Benedict v. State

548 P.3d 989

2024 WY 55

Russell Patrick BENEDICT, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-23-0226

Supreme Court of Wyoming.

May 23, 2024

Appeal from the District Court of Albany County, The Honorable Misha E. Westby

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General. Argument by Ms. Jones.

Before FOX, C.J., and KAUTZ^*, BOOMGAARDEN, GRAY, and FENN, JJ.

FOX, Chief Justice.

[¶1] Russell Patrick Benedict appeals the district court’s order denying his motion for return of a cellphone seized as evidence in the criminal case against him. We affirm.

ISSUES

[¶2] Mr. Benedict presents two issues on appeal, which we restate as:

1. Did the district court violate Mr. Benedict’s right to due process by failing to apply the rules of evidence during the evidentiary hearing on his motion for the return of his property?

2. Did the district court abuse its discretion in denying Mr. Benedict’s motion for the return of his property?

FACTS

[¶3] In 2018, the Albany County Sheriff’s Office received a report that Mr. Benedict was sexually abusing his sixteen-year-old daughter, AB. During the investigation of that report, a deputy sheriff seized Mr. Benedict’s cellphone and obtained a warrant to search its contents. The district court ordered Mr. Benedict to provide the passcode for his phone to enable the search, but he claimed he could not comply because he did not remember the passcode. The phone’s contents were therefore never searched.

[¶4] Ultimately, Mr. Benedict pled no contest to one count of second-degree sexual abuse of AB, and in December 2018, the district court entered judgment and sentenced him to a prison term of eighteen to twenty years for that crime. In 2022, Mr. Benedict filed a motion for the return of two cellphones, his and AB’s. The State responded that AB’s phone had already been returned to her. It objected to the return of Mr. Benedict’s phone on the ground that the State suspected it contained nude photos of AB and its return would result in Mr. Benedict possessing child pornography. The district court denied Mr. Benedict’s motion without taking evidence on it, and he appealed.

[¶5] On appeal, the State filed a motion with this Court conceding that the district court should have received evidence before ruling on Mr. Benedict’s motion. It asked that we reverse the ruling and remand for the district court to receive evidence. We granted the State’s motion and ordered that the matter be "remanded to the district court for that court to hold an evidentiary hearing" on Mr. Benedict’s motion.

[¶6] The district court held the evidentiary hearing, and at its outset, the following exchange took place:

THE COURT: The Court finds that the Defendant is alert and competent and ready to proceed.

Any preliminary matters before we get started from the State.

[PROSECUTOR]: Your Honor, the State is going to waive opening. However, just for clarity of the record, the State does believe that the rules of evidence don’t apply to this hearing.

It’s not an adjudicatory hearing and this is something that can be a factual determination that, can be determined without a jury. So that’s the only preliminary matter the State has, Your Honor.

THE COURT: Okay.

Anything preliminary, [Defense Counsel], or any response to the State’s preliminary thoughts?

[DEFENSE COUNSEL]: No, Your Honor I think the State’s assessment is correct.

THE COURT: Okay.

[¶7] The State argued against the return of Mr. Benedict’s cellphone based on its earlier assertion that it likely contained child pornography and returning it would thus constitute dissemination of child pornography. It added that the State had an interest in protecting AB from the trauma of Mr. Benedict possessing nude images of her. In support of its objections, the State called one witness, Detective Jeffrey McKinney of the Albany County Sheriff’s Office.

[¶8] Detective McKinney had little involvement in the investigation of the charges that led to Mr. Benedict’s conviction, but he looked into the status of the cellphones that had been seized after Mr. Benedict filed his motion for their return. He could not open Mr. Benedict’s phone because he did not have the passcode, and he therefore could not testify to personal knowledge of its contents. He instead testified that he spoke to the lead investigator on the Benedict investigation, Detective William Meyer, who had since left the Sheriff’s Office. He then testified, without objection, to what Detective Meyer told him concerning text messages between AB and Mr. Benedict:

Q. Besides just text messages that were exchanged between AB and Mr. Benedict, is there any other reason that you believe that there’s possibly child pornography on the cell phone?

A. Yes.

I mean, I actually spoke to Detective Meyer about this when I started getting e-mails and he said during his investigation, he could see the messages sent from the victim’s phone to the Defendant and those messages did meet the statutory definition of child pornography.

So we know they were sent to the phone, to the Defendant’s phone.

Q. And just for clarity Detective Meyer told you he saw those photographs on AB’s phone?

A. Correct.

Q. And it showed her sending them to Mr. Benedict’s phone?

A. Yes.

Q. Without too many details, I mean, you said it meets the definition of child pornography. I guess, what was the state of AB in the photographs?

A. She was nude.

[¶9] Detective McKinney also testified that he discussed the situation with agents who work in the area of internet crimes against children. Concerning that conversation, he testified, again without objection:

Q. Now, when this return of property motion came up, did you also speak with agents with the internet crimes against children -

A. -- I did -

Q. -- division?

A. Yes.

Q. What did you learn from them?

A. Well, I asked them if there was a way to factory reset the phone without having the pass code. And I asked what the likelihood was that there would still be child pornography on the phone and kind of gave him the circumstances about the [v]ictim sending those text messages.

He said without the - and this is my experience as well is without the pass code, there’s really no way for us to factory reset the phone.

And it’s very likely that there would still be child pornography on the phone.

[¶10] The district court found the State had an interest in preventing the dissemination of child pornography and in preventing further trauma to AB and had met its burden of showing Mr. Benedict’s cellphone likely contained pornographic images of AB. The court concluded the State therefore had an interest in retaining Mr. Benedict’s phone, and it denied Mr. Benedict’s motion for its return. Mr. Benedict timely appealed.

DISCUSSION

I. Although Mr. Benedict did not waive his due process claim, he failed to show a plain error violation of his right to due process.

[¶11] Mr. Benedict claims the district court violated his right to due process by allowing the State to suspend application of the rules of evidence, which he contends led to the prejudicial admission of Detective McKinney’s improper hearsay testimony. The State argues Mr. Benedict waived his right to appeal the admission of the hearsay testimony when, at the outset of the hearing, his counsel agreed the rules of evidence did not apply.

[1] [¶12] "While the question of waiver is often one of fact, when the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law which we consider de novo." Barney v. State, 2022 WY 49, ¶ 21, 507 P.3d 459, 463 (Wyo. 2022) (italics removed) (quoting Rodriguez v. State, 2019 WY 25, ¶ 16, 435 P.3d 399, 403 (Wyo. 2019)). Because the record is clear in this case, and the facts relating to waiver are not disputed, we address the question of waiver as one of law.

[2–6] [¶13] We have distinguished between a waiver of a right or objection and the forfeiture of a right or objection.

We reject attempts by a defendant to turn a trial strategy into an appellate error. The doctrine of invited error prohibits a party from raising on appeal alleged trial court errors that were induced by that party’s actions. When a party affirmatively waives a right or objection, we do not review it; however, when a party merely forfeits a right or objection, we review for plain error. Waiver is the intentional relinquishment or abandonment of a known right, while forfeiture is the failure to make a timely assertion of a right. Waiver requires something more affirmative than simple agreement.

Berry v. State, 2023 WY 75, ¶ 28, 533 P.3d 474, 482-83 (Wyo. 2023) (quoting Tarpey v. State, 2023 WY 14, ¶ 50, 523 P.3d 916, 931 (Wyo. 2023)).

[¶14] We applied this distinction in King v. State, 2023 WY 36, ¶ 29, 527 P.3d 1229, 1241 (Wyo. 2023). In that case, the prosecutor referenced dismissed charges during closing argument and the district court admonished him and cautioned him not to do it again during rebuttal. Id. Defense counsel responded that he had no objection to the prosecutor’s comments and that the dismissed charges were "fair game for both parties." Id. He then referenced the dismissed charges in his closing argument to highlight discrepancies in the dates of the charges against the defendant. Id. Under those circumstances, we concluded defense counsel made a strategic decision to withhold objection, and the appellant had waived his right to challenge the prosecutor’s comments on appeal. Id; see also Baker v. Baker, 2023 WY 121, ¶ 18, 539 P.3d 412, 416 (Wyo. 2023) (finding waiver where appellant affirmatively requested that reassigned judge proceed on transcript of prior evidentiary hearing); Berry, 2023 WY 75, ¶ 29, 533 P.3d at 483 (fi...