Munda v. State

535 P.3d 523

David Wayne MUNDA, Appellant (Defendant),

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

S-23-0002

Supreme Court of Wyoming.

September 18, 2023

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

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

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

GRAY, Justice.

[¶1] A jury convicted David Wayne Munda of four counts of sexual abuse of a minor in the first degree, and one count each of sexual abuse of a minor in the fourth degree, soliciting to engage in illicit sexual relations, attempt to commit sexual abuse of a minor in the second degree, and battery. On appeal, Mr. Munda argues that the district court abused its discretion by admitting unfairly prejudicial evidence, admitting hearsay, and cumulatively depriving him of a fair trial. Finding no abuse of discretion and no cumulative error, we affirm.

ISSUES

[¶2] Mr. Munda presents three issues, which we rephrase:

1. Did the district court abuse its discretion by admitting hearsay evidence in violation of Wyoming Rule of Evidence 802 ?

2. Did the district court abuse its discretion by admitting evidence in violation of Wyoming Rule of Evidence 403 ?

3. Did evidentiary errors cumulatively deprive Mr. Munda of a fair trial?

FACTS

[¶3] Mr. Munda's charges stem from disclosures of sexual abuse made by two victims. The primary victim, Mr. Munda's daughter (LM), disclosed that Mr. Munda began sexually abusing her when she was five years old and that the abuse continued for twelve years, until she moved out of the family home. Mr. Munda's stepdaughter (MD), also a victim, disclosed an incident of attempted sexual abuse by Mr. Munda that occurred when she was thirteen.

A. The Defense's Theory

[¶4] At trial, during opening statements, Mr. Munda asserted that LM and MD, along with their other siblings, fabricated the allegations of sexual abuse as part of a plan to seek revenge against him for administering physical discipline. In conjunction with this theory, Mr. Munda challenged LM's credibility. For example, he emphasized that LM reported physical abuse, but no sexual abuse in 2014 and 2020. He also emphasized that the medical examination of LM following her disclosure of sexual abuse revealed no evidence of sexual abuse.

B. LM's Testimony

[¶5] LM grew up in Riverton, Wyoming, where she lived with her father, Mr. Munda, her stepmother, her brothers, and her stepsister, MD. In February 2021, LM, who was then seventeen, moved to Utah to live with her mother.

[¶6] LM testified that she first remembers Mr. Munda touching her in a sexual manner when she was five years old and that she lost her virginity to Mr. Munda when she was in the fourth or fifth grade. LM provided graphic details of the abuse. She testified that when Mr. Munda had sex with her, she would "shut down," "freeze, look up at the ceiling, and wait for it to be over." She testified that most of the time the abuse happened in her bedroom, which she shared with MD, who was often away at her biological father's house.

[¶7] LM specifically described several incidents of abuse. When she was in fourth or fifth grade, she and her older brother were traveling with Mr. Munda to Montana for a tae kwon do tournament. They stayed overnight in Greybull, Wyoming. The next morning, when her brother was in the shower, Mr. Munda had sexual intercourse with her. LM testified that going forward Mr. Munda would have intercourse with her "one or two times a month, maybe even more." LM also described that when she was in seventh grade, Mr. Munda picked her up from school because she had an accident with her period. After running errands, they went to the massage studio where Mr. Munda worked. LM testified that he gave her a massage and then told her that "sex helps with cramps" and the massage "turned into sex." LM testified that when that she was in the eighth or ninth grade, she was on a trip with Mr. Munda. She described a stop at the rest area in South Pass, Wyoming. LM testified that she and Mr. Munda went inside a family restroom and the "next thing [she knew] ... his penis was in [her] vagina while [they] were standing." LM also recounted a time when Mr. Munda anally penetrated her while they were in the basement of the Munda home. Finally, LM described an incident when Mr. Munda forced her to perform fellatio.¹

[¶8] On cross-examination, LM admitted that during her childhood she did not disclose any sexual abuse and that she did not write about it in her journal. She admitted she provided some inconsistent details about dates and locations of the alleged abuse. She also admitted she spoke with police about reported physical abuse in 2014 and in 2020, but that she did not report any sexual abuse until August 2021.

C. MD's Testimony

[¶9] MD testified that when she was thirteen years old, she and Mr. Munda were snuggling in his bed and he "pulled [her] on top of him" so that she was straddling him. She explained that she was "positioned over his genitals," she could feel his erection, and he told her, "I can make you feel good."² She responded by leaving the room. MD testified that she never told anyone about the incident because she "was ashamed and embarrassed," but that she finally disclosed the incident after LM divulged her experiences.

D. Detective Donahue's Testimony

[¶10] James Donahue, a detective with the Riverton Police Department, testified the police department had received a report from the Wyoming Department of Family Services (DFS) after DFS received a report from the Utah Department of Family Services. The Utah Department of Family Services had been given a report from an attorney for the Mundas’ church. Detective Donahue then described his investigation, some of LM's forensic interview, and his interviews with LM and Mr. Munda.

E. Ms. Larson's Testimony

[¶11] Nancy Larson testified that she was neighbors with the Munda family and that they were members of the same church. She testified that she knew LM and MD casually through church and became more familiar with them after they became her seminary students, beginning in 2018. Ms. Larson testified that she kept in touch with LM after LM left Riverton. She recalled a telephone conversation they had in August 2021. During that conversation, LM told her "something terrible had happened," "nobody could ever know," and "her father had been repeatedly sexually abusing her." Ms. Larson testified that she reported LM's disclosure to church officials, and LM was initially "unhappy" that she had reported the matter because there was going to be an investigation.

F. Ms. Lewis’ Testimony

[¶12] Nurse practitioner Linda Lewis testified regarding her training and experience in performing medical evaluations of children who have alleged sexual abuse. She described the nature of those medical evaluations and her process for conducting them. She testified that she evaluated LM and that "[h]er genital examination was normal." She explained a "normal" finding "does not rule out the possibility of sexual abuse because the tissue may heal or not be injured [in] many cases of inappropriate sexual contact."

G. Other Witnesses

[¶13] Other witnesses, including LM's brother, CM, personnel from the sheriff's office, and two psychology experts, testified. Their testimony is largely irrelevant to the issues presented here and will be discussed only as necessary, below.

H. Jury Verdict and Appeal

[¶14] After the evidence was submitted, a jury found Mr. Munda guilty of all counts. The district court sentenced Mr. Munda to forty-five to fifty years of incarceration on each of Counts I through IV and four to five years on Count V, all to run concurrently. It sentenced him to four to five years on Count VI and eleven to fifteen years on Count VII, to run concurrently with each other and consecutively to Counts I through V. Finally, on Count VIII, it sentenced him to 180 days, to be served consecutively and prior to the sentences on the other counts.

[¶15] Mr. Munda appeals, contending that the district court violated Wyoming Rules of Evidence 403 and 802 which deprived him of a fair trial.

DISCUSSION

I. The district court did not abuse its discretion by admitting hearsay evidence in violation of Wyoming Rule of Evidence 802.

[¶16] Mr. Munda contends that MD's testimony regarding a statement made to her by LM was improperly admitted hearsay. Mr. Munda lodged a hearsay objection to MD's testimony about her conversation with LM which the district court overruled without providing a reason. Mr. Munda bears the burden of showing that the district court abused its discretion by improperly admitting the challenged testimony and that the testimony materially prejudiced him.

Griggs v. State , 2016 WY 16, ¶ 123, 367 P.3d 1108, 1142 (Wyo. 2016) ; Tombroek v. State , 2009 WY 126, ¶ 5, 217 P.3d 806, 808–09 (Wyo. 2009).

[¶17] Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." W.R.E. 801(c). As a general rule, hearsay statements are "inadmissible because they are made outside of court and, therefore, presumed to be unreliable." Blair v. State , 2022 WY 121, ¶ 18, 517 P.3d 597, 601 (Wyo. 2022) (quoting Bruce v. State , 2015 WY 46, ¶ 40, 346 P.3d 909, 923 (Wyo. 2015) ); W.R.E. 802. However, there are exceptions under which hearsay evidence is admitted. See W.R.E. 803, 804. A district court does not abuse its discretion if an out-of-court statement was properly admitted under an exception to the hearsay rule. Oldman v. State , 998 P.2d 957, 963 (Wyo. 2000).

[¶18] Mr. Munda challenges MD's...