Nelson v. State

467 P.3d 145

Cody Russell NELSON, Appellant (Defendant),

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

S-19-0259

Supreme Court of Wyoming.

July 10, 2020

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel

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

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

DAVIS, Chief Justice.

[¶1] A jury convicted Cody Nelson of one count of first degree sexual abuse of a minor.

On appeal, he contends that the district court erred in allowing the State to withdraw from its plea agreement with him. He further contends that he was denied the right to testify in his own defense. We affirm.

ISSUES

[¶2] Mr. Nelson presents two issues on appeal, which we restate as:

1) Did the district court err in granting the State's motion to withdraw from its plea agreement with Mr. Nelson?

2) Was Mr. Nelson denied the right to testify in his own defense?

FACTS

[¶3] In January 2016, five-year-old SAL stayed overnight at the home of her aunt and the aunt's granddaughter, KBR, in Cheyenne, Wyoming. During that stay, SAL told her aunt that Cody Nelson, her mother's boyfriend, touched her "privates" a couple of days earlier. SAL's aunt described the circumstances of the report:

Q. Okay. When S.A.L. told you, what was your reaction?

A. Well, it was a shock. We were getting ready that morning to go to a party in Chugwater, and she had stuff in her hair, and I said, Why don't we just take a quick bath and wash your hair. And she just flipped right out. And I knew something wasn't right because she always loved to take a bath.

And so then she just – I mean she just sobbed and, no, no, no, you know, that type of thing.

And so anyway she said, I'll tell [KBR]. So her and [KBR] went in the bedroom, and [KBR] come back out with her, and then I asked [SAL] what happened ....

[¶4] SAL's aunt took her to the Cheyenne Police Department, and an officer then accompanied them to a hospital where SAL underwent a sexual assault examination. The examination revealed an injury around the anal area and a hymenal injury consistent with an insertion. SAL was then taken into protective custody and placed with her aunt.

[¶5] Two days later, Detective James Peterson took over the investigation. He first had SAL interviewed by a forensic interviewer trained to interview child victims of sexual abuse. He watched the interview from another room and based on what he heard, he called Mr. Nelson in for questioning. During Detective Peterson's roughly forty-five-minute interview of him, Mr. Nelson repeatedly denied SAL's allegations.

[¶6] On April 26, 2016, the State filed an information against Mr. Nelson charging him with two counts of first degree sexual abuse of a minor. On January 4, 2019, the parties jointly filed a "Plea Agreement for Recommended Disposition," by which Mr. Nelson agreed to plead no contest to the charge of third degree sexual abuse of a minor, and the State agreed to dismiss both counts of first degree sexual abuse of a minor and recommend a prison term of five to ten years. On the same date, Mr. Nelson requested that the district court set the matter for a change of plea hearing.

[¶7] On January 11, 2019, the State filed a motion to withdraw from the plea agreement. The motion was signed by the newly elected district attorney and noted that her predecessor had filed the agreement on his last day of office. The motion further stated:

The State does not seek [to] withdraw from this plea agreement lightly. After careful consideration of the evidence in this case, the State cannot in good conscience allow this type of agreement to move forward. Nelson is presently charged with inserting his fingers into the vagina of a five-year-old on two separate occasions. To allow him to plead guilty to one count of taking "immodest, immoral or indecent liberties" with a child would be a gross miscarriage of justice and one the State cannot be a party to.

[¶8] Mr. Nelson objected, and on February 8, 2019, the district court held a hearing on the State's motion to withdraw from the plea agreement. In granting the State's motion, it commented:

A couple of things. ... [T]here's an awful lot at stake when these things go wrong. One, is there's a room full of prosecutors and defense attorneys who operate on a system. It's formal in many respects, and, of course it's got to be formalized before I do it, but behind that are the reputations of the public defenders, office of the prosecutor, even down to attitude, of individual prosecutors and defense attorneys, and that system eventually brings a case that's ready, either done or not done, to the Court. And I have to be cautious about staying out of that. I'm cognizant of it, of course, but the reasons to withdraw from a plea agreement are actually not before me. And as harsh as it seems, I think they need no reason whatsoever to change their mind prior [to] the plea, just as you would not be bound to plead if you simply changed your mind, [defense counsel]. In other words, from either end, using a contract analysis, the exchange and consideration has not occurred for either of you.

* * * *

... But I will also want to say that while we don't need any reason, the recitation of a reason that they don't like the plea agreement is [not] relevant. In all respects it probably shouldn't be in a pleading.

Whoever took over ... accepted each and every act that any prosecutor before you agreed to. ...

If we were here only – and you'd already plead guilty, there wouldn't be any question whatsoever that you're right about the law, that the State has not given sufficient reason to withdraw from the plea agreement, but I disagree with you, and that's your record.

There's no enforceable contract or plea agreement prior to the offer of the plea, or some other consideration.

[¶9] On May 13-16, 2019, a jury trial was held. After the State rested, Mr. Nelson moved for a judgment of acquittal on both counts of first degree sexual abuse. In the alternative, he moved for acquittal on at least one count on the ground that the victim testified that the touching occurred only once. The court agreed that on the evidence, the jury could only find that the act occurred once, and it granted a judgment of acquittal on the second count, while holding that the evidence was sufficient to go to the jury on the first count.

[¶10] Mr. Nelson elected to put on a defense and called two witnesses. After they testified, he informed the court that he intended to testify in his own defense. The district court advised him of his right to remain silent and then advised him of the risks associated with testifying, including that current drug charges pending against him might be brought up during cross-examination.¹ Mr. Nelson responded that he understood his rights and the risks associated with testifying and stated that he wished to testify.

[¶11] Defense counsel then moved in limine to exclude any evidence of the current drug charges against Mr. Nelson. He stated that he preferred that Mr. Nelson not testify, and the prosecutor expressed her concerns as well. After hearing from both parties, the court denied the motion in limine. The court reasoned that Mr. Nelson's possible use of drugs and being under their influence at the time of the alleged sexual abuse might be relevant impeachment evidence, but it also cautioned that it would stop questions that were irrelevant or beyond the proper scope of impeachment. After so ruling, it also noted the negative impact Mr. Nelson's testimony might have on plea negotiations in the pending drug case. Mr. Nelson then informed the court that he did not wish to testify.

[¶12] On May 16, 2019, the jury returned a verdict finding Mr. Nelson guilty on the remaining count of first degree sexual abuse of a minor. The district court sentenced him to a prison term of twenty-eight to thirty-eight years, and he timely appealed to this Court.

STANDARD OF REVIEW

[¶13] Whether the State has breached a plea agreement is a question of law that we review de novo. Montano v. State , 2019 WY 34, ¶ 13, 437 P.3d 838, 842 (Wyo. 2019) (citing Nordwall v. State , 2015 WY 144, ¶ 13, 361 P.3d 836, 839 (Wyo. 2015) ). While Mr. Nelson's claim is not that the State breached the plea agreement, but rather that it withdrew from it without a valid excuse, the claim similarly presents a question of law, and we will therefore review it de novo. See United States v. Norris , 486 F.3d 1045, 1048 (8th Cir. 2007) ("We review the enforceability of a plea agreement de novo.").

[¶14] Mr. Nelson's claim that he was denied the right to testify on his own behalf presents a constitutional claim that we review de novo. Jackson v. State , 2019 WY 81, ¶ 25, 445 P.3d 983, 990 (Wyo. 2019) (defendant has constitutionally protected right to testify on own behalf); Petersen v. State , 2019 WY 132, ¶ 13, 455 P.3d 261, 265 (Wyo. 2019) (claim asserting constitutional violation is reviewed de novo).

DISCUSSION

A. State's Withdrawal from Plea Agreement

[¶15] A plea agreement is a contract between a defendant and the State and is subject to general contract principles. Montano , ¶ 13, 437 P.3d at 842 (citing Mendoza v. State , 2016 WY 31, ¶ 26, 368 P.3d 886, 895 (Wyo. 2016) ). The parties disagree, however, on whether a contract was formed in this instance. Mr. Nelson contends that the plea agreement contains an exchange of promises and is thus supported by the consideration required to form a contract. The State counters that plea agreements differ from other contracts in their formation, and that no consideration can be found until a defendant enters a guilty plea. We agree with the State.

[¶16] The elements of a contract are offer, acceptance, and consideration, and generally, as Mr. Nelson argues,...