                 IN THE SUPREME COURT, STATE OF WYOMING

                                             2016 WY 44

                                                                     APRIL TERM, A.D. 2016

                                                                               April 15, 2016

  JAMES DARYL EMERSON,

  Appellant
  (Defendant),

  v.                                                                   S-15-0056, S-15-0223

  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, Attorney General; David L. Delicath, Deputy Attorney General;
        Christyne M. Martens, Senior Assistant Attorney General; Marc L. Smith, Special
        Assistant Attorney General. Argument by Mr. Smith.

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.
BURKE, Chief Justice.

[¶1] Appellant, James Daryl Emerson, challenges the district court’s denial of his
motion for a new trial. We affirm.

                                         ISSUE

[¶2]   Appellant presents one issue:

                 Did the trial court abuse its discretion in denying
                 Appellant’s motion for a new trial?

                                         FACTS

[¶3] On the evening of March 19, 2014, Appellant was at his nephew Samson’s
residence drinking with Samson, Alisha Ayers, and Jeremy Cantleberry. At some point,
Appellant and Mr. Cantleberry got into a heated argument. Samson told everyone to
leave and, in response, Appellant began yelling at Samson. Ultimately, Appellant left the
residence and walked down the street to his home, which he shared with Mr. Cantleberry.

[¶4] Subsequently, Samson discovered that Appellant had forgotten his cell phone. He
took the phone to Appellant’s residence. After leaving the phone outside Appellant’s
trailer, Samson headed home. During that return trip, Samson was accosted by
Appellant, who grabbed Samson and held a knife to his throat. During the ensuing
struggle, Appellant cut Samson’s cheek with the knife. Appellant then tackled Samson
and held him on the ground for several minutes before releasing him.

[¶5] Samson then walked to his grandmother’s house, and asked her to take him to the
hospital. At the hospital, Samson told law enforcement that Appellant had attacked him
and recited the events as described above. Law enforcement also interviewed Ms. Ayers,
who was a witness to the assault, and Mr. Cantleberry. Both Ms. Ayers and
Mr. Cantleberry corroborated Samson’s account of the altercation.

[¶6] On the day following the assault, detectives from the Casper Police Department
interviewed Appellant about the events of the previous night. Appellant claimed he had
been in an altercation with an “unknown male” but stated that he was very intoxicated
and did not remember anything about the altercation. The detectives observed that
Appellant had blood on his pants and shirt. After Appellant was taken to jail, law
enforcement officers executed a search warrant for Appellant’s home and found a black
knife with “Joker” engraved on one side of the blade and “Why so serious” on the other.

[¶7] On March 21, the State charged Appellant with aggravated assault and battery, in
violation of Wyo. Stat. Ann. § 6-2-502(a)(ii). At trial, Appellant claimed he had acted in



                                            1
self-defense. Samson testified to the same version of events as recorded in his interview
at the hospital on the night of the assault. Ms. Ayers also gave testimony consistent with
her statements to police after the assault. She stated that she saw Appellant grab Samson
by the neck and that Samson was unarmed. Additionally, Mr. Cantleberry, consistent
with his statements during investigation of the assault, testified that Appellant was highly
agitated before the assault, and that he observed a gash on Samson’s cheek after the
assault. The State also introduced evidence showing that the knife found at Appellant’s
home had Samson’s dried blood on it. After a three-day trial, the jury found Appellant
guilty of aggravated assault and battery.

[¶8] Ten months after his conviction, Appellant filed a motion for a new trial based on
statements made by Stanley Powley, whom Appellant had met in jail, and Mr. Powley’s
ex-girlfriend, Katie McNaughton. The couple had moved into Samson’s residence after
Appellant was charged but before trial. According to Appellant’s motion, Mr. Powley
claimed that Samson had told Mr. Powley “that he had to talk to Ayers and Cantleberry to
make sure they all had their stories straight for the trial.”

[¶9] The district court held a hearing on the motion. During the hearing, Mr. Powley
testified that “I just remember [Samson] stating that [Samson], [Mr. Cantleberry], and
[Ms. Ayers] had to get together to make sure that what they were saying was straight or
whatever. That’s about it.” Ms. McNaughton testified that “The conversations were
about, like, . . . Well, I think you should say this; and instead of saying that, we should
say this instead, so that all of our stories go together, and stuff like that.” Following the
hearing, the district court denied the motion.

[¶10] Appellant appealed from the denial of his motion for a new trial in August 2015.
At that time, Appellant’s direct appeal from his conviction was pending. We granted
Appellant’s motion to stay briefing in his direct appeal and ordered the two appeals to be
consolidated for argument and decision. Appellant raises the same issue in both appeals.

                                      DISCUSSION

[¶11] New trials in criminal cases are allowed if “required in the interest of justice.”
W.R.Cr.P. 33(a). We generally review the district court’s decision on a motion for a new
trial for abuse of discretion. Mendoza v. State, 2013 WY 55, ¶ 8, 300 P.3d 487, 489
(Wyo. 2013); Hicks v. State, 2008 WY 83, ¶ 30, 187 P.3d 877, 883 (Wyo. 2008). A
district court abuses its discretion when it could not have reasonably concluded as it did.
Mendoza, ¶ 8, 300 P.3d at 489.

              In determining whether there has been an abuse of discretion,
              we focus on the “reasonableness of the choice made by the
              trial court.” Vaughn [v. State], 962 P.2d 149, 151 (Wyo.
              1998). If the trial court could reasonably conclude as it did



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              and the ruling is one based on sound judgment with regard to
              what is right under the circumstances, it will not be disturbed
              absent a showing that some facet of the ruling is arbitrary or
              capricious.

Miller v. Beyer, 2014 WY 84, ¶ 14, 329 P.3d 956, 961 (Wyo. 2014) (quoting Dollarhide
v. Bancroft, 2010 WY 126, ¶ 4, 239 P.3d 1168, 1170 (Wyo. 2010)).

[¶12] A defendant who seeks a new trial based on newly discovered evidence typically
must demonstrate the following: (1) that the evidence has come to his knowledge since
the trial; (2) that it was not owing to the want of due diligence that it did not come sooner;
(3) that it is so material that it would probably produce a different verdict, if the new trial
were granted; and (4) that it is not cumulative, viz., speaking to facts in relation to which
there was evidence at the trial. Davis v. State, 2005 WY 93, ¶ 45, 117 P.3d 454, 471
(Wyo. 2005) (citing Opie v. State, 422 P.2d 84, 85 (Wyo. 1967)). A motion for a new
trial on the grounds of newly discovered evidence is not favored by the courts and is
viewed with great caution. Terry v. State, 2002 WY 162, ¶ 10, 56 P.3d 636, 639 (Wyo.
2002) (citing Griswold v. State, 2001 WY 14, ¶ 8, 17 P.3d 728, 731 (Wyo. 2001)). All
four factors must be met for entitlement to a new trial and, if any one factor is not
satisfied, there is no error in the denial of the new trial motion. Terry, ¶ 10, 56 P.3d at
639.

[¶13] Following the hearing on Appellant’s motion for a new trial, the district court
concluded that Appellant had not demonstrated that the testimony of Mr. Powley and
Ms. McNaughton was so material that it would probably produce a different verdict if a
new trial was granted. The court determined that both of the witnesses lacked credibility.
The court further determined that the evidence constituted impeachment evidence and
that, under this Court’s precedent, such evidence does not provide proper grounds for
granting a new trial.

[¶14] Appellant claims the district court abused its discretion in denying his motion for a
new trial. He contends the case against him was “based entirely upon the testimony of
the three witnesses of whom Mr. Powley and Ms. McNaughton had knowledge.”
According to Appellant, the testimony of Mr. Powley and Ms. McNaughton would have
produced a different verdict if a new trial had been granted. We do not agree.

[¶15] Neither Mr. Powley nor Ms. McNaughton could recall specifics of the alleged
conversations between Samson, Mr. Cantleberry, and Ms. Ayers, or that any of them had
agreed not to give truthful testimony. Mr. Powley testified as follows on direct
examination:

              DEFENSE COUNSEL: Do you recall any specifics of them
              talking about [the charges against Appellant]?



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             WITNESS: No; just kind of the – what happened. There was
             an altercation and Sam ended up getting cut; and not much
             on, like, actual what happened and whatnot. So –

             DEFENSE: And you’ve told me your memory of that time
             isn’t necessarily the best; is that a fair statement?

             WITNESS: Yes, it is; very fair.

             DEFENSE: But you did give me an affidavit, but – because
             you did recall a specific conversation that you had with Sam
             Emerson?

             WITNESS: Yes.

             DEFENSE: And can you just tell us what you remember
             about that conversation?

             WITNESS: I just remember him stating that [Samson],
             [Mr. Cantleberry] and [Ms. Ayers] had to get together to
             make sure that what they were saying was straight or
             whatever. That’s about it.

             DEFENSE: And do you know that they got together and
             talked about their testimony?

             WITNESS: I remember; but like I said, I was coming and
             going, and I don’t quite remember if they had all got together,
             if they had talked separately, or what. I don’t know.

             ...

             DEFENSE: Do you remember anything else at all about what
             Samson Emerson said or any of the details?

             WITNESS: Not really. I can’t – I can’t say for sure anything
             that he said, because I could be lying at that point. So –

Indeed, Mr. Powley testified that he was not sure that a conversation about the trial took
place:




                                            4
              PROSECUTION: And you were never present when this
              conversation occurred; correct?

              WITNESS: Not that I can recall.

              PROSECUTION: So you don’t know if it occurred or didn’t
              occur?

              WITNESS: Yes.

              PROSECUTION: And you don’t know, if it did occur, what
              was said –

              WITNESS: Yes.

              PROSECUTION: – correct?

              WITNESS: Exactly.

[¶16] Similarly, Ms. McNaughton did not testify that any of the witnesses had agreed to
give untruthful testimony. She stated that “The conversations were about, like, . . .
[‘]Well, I think you should say this; and instead of saying that, we should say this instead,
so that all of our stories go together,[’] and stuff like that.” On cross-examination,
however, she stated that “I don’t believe [Samson] told anyone to change their stories. I
think it was more like he was coercing them or saying it would be better if you said it this
way or that way; not completely, [‘]Hey, don’t say that, say this[.’]”

[¶17] Further, the testimony of Mr. Powley and Ms. McNaughton was undermined by
their inability to give a precise account of the alleged conversations between Samson,
Mr. Cantleberry, and Ms. Ayers, as well as their admissions of drug use during the
relevant period. Both Mr. Powley and Ms. McNaughton testified that “everyone in the
house,” themselves included, was using methamphetamine during the time they resided at
Samson’s house, and that their drug use inhibited their ability to perceive and remember
the events in question. Additionally, Ms. McNaughton stated that she could tell when
people are lying because she was an experienced liar herself: “I’ve kind of been a liar my
whole life. You know, I’ve lied a lot in my life. And I’m a girl. So you can kind of tell
when people are bullshitting.” With respect to the issue of witness credibility, the district
court concluded as follows:

                     I find that there are some apparent credibility issues
              with the testimony of the witnesses Powley and McNaughton
              that, in my mind, affects the weight of that testimony in




                                             5
              evaluating whether the testimony would probably have
              produced an acquittal if a new trial were granted.

                      As far as Mr. Powley, I would note that he testified
              that he did not have a good memory or recollection. He
              testified that he was using methamphetamine during the
              relevant time period and was not thinking straight. He also
              did not have much recollection of the specifics other than
              Samson had – Emerson talking with others about getting their
              story straight.

                      As far as Ms. McNaughton, she testified that she was
              under the influence of drugs, as well, during the relevant time
              period, including Spice and methamphetamine.                There
              obviously is a lot of hearsay that was testified to relating to
              the basis for what she had to testify to. I would note that in
              Exhibit A, which was a recitation of her statements to the
              detective that the Court had previously received, she was
              equivocal.     Her statements and testimony differ from
              Mr. Powley’s statements and testimony. There are also
              differences between her statement to the detective and her
              testimony in court.       And perhaps most glaringly, she
              volunteered during her testimony that she’s essentially been a
              liar her whole life and has lied to a lot of different people.

We defer to the district court’s assessment of witness credibility. Allgier v. State, 2015
WY 137, ¶ 22, 358 P.3d 1271, 1278 (Wyo. 2015).

[¶18] Finally, considering that the testimony of Mr. Powley and Ms. McNaughton did
not indicate that Samson, Mr. Cantleberry, or Ms. Ayers planned to testify falsely at trial,
we agree with the district court’s determination that the evidence could only have been
used in an attempt to impeach the witnesses. As noted by the district court, we have held
that a motion for a new trial on the grounds of newly discovered evidence shall not be
granted where the evidence is solely to impeach a witness:

              As recognized and admitted by Terry, this court has long
              established that a motion for new trial on the grounds of
              newly discovered evidence shall not be granted where the
              evidence is solely to impeach a witness.

                     The newly discovered evidence must be more than
                     impeaching or cumulative; it must be material to the
                     issues involved; it must be such as would probably



                                             6
                     produce an acquittal; and a new trial is not warranted
                     by evidence which, with reasonable diligence, could
                     have been discovered and produced at trial.

Terry, ¶ 19, 56 P.3d at 642 (internal citation omitted).

[¶19] Appellant contends this case is analogous to Keser v. State, 737 P.2d 756 (Wyo.
1987), where the Court reversed the denial of a motion for a new trial when the newly
discovered evidence suggested that an eyewitness was not at the scene of the crime. This
Court found that the evidence was not merely relevant for impeachment purposes:

                     There is a difference between evidence which merely
              goes to credibility or impeaches a witness by calling his
              credibility into question and evidence which is offered to
              show an “eyewitness” to a crime gave false identification
              testimony. The evidence offered by appellant in this case was
              impeaching; it also falls into the latter category, as it was
              offered to show that Allan Franklin, the only witness who
              claimed to see defendant commit the crime, was not present at
              the scene of the crime. Unlike the impeachment evidence
              offered in Grable v. State[, 664 P.2d 531 (Wyo. 1983)] and
              Salaz v. State, [561 P.2d 238 (Wyo. 1977)] this evidence is so
              material that it would probably produce a different verdict.
              Thus, the district court was not correct in ruling that
              appellant’s motion and affidavits failed to support any ground
              upon which a new trial may be granted.

Keser, 737 P.2d at 760. According to Appellant, the newly discovered evidence in this
case “was not useful solely to impeach, but instead, was material to the issue of whether
the eyewitnesses to the crime were giving false testimony, just as in Keser.” As indicated
above, however, Mr. Powley and Ms. McNaughton did not testify to any facts that were
different from the factual account provided by the witnesses at trial. Unlike Keser, the
newly discovered testimony in the present case did not allege that the trial witnesses had
testified falsely.

[¶20] In sum, neither Mr. Powley nor Ms. McNaughton could state that any of the
witnesses had conspired to give untruthful testimony. The district court correctly
determined that their testimony could only have been used as impeachment evidence.
Further, the district court determined that Mr. Powley’s and Ms. McNaughton’s
credibility was undermined by their inability to provide a precise account of the alleged
conversations between Samson, Mr. Cantleberry, and Ms. Ayers, as well as their
admissions of drug use during the period in question. We defer to that assessment.




                                              7
Accordingly, for the reasons set forth above, we find no abuse of discretion in the district
court’s decision denying Appellant’s motion for a new trial.

[¶21] Affirmed.




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