                IN THE SUPREME COURT, STATE OF WYOMING

                                             2015 WY 87

                                                                     APRIL TERM, A.D. 2015

                                                                              June 17, 2015


MICHAEL SCOTT CARROLL, II,

Appellant
(Defendant),

v.                                                                     S-14-0224

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                       Appeal from the District Court of Laramie County
                           The Honorable Steven K. Sharpe, Judge

Representing Appellant:
      Dion J. Custis, Dion J. Custis, P.C., Cheyenne, Wyoming.


Representing Appellee:
      Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
      Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant
      Attorney General. Argument by Mr. Eames.


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

[¶1] Appellant, Michael Carroll, II, challenges his convictions on two counts of first-
degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor.
He claims that the district court erred in several evidentiary rulings, and asserts that the
prosecutor engaged in misconduct. We find no merit in his claims, and affirm.

                                          ISSUES

[¶2] Appellant raises four issues for our review, which we reordered to facilitate
discussion:

              1.     Was evidence of Appellant’s prior conviction for
                     sexual assault improperly admitted?

              2.     Was evidence of the victim’s prior sexual conduct
                     improperly excluded?

              3.     Was evidence of domestic violence improperly
                     admitted?

              4.     Did the prosecutor commit misconduct?

In addition, he contends that the cumulative effect of these errors denied him a fair trial.

                                          FACTS

[¶3] Appellant married Christine Boxley in 1995. They had two children. In the
summer of 2004, Appellant’s mistress, Miranda Trevino, moved into the Carrolls’ home
in Pueblo, Colorado. She brought with her three children from a previous marriage,
including her oldest daughter, T.T. In 2006, the three adults and five children moved to
Cheyenne, Wyoming. Ms. Trevino later gave birth to two more of Appellant’s children.

[¶4] According to T.T.’s testimony, beginning in 2009, when she was fourteen,
Appellant started taking her into his bedroom for massages. At first, he allowed her to
keep her undergarments on but, as time went on, he made her take off her clothes and lie
naked on the bed. T.T. testified that Appellant massaged her breasts and vaginal area,
“and anywhere else really.”

[¶5] In December of 2009, Appellant pled guilty to third-degree sexual abuse of a
minor. The victim was a fourteen-year-old girl whom Appellant, a nurse, had met at a
medical clinic. As part of his sentence, Appellant was ordered to have no contact with
minors. Appellant moved out of his home and into a separate apartment. He often spent


                                              1
time at the home of another mistress. Despite the requirements of Appellant’s sentence,
Ms. Carroll took T.T. to see him several times. Appellant massaged T.T. again during
these visits.

[¶6] On one occasion, Appellant asked T.T. if she had lost her virginity. When she
said she had not, he said he could help stretch her out so “it won’t hurt that much” when
she did. He reminded T.T. that he was a nurse and he knew what he was doing.
Appellant took a “sex toy” from the closet and tried to “stimulate” T.T. with the toy and
with his fingers. T.T. testified that he penetrated her vagina with his fingers and the sex
toy.

[¶7] In August of 2010, Ms. Trevino moved to Pasco, Washington, with her five
children, including T.T. Shortly after moving, T.T. disclosed to her mother what
Appellant had been doing to her. Ms. Trevino reported the allegations of sexual abuse to
the sheriff in Washington. The sheriff’s department took initial reports and conducted an
interview with T.T. It forwarded the information to the sheriff’s office in Cheyenne,
Wyoming, where the incidents occurred.

[¶8] Appellant was arrested and charged with two counts of first-degree sexual abuse
of a minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(iii) (LexisNexis 2011), and one
count of second-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-
315(a)(iv). Following a jury trial, Appellant was convicted on all three charges. He
challenges that conviction in this appeal.

                                      DISCUSSION

Issue 1: Evidence of other crimes, wrongs, or acts

[¶9] Four months prior to trial, the prosecution filed a notice with the district court
indicating its intent to introduce evidence of Appellant’s prior conviction for third-degree
sexual abuse of a minor. Following a hearing, the district court issued a decision letter
ruling that the evidence was admissible under W.R.E. 404(b). Appellant makes two
related claims regarding this evidence.

[¶10] The first is that the district court should have excluded the evidence. Evidentiary
rulings are reviewed for abuse of discretion. Edwards v. State, 2007 WY 146, ¶ 7, 167
P.3d 636, 637 (Wyo. 2007). “We have described the standard of an abuse of discretion as
reaching the question of the reasonableness of the trial court’s choice. Judicial discretion
. . . means exercising sound judgment with regard to what is right under the
circumstances and without doing so arbitrarily or capriciously.” Id. (quoting Gabbert v.
State, 2006 WY 108, ¶ 24, 141 P.3d 690, 697 (Wyo. 2006)).

[¶11] The second claim is that the district court erred in allowing the prosecutor to refer


                                             2
to the prior conviction when questioning various witnesses. Because Appellant did not
object to any of the prosecutor’s questions, we review for plain error. Schreibvogel v.
State, 2010 WY 45, ¶ 44, 228 P.3d 874, 888 (Wyo. 2010).

              To establish plain error, the appellant must show 1) the record
              clearly reflects the incident urged as error; 2) a violation of a
              clear and unequivocal rule of law; and 3) that he was
              materially prejudiced by the denial of a substantial right.
              Causey v. State, 2009 WY 111, ¶ 18, 215 P.3d 287, 293
              (Wyo. 2009). Under the plain error standard of review, we
              reverse a district court’s decision only if it is so plainly
              erroneous that the judge should have noticed and corrected
              the mistake even though the parties failed to raise the issue.
              Id., ¶ 19, 215 P.3d at 293.

Masias v. State, 2010 WY 81, ¶ 20, 233 P.3d 944, 950 (Wyo. 2010).

[¶12] W.R.E. 404(b), in pertinent part, provides as follows:

              Evidence of other crimes, wrongs, or acts is not admissible to
              prove the character of a person in order to show that he acted
              in conformity therewith. It may, however, be admissible for
              other purposes, such as proof of motive, opportunity, intent,
              preparation, plan, knowledge, identity, or absence of mistake
              or accident.

Evidence is inadmissible under W.R.E. 404(b) “if the thrust of the evidence is only to
demonstrate that the defendant has a disposition to commit crimes.” Gleason v. State,
2002 WY 161, ¶ 17, 57 P.3d 332, 340 (Wyo. 2002) (citing Daniel v. State, 923 P.2d 728,
733 (Wyo. 1996)). Before admitting such evidence, the trial court must determine that
the evidence is relevant and offered for a proper purpose. Even relevant evidence offered
for a proper purpose must be excluded if its probative value is substantially outweighed
by its potential for unfair prejudice. Gleason, ¶ 18, 57 P.3d at 340. Appellant contends,
with little analysis and few citations to authority, that the evidence was not admitted for a
proper purpose, that it was not relevant, and that it was more prejudicial than probative.

[¶13] The thorough and well-supported analysis contained in the district court’s decision
letter renders Appellant’s contentions untenable. The district court first set forth the test
for the admissibility of evidence under W.R.E. 404(b), citing and quoting from
Mersereau v. State, 2012 WY 125, ¶ 18, 286 P.3d 97, 106-07 (Wyo. 2012), and Gleason,
¶¶ 18, 27, 57 P.3d at 340, 342-43. It then applied that test to the evidence of Appellant’s
prior conviction. It found that the evidence was being offered for a proper purpose:



                                             3
                     [T]he State has indicated in its notice that it does not
              intend to offer the evidence described above to show
              “propensity” or to argue that the Defendant acted “in
              conformity” with his prior behavior. Rather, the State asserts
              that the evidence is offered for the limited purpose of
              showing the Defendant’s “intent, plan, course of conduct and
              motive.” The court notes that these are all proper purposes
              under Rule 404(b), and that the Wyoming Supreme Court has
              recognized in numerous cases that evidence of similar sexual
              misconduct is relevant and admissible in a child sexual
              assault case to prove “motive and intent,” as well as other
              permissible purposes, in cases (like the present case) where a
              defendant has denied any wrongdoing. See Gleason, 57 P.3d
              at 340-41 (cataloging cases).

[¶14] The district court also found the evidence was relevant. It noted that the charges
against Appellant involved sexual intrusion and sexual contact. Both sexual intrusion
and sexual contact, as defined in Wyo. Stat. Ann. §§ 6-2-301(a)(vi) and (a)(vii), require a
showing that the Defendant intruded upon or touched a victim’s intimate parts for
purposes of “sexual arousal, gratification or abuse.” It then concluded, “The fact that the
Defendant previously pled guilty to improperly touching a 14-year-old victim in the
recent past is relevant to show that his motivations, plan, course of conduct and intentions
in touching the victim in this case were for ‘sexual arousal, gratification or abuse.’” It
correctly found that this conclusion was supported by Mitchell v. State, 865 P.2d 591
(Wyo. 1993) and Elliott v. State, 600 P.2d 1044 (Wyo. 1979).

[¶15] Having concluded that the evidence was offered for a proper purpose and relevant,
the district court continued by weighing the probative value of the evidence against its
potential for unfair prejudice. The district court’s analysis was based on the factors set
forth in Gleason, ¶ 18, 57 P.3d at 340. With regard to the probative value of the
evidence, the district court found that it was clear that Appellant had committed the prior
bad act. It analyzed whether the issue to which the evidence was relevant was disputed
and whether other evidence was available. It found that the evidence was not cumulative,
and that the prior bad act was close in time to the alleged actions involving T.T.
Accordingly, it ruled that the evidence had substantial probative value.

[¶16] With regard to the potential for unfair prejudice, the district court found that the
prior bad act was less reprehensible than the charged conduct because the prior bad act
involved fondling the breasts of a fourteen-year-old girl while the current charges
involved sexual intrusion of Appellant’s stepdaughter. While recognizing that a jury was
likely to feel sympathy for the victim in the prior case, it did not find “any other
aggravating factor present that would cause the jury to want to punish the Defendant
because of some particular character trait of the prior victim that makes her vulnerable


                                             4
(e.g. a low functioning mental state or some type of physical disability).” It found that
there were similarities between the prior bad act and the charged conduct, but also
sufficient differences that the jury would not likely “draw the improper inference that if
the defendant did it once, he probably did it again.” Gleason, ¶ 27, 57 P.3d at 342. It
noted that the charges in the current case were of greater seriousness than the prior bad
act, so that evidence of the prior act was not likely to “place the defendant in a different
and unfavorable light.” Id. Because the prior bad act led to a conviction, the jury would
not feel the need to punish Appellant further for that act.

[¶17] Based on this analysis, the district court concluded the probative value of the
evidence of Appellant’s prior conviction was not substantially outweighed by the
potential for unfair prejudice, and the evidence was therefore admissible. The district
court’s thoughtful discussion documents a reasonable decision based on sound judgment.
The district court did not abuse its discretion in ruling that the 404(b) evidence was
offered for a proper purpose, relevant, and more probative than unfairly prejudicial.

[¶18] As the second part of this issue, Appellant complains that the prosecutor asked
several witnesses about Appellant’s prior trial and conviction. For example, he asked
T.T. if she remembered “a time when there were other – a criminal matter going on?” He
asked her about a statement she had made in that case. With regard to Appellant talking
to her about sexual issues, he asked, “Was that before the trial that you started having
these talks? Was it after the trial?” He asked several other witnesses similar questions
relating to the previous trial.

[¶19] As previously discussed, the district court did not abuse its discretion in admitting
evidence of Appellant’s previous crime. Appellant has presented no authority suggesting
why the prosecutor should have been prohibited from referring to this properly-admitted
evidence when questioning the various witnesses. There was no violation of a clear and
unequivocal rule of law and, accordingly, no plain error occurred.

Issue 2: Evidence of the victim’s prior sexual conduct

[¶20] Prior to trial, in compliance with Wyo. Stat. Ann. § 6-2-312,1 Appellant filed a


1
 This statute is sometimes referred to as Wyoming’s rape shield law. See, e.g., Budig v. State, 2010 WY
1, ¶ 10, 222 P.3d 148, 152 (Wyo. 2010). Wyo. Stat. Ann. § 6-2-312 provides as follows:

               (a) In any prosecution under this article or for any lesser included
               offense, if evidence of the prior sexual conduct of the victim, reputation
               evidence or opinion evidence as to the character of the victim is to be
               offered the following procedure shall be used:




                                                   5
motion to present evidence regarding the sexual conduct of the victim. 2 After holding a
hearing, the district court denied the motion in part and granted it in part. Appellant
claims that the district court erred in denying part of his motion. The district court’s
evidentiary ruling under this statute is reviewed for abuse of discretion. Stogner v. State,
674 P.2d 1298, 1300 (Wyo. 1984).

[¶21] We have previously discussed the purpose of Wyo. Stat. Ann. § 6-2-312:

               Wyoming, along with most other jurisdictions, enacted a
               “rape-shield” statute to bring under control a long-standing
               tradition that rape victims could be discredited as witnesses
               based on prior sexual conduct. . . . This tradition was based
               on the faulty notion that women who engaged in nonmarital
               intercourse were immoral and likely to engage in such



                       (i) A written motion shall be made by the defendant to the
                       court at least ten (10) days prior to the trial stating that the
                       defense has an offer of proof of the relevancy of evidence of the
                       sexual conduct of the victim and its relevancy to the defense;

                       (ii) The written motion shall be accompanied by affidavits in
                       which the offer of proof is stated;

                       (iii) If the court finds the offer of proof sufficient, the court
                       shall order a hearing in chambers, and at the hearing allow the
                       questioning of the victim regarding the offer of proof made by
                       the defendant and other pertinent evidence;

                       (iv) At the conclusion of the hearing, if the court finds that the
                       probative value of the evidence substantially outweighs the
                       probability that its admission will create prejudice, the evidence
                       shall be admissible pursuant to this section. The court may make
                       an order stating what evidence may be introduced by the
                       defendant, which order may include the nature of the questions
                       to be permitted.

               (b) This section does not limit the introduction of evidence as to prior
               sexual conduct of the victim with the actor.

               (c) Any motion or affidavit submitted pursuant to this section is
               privileged information and shall not be released or made available for
               public use or scrutiny in any manner, including posttrial proceedings.
2
 In accordance with Wyo. Stat. Ann. § 6-2-312(c), the district court sealed Appellant’s motion. In this
opinion, we will reveal only the minimum information necessary to discuss this issue.




                                                   6
             conduct on any given occasion, and was deemed prejudicial
             and humiliating to the victim. Annotation, Constitutionality
             of “Rape Shield” Statute Restricting Use of Evidence of
             Victim’s Sexual Experiences, 1 A.L.R.4th 283, 286 (1980).

Stogner v. State, 792 P.2d 1358, 1362 (Wyo. 1990). We have also noted:

             [T]he sort of evidence to which the statute relates is
             “generally not admissible” in Wyoming. . . . That is, only in
             the unusual case will the probative value of this kind of
             evidence substantially outweigh its highly probable
             prejudicial effect on the victim and the public policy
             underlying the statute’s enactment.

McGarvey v. State, 2014 WY 66, ¶ 18, 325 P.3d 450, 456 (Wyo. 2014) (quoting Stogner,
792 P.2d at 1362) (emphasis in original).

[¶22] After holding the hearing required by the statute, the district court ruled that
Appellant could introduce “evidence that the alleged victim may have touched or handled
the sex toys” before the incidents leading to Appellant’s charges. The prosecution
alleged that Appellant had used a sex toy on T.T. and there was DNA present on one of
the toys that may have been T.T.’s. The district court ruled that evidence of T.T.’s prior
voluntary handling of the object was relevant as an alternative explanation for the
presence of the DNA. That ruling is not at issue in this appeal.

[¶23] The district court also ruled that evidence regarding T.T.’s “highly sexualized
conduct” with two boys was inadmissible, observing that “that is the exact type of
evidence that the rape shield statute was designed to eliminate in these types of cases.”
Appellant challenges that ruling on appeal, contending that “the evidence of T.T.’s prior
sexual conduct was not intended to discredit, humiliate nor embarrass her.” He claims
that the purpose of the evidence was to “refute the prosecution’s implication that T.T.
was sexually naïve” because it “showed that she was aware of sexual matters and had
begun experimenting with sexual activity.”

[¶24] Appellant’s position is in direct conflict with our precedent. In Budig v. State,
2010 WY 1, ¶ 11, 222 P.3d 148, 153 (Wyo. 2010), the defendant facing charges of sexual
assault and sexual abuse of a minor sought to introduce evidence of the two victims’ past
sexual conduct. Specifically, the defendant proffered evidence that the older victim “had
at least one groping and heavy petting relationship with a boy,” and that the younger
victim had “repeatedly grabbed a boy in the crotch or kicked him in the crotch.” Id. The
defendant asserted that the evidence was relevant and probative because “without some
evidence being put forth of these girls’ prior sexual knowledge, any fact finder might
believe these little girls couldn’t possibly know anything about sex unless [the defendant]


                                            7
had done what he is accused of.” Id. We rejected the appellant’s argument “that the
evidence was merely intended to show that the victims had independent ‘sexual
knowledge,’ and not to embarrass or prejudice the victims.” Id., ¶ 13, 222 P.3d at 154.
“To allow this type of evidence under the appellant’s proffered justification,” we
concluded, “would open the door for defendants in sexual assault prosecutions
(particularly cases involving children) to explore freely the knowledge and prior sexual
practices/experiences of their victims. Such a result would be entirely inconsistent with
the intent of our enacted rape shield law.” Id.

[¶25] As in Budig, Appellant sought to introduce evidence of T.T.’s alleged “sexualized
behavior” and “sexual sophistication.” The district court correctly recognized that this is
exactly the sort of evidence covered by the rape shield statute and, based on that statute
and cases such as Budig, it correctly ruled that the evidence was inadmissible. The
district court did not abuse its discretion in this ruling.

Issue 3: Evidence of domestic violence

[¶26] Appellant claims the district court erred when it admitted evidence of domestic
violence by Appellant against T.T.’s mother, Ms. Trevino. Again, we review this
evidentiary ruling for abuse of discretion. Edwards, ¶ 7, 167 P.3d at 637.

[¶27] In direct examination, the prosecution asked Ms. Trevino about a letter she wrote
to the court regarding sentencing, after Appellant’s prior conviction. The purpose of the
letter was “to say that [Appellant] was a good guy.” However, she said, the letter was not
an accurate reflection of how she really felt at the time. During Ms. Trevino’s cross-
examination, Appellant’s counsel asked her to identify a series of love letters, greeting
cards, and photographs indicating that she and Appellant had a happy, loving
relationship, in contrast to her previous testimony.

[¶28] Before beginning redirect examination of Ms. Trevino, the prosecutor, outside of
the jury’s hearing, suggested to the district court that Appellant’s counsel had introduced
evidence about Ms. Trevino lying. To explain why she had lied, the prosecution wanted
to introduce evidence that Ms. Trevino had suffered domestic violence at the hands of
Appellant. The district court ruled that Appellant had “opened the door” to such
evidence by “attacking the credibility of the witness as to why she would support
[Appellant],” and ruled that the evidence could be introduced. The prosecution then
elicited testimony from Ms. Trevino that Appellant had become “[v]ery controlling” and
that he was “very, very mean” to Ms. Carroll and had hurt her many times. She
recounted a time when Appellant, in the presence of the children, picked her up and
threw her into a different room because he “didn’t like [her] attitude.” She testified that
his behavior became progressively worse so that, by 2009 or 2010, she “[h]ated him,
hated him.” She explained that she wrote the supportive letter to the sentencing court
because “[i]f I didn’t do it, he would hit me.”


                                            8
[¶29] Appellant claims that none of this evidence was “relevant to whether [Appellant]
was guilty of the charges against him.” He argues that the sole purpose of this evidence
was to paint him “as a controlling, abusive thug.” Accordingly, he claims that the district
court erred in admitting this evidence.

[¶30] W.R.E. 401 defines relevant evidence as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” W.R.E. 402 provides
that relevant evidence is generally admissible and irrelevant evidence is not. As the
district court observed, Ms. Trevino’s “credibility and character for truthfulness were
directly attacked by [Appellant] on cross-examination.” The prosecution was then
allowed to introduce evidence of domestic violence to help the jury understand why she
may have changed her story. As we said in Barnes v. State, 858 P.2d 522, 534-35 (Wyo.
1993), “[t]he evidence was relevant as bolstering the credibility of the witness after an
attack upon that credibility.” We reject Appellant’s contention that the evidence was not
relevant, and we conclude that the district court did not abuse its discretion in admitting
this evidence.

Issue 4: Prosecutorial misconduct

[¶31] Appellant asserts that the prosecutor committed misconduct by making several
improper statements during closing argument. Because Appellant did not object to these
statements at trial, we review for plain error. Schreibvogel, ¶ 44, 228 P.3d at 888
(“Failure to interject a timely objection to an improper argument is treated as a waiver,
unless the misconduct is so flagrant as to constitute plain error.”).

[¶32] The prosecutor is afforded “[g]reat latitude” in arguing the case to the jury.
Armstrong v. State, 826 P.2d 1106, 1115-16 (Wyo. 1992) (quoting State v. Kennedy, 249
S.E.2d 188, 191 (W.Va. 1978)). However, there are boundaries the prosecutor may not
cross. In Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, 24-25 (Wyo. 2002), we quoted
from and approved of the ABA Standards for Criminal Justice regarding argument to the
jury:

             (a) The prosecutor may argue all reasonable inferences from
             evidence in the record. It is unprofessional conduct for the
             prosecutor intentionally to misstate the evidence or mislead
             the jury as to the inferences it may draw.

             (b) It is unprofessional conduct for the prosecutor to express
             his or her personal belief or opinion as to the truth or falsity
             of any testimony or evidence [of] the guilt of the defendant.



                                            9
              (c) The prosecutor should not use arguments calculated to
              inflame the passions or prejudices of the jury.

              (d) The prosecutor should refrain from argument which
              would divert the jury from its duty to decide the case on the
              evidence, by injecting issues broader than the guilt or
              innocence of the accused under the controlling law, or by
              making predictions of the consequences of the jury’s verdict.

              (e) It is the responsibility of the court to ensure that final
              argument to the jury is kept within proper, accepted bounds.

To determine whether the prosecutor crossed these boundaries, we consider the
“argument in its entirety, not just the sentences and phrases taken out of context.”
Armstrong, 826 P.2d at 1115 (citing Wheeler v. State, 691 P.2d 599 (Wyo. 1984)). We
reverse if we conclude “there was a substantial risk of a miscarriage of justice.”
Armstrong, 826 P.2d at 1116 (citing Commonwealth v. Haskins, 411 Mass. 120, 578
N.E.2d 788 (1991)).

[¶33] Appellant first contends that the prosecutor improperly expressed his own
opinions on the evidence. He challenges the prosecutor’s statement that “I believe we
have proven beyond a reasonable doubt that he had sexual contact with T.T. for purposes
of sexual gratification or abuse.” Appellant seems to object to this statement for two
reasons. First, he suggests that this was an improper expression of the prosecutor’s
personal opinion. Second, he claims there was no evidence to support the statement.

[¶34] We will consider this statement in context. The prosecutor reminded the jury that
the judge had read an instruction listing the elements of the crimes charged, including
sexual contact, defined as touching with the intention of sexual arousal, gratification, or
abuse. He reviewed evidence indicating that Appellant had massaged T.T., and asked if
Appellant was “just being a nice guy [or] was this for the purpose of sexual gratification
or abuse?” He then reviewed evidence concerning Appellant’s previous conviction on a
charge of sexual abuse of a minor, including the victim’s testimony about what Appellant
said and did. He then made the challenged statement, “But I believe we have proven
beyond a reasonable doubt that he had sexual contact with T.T. for purposes of sexual
gratification or abuse.”

[¶35] If the prosecutor had said only “We have proven beyond a reasonable doubt that
he had sexual contact with T.T. for purposes of sexual gratification or abuse,” that would
have been a reasonable inference about the evidence, and not an improper comment.
Appellant’s objection is that he began his statement with the phrase “I believe.”
According to Appellant, that turned the statement into an improper expression of the
prosecutor’s personal belief. But the ABA standard provides that it “is unprofessional


                                            10
conduct for the prosecutor to express his or her personal belief or opinion as to the truth
or falsity of any testimony or evidence [of] the guilt of the defendant.” Trujillo, ¶ 5, 44
P.3d at 24. In his statement, the prosecutor was not providing an opinion as to the truth
or falsity of any testimony or evidence, and he was not expressing his belief of
Appellant’s guilt. Thus, the prosecutor’s statement did not violate any clear and
unequivocal rule of law, and cannot be considered plain error.

[¶36] Appellant’s claim that the statement was unsupported by any evidence is incorrect.
As discussed above, the prosecution introduced evidence of Appellant’s prior conviction
of touching a minor for purposes of sexual gratification for the very purpose of proving
Appellant’s motive and intention in his actions with T.T. This evidence provided support
for the prosecutor’s assertion that “we have proven beyond a reasonable doubt that he had
sexual contact with T.T. for purposes of sexual gratification or abuse.” Appellant has not
demonstrated that the statement violated any rule of law.

[¶37] In the second statement challenged by Appellant, the prosecutor referred to a
photograph of a “sex toy” that had been admitted into evidence. He then asserted that it
“was one of the smaller ones in the bunch.” Two of the charges against Appellant
involved sexual intrusion of T.T. with a “sex toy.” A photograph of one such object was
admitted into evidence. However, Appellant asserts, T.T. had testified that she did not
remember what the device used on her looked like, and there was no evidence that the
device in the photograph was the one used on her. Appellant claims that the prosecutor’s
assertion that the device in the photograph was “one of the smaller ones” improperly
conflated it with the device used on T.T.

[¶38] Two witnesses testified that Appellant owned several sexual devices. Both agreed
that the one in the photograph was one of the smaller ones. The prosecutor’s statement
was an accurate portrayal of these two witnesses’ testimony. Moreover, the prosecutor
did not offer any improper assertion of his belief that the device in the photograph was
the one used on T.T. To the contrary, after commenting that this was one of the smaller
devices, the prosecutor asked, “And is that the one he used? Again, that’s up to you,
ladies and gentlemen.” He then reminded the jury of expert testimony that there was
DNA present on one of the toys that may have been T.T.’s. There was nothing
misleading or improper about the prosecutor’s statements regarding this device.

[¶39] The third prosecutor’s statement challenged by Appellant involved the question of
whether Ms. Carroll knew that “something weird was going on” between Appellant and
T.T. The prosecutor said, “I don’t know. I don’t know if we’ll ever know.” In addition,
during rebuttal argument, the prosecutor said with regard to how many times Appellant
had massaged T.T., “What are we talking about here? 8 to 12? 15? I don’t know. But it
happened a lot.” Appellant asserts that it is improper for the prosecutor to argue “for a
conviction on any basis other than evidence presented.”



                                            11
[¶40] However, we find that there was evidentiary support for the prosecutor’s
statements. Ms. Carroll testified to instances in which Appellant may have had the
opportunity to massage T.T. She did not say whether she knew he had done so. The
prosecutor’s statement that he did not know if Ms. Carroll was aware of the massages
accurately reflected her testimony. T.T. testified that Appellant had massaged her on
several occasions, but did not specify how many times. The prosecutor’s statement that
he did not know how many times it had happened, but it happened a lot, correctly
represented T.T.’s testimony. Neither statement constituted improper argument or
prosecutorial misconduct.

[¶41] Finally, Appellant asserts that the prosecutor improperly commented on the
defense counsel’s trial strategy. In rebuttal, the prosecutor asked,

             So how much of this closing [argument] by counsel for the
             Defense was about T.T.? 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 T.T. And
             they want to divert you from those things.

A few moments later, the prosecutor asserted that the defense had

             splattered [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 T.T.
             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.

[¶42] Appellant contends that this was not discussing the evidence but, rather,
disparaging the motives of defense counsel. He compares the prosecutor’s remarks with
those in Jones v. State, 580 P.2d 1150, 1153 (Wyo. 1978), in which the prosecutor said:

             [Jurors] do what they know to be right, and they are not
             distracted or confused or misled, generally, by devious
             people.      Maneuvering and manipulations are always
             attempted, and it’s proper. I don’t mean to say that when an
             attorney comes in to defend someone he tries, and it’s his
             oath of office and ethical responsibility to do the best thing he
             can for his client; to raise these little doubts, to distract from
             the case at hand, to get you all looking at something else so
             you don’t look too closely.

We found this comment to be “clearly improper,” but did not explain why. Id. In other
cases, however, we have said that a prosecutor “may not launch personal attacks against


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defense counsel to inflame the passions and prejudices of the jury,” Burton v. State, 2002
WY 71, ¶ 31, 46 P.3d 309, 317 (Wyo. 2002), and that a “personal attack by the
prosecutor on defense counsel is improper, and the duty to abstain from such attacks is
obviously reciprocal.” English v. State, 982 P.2d 139, 148 (Wyo. 1999); United States v.
Young, 470 U.S. 1, 10, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985) (quoting ABA
Standards for Criminal Justice 4-7.8 at 4.99).

[¶43] The prosecutor in Jones referred to defense counsel as devious, maneuvering, and
manipulative. Jones, 580 P.2d at 1153. The prosecutor in English “strongly implied that
defense counsel wanted . . . to intimidate the victim,” and we noted that witness
intimidation is a felony offense in Wyoming. English, 982 P.2d at 148. In both cases, we
found the comments were improper personal attacks on defense counsel.

[¶44] The prosecutor’s remarks in Appellant’s case were not personal attacks on defense
counsel. The comments related to the prosecution’s view of the defense case, but were
not personal insults aimed at defense counsel. These remarks were not “so plainly
erroneous that the judge should have noticed and corrected the mistake even though the
parties failed to raise the issue.” Masias, ¶ 20, 233 P.3d at 950. Applying our plain error
standard of review, we conclude that Appellant has not demonstrated that any of the
prosecutor’s statements violated a clear and unequivocal rule of law.

Issue 5: Cumulative error

[¶45] Finally, Appellant claims that, even if the complained-of errors do not individually
require reversal, the combination of errors denied him a fair trial. In a cumulative error
analysis, we consider only “matters that we have determined to be errors.” Guy v. State,
2008 WY 56, ¶ 45, 184 P.3d 687, 701 (Wyo. 2008). Because we have found no error in
any of Appellant’s claims, there is no cumulative error to be considered.

[¶46] Affirmed.




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