                IN THE SUPREME COURT, STATE OF WYOMING

                                         2017 WY 72

                                                                  APRIL TERM, A.D. 2017

                                                                         June 15, 2017


SHAUN KENNETH HAMILTON,

Appellant
(Defendant),

v.                                                         S-16-0214

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Natrona County
                        The Honorable Daniel L. Forgey, Judge

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Eva
      La, Assistant Attorney General. Argument by Ms. La.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] A jury found Shaun Kenneth Hamilton guilty of five counts of sexual assault and
sexual abuse of a minor for acts involving two victims. He appeals his conviction,
claiming that there was prosecutorial misconduct amounting to cumulative error when the
prosecutor, during closing argument, defined the burden of proof, denigrated Mr.
Hamilton’s defense, and shifted the burden of proof. We affirm.

                                          ISSUE

[¶2] We rephrase the issue as follows: Was Mr. Hamilton denied his right to a fair trial
by the cumulative error of two or more instances of prosecutorial misconduct?

                                          FACTS

[¶3] There are two victims in this case, JP and KB. Mr. Hamilton is KB’s stepfather,
and lived with KB and her mother. KB testified that in 2015, when she was fourteen, Mr.
Hamilton sexually assaulted her in her bedroom. The following day, KB went to school
and told a friend about the incident, and the friend reported it to the school principal. The
principal called the Wyoming Department of Family Services (DFS), and then called KB
out of class. After speaking to the principal about the incident, KB left with a DFS
caseworker. The DFS caseworker took KB to the Children’s Project Center for a forensic
interview and then to the hospital for a sexual assault kit examination. During the sexual
assault kit exam, the nurse collected oral swabs from KB and DNA swabs from KB’s
abdomen. The Casper Police Department (CPD) obtained a search warrant for KB’s
residence, where they collected KB’s mattress topper from her bed, a blanket, a pair of
panties, a pair of sports pants, a black shirt, and a white towel. CPD also served Mr.
Hamilton with a search warrant to perform a biological evidence kit exam on him. DNA
tests confirmed that DNA collected from KB’s abdomen swabs and mattress topper was
consistent with Mr. Hamilton’s semen, and Mr. Hamilton’s penile swabs were consistent
with the DNA profiles of both KB and Mr. Hamilton.

[¶4] When it began investigating KB’s case, CPD re-opened an earlier case involving
charges of sexual assault of JP, the child of a woman Mr. Hamilton dated in 2009. JP
testified that Mr. Hamilton sexually assaulted her three different times when she was five
or six years old. JP’s mother reported the incidents to DFS and CPD, but no charges
were filed against Mr. Hamilton at that time.

[¶5] The State combined KB’s and JP’s cases, and charged Mr. Hamilton with
one count of first-degree sexual assault in violation of Wyo. Stat. Ann. §§ 6-2-302(a)(i)
and 6-2-306(a)(i), one count of first-degree sexual abuse of a minor in violation of Wyo.
Stat. Ann. §§ 6-2-314(a)(iii) and (b), for the incident related to KB; and one count of
second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. §§ 6-2-314(a)(i)


                                             1
and (c), and two counts of second-degree sexual abuse of a minor in violation of Wyo.
Stat. Ann. §§ 6-2-315(a)(ii) and (b) for the incidents related to JP.

[¶6] After a four-day trial, the jury convicted Mr. Hamilton on all five counts. On the
two counts related to KB, he was sentenced to a term of not less than 32 years nor more
than 36 years, and a term of not less than 10 years nor more than 15 years, to be served
concurrently. On the three counts related to JP, he was sentenced to not less than 18
years nor more than 20 years on each count, to be served concurrently and consecutively
to the counts related to KB. Mr. Hamilton timely filed his notice of appeal. Additional
facts, testimony, and argument will be set forth below, as necessary.

                                STANDARD OF REVIEW

[¶7] Mr. Hamilton failed to object to the prosecutor’s statements during his closing
argument at trial. Our review is therefore limited to a search for plain error. Watts v.
State, 2016 WY 40, ¶ 6, 370 P.3d 104, 106 (Wyo. 2016). “Normally, we would
determine whether each incident of alleged misconduct by the prosecutor caused
sufficient prejudice to require a reversal.” Id. at ¶ 7, 370 P.3d at 106. Mr. Hamilton,
however, argues that it was the cumulative effect of all three instances of alleged
prosecutorial misconduct that denied him his right to a fair trial. Our plain error review is
therefore: 1) whether the record is clear about each incident alleged to be misconduct; 2)
whether each instance of alleged misconduct actually transgressed a clear and
unequivocal rule of law; and 3) if two or more instances of alleged misconduct violate
clear and unequivocal rules of law, whether the cumulative effect of the misconduct
prejudiced Mr. Hamilton to such an extent that his trial was other than fair and impartial.
Id.

                                       DISCUSSION

Was Mr. Hamilton denied his right to a fair trial by the cumulative error of two or
more instances of prosecutorial misconduct?

[¶8] Mr. Hamilton contends that there were three instances of prosecutorial misconduct
during the prosecutor’s closing argument: 1) the prosecutor defined reasonable doubt for
the jury; 2) the prosecutor denigrated the defense; and 3) the prosecutor shifted the
burden of proof from the State to the defendant. Prosecutorial misconduct is “[a]
prosecutor’s improper or illegal act (or failure to act), esp[ecially] involving an attempt to
persuade the jury to wrongly convict a defendant or assess an unjustified punishment.”
Watts, 2016 WY 40, ¶ 8, 370 P.3d at 107 (quoting Craft v. State, 2013 WY 41, ¶ 13, 298
P.3d 825, 829 (Wyo. 2013)). “Allegations of prosecutorial misconduct are reviewed by
reference to the entire record and hinge on whether a defendant’s case has been so
prejudiced as to constitute denial of a fair trial.” Talley v. State, 2007 WY 37, ¶ 9, 153
P.3d 256, 260 (Wyo. 2007). Although it was prosecutorial misconduct for the prosecutor


                                              2
to attempt to define reasonable doubt and to suggest that Mr. Hamilton carried any
burden of proof, Mr. Hamilton failed to prove cumulative error. Applying our standard
of review, we will find that Mr. Hamilton was not prejudiced to such an extent that his
trial was anything other than fair and impartial.

A.   Reasonable doubt

[¶9] Mr. Hamilton argues that the prosecutor attempted to define reasonable doubt to
the jury, in violation of the law, when the prosecutor made the following statements
during his closing argument:

                    Before I get to the overwhelming evidence against
             [Mr. Hamilton] in this case, I want to discuss with you the
             burden of proof. I want to talk to you about what it is and
             also what it is not. It is proof beyond a reasonable doubt, a
             burden the State welcomes. We welcome that. We’re talking
             about a man’s freedom. We should be held to that burden,
             and we ask you to hold us to that burden. But it is not proof
             beyond any possible doubt. You heard a lot of possibilities
             coming from [defense counsel]. Well, could it have possibly
             been this, could it have possibly been that. The burden is not
             proof beyond any possible doubt. The burden of proof is
             beyond a reasonable doubt. And a reasonable doubt doesn’t
             just come from any lame excuse the defense can come up
             with to try to explain the overwhelming evidence in this
             case. It only comes from a reasonable argument, one that
             makes sense, one that matches with your common sense.

             ....

             They argue masturbation, because it’s a penetration womb
             [sic]. It started out with a bike; but when that got debunked,
             it became masturbation. Well, remember, we’re not talking
             about what is possible. We’re talking about what is
             reasonable. Also, we don’t consider evidence in isolation.
             We take it all together. So look at the whole picture.

(Emphasis added.) The record is clear about the alleged incident; therefore, Mr.
Hamilton has met the first prong of the plain error test. We next address whether the
prosecutor’s statements transgressed a clear and unequivocal rule of law.

[¶10] A prosecutor is afforded “[g]reat latitude in arguing the case to the jury[,] . . .
[h]owever, there are boundaries the prosecutor may not cross.” Carroll v. State, 2015
WY 87, ¶ 32, 352 P.3d 251, 259 (Wyo. 2015) (internal quotation marks and citations


                                           3
omitted). This Court recently addressed the issue of defining reasonable doubt in Watts,
2016 WY 40, ¶ 22, 370 P.3d at 112. Recognizing the inconsistencies in our precedent,
we provided a detailed analysis of prior case law and clarified that it is error for a
prosecutor to attempt to define ‘reasonable doubt’ for the jury. Id. Here, the prosecutor’s
comments are similar to those the prosecutor made in Watts:

              Ladies and gentlemen, the State does have to prove its case
              beyond a reasonable doubt, but it is not beyond all doubt. It
              is not an impossible burden. It is the same burden in every
              State in the nation, Federal Court, State Courts. We know
              people are convicted fairly frequently on this burden of proof
              beyond a reasonable doubt.

              ....

              But the doubt has to be reasonable. It has to be based on what
              arose out of this trial. It can’t be a hunch it [sic]. It can’t be
              well a possibility.

              ....

              A hunch is [not] a reasonable doubt. A vague possibility is
              not reasonable doubt.

2016 WY 40, ¶ 13, 370 P.3d at 108. We held that the prosecutor in Watts “crossed well
into the territory of defining reasonable doubt when he stated: ‘But the doubt has to be
reasonable. It has to be based on what arose out of this trial. It can’t be a hunch it [sic].
It can’t be well a possibility.’” Id. at ¶ 22, 370 P.3d at 111. Similarly, prosecutorial
misconduct occurred here when the prosecutor attempted to define reasonable doubt by
stating: “The burden is not proof beyond any possible doubt;” “Well, remember, we’re
not talking about what is possible. We’re talking about what is reasonable.”

[¶11] This Court issued Watts 56 days after the jury returned its verdict in Mr.
Hamilton’s case. Although it was not law at the time of Mr. Hamilton’s trial, the
parameters on which it was decided were. We find the prosecutor violated a clear and
unequivocal rule of law when he defined reasonable doubt for the jury during his closing
argument, rather than merely explaining “that the burden of proof does not require the
prosecutor to establish guilt to an absolute certainty.” Watts, 2016 WY 40, ¶ 21, 370
P.3d at 111 (citing Solis v. State, 2013 WY 152, ¶ 46, 315 P.3d 622, 632 (Wyo. 2013)
(“To be sure, it is error for a prosecutor to attempt to define ‘reasonable doubt’ for the
jury.”)).




                                              4
[¶12] Mr. Hamilton argues that it is only when this error is considered with two other
alleged instances of misconduct that it proves he was prejudiced to such an extent that his
trial was not fair and impartial. As a result, we analyze whether the alleged instances of
misconduct collectively constitute cumulative error. See infra ¶¶ 20-21. We turn next to
Mr. Hamilton’s argument that the prosecutor denigrated the defense.

B. Denigration of the defense

[¶13] Mr. Hamilton contends that the prosecutor committed misconduct when he
“repeatedly on the record ridiculed the defense.” Mr. Hamilton references the following
statements made by the prosecutor during his closing:

              I’ll go over the problems with their excuses here in a minute,
              because there are a lot of them. But the bottom line is the
              physical, scientific evidence in this case supports the victim
              [KB]. So what do they do? They drag her through the mud.
              They talk about forged checks and trips to the principal’s
              office, typical teenage junk. But that’s nothing more than an
              effort to get you to try to ignore the cold, hard facts of this
              case. . . .

              ....

              . . . The defense is essentially arguing that these two girls
              came into this courtroom and framed this defendant out of the
              clear blue sky. . . . That’s not reasonable. It’s absurd. And
              that’s before we get to the corroboration.

              ....

                     Ladies and gentlemen of the jury, that’s not
              reasonable. That is fundamentally ridiculous. How would
              [KB] know [Mr. Hamilton’s] sperm was on her comforter and
              her stomach unless, one thing, she was there when [Mr.
              Hamilton] put it there. . . .

              ....

              . . . These sperm are microscopic. Only the crime lab could
              link it to [Mr. Hamilton]. And they want you to believe that
              this 14-year-old girl somehow knew it and framed him.
              That’s not reasonable. That’s so off-the-wall ridiculous it’s
              beyond belief. . . .

              ....


                                            5
                  The so-called alibi is nonsense. . . . So the alibi
             argument is nonsense.

             ....

                    I told you they would not be able to explain how [KB]
             knew [Mr. Hamilton’s] semen was on her stomach. Oh, they
             tried to explain the -- the comforter by saying, [w]ell, you
             know, she knows what semen is. Yeah. So she kept sleeping
             on that stain. For how many years? She was begging to sleep
             on that futon knowing that stain was there. So they tried to
             say that, which is just a very bizarre, out-there explanation
             of that.

(Emphasis added.)

[¶14] It is prosecutorial misconduct to “launch personal attacks against defense counsel
to inflame the passions and prejudices of the jury.” McGinn v. State, 2015 WY 140, ¶ 51,
361 P.3d 295, 307 (Wyo. 2015) (Fox, J., specially concurring) (quoting Lafond v. State,
2004 WY 51, ¶ 39, 89 P.3d 324, 336-37 (Wyo. 2004)). The prosecutor’s comments are
similar to those the prosecutor made in Carroll:

             So how much of this closing [argument] by counsel for the
             Defense was about [the victim]? Not a lot. Because their
             case, their case, ladies and gentlemen, is about distraction and
             diversion. They want to distract you from the testimony of
             [the victim]. And they want to divert you from those things.

             ....

             . . . [a] lot of stuff on the floor of this courtroom and [is]
             hoping you don’t sniff through it. But you will. Because this
             case isn’t about those things. . . . This case is about [the
             victim] and what he did to her, what she told you happened to
             her at his hands when she was just 14 and 15 years old.

2015 WY 87, ¶ 41, 352 P.3d at 261. We found the comments in Carroll to be related to
the prosecution’s view of the defense case, and not personal attacks on the defense
counsel. Id. at ¶ 44, 352 P.3d at 261. Similarly, the prosecutor’s comments in this case
were not personal attacks on defense counsel and were not intended to inflame the
passions and prejudices of the jury. “In presenting closing argument, the prosecutor is
entitled to reflect upon the evidence and to draw reasonable inferences from that evidence


                                            6
in order to assist the jury in its function.” English v. State, 982 P.2d 139, 148 (Wyo.
1999). The prosecutor’s remarks were related to the prosecution’s view of the defense’s
case, and do not amount to prosecutorial misconduct. Though ill-advised, the comments
did not transgress a clear and unequivocal rule of law. We find no plain error, and turn
next to Mr. Hamilton’s argument that the prosecutor shifted the burden of proof from the
State to Mr. Hamilton.

C. Burden of proof

[¶15] Mr. Hamilton asserts the prosecutor shifted the burden of proof from the State to
Mr. Hamilton when the prosecutor made the following statements:

                    Ladies and gentleman of the jury, there’s an old saying
             in the law: When the law is on your side, you pound on the
             law; when the facts are on your side, you pound on the facts;
             when neither is on your side, you pound on the victim.

                   They can’t explain this in any reasonable manner.
             They can’t explain this in any reasonable manner. And
             most of all, they can’t explain this in any reasonable
             manner. Oh, they made some excuses. . . .

                    ....

             . . . The only way she knows it’s his sperm is if she’s there
             when he put it there just like she described. Until they come
             up with a reasonable argument on that point -- and they
             won’t, not a reasonable one -- there’s no reasonable doubt.

                    ....

                    And then they try to say DNA is not that big a deal.
             It’s not that big a deal. Well, it’s a big deal when you can’t
             explain how [KB] knew it was there. And they can’t. That
             makes it an even bigger deal.

                    ....

                   I told you they wouldn’t be able to explain it. They
             don’t have reasonable explanation for it. I told you they
             would not be able to explain how [KB] knew [Mr.
             Hamilton’s] semen was on her stomach. . . .



                                           7
                    Without a reasonable explanation for that, ladies and
             gentlemen of the jury, there’s no hole in that box. There’s
             no reasonable doubt.

(Emphasis added.) The challenged incident clearly appears in the record, and so we
consider whether it violated a clear and unequivocal rule of law.

[¶16] It is well settled that “the State bears the burden of proof in a criminal case, and
that the prosecutor may not, during argument, attempt to shift that burden to the
defendant.” Harris v. State, 2008 WY 23, ¶ 17, 177 P.3d 1166, 1171 (Wyo. 2008); see
also Collins v. State, 2015 WY 92, ¶ 16, 354 P.3d 55, 59 (Wyo. 2015) (“[P]rosecutors
should not suggest a defendant carries any burden of proof.”); Phillips v. State, 835 P.2d
1062, 1072-73 (Wyo. 1992). In Schafer v. State, the defendant claimed, among other
issues, that his motion for a new trial should have been granted because prosecutorial
misconduct occurred when the prosecutor stated, “if there was some explanation for it,
they could have put it on.” 2008 WY 149, ¶¶ 25-26, 197 P.3d 1247, 1252 (Wyo. 2008)
(superseded by statute, Cecil v. State, 2015 WY 158, 364 P.3d 1086 (Wyo. 2015)).
Defense counsel objected to the statement at trial, which provided the district court with
the opportunity to cure the alleged misconduct. The district court, agreeing that the
statement was impermissible, admonished the prosecutor, ordered that the statement be
stricken from the record, and instructed the jury that defendant had no burden to present
any evidence in the case. Id. While reasserting the principle that it is error for a
prosecutor to suggest that the defendant has the burden of proof, we applied the rule that
a jury is presumed to follow a court’s curative instruction and found no abuse of
discretion. Id. at ¶ 26, 197 P.3d at 1252.

[¶17] In Seymore v. State, 2007 WY 32, ¶ 18, 152 P.3d 401, 408 (Wyo. 2007)
(abrogated on other grounds by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo.
2008)), during voir dire, the prosecutor stated:

             If the defense has evidence they want you to consider in
             deciding this case, then they should put it to you. They
             should bring it to your attention. They should bring it to court
             and show it to you, or have someone testify about it, that it’s
             not the State’s role to present that evidence to you.

Then, in his closing argument, the prosecutor used a demonstrative exhibit depicting
evidence that the prosecutor believed should have been brought before the jury by the
defendant. Id. We found that “[t]he prosecutor t[elling] the jury during voir dire and in
closing argument that the defendant ‘should’ bring any exculpatory evidence into court
and present it to the jury” improperly shifted the burden to the defendant and, combined
with several other prosecutorial transgressions, justified remanding the case for a new
trial. Id. at ¶¶ 20-22, 152 P.3d at 410. Thus, the law in Wyoming is clearly established: a


                                            8
prosecutor may not argue that the defendant should have put on evidence to explain a
missing fact or theory because such an argument improperly shifts the burden of proof to
the defendant.

[¶18] Here, the prosecutor made multiple statements suggesting that Mr. Hamilton had
to explain the evidence when he had no burden at all. The prosecutor was not “merely
comment[ing] on the evidence presented, the lack of Hamilton’s evidence, and the
uncontroverted evidence” as the State suggests.           The prosecutor went beyond
commenting on the evidence when he added statements such as “They can’t explain this
in any reasonable manner;” “Until they come up with a reasonable argument on that
point;” and “I told you they wouldn’t be able to explain it.” The prosecutor’s statements
regarding the burden of proof transgressed a clear and unequivocal rule of law, a second
instance of prosecutorial misconduct in this matter. It is therefore necessary to address
Mr. Hamilton’s claim of cumulative error.

D. Cumulative error

[¶19] Cumulative error occurs when “two or more individually harmless errors ha[ve]
the potential to prejudice the defendant to the same extent as a single reversible error.”
Watts, 2016 WY 40, ¶ 23, 370 P.3d at 112 (quoting Guy v. State, 2008 WY 56, ¶ 45, 184
P.3d 687, 701 (Wyo. 2008). “In conducting a cumulative error evaluation, we consider
only matters that we have determined to be errors.” Guy, 2008 WY 56, ¶ 45, 184 P.3d at
701. We reverse a conviction only when the accumulated effect of the errors “constitutes
prejudice and the conduct of the trial is other than fair and impartial.” Watts, 2016 WY
40, ¶ 23, 370 P.3d at 112 (quoting Alcala v. State, 487 P.2d 448, 462 (Wyo. 1971)).

[¶20] While it was improper for the prosecutor to attempt to define reasonable doubt and
suggest to the jury that Mr. Hamilton had any burden of proof, the accumulated effect of
these errors was not prejudicial. We consider the prosecutor’s remarks during closing
argument “in the context of the entire argument,” Szymanski v. State, 2007 WY 139, ¶ 27,
166 P.3d 879, 886 (Wyo. 2007), and in the context of the entire trial. Phillips v. State,
2007 WY 25, ¶ 9, 151 P.3d 1131, 1134 (Wyo. 2007). Throughout the trial the jury was
reminded that the burden of proof rested with the State. Moreover, the State produced
overwhelming evidence establishing Mr. Hamilton’s guilt. The State called eleven
witnesses, including the victims naming Mr. Hamilton as their assailant, medical
personnel who described the severity of KB’s injuries, and experts on the DNA evidence.
The State also presented uncontroverted DNA evidence. The State’s evidence was
strong, the errors by the prosecutor were confined to the closing argument, and the
accumulated effect of those errors does not rise to the level of reversible error. Based on
the entire context of the trial, we do not find that Mr. Hamilton was prejudiced by the
improper remarks; therefore, his cumulative error claim fails and we affirm his
convictions.



                                            9
                                    CONCLUSION

[¶21] The prosecutor did not denigrate the defense during closing argument. The
prosecutor’s attempt to define “reasonable doubt” and statements regarding the burden of
proof constituted prosecutorial misconduct. However, the prosecutor’s statements did not
cumulatively prejudice Mr. Hamilton. We affirm Mr. Hamilton’s convictions.




                                          10
