Swett v. State

431 P.3d 1135
CourtWyoming Supreme Court
DecidedDecember 21, 2018
DocketS-18-0044
StatusPublished
Cited by28 cases

This text of 431 P.3d 1135 (Swett 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
Swett v. State, 431 P.3d 1135 (Wyo. 2018).

Opinion

KAUTZ, Justice.

[¶ 1] A jury found Robert C. Swett guilty of aggravated child abuse. He claims the district court erred by allowing the State to present testimony about an altercation he had in jail while awaiting trial in this case. We conclude the district court abused its discretion by admitting the evidence; however, Mr. Swett was not prejudiced by the error. Consequently, we affirm.

ISSUE

[¶ 2] Mr. Swett presents the following issue on appeal:

Did the trial court abuse its discretion by admitting evidence of subsequent bad acts contrary to W.R.E. 404(b) and irrelevant [evidence], contrary to W.R.E. 401 ?

FACTS

[¶ 3] On July 16, 2016, Kimberly Wegener (Kimberly) gave birth to a healthy baby boy (hereinafter referred to as "the Child"). Mr. Swett was the Child's father. The Child had difficulty gaining weight and, in September 2016, was hospitalized for failure to thrive. During his two-day hospital stay, the Child gained 12 ounces. This led his pediatrician to conclude the parents simply were not feeding the Child enough. The pediatrician, the nurses at the hospital, and a public health nurse worked with the parents to develop strategies to help the Child gain weight. The parents were taught how to hold the Child during feedings, the frequency with which he should be fed, and the amount he should be fed at each feeding. The parents were concerned about the Child spitting up but, although he had a minor reflux issue, the healthcare providers did not see it as an impediment to weight gain. Throughout the fall and winter of 2016, the Child was seen frequently for weight checks. The public health nurse even came to the family's home to help them with feeding issues. Despite *1139those efforts, as of January 2017, the Child's weight was below the first percentile on the growth curve.

[¶ 4] On January 13, 2017, Mr. Swett and Barbara Wegener (the Child's grandmother and Kimberly's mother) took the Child to the pediatrician's office. The Child had been vomiting, and he was cold, pale, and not as alert as normal. The Child had bruising on his forehead and redness and scratches on the top of his head. Mr. Swett told the nurse he had dropped the Child in the bathtub the night before, while rinsing him off after a vomiting incident. The pediatrician ordered a CT scan of the Child's head, which revealed a skull fracture and subdural hematoma.

[¶ 5] Law enforcement was notified about the Child's injuries, and Sheridan Police Department Detective Daniel Keller went to the hospital to interview Mr. Swett and Kimberly. Mr. Swett told him that, the previous night, he was watching the Child while Kimberly slept. Mr. Swett said the Child had a history of vomiting and, after his 8:00 p.m. feeding, he "immediately threw up," "like a volcano or a fountain, just going all over." Mr. Swett took the Child to the bathroom and washed him off by holding him under the shower. He said he was holding the Child in his left arm "in a cradling fashion" with the shower running and he used his right arm to "reach over to a cabinet above the sink ... and get some soap, and then wash the child over the tub." Mr. Swett then

described a series of quick events where essentially the child made some sort of turn and slipped from his arms into the tub. He described the child hitting face first in the tub. He described having a difficult time getting control of the child as the child was wet and slippery. He described the child, as he was trying to get control, essentially hitting his head on the side of the tub again or the drain and again falling on his butt before he gained control of him.

Mr. Swett told the detective that he took the Child to the living room and noticed red marks on his forehead. The Child cried for about five minutes before Mr. Swett was able to calm him and put him to sleep. Mr. Swett said that, when he woke the Child the next morning to feed him, he noticed the red marks had turned dark purple.

[¶ 6] The Child's injuries were serious, so he was life-flighted to Children's Hospital in Denver, Colorado, and Mr. Swett accompanied him. The Child stayed at Children's Hospital for several days, during which time he underwent numerous tests and his condition was monitored. A child protection team (CPT) became involved in the case to determine whether the Child's injuries were the result of accidental or non-accidental (abusive) trauma. After speaking with Mr. Swett, observing his behavior, and reviewing the results of various tests, the CPT determined the Child's injuries were the result of child abuse and took him into protective custody.

[¶ 7] The State charged Mr. Swett with felony child abuse and later amended the charge to aggravated child abuse, under Wyo. Stat. Ann. § 6-2-503 (LexisNexis 2017) :

(b) A person is guilty of child abuse, a felony punishable by imprisonment for not more than ten (10) years, if a person responsible for a child's welfare as defined in W.S. 14-3-202(a)(i) intentionally or recklessly inflicts upon a child under the age of eighteen (18) years:
(i) Physical injury as defined in W.S. 14-3-202(a)(ii)(B), excluding reasonable corporal punishment[.]
....
(c) Aggravated child abuse is a felony punishable by imprisonment for not more than twenty-five (25) years if in the course of committing the crime of child abuse, as defined in subsection (a) or (b) of this section, the person intentionally or recklessly inflicts serious bodily injury upon the victim[.]

[¶ 8] Pursuant to Wyoming Rule of Evidence 404(b), Mr. Swett filed a demand for disclosure of other crimes, wrongs, or acts the State intended to use as evidence at trial. The State gave notice that it intended to use evidence of Mr. Swett's acts of violence toward two former significant others and the children they shared with Mr. Swett, and a violent act he committed while in jail on the child abuse charge. The district court refused to allow testimony from Mr. Swett's former *1140significant others but allowed testimony regarding the jail incident to show intent, lack of accident, and motive.

[¶ 9] The case went to trial before a jury in September 2017. During the four-day trial, the State presented fifteen witnesses, including Kimberly, Barbara Wegener, the nurse who saw the Child at the pediatrician's office on January 13, 2017, the Sheridan Memorial Hospital radiologist who read the Child's CT scan, two nurses from the Sheridan hospital, the Child's pediatrician, a nurse from Children's Hospital, two social workers from Children's Hospital, Detective Keller, an expert pediatrician with specialized training in child abuse from Children's Hospital, and three witnesses regarding the jail incident.

[¶ 10] The defense presented three witnesses, including the public health nurse who helped Mr. Swett and Kimberly with the Child's feeding and weight issues, an expert neurologist, and Mr. Swett. The district court instructed the jury that, in order to convict Mr. Swett of aggravated child abuse, it had to find that he intentionally inflicted serious bodily injury upon the Child, in addition to the other elements of the charge. The district court also instructed the jury on Mr.

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Bluebook (online)
431 P.3d 1135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swett-v-state-wyo-2018.