Miller v. State

479 P.3d 387

Jason Arnold MILLER, Appellant (Defendant),

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

S-20-0087

Supreme Court of Wyoming.

January 28, 2021

Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson,^* Senior Assistant Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.

Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General. Argument by Mr. Eames.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

GRAY, Justice.

[¶1] A jury convicted Jason Miller on three counts of first-degree sexual abuse of a minor. On appeal, Mr. Miller claims the district court erred in admitting evidence of prior bad acts under W.R.E. 404(b)¹ and by refusing to conduct a pretrial taint hearing. We affirm.

ISSUES

[¶2] The issues are:

1. Did the admission of W.R.E. 404(b) evidence prejudice Mr. Miller?

2. Did the district court abuse its discretion in concluding A.B. was competent without further consideration of evidence of taint?

FACTS

[¶3] Mr. Miller married A.B.’s mother, K.B., in 2010. In 2014, Mr. Miller and K.B. moved to Worland, Wyoming, with K.B.’s two children—A.B., born July 14, 2003, and A.B.’s sister, born June 5, 2007. The family lived first with K.B.’s father and then for a short while with K.B.’s sister-in-law. Over the next two years, the family moved to three different locations in Worland: in November 2014, they moved to a three-bedroom apartment on Third Street; in July 2015, they relocated to a residence on Charles Avenue; and in April 2016, they rented a two-bedroom apartment on Cloud Peak Drive.

[¶4] In August 2016, Mr. Miller moved to Cheyenne. He returned to Worland in September 2016. He then rented the apartment across the hallway from K.B.’s apartment. A.B. moved in with Mr. Miller because he would have his own bedroom—prior to the move he shared a room with his sister.

[¶5] K.B. testified that around September 2016, she walked into Mr. Miller's apartment and saw A.B. lying on the bed in his underwear. Mr. Miller was in the room and jumped into a corner trying to hide an erection. K.B. reported Mr. Miller to the Worland Police Department alleging A.B. had been sexually abused. Worland Police Officer John Core and a Department of Family Services employee interviewed A.B. and videotaped the interview. A.B. was later interviewed at the Children's Advocacy Project in Casper and also received counseling from two other individuals.

[¶6] On November 2, 2018, the State filed a Felony Information charging Mr. Miller with six counts of first-degree sexual abuse of a minor.² The information alleged the charged conduct occurred in Worland at various locations over a two-year period from August 2014 through September 2016. Three of the counts were dismissed before trial. The three remaining counts alleged:

Count I ... Sexual Abuse of a Minor in the First Degree, during the timeframe of December 2014 to September 2015 [(Third Street apartment);]

Count II ... Sexual Abuse of a Minor in the First Degree, during the timeframe of September 2015 to March 2016 [(Charles Avenue residence); and]

Count III ... Sexual Abuse of a Minor in the First Degree, during the timeframe of September 1, 2016 to September 30, 2016 [(Cloud Peak Drive apartment).]

[¶7] The district court scheduled trial for April 22, 2019. Prior to trial, Mr. Miller filed a demand for notice of intent to use 404(b) evidence. The State did not respond. At trial, the State elicited unnoticed 404(b) evidence before the jury, resulting in a mistrial. The district court set a second trial for August 26, 2019.

[¶8] Before the second trial, the State filed a notice of intent to elicit 404(b) testimony. It requested the admission of earlier federal and state judgments against Mr. Miller.³ It also sought to introduce evidence of Mr. Miller's course of conduct leading up to the alleged sexual abuse charges, including: "testimony ... as to sleeping arrangements"; K.B. witnessing Mr. Miller and A.B. masturbating together; K.B. finding Mr. Miller lying on top of A.B.; and Mr. Miller's statements regarding what is normal in a father-son relationship. This uncharged conduct did not involve sexual intrusion, one of the elements of the charged conduct. The State argued it was admissible to show that Mr. Miller engaged A.B. in a series of escalating sexual encounters (grooming) which eventually led to the charged conduct (fellatio and anal penetration). Mr. Miller objected.

[¶9] The district court heard argument on August 20, 2019. As to anticipated 404(b) course of conduct testimony, the court ruled the evidence was admissible "to develop the circumstances of the case and the course of conduct ... to the extent that it is not specific to charged conduct that has already been dealt with [in the earlier State charges]." The district court did not, however, conduct the analysis required under Gleason v. State , 2002 WY 161, ¶ 30, 57 P.3d 332, 343 (Wyo. 2002) prior to its ruling.

[¶10] Mr. Miller also filed a pretrial motion requesting a competency and taint hearing. He claimed A.B. had been subjected to an extensive number of interviews where inappropriate questioning techniques were used. As a result, Mr. Miller contended A.B.’s version of events had been tainted, and A.B. could no longer provide an independent recollection of events. The district court held a hearing and determined A.B. was competent to testify. It also concluded Mr. Miller failed to present evidence warranting a further taint hearing.

[¶11] The case proceeded to trial where only three witnesses were called.⁴ Specific to the uncharged prior bad acts at issue here, K.B. and A.B. testified. K.B. testified that during their time at the Third Street apartment, A.B. and Mr. Miller had a close relationship. Mr. Miller would shower and bathe with A.B. a "[c]ouple times a week." This continued after the family moved to Charles Avenue but "[i]t was less there." K.B. questioned Mr. Miller about this conduct, and he said this was "[Mr. Miller's and A.B.’s] bonding time and that [it] was actually a normal way a father would teach a son how to take care of his hygiene." K.B. testified she never had a normal childhood herself, so she believed Mr. Miller. She also recounted that while living at Third Street, she walked in on Mr. Miller "masturbating with [A.B.] there." K.B. immediately walked out of the house and Mr. Miller followed her. Mr. Miller said, "It's not what it looks like. ... That's how a father teaches a young boy to properly masturbate." Again, K.B. said she believed him.

[¶12] A.B. testified that he started taking baths with Mr. Miller at the Third Street apartment. He thought it was normal because Mr. Miller told him it was normal, and Mr. Miller was the only father he knew. During this same time, A.B. stated he and Mr. Miller would sleep in the same bed, usually naked.

[¶13] A.B. also testified to the charged conduct. A.B. testified the first time he and Mr. Miller had sexually intrusive contact, A.B. was lying on his bed playing with his phone. Mr. Miller came in and closed the door. He sat on the bed and undressed. A.B. also undressed. The two performed mutual fellatio for five to ten minutes followed by Mr. Miller anally penetrating A.B. This pattern continued throughout the time they lived together and at each location, usually when his mother was not home. A.B. said he never resisted the sexual encounters or spoke to anyone about this because he believed these behaviors were normal. He trusted Mr. Miller and thought he was a good father.

[¶14] The defense did not call any witnesses. The theory of defense expressed in closing argument was that K.B. wanted to divorce Mr. Miller. To ensure A.B. would not be able to live with Mr. Miller after a divorce, K.B. coached A.B. to make accusations of sexual abuse.

[¶15] The jury returned a guilty verdict on all three counts. The district court sentenced Mr. Miller to twenty-five to fifty-year terms of imprisonment on Counts I and on II, to run consecutively, and twenty-five to fifty years on Count III, concurrent to the sentences imposed on Counts I and II.

DISCUSSION

I. Did the admission of W.R.E. 404(b) evidence prejudice Mr. Miller?

[¶16] Mr. Miller contends the district court erred in allowing K.B. and A.B. to testify regarding the sleeping arrangements; Mr. Miller's frequent bathing and showering with A.B.; incidents of masturbation; and Mr. Miller's explanations that his conduct with A.B. was normal. He claims this testimony was unfairly prejudicial 404(b) evidence because it did not relate directly to the first-degree sexual assault charges at trial.

A. Standard of Review

[¶17] The admissibility of 404(b) evidence is reviewed "in two parts; first for abuse of discretion, assuming the court performed some sort of analysis under the Gleason [¶ 30, 57 P.3d at 343 ] framework."⁵ Mitchell v. State , 2020 WY 142, ¶ 20, 476 P.3d 224, 232 (Wyo. 2020) (citations omitted); Moser v. State , 2018 WY 12, ¶ 24, 409 P.3d 1236, 1244–45 (Wyo. 2018) ("Our task in reviewing a district court's decision on the admissibility of uncharged misconduct evidence is to determine whether the district court abused its discretion, not to apply the Gleason / Vigil [v. State, 926 P.2d 351 (Wyo. 1996) ] test anew." (citations omitted)). "Second, if we find error, or if the first prong is unreviewable because no analysis occurred, our inquiry turns to whether the admission was prejudicial." Mitchell , ¶ 20, 476 P.3d at 232 (citations omitted).

[¶18] "[A]n error is prejudicial when ‘there is a reasonable probability that the result would have been more favorable to the defendant had the error not occurred.’ " Id. ¶ 21, 476 P.3d at 232 (quoting Larkins v. State , 2018 WY 122, ¶ 94, 429 P.3d 28, 49–50 (Wyo. 2018) ). "[T]he touchstone of the enquiry must...