Morris v. State

523 P.3d 293

Terrill Kim MORRIS, Appellant (Defendant),

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

S-22-0096

Supreme Court of Wyoming.

January 23, 2023

Representing Appellant: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.

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

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

BOOMGAARDEN, Justice.

[¶1] Following a jury trial, Terrill Morris was convicted of second-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) and third-degree sexual abuse of a minor under § 6-2-316(a)(iv). Mr. Morris challenges the sufficiency of the evidence to support his conviction for second-degree sexual abuse of a minor, focusing on the intent requirement for that offense. He does not challenge his conviction for third-degree sexual abuse of a minor. We affirm.

ISSUE

[¶2] We restate the issue:

Was there sufficient evidence of intent to support Mr. Morris’ conviction for second-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) ?

FACTS

[¶3] In March 2020, Detective Julianne Witham of the Gillette Police Department began investigating Mr. Morris for sexually abusing his elementary school-aged nephew, who is not the victim in this case. The investigation led to the charges against Mr. Morris involving DA, the victim in this case.

[¶4] Through her investigation, Detective Witham learned Mr. Morris was a registered sex offender who moved to Wyoming in January 2019, after spending 10 years in prison and 22 years in civil confinement for sexually abusing several young boys in Washington State. In September 2020, Detective Witham spoke with employees at Rawhide Elementary School, where Mr. Morris’ nephew attended school, and learned Mr. Morris had befriended Maya Stupar, whose son DA also attended school there. Teacher's assistant Carol Roth recounted seeing Mr. Morris and DA in the medicine aisle of Walmart on August 28, 2020. Mr. Morris told Ms. Roth he was purchasing ointment cream for DA because DA's bottom was sore from sitting so much at school and not wiping well.

[¶5] Detective Witham met with Ms. Stupar and DA's father, Cameron Garcia, later that month. Ms. Stupar appeared nervous about speaking to the detective and did not disclose any concerns about Mr. Morris at that time. Consequently, Detective Witham wrote a report stating "[n]o criminal activity has been reported," and she closed the case "as unfounded at this time[.]" In January 2021, Ms. Stupar contacted Detective Witham and disclosed her concerns about Mr. Morris’ relationship with DA.

[¶6] Later that month, the State charged Mr. Morris with two counts of second-degree sexual abuse of a minor under Wyo. Stat. Ann. § 6-2-315(a)(ii) (Counts I and II) and two counts of third-degree sexual abuse of a minor under § 6-2-316(a)(iv) (Counts III and IV).¹ It alleged Mr. Morris engaged in sexual contact with DA by "touching [DA]’s penis while [DA] urinated" between July 1 and August 4, 2020 (Count I); engaged in sexual contact with DA "while applying cream to [DA's] buttocks/anus" on August 28, 2020 (Count II); took immodest, immoral, or indecent liberties with DA by "taking a shower with [DA] at the Quality Inn" between July 1 and August 4, 2020 (Count III); and took immodest, immoral, or indecent liberties with DA by "taking a shower with [DA]" at DA's family's apartment between August 1 and September 30, 2020 (Count IV).

[¶7] Mr. Morris pleaded not guilty to the charges. Prior to trial, the State provided notice it did not intend to call DA as a witness. The district court ruled the State could introduce certain evidence under W.R.E. 404(b). More specifically, the State could introduce Mr. Morris’ admissions about his attraction to children, see infra ¶¶ 20–22, to prove his intent and plan when he touched DA.

[¶8] On the first day of trial in November 2021, the district court granted the State's motion to dismiss Count I with prejudice, and renumbered Counts II, III, and IV as Counts I, II, and III, respectively. The State called five witnesses: Ms. Stupar, Mr. Garcia, Detective Witham, Ms. Roth, and the Rawhide Elementary School principal. It also introduced four exhibits, as discussed in more detail in the context of Detective Witham's testimony, see infra ¶¶ 17–18, 20–22.

[¶9] Ms. Stupar testified she met Mr. Morris while picking DA up from kindergarten in August 2019. They exchanged phone numbers, met for a playdate with her children and Mr. Morris’ nephews in the park in September 2019, and then lost touch until June 2020, when Ms. Stupar ran into Mr. Morris at the Flying J where he worked. They struck up a friendship and Mr. Morris spent a lot of time with Ms. Stupar and her family that summer. Ms. Stupar described Mr. Morris’ relationship with DA as "really close" and "really affectionate[.]"

[¶10] In July 2020, Ms. Stupar and her family temporarily lived at the Quality Inn. One day when Mr. Morris was visiting her and the children at the motel she asked him to watch DA while she went to a gas station with her daughter. When she returned 30 minutes later, Mr. Morris and DA were soaking wet and wearing only their underwear. The bathroom was messy, there was water on the floor, and there was soap and water in the bathtub. Ms. Stupar felt uncomfortable but did not say anything to Mr. Morris.

[¶11] On August 11, Ms. Stupar and her family moved into an apartment on Vivian Street. Mr. Morris visited Ms. Stupar at the apartment often and she considered him a friend. One day, Mr. Morris told Ms. Stupar he wanted to go to Walmart but did not tell her why. Ms. Stupar and DA accompanied Mr. Morris to Walmart while Mr. Garcia and their daughter remained home. Ms. Stupar waited in the car while Mr. Morris and DA went into Walmart. She did not know what he bought at that time.

[¶12] On returning to the family's apartment, Ms. Stupar watched television with Mr. Garcia and their daughter. At some point later that day, Mr. Morris "told [Ms. Stupar] he put cream on [DA's] bottom because [DA] had a rash on his butt." Ms. Stupar observed that "[DA] looked so scared, and he was crying" when Mr. Morris told her this. Mr. Morris did not have permission to apply cream to DA's bottom and Ms. Stupar felt uncomfortable that he had done so. After Mr. Morris left, Ms. Stupar checked her son's bottom and did not see any rash. "All [she] saw was the cream on his bottom." It did not appear to her that DA needed to have ointment applied.

[¶13] In September, Ms. Stupar was cooking and cleaning at the Vivian Street apartment while Mr. Morris and DA watched movies in the living room. Later, Ms. Stupar noticed Mr. Morris and DA walking in the hallway. They were soaking wet and wearing only their underwear. Mr. Morris told Ms. Stupar, "I took a shower with [DA]." Ms. Stupar did not respond because she was scared of Mr. Morris.

[¶14] Ms. Stupar eventually asked Mr. Morris to stop coming to her home but he did not listen and continued visiting. She delayed telling Detective Witham about these events because she was scared of Mr. Morris.

[¶15] Ms. Roth testified about her encounter with Mr. Morris and DA at Walmart on August 28, 2020. In the parking lot, Ms. Roth observed DA getting out of a car with Mr. Morris; Ms. Stupar remained in the car. Ms. Roth approached DA and said hi to him. After Ms. Roth said hi to DA, "Mr. Morris said, ‘Oh, you know him?’ And [she] said, ‘Yes, from Rawhide [Elementary School].’ " Ms. Roth then ran into Mr. Morris and DA in the medicine aisle of the store. Ms. Stupar was not with them. Mr. Morris approached Ms. Roth and "said [DA] has a rash on his butt from not wiping correctly[.]" He asked her whether the ointment he had in his hand would work for DA. Ms. Roth looked at the ointment and told him it looked like it would work.

[¶16] Detective Witham testified about her interview with Ms. Stupar and Mr. Garcia on January 15, 2021. During the interview, Ms. Stupar expressed concern about Mr. Morris’ relationship with DA, who was seven years old at the time. Ms. Stupar discussed a couple different incidents, including the incident in which Mr. Morris applied cream to DA. Detective Witham recalled Ms. Stupar stated they were at her apartment on Vivian Street when Mr. Morris came out of the bathroom, indicated DA had a rash on his bottom, and confirmed he put cream on DA. Ms. Stupar stated she had not given Mr. Morris permission to apply the cream. Ms. Stupar also advised that Mr. Morris showered with DA on two occasions that summer.

[¶17] Detective Witham testified that she spoke to DA's teachers and they told her DA had not complained about a rash on his bottom at school. In addition, Detective Witham obtained surveillance video from Walmart on August 28, 2020. The State played several of the surveillance video clips for the jury (State's Exhibit 3). The video clips showed Mr. Morris walking through Walmart with DA on his shoulders, going to the medicine aisle, and then purchasing the cream. The State also introduced a still shot from the surveillance video showing Mr. Morris standing in the medicine aisle with DA on his shoulders (State's Exhibit 4).

[¶18] Detective Witham testified about her interview with Mr. Morris on January 24, 2021, and then the State played a series of video clips from the interview (State's Exhibit 1). In the first clip, Mr. Morris confirmed he and Ms. Stupar struck up a friendship after she came into the Flying J, but he denied spending much time with her family because he was busy working. In the second clip, Mr. Morris addressed the August 28, 2020 cream incident. Mr. Morris claimed he went into Walmart with Ms. Stupar and both her children because DA had complained about a rash. When Detective Witham informed him video...