                IN THE SUPREME COURT, STATE OF WYOMING

                                             2016 WY 33

                                                                 OCTOBER TERM, A.D. 2015

                                                                             March 9, 2016


MICHAEL ALLAN LINDSTROM,

Appellant
(Defendant),

v.                                                                     S-15-0203

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                       Appeal from the District Court of Johnson County
                          The Honorable William J. Edelman, Judge

Representing Appellant:

        Office of the State Public Defender: Diane M. Lozano, State Public Defender;
        Tina N. Olson, Chief Appellate Counsel.

Representing Appellee:

        Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
        Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Young,
        Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


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

[¶1] Appellant, Michael Allan Lindstrom, challenges the district court’s denial of his
motion for a new trial. We affirm.

                                         ISSUE

[¶2]   Appellant presents the following issue:

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

                                        FACTS

[¶3] In 2013, Appellant was convicted of ten felonies for acts perpetrated against his
ex-girlfriend, TR, their son, PR, and Appellant’s six-year-old second cousin, CS.
Lindstrom v. State, 2015 WY 28, ¶¶ 3-13, 343 P.3d 792, 794-96 (Wyo. 2015). With
respect to the acts committed against TR and PR, TR testified at trial to the following
events:

                     TR testified that Mr. Lindstrom came to her home in
             June 2012. They sat on the couch making small talk and
             watching PR play. Mr. Lindstrom asked TR if they could be
             in a relationship again, TR said no and he asked if he could at
             least “get a piece of ass.” She again said no and Mr.
             Lindstrom called her a bitch. TR took PR to his room and Mr.
             Lindstrom followed. PR began to show Mr. Lindstrom his
             room and his toys. After watching them for a few minutes,
             TR left them alone.

                    TR came back to the room about thirty minutes later
             when she heard PR say, “I don’t want to do that.” The door
             was shut, she opened it and she saw Mr. Lindstrom and PR in
             PR’s bed. TR testified that it looked like Mr. Lindstrom was
             pulling up his pants and PR’s pants. She asked them what
             they were doing and Mr. Lindstrom said they were watching a
             movie. PR ran to her and grabbed hold of her waist. He was
             trembling. She picked him up and he whispered in her ear
             that Mr. Lindstrom had made him touch his penis and pretend
             it was a Popsicle. She asked Mr. Lindstrom what he had done
             and he denied doing anything. They argued and she told Mr.
             Lindstrom that he needed to leave.



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                      TR threatened to call the police and, carrying PR,
              headed to her bedroom to get her cell phone. She made it to
              the bathroom, put PR down and told him to go in the
              bathroom and lock the door. Mr. Lindstrom followed her,
              grabbed her around the throat and said if she told anyone he
              would kill her. He shoved her against the wall and told PR to
              open the bathroom door. PR complied and Mr. Lindstrom told
              TR to go into the bathroom. Mr. Lindstrom made TR perform
              fellatio on him and then told her to touch PR’s penis. She
              refused and he slapped her. She hit him in the face and he
              began pulling down her pants and underwear. He grabbed
              PR’s hand and told him to touch her. She pushed PR’s hand
              away. Mr. Lindstrom forced her head down onto his penis.
              Then he held a Swiss army knife to her throat and told her to
              do the same thing to PR or he would kill her. After she
              complied, Mr. Lindstrom made TR and PR get into the
              shower and he urinated on TR. Mr. Lindstrom then got
              dressed and stepped out of the bathroom. TR locked the door.
              Mr. Lindstrom pounded on the door, cussing and yelling that
              he was going to kill TR. Finally, Mr. Lindstrom left the
              house.

Id., ¶¶ 8-10, 343 P.3d at 795-96. The State also presented deposition testimony of CS,
who stated that Appellant had on different occasions inserted his finger in her anus
several times, made her touch his penis, and made her perform fellatio on him. Id., ¶ 7,
343 P.3d at 795. In addition to the testimony of TR and CS, the State presented the
testimony of DFS employees and police officers who were involved in investigating the
allegations against Appellant. Their testimony about their interviews with CS, PR, and
TR tended to corroborate the allegations of child abuse and sexual assault. The State also
presented expert testimony tending to show that CS’s behavior was consistent with that
of a child who had been sexually abused. Id., ¶ 12, 343 P.3d at 796.

[¶4] After a five-day trial, the jury found Appellant guilty of two counts of first-degree
sexual assault and two counts of aggravated assault and battery for acts committed
against TR. He was found guilty of one count of first-degree sexual abuse of a minor and
one count of second-degree sexual abuse of a minor for acts committed against PR. He
was also found guilty of two counts of first-degree sexual abuse of a minor and two
counts of second-degree sexual abuse of a minor for acts committed against CS. The
district court sentenced Appellant to six terms of life in prison without the possibility of
parole on the convictions for first- and second-degree sexual abuse of a minor, and to
four terms of forty to fifty years imprisonment on the convictions for first-degree sexual
assault and aggravated assault and battery. Id., ¶ 13, 343 P.3d at 796. Appellant filed a
direct appeal from his convictions and we affirmed. Id., ¶ 1, 343 P.3d at 794.


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[¶5] In April 2015, TR wrote a letter to Appellant’s grandmother stating that Appellant
was innocent and that she had lied when testifying at trial. Appellant’s grandmother
contacted law enforcement and arranged a meeting at the Dash Inn between herself, TR,
and investigator Andy Fraser. Following the meeting, TR submitted an affidavit stating
that she had testified falsely at trial.

[¶6] In May 2015, Appellant initiated the present matter by filing a motion for a new
trial based on TR’s recantation. In response to the motion for a new trial, the State
claimed that TR’s recantation was not reliable. The State noted that TR had changed her
story multiple times prior to trial, and that she had been cross-examined at trial about her
changing story. The State also noted that, after submitting her affidavit, TR changed her
story yet again and stated that her trial testimony was true and that her affidavit was false.

[¶7] A hearing on Appellant’s motion for a new trial was held on June 10, 2015. TR
testified that her letter to Appellant’s grandmother and her affidavit were false. TR stated
that Appellant’s grandmother threatened her before she sent the letter stating that she had
testified falsely and that she was under duress when she signed the affidavit. Mr. Fraser
also testified at the hearing and stated that TR was very nervous when she signed the
affidavit. TR testified that she had previously recanted her statements prior to trial and
that she had been cross-examined about her previous recantations at trial.

[¶8] Following the hearing, the district court denied Appellant’s motion. The court
determined that the evidence did not constitute new evidence coming to knowledge since
the trial. The court also concluded the evidence was not material and would not produce
a different verdict. It further concluded the evidence was cumulative because evidence
relating to TR’s credibility had been presented at trial. Finally, the court noted that TR
“indicated that her trial testimony was truthful” and that Appellant “failed to provide
sufficient proof to the contrary.” This appeal followed.

                                       DISCUSSION

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

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


                                              3
             and the ruling is one based on sound judgment with regard to
             what is right under the circumstances, it will not be disturbed
             absent a showing that some facet of the ruling is arbitrary or
             capricious.

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

[¶10] A defendant who seeks a new trial based on newly discovered evidence must
demonstrate the following:

             (1) [t]hat the evidence has come to his knowledge since the
             trial; (2) that it was not owing to the want of due diligence
             that it did not come sooner; (3) that it is so material that it
             would probably produce a different verdict, if the new trial
             were granted; and (4) that it is not cumulative, viz., speaking
             to facts in relation to which there was evidence at the trial.

Davis v. State, 2005 WY 93, ¶ 45, 117 P.3d 454, 471 (Wyo. 2005) (quoting Opie v. State,
422 P.2d 84, 85 (Wyo. 1967)). We have repeatedly held that, in cases involving a motion
for a new trial based on recanted testimony, the weight to be given to such testimony is
for the trial court to determine:

             We see no reason for deviating from the basic rule for
             evaluating district court decisions on motions for new trial.
             Opie v. State, 422 P.2d [84,] 85 [(Wyo. 1967)]. However, we
             will enlarge on that general rule somewhat to provide
             additional guidance in cases, such as this, which involve
             recanted testimony. To that purpose, we agree with the
             Supreme Court of Montana that granting a person of
             questionable credibility and motive carte blanche to overturn
             the determination of a jury operating within the bounds of our
             constitutional protections is not conducive to the sound
             administration of justice. State v. Perry, 232 Mont. 455, 758
             P.2d 268, 275 (1988). Therefore, we adopt the following rule
             espoused by that court, as well as several others:

                    In light of the inherent suspicion surrounding recanted
                    testimony and the public interest in swift and sure
                    justice, we believe the better reasoned approach to be
                    that adopted by the Supreme Court of Kansas:

                    When a new trial is sought on the basis of recanting


                                           4
                     testimony of a prosecution witness, the weight to be
                     given such testimony is for the trial judge passing on
                     the motion for a new trial to determine. The trial judge
                     is required to grant a new trial only when he [or she] is
                     satisfied the recantation of the witness is true. . . . Id.
                     758 P.2d at 275; (quoting State v. Norman, 232 Kan.
                     102, 652 P.2d 683, 689 (1982)). See also Thacker v.
                     Commonwealth, 453 S.W.2d 566, 568 (Ky. 1970).

Davis, ¶ 45, 117 P.3d at 471 (quoting Brown v. State, 816 P.2d 818, 822 (Wyo. 1991))
(quotation marks omitted). Further, we have stated that recanted testimony

              should be viewed with the utmost suspicion, Sims v. State,
              Wyo. 1972, 495 P.2d 256, and when a motion for a new trial,
              based upon recantation, is denied by the trial court, this court
              will ordinarily be bound by that decision. Espy v. State, 1939,
              54 Wyo. 291, 92 P.2d 549, 559. In Flaim v. State, Wyo. 1971,
              488 P.2d 153, this court quoted the following language which
              is most appropriate to this case: “‘There is no form of proof
              so unreliable as recanting testimony. . . . Those experienced
              in the administration of the criminal law know well its
              untrustworthy character.’” 488 P.2d at 155.

Davis, ¶ 45, 117 P.3d at 471 (quoting Jones v. State, 568 P.2d 837, 854 (Wyo. 1977)).

[¶11] In State v. Clark, 2005 MT 330, ¶ 32, 125 P.3d 1099, 1105 (Mont. 2005), the
Montana Supreme Court overruled State v. Perry to the extent that it stood for the
proposition that a “trial judge is required to grant a new trial only when he is satisfied the
recantation of the witness is true.” The Court stated that “the plain reading of the Perry
rule is troublesome, for it inappropriately places the judge in the role of fact-finder,
inevitably, in some cases, on the key matter of the guilt or innocence of the accused.” Id.
However, the Court explicitly retained that part of the rule providing that “When a new
trial is sought on the basis of recanting testimony of a prosecution witness, the weight to
be given such testimony is for the trial judge passing on the motion for a new trial to
determine.” Id., ¶ 33, 125 P.3d at 1105. It held that this consideration continued to be
inherent to the Court’s multi-factor test for determining whether a new trial should be
granted on the basis of newly discovered evidence. Id., ¶¶ 33, 34, 125 P.3d at 1105. We
agree with this reasoning, and find that it applies with equal force to Wyoming’s multi-
factor test. Indeed, considerations of the credibility of the recanting witness are intrinsic
to the third element of our test for determining whether a new trial is warranted based on
newly discovered evidence: whether the evidence is so material that it would probably
produce a different verdict. Accordingly, in line with the Montana Supreme Court, we
conclude that a determination of the credibility of the recanting witness is an important,


                                              5
but not exclusive, factor to be considered when determining whether a new trial is
warranted. Our analysis, however, does not alter the fact that recanted testimony should
be viewed with the “utmost suspicion,” and when a motion for a new trial based on
recanted testimony is denied by the trial court, we will ordinarily be bound by that
decision. With this standard in mind, we turn to the arguments presented in this appeal.

[¶12] Appellant contends a jury should be allowed to assess the fact “that TR totally
rejected her trial testimony.” Appellant also claims that a jury should be permitted to
assess TR’s “recantation of her recantation.” According to Appellant, if TR’s recantation
should not be believed, “then it may logically follow that she was unbelievable at the
numerous other times she changed her story.” Appellant claims that this evidence would
likely result in a different verdict. We do not agree.

[¶13] As discussed above, the weight to be given to recanting testimony is for the trial
judge to determine. The district court determined that TR’s recantation was not credible
based on the evidence presented at the motion hearing. TR testified that the letter she
wrote to Appellant’s grandmother and her subsequent affidavit, stating that Appellant
was innocent, were false. She stated that she wrote the letter because Appellant’s
grandmother had threatened her by stating that she “needed to do something about”
Appellant’s imprisonment and that, if she didn’t, she “probably wouldn’t want to be in
Buffalo.” Additionally, TR stated that she was nervous when she signed the affidavit and
felt that she was under duress. Mr. Fraser confirmed that TR was very nervous when she
signed the affidavit. Ultimately, TR testified that her trial testimony, in which she stated
that Appellant had abused her and her son, was true.

[¶14] Based on the evidence presented at the hearing, the district court determined that
TR’s post-trial recantation was motivated by a fear of Appellant’s grandmother. The
court stated that

              [Appellant’s grandmother] appears to be the driving force in
              all of this. She is the one who gets a hold of Mr. Fraser. She
              is the one who gets a hold of [TR]. She shows up at the
              meeting at the Dash Inn.

                     And it’s uncontroverted that by some coincidence,
              while sitting at the Dash Inn talking about Mr. Lindstrom’s
              case, Mr. Lindstrom ends up on the phone.

                     And it is clear to this Court that there is substantial
              evidence to support the proposition that [Appellant’s
              grandmother] is working behind the scenes here and pushing
              [TR] to say on another occasion that she lied about this.



                                             6
                   And Mr. Fraser even corroborates the fact that at the
             conclusion of the meeting that he drops [TR] off over at
             [Appellant’s grandmother’s] house.

It is clear from the district court’s statements that it did not find TR’s post-trial
recantation to be credible. We defer to the district court’s determination.

[¶15] Further, we agree with the district court’s assessment that TR’s “recantation of her
recantation” constituted cumulative evidence relating to TR’s credibility. TR
acknowledged in her testimony at the motion hearing that she had changed her stories to
investigators and police multiple times during the investigation of Appellant’s crimes.
She stated that she had been cross-examined at trial about the fact that she had recanted
her story at least two times to law enforcement. As noted by the court,

                    [TR]’s veracity was a central point in the defense’s
             case and in fact they called her to testify in addition to the
             State calling her to testify.

                     And on multiple occasions the fact that she had in one
             breath said this stuff happened and then in the next breath
             said it didn’t happen was brought up before the jury.

Considering the applicable standard of review and the evidence contained in the record,
we are unable to conclude the district court abused its discretion in denying Appellant’s
motion for a new trial.

[¶16] Affirmed.




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