Rivera v. State
Annotate this Case
Rivera v. State
1992 WY 140
840 P.2d 933
Case Number: 90-163
Decided: 10/30/1992
Supreme Court of Wyoming
Kerry RIVERA, Appellant (Defendant),
v.
The
STATE of Wyoming, Appellee
(Plaintiff).
Appeal from District Court, Hot SpringsCounty, Gary P. Hartman,
J.
Wyoming
Public Defender Program, Leonard D. Munker, State Public Defender, Donald K.
Slaughter, Asst. Public Defender, Dave Gosar, Appellate Counsel, for appellant.
Joseph
B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Mary B. Guthrie,
Deputy Atty. Gen., for
appellee.
Before MACY, C.J., and THOMAS, CARDINE,
URBIGKIT,* and GOLDEN,
JJ.
* Chief Justice at time of oral
argument.
THOMAS, Justice.
[¶1.] The primary issues in
this case, emanating from convictions of sexual assaults on two minor girls,
relate to the admissibility of evidence. Specifically, Kerry Rivera (Rivera)
contends that error occurred in the admission into evidence of DNA profiling; in
the admission of opinion evidence on his guilt; and evidence of other bad acts
in violation of Wyo.R.Evid. 404(b). A further significant claim is raised with
respect to violation of the double jeopardy clauses of the state and federal
constitutions arising out of charges and convictions of indecent liberties and
sexual assault in each instance. Collateral issues include the claim of
cumulative error and a claim of credit against the sentences imposed because of
pretrial confinement. We hold no error occurred with respect to admission of
evidence in this case but, in one instance, the charge of indecent liberties,
while properly presented to the jury, merged into the charge of sexual assault
for purposes of punishment. We accept the concession of the state with respect
to the issue of pretrial confinement. The judgment and sentences of the trial
court are affirmed except that one sentence for indecent liberties is set aside,
and credit is to be properly awarded for pretrial
confinement.
[¶2.] Rivera was charged
with, and convicted of, first-degree sexual assault in violation of Wyo. Stat. §
6-2-302(a)(i) (1988) in one instance, and Wyo. Stat. § 6-2-302(a)(iii) (1988)1 in the other instance, and
violations of Wyo. Stat. § 14-3-105 (1986)2 with respect to two separate minor
female victims. In August of 1989, BJL, then sixteen years old, complained of a
sexual assault by Rivera. In the course of the investigation of that complaint,
law enforcement officers received information of an earlier assault upon MB in
March of 1988. MB also was sixteen years old at the time of the assault. The
sexual assault count with respect to MB was charged as a violation of the
provisions of § 6-2-302(a)(i), and the sexual assault against BJL was charged as
a violation of the provisions of § 6-2-302(a)(iii). After a jury trial resulted
in convictions on all counts, Rivera was sentenced to not less than five nor
more than ten years on each charge of indecent liberties with a minor, and to
not less than six nor more than ten years on each of charge of first-degree
sexual assault, with the provision that all four sentences were to run
concurrently. In addition, the judgment and sentence provided that Rivera was to
"be given credit for time served in the Hot Springs County Jail, in the amount
of 282 days, said credit to be applied against the minimum and maximum sentence
ordered herein [emphasis added]."
[¶3.] In his Brief of
Appellant, Rivera states the issues as follows:
I.
Whether evidence of DNA profiling was properly admitted at
trial.
II.
Whether Appellant's constitutional right to a fair trial was abrogated when the
trial court admitted testimony in contravention of Bennett v.
State.
III.
Whether Appellant's constitutional right to be free from double jeopardy was
violated.
IV.
Whether the trial court improperly admitted evidence of purported prior bad
acts.
V.
Whether Appellant's convictions should be reversed pursuant to the doctrine of
cumulative error.
VI.
Whether Appellant should be credited with 282 days time served to be credited
against the maximum and minimum terms of all phases of Appellant's concurrent
sentences.
The
State of Wyoming includes the same issues in its Brief
of Appellee, but it restates them in this fashion:
I.
Whether the testimony relating to DNA profiling was properly
admitted.
II.
Whether a clinical psychologist, a school counselor and a hospital social worker
gave their opinions on the Appellant's guilt.
III.
Whether the Appellant should have been tried for first degree sexual assault and
taking indecent liberties with a child.
IV.
Whether evidence of earlier assaults by the Appellant was properly introduced
under Rule 404(b), W.R.E.
V.
Whether there was cumulative error.
VI.
Whether Appellant should have been given credit on concurrent sentences for
pretrial incarceration.
[¶4.] The investigation of
Rivera was instituted because of a complaint by BJL that she had been sexually
assaulted in August, 1989. BJL had been drinking beer at a party that night, and
she testified that she was intoxicated. Earlier in the evening, after an
argument with her boyfriend, she had broken up with him. She was discussing this
with Rivera and his wife, and Rivera invited her to stay at their home for the
night. Rivera's wife had gone to bed in the bedroom; Rivera was in the living
room on the couch; and the victim was in the living room on the floor while they
talked. BJL then dozed off, but was awakened because Rivera and his wife were
arguing about the light being on in the bedroom. Her sleep was interrupted more
than once by that argument which apparently terminated when Rivera removed the
light bulb.
[¶5.] BJL fell asleep, again,
but awakened later to discover that Rivera had pulled down her jeans and panties
past her knees. He was on top of her and had achieved penetration of her vagina
with his penis. BJL told Rivera to get off of her and, after a while, he
complied and went into the bathroom. BJL got up and went to her boyfriend's
apartment which was nearby. She told her boyfriend what had happened and spent
the rest of the night at his apartment. Although BJL testified that she slept in
the same bed with her boyfriend, she said they did not engage in sexual
intercourse. The following morning, the boyfriend took BJL to the police station
where she made her complaint against Rivera. The police officers then took her
to the hospital where a medical examination, including the utilization of a rape
kit, was performed. Charges of sexual assault and indecent liberties with a
minor were filed against Rivera.
[¶6.] The police officer
investigating the accusation by BJL learned that MB might have information that
was material. The officer and the prosecutor sought out MB as a witness. Their
investigation revealed MB contacted her school counselor; told the counselor
that she had been raped by Rivera; and sought the counselor's advice with
respect to whether she should tell the investigator and the prosecutor. The
counselor advised she should tell them about this event.
[¶7.] MB disclosed these
facts to the police officer and the prosecutor. In March of 1988, MB and her
father were living with relatives (MB's aunt and her husband), who also were
Rivera's future in-laws, in a dwelling in Thermopolis. Rivera was a member of
that household. MB and Rivera were alone in the house when MB went to Rivera's
fiancée's bedroom to obtain a typewriter with which to do her homework. At that
time, Rivera asked her to rub his back. While she was administering the back
rub, Rivera grabbed her hand and shoved it down his pants, making contact with
his penis. MB protested, and Rivera then threw her on the bed and, despite her
insistence that he should stop and leave her alone, he accomplished sexual
intercourse with penetration. When he was finished, he left the room, after
telling her not to tell anyone.
[¶8.] MB immediately took a
shower because she felt "dirty." The next day, she wrote a letter to her sister,
informing she had been raped by Rivera. She asked her sister to throw the letter
away after reading it because she was afraid someone else would read it and find
out about the rape. The day after the incident, MB told a friend that she had
been raped by Rivera. About a week later, she called the sister to whom she had
written the letter and discussed the rape with her. At that time, MB told her
sister she had not told anyone else in the family because she was afraid it
would cause problems with everyone and her aunt would make her and her father
move out of the house where they were living. The charges of sexual assault in
the first degree and indecent liberties with a minor then were filed alleging
the violation of MB and later were consolidated with the same charges arising
out of the complaint of BJL. Additional facts will be included in connection
with the discussion of issues asserted by Rivera.
[¶9.] We first address the
issue of testimony as to the truthfulness of the victims by a clinical
psychologist, a social worker at the hospital, and the high school counselor.
Rivera's claims are far-ranging, although his reference specifically to Bennett
v. State, 794 P.2d 879 (Wyo. 1990), would seem to focus upon testimony
of an opinion as to Rivera's guilt. The claims seem to include an attack upon
admissibility of the evidence encompassing the rape trauma syndrome, move to
argument about the testimony of experts amounting to a comment on the veracity
of the victims, and then culminate in the claim that the testimony constituted a
comment upon Rivera's guilt. None of these contentions are sustained by the
record in the case or precedent in Wyoming.
[¶10.] Rivera did file a motion in limine to
suppress testimony concerning "Post-Traumatic Stress Syndrome" (the rape-trauma
syndrome) which was denied. The witnesses whom Rivera includes in this asserted
issue testified in the following order: the police officer; the hospital social
worker; an emergency medical technician at the hospital; the nurse who assisted
in BJL's medical examination; the examining physician; the victims; the school
counselor; and the clinical psychologist. The police officer testified that he
had investigated 250 to 300 rapes and that absence of physical injuries was not
unusual. He also testified about his observation of the way victims behaved, and
how BJL acted in his presence at the initiation of the investigation. The
hospital social worker testified about the reactions in general of rape victims
as she had observed them. She also testified as to BJL's behavior and demeanor
before, during, and following the medical examination that was performed. The
testimony of the emergency medical technician and the examining nurse,
respectively, was of the same tenor. The examining physician stated BJL's
demeanor was "flat," somewhat depressed, and tearful at times. Of course, the
testimony of the victims included not only the actual events of the sexual
assaults but, in addition, their reactions and feelings with respect to what had
occurred. The high school crisis counselor testified about MB's emotional state
while discussing the assault upon her and her reactions to that assault with the
counselor. The clinical psychologist testified as an expert, discussing the
symptoms of rape victims in general, and the stages and the timing of the stages
that victims of sexual assault go through. He also testified it is not unusual
for female victims of sexual assaults not to report the sexual assaults and
discussed their feelings of shame and their feelings that the assault may have
been caused by some conduct on their part, that is, it may have been their
fault. None of these witnesses expressed an opinion as to the credibility of the
victims, nor did they state any opinion as to Rivera's guilt or innocence.
[¶11.] Expert testimony that discusses the
behavior and characteristics of sexual assault victims and the range of
responses to sexual assault encountered by experts is admissible. Scadden v.
State, 732 P.2d 1036 (Wyo. 1987). Such testimony is relevant and
helpful in explaining to the jury the typical behavior patterns of adolescent
victims of sexual assault. Griego v. State, 761 P.2d 973 (Wyo. 1988). It assists
the jury in understanding some of the aspects of the behavior of victims and, so
long as there is no comment on the credibility or truthfulness of the victims,
it does not invade the province of the jury. Zabel v. State, 765 P.2d 357
(Wyo. 1988).
The order of the testimony of the witnesses at Rivera's trial, together with the
testimony of the victims, was a skillful, strategic, and tactical decision of
the prosecutor. Even though the testimony did corroborate the victims, and one
effect of corroboration is to support or bolster the credibility of the
witnesses, that does not amount to a violation of the rule against vouching for
credibility.
[¶12.] Under our cases, an expert is permitted
to state an opinion that someone is a victim of sexual assault but, of course,
that expert cannot vouch for the credibility of the victim. It is well
established in our jurisprudence that the jury is the arbiter of truthfulness or
credibility, and the expert is not permitted to infringe upon that prerogative
of the jury by those qualities in the victim. Lessard v. State, 719 P.2d 227
(Wyo. 1986).
This case is not, in any way, analogous to Stephens v. State, 774 P.2d 60
(Wyo. 1989),
in which Stephens was identified by an expert witness when asked if he had an
opinion as to who was the perpetrator of the sexual
assault.
[¶13.] The jury that tried Rivera was instructed
that it was not bound to accept expert testimony as conclusive. The jury also
was told it was up to them to decide what weight to give to this testimony as
well as to the testimony of the victims. We discern no error in admission of
testimony of these witnesses relating to the rape trauma syndrome or the
behavior and reactions of the victims. There was no testimony vouching for the
credibility of the victims, nor was there any testimony constituting an opinion
as to Rivera's guilt.
[¶14.] Rivera also argues a claim of evidentiary
error arising out of the improper admission into evidence of other uncharged bad
acts contrary to Wyo.R.Evid. 404(b). He contends admission of this evidence
violated the constitutionally guaranteed right that he must be presumed
innocent. Rivera included in his motion in limine a claim that evidence of other
bad acts should be excluded. That motion was denied based upon the affirmation
by the prosecution that the testimony would demonstrate motive, intent, or plan.
Wyo.R.Evid. 404(b) provides as follows:
Other crimes, wrongs, or acts. -
Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident [emphasis added].
[¶15.] At trial, the prosecution called as
witnesses two young women who lived in Utah. One of those witnesses testified that in
June of 1989, after the assault upon MB but prior to the assault on BJL, she had
passed out after consuming too much alcohol at a party. At that time, she was
fifteen years old. She was awakened because Rivera was fondling her. She changed
sleeping places with her boyfriend who was sleeping beside her but, again, she
was awakened by Rivera fondling her. She also testified that, even after she
asked him to stop this activity, it still took him a while to desist. She also
testified that the following weekend when she was ill she, again, was awakened
to find Rivera fondling her.
[¶16.] The other witness testified that, during
the summer of 1989, she had taken a prescription drug that causes drowsiness.
She awoke to find Rivera straddling her and trying to pull her pants down. We
note significant similarities in the cases of BJL and both of the Utah victims. All were
friends or acquaintances of Rivera's wife; all had been under the influence of
alcohol or, in one instance, a prescription drug that induced drowsiness; and
all were sleeping so that they could not consent and, to a degree, were
helpless. In each Utah instance, when the victim awakened,
Rivera reacted as if nothing was wrong, and he told each of these victims either
that he wanted them or they wanted him and he would stop if that was what they
wanted. A similar comment was offered by Rivera when BJL
awakened.
[¶17.] In Bishop v. State, 687 P.2d 242 (Wyo.
1984), cert. denied, 469 U.S. 1219, 105 S. Ct. 1203, 84 L. Ed. 2d 345 (1985), this
court approved, from United States v. Myers, 550 F.2d 1036 (5th Cir. 1977),
appeal after remand, 572 F.2d 506 (5th Cir. 1978), cert. denied, 439 U.S. 847,
99 S. Ct. 147, 58 L. Ed. 2d 149 (1978), five factors to be invoked with respect to
the admissibility of evidence of other crimes. The five factors quoted from
Myers that are applied in considering the admission of testimony pursuant to
Wyo.R.Evid. 404(b) are:
(1)
Proof of the other similar crimes must be plain, clear and
convincing.
(2) The
other crimes must not be too remote in time from the charged
offense.
(3) The
evidence of the other crimes must be introduced for a purpose sanctioned by Rule
404(b) of the Federal Rules of Evidence [Wyo.R.Evid.
404(b)].
(4) The
element of the charged offense that the evidence of other crimes is introduced
to prove must be a material issue in the case.
(5)
There must be a substantial need for the probative value of the evidence of the
other crimes.
Myers,
550 F.2d at 1044.
The
Bishop criteria have been invoked repeatedly and were confirmed as recently as
Britton v. State, No. 91-190, 1992 WL 170954, ___ P.2d ___ (Wyo. July 23, 1992).
We have held these criteria do not control a trial court's discretion and the
evidence still may be admissible even though one of these factors is not
satisfied. Story v. State, 721 P.2d 1020 (Wyo. 1986), cert. denied, 479 U.S. 962, 107 S. Ct. 459, 93 L. Ed. 2d 405 (1986). Assuming the evidence qualifies under the
Bishop criteria, then Wyo.R.Evid. 404(b) specifically permits the introduction
of evidence disclosing other crimes or bad acts to show intent, motive, plan, or
identity.
[¶18.] Rivera insists the only reason for using
the testimony of the Utah victims was to
demonstrate that, since he may have committed other bad acts in Utah, he must have committed the crimes he was accused of
in Wyoming. It
is clear Wyo. R.Evid. 404(b) forbids the use of evidence of a person's character
to establish he acted in conformity therewith on a particular occasion. Carey v.
State, 715 P.2d 244 (Wyo. 1986), cert. denied,
479 U.S. 882, 107 S. Ct. 270, 93 L. Ed. 2d 247 (1986); Ortega v. State, 669 P.2d 935 (Wyo.
1983). So long as the Bishop criteria are met, however, and the permitted
purpose for the testimony is demonstrated to be in conformance with Wyo.R.Evid.
404(b), the evidence is admissible.
[¶19.] The testimony of the two victims in
Utah not only
tended to support the credibility of the victims in the charged cases, but it
corroborated the testimony of those victims. See Gezzi v. State, 780 P.2d 972
(Wyo. 1989).
Further, it disclosed motive by demonstrating a common style of misconduct to
achieve sexual gratification and served to demonstrate Rivera planned and
intended to effect sexual intrusion in each instance. Evidence of other crimes
or misconduct to demonstrate a plan simply depends upon a showing of a
relationship between the crimes and the defendant. Bishop. These prior bad acts
also corroborated identity. Under our case authority, identity is a material
issue in any case for purposes of applying Wyo.R.Evid. 404(b). Pena v. State,
780 P.2d 316 (Wyo. 1989). As set forth in Pena, this court
affords deference to the determination of a trial court with respect to the
admissibility of evidence of other crimes under Wyo. R.Evid. 404(b). See also
Noetzelmann v. State, 721 P.2d 579 (Wyo. 1986); Bishop. As long as there is a
legitimate basis for the court's decision, we cannot say that an abuse of
discretion is present. Pena; Trujillo v. State,
750 P.2d 1334 (Wyo. 1988).
[¶20.] From our analysis of the record, we
conclude the testimony of the Utah victims meets the factors identified in
the Bishop test. Both of these young women testified, clearly and without
contradiction, that Rivera attempted a sexual assault upon each of them at a
time when they were unable to consent and were helpless. Both of those assaults
occurred during the summer of 1989, which is not remote in time from the
offenses with which Rivera was charged. The material issues that this evidence
was offered to demonstrate, and helped to establish, were Rivera's intent,
motive, plan, and identity, all of which are permitted by Wyo.R.Evid. 404(b).
Our cases demonstrate that, in a sexual assault case, the substantial need for
such evidence is present.
[¶21.] The trial judge considered these factors
in arriving at his ruling on Rivera's motion in limine. He rather carefully
weighed probative value against the countervailing factors found in Wyo.R.Evid.
403 and did this in the context of the procedure suggested in Coleman v. State,
741 P.2d 99 (Wyo. 1987). We agree that, in this case, the
probative value of these other bad acts outweighs the danger of unfair prejudice
(Wyo.R.Evid. 403) because the clear and unrebutted testimony of the victims with
respect to the charged assaults would not necessarily result in Rivera's
conviction. The trial court did not commit any abuse of discretion in the
admission of the evidence of the other uncharged bad acts.
[¶22.] Rivera asserts error in the introduction
of evidence concerning a DNA profile. DNA alludes to deoxyribonucleic acid,
which is a molecule that carries the genetic information about humans in nearly
all of the cells of the body. The configuration of DNA is different for each
individual, with the exception of identical twins, and its characteristics
continue unchanged during life. Rivera essentially concedes the general
admissibility of this information in the course of his brief, and the true focus
of his claim of error is upon the testimony of the expert relating the fact that
he would expect to find a similar DNA pattern only in one individual out of
250,000 in the caucasian population. Specifically, Rivera's concern is that the
introduction into evidence of statistical information invaded the province of
the jury in this instance.
[¶23.] The parties discuss the general
admissibility of such evidence under the test of relevancy found in Cullin v.
State, 565 P.2d 445 (Wyo. 1977), or in
accordance with the criteria articulated in Frye v. United States,
293 F. 1013 (D.C. Cir. 1923). In Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), we quoted from Dyas v. United States,
376 A.2d 827 (D.C.App. 1977), cert. denied, 434 U.S. 973, 98 S. Ct. 529, 54 L. Ed. 2d 464 (1977), a test for admissibility of expert witness testimony, the
third factor of which is similar to the Frye criteria. Under either the Cullin
or Frye-Dyas approach, we are satisfied that evidence of the results of DNA
profiles is admissible.
[¶24.] While the parties have not couched their
arguments within the Wyoming Rules of Evidence, we are satisfied a correct
approach, rather than invoking Cullin or Frye, would be to analyze the
admissibility of scientific evidence in accordance with those rules.
Essentially, both the relevance of the evidence and the expertise of the witness
are addressed in Wyo.R.Evid. 702. When such testimony is admitted, then the
succeeding rules, Wyo.R.Evid. 703 through 705, may be invoked. We add only the
caveat that the opinion of the expert in a criminal case cannot embrace the
witness' conclusion as to guilt or innocence. Stephens.
[¶25.] A majority of the appellate courts that
have addressed the issue have concluded such evidence is generally accepted as
reliable within the scientific community and, in most instances, have espoused
the utilization of the restriction fragment length polymorphism (RFLP) technique
that was invoked by the federal bureau of investigation laboratory and its
expert in this case. United States v. Jakobetz, 747 F. Supp. 250 (D.Vt. 1990),
aff'd, 955 F.2d 786 (2nd Cir. 1992) cert. denied, ___ U.S. ___, 113 S. Ct. 104,
121 L. Ed. 2d 63 (U.S. 1992); State v. Pennell, 584 A.2d 513 (Del.Super. 1989);
Martinez v. State, 549 So. 2d 694 (Fla.App. 5 Dist. 1989); Caldwell v. State, 260
Ga. 278, 393 S.E.2d 436 (1990); Cobey v. State, 80 Md. App. 31, 559 A.2d 391
(1989), cert. denied, 317 Md. 542, 565 A.2d 670 (1989); People v. Shi Fu Huang,
145 Misc.2d 513, 546 N.Y.S.2d 920 (1989); State v. Pennington, 327 N.C. 89, 393 S.E.2d 847 (1990); State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107 (1992),
reh'g denied, 65 Ohio St.3d 1436, 600 N.E.2d 679 (1992); State v. Ford, 301 S.C.
485, 392 S.E.2d 781 (1990); Mandujano v. State, 799 S.W.2d 318 (Tex. App.
Houston 1st Dist. 1990); Spencer v. Commonwealth, 240 Va. 78, 393 S.E.2d 609
(1990), cert. denied, ___ U.S. ___, 111 S. Ct. 281, 112 L. Ed. 2d 235 (1990); State
v. Woodall, 182 W. Va. 15, 385 S.E.2d 253 (1989). In addition to this precedent
from other jurisdictions, that we find persuasive, we note the legislature of
the state of Wyoming has set a policy tone in recognizing
genetic testing in connection with paternity issues. Wyo. Stat. § 14-2-111(c)
(1992 Supp.).
[¶26.] Since the scientific reliability of this
DNA technique generally is accepted, in ruling upon the offer of such evidence
in Wyoming,
our trial courts need only be concerned with the requisite foundation. Because
it does appear the possibility of an erroneous result is more likely to arise
from the testing techniques than from the procedure, it is important for the
trial court to be satisfied about the manner in which the testing was performed,
and the qualifications of the individual who accomplished the scientific
technique. These factors, however, are no different from those generally related
to the acceptance of scientific evidence from an expert, and we do not perceive
we are formulating any new law.
[¶27.] One matter that has been of concern to
one court is testimony about the statistical probability of duplication. In
State v. Schwartz, 447 N.W.2d 422 (Minn. 1989), the court held it was error for
the trial court to permit testimony from the expert that the frequency of the
DNA pattern in issue in the caucasian population was approximately one in
thirty-three billion. The court noted recent publicity that implied
infallibility with respect to DNA testing, and its conclusion was that juries
dealing with such complex technology might give undue weight and deference to
such evidence. In Pearson v. State, 811 P.2d 704 (Wyo. 1991), this court
was concerned with a claim of error because of a statistical argument by the
prosecutor. We found no error in that case, but we did note that the claim
related to argument, not evidence.
[¶28.] The expert witness at Rivera's trial
testified that the probability of duplication based upon his test results would
be one in 250,000, a marked difference from the one in thirty-three billion
involved in Schwartz. Nevertheless, we consider this claim of error in light of
Stephens, 774 P.2d 60. Our conclusion is that, at some level, the statistical
probability could be perceived as an opinion by the expert that the accused is
guilty. At least, it would be possible for the jury to draw that inference from
statistical probabilities associated with the DNA evidence alone. We, therefore,
believe the better practice in Wyoming should be to not refer to the
statistical probability of duplication when introducing DNA test
results.
[¶29.] In this particular instance, the DNA
evidence was corroborative of the testimony of BJL. The corroboration went to
both identity and the fact of penetration. We are satisfied, however, that the
case presented by the State was sufficiently strong that the testimony as to
probability of duplication, if it were identified as error, constituted only
harmless error.
[¶30.] Rivera next contends his constitutional
right not to be twice placed in jeopardy was violated because as to each of the
victims he was charged with sexual assault and with taking indecent liberties
with a minor. We repeatedly have noted the three-fold impact of the double
jeopardy clause. We have said that it prohibits a second prosecution for the
same offense after an acquittal; a second prosecution for the same offense after
a conviction; and multiple punishments for the same offense. Birr v. State, 744 P.2d 1117 (Wyo. 1987), cert. denied, 496 U.S. 940, 110 S. Ct. 3224, 110 L. Ed. 2d 671 (1990); Tuggle v. State, 733 P.2d 610
(Wyo. 1987); Garcia v. State, 777 P.2d 1091
(Wyo. 1989).
In this case, we are concerned with the third aspect of the protection against
double jeopardy, that is multiple punishments for the same
offense.
[¶31.] We already have noted that, as to each
victim, Rivera was charged with violation of §§ 6-2-302(a) and 14-3-105. These
statutes define different crimes. McArtor v. State, 699 P.2d 288 (Wyo. 1985). They are
intended to suppress different evils; an acquittal and conviction under one does
not prevent prosecution under the other. Goodman v. State, 601 P.2d 178
(Wyo. 1979).
In Baum v. State, 745 P.2d 877 (Wyo. 1987), we held there is no violation of a
defendant's fundamental right to not be placed twice in jeopardy under the Fifth
Amendment to the Constitution of the United States or under art. 1, § 11 of the
Constitution of the State of Wyoming when conviction and punishment on two
counts occurs even though both acts were committed during the same encounter
with the victim. Under two separate statutes, two separate criminal acts can be
charged, tried, and punished.
[¶32.] Our rule is like that articulated in
People v. Hairston, 46 Ill. 2d 348, 263 N.E.2d 840 (1970), cert. denied, 402 U.S. 972, 91 S. Ct. 1658, 29 L. Ed. 2d 136 (1971), in which the court held that two or
more distinct offenses may emanate from the same transaction or act, and the
rule that a person cannot be put twice in jeopardy for the same offense is not
applicable where two separate and distinct crimes are committed by one and the
same act. In Hamill v. State, 602 P.2d 1212 (Wyo. 1979), we have a clear example of
repeated violations of the same statute in the perpetration of sexual assaults.
We held there that the legislature intended to protect the victim against each
identifiable sexual penetration. Consequently, even though a continuing course
of conduct was involved, each penetration constituted a separate and distinct
crime. In Baum, we held that, if different criminal acts are at issue, supported
by different factual evidence, even though they are separated in time by only a
few seconds, one offense is not included in the other. "The defendants can
properly be punished for [all], under different, or the same, statutory
provisions." Baum, 745 P.2d at 882 (quoting State v. Molitoni, 6 Haw. App. 77,
711 P.2d 1303, 1306 (1985), quoting in turn State v. Pia, 55 Haw. 14, 514 P.2d 580, 584-85 (1973)).
[¶33.] When we compare this body of law with the
evidence in this case, we note that, in the assault upon MB, Rivera first
grabbed her hand and thrust it down the front of his pants, making contact with
his penis. This event was a separate offense from the sexual assault upon MB,
and the evidence justified a conviction by the jury for violation of § 14-3-105,
indecent liberties with a minor. When Rivera sexually assaulted and penetrated
MB a few minutes later, he committed a violation of § 6-2-302(a)(i), sexual
assault in the first degree. Under our precedents, we hold it was lawful to
charge Rivera with both offenses and to sentence him for both offenses after
conviction on both. The judgment and sentences are affirmed in that
regard.
[¶34.] With regard to the charges against BJL,
we encounter a different situation. BJL was awakened to discover Rivera was on
top of her and had penetrated her vagina with his penis. The circumstances
demonstrate that, in order to accomplish the sexual assault, he had pulled her
jeans and panties down past her knees. The jury could have determined, in
convicting Rivera, that pulling down BJL's clothes constituted a separate and
distinct act from the sexual assault. In this instance, however, that conduct
was a part of, and necessary to, the accomplishment of the sexual assault. The
penetration could not have been accomplished without removal of BJL's
clothing.
[¶35.] In Vigil v. State, 563 P.2d 1344
(Wyo. 1977),
we discussed the filing of multiple charges and the separate verdicts on those
charges returned by the jury. The court introduced the subject in this
way:
There are here separate crimes that
have been charged and proven. All arise from the same event but each involves a
separate victim and courts are protective of the individual citizen subjected to
the criminal conduct of another. We have compiled cases in which there were
separate charges, entangling more than one citizen victim, arising out of one
occurrence in which courts have held there to be no double jeopardy and imposed
multiple punishments, in some cases concurrent and in others consecutive or by
combinations of those sentencing techniques. The precise question is addressed
to the asserted error of failure of the trial court to dismiss all or part of
the counts on the grounds of double jeopardy and fair
trial.
Vigil,
563 P.2d at 1351.
Dismissal
of one or the other of the charges is precisely the relief sought by Rivera in
this instance. Yet, the thrust of Vigil is that no prejudice attaches to
charging, trying, and submitting multiple offenses to the jury and receiving
separate verdicts. In Vigil, the third style of protection afforded by the
constitutional prohibition was not in issue because, in that case, the trial
court had imposed only one sentence. In this instance, we note the several
sentences were imposed to run concurrently.
[¶36.] An apt description of the doctrine of
merger of offenses for sentencing is found in Commonwealth v. Whetstine, 344
Pa. Super.
246, 496 A.2d 777 (1985), as that doctrine has been developed in Pennsylvania.
In
deciding whether offenses merge, the question is whether the offenses charged
"necessarily involve" one another, or whether any additional facts are needed to
prove additional offenses once the primary offense has been proven. In deciding
merger questions, we focus not only on the similarity of the elements of the
crimes, but also, and primarily, on the facts proved at trial, for the question
is whether those facts show that in practical effect the defendant committed but
a single criminal act.
Additionally, we note
that analysis of merger claims traditionally has revolved around the concept of
injury to the sovereign; in order to support the imposition of more than one
sentence, it must be found that the defendant's conduct constituted more than
one injury to the Commonwealth.
Whetstine,
496 A.2d at 779-80 (citations omitted).
[¶37.] In disposing of the double jeopardy issue
relating to the charges naming BJL as the victim, we hold the State was entitled
to charge both offenses, and it was entitled to have them presented to the jury.
The State had no way of anticipating how the evidence may be perceived by a jury
or what the conclusion of the jury might be with respect to the charged
offenses. Once the jury convicted Rivera of both charges, however, the charges
in the case of BJL merge for purposes of punishment, and only one sentence
should have been imposed. In the context of the Whetstine rationale, only one
injury occurred to the State in this instance. We, therefore, hold the sentence
for the indecent liberties charge in the case in which BJL was a victim should
be vacated. This acknowledges Rivera's right not to be placed twice in jeopardy
for the same offense and affords an adequate accommodation to the constitutional
prohibitions.
[¶38.] We have held there was no error in
connection with the specific claims of error by Rivera. In the absence of error,
there can be no claim of cumulative error, and we do not consider that
contention of Rivera any further.
[¶39.] The State of Wyoming has conceded
that, pursuant to precedent in this state, it is necessary the judgment and
sentence be amended to afford Rivera credit for pretrial incarceration on all of
the concurrent sentences. This concession by the State is correct. See Prejean
v. State, 794 P.2d 877 (Wyo. 1990); Weedman v.
State, 792 P.2d 1388 (Wyo. 1990). In this instance, a remand to the
district court is not necessary to accomplish that amendment to the judgment and
sentence, and our holding in this regard affords adequate notice to the
executive branch of government that the credit is to be given on all of the
concurrent sentences. As modified by the vacation of one sentence and the
requirement for credit against each of the remaining sentences for the full
presentence confinement, the concurrent sentences are
affirmed.
[¶40.] We hold there was no reversible error in
connection with Rivera's trial and conviction. As modified, the judgment and
sentences are affirmed.
FOOTNOTES
1 Wyo. Stat. § 6-2-302(a)
(1988) provides, in pertinent part:
(a) Any actor who
inflicts sexual intrusion on a victim commits a sexual assault in the first
degree if:
(i) The actor causes
submission of the victim through the actual application, reasonably calculated
to cause submission of the victim, of physical force or forcible
confinement;
* * * * *
*
(iii) The victim is
physically helpless, and the actor knows or reasonably should know that the
victim is physically helpless and that the victim has not consented; or * *
*.
The penalty
provision for the sexual assault statute is found in Wyo. Stat. § 6-2-306 (1988)
which provides, in pertinent part:
(a) An actor convicted
of sexual assault who does not qualify under the criteria of subsection (b) of
this section shall be punished as follows:
(i) Sexual assault in
the first degree is a felony punishable by imprisonment for not less than five
(5) years nor more than fifty (50) years;
* * * * *
*
(b) An actor who is
convicted of sexual assault shall be punished by the extended terms of
subsection (c) of this section if:
(i) He is being
sentenced for two (2) or more separate acts of sexual assault in the first or
second degree;
* * * * *
*
(c) An actor convicted
of sexual assault who qualifies under the criteria of subsection (b) of this
section shall be punished as follows:
(i) Sexual assault in
the first or second degree is a felony punishable by imprisonment for not less
than five (5) years or for life;
* * * * *
*
2 Wyo. Stat. § 14-3-105 (1986)
provides:
Any person knowingly
taking immodest, immoral or indecent liberties with any child or knowingly
causing or encouraging any child to cause or encourage another child to commit
with him any immoral or indecent act is guilty of a felony, and upon conviction
shall be fined not less than one hundred dollars ($100.00) nor more than one
thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten
(10) years, or both.
URBIGKIT, Justice, concurring in the
opinion.
[¶41.] I concur in the decision and in the
opinion. However, this court should proceed with some caution in any acceptance
that DNA profile testing is scientifically infallible. Some current literature
and recent cases are developing concern about the possibility of significant
error. Most authorities agree that error can occur, dependent upon a number of
factors, including simple carelessness in application of any particular
procedure. Abstract certainty does not exist for infallibility.
United
States v. Two Bulls, 925 F.2d 1127 (8th Cir.
1991) (vacated upon death of defendant during en banc rehearing); Com. v.
Curnin, 409 Mass. 218, 565 N.E.2d 440 (1991);
People v. Castro, 144 Misc.2d 956, 545 N.Y.S.2d 985 (1989); Larry G. Butler,
State v. Davis: DNA Evidence and the Use of Frye
in Missouri,
60 UMKC L.Rev. 577 (1992); Don J. DeBenedictis, DNA Report Raises Concerns, 78
ABA Journal 20 (July 1992); Stephanie B.
Goldberg, A New Day for DNA?, 78 ABA Journal 84 (April 1992); Kathryn Korkos
Theofilos, Note, DNA Fingerprinting: The Definitive Evidence in a Criminal
Trial, 22 Mem.St.U.L.Rev. 319 (1992); William C. Thompson & Simon Ford, DNA
Typing: Acceptance and Weight of the New Genetic Identification Tests, 75
Va.L.Rev. 45 (1989). Compare People v. Barney, 8 Cal. App. 4th 798, 10 Cal. Rptr. 2d 731 (1992), questioning lack of standardization for laboratory
procedures.
[¶42.] In a few years, it may be recognized that
DNA profile testimony, although continuing as useful evidence, is not completely
safe from error. Our understanding of the variations in DNA testing parallels
current scientific analysis and conclusions about the accuracy of another field
of scientific testing. Many experts have now recognized that impaired driver
determinations from alcoholic beverage consumption established by breathalyzer
testing does not always prove inability or impaired ability to safely drive. The
presence of multiple variable factors, relating to differences among
individuals, may affect the reliability within the normal range for the
establishment of impairment to drive. 2 Donald H. Nichols, Drinking/Driving
Litigation §§ 23:07 through 23:31 and §§ 23:32 through 23:61 (1992). See 4
Donald H. Nichols, Drinking/Driving Litigation, Bibliography: Scientific
Literature (1992) and LawrenceTaylor, Drunk Driving
Defense § 6.4.4, at 672 (3rd ed. 1991).
[¶43.] DNA profiling can create equipment,
method, sample, and genetic variances which may likewise require clear standards
and continually applied skepticism about accuracy. Edward J. Imwinkelreid, The
Debate in the DNA Cases Over the Foundation for the Admission of Scientific
Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis, 69
Wn.U.L.Q. 19 (1991).
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