Warner v. State

2001 WY 67, 28 P.3d 21, 2001 Wyo. LEXIS 82, 2001 WL 865331
CourtWyoming Supreme Court
DecidedAugust 1, 2001
Docket00-27
StatusPublished
Cited by37 cases

This text of 2001 WY 67 (Warner 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
Warner v. State, 2001 WY 67, 28 P.3d 21, 2001 Wyo. LEXIS 82, 2001 WL 865331 (Wyo. 2001).

Opinion

*24 GOLDEN, Justice.

[¶1] Appellant Thomas Eugene Warner appeals his convictions and sentences for second degree sexual assault and indecent liberties with a minor, contending that constitutional speedy and fair trial violations, prosecutorial misconduct, and unfair sentencing require that we reverse his conviction and sentence. Finding no reversible error, we affirm.

ISSUES

[¶2] Warner states the issues as follows:

1. Did the trial court err in permitting the testimony of Dr. Shana Tubach, pediatrician, on the State's rebuttal, depriving Appellant of his constitutional right to a fair trial, and err in denying Appellant's motion for a mistrial?
2, Did the prosecutor commit prosecuto-rial misconduct when he specifically mentioned uncharged misconduct evidence in closing that the court had ruled inadmissible and when he vouched for and commented on the credibility of witnesses?
8. Was Appellant deprived of his constitutional right to a speedy trial?
4. Did the trial court abuse its discretion in determining the length of Appellant's sentences?

The State presents these issues for our review:

I. Whether the trial court erred in permitting the testimony of Dr. Shana Tubach on rebuttal, and whether the trial court erred in denying Appellant's motion for a mistrial on this claim?
II. Whether the prosecutor improperly mentioned uncharged misconduct evidence, and whether he improperly vouched for or commented on the credibility of the witnesses?
III. Whether Appellant was deprived of his constitutional right to a speedy trial?
IV. Whether the trial court abused its discretion in determining the length of Appellant's sentences?

FACTS

[¶3] In 1978, when he was fifteen years old, Warner began living with his half-sister, her husband, and their three children in Cheyenne. He lived there continuously until 1981, returned briefly for a few months in 1983, and visited during the summer of 1984. In November of 1989, one of the children, CM, then a ninth-grader, reported to a school counselor that her uncle had molested her. The Department of Family Services (DFS) conducted an investigation in February of 1990, and closed the case without action. Warner moved to Georgia and returned for a visit in 1997. During that visit, Warner apologized to two of the children for molesting them. That apology was witnessed in part by the mother and another person, and the mother reported him to police.

[¶4] On September 2, 1997, the investigating police officer located Warner at a downtown bar and interviewed him outside. The officer testified that he was investigating Warner for felony sexual assault crimes, but informed Warner that he was not under arrest, and was free to leave at any time. After Warner agreed to speak with him, the officer described the allegations, and at that time, Warner admitted to the investigating officer that he had molested the children. Warner agreed to go to the police station where he then refused to speak further without an attorney. At trial, the officer testified that after Warner stated his intention to leave without making a statement, he received Warner's permission to take a photograph,. The officer testified that he took the photograph because Warner had earlier mentioned that he planned to return to his daughters in Noreross, Georgia, as soon as possible, and the officer wanted to have a photograph on file in the event that an arrest warrant issued. Because he was not in custody, Warner was free to and did leave.

[T5] The State's investigation indicated that Warner had harmed all three children and, on September 12, 1997, a warrant was issued for his arrest. At some point, Warner apparently returned to Georgia, because in February of 1999, following a stop for a traffic violation in Georgia, the warrant showed on an NCIC check, and Warner was returned to Wyoming for trial on two counts of second degree sexual assault, Wyo. Stat. Ann. § 6-2-308(a)(v), and two counts of immoral acts with a minor, Wyo. Stat. Ann. § 14-3-105(a). The amended information stated that he had committed all crimes dur *25 ing the period of February 1983 through May 1983, and, at that time, the sexual assault victim was less than twelve years of age and Warner was at least four years older than the victim. In 1983, Warner was 19 years old.

[¶6] Warner was arraigned on March 3, 1999, and, on June 28, 1999, filed a motion to dismiss for lack of speedy trial. That motion was denied after hearing. In a pretrial hearing concerning the admissibility under W.R.E. 404(b) of Warner's uncharged sexual abuse of another child, SP, the trial court stated:

I don't think the court can either grant or deny the motion. The notice is here. He's got, I think, the testimony of the earlier witnesses. So we'll decide as these witnesses are called. I think we'll have to hear their testimony initially outside the presence of the jury. So I'm going to proceed on that basis.

Trial was held on July 12-14, 1999. During the trial, the court excused the jury, and the prosecutor questioned CM about her personal observations of Warner's sexual abuse of SP as an offer of proof for admission of the 404(b) evidence. Following that proffer, the trial court ruled that separate uncharged acts perpetrated against SP were inadmissible.

[T7] Despite this ruling, during cross-examination of the DFS social worker, the prosecutor conducted the following cross-examination:

Q. [Prosecutor]...that's the date you interviewed [CM], isn't it?
A. It is.
Q. And the date you reduced this report to writing was, I believe from your prior testimony the 16th?
A. That is correct.
Q. Two weeks later, okay. You noted in your report that you started out with talking to [CM] about good touch/bad touch, body parts, had a good understanding, it was then asked if anyone had ever touched her and she responded that her Unele Tom had, Tom [Warner], [CM] also expressed that Tom had also abused her cousin-
[Defense Counsell: Objection, Your Hon- or.
Q. [Prosecutorl-[SP]-
[Defense Counsell: This is getting into prior information. May we approach, Your Honor?
[The Court]: Well, I'll sustain the objection.
[Prosecutor]: I'll rephrase. In the course of this interview as reflected by your report, did [CM] identify to you someone else that had been abused?
[Defense Counsel]: Objection, Your Hon- or. This is-
[The Court]: Overruled.
[Defense Counsel): Your Honor,-Your Honor, may we approach the bench?
[The Court]: No, no, you may not.
[Defense Counsel]: I would like to make a record, Your Honor.
[The Court]: Ask your-Ask another question, Mr.

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Bluebook (online)
2001 WY 67, 28 P.3d 21, 2001 Wyo. LEXIS 82, 2001 WL 865331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warner-v-state-wyo-2001.