Gilbert Ortiz, Jr. v. The State of Wyoming

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.

26