               IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 92

                                                         APRIL TERM, A.D. 2015

                                                                  July 16, 2015

ALLEN JOSEPH COLLINS,

Appellant
(Defendant),

v.                                                   S-14-0285

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                   Appeal from the District Court of Sweetwater County
                        The Honorable Richard L. Lavery, Judge

Representing Appellant:
      Office of the 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; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.


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 Allen Joseph Collins guilty of one count of second degree sexual
abuse of a minor. He appeals his conviction, claiming the prosecutor committed
misconduct in several instances during closing arguments. We conclude Mr. Collins
failed to show he was prejudiced by any prosecutorial misconduct and affirm the
conviction.

                                           ISSUE

[¶2] The issue for our determination is:

       Whether prosecutorial misconduct occurred when in closing and rebuttal argument
the prosecutor commented on defense counsel’s failure to produce certain evidence and
the fact that Mr. Collins did not confess, gave the jury a choice between finding either
that the two child witnesses had lied or Mr. Collins was guilty, and referred to one of the
child witnesses as a hero.

                                           FACTS

[¶3] In the summer of 2013, JP and his friend CT, both nine years old, were playing
outside the apartment complex where they lived in Rock Springs, Wyoming. JP ran up
the stairs to his apartment and told his mother that he had seen Mr. Collins, who lived in
the same complex, put his hand down the front of CT’s shirt. JP’s mother found CT on
the stairs outside their apartment and asked her if what JP had said was true. CT said it
was. JP’s mother told CT she needed to tell her mother. Later, when JP’s mother learned
that CT had not told her mother, she contacted CT’s mother and told her what the
children had reported. CT’s mother talked with CT and later JP and both children
repeated that Mr. Collins had put his hand down the front of CT’s shirt. CT’s mother
contacted the Rock Springs police department. A Wyoming Department of Family
Services (DFS) employee conducted a forensic interview with CT. During the interview,
CT reiterated her earlier statement. Mr. Collins was arrested and charged with one count
of second degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-315(b)
(LexisNexis 2013).

[¶4] At trial, the State presented the testimony of CT and her mother, JP and his mother,
a Ph.D. psychologist with expertise in treating adolescent victims of child abuse, and the
police detective who interviewed JP and Mr. Collins. JP’s mother testified about her son
reporting to her what he had seen and her subsequent conversations with CT and CT’s
mother. JP testified that he saw Mr. Collins put his hand down CT’s shirt and Mr.
Collins was smiling as he did so. CT testified Mr. Collins put his hand down her shirt
and squeezed her breast. She also testified Mr. Collins had done this to her between ten


                                             1
and twenty times. Rock Springs police detective Clay Jarvie testified he interviewed JP
and JP confirmed he had seen Mr. Collins put his hand down CT’s shirt.

[¶5] Detective Jarvie also testified about his interview with Mr. Collins. During the
testimony, the State played the tape recording of the interview. Several times during the
interview, Mr. Collins denied putting his hand down CT’s shirt. He said if it happened it
was unintentional or “a freaking accident.” Late in the interview, Detective Jarvie told
Mr. Collins a story about a time when he personally had a lapse in judgment. After
hearing the detective’s story, Mr. Collins asked what would happen if he said he had
experienced a lapse in judgment.

[¶6] Also during Detective Jarvie’s testimony, the State played the tape recording of a
telephone call Mr. Collins made to his daughter while he was in jail. During the
conversation, his daughter asked what had happened. Mr. Collins responded:

                    Well, I’ll tell you. I’ve been doing everything right
             and everything. These kids were down in front of my place,
             making a mess, and I told them to get going, get going home,
             you know, and stuff, and –
             ....
                    --I kind of touched the one a little bit, she’s only nine
             years old, up by the chest. Didn’t mean to. She went home –
             ....
                    --and tells her mother. Well, they called the cops and
             got me for that shit.

[¶7] Through the State’s witnesses, the defense attempted to show the investigation was
incomplete and Detective Jarvie coerced Mr. Collins into making incriminating
statements during the interview. The defense also attempted to show the DFS interview
of CT was handled improperly and CT was coached into saying Mr. Collins had touched
her breast between ten and twenty times. Alternatively, the defense attempted to show
that if touching did occur, it was accidental and not for the purpose of causing sexual
arousal, gratification or abuse.

[¶8] After the State rested, the defense moved for a judgment of acquittal, which the
district court took under advisement. The defense then rested without putting on any
evidence. The jury found Mr. Collins guilty of second degree sexual abuse of a minor.
Mr. Collins filed a motion for judgment of acquittal and a new trial. The district court
denied the motion and sentenced Mr. Collins to serve thirteen to fifteen years in prison.
Mr. Collins appealed.

                              STANDARD OF REVIEW


                                            2
[¶9] Mr. Collins contends prosecutorial misconduct occurred in four instances. First, he
claims the prosecutor improperly commented in closing argument that defense counsel
had failed to produce the transcript of the DFS interview of CT. Defense counsel
objected to the prosecutor’s comments at the time and those comments were the basis for
the motion for new trial. We, therefore, review the district court’s rulings on the
objection and motion for an abuse of discretion. Willoughby v. State, 2011 WY 92, ¶ 8,
253 P.3d 157, 161 (Wyo. 2011). An abuse of discretion occurs when the district court
could not have reasonably concluded as it did. Id.

[¶10] Defense counsel did not object when the other three instances of alleged
prosecutorial misconduct occurred. We, therefore, review for plain error. Fennell v.
State, 2015 WY 67, ¶ 23, __ P.3d __ (Wyo. 2015), citing 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.

                                            DISCUSSION

    1. Comments on evidence the defense did not produce.

[¶11] During the DFS interview, CT told the forensic interviewer that Mr. Collins put his
hand inside her shirt twice—the first time she met him and then again the time JP
witnessed it. The interviewer then asked, “Do you think it’s happened more than five
times?” 1 The interview transcript did not indicate whether CT answered the question.
The interviewer continued, “More than ten times? Is that a yes? Okay. How about more
than 20 times? No? So maybe somewhere between 10 and 20 times?”

[¶12] On direct examination, the State’s expert testified that children generally have
difficulty articulating the number of times an event occurred and, rather than saying
something happened “x” number of times, they are more likely to say it happened a lot.
The expert testified that forensic interviewers are trained not to ask a child how many
times something happened. On cross-examination, the expert testified that a forensic
examiner would want to stay away from questions like those the interviewer asked CT.
Later in the trial, defense counsel used the forensic interview transcript during cross-
examination of CT to show that the interviewer asked the sort of questions the State’s
expert said should not be asked. Defense counsel also used the transcript to show that CT
did not say Mr. Collins touched her breast between ten and twenty times; rather, the
interviewer asked if that was so and CT merely responded, “Yes.” Additionally, he used

1
 The actual interview transcript was not introduced as an exhibit at trial and is not part of the record on
appeal. Defense counsel read from the transcript on cross-examination of CT to refresh her recollection
of the interview. Our description of the interview questions and answers is taken from the trial transcript.
                                                     3
the transcript to show CT’s testimony that Mr. Collins put his hand “down” her shirt was
inconsistent with a statement she made during the interview that he put his hand “up” her
shirt.

[¶13] In his closing argument, defense counsel said:

             [CT] goes to the Family Justice Center where she’s
             interviewed by [DFS], and you heard from the State’s own
             expert that the big question she asked was completely
             inappropriate. It was suggestive, it could possibly taint, and
             that information is what the police and the State then use to
             go after [Mr. Collins].
                    Not once did [CT] ever say that this happened 10 to 20
             times until she took the stand. Not in any police interview,
             not in … the forensic child interview, never did she say that.
                    The specific question from [DFS] that I posed to [the
             State’s expert], she says, “Uhm, do you think it happened
             more than five times?” No answer. “More than ten times?”
             And she says, “Is that a yes?” She’s not even getting any
             verbal answer. There’s some sort of nonverbal body
             communication. “Okay. How about more than 20 times?”
             Again, there’s no answer. She says, “No?” She says, “Okay.
             So somewhere between 10 and 20 times.” That is entirely the
             DFS caseworker. Not once does [CT] have to actually say …
             any of that.
                    The only thing [CT] says in that interview is two
             times. Two specific times. The very first time she met [Mr.
             Collins], and the very last time she met [him]. Nothing in
             between. She has said more than once. Is two times more
             than once? Yes. Absolutely.
                    Does [DFS] get any details in the interview? Very
             few. … All those details came from – the minimal details we
             have came from the forensic interview.
                    ....
                    I think the State will focus on this 10 to 20 times
             thinking that we will tie that to make this event more
             believable, that it actually happened. The only person prior to
             court that ever said that was [the DFS interviewer]… [CT]
             never said that. Those were numbers given to her, they were
             put into her head, and she accepted them.
                    [The State’s expert] talked about suggestibility. I think
             the State would like to tie in 10 to 20 events into a traumatic


                                            4
             bonding so that you can understand why she would keep
             going back to Mr. Collins.

[¶14] In rebuttal, the prosecutor responded:

             There’s been a lot of talk from [defense counsel] about this
             interview that [DFS] did and repeatedly talked about how
             poorly [it was done] and how poorly the questions were asked
             and what the responses were. You don’t have that interview.
             You don’t know what was said. [Defense counsel] said that
             [CT] said the hand went up the shirt. You don’t know what
             was in that interview, and if [defense counsel] thought it was
             such a terrible interview and it was done poorly, then why
             didn’t he show it to you?

[¶15] Defense counsel objected. The district court cautioned the prosecutor to be
careful, and the prosecutor moved on to a different topic. After the verdict, the defense
filed a motion for new trial on the basis of the prosecutor’s comment that defense counsel
could have introduced the interview transcript. The district court denied the motion,
ruling that the comment did not impermissibly shift the burden of proof to Mr. Collins
and, even if it did, Mr. Collins had failed to show prejudice.

[¶16] On appeal, Mr. Collins asserts the prosecutor’s comments concerning his failure to
produce the transcript of the forensic interview improperly shifted the burden to the
defense to prove his innocence rather than requiring the State to prove his guilt. We have
repeatedly said that prosecutors should not suggest a defendant carries any burden of
proof. Schafer v. State, 2008 WY 149, ¶ 26, 197 P.3d 1247, 1252 (Wyo. 2008). In Bland
v. State, 803 P.2d 856, 862 (Wyo. 1990), the prosecutor commented in rebuttal that the
defendant had the same right as the prosecution to subpoena a witness for trial. The
district court overruled defense counsel’s objection to the comment. On appeal, this
Court concluded the comment was improper and the objection should have been
sustained. We said, “The State has the burden of proof, and whether or not the defense
subpoenaed a witness is irrelevant.”

[¶17] In Schafer, ¶ 25, 197 P.3d at 1252, the prosecutor told the jury in closing argument
that “if there was some explanation for it, [the defense] could have put it on.” Defense
counsel objected and the district court admonished the prosecutor and ordered the
statement to be stricken from the record. Id. The district court also reminded the jury of
the instruction given previously that the defendant had no burden to present any evidence
and instructed the jury to disregard any portions of the argument suggesting otherwise.
Id. The defense moved for a new trial based upon the prosecutor’s improper statement.
The district court denied the motion. On appeal, the defense asserted the district court
abused its discretion in denying the new trial motion. While reaffirming the principle

                                               5
that it is error for a prosecutor to suggest 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., ¶ 26, 197 P.3d at 1252. Mr. Collins’ case is, of course,
distinguishable from Schafer because, although the district court cautioned the prosecutor
about her statement, it did not order the statement to be stricken, remind the jury that Mr.
Collins did not have the burden of proof or instruct the jury to disregard the statement.

[¶18] In Seymore v. State, 2007 WY 32, ¶ 18, 152 P.3d 401, 407-08 (Wyo. 2007)
(abrogated on other grounds by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo. 2008),
the prosecutor told the jury during voir dire that it was his job to present the evidence
tending to show the defendant was guilty and defense counsel’s job to present the
evidence tending to show his client was not guilty. He continued:

              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.

Id., 152 P.3d at 408. Then, in closing argument, the prosecutor used a demonstrative
exhibit to show the evidence he believed should have been brought before the jury by the
defense. We held the prosecutor’s burden shifting remarks were improper and prejudicial
when combined with numerous other prosecutorial transgressions and remanded the case
to district court for a new trial. Id., ¶ 22, 152 P.3d at 410-411.

[¶19] In the present case, the prosecutor’s statements were improper for a couple of
reasons. First, the prosecutor’s statement that the jury did not have the interview and did
not know what was said suggested that defense counsel did not accurately quote the
interview. Again, the interview transcript is not part of the appellate record; however, if
defense counsel inaccurately quoted it during witness examination or in closing
argument, we presume the prosecution would have objected or presented evidence
showing the interview questions were not as defense counsel represented. Nothing in the
record before us suggests defense counsel inaccurately quoted the interview. In fact, the
district court found the prosecutor’s statement that the jury did not know what was said to
be incorrect, noting that defense counsel read extensively from the transcript. To suggest
that defense counsel did not accurately read the transcript, particularly on rebuttal when
defense counsel had no opportunity to respond, was improper.

[¶20] We find the prosecutor’s statement that if defense counsel thought the interview
was so terrible he should have shown it to the jury equally improper. Not only did the
statement suggest Mr. Collins had the burden of presenting evidence, it also implied the
transcript would have been admitted if only defense counsel had attempted to introduce
it. The comment did not inform the jury that the district court could have excluded the

                                             6
transcript upon finding it lacked foundation, was hearsay or was more prejudicial than
probative. Other than the portions read by defense counsel, we do not know what was in
the interview. The prosecutor, however, having listed it as an exhibit in her pre-trial
memoranda, presumably did know what was in it. With that knowledge, she decided not
to introduce it at trial. To the extent her decision was based on a determination that it
was not admissible, it was not fair to suggest to the jury, particularly during rebuttal, that
the defense could have shown it to the jury.

[¶21] When defense counsel objected to the prosecutor’s statement, the district court
asked counsel to approach the bench. Outside the jury’s hearing, defense counsel made
his objection. The prosecutor responded that her comment was a permissible response to
defense counsel’s statements about the transcript in his closing argument. The district
court cautioned the prosecutor that she needed “to be really careful in that regard.” The
prosecutor said she was finished with her comments about the transcript. Defense
counsel did not ask the court to strike the comments or instruct the jury to disregard them.
The prosecutor then moved on to a different topic.

[¶22] When the defense filed its motion for new trial on the basis of the prosecutor’s
comments, the district court denied the motion, ruling the comments were not improper
(although they “tread[] perilously close to unsafe ground”); even if they were improper,
Mr. Collins had not shown prejudice; any prejudice he might have been able to show was
mitigated by the jury instructions; and Mr. Collins essentially waived his right to
complain about the comments when he failed to ask for a limiting instruction. Although
we disagree with the district court’s finding that the comments were not improper, we
find the district court’s other rulings to be reasonable. The jury heard all of the questions,
testimony and argument concerning the interview, including the portions read by defense
counsel. The jury was instructed that the law never imposes upon a defendant in a
criminal case the burden of producing any evidence; rather, the State always has the
burden to prove the defendant’s guilt beyond a reasonable doubt as to each element of the
offense. The jury was also instructed that the statements of counsel are not evidence. We
presume the jury followed the court's instructions. Haynes v. State, 2008 WY 75, ¶ 22,
186 P.3d 1204, 1209 (Wyo. 2008).

[¶23] Additionally, whether or not the DFS interview was improperly conducted, the
jury heard the testimony of CT that Mr. Collins put his hand inside her shirt twice and
knew that testimony was consistent with her interview statements. The jury also heard
the testimony of CT’s mother, JP and JP’s mother. And the jury heard the statements of
Mr. Collins in the police interview and the telephone call. Whether or not the jury
believed CT was coached into saying it happened ten or twenty times, there was ample
evidence from which it could find Mr. Collins put his hand inside CT’s shirt once and
was guilty of one count of sexual abuse of a minor. The district court did not abuse its
discretion in finding Mr. Collins failed to show the prosecutor’s comments in rebuttal
concerning the interview caused prejudice.

                                              7
    2. Comments on the lack of a confession.

[¶24] Mr. Collins contends prosecutorial misconduct occurred when the prosecutor
commented in her rebuttal closing argument on the fact that he did not confess to the
crime charged. He asserts the comments were an improper comment on his right to
remain silent. The Fourteenth Amendment to the United States Constitution and Wyo.
Const. art. 1, § 11 provide that no person shall be compelled to testify against himself in
any criminal case…” Tortolito v. State, 901 P.2d 387, 389 (Wyo. 1991). A prosecutor’s
use of a defendant's silence to infer guilt is constitutionally prohibited. Id. at 390. In
analyzing right-to-silence cases, we consider the entire context in which the statements
were made. Spinner v. State, 2003 WY 106, ¶ 19, 75 P.3d 1016, 102 (Wyo. 2003).

[¶25] To place the comment challenged here in context, we first quote from the
prosecutor’s closing argument.

                       And you heard from Detective Jarvie. Detective Jarvie
                interviewed [Mr. Collins], and [Mr. Collins] did not admit to
                doing something intentional. He didn’t flat out deny doing
                something, but if he did it was unintentional.
                ....
                       You heard from [Mr. Collins] in the recordings, … and
                [he] first said, if he did, it was, quote, “unintentional”, an
                accident, … or he also said at one point, what if it was a lapse
                of judgment? He never actually admits that he was touching
                [CT] in the interview, but he says a lot of things that make
                you wonder why, why isn’t he just flat-out denying it? 2
2
  The prosecutor’s statement that Mr. Collins did not deny putting his hand in CT’s shirt misrepresented
what he said during the interview. In fact, the following exchanges occurred during the interview:

        Jarvie: … Did your hand ever go down [CT’s shirt] at all?
        Collins: No, I don’t do shit like that.
        Jarvie: You don’t do shit like that?
        Collins: Nope.
        …
        Jarvie: … Because she said it happened between 10 and 20 times.
        Collins: That’s bullshit.
        …
        Jarvie: But you don’t remember if it specifically happened –
        Collins: No.
        Jarvie: -- just that it’s a possibility?
        Collins: No.
        Jarvie: Okay. How do you want things to go forward from here?
        Collins: Well, what are you driving at?
        Jarvie: I’m asking you.
                                                   8
                     If he’s being asked about a lapse of judgment, what
              would an ordinary person do in that situation? Being asked if
              they put their hand down a nine-year-old girl’s tank top and
              touched her breasts. Would it not be, that never happened?
              Would it be, well, what if it was a lapse of judgment?

(Footnote added.)

[¶26] Defense counsel responded in his closing:

                     The interview with [Mr. Collins] done by Detective
              Jarvie, why would he not just deny it? Life experience. I’m
              guessing most of us have been pulled over by a police officer.
              Do you ever get pulled over by a police officer and sit there
              and wonder, what did I do, and not be sure why you were
              pulled over? Does talking to a police officer make you
              nervous, your heart jump? You get nervous.
                     [Mr. Collins] was in that police interrogation room for
              90 minutes. … He got tired of Detective Jarvie trying to
              build rapport with him. He just cut to the chase, what’s all
              this crap about? He was tired of it. He … didn’t know. He
              wanted to find out.
                     Detective Jarvie, he’s very good at what he does. …
              He lies, he minimizes, he distorts the facts, and why does he
              do those things? To try and get him to say something that
              deep down he doesn’t believe and he won’t admit. That’s the
              only chance he has. . . .
                     You can place yourself there. If you’re in a room with
              Detective Jarvie and he’s telling you that he has two
              witnesses that saw you do something to a – this girl, and
              you’re wracking your brain, and you can’t think of it and you
              can’t remember it, are you going to doubt yourself? You’re
              like, man, two witnesses? What did I do? Is it possible?
              Yeah, it’s possible I guess, but I don’t remember it. If I did it,
              I don’t remember it. If I did it, it was an accident. It wasn’t

       Collins: What do you mean how do I want things to go forward? I didn’t do anything. If
       I did, like you say, with your witness, it was pure accidental. There was no intentional
       shit like that.

Mr. Collins does not challenge the prosecutor’s misrepresentation on appeal. We presume the jury
listened to the evidence and the instruction that the attorneys’ arguments were not evidence and
disregarded the prosecutor’s misstatements.


                                                  9
                anything intentional. Is [Mr. Collins] the only one that would
                react like that?
                        But Detective Jarvie tries over and over again. He
                wants the confession. Absolutely, it’s manipulation, it’s
                coercion.
                ....
                        I think the State likes the sentence in the interview
                where [Mr. Collins] says, what if it was a lapse in judgment?
                Watch the tape. Detective Jarvie … talks for a bit. He talks
                about his own lapse of judgment[], his own mistake, and [Mr.
                Collins] sits and thinks, would it be better just to admit
                something that I haven’t done? So he asks the question, what
                if it was a lapse of judgment? What’s … the plan? And of
                course [Detective Jarvie] recognizes that. He’s like, I don’t
                want you just to tell me something that’s not true. He knows
                … that’s not a confession.

[¶27] Then, in rebuttal, the prosecutor said:

                … what [defense counsel] is telling you, in essence, if you do
                not have a confession, if you do not have someone saying, the
                Defendant, yes, I put my hand down her shirt, yes, the reason
                I put my hand down her shirt was for sexual arousal,
                gratification, or abuse, you cannot convict, and that is not
                true. You do not have to have a confession.
                        How many times do you think we have confessions in
                these cases? How many times do you think people are going
                to admit to doing something – doing something like that?
                Because that’s not something that sounds good. It’s not
                something that someone is going to want to tell a police
                officer, it’s not something that was told to Detective Jarvie. If
                you do not have a confession, can you convict in these cases?
                Yes, you can.

[¶28] The issue Mr. Collins presents on appeal concerns only the prosecutor’s comments
in her rebuttal argument about the fact that he did not confess. 3 Defense counsel did not

3
  Initially, we were more concerned with the prosecutor’s opening remarks to her closing argument, in
which she stated, “[Mr. Collins] didn’t flat-out deny doing something” and “he says a lot of things that
make you wonder why, why isn’t he just flat-out denying it?” Not only do these remarks misrepresent
what occurred in the interview, they struck this Court as implicating Mr. Collins’ right to remain silent.
However, upon reviewing our precedent, we are satisfied the remarks were not a comment upon Mr.
Collin's right to remain silent, but were instead comments on the statements he did make to Detective
Jarvie. See Teniente v. State, 2007 WY 165, ¶ 24, 169 P.3d 512, 523-524 (Wyo. 2007) (prosecutor’s
                                                   10
object to the prosecutor’s comments and so we review Mr. Collins’ claim for plain error.
The challenged comment clearly appears in the record and so we consider whether it
violated a clear and unequivocal rule of law. In Tortolito, 901 P.2d at 391, a robbery
case, the defendant remained silent when police asked whether he took the money. In his
opening statement at trial, the prosecutor mentioned the defendant’s silence in the face of
the police questions. Id. During direct examination of the State’s witness, the prosecutor
asked questions eliciting testimony that in response to police questioning the defendant
did not say a word, just stood there and did not respond. Id. In his closing argument, the
prosecutor characterized the defendant’s silence as an admission. Id. This Court held the
prosecutor’s use of the defendant’s constitutionally protected right to remain silent in the
face of the officers’ questions was impermissible comment on that right. Id.

[¶29] Spinner, 2003 WY 106, 75 P.3d 1016, involved a battery against a household
member. When police arrived at the scene, they saw an individual approaching and
asked him his name and where he lived. Id., ¶ 14, 75 P.3d at 1021. The man did not
answer. He was subsequently identified as the perpetrator and arrested. At trial, the
prosecutor repeatedly questioned witnesses about the defendant’s refusal to answer the
police officer’s questions and commented on his silence during opening statement and
closing argument. Id., ¶¶ 14, 15 and 17, 75 P.3d at 1021-1023. This Court held that the
prosecutor’s use of the defendant’s silence in the face of police questioning constituted
impermissible comment on his right to remain silent.

[¶30] In Guy v. State, 2008 WY 56, ¶ 12, 184 P.3d 687, 693 (Wyo. 2008), an attempted
second degree murder case, the defendant asserted the following comments made by the
prosecutor in closing argument were improper:

                [Y]ou’ve already been told by the judge the law says that you
                can infer the existence of malice and an attempt to kill. Why
                do we tell you that? Because we’re not mind readers. And
                we rarely have the luxury of bringing you cases where
                everything was on video tape. After it happened, everybody
                sat down, including the perpetrators, confessed, told us what
                they were thinking clearly, enunciated their intent, and
                elaborated on what they hoped had happened. It hasn't
                happened to me yet. I have been doing this long enough to



statements, when taken in context, did not implicate defendant’s right to silence; prosecutor was pointing
out what defendant had said in police interview, not his failure to speak); Carothers v. State, 2008 WY
58, ¶ 16, 185 P.3d 1, 12 (Wyo. 2008) (prosecutor’s comment was not a comment upon the defendant’s
right to remain silent, but was a comment about the contents of the statement that he gave to police).




                                                   11
              know that if it was going to happen, I think I would know
              about it. So we get back to inference.

The defendant argued the prosecutor’s comment that malice could be inferred because
confessions are rare constituted an impermissible comment on his right to remain silent.
Id., ¶ 13, 184 P.3d at 693. This Court rejected the claim, finding instead that the
argument was a permissible attempt to explain to the jury that it could infer the
defendant’s state of mind from the surrounding circumstances. Id. We did not find the
prosecutor’s comment about confessions being rare to be a comment on the defendant’s
right to silence.

[¶31] In Tortolito and Spinner, the prosecutors asked questions of witnesses and
commented directly in opening statement and closing argument on the defendants’
silence. In Guy, the prosecutor informed the jury that a confession was not required for a
guilty verdict. In the present case, it is clear that both parties commented on the fact that
Mr. Collins did not admit to the charge. The prosecutor, while acknowledging that fact,
attempted to persuade the jury that it could infer Mr. Collins’ guilt from his question
about what would happen if he said he had a lapse of judgment. Defense counsel argued
Mr. Collins’ question was not an admission of anything but a reflection of his
nervousness and uncertainty upon being confronted by a police detective who said two
witnesses had seen him put his hand inside CT’s shirt. Defense counsel also argued the
detective’s objective was to get Mr. Collins to confess, he coerced Mr. Collins into
making an incriminating statement and he ended the interview when he felt he had a
statement implicating Mr. Collins. On rebuttal, the prosecutor attempted to diffuse the
argument that Mr. Collins’ question was not a confession by saying a confession is not
necessary to convict and it is rare to have a confession in these kinds of cases.

[¶32] Given the context in which the prosecutor made the challenged statements, we
conclude they did not implicate Mr. Collins’ right to remain silent. As in Guy, the
prosecutor’s comments merely informed the jury a confession was not required to convict
a defendant. Therefore, although the comments clearly appear in the record, we hold
they did not violate a clear and unequivocal rule of law and Mr. Collins has not
established plain error.

   3. Statement that the jury had a choice between finding the child witnesses to be
      liars or finding Mr. Collins guilty.

[¶33] After defense counsel’s closing argument, the prosecutor began her rebuttal as
follows:

                     There’s a choice that you have to make in this case,
              and the first thing I want to talk to you about is you have
              options. You have options of the way to view this.

                                             12
                      One of the ways to view this is, [JP] lied when he told
              his mom, he lied when he told Detective Jarvie, he got on the
              stand and he lied. CT lied when she told [JP’s mother], she
              lied when she told her mom, she lied when she was in the
              [DFS] interview, she lied on the stand. Detective Jarvie
              coerced the Defendant into saying things, and there was a
              break in the jail recording where there were a couple of words
              left out that were “they said.”

Mr. Collins contends it was plain error for the prosecutor to tell the jury it had the choice
between finding him guilty or concluding the child witnesses had lied. The challenged
comment clearly appears in the record and the first prong of the plain error test is
satisfied. The question is whether the comment violated a clear and unequivocal rule of
law.

[¶34] Wyoming law is clear that a prosecutor may not elicit opinions concerning witness
credibility or personally vouch for the credibility of a witness. Fennell, ¶ 31, ___ P.3d at
___. The statements challenged here did neither. In the context of closing argument, it
has long been the rule in Wyoming that it is not reversible error for a prosecutor to argue
that a defendant is a liar when the evidence supports a reasonable inference that such is in
fact the case. Jensen v. State, 2005 WY 85, ¶ 19, 116 P.3d 1088, 1096 (Wyo. 2005);
Beaugureau v. State, 2002 WY 160, ¶ 14, 56 P.3d 626, 632 (Wyo. 2002); Barnes v. State,
642 P.2d 1263, 1266 (Wyo. 1982). Particularly where, as here, the prosecutor makes it
clear that the choice is in the hands of the jury, the argument is not improper. Jensen, ¶
19, 116 P.3d at 1095; Beaugureau, ¶ 14, 56 P.3d at 632; Barela, 787 P.2d at 84. The
prosecutor’s comments in Mr. Collins’ case did not violate a clear and unequivocal rule
of law.

   4. Statement that JP was a “hero.”

[¶35] Mr. Collins’ final claim of prosecutorial misconduct involves the prosecutor’s
characterization of JP as a “hero.” During her closing argument, the prosecutor said:

              What I want to end with right now is there were two men
              that were there when this happened. That was the Defendant
              and that was [JP]. [JP] was nine. The defendant was 62. If
              there was anyone that was supposed to be protecting a nine-
              year-old girl, it should have been the Defendant. The
              Defendant should have known something was wrong.
              Instead, there was a nine-year-old hero, who was a boy, that
              had to protect a nine-year-old girl, and he did.

Defense counsel did not object.

                                             13
[¶36] The alleged error clearly appears in the record and the question is whether the
comment violated a clear and unequivocal rule of law. Wyoming law is clear that a
prosecutor may not personally vouch for the credibility of the State’s witnesses. Fennell,
¶ 31, ___ P.3d at ___, citing Dysthe v. State, 2003 WY 20, ¶ 29, 63 P.3d 875, 886 (Wyo.
2003). In Fennell, we held that the prosecutor improperly vouched for the credibility of
the State’s witnesses when he told the jury “we know” the defendant delivered cocaine,
i.e. is guilty, because the detectives “did their job incredibly well” and were “incredibly
good at their job.” Id., ¶ 31, ___ P.3d at ___. We contrasted those remarks with a
comment we held was not improper in Burton v. State, 2002 WY 71, ¶ 32, 46 P.3d 309,
317 (Wyo. 2002). In Burton, ¶ 33, 46 P.3d at 317, the prosecutor said the witnesses were
“blatantly honest” in admitting to the jury that they were doing drugs. We said:

             The prosecutor’s comment in Burton referenced testimony
             from witnesses who had admitted to the jury that they were
             doing drugs. In that context, the prosecutor was not
             confirming as a result of his own experience that they were
             blatantly honest; he was pointing out that the witnesses had
             been forthright, something the jury itself had experienced
             when they heard the witnesses’ testimony. In the present
             case, the prosecutor’s comments involved his own opinion or
             experience of the incredible job the agents did, something the
             jury had not experienced and one of the very questions the
             jury had to resolve for itself.

Fennell, ¶ 43, ___ P.3d at ___. We concluded the prosecutor in Fennell had asserted “his
belief based on his personal opinion or experience that the agents did an incredible job,
thus creating the risk that the jurors would view him as an authority whose knowledge
and opinions carried greater weight than their own.” Id.

[¶37] In Teniente, ¶ 32, 169 P.3d at 525 (Wyo. 2007), the prosecutor made the following
comments to the jury in closing argument:

             [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.

                                            14
                    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.

On appeal, the defendant asserted the prosecutor improperly vouched for the witness’s
credibility when he made these comments. We concluded that rather than vouching, the
prosecutor had drawn reasonable inferences from the evidence presented at trial. Id., ¶
33, 169 P.3d at 525.

[¶38] The prosecutor’s comments in the present case are more like those in Teniente and
Burton than those in Fennell. As in Teniente and Burton, the prosecutor in Mr. Collins’
case made a reasonable inference about a witness who appeared and testified at trial. The
inference was not based on her own personal experience but on the fact that the witness
had reported what he had seen and then had come before the jury to report it again.
Unlike the comments in Fennell, the prosecutor’s characterization of JP as a hero did not
create the perception that the prosecutor had special knowledge of or experience with JP
beyond what the jury had from hearing the testimony. Mr. Collins has failed to show that
the prosecutor’s comment violated a clear and unequivocal rule of law.

[¶39] We affirm Mr. Collins’ conviction.




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