Michael Allan Lindstrom , 343 P.3d 792 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 28
OCTOBER TERM, A.D. 2014
February 25, 2015
MICHAEL ALLAN LINDSTROM,
Appellant
(Defendant),
v. S-14-0184
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Johnson County
The Honorable William J. Edelman, Judge
Representing Appellant:
Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
Counsel. Argument by Mr. Morgan.
Representing Appellee:
Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney
General; Jenny Lynn Craig, Senior Assistant Attorney General; Caitlin F. Young,
Assistant Attorney General. Argument by Ms. Young.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] A jury found Michael Allan Lindstrom guilty of three counts of first degree sexual
abuse of a minor and three counts of second degree sexual abuse of a minor for acts
involving two victims. The jury also found him guilty of two counts of aggravated
assault and two counts of first degree sexual assault for acts involving an adult victim.
He appeals claiming the district court abused its discretion when it allowed the State to
introduce un-noticed character evidence and amend the information to conform to one of
the minor victim’s video deposition testimony. He also contends the cumulative effect of
two instances of prosecutorial misconduct denied him his right to a fair trial. We affirm.
ISSUES
[¶2] The issues for our determination are:
1. Whether the district court abused its discretion in allowing the State to
present character evidence without proper notice or a Gleason hearing.
2. Whether the district court abused its discretion when it allowed the State to
amend the information to bring it into conformity with the minor victim’s video
deposition.
3. Whether Mr. Lindstrom was denied his right to a fair trial due to
prosecutorial misconduct.
FACTS
[¶3] In October 2012, Kari Packard, a caseworker with the Wyoming Department of
Family Services (DFS), contacted the Buffalo Police Department after six year old CS,
Mr. Lindstrom’s second cousin, drew a picture of a naked male and made statements
suggesting Mr. Lindstrom had been sexually inappropriate with her. Ms. Packard
subsequently interviewed CS in Casper. During the interview, CS stated that Mr.
Lindstrom touched her in sexual ways while they were at her great grandmother’s home
in Buffalo. In a follow-up interview with the caseworker and Buffalo police officer
Adrian Keeler, CS again reported that Mr. Lindstrom had touched her in sexual ways.
[¶4] In February 2013, in the course of investigating a separate matter, Officer Keeler
interviewed TR. TR told the officer that Mr. Lindstrom, with whom she had previously
had a relationship resulting in the birth of a son, had been at her home several times
during the summer and fall of 2012 and had raped her.
[¶5] In March 2013, Officer Keeler spoke with Mr. Lindstrom. He denied having been
in Buffalo except on August 18, 2012, when his parole officer gave him a travel pass.
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According to the police officer, he interviewed other individuals who said they had seen
Mr. Lindstrom in Buffalo several times in the summer and fall of 2012. Officer Keeler
and caseworker Packard then re-interviewed TR. TR reiterated that Mr. Lindstrom had
been at her home several times in 2012 and had sexually assaulted her. During this
interview, she also stated the Mr. Lindstrom had sexually assaulted their son, PR.
[¶6] In July of 2013, the Johnson County attorney’s office issued a warrant for Mr.
Lindstrom’s arrest and charged him with two counts of first degree sexual abuse of a
minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) and (c) (LexisNexis 2013) and two
counts of second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-
315(a)(ii) and (b) (LexisNexis 2013) for acts involving CS; three counts of first degree
sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2013) and two
counts of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis
2013) for the acts involving TR; and one count of first degree sexual abuse of a minor
and one count of second degree sexual abuse of a minor for the acts involving PR. Prior
to trial, the State filed and the district court granted a motion to dismiss one of the sexual
assault charges involving TR.
[¶7] Also before trial, the State moved for an order allowing the testimony of CS and PR
to be taken by videotape deposition so they would not have to meet Mr. Lindstrom face-
to-face in the courtroom. Mr. Lindstrom filed a motion for a competency and taint
hearing. Prior to a hearing on the motions, the parties filed a stipulated motion stating
that PR had been placed in acute care and was not capable of testifying and requesting
that in CS’s best interest her competency hearing and trial deposition be scheduled for the
same day so that she would have to appear only once. The district court granted the
motion and set the matter for a competency/taint hearing and videotape deposition on
November 12, 2013. After the hearing, the district court found the child competent to
testify and the parties proceeded with the trial deposition. During the deposition, CS
testified that Mr. Lindstrom had on different occasions inserted his finger in her anus
several times, made her touch his penis and made her perform fellatio on him.
[¶8] TR testified that Mr. Lindstrom came to her home in June 2012. They sat on the
couch making small talk and watching PR play. Mr. Lindstrom asked TR if they could
be in a relationship again, TR said no and he asked if he could at least “get a piece of
ass.” She again said no and Mr. Lindstrom called her a bitch. TR took PR to his room
and Mr. Lindstrom followed. PR began to show Mr. Lindstrom his room and his toys.
After watching them for a few minutes, TR left them alone.
[¶9] TR came back to the room about thirty minutes later when she heard PR say, “I
don’t want to do that.” The door was shut, she opened it and she saw Mr. Lindstrom and
PR in PR’s bed. TR testified that it looked like Mr. Lindstrom was pulling up his pants
and PR’s pants. She asked them what they were doing and Mr. Lindstrom said they were
watching a movie. PR ran to her and grabbed hold of her waist. He was trembling. She
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picked him up and he whispered in her ear that Mr. Lindstrom had made him touch his
penis and pretend it was a Popsicle. She asked Mr. Lindstrom what he had done and he
denied doing anything. They argued and she told Mr. Lindstrom that he needed to leave.
[¶10] TR threatened to call the police and, carrying PR, headed to her bedroom to get her
cell phone. She made it to the bathroom, put PR down and told him to go in the
bathroom and lock the door. Mr. Lindstrom followed her, grabbed her around the throat
and said if she told anyone he would kill her. He shoved her against the wall and told PR
to open the bathroom door. PR complied and Mr. Lindstrom told TR to go into the
bathroom. Mr. Lindstrom made TR perform fellatio on him and then told her to touch
PR’s penis. She refused and he slapped her. She hit him in the face and he began pulling
down her pants and underwear. He grabbed PR’s hand and told him to touch her. She
pushed PR’s hand away. Mr. Lindstrom forced her head down onto his penis. Then he
held a Swiss army knife to her throat and told her to do the same thing to PR or he would
kill her. After she complied, Mr. Lindstrom made TR and PR get into the shower and he
urinated on TR. Mr. Lindstrom then got dressed and stepped out of the bathroom. TR
locked the door. Mr. Lindstrom pounded on the door, cussing and yelling that he was
going to kill TR. Finally, Mr. Lindstrom left the house.
[¶11] TR testified that Mr. Lindstrom came back to her home in September 2012. They
argued and Mr. Lindstrom pushed her against the wall, held the knife to her throat and
again threatened to kill her if she told anyone what he had done. She testified that Mr.
Lindstrom returned in late December or early January. Again they argued and Mr.
Lindstrom became angry and physically and sexually assaulted TR. He then bound PR’s
hands with electrical tape and sexually assaulted him.
[¶12] In addition to CS and TR, the State also presented the testimony of DFS employees
and police officers who were involved in investigating the allegations against Mr.
Lindstrom. Their testimony about their interviews with CS, PR and TR tended to
corroborate the allegations of child abuse and sexual assault. The State also presented
expert testimony tending to show that CS’s behavior was consistent with that of a child
who had been sexually abused.
[¶13] After a five day trial, the jury found Mr. Lindstrom guilty on the ten remaining
counts. The district court sentenced him to six terms of life in prison without the
possibility of parole on the convictions for first and second degree sexual abuse of a
minor, with the first three sentences to be served concurrently to each other and the last
three sentences to be served concurrently to each other and consecutively to the first
three. The district court sentenced Mr. Lindstrom to four terms of forty to fifty years
imprisonment on the convictions for first degree sexual assault and aggravated assault
and battery with those sentences to be served concurrently to each other and
consecutively to the six life sentences. Mr. Lindstrom appealed.
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DISCUSSION
1. Admissibility of evidence found in Mr. Lindstrom’s apartment.
[¶14] Prior to trial, Mr. Lindstrom filed a demand for notice of the State’s intent to use
evidence falling within W.R.E. 404(b). In response, the State identified various items of
evidence. The district court convened a hearing and ruled all of the designated evidence
inadmissible. In its pretrial memorandum, the State listed two witnesses whom it
intended to call to testify about finding little girls’ and women’s underwear in the
apartment in Casper where Mr. Lindstrom was living at the time of his arrest—evidence
the State did not identify in its 404(b) disclosure and not considered by the district court
at the 404(b) hearing. When the State called the first of the two witnesses during trial,
defense counsel objected on the ground that the testimony was character evidence having
no relationship to the crimes charged and was more prejudicial than probative. The
district court overruled the objection. Both witnesses testified that they found women’s
and girls’ underwear and clothes in two dresser drawers in Mr. Lindstrom’s Casper
apartment.
[¶15] Mr. Lindstrom asserts the district court abused its discretion when it allowed the
testimony concerning the items found in his Casper apartment. He argues the evidence
was character evidence and was not admissible because it served none of the purposes for
which such evidence may be admitted under W.R.E. 404(b). He further contends the
district court erred in not analyzing the issue in accordance with the mandatory procedure
outlined in Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002) prior to
allowing the evidence.
[¶16] The State agrees the evidence at issue was character evidence. The State asserts,
however, the evidence did not involve uncharged misconduct; therefore, neither Rule
404(b) nor Gleason applies. Alternatively, the State contends admission of the evidence
was harmless.
[¶17] Given Mr. Lindstrom’s objection at trial to admission of the evidence, we review
its admissibility under the abuse of discretion standard. Payseno v. State, 2014 WY 108,
¶ 20, 332 P.3d 1176, 1182 (Wyo. 2014), citing Cazier v. State, 2006 WY 153, ¶ 10, 148
P.3d 23, 28 (Wyo. 2006).
A trial court’s decision on the admissibility of evidence is
entitled to considerable deference, and will not be reversed on
appeal unless the appellant demonstrates a clear abuse of
discretion. As long as there exists a legitimate basis for the
trial court’s ruling, that ruling will not be disturbed on appeal.
4
Payseno, ¶ 20, 332 P.3d at 1182, citing Nelson v. State, 2010 WY 159, ¶ 29, 245 P.3d
282, 289 (Wyo. 2010).
[¶18] Evidence of a propensity toward sexual deviation is character evidence. McDowell
v. State, 2014 WY 21, ¶ 17, 318 P.23d 352, 358 (Wyo. 2014), citing Gruwell v. State,
2011 WY 67, ¶ 31, 254 P.3d 223, 233 (Wyo. 2011). Similarly, evidence portraying a
defendant as having a perverted lifestyle is character evidence the admission of which is
governed by W.R.E. 404(b). Wilde v. State, 2003 WY 93, ¶ 21, 74 P.3d 699, 710 (Wyo.
2003). Rule 404(b) states:
(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice
in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial.
[¶19] Pursuant to this provision, evidence of the underwear found in Mr. Lindstrom’s
dresser drawers was not admissible to prove that he had a propensity toward sexually
deviant behavior and acted in conformity with that propensity by sexually abusing the
minor victims and sexually assaulting the adult victim in this case. The evidence
introduced by the State was only admissible if relevant, offered for one of the purposes
identified in subparagraph (b) and more probative than prejudicial.
[¶20] The State argues the evidence did not fall under subparagraph (b) because it was
not uncharged misconduct. This argument has no merit. The character evidence falling
under the umbrella of Rule 404(b) is not limited to uncharged misconduct. The rule
addresses evidence of other crimes, wrongs, or “acts.” As noted in 1 Mueller &
Kirkpatrick, Federal Evidence § 4:28 (4th ed.2013):
So often are the acts crimes by the defendant that have led to
conviction, and so often do they precede the charged offense,
that it is easy to think of Rule 404(b) as a “prior crimes” or
“prior convictions” rule, but it is important to note that rule
404(b) is much broader than this description suggests. To begin
with, we are talking about acts, so it does not matter whether
they led to charges or convictions. . . .
5
What is important is the nature or quality of the prior act,
not its criminality.
Thus the act, and it is almost always a misdeed of some sort,
need not be criminal . . . .
The character evidence the State introduced in this case fell within 404(b).
[¶21] Because the evidence was character evidence within the scope of 404(b), upon the
filing of Mr. Lindstrom’s pretrial demand for notice of intent to introduce 404(b)
evidence, the State was required to identify the evidence. The district court was then
required to hold a pretrial hearing at which time the State was required to justify the
evidence as proper under W.R.E. 404(b), relevant, and more probative than unfairly
prejudicial. Payseno, ¶ 19, 332 P.3d at 1182, citing Gleason, ¶ 18, 57 P.3d at 340. The
district court was then required to conduct the exacting analysis set forth in Gleason.
Gleason, ¶ 24, 57 P.3d at 342-343. None of this happened with respect to the evidence at
issue. The State did not identify the underwear found in Mr. Lindstrom’s apartment in its
404(b) notice. The State did not show the evidence was introduced for a proper purpose,
was relevant, or was more probative than unfairly prejudicial. The district court did not
apply the Gleason factors in ruling the evidence was admissible. Under these
circumstances, the district court committed a clear abuse of discretion when it admitted
the evidence.
[¶22] Our conclusion that the district court abused its discretion in admitting the
evidence does not end the inquiry. We still must determine whether the error was
prejudicial.
Even if the district court admitted evidence in error, we
must consider whether the error was prejudicial or harmless.
Error is prejudicial if there is a reasonable possibility that the
verdict might have been more favorable to the defendant if
the error had not been made. Prejudicial error requires
reversal, while harmless error does not.
Payseno, ¶ 20, 332 P.3d at 1182, citing Nelson v. State, 2010 WY 159, ¶ 29, 245 P.3d
282, 289 (Wyo. 2010).
[¶23] Given the magnitude of the evidence against Mr. Lindstrom, including the
testimony of CS and TR detailing the acts he engaged in with them and the second minor
victim, we conclude there is no reasonable possibility that the verdict would have been
more favorable to him if the testimony concerning the items found in his dresser drawers
6
had not been admitted.1 CS testified that on several occasions Mr. Lindstrom inserted his
finger in her anus. She testified he made her touch his penis on another occasion. She
testified that on still another occasion he made her perform fellatio on him. TR testified
that Mr. Lindstrom sexually abused PR on two occasions. She further testified that he
violently sexually assaulted her in front of PR on two occasions and on one occasion
forced her to involve PR in sexual acts. The error in admitting testimony about what was
in Mr. Lindstrom’s dresser drawers was harmless.
2. Amendment of the information.
[¶24] In the original information, the facts alleged in support of Counts I, II and III
respectively were that Mr. Lindstrom inserted his finger into CS’s genital opening,
performed cunnilingus on CS and put his mouth on her breast. In her trial deposition,
however, CS testified that on different occasions Mr. Lindstrom inserted his finger into
her anus, made her perform fellatio on him, and made her touch his penis, acts that were
not alleged in the information. During the deposition, defense counsel cross-examined
CS but did not ask about the acts alleged in the information.
[¶25] Two days after the deposition, on November 14, 2013, the State filed a motion to
amend the information to conform to CS’s deposition testimony. Specifically, the State
sought to amend Count I to change the specifics of the crime from “inserting a digit into
the genital opening of CS” to “inserting a digit into the anal opening of CS”; Count II to
change “did perform cunnilingus on CS” to “did cause CS to perform fellatio on him”;
and Count III to change “did put his mouth on the breast of CS” to “did cause CS to
touch his penis.” Without a hearing, the district court granted the motion the same day.
On November 18, Mr. Lindstrom filed his objection to the amendment, arguing that
allowing the State to allege new facts after CS’s trial testimony was completed prejudiced
his right to a fair trial and to prepare his defense. The district court entered another order
allowing the amendment.
[¶26] Mr. Lindstrom contends the district court erred when it allowed the State to amend
the information to conform to the testimony CS gave during her videotaped trial
deposition. He asserts the amendment, allowed after the witness’s trial testimony had
concluded, violated his constitutional due process rights to be informed of the charges
against him and to prepare a defense. Ordinarily, we review a district court order
allowing the State to amend an information for abuse of discretion. Walker v. State, 2013
WY 58, ¶ 20, 302 P.3d 182, 187 (Wyo. 2013). When an accused asserts a due process
violation, however, our review is de novo. Albarran v. State, 2013 WY 111, ¶ 11, 309
P.3d 817, 820 (Wyo. 2013).
1
We can conceive of no rational basis for introducing the items found in the apartment. Even assuming
Mr. Lindstrom lived alone and the presence of female underwear in his dresser drawers was unusual, its
presence there by itself was not even arguably relevant. The only sure consequence of the introduction of
such clearly inadmissible evidence was an appeal.
7
[¶27] W.R.Cr.P. 3(e) provides in pertinent part:
. . . The court may permit an information or citation to be
amended:
(1) With the defendant’s consent, at any time before
sentencing.
(2) Whether or not the defendant consents:
(A) At any time before trial if substantial rights
of the defendant are not prejudiced.
(B) At any time before verdict or finding if no
additional or different offense is charged and if substantial
rights of the defendant are not prejudiced.
The amendment in the present case did not allege additional or different offenses; it
alleged different facts for the same offenses charged in the first information. Therefore,
we are concerned only with whether the amendment prejudiced Mr. Lindstrom’s
substantial rights.
[¶28] The timing of an amendment is often a key factor in assessing prejudice. 5 Wayne
R. LaFave, Jerold H. Israel, Nancy J. King and Orin S. Kerr, Criminal Procedure §
19.5(b), 311 (3d ed. 2007). The trial deposition in which CS testified to different facts
than those the State had alleged in the information was taken on November 12, 2013, a
month before trial. The State moved to amend the information to conform to the
testimony two days later on November 14. The district court granted the motion without
a hearing the same day, again nearly a month before trial. In his objection to the
amendment filed thereafter, or at any time prior to the December 12 trial date, Mr.
Lindstrom could, and should, have requested a continuance of the trial if he believed the
amendment prejudiced his ability to prepare his defense. He did not ask for a
continuance. Prejudice from amendments to an information made prior to trial may be
avoided by obtaining a continuance and “courts are hesitant to find prejudice if a
continuance was … not requested.” Id.
[¶29] Additionally, Mr. Lindstrom’s defense to the crimes charged was that he did not
commit them and could not have committed them because he was not in Buffalo when
they allegedly occurred. That CS’s description of the sexual contact in her testimony was
different than that alleged in the information had no effect on that defense. With the
amendment, Mr. Lindstrom still attempted to prove he was not in Buffalo when the
offenses occurred and could not, therefore, have committed them. Under these
circumstances, the amendment did not prejudice his defense.
3. Prosecutorial misconduct.
8
[¶30] In his closing argument, the prosecuting attorney stated:
But what about C? C doesn’t hallucinate. C doesn’t
fantasize. C doesn’t make up wild stories. C is a bright child.
. . . . She knows what’s real, she knows what’s not, she
knows what’s happening.
He also stated:
But we don’t have psychosis. This is real, Ladies and
Gentlemen. This isn’t fantasy. This is not something that
was made up.
Think of the effort it would take to put that together.
“I’m going to make this up. I’m going to teach this
child – these children how to play in a way that makes it look
like Mike Lindstrom did something wrong.”
You can’t teach a child to do that. You can’t teach two
separate children from two separate families to pick on this
guy.
[¶31] Mr. Lindstrom asserts that in these remarks the prosecutor improperly vouched for
the credibility of CS and PR. Mr. Lindstrom did not object to the prosecutor’s
statements; therefore, we review his allegations of prosecutorial misconduct for plain
error. Anderson v. State, 2014 WY 74, ¶ 40, 327 P.3d 89, 99 (Wyo. 2014). Plain error
exists when: 1) the record is clear about the incident alleged as error; 2) there was a
transgression of a clear and unequivocal rule of law; and 3) the party claiming the error
was denied a substantial right resulting in material prejudice. Id., citing Sweet v. State,
2010 WY 87, ¶ 22, 234 P.3d 1193, 1202 (Wyo. 2010) (quoting Schreibvogel v. State,
2010 WY 45, ¶ 19, 228 P.3d 874, 882 (Wyo. 2010)). Reversal as a result of prosecutorial
misconduct is not warranted unless a reasonable probability exists that absent the error
the defendant may have enjoyed a more favorable verdict. Anderson, ¶ 40, 327 P.3d at
100.
[¶32] The first prong of plain error is satisfied. The prosecutor’s remarks clearly appear
in the record. Whether there was a transgression of a clear and unequivocal rule of law is
not so quickly answered. We have said:
Counsel are allowed wide latitude during the scope of their
closing arguments, and a prosecutor may comment on all of
the evidence in the record and suggest reasonable inferences
from that evidence. However, the prosecutor may not inflame
or mislead the jury or express his personal beliefs or opinions
about the evidence. Davis v. State, 2005 WY 93, ¶ 25, 117
9
P.3d 454, 463 (Wyo. 2005). Similarly, a prosecutor cannot
personally vouch for the credibility of a state’s witness, nor
can a prosecutor assert his own credibility as a basis for
conviction of a defendant.
[W]hen the prosecutor asserts his credibility or personal
belief, an additional factor is injected into the case. This
additional factor is that counsel may be perceived by the
jury as an authority whose opinion carries greater weight
than their own opinion; that members of the jury might
be persuaded not by the evidence, but rather by a
perception that counsel’s opinions are correct because of
his position as prosecutor, an important state official
entrusted with enforcing the criminal laws of a sovereign
state. While the prosecutor is expected to be an advocate,
he may not exploit his position to induce a jury to
disregard the evidence or misapply the law.
Budig v. State, 2010 WY 1, ¶ 17, 222 P.3d 148, 156 (Wyo. 2010), quoting Condra v.
State, 2004 WY 131, ¶ 11, 100 P.3d 386, 390 (Wyo. 2004).
[¶33] Applying these principles in Dysthe v. State, 2003 WY 20, ¶¶ 28-29, 63 P.3d 875,
886 (Wyo. 2003), we held the prosecutor improperly vouched for the credibility of the
State’s witnesses in a drug case when he said:
“These witnesses, despite the fact that they are users, were
credible. They were very credible. They were more credible
because of the very fact that they have a relationship with this
Defendant. More credible because, if you couldn’t tell, I
certainly could; they didn't like me asking them questions.
They didn’t want to be telling me anything.”
The prosecutor also stated that he worked with the
investigators on the case and he could “guarantee” that their
investigations were not “arbitrary.” He told the jury that the
witnesses had no reason to lie.
We concluded:
the prosecutor’s comments in the present case crossed the line
between legitimate argument and illegitimate vouching for
the credibility of the State’s witnesses. While he did not
directly state that it was his opinion that the witnesses were
10
credible, he certainly gave that impression. Further, he did
not suggest that the determination was to be made by the
jurors; instead, he offered his own observation that the
witnesses were “more credible” because “if you couldn't tell,
I certainly could [that] they didn't like me asking them
questions.” And finally, his personal guarantee that the
investigation was not arbitrary certainly amounted to a
personal attestation of fact.
Id., ¶ 30, 63 P.3d at 886.
[¶34] In contrast, in Teniente v. State, 2007 WY 165, ¶ 31 169 P.3d 512, 525 (Wyo.
2007) we held the prosecutor did not improperly vouch for a witness’s credibility when
he said:
[W]e have one eyewitness, one eyewitness that stepped up to
the plate February 18th, and said, ‘I was there. This is what
happened.’ A statement as, you know, he has stayed
consistent with, a statement he testified to in Eddie’s trial.
As you notice, when [Defense counsel] went to
question him, he couldn’t impeach him on any of his prior
inconsistent statements because there weren’t any. He has
stayed consistent, ladies and gentlemen, even in the face of
threats from his family, ostracism by his family.
He saw what happened, and he decided to step forward
and tell the truth, even though the first time, it’s against his
very own brother, and now the second time, against his
cousin. Courage.
We concluded that rather than vouching for the witness’s credibility, the prosecutor “was
arguing reasonable inferences, drawn from evidence introduced at trial, that the witness’s
testimony could be seen as reliable.” Id.
[¶35] We find the prosecutor’s comments in the present case to be more like those the
prosecutor made in Teniente than in Dysthe. His comments that CS doesn’t hallucinate,
fantasize or make up wild stories and is a bright child were direct quotes from the
testimony of CS’s mother. His statements that CS knows what is real and what is not and
that the stories were not made up were reasonable inferences to be drawn from her
mother’s testimony. The prosecutor’s statement that it would be difficult to get two
children from different families to make up stories about Mr. Lindstrom continued as
follows:
11
[Mr. Lindstrom] is the common connection between [the]
two. The children aren’t the same age, they are not in the
same grade, they don’t hang out together. They’re tied
together … with Mr. Lindstrom.
These statements were a reasonable response to the defense’s efforts to show that the
children were manipulated by adults to accuse Mr. Lindstrom. We conclude the
prosecutor did not improperly vouch for the witness’s credibility.
[¶36] We affirm Mr. Lindstrom’s convictions.
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