Moe v. State

2005 WY 149, 123 P.3d 148, 2005 Wyo. LEXIS 178, 2005 WL 3116307
Wyoming Supreme Court·Decided November 23, 2005·No. 03-139·Published·Cited by 11 cases

Opinions

GOLDEN, Justice.

[¶ 1] A jury convicted 34-year-old Donald L. Moe of one count of taking immodest, immoral or indecent liberties with a 16-year-old girl in violation of Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2003), a felony. Moe received a sentence of two to five years in the state penitentiary. In his appeal, Moe raised several constitutional issues, a prose-cutorial misconduct issue, and several eviden-tiary rulings issues. This Court affirmed the judgment and sentence. Moe v. State, 2005 WY 58, 110 P.3d 1206 (Wyo.2005). Shortly after that opinion was published, Moe filed his Petition for Rehearing in which he asserted that this Court had not addressed one of his arguments challenging the trial court’s evidentiary ruling that refused admission of a hearsay statement made by Moe’s roommate, Dakota Studie, to AW, one of the 16-year-old victim’s friends, sometime after the alleged incident of which Moe was convicted. This Court granted Moe’s petition to address the single question whether the hearsay statement made by Studie, who was unavailable at trial, was admissible under W.R.E. 803(1) as a present sense impression. We hold that it was not.

FACTUAL CONTEXT

[¶2] In this Court’s original opinion in this ease, we set out the facts and circumstances of the events of the afternoon of October 20, 2002, when the alleged non-consensual sexual intercourse between Moe and AB occurred. In order to provide the factual context in which the instant legal issue is framed, we find it useful to relate in more specific detail the events of that afternoon and the events at trial as disclosed by the record. Around noon that day, AB, her 15-[150] year-old brother IB, her 17-year-old friend AW, and her 15-year-old friend DE went1 to the trailer in which Moe and his Mend Dakota Studie lived. After a while, AW and DE left the trailer and were gone “probably 30, 40 minutes.” Remaining in the trailer were Moe, Studie, AB, and IB. AB and AW had argued previously, and AB was angry and upset. Studie and IB were in the living-room watching a movie. Moe and AB were sitting by each other in the living room and some contact occurred. At some point, Moe managed to stand up AB, wrapped his arms around her, pushed her to the kitchen and then down a hallway. She resisted but to no avail. Moe opened the bathroom door, thus shutting off the hallway to his bedroom; AB could not see the living room or kitchen from the hallway because of the open bathroom door. Moe pushed AB into his bedroom and onto his bed; he held her arms above her head and began removing her clothing. AB told Moe to stop, but he did not. IB and Studie remained in the living room. According to AB, she and Moe were in the bedroom for about ten minutes. After the assault, AB returned to the living room and waited for AW and DE to reten to the trailer. AW and DE returned about five minutes later.

[¶ 3] As soon as AW and DE returned to the trailer, AW and AB left the trailer, leaving IB, DE, Moe and Studie at the trailer. AW and AB drove to a convenience store to call AB’s parents and tell them they would be late; they were supposed to be home by 4:00 p.m., and it was then about 3:50 p.m. At the convenience store, AB told AW about Moe’s assault. AW and AB were gone from the trailer for about fifteen to twenty minutes.

[¶ 4] After AW and AB returned to the trailer, AB and DE left the trailer to see AB’s friend, Mike. AW and IB remained at the trailer with Moe and Studie. At this time, neither Moe nor Studie said anything about “the incident” to AW and IB. AB and DE went to Mike’s home, but he was not there; at this time, AB told DE about Moe’s assault. Next, AB and DE went to see AW’s friend, Bradley, at his workplace. For about three minutes AB told Bradley about Moe’s assault.

[¶ 5] After talking to Bradley, AB and DE drove back to Moe and Studie’s trailer to pick up AW and IB. AB, DE, AW, and IB then left the trailer. When they were about one to two blocks away from the trailer, AB became upset, AW asked her what was wrong, and, according to AW, “it took a few minutes” before AB told her what Moe had done. AB got out of the car and walked home. AW tamed the car around and returned to Moe and Studie’s trailer. At the trailer, AW confronted Moe, and then Studie.

[¶ 6] At trial, Moe’s counsel cross-examined AW about her confrontation of Moe and Studie. AW testified that, in the confrontation, Moe denied that AB had told him “no” and said their encounter was consensual. Moe’s counsel then asked about AW’s confrontational conversation with Studie. AW testified that she turned to Studie and asked, “Tell me what happened.” The prosecutor objected, claiming that Studie’s statement to AW was inadmissible hearsay. The trial court sustained the objection. Moe’s counsel then asked AW what her understanding was, after her conversation with Studie, as to what Studie believed about what happened between Moe and AB. The prosecutor again objected on hearsay grounds, and the trial court sustained the objection. Moe’s counsel then told the trial court, “I would suggest that the hearsay is admissible because of declarant unavailable.” Moe’s counsel told the trial court that he was willing to make an offer of proof as to his investigator’s efforts to locate Studie. Moe’s counsel said that Studie had told AW, when she confronted him and Moe, that he did not see anything wrong. The trial court said that Studie’s statement did not fall within one of the hearsay exceptions.

[¶ 7] The trial court then recessed for thirty minutes. Following the recess, the trial court told the prosecutor and Moe’s counsel that it had reviewed W.R.E. 804 and Studie’s statement was not an exception to the hearsay rule, and it sustained the prosecutor’s objection. Continuing his cross-examination of AW, Moe’s counsel asked her whether, when driving away from the trailer, before she returned to the trailer and confronted Moe and Studie, she asked IB what [151] had happened in the trailer between Moe and AB. AW answered that she had. Moe’s counsel then asked her, “After you had that conversation with both of them, what was your impression? Did anything they said make'—give the impression that something wrong had happened there?” AW answered, “No.”

DISCUSSION

[¶ 8] In Moe’s appellate brief, Moe asserted that Studie’s statements to AW were admissible under W.R.E. 803(1) as a present sense impression exception to the hearsay rule. Moe claimed that the trial court made no analysis before ruling that Studie’s statements to AW did not fall within the present sense impression exception. There are several reasons why Moe’s appellate challenge to the trial court’s evidentiary ruling fails.

Free access — add to your briefcase to read the full text and ask questions with AI

Moe v. State, 2005 WY 149, 123 P.3d 148, 2005 Wyo. LEXIS 178, 2005 WL 3116307 (Wyo. 2005).

2005 WY 149 (Moe v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Silva v. State
2012 WY 37 (Wyoming Supreme Court, 2012)
Bloomfield v. State
2010 WY 97 (Wyoming Supreme Court, 2010)
State Ex Rel. Ja
949 A.2d 790 (Supreme Court of New Jersey, 2008)
Schultz v. State
2007 WY 162 (Wyoming Supreme Court, 2007)
Rabuck v. State
2006 WY 25 (Wyoming Supreme Court, 2006)
Moe v. State
2005 WY 149 (Wyoming Supreme Court, 2005)