                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 38

                                                            OCTOBER TERM, A.D. 2013

                                                                    March 13, 2014

DANIEL GEORGE SWAN,

Appellant
(Defendant),

v.                                                   S-13-0050

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 State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant
      Appellate Counsel. Argument by Mr. Westling.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jeffrey Pope, Assistant Attorney General; Darrell Jackson,
      Faculty Director, Prosecution Assistance Program; David Singleton, Student
      Director; and Daniel Harnick, Student Intern. Argument by Mr. Harnick.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.

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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] A jury found Daniel Swan guilty of one count of felony child abuse, and he now
appeals. He claims that the district court erred by not granting his motion for judgment
of acquittal, citing insufficient evidence. He also claims that his right to confrontation
was violated because the district court limited questions to the victim regarding
inappropriate sexual contact between the victim and his sister. We affirm.

                                               ISSUES

[¶2]    Swan presents two issues for our review:

                1. The trial court’s limitation of the cross-examination of DM
                   effectively denied the Appellant, Daniel Swan, due process
                   by denying him his constitutional right to confront the
                   witness against him.

                2. The evidence produced at trial was insufficient to support a
                   verdict of child abuse and it was an abuse of discretion to
                   deny Mr. Swan’s motion under W.R.Cr.P. 29.

                                               FACTS

[¶3] After being arrested on an outstanding warrant from the state of Montana, Daniel
Swan’s three step-children were placed into protective custody with the Wyoming
Department of Family Services (DFS). 1 Almost immediately, the children’s foster parent
noticed bruises and cuts on DM’s buttocks. DM, who was five years old at the time,
indicated that he received those injuries at the hands of his step-father, who he said often
spanked him with a stick and placed tape on his mouth to muffle his screams.

[¶4] The foster parent immediately contacted DFS, who sent a police officer to her
home. DM repeated his story to the officer, adding that his step-father also tied his hands
behind his head. After the spanking, DM was made to exercise while Swan watched.
DM also said he was often locked in his room at night and was made to urinate in a “pee
bucket.” The officer then took photos of the injuries reported by the foster parent and
took the children to be examined by a pediatrician.

[¶5] The police charged Swan with one count of felony child abuse, to which he
pleaded not guilty. The case moved toward trial and Swan proposed jury instructions that
indicated he intended to elicit evidence from DM that DM molested his sister as part of

1
 The children’s mother was also present and was also arrested for interference because she lied to police
about being the only adult in the home on the day of Swan’s arrest. Swan was actually present as well.


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his defense. The State filed a motion in response opposing that instruction and argued
that Swan had no proof of the alleged molestation and that such evidence would shift the
trial away from the relevant issue. Swan responded that asking DM about the allegations
would rebut the State’s theory about why Swan spanked DM.

[¶6] The district court took the matter under advisement and reserved ruling pending
Swan producing evidence that substantiated his claims. This became a non-issue at trial,
however. During trial, as Swan’s counsel cross-examined DM regarding the reasons for
the beatings, DM testified that he did not know why. Swan’s counsel did not ask DM
about the alleged sexual misconduct. Also at trial, Swan admitted to spanking DM and
binding DM with plastic wrap. The State produced evidence at trial that he did so with a
wooden lath that left abrasions, bruises, and lacerations, which likely bled. Photos of
DM’s buttocks corroborated these accounts and DM testified that when he misbehaved,
Swan would spank him with the wood.

[¶7] Although Swan’s counsel did not ask DM about the alleged sexual misconduct,
Swan was able to testify that he spanked DM for that very reason and described how DM
allegedly admitted to it. Swan also introduced a letter he wrote to his sister in which he
made the same allegations.

[¶8] After presenting his evidence and making closing arguments, Swan moved for a
judgment of acquittal. The district court denied the motion and explained that when
viewing the evidence in a light most favorable to the prosecution, a reasonably jury could
find Swan guilty beyond a reasonable doubt. The court noted that the jury had to resolve
only one question – whether Swan’s spanking of DM constituted “reasonable corporal
punishment.” The jury found Swan guilty and he was sentenced to thirty to sixty months
in the Wyoming State Penitentiary. He timely filed his notice of appeal.

                                     DISCUSSION

Right to Confrontation

[¶9] In his first issue, Swan argues that the district court interfered with his right to
present his defense by limiting the cross-examination of the victim about the victim’s
alleged molestation of his sister. Although Swan claims constitutional error, without an
appropriate objection we review his claim under a plain error standard. Anderson v.
State, 2014 WY 13, ¶ 20, 317 P.3d 1108, 1115 (Wyo. 2014) (citations omitted). We have
further stated:

             Even when constitutional error is alleged, each criterion must
             be satisfied or a claim for review under the plain-error doctrine
             will fail. To establish plain error, the appellant must prove (1)
             the record clearly reflects the alleged error; (2) the existence of


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             a clear and unequivocal rule of law; (3) a clear and obvious
             transgression of that rule of law; and (4) the error adversely
             affected a substantial right resulting in material prejudice to
             him.

Anderson, ¶ 20, 317 P.3d 1108.

[¶10] The constitutional right to confront a witness arises under the Sixth Amendment to
the United States Constitution and Article I, Section 10 of the Wyoming Constitution.
We have summarized the limits that a court may properly place upon cross-examination
regarding confrontation:

                     The primary right secured by the Confrontation Clause
             of the United States and Wyoming Constitutions is the right of
             cross-examination. In order for there to be a violation of the
             right of confrontation, a defendant must show more than just a
             denial of the ability to ask specific questions of a particular
             witness. Rather, a defendant must show that he was prohibited
             “from engaging in otherwise appropriate cross-examination
             designed to show a prototypical form of bias on the part of the
             witness . . . ‘to expose to the jury the facts from which jurors
             . . . could appropriately draw inferences relating to the
             reliability of the witness.’” Hannon, ¶ 18, 84 P.3d at 330
             (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680, 106
             S.Ct. 1431, 1436, 89 L.Ed. 2d 674 (1986)). The Confrontation
             Clause guarantees a defendant an “opportunity for effective
             cross-examination, not cross-examination that is effective in
             whatever way, and to whatever extent, the defense might
             wish.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435
             (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct.
             292, 295, 88 L.Ed. 2d 15 (1985) (per curiam) (emphasis in
             original)). A defendant’s right to cross-examination of a
             witness is not unfettered, but is subject to the trial court’s
             “discretion to reasonably limit cross-examination to prevent,
             among other things, questioning that is repetitive or of
             marginal relevance.” Hannon, ¶ 22, 84 P.3d at 331-32
             (quoting United States v. DeSoto, 950 F.2d 626, 629-30 (10th
             Cir. 1991)); see also Olden v. Kentucky, 488 U.S. 227, 232,
             109 S.Ct. 480, 483, 102 L.Ed. 2d 513 (1988) (per curiam).

Budig v. State, 2010 WY 1, ¶ 8, 222 P.3d 148, 151 (Wyo. 2010) (quoting Miller v. State,
2006 WY 17, ¶ 8, 127 P.3d 793, 796 (Wyo. 2006) (emphasis in original) (some citations
omitted)). Thus, a district court may reasonably limit a defendant’s right to cross-


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examination without abridging his Sixth Amendment right to confrontation. Miller, ¶¶ 7-
13, 127 P.3d at 796-97; Schmidt v. State, 2001 WY 73, ¶ 30, 29 P.3d 76, 85-86 (Wyo.
2001).

[¶11] Conversely, as Swan suggests, a district court can also violate a defendant’s right to
confront the witnesses against him if it prevents him from having an opportunity to
conduct an effective cross-examination. Budig, ¶ 8, 222 P.3d 151. However, that did not
happen in this case. As mentioned in the aforementioned facts, the court reserved ruling
on the issue. To refresh, prior to trial, the district court ruled that depending on the events
at trial it might preclude Swan from offering evidence about DM’s alleged molestation of
his sister. The court stated, “… pending the status of the evidence, this matter will be
taken under advisement.” The court never made a final ruling on the issue, however,
because it did not have to do so. Swan’s counsel cross-examined DM but did not broach
the subject of the allegations of molestation. Counsel asked DM questions without any
restriction whatsoever.

[¶12] While the molestation issue was not brought up by Swan’s counsel on cross-
examination, the defense did introduce its theory on direct. Swan was permitted to testify
regarding the alleged molestation, which he did at length. Given this testimony and the
unrestricted cross-examination of DM, we cannot conclude any error regarding Swan’s
right to confrontation occurred.

Motion for Judgment of Acquittal/Sufficiency of the Evidence

[¶13] Swan’s final argument on appeal is that the evidence produced at trial was
insufficient to support a verdict of child abuse and thus it was an abuse of discretion to
deny his motion for judgment of acquittal under W.R.Cr.P. 29.

[¶14] When we review a sufficiency of the evidence claim,

              we examine and accept as true the State’s evidence and all
              reasonable inferences which can be drawn from it. We do not
              consider conflicting evidence presented by the defendant. We
              do not substitute our judgment for that of the jury; rather, we
              determine whether a jury could have reasonably concluded
              each of the elements of the crime was proven beyond a
              reasonable doubt.       This standard applies whether the
              supporting evidence is direct or circumstantial.

Sweets v. State, 2013 WY 98, ¶ 14, 307 P.3d 860, 865 (Wyo. 2013) (quoting Craft v.
State, 2013 WY 41, ¶ 18, 298 P.3d 825, 830-31 (Wyo. 2013)).




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[¶15] In order to prove felony child abuse, the State was required to show that Swan: (1)
was responsible for the care of DM; (2) acted intentionally or recklessly; and (3) inflicted
physical injury, excluding reasonable corporal punishment. Wyo. Stat. Ann. § 6-2-
503(b)(i) (LexisNexis 2013). The term “physical injury” is defined by the Wyoming
legislature as “disfigurement, impairment of any bodily organ, skin bruising if greater in
magnitude than minor bruising associated with reasonable corporal punishment, bleeding,
burns, fracture of any bone, subdural hematoma or substantial malnutrition.” Wyo. Stat.
Ann. § 14-3-202(a)(ii)(B) (LexisNexis 2013).

[¶16] The State’s evidence, which must be accepted as true on appeal and much of
which Swan admitted, showed that before spanking DM, Swan used plastic wrap to bind
DM’s hands and cover his mouth, “so people couldn’t hear him scream.” It also showed
that after binding him, Swan pulled down DM’s pants and underwear to expose his bare
buttocks and then proceeded to use an eighteen to twenty-four inch piece of wood to
spank him. According to the evidence, the spankings left abrasions, bruises, and
lacerations that remained for hours after the spanking and likely bled. Swan’s argument
that the injuries were not serious and that he acted reasonably is misplaced given the
standard of review on appeal. Because the State is entitled to all favorable inferences that
can be drawn from the evidence, the jury was free to reject Swan’s proffered
justifications for the abuse. The evidence was sufficient to find Swan guilty and we
affirm.

                                     CONCLUSION

[¶17] Daniel Swan’s right to confrontation was not violated at trial. Furthermore, there
was sufficient evidence such that a jury could return a guilty verdict. Affirmed.




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