Little v. State

552 P.3d 385

2024 WY 78

Rick James LITTLE, Appellant (Defendant),

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

S-23-0043, S-23-0294

Supreme Court of Wyoming.

July 19, 2024

Appeal from the District Court of Campbell County, The Honorable Stuart S. Healy III, Judge

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

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General, Darrell D. Jackson, Faculty Director Prosecution Assistance Program; Kaylee A. Sims, Student Directory; Jared Lange, Student Intern. Argument by Mr. Lange.

Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.

FOX, Chief Justice.

[¶1] Rick James Little was found guilty by a jury of one count of sexual abuse of a minor in the third degree and one misdemeanor count of attempted sexual battery. He filed a motion for new trial, claiming that he received ineffective assistance of counsel. The district court denied the motion, finding that Mr. Little failed to show that, absent any deficiencies in his counsel’s performance, there was a reasonable probability that the outcome of the trial would have been more favorable to him. We affirm.

ISSUE

[¶2] The sole issue for our consideration is whether Mr. Little was denied the effective assistance of counsel.

FACTS

[¶3] Mr. Little met BLC and BMC through their parents, and sometimes hung out with them in their garage. In October 2021, they reported to police that Mr. Little had been alone in the garage with them, had kissed and touched BLC (age 15 at the time) on her breasts and above her pubic area; and had touched BMC (age 17 at the time) on her inner thigh and attempted to grab her breasts, When police interviewed Mr. Little, he denied that he had touched the young women inappropriately, and said he had never been alone with them without an adult present. Police also interviewed the girls’ mother, who "showed [the officer] a text message that she received from [Mr. Little] when [he] was out in the garage with her daughters that was dated October 1."

[¶4] Mr. Little was charged with third degree sexual abuse of a minor in violation of Wyo, Stat. Ann. 6-2-316(a)(iv), (b) and 6-10-102; and attempted sexual battery, in violation of Wyo. Stat. Ann. §§ 6-2-313(a), (b), 6-1-301(a)(i) and 6-1-304. The district court appointed a public defender to represent him, but he was soon replaced by retained counsel, who promptly filed a demand for discovery and a demand for notice of intent to introduce W.R.E. 404(b) evidence. The State filed its demand for notice of alibi April 12, 2022, which the court’s criminal case management order required Defendant to provide on or before April 27, 2022. The State did not file a 404(b) notice; and Mr. Little provided no notice of alibi defense. In his pretrial memo, filed July 26, 2022, Mr. Little designated two witnesses:

1. Amber Everly. If called to testify Ms. Everly will testify as to her knowledge and understanding of the Defendant. She will testify as to the precautions he has taken since being released from incarceration about not being in the presence of underage females.

2. Gary Owen c/o Wyoming Probation and Parole. Mr. Owen was the Defendant’s parole officer during the times complained of. If called to testify Mr. Owens [sic] will testify as to his interactions with the Defendant, discussions he had with the Defendant regarding the incidents complained of, and the Defendant’s progress as a parolee.

[¶5] The jury trial began August 31, 2022. During voir dire, Mr. Little’s counsel told the jury panel:

I anticipate Mr. Little is going to testify. Mr. Little is going to testify that he’s been convicted of sexual-based assaults. The reason I ask whether folks had looked at the registry, Mr. Little is on the registry. And if Mr. Little takes the stand and he testifies, Mr. Henkes is going to have an opportunity to cross-examine him. And I’ve struggled long and hard with this question, ladies and gentlemen, but is there anybody, based on Mr. Little’s prior history, would just shut down over the fact that if it happened once before, it had to have happened again?

Can I get a commitment out of everybody that you will listen to both sides of the story regardless of this man’s past? Is there anybody that believes some things simply can’t be forgiven or undone?

Is everybody willing to allow for the fact that redemption is for everybody, that the system can work, that people can be brought back into productive members of our society?

His counsel revisited the theme of Mr. Little’s prior convictions in his opening statement:

And I told you in voir dire that Mr. Little has been down this road in the past. What you’re going to hear from Mr. Little is a very uncomfortable story. He’s going to tell you what it was like serving time for the crimes that he’s been - he was convicted of, and what it was like serving time for the crimes that he’s being charged with. He’s going to tell you about steps he took to make sure that didn’t happen.

[¶6] The State called the two investigating officers, the two victims, and the victims’ mother. Their testimony thoroughly supported the charges against Mr. Little.

[¶7] Mr. Little was the only witness for the defense. After asking him his age (33), and how many children he had (four), his counsel moved on:

Okay, Rick, let’s talk a little bit about your past. Have you been convicted of third degree sexual assault of a minor? A. Yes, I have.

Q. Do you remember when that was?

A. When I was 18.

Q. And did that happen here in Campbell County?

A. Yes, it did.

Q. How old was the victim?

A. She was 12.

Q. You were 18?

A. Yes.

Q. She was 12.

He further inquired:

Q. (By Mr. Abraham) After - Rick, after that first conviction did you receive a subsequent conviction?

A. Yes, I did.

Q. And what was that for?

A. Second degree sexual abuse of a minor. Q. And based on that, were you eventually placed with Department of Corrections? "Yes" or "no"?

A. Yes.

The questions that followed explored the sex offender treatment that Mr. Little received, how he learned about his "triggers" that led up to the crimes he committed, and the continuing sex offender and life skills treatment that he received while on parole. As a result of this training, Mr. Little testified, he never allowed himself to be alone with minors. He described his friendship with the parents of BLC and BMC, and denied ever being "around the girls when their folks weren’t around." He adamantly denied either touching the girls or being alone with them. He contended he "was never over there that night this happened." Instead, he stated, he spent every Friday night at Amber Everly’s house to visit his daughter.

[¶8] On cross-examination, the State questioned Mr. Little about Exhibit 3, a screen shot taken at 9:12 p.m. October 1, 2021, depicting BLC. The State called the victims’ mother on rebuttal. She testified the screen shot was of a text message she received from Mr. Little on the night of October 1, 2021, of a photo of her daughter, in her garage. She testified that she provided the screen shot to the State that morning.

[¶9] The jury found Mr. Little guilty of both charges, and he filed a timely Notice of Appeal and Motion for New Trial At the hearing on the motion for new trial, Mr. Little’s counsel recalled few details, but did make it clear that his theory of defense, "up until the day of trial, [was] that he wasn’t there." But when the victims’ mother testified regarding the text message and photo, "that was when the lid blew off the entire, the entire plan from the beginning." He insisted that Mr. Little made it very clear he wanted to testify. He stated he was aware that Amber Everly was a potential alibi witness; he believed he "would have" talked to her before he prepared his pretrial memo, but that he didn’t pursue her potential alibi testimony because she was unable to specify the date and time Mr. Little was at her house. He testified that he had concerns about offering testimony of Mr. Little’s prior convictions, that he had "hours of conversation" with his client about that, but that if the evidence came in through the State, it would "crucify" him. Although jail records only showed one visit by him to Mr. Little, on the day before trial, he disagreed that was the only time he visited his client. He stated he asked Mr. Little several times before voir dire whether he wanted to testify, and each time he was adamant that he did.

[¶10] Ms. Everly testified that defense counsel first spoke to her about two days before trial. She said she took time off work to testify at Mr. Little’s trial but at the end of the second day was told by Mr. Little’s counsel that he wouldn’t call her. (Counsel denied this, saying that when he went to look for her outside the courtroom, she had gone to work.) And she testified that Mr. Little was at her house October 1, there was a barbecue at her house, which he attended and stayed late. However, she could not say that he was at her house the entire evening; she was unsure how long he was there that night.

[¶11] Mr. Little testified regarding his pretrial communication with his counsel. He said he saw him only once in person, the day before trial. During that meeting, his mother was on the phone and there was a discussion of the possibility of his testifying, but he first learned the jury was going to hear about his prior convictions at voir dire. He said he only decided to testify on the second day of trial, because by that time the damage had been done, "my past was already out on the table." He admitted on cross-examination that his counsel had advised him prior to trial of the potential dangers of testifying.

[¶12] The district court made some...