Moser v. State

2018 WY 12, 409 P.3d 1236
CourtWyoming Supreme Court
DecidedFebruary 7, 2018
DocketS-17-0106
StatusPublished
Cited by18 cases

This text of 2018 WY 12 (Moser 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
Moser v. State, 2018 WY 12, 409 P.3d 1236 (Wyo. 2018).

Opinion

HILL, Justice.

[¶1] Following a jury trial, Jonathon Moser was convicted of three counts of second degree sexuaj assault of a minor and one count of first degree sexual assault of a minor. Mr. Moser claims the district court abused its discretion in admitting other acts evidence under W.R.E. 404(b) and in applying the rape shield statute to limit cross-examination of one of the victims. We affirm.

ISSUES

[¶2] Mr. Moser presents two issues on appeal, which he states as follows:

I. Did the trial court abuse its discretion by allowing the testimony of P.S., J.G., K.J., and A.R. in violation of Rule 404(b)?
II. Did the trial court abuse its discretion by prohibiting Mr. Moser from cross-examining A.C. on her prior experience as a complaining victim?

FACTS

[¶3] In 2014, the Rawlins Middle School in Rawlins, Wyoming hired Jonathon Moser as a 7th grade special education teacher for the 2014-2015 school year. In that capacity he was assigned any 7th grade student who had been placed on an individual education program (IEP). Mr. Moser also had volunteer duties, which are extra duties assigned on a volunteer basis and for which a teacher does not receive any additional compensation. Mr. Moser’s volunteer duties were assisting with the middle school volleyball program and supervising the tardy detention program.1

[¶4] During the 2014-2015 school year, AC was in the 8th grade at the Rawlins Middle School. She was thirteen years old when the school year began and turned fourteen in October 2014. AC was also on a diversion program, which is a program “where juveniles who are getting in trouble for the first time with law enforcement have an opportunity to do a precourt and an unofficial probation.” AC was on the program for a shoplifting charge and was required through the program to meet with a diversion and probation officer.

[¶5] In February 2015, during a meeting with her probation officer, AC disclosed that on an occasion when she was serving a tardy detention under Mr. Moser’s supervision, he required her to sit next to him at his desk and he rubbed her leg and tried to hold her hand. AC described what happened on that occasion with Mr, Moser:

Q. And can you describe for the jury exactly what he was doing with his hand on your leg? When you say “rubbing,” you’ve got to describe it in detail.
A. I don’t know. He was — just, like, had his hand rubbing up and down my leg.
[[Image here]]
Q. Where were your hands at, [AC]?
A. In my lap.
Q. And at any point, did Mr. Moser try to touch your hands?
A. Yes.
Q. And can you tell me ■ about that?
A. My hands were, like, folded in my lap, like how they always are. And he would, like, put his hand on top of mine, like that, and would try holding it, but I pulled away.
Q. What did you do when he was touching your leg?
A. I started to, like, move away.
Q. Did he say anything to you as you moved away from him?
A. He told me that — like, as I was moving away, that if I moved, I was going to get another day of detention.
Q. Did you get assigned another day of detention?
A. Yes.

[¶6] In response to the report from AC, AC’s probation officer, who was herself a deputy sheriff, contacted the Carbon County Sheriffs Office. Sheriffs Deputy Tom Lakia responded to that call and spoke with AC. and her father and then interviewed AC, Following his interview of AC, Deputy Lakia interviewed several other students identified by AC as possibly having additional information, Through those additional interviews, Deputy Lakia “learned just a little bit of further inappropriate touching with at least two more students,” but none of the interviews revealed touching of genitalia. The touching that was reported involved students who served detentions, participated in volleyball, or both.

[¶7] Deputy Lakia prepared a report on his findings, and after discussions with school officials and the county attorney’s office, the decision was made that there was insufficient evidence to pursue criminal charges against Mr. Moser. It is not clear from the record whether Mr, Moser’s 2014-2015 contract with the Rawlins Middle School was terminated or he was placed on administrative leave for the remainder of his contract, but he did leave the school following the investigation into the allegations of inappropriate touching.

[¶8] In the- spring of 2015, the Glenrock High School in Glenrock, Wyoming hired Mr. Moser to fill a special education position which placed him in charge of two severely disabled students. Mr. Moser’s duties also included assisting the school’s other two special education teachers as needed and essen-, tially working as a team in the special education department. Mr. Moser and the high school’s principal, Chris Gray, discussed the possibility of Mr. Moser serving as an assistant freshman volleyball coach, but they never got beyond discussing the idea.

[¶9] In January 2016, Principal Gray was visited by JB, a student in the high school’s 9th grade, along with her mother and grandmother. JB reported that on the prior Friday, she attended a session of Academic Plus for one of her classes.2 JB reported that her teacher was in and out of the room during the session and on one occasion when her teacher was' out of the room, Mr. Moser entered the room, started rubbing her shoulders, and told her when she was done she could come to his classroom. When JB completed her Academic Plus session, she left the room and headed to her locker, which required that she pass Mr. Moser’s room.

[¶10] JB reported that when she passed Mr. Moser’s room, he was seated in the entry alcove reading a book and he stood up and said “hi” to JB. He then started kissing her and pulled her into his classroom . and pressed her against a countertop in the room. Mr. Moser “started to dry hump” JB and touched her breasts and vagina above her clothing. JB described what happened next:

Q. How long did this go on for?
A. I don’t know. A couple of minutes.
Q. Were you and Mr. Moser — were you talking at all during this time?
A. No.
Q. Did you say anything to him as this happened?'
A. I just told him that I needed to leave because my mom was downstairs waiting for me.
Q. Was your mom downstairs waiting for you?

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Bluebook (online)
2018 WY 12, 409 P.3d 1236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moser-v-state-wyo-2018.