               IN THE SUPREME COURT, STATE OF WYOMING

                              2017 WY 3

                                          OCTOBER TERM, A.D. 2016

                                                 January 11, 2017

MATTHEW SCOTT WORLEY,

Appellant
(Defendant),

v.                                          S-15-0114

THE STATE OF WYOMING,

Appellee
(Plaintiff).

MATTHEW SCOTT WORLEY,

Appellant
(Defendant),

v.                                          S-16-0082

THE STATE OF WYOMING,

Appellee
(Plaintiff).

MATTHEW SCOTT WORLEY,

Appellant
(Defendant),

v.                                          S-16-0083

THE STATE OF WYOMING,

Appellee
(Plaintiff).
                   Appeal from the District Court of Campbell County
                          The Honorable John R. Perry, 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; Christyne Martens, Senior Assistant Attorney General; Timothy
      W. Miller, Senior Assistant Attorney General. Argument by Mr. Miller.


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

[¶1] A jury convicted Matthew Scott Worley of one count of first-degree sexual assault
and one count of battery of a household member.1 On appeal, Mr. Worley claims he
received ineffective assistance of trial counsel, the prosecutor failed to disclose
information as required by Brady v. Maryland, 371 U.S. 812, 83 S. Ct. 56, 9 L. Ed. 2d 54
(1962) and the State presented insufficient evidence to sustain the battery conviction. We
affirm.

                                              ISSUES

[¶2]   Mr. Worley presents the following issues on appeal:

               I.      Was trial counsel for [Mr. Worley] ineffective when
                       he failed to challenge the credibility of the alleged
                       victim?

               II.     Did the prosecutor commit misconduct when he failed
                       to disclose exculpatory evidence relating to the
                       alleged victim?

               III.    Was there sufficient evidence to support [Mr.
                       Worley’s] conviction of battery?

                                              FACTS

[¶3] On Thanksgiving Day of 2013, Officers Ryan Mussell and Dennis Deur with the
Gillette Police Department responded to a report of a 911 hang up call. They responded
to the address in question and first made contact with Mr. Worley. Mr. Worley invited
the officers inside, and Officer Mussell interviewed Mr. Worley while Officer Deur
interviewed Mr. Worley’s wife, Rebecca Worley. Officer Mussell learned that, although
Mr. and Mrs. Worley were married, Mr. Worley did not live at the apartment with Mrs.
Worley. Mr. Worley also told Officer Mussell that he thought Mrs. Worley would claim
that Mr. Worley punched her in the face. Mr. Worley explained that he had been
drinking whiskey throughout the day and did not recall punching his wife in the face.

[¶4] Officer Deur observed cut marks on Mrs. Worley’s collarbone and noticed that her
right eye was swollen. Mrs. Worley told Officer Deur that Mr. Worley had hit her with
1
  At the time the State filed charges in this matter, battery of a household member was a crime under
Wyo. Stat. Ann. § 6-2-501(b) and (f) (Lexis Nexis 2013). In July 2014, the Wyoming legislature repealed
§ 6-2-501(f) and created a separate crime of domestic assault. See Wyo. Stat. Ann. §§ 6-2-501 and 6-2-
510 (Lexis Nexis 2015). The repeal of that portion of the statute, however, did not affect any of the
charges in Mr. Worley’s pending prosecution. Wyo. Stat. Ann. § 8-1-107 (Lexis Nexis 2015).
                                                  1
an open hand, and then, while she was performing fellatio on Mr. Worley, he told her she
was “doing it wrong” and punched her in the face. Based on Mrs. Worley’s injuries, the
officers arrested Mr. Worley for battery.

[¶5] At the police station, Mrs. Worley gave Officer Deur further information about the
events of the evening. Mrs. Worley stated that Mr. Worley forced her to perform fellatio
by saying if she did not, he would “beat her ass.” She further alleged that Mr. Worley
forced her to engage in anal sex followed by more fellatio. She said that Mr. Worley was
holding an open folding knife and told her he would kill her if she did not comply. She
also told Officer Deur that Mr. Worley had cut three moles off of her body with a pair of
scissors without her consent. Mrs. Worley explained she had fled the apartment and hid
in the basement of the building. Once she believed Mr. Worley had left the building, she
returned to her apartment and attempted to barricade the door with a coffee table, couch
and chair. However, Mr. Worley returned and forced his way back into the apartment.
Mrs. Worley tried to lock herself in the bathroom, but Mr. Worley broke his way into the
bathroom. It was then that Mrs. Worley called for law enforcement assistance.

[¶6] The State charged Mr. Worley with two counts of first-degree sexual assault (one
for fellatio and one for anal penetration), one count of aggravated assault and battery, and
one count of battery of a household member. The case proceeded to a two day jury trial.
Mrs. Worley testified about the events of that day and was extensively cross-examined
regarding her recollection. Mr. Worley also testified. He did not deny cutting a mole
from his wife’s body, striking her, or engaging in sexual conduct with her that day.
However, he testified that the behavior was consensual and that “rough sex” was not
unusual in their relationship. The State presented a cell phone video found on Mr.
Worley’s phone that showed Mr. Worley strike his wife in the face several times while
she was performing fellatio. The jury convicted Mr. Worley of one count of first-degree
sexual assault (fellatio) and battery of a household member. It acquitted him of the other
charge of first-degree sexual assault (anal penetration) and aggravated assault and battery.

[¶7] Mr. Worley timely appealed his convictions and filed a motion under Wyoming
Rule of Appellate Procedure 21, alleging that he received ineffective assistance of trial
counsel. Mr. Worley argued that his trial attorney could have done more to attack Mrs.
Worley’s credibility using evidence under Wyoming Rules of Evidence 404(b), 608(a)
and 609. Specifically, he claimed that his trial counsel did not investigate Mrs. Worley’s
previous criminal convictions, including felony convictions, or statements she made in a
neglect case involving their two children.

[¶8] Following a hearing in which the district court heard testimony from Mr. Worley’s
trial attorney, the court concluded that Mr. Worley had not established ineffective
assistance of trial counsel. The district court acknowledged that the ineffective assistance
of counsel standard required Mr. Worley to prove that counsel’s performance was
deficient and that performance was prejudicial to the outcome of his case. However, the

                                             2
court determined it did not need to evaluate whether counsel’s performance was deficient
because Mr. Worley could not prove prejudice. The district court concluded that no
amount of impeachment evidence could overcome the video of Mr. Worley repeatedly
striking his wife while she performed fellatio. Additionally, Mr. Worley testified that the
video recording was an accurate depiction of the events portrayed, giving further
credence to the video. Mr. Worley now appeals that decision and also argues that there
was prosecutorial misconduct and insufficient evidence presented at the trial.

                                      DISCUSSION

       1. Ineffective Assistance of Counsel

[¶9] Mr. Worley argues his trial counsel was ineffective in failing to conduct a
sufficient investigation into Mrs. Worley’s criminal history and some allegedly false
statements she made to the Department of Family Services in a neglect case involving
their children. He argues that had counsel conducted a more thorough investigation, he
would have discovered information that could have been used to further impeach Mrs.
Worley during her trial testimony. As mentioned above, the district court held an
evidentiary hearing under W.R.A.P. 21 and determined that Mr. Worley did not establish
ineffective assistance of trial counsel requiring a new trial. When reviewing the district
court’s decision, we utilize the following standard of review:

              Review of a trial court’s ruling on an ineffective assistance of
              counsel claim involves mixed questions of law and fact.
              Osborne [v. State, 2012 WY 123], ¶ 17, 285 P.3d [248,] 252
              [(Wyo. 2012)]. We defer to the district court’s findings of
              fact unless they are clearly erroneous. Cooper [v. State, 2014
              WY 36], ¶ 20, 319 P.3d [914,] 920 [(Wyo. 2014)], citing
              Strandlien v. State, 2007 WY 66, ¶ 20, 156 P.3d 986, 992
              (Wyo. 2007). The district court’s conclusions of law, which
              include the question of whether counsel’s conduct was
              deficient and the question of whether the appellant was
              prejudiced by that deficient conduct, are reviewed de novo.
              Strandlien, ¶ 20, 56 P.3d at 992, quoting Robinson v. State,
              2003 WY 32, ¶ 16, 64 P.3d 743, 748 (Wyo. 2003).

Griggs v. State, 2016 WY 16, ¶ 37, 367 P.3d 1108, 1124 (Wyo. 2016).

[¶10] In order to prove he received ineffective assistance of trial counsel necessitating a
new trial, Mr. Worley is required to show two things. First, he must demonstrate his trial
counsel’s performance was deficient. Id., ¶ 36, 367 P.3d at 1124. To show deficient
performance, Mr. Worley must demonstrate that “‘counsel failed to render such
assistance as would have been offered by a reasonably competent attorney.’” Id.

                                             3
(quoting Cooper, ¶ 19, 319 P.3d at 920). Second, Mr. Worley must show that he was
prejudiced by his trial counsel’s deficient performance. Id. “Prejudice is established if ‘a
reasonable probability exists that, but for counsel’s deficient performance, the outcome
would have been different.’” Id. (quoting Osborne, ¶ 19, 285 P.3d at 252). Although
Mr. Worley must affirmatively show both of these factors, courts are not required to
analyze both factors if a defendant makes an insufficient showing of one of the factors.
Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Further, courts need not analyze whether counsel’s performance was deficient before
considering whether the defendant suffered prejudice. Id.

[¶11] Here, the district court disposed of Mr. Worley’s claim on the prejudice factor and
did not consider whether trial counsel’s performance was deficient. Specifically, the
district court concluded that even if each piece of proposed evidence had been used to
further attack Mrs. Worley’s credibility, the jury would have reached the same verdict.
Based on the trial testimony, the court found Mrs. Worley’s testimony generally not
credible due to inconsistencies and failures of logic. However, the jury saw the video of
Mrs. Worley performing fellatio while being struck repeatedly by Mr. Worley, saw a
photo of the mole that Mr. Worley cut from his wife’s body, and heard Mr. Worley’s
testimony admitting to all of this behavior. The court concluded the jury members also
likely found Mrs. Worley not credible but could not disregard what they saw with their
own eyes. The jury convicted Mr. Worley of the crimes associated with the behavior
contained in the video and photo, while acquitting him of the crimes to which there was
no video or photographic evidence.

[¶12] The district court’s findings of fact are fully supported by the record. While trial
counsel did not use Mrs. Worley’s criminal history or statements to the Department of
Family Services, he did extensively and effectively cross-examine Mrs. Worley. That
cross-examination brought out many inconsistencies and other problems with her
testimony. While Mrs. Worley’s testimony is suspect at best, this Court has also seen the
video, photographs of the victim taken when law enforcement officers arrived, and the
photographs of the mole, and agrees with the district court’s conclusion that this evidence
is damning. The video and photographic evidence is even more compelling because Mr.
Worley testified the video accurately depicted his sexual encounter with his wife, and that
he hit her several times in the face. Based upon the video and Mr. Worley’s admissions,
we conclude—just as the district court did—that even if trial counsel had discovered and
utilized the evidence Mr. Worley claims he should have, there is not a reasonable
probability the result of the proceeding would have been different. Therefore, Mr.
Worley has failed to demonstrate he received ineffective assistance of trial counsel.

       2. Prosecutorial Misconduct

[¶13] Mr. Worley contends that the prosecutor committed misconduct by failing to
disclose information required by Brady. Specifically, Mr. Worley argues the prosecutor

                                             4
failed to notify Mr. Worley and his trial counsel about a plea agreement Mrs. Worley
received in an unrelated case. The question of whether evidence was improperly
withheld under Brady is of constitutional magnitude; therefore, we review this claim de
novo. Wilkening v. State, 2007 WY 187, ¶ 7, 172 P.3d 385, 386 (Wyo. 2007).

[¶14] In Brady, the United States Supreme Court stated that “‘suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.’” Id., ¶ 7, 172 P.3d at 386-87 (quoting Brady, 373 U.S. at
87, 83 S. Ct. at 1196-97). The Court later held that due process also requires the
prosecution to disclose impeachment evidence, including plea agreements made with
witnesses. See United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L.
Ed. 2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31 L.
Ed. 2d 104 (1972). In order to demonstrate a Brady violation, Mr. Worley has the burden
of showing three things: (1) the prosecution suppressed evidence; (2) the evidence was
favorable to the defense; and (3) the evidence was material because there is a reasonable
probably that, had the evidence been disclosed, the result of the proceedings would have
been different. Wilkening, ¶ 7, 172 P.3d at 387.

[¶15] Mr. Worley’s Brady claim fails for two reasons. First, the record does not contain
the plea agreement Mr. Worley claims was suppressed by the prosecution. Piecing
together different parts of the record, it appears Mrs. Worley had been charged with
taking a controlled substance into a jail, but that charge was dismissed as part of a plea
agreement in a separate forgery case. She also may have received first offender treatment
under Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2015) for the forgery charge.
Importantly, however, the specific terms of the plea agreement are not in the record and,
therefore, we are left to speculate about the content of the plea agreement and its potential
impact on Mrs. Worley’s testimony and credibility in the case against her husband. This
Court will not rely on speculation in reviewing a Brady claim. See Mascarenas v. State,
2003 WY 124, ¶ 18, 76 P.3d 1258, 1265 (Wyo. 2003); see also Wilkening, ¶ 9, 172 P.3d
at 387.

[¶16] Second, without a complete record regarding Mrs. Worley’s plea agreement, it is
difficult for this Court to determine the materiality of the agreement. However, we are
certain that additional impeachment material would not have led to a reasonable
probability that the outcome of the proceedings would have been different. As mentioned
above, Mrs. Worley was extensively cross-examined and was not perceived as a credible
witness by trial counsel, the district court, and most likely the jury. Although this
evidence may have given the jury another reason to question Mrs. Worley’s veracity, it
merely would have been cumulative to the other evidence and testimony questioning her
veracity. It is unlikely the plea agreement is material to Mr. Worley’s defense. See
Kovach v. State, 2013 WY 46, ¶ 21, 299 P.3d 97, 104 (Wyo. 2013) (evidence that is


                                             5
cumulative is not material). For these reasons, Mr. Worley has failed to establish a Brady
violation.

      3. Sufficiency of the Evidence

[¶17] Finally, Mr. Worley claims the State presented insufficient evidence to sustain his
conviction for battery of a household member. When reviewing the sufficiency of the
evidence:

             this Court examines the evidence in the light most favorable
             to the State. Faubion v. State, 2010 WY 79, ¶ 12, 233 P.3d
             926, 929 (Wyo. 2010). We accept all evidence favorable to
             the State as true and give the State’s evidence every favorable
             inference which can reasonably and fairly be drawn from it.
             We also disregard any evidence favorable to the appellant that
             conflicts with the State’s evidence. Id.

Harnden v. State, 2016 WY 92, ¶ 5, 378 P.3d 611, 612-13 (Wyo. 2016) (quoting Pena v.
State, 2015 WY 149, ¶ 16, 361 P.3d 862, 866 (Wyo. 2015)).

[¶18] Mr. Worley’s argument, however, is not the run of the mill sufficiency of the
evidence claim. Instead of arguing that the State did not present sufficient evidence of
any particular element of battery, he argues the record does not indicate which facts the
jury unanimously determined constituted the element of bodily injury—whether it was
Mr. Worley cutting the mole from Mrs. Worley’s body or striking her in the face while
she performed fellatio. Mr. Worley likens this situation to that found in Tanner v. State,
2002 WY 170, ¶ 14, 57 P.3d 1242, 1246 (Wyo. 2002), wherein we required the State to
affirmatively choose which theory it was pursuing in a prosecution when the crime
charged contained alternative elements.

[¶19] Mr. Worley’s reliance on Tanner is misplaced. The crime of battery does not
contain any alternative elements and, therefore, the State did not need to elect one
alternative element over another. See Wyo. Stat. Ann. § 6-2-501 (LexisNexis 2015). Mr.
Worley has not provided any authority that suggests the jury must be unanimous
regarding what facts constituted the elements of each crime. In fact, United States
Supreme Court precedent is directly contrary to that position. In Schad v. Arizona, 501
U.S. 624, 632, 111 S. Ct 2491, 115 L. Ed. 2d 555 (1991), the Court stated, “Plainly there
is no general requirement that the jury reach agreement on the preliminary factual issues
which underlie the verdict.” Id. (citing McKoy v. North Carolina, 494 U.S. 433, 449
(1990) (Blackmun, J., concurring)). The Court reiterated that stance in Richardson v.
United States, 526 U.S. 813, 119 S. Ct. 1707, 143 L. Ed. 2d 985 (1999):



                                            6
                     The question before us arises because a federal jury
              need not always decide unanimously which of several
              possible sets of underlying brute facts make up a particular
              element, say, which of several possible means the defendant
              used to commit an element of the crime. Schad v. Arizona,
              501 U.S. 624, 631-32, 111 S.Ct. 2491, 115 L.Ed.2d 555
              (1991) (plurality opinion); Anderson v. United States, 170
              U.S. 481, 499-501, 18 S.Ct. 689, 42 L.Ed. 1116 (1898).
              Where, for example, an element of robbery is force or the
              threat of force, some jurors might conclude that the defendant
              used a knife to create the threat; others might conclude he use
              a gun.      But that disagreement—a disagreement about
              means—would not matter as long as all 12 jurors
              unanimously concluded that the Government had proved the
              necessary related element, namely, that the defendant had
              threatened force. See McKoy v. North Carolina, 494 U.S.
              433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990)
              (Blackmun, J., concurring).

Id. at 817.

[¶20] Here, Mr. Worley committed various acts that caused Mrs. Worley bodily injury,
and which of those particular acts the individual jurors relied upon is irrelevant. So long
as all twelve jurors concluded he caused bodily injury, the State appropriately carried its
burden of proof. The jury saw photographs taken by law enforcement officers that
showed marks on Mrs. Worley’s body where moles had been removed and a photo of a
mole lying near the bathroom sink. Mrs. Worley testified Mr. Worley cut the moles from
her body, and Mr. Worley admitted to removing one of those moles. Furthermore, the
jury watched the video of Mr. Worley repeatedly slapping his wife, saw photos of Mrs.
Worley’s injuries, heard Mrs. Worley testify that Mr. Worley struck her in the face, and
Mr. Worley admitted to hitting his wife in the face. Regardless of which act or acts the
individual jury members relied upon, the State presented more than sufficient evidence at
trial that Mr. Worley caused his wife bodily injury.

                                    CONCLUSION

[¶21] After a thorough review of the entire record, we conclude that Mr. Worley was not
prejudiced by his trial counsel’s performance and he has failed to demonstrate the State
committed a Brady violation. Furthermore, the State presented sufficient evidence that
Mr. Worley caused his wife’s bodily injury.

[¶22] Affirmed.


                                            7
