Santistevan v. State

542 P.3d 200

2024 WY 17

Charles A. SANTISTEVAN, Appellant (Defendant),

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

S-22-0229, S-23-0116

Supreme Court of Wyoming.

February 2, 2024

Appeal from the District Court of Albany County, The Honorable Tori R.A. Kricken, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; H. Michael Bennett, Senior Assistant Appellate Counsel.

Representing Appellee: Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; John J. Woykovsky, Senior Assistant Attorney General.

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

FENN, Justice.

[¶1] A jury convicted Charles Anthony "Tony" Santistevan of six counts of sexual assault in the first degree, one count of sexual assault in the third degree, and one count of voyeurism. On appeal, he claims the district court abused its discretion when it allowed the State to introduce evidence pursuant to Wyoming Rules of Evidence (W.R.E.) 404(b) that Mr. Santistevan’s sexual relationship with the victim, R.S., began when she was a minor. We affirm.

ISSUE

[¶2] Mr. Santistevan presents a single issue, which we rephase as follows: Did the district court abuse its discretion when it admitted evidence of Mr. Santistevan’s relationship with R.S. when she was a minor pursuant to W.R.E. 404(b)?

FACTS

[¶3] In 2020, a task force with the Wyoming Department of Criminal Investigation began investigating Mr. Santistevan on unrelated criminal allegations. During the execution of a search warrant at Mr. Santistevan’s residence, law enforcement seized electronics including two laptop computers. When Special Agent Luke Rippy reviewed the contents of the laptops, he found thumbnails and videos of a nude female who appeared to be unconscious while an individual performed sexual acts on her. Special Agent Rippy identified the female in the videos as Mr. Santistevan’s wife, R.S., and contacted her to ask about the videos. R.S. told law enforcement she was unaware of the videos, she did not know they existed, and she never consented to the sexual encounters.

[¶4] Special Agent Rippy obtained an additional search warrant to allow him to review the videos and photos on the laptops more thoroughly. He found approximately seven videos of R.S. unconscious while Mr. Santistevan performed sexual acts on her, including penetration using a transcutaneous electrical nerve stimulation unit which sends electric shocks into the body for nerve stimulation. In addition to the seven videos of sexual intrusion while R.S. was unconscious, Special Agent Rippy located four videos of R.S. taking a shower where she appeared to be unaware she was being video recorded. Special Agent Rippy interviewed Mr. Santistevan and R.S. about the videos.

[¶5] When Special Agent Rippy asked Mr. Santistevan about the videos, "[h]e stated [R.S.] would take Klonopin to the point where she would pass out [or] go … unconscious." Mr. Santistevan said "[h]e would perform sexual acts on [R.S.] and record it[ ]" and then the next day they would watch the recordings together. Mr. Santistevan said they were married at the time the videos were recorded. He stated he met R.S. when she was approximately 16 to 17 years old, and he was helping her parents redo their roof. He stated they began dating when R.S. was 18 and going to college.

[¶6] When Special Agent Rippy interviewed R.S., he had her review still photographs from the videos to identify herself, the location of the videos, and determine if it was Mr. Santistevan performing the sexual acts and recording the videos. During the interview, R.S. became angry and upset. R.S. informed Special Agent Rippy she had no knowledge of the videos and that she never consented to the sexual acts being performed on her by Mr. Santistevan or to the recordings of the sexual acts. R.S. further informed Special Agent Rippy she met Mr. Santistevan when she was approximately 14 or 15 years old while waitressing at a café. R.S. said Mr. Santistevan would come into the café and talk to her about his art. He gave her his phone number and told her, "If you ever want to come hang out or come look at my art, give me a call." R.S. stated she went over to Mr. Santistevan’s house when she was 15 and they began a sexual relationship. Mr. Santistevan was approximately 37 years old at the time. During his investigation, Special Agent Rippy found nude photographs of R.S. on Mr. Santistevan’s electronic devices that Mr. Santistevan took when she was 15 years old.

[¶7] Mr. Santistevan was charged with six counts of sexual assault in the first degree in violation of Wyoming Statute § 6-2-302(a)(iii) (LexisNexis 2016), one count of sexual assault in the third degree in violation of Wyo- ming Statute § 6-2-304(a)(iii) (LexisNexis 2016) for the sexual intrusion and video recordings of R.S. while she was unconscious, and one count of voyeurism in violation of Wyoming Statute § 6-4-304(b)(i) (LexisNexis 2016) for the shower videos of R.S. These charges did not include allegations stemming from sexual relations between Mr. Santistevan and R.S. when she was under the age of 18.

[1] [¶8] Mr. Santistevan filed a demand for the State’s intent to use any evidence pursuant to W.R.E. 404(b) at trial. The State filed its notice of intent and its supplemental notice of intent indicating it intended to introduce several instances of uncharged misconduct or other acts under W.R.E. 404(b). The State specifically sought to introduce evidence Mr. Santistevan established a relationship with R.S. when she was 14 years old and he was approximately 37 years old, and he engaged in sexual conduct with her on a regular basis while she was under the age of 18. The State further sought to introduce evidence Mr. Santistevan told R.S. she was not to discuss their relationship when she was a minor because he could go to jail. The State sought to introduce this evidence under W.R.E. 404(b) for the purposes of plan, course of conduct, and because it went directly to the consent element of the crimes charged. The district court held a pre-trial Gleason¹ hearing on December 28, 2021, and found the evidence was relevant and admissible under W.R.E. 404(b) to show an ongoing scheme or plan and to demonstrate Mr. Santistevan’s course of conduct. The district court further held the evidence developed the facts regarding the relationship between R.S. and Mr. Santistevan and established the facts leading up to the alleged nonconsensual sexual conduct.

[¶9] During the trial, the State introduced statements Mr. Santistevan made to Special Agent Rippy about when he began his relationship with R.S. The State further introduced R.S.’s testimony regarding when she met Mr. Santistevan, and the café manager’s testimony about when R.S. worked at the café and how Mr. Santistevan would come into the café. R.S. testified to the following regarding the W.R.E. 404(b) evidence:

Q. And [R.S.], when did you meet Tony?

A. I met Tony in summer of 2011.

Q. And how old were you in the summer of 2011?

A. I was 14, turning 15.

Q. How old were you when you met Tony?

A. I was 14.

Q. And how did you meet Tony?

A. I was a waitress at a truck stop and he was a patron there.

Q. And where was this truck stop?

A. It’s in Lusk, Wyoming; called the Outpost Café.

Q. And so you were a waitress there when you were 14?

A. Yes.

Q. And how, I guess, how did you meet him?

A. He would come into the restaurant and he would draw or play chess, but usually he’d come in there to draw.

Q. Were you interested in art as well?

A. Yes.

Q. Would you talk about art with him?

A. Yes.

Q. And how old was Mr. Santistevan when you were 14?

A. He was either 36 or 37.

Q. And did your relationship progress with Tony past one of waitress and patron?

A. Yes.

Q. What - - how did that happen?

A. We started to - - well, he would invite me over to his house because I was interested in his artwork. But then shortly after that, it progressed into a sexual relationship.

Q. Did you consider yourself dating Tony?

A. Yes.

Q. When, about, did you consider yourself dating Tony?

A. Not the first year but, like, 2012, that fall was when I would consider us to be starting, like, a monogamous dating relationship.

Q. And how old were you at that time?

A. I was 16.

Q. And when you were in a dating relationship, at that time with Tony, or even before you considered yourself dating him, did you ever tell anyone that you were seeing Tony?

A. No, I did not.

Q. And why not?

A. Because he told me not to. Because he knew he was going to get in trouble.

Q. And how long did you date Tony?

A. Until we got married.

Q. And when was that?

A. I was 19….

[¶10] After a four-day trial, the jury found Mr. Santistevan guilty on all eight counts. The district court sentenced Mr. Santistevan to 40 to 50 years for count one of sexual assault in the first degree; 20 to 30 years for count two of sexual assault in the first degree to run consecutively to count one; 10 to 20 years for counts three, four, five, and six of sexual assault in the first degree, all to run concurrent to count one; 12 to 15 years for count seven of sexual assault in the third degree to run concurrent to count one; and 12 months to 24 months for count eight of voyeurism to run concurrent to count one. Mr. Santistevan was given 338 days of credit for time served on all eight counts.

[¶11] Mr. Santistevan filed a motion for a new trial pursuant to Wyoming Rules of Appellate Procedure 21 claiming his trial counsel was ineffective. He claimed his trial counsel did not include him during discovery and witness identification and failed to adequately investigate all of the facts and circumstances surrounding R.S.’s testimony. Following a hearing, the district court denied Mr. Santistevan’s motion for a new trial. Mr. Santistevan timely appealed the district court’s order allowing admission of evidence...