Marfil v. State

366 P.3d 969

Julian Robert MARFIL, Appellant (Defendant),

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

No. S–15–0125.

Supreme Court of Wyoming.

Jan. 26, 2016.

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel, Cheyenne, WY. Argument by Mr. Westling.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; and Bradford H. Coates, Student Director. Argument by Mr. Coates.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

HILL, Justice.

[¶ 1] A jury convicted Julian Marfil of two counts of second degree sexual abuse of a minor. On appeal, Mr. Marfil contends that the district court abused its discretion when it refused his proffered instruction defining the term "inflicts," as that term is used in the charged statute's phrase "inflicts sexual intrusion on a victim." Mr. Marfil further contends that the district court erred when it denied the jury's request for a dictionary during its deliberations. We affirm.

ISSUE

[¶ 2] Mr. Marfil frames the issue on appeal as follows:

I. Did the trial court err by refusing Defendant's proffered instruction regarding the definition of "inflict" as used in W.S. § 6–2–315(a)(i) and then further err by refusing to give a definition after the jury requested a dictionary?

FACTS

A. Facts Leading to Charges Against Mr. Marfil

[¶ 3] On January 8, 2014, Deputy Mitchell Chapman of the Laramie County Sheriff's Office asked two other Sheriff's deputies to conduct a welfare check on fifteen-year-old B.L., at the Pioneer Hotel in Cheyenne, Wyoming. This request stemmed from information Deputy Chapman received while following up on a report that B.L. had missed a therapy appointment arranged through the Wyoming Department of Family Services. Deputy Chapman knew B.L., felt she was a smart kid, and in an attempt to get her therapy appointment rescheduled, he located B.L.'s mother and had a conversation with her.

[¶ 4] During Deputy Chapman's conversation with B.L.'s mother, he asked B.L.'s mother to reschedule B.L.'s therapy appointment and urged her to get B.L. back into school. B.L's mother agreed that B.L. was a bright kid and needed to stay in school. B.L.'s mother then told Deputy Chapman that she was concerned about B.L. because she believed B.L. might be staying at the Pioneer Hotel with a 45–year–old man named Julian Marfil. B.L.'s mother was concerned with the thirty-year difference in their ages, but she indicated that she did not know whether the two were having sex. Deputy Chapman told her he would make arrangements for a welfare check.

[¶ 5] Per Deputy Chapman's request, Deputies Burrow and Crosby went to the Pioneer Hotel. They went to Room 228 and found B.L. and Mr. Marfil in bed. Mr. Marfil was wearing shorts and a t-shirt, and B.L. was wearing a football jersey and shorts. B.L. initially gave Deputy Burrow a false name and said that she was Mr. Marfil's adult daughter but then admitted her true identity. After Deputies Burrow and Crosby were unable to locate either of B.L.'s parents, the Sheriff's Office took her into protective custody.

[¶ 6] On January 13, 2014, the State filed an information charging Mr. Marfil with two counts of second degree sexual abuse of a minor.

B. Trial

[¶ 7] B.L. testified at Mr. Marfil's trial and described what occurred between the two of them. B.L. met Mr. Marfil through Mr. Marfil's sister, who worked with B.L.'s mother. Mr. Marfil began sending B.L. text messages in June 2013, starting with a text message asking B.L. if she knew where he could find his sister. In July 2013, Mr. Marfil began sending her text messages more regularly, and the text messages became what B.L. viewed as romantic. During this same month, B.L. began spending more time with Mr. Marfil, and they began kissing. At this time, B.L. was fourteen years old.

[¶ 8] Toward the end of October 2013, B.L. began spending the night with Mr. Marfil and having sex with him. B.L. testified that Mr. Marfil had sex with her about three times a week in October and November. In December 2013, the two spent less time together, but Mr. Marfil still had sex with B.L. one to two times every two weeks until his arrest in January 2014.

[¶ 9] On December 16, 2013, B.L. turned fifteen, by which time she was already pregnant by Mr. Marfil. B.L. gave birth to the child on September 14, 2014. On cross-examination, B.L. agreed that she was not tricked into having sex with Mr. Marfil, that he did not pay her for sex, and that he did not force her in any way to have sex with him. On re-direct, B.L. testified that while she was with Mr. Marfil, she believed she loved him, but she later realized she did not. B.L. further testified:

Q. What are your thoughts now, looking back on the relationship?

A. I should have thought it through more but ...

Q. And why is that?

A. Um, 'cause it really changed how I'm going to, like, finish school and everything.

C. Jury Instructions and Deliberations

[¶ 10] In Instructions Nos. 8 and 9, the district court, with the agreement of the parties, instructed the jury on the elements of the two charged counts. Instruction No. 8 defined the elements for Count I:

The elements of the crime of Sexual Abuse of a Minor in the Second Degree, as charged in Count I in this case, are:

1. On or about the 1st day of July, 2013 through the 9th day of January 2014

2. In Laramie County, Wyoming

3. The Defendant, Julian Marfil

4. Inflicted sexual intrusion upon B.L.

5. B.L. was thirteen (13) through fifteen (15) years of age; and

6. The Defendant was at least four (4) years older than B.L.¹

[¶ 11] Among other instructions, Mr. Marfil offered a theory of defense instruction and an instruction defining the term "inflict." Mr. Marfil did not deny having sexual intercourse with B.L. or knowing that she was only fourteen years old when he began having sexual intercourse with her. Mr. Marfil's theory of defense was that he did not "inflict" sexual intrusion on B.L. because she consented to the sex. The district court allowed Mr. Marfil's theory of defense instruction, which as given to the jury read:

Mr. Marfil asserts that he did not inflict sexual intrusion on B.L. The State must prove beyond a reasonable doubt that the sexual intercourse was inflicted upon B.L. This is a matter which the jury must decide based on all of the facts and circumstances of the case. The law requires that the sexual intercourse must be inflicted. If the State fails to prove beyond a reasonable doubt that Mr. Marfil inflicted sexual intrusion, then you must find him not guilty of both Counts I and II.

[¶ 12] The district court refused, however, Mr. Marfil's proffered instruction defining the term "inflict." That instruction read:

Inflict means to impose as something that must be borne or suffered; or to impose anything unwelcome.

[¶ 13] Before refusing this defense instruction, the district court heard argument from both parties. In the course of that argument, the court had the following exchange with the State:

THE COURT: Mr. Sandford, we're going to get a question early on from the jury when they go back to deliberate this case: What does the word "inflict" mean? How do we respond to that?

MR. SANDFORD: Your Honor, I believe the best way to respond to that is, You've been given the instructions. And we've done this I think many times with jury instructions. They sometimes ask for the definition of reasonable doubt. They sometimes ask the Court for the definition of very ordinary words, looking for some guidance.

[¶ 14] After hearing argument from both parties, the district court explained its decision to refuse the defense instruction:

THE COURT: All right. Well, the Court, first of all, Miss Johnson, would compliment you on your argument. It is a very creative argument. And you have done an exemplary job of raising the issue and of representing the best interests zealously of Mr. Marfil in this case. But I think that the State has a more persuasive argument as to not defining that term.

I do agree with Mr. Sandford that really what we're trying to do with that definition is inject a back-door consent defense, which would be inconsistent as the Court understands Wyoming law. Again, I have spent some time researching the origins, I guess, of what is often called statutory rape. It begins in 1908. And it talks about how the law in the Ross case implies incapacity to consent in a situation where an individual is a minor. And in that case the Supreme Court said, No matter what the actual state of a victim's mind may be at the time, the law resists for her.

That concept in the law was repeated again in the case of State v. Scadden, in 1987, 732 P.2d 1036 [ (Wyo.1987) ], in which the majority in that case said, "The law in Wyoming and indeed the law in general has always limited some sexual contacts. The primary purpose for these prescriptions against sexual relations is the absence of acceptable consensual participation in the act."

"The State of Wyoming has a compelling interest in regulating sexual contacts between persons when one of those persons does not consent or lacks the capacity to consent. Incest or statutory rape are readily apparent examples." And it cites to the Ross case.

The next case I would discuss would be the one that I visited with you about, Miss Johnson, the Pierson case. And again, in that case the Wyoming Supreme Court in 1998 at 956 P.2d 1119 discusses the difference between and the distinction between immoral or indecent liberties under what was then a Title XIV offense and the sexual assault or statutory rape charge that's set forth in 6–2–304.

And they make an issue about the fact that a person under the age of 16 legally cannot consent. However, in a situation where the

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