               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 60

                                                            APRIL TERM, A.D. 2014

                                                                    May 8, 2014

GILBERT ORTIZ, JR.,

Appellant
(Defendant),

v.                                                   S-13-0127

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                        The Honorable Peter G. Arnold, Judge

Representing Appellant:
      Dion J. Custis, Dion J. Custis, PC, Cheyenne, Wyoming.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jeffrey S.
      Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General.
      Argument by Ms. Zissou.

Before KITE, C.J., and HILL, BURKE, and FOX, JJ., and DONNELL, D.J.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] A jury found Gilbert Ortiz, Jr., guilty of three counts of second-degree sexual
assault. Mr. Ortiz raises seven issues on appeal. We affirm on all issues.

                                        ISSUES

[¶2]   1. Was Mr. Ortiz denied his right to a speedy trial?

       2. Did the district court properly admit forensic interview evidence as a prior
consistent statement?

       3. Did testimony from a forensic interviewer or a detective improperly vouch for
the credibility of the victim?

      4. Was the Bill of Particulars sufficient for Mr. Ortiz to adequately prepare a
defense?

       5. Did the circuit court abuse its discretion when it granted an ex parte motion
quashing Mr. Ortiz’s subpoena to call the victim and her mother as witnesses at a
preliminary hearing?

       6. Did the district court abuse its discretion when it denied admission of
sexualized behavior evidence on relevancy and hearsay grounds?

       7. Did the State commit prosecutorial misconduct when it referenced a non-
religious quote from a church sign in its opening statement?

                                        FACTS

[¶3] While the procedural facts here are extensive, they are nevertheless essential to
our legal analysis.

[¶4] In November 2006, eleven-year-old M.O. reported to her mother that her
grandfather, Gilbert Ortiz, Jr., had molested her when she was five or six years old,
between 2000 and 2002. The State conducted an investigation that eventually yielded
charges.

[¶5] A warrant of arrest was served on Mr. Ortiz on April 27, 2010, and he was
released on bond the following day. On April 28, 2010, Mr. Ortiz filed a motion waiving
his right to a speedy preliminary hearing. An information was filed on May 26, 2010,
charging Mr. Ortiz with three counts of first-degree sexual abuse of a minor, in violation
of Wyo. Stat. Ann. § 6-2-314 (LexisNexis 2007). Mr. Ortiz entered a plea of not guilty to


                                            1
all three charges at his arraignment on June 10, 2010. The district court then set the trial
for August 3, 2010. On July 8, 2010, at Mr. Ortiz’s request, the district court reset the
trial to October 4, 2010. The district court again, at the request of Mr. Ortiz, reset the
trial on September 2, 2010. The new trial was set for November 1, 2010.

[¶6] On October 13, 2010, Mr. Ortiz waived his right to a speedy trial. Additionally,
because of a conflict with another trial, on October 15, 2010, Mr. Ortiz filed a motion to
vacate the November 1, 2010 trial date. The district court granted Mr. Ortiz’s motion on
October 18, 2010, and set a hearing on outstanding motions for January 3, 2011.

[¶7] The trial was once again reset on December 8, 2010, to February 7, 2011. On
January 7, 2011, Mr. Ortiz filed a motion to dismiss, arguing that his right to due process
of law was violated because the trial transcript from his son’s divorce case was missing
from court records. On January 12, 2011, Mr. Ortiz filed a motion to produce and a
motion in limine. In his motion in limine, Mr. Ortiz requested that the district court
preclude expert witness Lynn Huylar from providing any testimony substantiating the
credibility of the victim. Additionally, Mr. Ortiz demanded that the district court compel
production of certain sexual assault information to the defense. On January 18, 2011, the
trial was again reset to April 4, 2011, at the request of Mr. Ortiz. On February 17, 2011,
Mr. Ortiz filed a motion to dismiss for lack of speedy trial. In his motion, Mr. Ortiz
argued that an unconstitutional delay occurred as a result of the time between the original
report of the incident and the filing of the felony information. Eleven days later, on
February 28, 2011, Mr. Ortiz filed another waiver of speedy trial. On March 1, 2011, the
trial was once again reset, to June 6, 2011.

[¶8] On May 12, 2011, the State filed a motion to vacate trial setting and reset the trial
to give the State and the defense more time for plea negotiations. The district court
granted the State’s motion on May 12, 2011, pursuant to W.R.Cr.P. 48(b)(4), and reset
the trial to July 5, 2011. Prior to the July trial setting, on June 3, 2011, Mr. Ortiz filed a
motion to have the district court reexamine its earlier order denying Mr. Ortiz’s request
that the district court perform an in camera review of DFS records to determine whether
relevant and exculpatory evidence should be provided to the defense. The trial was reset
to September 6, 2011, at a motions hearing on June 17, 2011.

[¶9] The district court issued an order on all pending motions on July 8, 2011. The
order denied Mr. Ortiz’s motion to dismiss for due process violation; granted Mr. Ortiz’s
motion to limit the expert testimony of Ms. Huylar; denied Mr. Ortiz’s request for
production of evidence from Ms. Huylar; granted Mr. Ortiz’s motion to have the district
court reexamine DFS records; reserved Mr. Ortiz’s evidentiary motions until after
production of evidence at trial; and granted the State’s motion to quash all outstanding
subpoenas (and ordered that any future subpoenas comply with the Wyoming Rules of
Criminal Procedure and be delivered to the district court for in camera review).



                                              2
[¶10] At a July 14, 2011 status hearing, the district court expressed concern that the trial
had been subject to so many delays, to which Mr. Ortiz’s counsel replied, “[m]y client
doesn’t care. Whatever, Your Honor.” At the hearing the trial was reset to September
26, 2011, pursuant to W.R.Cr.P. 48(b)(4).

[¶11] On August 25, 2011, Mr. Ortiz filed a motion requesting a hearing on whether the
victim’s testimony had been tainted. In response, the district court issued an order
vacating and resetting the trial to January 2, 2012. The order also set the hearing on Mr.
Ortiz’s taint motion for September 9, 2011. On September 8, 2011, Mr. Ortiz filed a
motion to bifurcate the September 9 hearing. Following this, on September 14, 2011, Mr.
Ortiz retained new counsel.

[¶12] On September 22, 2011, the district court issued an order denying Mr. Ortiz’s taint
hearing request. In its denial, the district court stated, “[a] competency hearing is not a
dress rehearsal for cross-examination at trial.”

[¶13] After retaining new counsel, Mr. Ortiz filed a motion, on October 3, 2011, to set a
status hearing. On October 6, 2011, the district court issued an order setting the status
hearing for November 2, 2011. On October 24, 2011, Mr. Ortiz filed a motion to
continue the status hearing. The district court granted the motion that same day and reset
the status hearing to October 25, 2011. On October 26, 2011, the district court issued an
order requiring any remaining motions be filed by November 21, 2011.

[¶14] On November 14, 2011, the trial was reset to January 3, 2012. Mr. Ortiz filed a
Motion for Additional Bill of Particulars as to All Counts of the Information on
December 9, 2011.

[¶15] Throughout the initial action, Mr. Ortiz continued to issue subpoenas that did not
comply with W.R.Cr.P. 17(d). On December 9, 2011, the State again filed a motion to
quash all outstanding subpoenas, and a motion for defense counsel to abide by the
Wyoming Rules of Criminal Procedure and prior orders of the district court. The district
court granted the motion on December 15, 2011.

[¶16] On December 14, 2011, the State responded to Mr. Ortiz’s motion for additional
bill of particulars, stating that under Wyoming law, the bill does not require the time and
place of the crime where those are not elements of the crime.

[¶17] On January 3, 2012, the day trial was to have begun, the State filed a motion for
dismissal because it had mistakenly charged Mr. Ortiz under a statute that had not been
enacted at the time of the alleged crimes.

[¶18] On January 4, 2012, the district court denied Mr. Ortiz’s motions for additional
bill of particulars and oral motion for a competency hearing for the alleged victim. The


                                             3
next day, the district court dismissed the charges without prejudice, in accordance with
the State’s motion.

[¶19] Five days later, on January 10, 2012, the State re-filed the charges under the
statute in effect at the time of the crimes, Wyo. Stat. Ann. § 6-2-303(a)(v) (LexisNexis
2007).1 On January 18, 2012, Mr. Ortiz filed a motion to dismiss for lack of a speedy
trial.

[¶20] Mr. Ortiz attempted to subpoena the victim, M.O., and her mother, to appear at the
January 26, 2012, preliminary hearing in the circuit court for Laramie County. The
circuit court quashed the subpoenas pursuant to an ex parte motion to quash filed by the
State. When provided the opportunity to present an offer of proof as to why M.O. and
her mother’s testimony would be relevant to determining probable cause, Mr. Ortiz
argued that the circuit court should evaluate the testimony of M.O. and her mother with
regard to competency and credibility. The circuit court ruled that a preliminary hearing
was not the appropriate venue to engage in discovery, especially to assess competency
and credibility, and confirmed the order quashing the subpoenas.

[¶21] On January 30, 2012, the State filed an Affidavit of Probable Cause, an Amended
Information, and a Bill of Particulars. The Bill of Particulars identified each count of
second-degree sexual assault, the time period during which the alleged acts occurred, and
that Mr. Ortiz “inflicted sexual intrusion on the victim via digital penetration.”
Furthermore, the Bill of Particulars described what the victim was wearing at the time of
each of the alleged acts. The Information and Affidavit of Probable Cause contained
additional details regarding the investigation and charges.

[¶22] On February 8, 2012, Mr. Ortiz filed a petition for writ of review to the district
court requesting a reversal of the circuit court’s decision to quash the subpoenas. He also
filed another motion to dismiss for lack of speedy trial on February 9, 2012. On February
28, 2012, Mr. Ortiz filed a motion to continue the arraignment and to continue the
hearing on his January 18 motion to dismiss for lack of speedy trial.

[¶23] On February 29, 2012, the State filed a motion for immediate trial setting, motion
deadlines, and motions hearing. In its motion, the State recounted the history of the
proceeding (including the dismissed action), noting “[a]ll continuances except the State’s
May 12, 2011 Motion to Vacate and Reset were at the behest of defense counsel and the
May 12, 2011 Motion was jointly approved by both parties.”

[¶24] On March 2, 2012, Mr. Ortiz entered a peremptory disqualification of Judge
Campbell and the case was assigned to Judge Arnold. On March 8, 2012, Judge Arnold

1 Sexual assault in the second degree. This statute was repealed in 2007, but was in effect at the time of
the crime. See W.R.Cr.P. 3(c).


                                                     4
reset arraignment and the hearing on the motions to dismiss for lack of speedy trial to
March 20, 2012. On March 14, 2012, the district court denied Mr. Ortiz’s petition for
writ of review of the circuit court’s preliminary hearing quashing the subpoenas for M.O.
and her mother. The district court reiterated the reasoning of the circuit court that
“parties may not subpoena witnesses for the purpose of discovery at a preliminary
hearing.”

[¶25] Mr. Ortiz’s motions to dismiss for lack of speedy trial were subsequently denied at
the hearing on March 20, 2012.

[¶26] Mr. Ortiz filed a motion to continue arraignment on March 26, 2012. Although
the State objected, the district court reset arraignment to April 12, 2012. On April 9,
2012, the district court issued its order denying Mr. Ortiz’s motion to dismiss for lack of
speedy trial. In its order, the district court considered all of the Barker v. Wingo, 407
U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), speedy trial factors and concluded that
Mr. Ortiz was responsible for the majority of delays in the case. At his arraignment on
April 12, 2012, Mr. Ortiz again pled not guilty and trial was set for September 25, 2012.
On August 21, 2012, Mr. Ortiz filed a motion to reopen and reconsider any and all
motions previously filed. That same day, upon the request of Mr. Ortiz, the trial was
reset to October 2, 2012. On October 1, 2012, the district court considered Mr. Ortiz’s
motion to reopen and reconsider all previous motions. The district court denied review of
those motions that were final under the initial action, granted several of the motions, and
reserved ruling on the other issues for trial.

[¶27] At trial, the State’s case centered on M.O.’s testimony that Mr. Ortiz, her
grandfather, sexually assaulted her when she was a little girl. In his opening statement,
Mr. Ortiz’s counsel attacked M.O.’s motivation for making such allegations and
questioned her credibility, suggesting she fabricated the report because she did not want
to live with her father following the divorce of her parents. Defense counsel stated in his
opening:

                    What is really important that you are going to see,
             ladies and gentleman, is that the separation and the impending
             divorce that ensued from that separation has had a drastic
             effect on this young girl. It had a drastic effect on this young
             girl to the point that she has now made false allegations of
             sexual abuse.

              ....

             In fact, what’s very important that you are going to see that
             this disclosure did not occur until this young lady felt she was



                                            5
                   going to be ripped away from her mom and her mom’s family
                   and put into her father’s family.

                    ....

                          So you’re going to see through the years that this
                   young lady said these things to adults, people of importance,
                   and it didn’t work. But still her dad was over here trying to
                   get custody of her and possibly taking her away. That’s what
                   you’re going to see, ladies and gentleman. That was the first
                   time that she came out with this disclosure that her
                   grandfather was sexually abusing her.

[¶28] The State rebutted those attacks by calling, as its first witness, forensic interviewer
Lynn Huylar and introducing a 2006 forensic interview Ms. Huylar had conducted with
M.O. The video highlighted the consistency of M.O.’s allegations dating back to 2006.
The State contended that the forensic interview was admissible as a prior consistent
statement. Mr. Ortiz’s counsel objected to the timing of the introduction of the
videotaped interview, arguing that the video should not be admitted until after M.O. had
been cross-examined.2 The district court denied Mr. Ortiz’s objection on the grounds that
Mr. Ortiz had already argued, in his opening statement, that M.O. had an improper
motive and had fabricated her allegations. The district court found the video admissible
as a prior consistent statement to rebut Mr. Ortiz’s allegations of improper motive.

[¶29] Ms. Huylar’s testimony included an introduction of the video and an explanation
of forensic interviewing. Later, on cross-examination, Mr. Ortiz’s counsel repeatedly and
unsuccessfully attempted to solicit testimony from Ms. Huylar regarding M.O.’s
credibility and truthfulness.

[¶30] The four-day jury trial concluded on October 5, 2012, 176 days after arraignment
on the re-filed charges, and 892 days after his initial arrest. Mr. Ortiz was convicted on
all three counts of second-degree sexual assault. Mr. Ortiz submitted a timely notice of
appeal.

                                                DISCUSSION

I.      Was Mr. Ortiz denied his right to a speedy trial?

[¶31] Mr. Ortiz argues that his right to a speedy trial was violated. In the initial action,
125 days elapsed between Mr. Ortiz’s arraignment and his signing of a waiver of his right
to a speedy trial. In the second action, 173 days elapsed from arraignment to the

2
    Mr. Ortiz stipulated to the admissibility of the content of the interview.


                                                         6
beginning of trial on October 2, 2012. Excluding the five days between the State’s
dismissal and re-filing, 887 days elapsed between Mr. Ortiz’s initial arrest and his final
conviction on October 5, 2012. Considering all of these time periods, individually and
cumulatively, where appropriate, we find no violation of Mr. Ortiz’s right to a speedy
trial.

[¶32] This Court performs a de novo review of speedy trial claims to ensure that the
mandates of the rules of criminal procedure and constitutional guarantees have been met.
Almada v. State, 994 P.2d 299, 304 (Wyo. 1999). Our analysis will address both the state
and constitutional questions.

               We begin by calculating the time between defendant’s
               arraignment and trial, excluding the time periods specified in
               W.R.Cr.P. 48(b)(3). Delays of fewer than 120 days are
               permissible. If a delay has exceeded 120 days, we determine
               whether the defendant has made a written demand for a
               speedy trial or otherwise vigorously asserted his rights under
               W.R.Cr.P. 48. If the defendant has not done so, we apply the
               four-part constitutional test articulated in Barker v. Wingo,
               407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101
               (1972), and adopted in Cosco v. State, 503 P.2d 1403, 1405
               (Wyo. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2164, 36
               L.Ed.2d 693 (1973), to ensure that the defendant’s
               constitutional guarantee to a speedy trial has been satisfied.

Detheridge v. State, 963 P.2d 233, 235 (Wyo. 1998) (citations omitted). 3

A.   W.R.Cr.P. 48(b)

[¶33] “A criminal charge shall be brought to trial within 180 days following arraignment
unless continued as provided in this rule.” W.R.Cr.P. 48 (b)(2). Calculating the 180-day
provision of Rule 48 is a simple matter of arithmetic, beginning with arraignment and
ending with commencement of trial, excluding any time periods specified in the rule.
Berry v. State, 2004 WY 81, ¶ 21, 93 P.3d 222, 228 (Wyo. 2004). Where the State
dismisses then re-files the charges, the 180-day period begins again from the second
arraignment to trial. Id. at ¶ 22, at 228; Hall v. State, 911 P.2d 1364, 1370 (Wyo. 1996).
In the present case, there were two separate proceedings, and therefore two separate
calculations to consider under W.R.Cr.P. 48.


3
 Detheridge was decided under an earlier version of the rule. Rule 48(b) now permits 180 days between
arraignment and trial.



                                                 7
[¶34] Mr. Ortiz was arrested on April 27, 2010, in the initial action, and released the
next day. He was then arraigned on June 10, 2010. The original trial date was set for
August 3, 2010, however it was reset more than ten times due to motions and requests for
continuances by Mr. Ortiz.

[¶35] Mr. Ortiz filed a signed waiver of speedy trial on October 13, 2010, 125 days after
his arraignment. He also filed another waiver of speedy trial on February 28, 2011.4
Filing a signed waiver of speedy trial by the defendant effectively stops the clock
pursuant to W.R.Cr.P. 48. See McEwan v. State, 2013 WY 158, ¶ 34, 314 P.3d 1160,
1169 (Wyo. 2013). Because Mr. Ortiz filed such a waiver on October 13, 2010, 125 days
after his arraignment and well within the Rule 48(b) limit, his right to a speedy trial under
Wyoming rules was not violated in the initial action.

[¶36] On January 5, 2012, the district court dismissed the charges in the initial action
without prejudice. Five days later, the State re-filed charges against Mr. Ortiz under the
statute in effect at the time of the crimes. 5 Mr. Ortiz was arraigned April 12, 2012. The
trial began October 2, 2012, 173 days after arraignment, and within the 180-day limit
provided in Rule 48(b).

[¶37] Because both actions fall within the permissible period specified in W.R.Cr.P.
48(b), we find no violation of Mr. Ortiz’s right under the Wyoming Rules of Criminal
Procedure.

B.    Constitutional Analysis

[¶38] We next turn to the question of whether Mr. Ortiz’s constitutional right to a
speedy trial was violated by the cumulative delay in the two proceedings.

[¶39] The Sixth Amendment guarantees every criminal defendant a speedy trial. U.S.
Const. amend. VI; Humphrey v. State, 2008 WY 67, ¶ 20, 185 P.3d 1236, 1243 (Wyo.
2008). For its constitutional speedy trial analysis, this Court adopts the four-factor test
articulated in Barker v. Wingo, 407 U.S. 514, 530-33, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d
101 (1972); Cosco v. State, 503 P.2d 1403, 1405 (Wyo. 1972), cert. denied, 411 U.S.
971, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973). The Barker test requires balancing (1) the
length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right,
and (4) the prejudice to the defendant. Boucher v. State, 2011 WY 2, ¶ 9, 245 P.3d 342,
348 (Wyo. 2011); Strandlien v. State, 2007 WY 66, ¶ 6, 156 P.3d 986, 990 (Wyo. 2007).
No individual factor is dispositive. Boucher, 2011 WY 2, ¶ 9, 245 P.3d at 348. The
4
  Though Mr. Ortiz filed a motion to dismiss for lack of speedy trial on February 17, 2011, we find it
irrelevant to this analysis. The motion specifically stated, “[T]his Motion is not brought based upon the
proceeding since the Defendant was charged because he admits and stipulates that: He has filed a Waiver
of Speedy Trial. . . .”
5
  Sexual assault in the second degree. Wyo. Stat. Ann. § 6-2-303(a)(v).


                                                   8
ultimate “inquiry is whether the delay in bringing the accused to trial was unreasonable,
that is, whether it substantially impaired the right of the accused to a fair trial.” Warner
v. State, 2001 WY 67, ¶ 10, 28 P.3d 21, 26 (Wyo. 2001) (quoting Wehr v. State, 841 P.2d
104, 112 (Wyo. 1992)).

       1. Length of Delay

[¶40] For purposes of the constitutional analysis, the speedy trial clock begins to run at
the time of arrest, information, or indictment, whichever occurs first. Boucher, 2011 WY
2, ¶ 10, 245 P.3d at 349. Dismissal and re-filing the charges does not restart the clock.
Id. “[H]owever, the interim period between dismissal of charges and re-filing is not
counted as long as the defendant is neither under arrest nor formally charged.” Id. The
right to a speedy trial “continues until the defendant is convicted, acquitted or a formal
entry is made on the record of his case that he is no longer under indictment.” Berry,
2004 WY 81, ¶ 32, 93 P.3d at 231 (quoting 4 Wayne R. LaFave, Jerold H. Israel, &
Nancy J. King, Criminal Procedure § 18.1(c), at 670-71 (2d ed. 1999)).

[¶41] Mr. Ortiz’s initial arrest occurred on April 27, 2010, and he was convicted on
October 5, 2012. Excluding the five days between the State’s dismissal and re-filing, 887
days elapsed between Mr. Ortiz’s initial arrest and his conviction. We previously held
that a 500-day delay is presumptively prejudicial and warrants further analysis of the
Barker factors. Miller v. State, 2009 WY 125, ¶ 39, 217 P.3d 793, 805 (Wyo. 2009)
(citing Campbell v. State, 999 P.2d 649, 655-56 (Wyo. 2000)). Therefore, we will
consider the remaining factors here.

       2. Reason for Delay

[¶42] In reviewing the second factor, reason for delay, this Court examines which party
was responsible for the delay. Miller, 2009 WY 125, ¶ 40, 217 P.3d at 805. “[D]elays
attributable to the defendant may disentitle him to speedy trial safeguards.” Berry, 2004
WY 81, ¶ 35, 93 P.3d at 232. “[D]elays attributable to changes in defense counsel, to the
defendant’s requests for continuances, and to the defendant’s pretrial motions are all
considered delays attributable to the defense.” Miller, 2009 WY 125, ¶ 40, 217 P.3d at
805 (citing Strandlien, 2007 WY 66, ¶ 12, 156 P.3d at 991). With respect to the
prosecution, “[a] deliberate attempt to delay the trial in order to hamper the defense
should be weighted heavily against the government.” Berry, 2004 WY 81, ¶ 36, 93 P.3d
at 232 (quoting Wehr, 841 P.2d at 112-13).

[¶43] Our examination of the record reveals the majority of delays resulted from Mr.
Ortiz’s actions. In fact, Mr. Ortiz’s disregard for his speedy trial rights is best
exemplified by his counsel’s response to the trial judge’s speedy trial concerns at a July
14, 2011 status hearing, “[m]y client doesn’t care. Whatever, Your Honor.”



                                             9
[¶44] Part of the delay was caused by Mr. Ortiz’s countless improper praecipes. Prior to
the State’s dismissal of the original charges in the initial action, Mr. Ortiz filed multiple
praecipes for subpoenas duces tecum for more than ten different individuals or
organizations. In its order quashing all outstanding subpoenas, the district court noted
that the praecipes failed to comply with W.R.Cr.P. 17(d), requiring all books, papers,
documents and other objects of the subpoena to be delivered to the court for in camera
review. Nevertheless, Mr. Ortiz continued to file subpoenas improperly requesting all
documents be delivered directly to the defense. Once again, upon a motion by the State,
the district court issued an order quashing these outstanding and defective subpoenas.

[¶45] Mr. Ortiz also filed numerous motions in the initial action. On January 7, 2011,
Mr. Ortiz filed a motion to dismiss, arguing that his right to due process of law was
violated because the trial transcript from Mr. Ortiz’s son’s divorce case was missing from
court records. On January 12, 2011, Mr. Ortiz filed a motion to produce and a motion in
limine. On February 17, 2011, Mr. Ortiz filed a motion to dismiss for lack of speedy
trial. On June 3, 2011, Mr. Ortiz filed a motion to have the district court reexamine its
earlier order providing for in camera review of DFS records. On August 25, 2011, Mr.
Ortiz filed a motion requesting a hearing on whether the victim’s testimony had been
tainted. On September 8, 2011, Mr. Ortiz filed a motion to bifurcate the taint hearing.
On September 14, 2011, Mr. Ortiz’s new counsel filed an entry of appearance on his
behalf.

[¶46] Responding to the numerous subpoenas, defective subpoenas, and motions, all
delayed the course of the initial action and were caused by Mr. Ortiz. Additionally, our
review of the record reveals at least ten times in the initial action that the trial date was
continued at Mr. Ortiz’s request.

[¶47] After the State re-filed the charge in the second action, Mr. Ortiz filed two motions
to dismiss for lack of speedy trial, the first filed January 18, 2012, and the second filed
February 9, 2012. He subsequently filed two motions to continue arraignment on
February 28 and March 26, 2012, and a peremptory disqualification of Judge Campbell
on March 2, 2012.

[¶48] On March 20, 2012, 693 days after arrest, the district court reviewed Mr. Ortiz’s
two motions to dismiss for lack of speedy trial. At the hearing, the district court found
most of the delays attributable to Mr. Ortiz:

                    During my recitation of the pleadings in the first file, I
              will note that there are dozens of pleadings filed by the
              defense beginning June 8, 2010 . . . .

                    There are also, and I haven’t counted these either, but I
              would guess a dozen or two dozen pr[a]ecipes for subpoena


                                             10
              duces tecum filed by [defense counsel] seeking the attendance
              of various people either at his office or at the courthouse. . . .

                      Those same subpoenas duces tecum were filed
              repetitively during the proceeding in the first case. The State
              was obliged to move to quash those subpoenas as were
              attorneys representing the people who had been subpoenaed.

                     ....

                    The transcript reveals that . . . [the district court]
              commented to the effect, “The motions don’t comply with
              Rule 17 . . . .”

                     Despite that comment, [defense counsel] continued to
              file subpoena duces tecum . . . all essentially on the same
              group of people.

                     It took time for the individuals upon whom the
              subpoenas were served to respond to the subpoenas, to
              arrange for attorneys to represent them, to file motions to
              quash those subpoenas, for the State to object to the
              subpoena[s].

                     ....

                     All of these actions by the defense, . . . consumed time.

[¶49] Finally, in its order denying Mr. Ortiz’s two motions for lack of speedy trial, dated
April 9, 2012, the district court found:

              The delay of more than 693 days does not weigh in favor of
              [Mr. Ortiz] because [Mr. Ortiz] has been responsible for
              almost all of the delays between his arrest and his upcoming
              trial. He has filed numerous pretrial motions, numerous
              pr[a]ecipes for subpoena duces tecum (despite being warned
              that they will not be issued unless they are in accordance with
              the rules), and requested multiple continuances.

[¶50] In spite of the district court’s admonition, on August 21, 2012, Mr. Ortiz filed a
motion to reopen and reconsider any and all motions previously filed. The motion lists
all of Mr. Ortiz’s previous motions and requests for reconsideration, even for those
motions that were granted. The district court eventually considered this motion on


                                             11
October 1, 2012, one day before trial, and denied review of those motions that were final
under the initial action, and reserved ruling on the other issues for trial.

[¶51] There are only two apparent delays attributable to the State: (1) the dismissal and
re-filing of charges against Mr. Ortiz, which resulted in a delay of five days; and (2) the
May 12, 2011 motion to vacate trial setting and reset trial to give the State and defense
more time for plea negotiations. These delays hardly qualify as “deliberate attempt[s] to
delay the trial in order to hamper the defense.” Berry, 2004 WY 81, ¶ 36, 93 P.3d at 232
(quoting Wehr, 841 P.2d at 112-13). The remaining delays in this case are attributable to
Mr. Ortiz and therefore this factor weighs heavily in favor of the State.

       3. Defendant’s Assertion of the Right

[¶52] The third factor to consider is the defendant’s assertion of his right to a speedy
trial. Boucher, 2011 WY 2, ¶ 9, 245 P.3d at 348. The failure to assert the right to a
speedy trial, while not necessary to prove a violation of that right, weighs heavily in
determining whether that right was violated. Strandlien, 2007 WY 66, ¶ 13, 156 P.3d at
991; Barker, 407 U.S. at 532, 92 S.Ct. at 2192-93.

[¶53] Mr. Ortiz did assert his right to a speedy trial by filing three motions to dismiss for
lack of speedy trial. However, the first motion to dismiss was followed, eleven days
later, by Mr. Ortiz filing a waiver of speedy trial; and, his final motion was followed by
two motions to continue arraignment, one motion to continue the trial, a peremptory
disqualification of the sitting judge, and his motion to reconsider all previous motions.

[¶54] We recognize that, “[a] signed waiver of speedy trial does not give the State free
reign to delay a defendant’s trial unreasonably for all time.” Miller, 2009 WY 125, ¶ 36,
217 P.3d at 804. However, when the defendant has waived his speedy trial right, and
then proceeds to cause numerous delays, those facts weigh substantially in favor of the
State.

[¶55] Furthermore, all three of Mr. Ortiz’s motions to dismiss for lack of speedy trial
were premised on prearrest delay, rather than the post-arrest period that is the focus of
our speedy trial constitutional analysis. In his first motion to dismiss, Mr. Ortiz
conceded:

              1. That this Motion is not brought based upon the proceeding
                 since the Defendant was charged because he admits and
                 stipulates that:

                 a. He has filed a Waiver of Speedy Trial[.]

                 b. There are pending Motions that need to be resolved.


                                             12
                 c. There has been good cause and it was in the interests
                    of [j]ustice that the [t]rial date was continued.

Instead, Mr. Ortiz’s motion asserted that the “delay since the date of the initial reporting
of the allegations to the date of the information being filed,” was unconstitutional. In his
other two motions to dismiss, Mr. Ortiz again argues only that he was prejudiced by the
delay prior to charging.

[¶56] The speedy trial clock begins to run upon the date of arrest, indictment, or filing of
information, whichever occurs first. Boucher, 2011 WY 2, ¶ 10, 245 P.3d at 349. This
Court has found that the speedy trial clause has no application to prearrest delays. Black
v. State, 820 P.2d 969, 970 (Wyo. 1991). In Black, this Court adopted the position of the
United States Supreme Court.

              [T]hat as far as the Speedy Trial Clause of the Sixth
              Amendment is concerned, such delay is wholly irrelevant,
              since our analysis of the language, history, and purposes of
              the Clause persuaded us that only “a formal indictment or
              information or else the actual restraints imposed by arrest and
              holding to answer a criminal charge . . . engage the particular
              protections” of that provision.

820 P.2d at 970 (quoting United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463,
30 L.Ed.2d 468 (1971)).

[¶57] Because all three of Mr. Ortiz’s speedy trial motions argue prearrest delay, they do
not assert the right to a speedy trial as provided by the Sixth Amendment. While such
prearrest delays do implicate the due process rights of the Fifth Amendment to the United
States Constitution, Mr. Ortiz failed to present any cogent argument regarding a due
process violation. Sonnett v. First Am. Title Ins. Co., 2013 WY 106, ¶ 26, 309 P.3d 799,
808 (Wyo. 2013) (This Court will not address arguments that lack any cogent argument
or citation to relevant authority.).

[¶58] Our analysis of the third factor finds that Mr. Ortiz waived his speedy trial rights
twice. His actions subsequent to asserting his speedy trial right caused numerous
procedural delays, and, furthermore, his assertions erroneously applied prearrest delay to
a speedy trial analysis. Taking these facts into account, we find Mr. Ortiz’s assertion of
his speedy trial insufficient to weigh in his favor.




                                            13
       4. Prejudice to Defendant

[¶59] The fourth factor requires us to consider whether the delay prejudiced Mr. Ortiz.
To evaluate prejudice for a speedy trial analysis, we consider, “(1) lengthy pretrial
incarceration; (2) pretrial anxiety; and, (3) impairment of the defense.” Berry, 2004 WY
81, ¶ 46, 93 P.3d at 237 (quoting Harvey v. State, 774 P.2d 87, 96 (Wyo. 1999)); Barker,
407 U.S. at 532, 92 S.Ct. at 2193.

[¶60] First, Mr. Ortiz makes no argument regarding his pretrial incarceration, and
therefore we will not consider it.6

[¶61] Second, with regard to pretrial anxiety, this Court has said, “because a certain
amount of pretrial anxiety naturally exists, a defendant must demonstrate he suffered
prejudice in an extraordinary or unusual manner.” Miller, 2009 WY 125, ¶ 44, 217 P.3d
at 805 (internal quotes and citations omitted). Furthermore, a bare assertion of anxiety
will not suffice. Id. at ¶ 44, at 806. Nevertheless, a bare assertion is all that Mr. Ortiz
presents with this passing reference: “[t]he victim, the witness and the defendant all
suffered pre-trial anxiety as well as impairment of the defense by fading memories,
evidence and the prosecutions [sic] play on the fading memories to infer guilt.” Without
further articulation, this Court places little significance on this bare assertion.

[¶62] Third, and most important of the prejudice factors, we consider impairment of the
defense. Miller, 2009 WY 125, ¶ 45, 217 P.3d at 806. “This inquiry is designed to
prevent a defense from becoming impaired by death, disappearance, or memory loss of
witnesses for the defense . . . .” Id.

[¶63] Mr. Ortiz argues that the delay caused memory loss to him and the alleged victim.
He offers no proof as to how those memories were impaired from the time of his initial
arrest to the trial -- the period we are concerned with under our constitutional speedy trial
analysis. Instead, Mr. Ortiz points to the time prior to his arrest, which is irrelevant to
our analysis.

[¶64] Mr. Ortiz has failed to establish any of the three prejudice factors under the fourth
and final Barker factor.

[¶65] After considering all four factors of the Barker speedy trial constitutional analysis,
we conclude that the delay did not “substantially impair[] the right of the accused to a fair
trial.” Warner, 2001 WY 67, ¶ 10, 28 P.3d at 26 (quoting Wehr, 841 P.2d at 112). While
there was a considerable delay between Mr. Ortiz’s initial arrest and trial, the delay was
primarily attributable to Mr. Ortiz. He also waived his right to a speedy trial twice and

6
 This is probably because throughout the proceedings, Mr. Ortiz only spent two days in jail. Mr. Ortiz
was released on bond on the day following his initial arrest.


                                                 14
caused numerous procedural delays indicating a less than vigorous assertion of his right.
Finally, he has failed to demonstrate prejudice to his defense as a result of the delay.

II.   Did the district court properly admit forensic interview evidence as a prior
      consistent statement?

[¶66] The trial court admitted into evidence a videotaped interview of the victim, M.O.,
with forensic interviewer Ms. Huylar as a prior consistent statement. Mr. Ortiz argues
that the evidence is (1) impermissible hearsay, and (2) M.O. should have been subject to
cross-examination before admission of a prior consistent statement.7 We find that the
trial court properly admitted the video.

[¶67] This Court reviews alleged errors relating to the admission of evidence for an
abuse of discretion. Marquess v. State, 2011 WY 95, ¶ 12, 256 P.3d 506, 510 (Wyo.
2011). “Determining whether the trial court abused its discretion involves the
consideration of whether the court could reasonably conclude as it did, and whether it
acted in an arbitrary and capricious manner.” Lancaster v. State, 2002 WY 45, ¶ 11, 43
P.3d 80, 87 (Wyo. 2002) (citing Trujillo v. State, 2 P.3d 567, 571 (Wyo. 2000)). A trial
court’s evidentiary rulings “are entitled to considerable deference,” and will not be
reversed “so long as there exists a legitimate basis for the trial court’s ruling . . . .”
Armstrong v. Hrabal, 2004 WY 39, ¶ 10, 87 P.3d 1226, 1230 (Wyo. 2004) (internal
quotes and citations omitted).

[¶68] Prior consistent statements are not considered hearsay and may be admissible if
they meet four criteria: (1) the declarant testifies at trial; (2) the declarant is subject to
cross-examination; (3) the prior statement is consistent with the declarant’s trial
testimony; and (4) the prior statement is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive. W.R.E.
801(d)(1); Maier v. State, 2012 WY 50, ¶ 11, 273 P.3d 1084, 1087 (Wyo. 2012).

[¶69] The forensic video interview met all four prior consistent statement requirements.
M.O. testified and was subject to cross-examination. The video interview matched her
trial testimony -- that Mr. Ortiz had sexually molested her when she was a child. Lastly,
the video interview rebutted Mr. Ortiz’s claim of fabrication.

[¶70] “The charge of fabrication or improper motive need not come only as a specific
allegation during cross-examination; rather, it may be made by implication or innuendo,
and it may be found in the ‘thrust’ of the defenses and testimony presented.” Maier,
2012 WY 50, ¶ 13, 273 P.3d at 1088 (quoting Lancaster, 2002 WY 45, ¶ 18, 43 P.3d at
7
 Mr. Ortiz also contends the video was improperly admitted because M.O. was not competent to testify.
Because he provides no cogent argument to support this contention, we will not address it. Sonnett, 2013
WY 106, ¶ 26, 309 P.3d at 808.



                                                  15
89). The opening statements made by the defense counsel suggested that M.O. fabricated
the sexual abuse allegation against her grandfather so she would not have to live with her
father. The forensic video was admitted to rebut this accusation, demonstrating the
consistency of M.O.’s statements from 2006 through the trial.

[¶71] Mr. Ortiz contends that the State could present the interview evidence only after
he cross-examined M.O. 8 In his brief, Mr. Ortiz argues, “other authority provides good
reasoning concerning whether a temporal requirement should be applied in admitting
such evidence[.]” Mr. Ortiz provides none of these authorities.

[¶72] The thrust of the defense, as presented in Mr. Ortiz’s opening statement, was that
the victim had reason to fabricate the charges against him. Once this allegation of
fabrication was introduced, the State was free to introduce video evidence as a prior
consistent statement, even if that introduction occurred before M.O.’s cross-examination.

III. Did testimony from a forensic interviewer or a detective improperly vouch for the
     credibility of the victim?

[¶73] Mr. Ortiz argues that the expert testimony of Ms. Huylar and Detective Eddy
impermissibly vouched for the credibility of the victim. We find otherwise.

[¶74] Where a defendant fails to assert an objection to challenged testimony, as here, the
reviewing court applies a plain error standard of review. Large v. State, 2008 WY 22,
¶ 31, 177 P.3d 807, 816 (Wyo. 2008). “This standard requires the alleged error 1) be
clearly reflected in the record, 2) be a violation of a clear and unequivocal, not merely
arguable, rule of law, and 3) deny an appellant a substantial right resulting in material
prejudice.” Id. (quoting Sanderson v. State, 2007 WY 127, ¶ 16, 165 P.3d 83, 89 (Wyo.
2007)). Finding plain error is an exceptional circumstance, and it will only be found
where the error seriously affects the fairness or integrity of judicial proceedings. Id. at
¶ 31, 177 P.3d at 816-17. “The appellant bears the burden of proving plain error.”
Marquess, 2011 WY 95, ¶ 9, 256 P.3d at 509 (quoting Christensen v. State, 2010 WY 95,
¶ 6, 234 P.3d 1229, 1230 (Wyo. 2010)).

[¶75] “It is well established in Wyoming that an expert witness cannot vouch for the
truthfulness or credibility of an alleged victim.” Seward v. State, 2003 WY 116, ¶ 19, 76
P.3d 805, 814 (Wyo. 2003) (quoting Zabel v. State, 765 P.2d 357, 360 (Wyo. 1988)).
“[E]xpert testimony that discusses the behavior and characteristics of sexual assault
victims and the range of responses to sexual assault encountered by experts is
admissible.” Id. at ¶ 26, 76 P.3d at 816-17 (quoting Rivera v. State, 840 P.2d 933, 939
(Wyo. 1992)). This Court has reasoned that such testimony “assists the jury in
understanding some of the aspects of the behavior of victims and, so long as there is no

8
    At trial, Mr. Ortiz objected only to the timing of the statement. He stipulated to the content.


                                                       16
comment on the credibility or truthfulness of the victims, it does not invade the province
of the jury.” Id. at ¶ 27, at 817 (quoting Rivera, 840 P.2d at 939).

[¶76] On direct examination, Ms. Huylar testified that forensic interviews enable
children to tell their story by asking non-leading, open-ended questions. She explained
her interview process -- rapport building, assessment of verbal skills, and other
developmental assessments. She also explained that she evaluates whether a child has
been influenced by a third party. Ms. Huylar went on to discuss how children typically
disclose that something happened to them, and when, how, and why children disclose.
Finally, Ms. Huylar testified concerning the development of children’s memory, how
memory evolves, what children remember, and emotional responses associated with
memories. At every juncture in her testimony, Ms. Huylar remained within the
permissible domain of generalized expert knowledge. In fact, our review of her
testimony notes that Ms. Huylar only mentioned the victim, M.O., in order to confirm
that Ms. Huylar actually interviewed M.O.

[¶77] In his brief, Mr. Ortiz provides a laundry list of fragments of Ms. Huylar’s
testimony to support his argument that she impermissibly vouched for M.O.’s credibility.
He inserts confusing and conclusory parentheticals following each quote:

              “[A] forensic interview is a way to help kids tell their story in
              a manner that does not taint, influence or tamper with in any
              way”; “I do rapport building, developmental assessment to
              make them comfortable (coercion); “I lay down the rules”
              (position of authority), “I make sure they know the difference
              between truth and lies and make them promise to tell only the
              truth” (coercion); “I assess for coaching, but I can’t bring up
              the topic or its coaching” (she brought it up) . . . “false
              allegations do occur[.]”

(Citations omitted.)

[¶78] Mr. Ortiz makes a conclusory statement that, “[t]his type of bolstering has been
deemed reversible error[,]” citing to Zabel v. State, 765 P.2d 357 (Wyo. 1988). Zabel,
however, is distinguishable from this case. In Zabel, an appeal of a conviction for
immodest, immoral and indecent liberties, this Court found that the admission of expert
testimony on the victim’s credibility amounted to reversible error. 765 P.2d at 358. We
found that the expert witness first made objective statements about the veracity of child-
victims and then proceeded to apply those objectives to the victim in the case.

              A: . . . I use [] example children out to harm someone. I
              very much look at those ambivalent feelings because if, in



                                             17
                fact, the issue is ‘Let’s get this person,’ there may be a motive
                behind it and I look for what’s known as secondary gains.

                Q: Now, a secondary gain–

                A: A motive–

                Q: –is a motive to fabricate?

                A: That is correct, something that the child is going to gain,
                in reporting this. Taking [the younger girl] as an example,
                in her case it was extremely difficult for her to be able to
                report this, so it was actually a detriment to report[.]

Zabel, 765 P.2d at 359 (emphasis added). Unlike in Zabel, here, the trial transcript
indicates that Ms. Huylar gave generic and objective forensic interview information only,
merely laying the foundation for introduction of the video interview.

[¶79] Mr. Ortiz also cites Seward in support of his argument that Ms. Huylar’s expert
testimony improperly vouched for the victim’s credibility. In Seward, this Court found
that the same Ms. Huylar presented “truthfulness criteria” testimony and then proceeded
to assess the credibility of the victim’s interview responses based on those criteria. 2003
WY 116, ¶ 20, 76 P.3d at 814. Specifically, in Seward, Ms. Huylar explained the “very
purpose of a forensic interview is to assess whether the victim’s disclosure was credible
or not,” and then she proceeded to describe “significant” contextual details that supported
her “conclusion” that the victim would “have had to have some kind of experience to be
able to describe that.” Id. (internal quotes omitted). In Seward, Ms. Huylar crossed the
boundary from general expert testimony into case-specific application. Here that did not
happen, in spite of defense counsel’s best efforts.9

[¶80] In his cross-examination of Ms. Huylar, Mr. Ortiz’s counsel encouraged Ms.
Huylar to vouch for the victim’s credibility. Ms. Huylar consistently maintained that
credibility determinations were not her responsibility.



9
  This is not the first time Mr. Ortiz’s counsel has had difficulty in distinguishing between Ms. Huylar’s
testimony in this case and her testimony in Seward. In his original Appellant’s Brief filed in this appeal,
he included Ms. Huylar’s testimony in Seward without attributing it to that case, but instead making it
appear to have been her testimony in this case. After this was brought to this Court’s attention by motion
of the State, this Court, without opining whether the “misrepresentations were intentional, inadvertent, or
otherwise,” entered its order imposing a $500 sanction and requiring Mr. Ortiz’s counsel to “file a revised
Appellant’s Brief that does not include the misrepresentations . . . .”



                                                    18
              Q: And so not every child that comes to you is telling the
              truth; is that right?

              A: [I]t’s not my role to determine if [a child] is telling the
              truth, and so that’s not my determination. My determination
              is just to help them tell a story if they have a story to tell.

              ....

              Q: [Y]ou will have conversations with [law enforcement]
              and tell them whether you think this case should go forward
              or not, correct?

              A: . . . My job is not to tell whether or not I feel [a criminal
              investigation] should go forward or not at all.

              ....

              Q: [I]f someone told you that they did have a conversation
              with somebody about the specific sexual encounter and law
              enforcement goes and talks to that person about it and this
              person again says, “It didn’t happen.” That would cause you
              some concern about the validity of the statement?

              A: Again, it is not my job to determine the validity of a
              child’s sex statement. . . .

              Q: So it’s not your job to determine the validity of a child’s
              sex statement?

              A: No, that’s left up to the Judge and jury to determine
              whether or not children are telling the truth or not.

[¶81] We reject attempts by a defendant to turn a trial strategy into an appellate error.
See McIntosh v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2013 WY 135, ¶ 54,
311 P.3d 608, 621 (Wyo. 2013) (“The doctrine of invited error prohibits a party from
raising on appeal alleged trial court errors that were induced by that party’s actions.”);
Pendleton v. State, 2008 WY 36, ¶ 16, 180 P.3d 212, 217-18 (Wyo. 2008).

[¶82] Ms. Huylar’s expert testimony generally informed the jury of the behavior of
young victims of sexual assault. It provided a context for the introduction of the video of
the forensic interview she conducted with M.O. in 2006. She resisted efforts by Mr.



                                            19
Ortiz’s counsel to elicit testimony regarding M.O.’s credibility.                We find that Ms.
Huylar’s testimony was properly admitted by the trial court.

[¶83] Additionally, Mr. Ortiz contends that Officer Eddy improperly vouched for M.O.’s
credibility. The State points out, and this Court finds, that Mr. Ortiz has failed to identify
facts or to present cogent argument to support this contention. This Court has long held:

               An appellant is required to present this court with relevant
               authority and cogent argument. It is not enough to identify a
               potential issue with the expectation that this court will flesh
               out the matter from there. The appellant, at minimum, must
               attempt to relate the rule of law he depends upon to the facts
               of his case.

Sonnett, 2013 WY 106, ¶ 26, 309 P.3d at 808 (quoting Elder v. Jones, 608 P.2d 654, 660
(Wyo. 1980)).

[¶84] Mr. Ortiz provides only a series of fragmented and inaccurate citations from
Officer Eddy’s testimony. For example, he cites Officer Eddy as stating, “this case
needed to be re-evaluated due to more details and witnesses,” when our review of the
transcript reveals that this was actually a question posed by defense counsel on cross-
examination.

[¶85] Mr. Ortiz fails to accurately cite to any testimony which might be objectionable, or
to provide legal analysis applying the law to facts which might lead us to conclude that
Detective Eddy engaged in impermissible credibility vouching, and therefore we decline
to address this argument.10

IV. Was the Bill of Particulars sufficient for Mr. Ortiz to prepare a defense?

[¶86] Mr. Ortiz argues that the range of dates contained in the Bill of Particulars was
vague, preventing him from adequately preparing a defense. We find that the Bill of
Particulars was sufficient.

[¶87] “Because the right to notice of criminal charges is of constitutional magnitude and
the determination on the adequacy of the notice is a question of law, we review the issue
de novo.” Heywood v. State, 2009 WY 70, ¶ 4, 208 P.3d 71, 72 (Wyo. 2009).




10
   Mr. Ortiz also claims that the prosecutor improperly vouched for the victim’s credibility. Again, Mr.
Ortiz provides an inadequate citation to the record and no cogent argument that would support this
allegation. We therefore decline to address it.


                                                  20
[¶88] This Court has held “that where the specific date is not a required element of the
crime, then alleging a general time period in lieu of a specific date, is sufficient to give a
defendant notice and allow him to adequately prepare a defense.” Heywood, 2009 WY
70, ¶ 8, 208 P.3d at 73 (quoting Wease v. State, 2007 WY 176, ¶ 44, 170 P.3d 94, 108
(Wyo. 2007)). Furthermore, in the context of child sexual abuse cases, “young children
cannot be expected to be exact regarding times and dates,” and, it is sufficient to
“establish the transaction rather than the exact date or dates in question.” Id. at ¶ 8, 208
P.3d at 73.

[¶89] Here, the Bill of Particulars alleged that Mr. Ortiz committed second-degree
sexual assault three times against M.O. It explained that Mr. Ortiz digitally penetrated
M.O., and described the clothes she was wearing at the time. It also provided a range of
dates. These details sufficiently cover the requisite elements of the alleged crime, and
taken together with the Information and Affidavit of Probable Cause, were sufficient to
allow Mr. Ortiz to prepare for trial.

V.   Did the circuit court abuse its discretion when it granted an ex parte motion
     quashing Mr. Ortiz’s subpoena to call the victim and her mother as witnesses at a
     preliminary hearing?

[¶90] Mr. Ortiz attempted to subpoena the victim and her mother to appear at the
January 26, 2012 preliminary hearing. On the same day, the State filed an ex parte
motion to quash, stating in part:

              3) Defendant’s counsel has subpoenaed the victim and the
                 victim’s mother for preliminary examination in order to
                 have two chances to examine the witnesses;

              4) Defendant’s counsel intends to go on a fishing expedition
                 and to attempt to discredit the victim and her mother,
                 tactics that are improper for purposes of a preliminary
                 examination.

[¶91] The circuit court judge signed the order quashing the subpoenas ex parte, prior to
the preliminary hearing and without service of the motion on Mr. Ortiz. We find that the
circuit court committed harmless error.

[¶92] This Court reviews rulings on pretrial motions, such as a motion to quash, for an
abuse of discretion. Schreibvogel v. State, 2010 WY 45, ¶ 12, 228 P. 3d 874, 880 (Wyo.
2010). This standard of review requires this Court to consider the reasonableness of the
trial court’s ruling on the matter. Id.




                                             21
[¶93] Determining probable cause is the purpose of the preliminary hearing. See Madrid
v. State, 910 P.2d 1340, 1343 (Wyo. 1996). Wyoming Rule of Criminal Procedure 5.1(b)
states, “[i]f from the evidence it appears that there is probable cause to believe that the
charged offense or lesser included offense has been committed and that the defendant
committed it, the judicial officer shall enter an order so finding and the case shall be
transferred to the district court for further proceedings.” In Madrid, this Court explained:

                      Rule 5.1(b), W.R.Cr.P., provides an accused the right
              to subpoena and call witnesses during his preliminary
              hearing, but this right is not absolute. This right must be
              viewed in light of the true constitutional purpose of the
              preliminary hearing, which is to obtain a determination by a
              neutral, detached fact finder that there is probable cause to
              believe a crime has been committed and that the defendant
              committed it. And although some discovery is the inevitable
              by-product of a preliminary hearing, discovery is not the
              purpose of the hearing. Thus, discretion is left to the court to
              determine whether or not the purpose for which a defendant
              seeks to introduce testimony from a witness whom he has
              subpoenaed fits within the realm of discovery rather than the
              determination of probable cause. To this end, we have stated
              that it is incumbent upon counsel to explain the relevance to
              the issue of probable cause of the testimony he seeks to
              introduce at the preliminary hearing, pursuant to a sufficient
              offer of proof.

Madrid, 910 P.2d at 1343 (citations omitted).

[¶94] W.R.Cr.P. 49(a) requires that written motions be served upon each of the parties.
Therefore, pursuant to Rule 49(a), the circuit court erred when it ruled on an ex parte
motion to quash the subpoenas for M.O. and her mother. Nevertheless, because ample
opportunity was afforded to Mr. Ortiz to refute the motion and offer proof as to why
M.O. and her mother should be able to testify at the preliminary hearing, we find that the
circuit court did not abuse its discretion and the error was harmless.

[¶95] At the hearing, the circuit court provided Mr. Ortiz the opportunity to make an
offer of proof as to why the testimony of the victim and her mother would be relevant to a
determination of probable cause. Mr. Ortiz failed to make such a showing and the order
was filed that same day.

[¶96] On appeal, Mr. Ortiz insists that this process “deprived appellant of his
constitutional rights to confront the witnesses against him . . . .” He further argues that
quashing his subpoena deprived him of the opportunity to challenge the competency and


                                            22
credibility of witnesses at the preliminary hearing. As noted above, see supra ¶ 93, the
purpose of the preliminary hearing is not to engage in discovery, or determine
competency or credibility -- it is to determine probable cause. “Questions of credibility
and weight of the evidence are appropriately determined at trial, and there is no due
process requirement for a determination of these issues in the course of determining
probable cause.” Almada, 994 P.2d at 303. Indeed, Mr. Ortiz was later given the
opportunity to confront and attack the credibility of M.O. and her mother at trial.

[¶97] Courts should grant ex parte motions to quash only in exceptional circumstances,
and where substantial rights are not affected. This was not an exceptional circumstance
and the motion should have been served on Mr. Ortiz. However, this Court finds that in
light of Mr. Ortiz’s opportunity and failure to make an offer of proof that the sought-after
testimony would serve any legitimate preliminary hearing purposes, and the fact that the
circuit court’s ruling did not affect a substantial right -- Mr. Ortiz would still be able to
confront those witnesses at trial -- the circuit court merely committed harmless error and
did not abuse its discretion.

VI. Did the district court abuse its discretion when it denied admission of sexualized
    behavior evidence on relevancy and hearsay grounds?

[¶98] At trial, Mr. Ortiz attempted to present testimony from a relative who had been
told by her daughter that the victim’s younger half-siblings had behaved in an
inappropriate, sexualized manner. The district court denied the admission of this
evidence, ruling that the evidence lacked relevance and was hearsay.

[¶99] Evidentiary rulings are within the sound discretion of the trial court. Silva v.
State, 2012 WY 37, ¶ 14, 271 P.3d 443, 447 (Wyo. 2012). In the absence of a clear abuse
of discretion, the trial court’s evidentiary rulings will not be disturbed. Id. at ¶ 14, at 448.
A trial court’s evidentiary rulings “‘are entitled to considerable deference,’ and will not
be reversed on appeal so long as ‘there exists a legitimate basis for the trial court’s
ruling. . . .” Lancaster, 2002 WY 45, ¶ 12, 43 P.3d at 87 (quoting Robinson v. State, 11
P.3d 361, 367 (Wyo. 2000)).

[¶100] First, the relative’s testimony regarding what her daughter allegedly told her
about the sexualized behavior of M.O.’s siblings is inadmissible hearsay. 11 Because this
testimony consisted of out-of-court statements offered to prove that the children acted in
an inappropriate and sexualized manner -- the truth of the matter asserted -- the district
court properly ruled that the evidence proffered was inadmissible hearsay. While Mr.
Ortiz insists that the testimony qualified as an exception to hearsay under W.R.E.

11
  “‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” W.R.E. 801. Hearsay is generally
inadmissible. W.R.E. 802.


                                                    23
804(b)(3) (statement against interest), 804(b)(4) (statement of personal or family history),
and 804(b)(6) (other exceptions), he offers no basis to apply those exceptions and we find
none.

[¶101] Second, the trial court correctly ruled the testimony was not relevant.12 Mr.
Ortiz contends the purpose of the testimony was to provide evidence that M.O.’s siblings
were also the victims of sexual assault by an unknown third party. Mr. Ortiz did not have
an expert witness available to testify that the behavior allegedly witnessed is indicative of
sexual assault. Even if such a connection were established, it does not follow that Mr.
Ortiz did not sexually assault M.O. To prove that, the jury would have had to conclude
that the unknown person who may have assaulted the other children also assaulted M.O.,
and that Mr. Ortiz did not. Furthermore, the alleged conduct of M.O.’s siblings occurred
ten years after M.O. was sexually abused and five years after her initial disclosure. The
gap between the proffered evidence and Mr. Ortiz’s suggested conclusion would require
too much speculation and confuse the jury. The district court recognized this,
commenting:

               This is all too remote. It’s confusing to me and I do this for a
               living. How is the jury going to understand the importance of
               these interrelations without any professional or technical
               expertise explaining the connection between the existence of
               the behavior you’re suggesting that has taken place and abuse
               by an unknown third person? I’m having trouble following it.

[¶102] Because the testimony would have been hearsay, was of doubtful relevance, and
would have unnecessarily confused the jury, the district court did not abuse its discretion
in finding such evidence inadmissible at trial.

VII. Did the State commit prosecutorial misconduct when it referenced a non-religious
     quote from a church sign in its opening statement?

[¶103] Mr. Ortiz argues that the State committed prosecutorial misconduct by making
“religiously charged” statements during opening statements. The prosecutor remarked:

                      A couple weeks ago I was driving on Pershing, and I
               don’t know if you do this, but I read the signs out in front of
               the churches. They have bits of wisdom on their signs.
               Because this case has been in my life so much, the sign kind

12
  “‘Relevant evidence’ means 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. 401. “Evidence which is not relevant is not admissible.” W.R.E. 402.



                                                 24
                of resonated with me and with what Mr. Custis said.[13] The
                sign said, “Courage does not always roar; sometimes it
                whispers. Listen twice.” I think as you hear the evidence, it
                will resonate with you as well.

We find no prosecutorial misconduct in this statement.

[¶104] “The general rule in Wyoming is that a failure to interject a timely objection to
an allegedly improper argument is treated as a waiver, unless the misconduct is so
flagrant as to constitute plain error and require reversal.” Armstrong v. State, 826 P.2d
1106, 1115 (Wyo. 1992) (citing Jeschke v. State, 642 P.2d 1298, 1301 (Wyo. 1982)).
Because there was no objection at trial, this Court reviews Mr. Ortiz’s allegations of
prosecutorial misconduct for plain error. Maier, 2012 WY 50, ¶ 20, 273 P.3d at 1090.
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.” Sweet v. State, 2010
WY 87, ¶ 22, 234 P.3d 1193, 1202 (Wyo. 2010). Reversal as a result of prosecutorial
misconduct is not warranted unless a reasonable probability exists that absent the error
the defendant may have enjoyed a more favorable verdict. Haynes v. State, 2008 WY 75,
¶ 23, 186 P.3d 1204, 1210 (Wyo. 2008).

[¶105] While this Court cannot find any per se prohibition against the use of religious
statements, it is well established that “[g]reat latitude is allowed counsel in argument of
cases, but counsel must . . . not make statements calculated to inflame, prejudice or
mislead the jury. . . .” Armstrong, 826 P.2d at 1115-16 (quoting State v. Hays, 408
S.E.2d 614, 624 (W. Va. 1991).

[¶106] We find no inflammation or prejudice in the prosecutor’s statement. The quote
itself is not religious.14 Review of the record indicates that this statement was a response
to Mr. Ortiz’s counsel’s opening statement, in which he warned the jury that they would
hear only one person’s testimony (the victim) of what she thinks happened. We therefore
read the statements as explaining to the jury that the case does not involve overwhelming
evidence, but the voice of one young girl. This is no more than an admonishment to the
jury to listen carefully to the evidence presented. The fact that the quote was on a church
billboard does not raise it to an inflaming or prejudicial level. Furthermore, Mr. Ortiz
offers us no basis to conclude that, absent these statements, the outcome of the trial
would have been different.

13
   This statement is in reference to Mr. Ortiz’s counsel’s remarks in voir dire that the only evidence that
will be presented against his client is the word of the victim.
14
   The State points us to the fact that the quote may be a modification of an original from an art and
inspirational quotes book having nothing to do with religion, which says: “Courage Doesn’t Always Roar.
Sometimes courage is the quiet voice at the end of the day saying, ‘I will try again tomorrow.’” Mary
Anne Radmacher, available at http://www.maryanneradmacher.net/ (last visited, May 5, 2014).


                                                    25
[¶107] The prosecution’s reference violated no rule of law, nor did it result in the denial
of a substantial right resulting in material prejudice. We therefore find no plain error in
the prosecutor’s opening statement.

                                    CONCLUSION

[¶108] Mr. Ortiz has presented no basis to reverse on any of the issues he raised on
appeal. The conviction is affirmed.




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