938469
CourtWyoming Supreme Court
DecidedDecember 15, 2003
Docket02-256
StatusPublished
Cited by3 cases

This text of 2003 WY 160 (Mitchell 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
Mitchell v. State, 2003 WY 160, 81 P.3d 180, 2003 WL 22938469 (Wyo. 2003).

Opinion

GOLDEN, Justice.

[T1] Appellant Dean Mitchell was convicted by jury of third degree sexual assault and two counts of soliciting a minor to engage in illicit sexual relations. During the trial, the investigating police officer testified without objection that it appeared a sexual assault had occurred out of his jurisdiction. Mitchell contends this statement violated the rule against vouching for the credibility of the victim established in Whiteplume v. State, 841 P.2d 1332 (Wyo.1992). Appellee, the State of Wyoming, contends that this case is distinguishable from those Whitep-lume facts and reversal is not required.

[12] We agree that this case is distinguishable and affirm.

ISSUES

[13] Mitchell presents the following issue for our review:

Whether the rule prohibiting the vouching for the credibility of the "victim" was violated by law enforcement in Appellant's case?

The State rephrases the issue as:

Whether a police officer's testimony, allegedly vouching for the credibility of another witness, constitutes plain error.

FACTS

[T4] On November 10, 2001, twenty-three year old Mitchell and his sixteen-year-old male friend, LR., encountered three girls, thirteen year-old C.M., twelve year-old A.S., and thirteen year-old F.B., in downtown Sheridan. L.R. and C.M. knew each other, and the girls told the males of their plans to go skating that evening at Scotty's Skate Castle. Those plans changed after it was agreed that Mitchell and L.R. would pick up the girls at Scotty's after their parents dropped them off so that the five could be together.

[T5] About 7:00 p.m. that evening, the girls were dropped off at Scotty's, went inside, but did not pay to skate. When Mitchell and L.R. arrived a few minutes later, the girls entered the back seat of the car that *182 Mitchell was driving and all left together. Mitchell drove to a local liquor store, and at least one of the girls gave Mitchell some money, and he bought a fifth of vodka that the group passed around and two of the girls drank. Mitchell drove the group to a school parking lot and kissed both F.B. and A.S. Mitchell then drove to an out-of-the way snowmobile parking lot and parked there.

[T6] At Mitchell's suggestion, C.M. and F.B. took off their shirts, and Mitchell engaged all three of the girls in kissing. He touched C.M. on her breasts and vaginal area and asked her to have sex with him or perform fellatio on him. C.M. refused him twice and got out of the car. Mitchell also touched A.S. on her breasts, exposed himself, and while she was seated on his lap, attempted to digitally penetrate her. Mitchell asked A.S. several times to perform fellatio on him, but she refused and also got out of the car. A.S. joined C.M., who was sitting on the road, and C.M. pretended to have been bitten by a snake so that Mitchell would take the girls back to Sheridan. Mitchell did return the group to Sheridan and parked in an alley behind the residence of F.B.'s foster parents.

[17] Officer King of the Sheridan Police Department pulled into the alley behind the vehicle and smelled alcohol on one of the girls. More officers joined him and learned that at least two of the girls had been drinking alcohol bought for them by Mitchell and Mitchell may have had sexual contact with the minor girls. Mitchell was arrested and the girls taken to the police station for further interviews.

[T8] For his conduct with C.M. and A.S., Mitchell was charged with two counts of third degree sexual assault 1 and two counts of soliciting a minor to engage in illicit sexual relations. 2 After a two-day trial, a jury con-vieted Mitchell of third degree sexual assault on C.M. and of soliciting both girls to engage in illicit sexual relations, but acquitted him of third degree sexual assault on A.S. Mitchell was sentenced to eight to ten years for the third degree sexual assault, a concurrent four to five year term for soliciting a sexual act from C.M., and a four to five year term for soliciting from A.S. to run consecutive to the other two sentences. This appeal followed.

DISCUSSION

[19] Relying solely on our decision in Whiteptume, Mitchell contends that error per se occurred when a testifying officer conveyed his opinion that Mitchell was guilty. During trial, the prosecution questioned an investigating officer, Officer Thompson, about the events that happened on the night that Mitchell was arrested. The prosecutor asked, "... and at that point in time what did you determine it would be appropriate to do?" Officer Thompson responded, "(alt that point I determined this had definitely occurred outside the city limits of Sheridan, and I believed that there was a sexual assault that had occurred. So, I was starting to make arrangements to call the Sheridan County Sheriff's Office to investigate it." Defense counsel did not object. While conceding that the prosecutor's question was not deliberately calculated to elicit improper testimony, Mitchell nevertheless contends that the experienced investigator's testimony violated the rule against opinion-of-guilt testimony established in Whiteplume.

[110] Whiteplume examined the impact of the following statement: "I listened to her story and made a determination that she had been raped." Whiteplume, 841 P.2d at 1339. We held that the conviction for sexual assault required reversal because an experienced law enforcement officer "volunteered" an opinion as to the guilt of the defendant and to the *183 credibility of the victim under cireumstances that made it appear that it was not done inadvertently. The investigating officer had fifteen years of experience, 1,500 hours of training, and had investigated about seventy rapes. His education consisted of a bachelor's degree in psychology and a master's degree. Id. at 1889. The State's case was tenuous and the quality of the victim's testimony was deemed poor because it was not corroborated and was contradicted by some of the physical evidence. Id. "In measuring the quantum of harm caused by the error, we considered the strength of the prosecution's case against the accused." Id. at 1340. No physical evidence supported the guilt of the accused, and a close factual dispute existed which brought eredibility to the center of the controversy, i.e., whether the sexual encounter was consensual or an unwarranted assault. Id. In light of the particular cireum-stances of the Whiteptume case, we found it a "close one that truly calls upon the most careful exercise of delicate judicial judgment." Id. at 1340-41. Ultimately, we concluded that the officer did imply that he believed or held an opinion with respect to the victim's version of the events surrounding the assault. "He linked his 'rape determination' only with 'her story' We can construe his 'rape determination' as nothing less than his inferential vouching for the truth of the victim's testimony." Id. at 1340.

[¥11] Since Whiteplume, our review of issues concerning opinion testimony has developed the following rules. We apply an error-per-se standard when a prosecutor has improperly elicited an opinion of either defendant's guilt or the truthfulness of a witness. Taylor v.

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2003 WY 160, 81 P.3d 180, 2003 WL 22938469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-state-wyo-2003.