Petition for Writ of Certiorari — Taylor Scott Meece, Petitioner v. Wyoming

IN THE SUPREME COURT

STATE OF WYOMING

SHAWNA GOETZ.CIERK

FILED

IN THE SUPREME COURT, STATE OF WYOMING

June 9, 2023

08:31:44 AM

CASE NUMBER: S-22-0249

2023 WY 60

APRIL TERM, A.D. 2023

June 9, 2023

TAYLOR SCOTT MEECE,

Appellant

(Defendant),

v.

S-22-0249

THE STATE OF WYOMING,

Appellee

(Plaintiff).

Appealfrom the District Court of Campbell County

The Honorable James Michael Causey, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, Wyoming State Public

Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior

Assistant Appellate Counsel.

Representing Appellee:

Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen

R. Jones, Senior Assistant Attorney General; and John J. Woykovsky, Senior

Assistant Attorney General.

Before FOX, C.J., andKAUTZ, BOOMGAARDEN, GRAY, andFENN, 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.

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FOX, Chief Justice.

[TJ1] A jury convicted Taylor Scott Meece of two counts of second-degree sexual abuse

of a minor. On appeal he contends the prosecutor committed prosecutorial misconduct by

misusing a forensic interviewer’s testimony in his opening statement and closing

argument. We find no misconduct and affirm.

ISSUE

fl|2] The sole issue on appeal is whether the prosecutor committed misconduct in the

way he referred to and used the testimony of a forensic interviewer in his opening

statement and closing argument.

FACTS

[f3] RR was bom in February 2010. During the years 2017 to 2019, she lived with her

grandfather in Gillette, Wyoming along with her younger brother, her mother, and her

mother’s then-boyfriend, Taylor Meece. RR’s parents had known Mr. Meece since they

were teenagers, so RR had known him her entire life. She got along well with him, called

him “Uncle Shorty,” and considered him a “bonus dad” when her mother started dating

him.

[^}4] One night in 2017 or 2018, RR was lying in bed trying to sleep when Mr. Meece

entered her bedroom and laid down in bed next to her. He unzipped his pants, took her

right hand, and masturbated while holding her hand around his penis. He did that for a

couple of minutes and then reached under her pajamas and underwear and rubbed her

vagina with his fingers for a couple of minutes. He then got up and left. RR recalled that

she was scared, pretended to be asleep while it was happening, and did not understand

what had happened or know what to do.

[]f5] RR became withdrawn and less talkative after the incident. About a year later, she

told her younger brother MR what happened but made him promise not to tell anyone

because she was scared something else would happen. MR recalled that RR “said it might

have been [Mr. Meece], but she doesn’t really know.” He also recalled that she was

crying and begged him not to tell their parents.

[f6] Sometime after telling her brother what had happened, RR told her soon-to-be

stepsister LW. In March 2021, RR told LW’s mother, CB, about the incident while they

were at a family gathering. CB told RR she needed to tell her mother, who was attending

the same event, and took RR to her. RR told her mother, who told RR’s father, and RR’s

father took RR to the Gillette Police Department to report the incident. About a month

later, a forensic interviewer, Brandi Tonkel, interviewed RR about the incident.

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fl|7] The State charged Mr. Meece with two counts of second-degree sexual abuse of a

minor. In its pretrial submission, it listed Ms. Tonkel as a witness, stating she “may

testify regarding her education, training and experience in the area of forensic

interviewing, her interview of the victim in this case, consistent with her report and CD

of said interview.” Shortly before the pretrial conference, Mr. Meece filed a motion

asking that the State be required to provide the defense a written expert report from Ms.

Tonkel.

[f8] At the pretrial conference, the State objected to providing the requested report. It

pointed out defense counsel was relying on the rule for retained experts. The State

contended it had not retained Ms. Tonkel as an expert for trial but was instead calling her

as a fact witness. It asserted Ms. Tonkel would not be testifying to any opinions about

matters in the case or offering any ultimate conclusions. Concerning her expertise, the

State argued:

[T]he State is not offering her, per se, as an expert witness;

moreover, she does have an area of expertise, that’s why we

provided the curriculum vitae to the defense, we’ve provided

the reports and [defense counsel] could see that. We’re not

going after opinions at this time. Now, if there’s crossI don’t believe

examination, that could change things, I

we’re quite there yet.

[f9] The district court took Mr. Meece’s motion under advisement and then issued a

written order denying it. The court reasoned:

In this case, the Defendant has been provided with Ms.

Tonkel’s curriculum vitae, interview report, and a copy of the

interview. The State has declared that it does not intend to

elicit expert opinion testimony from Ms. Tonkel, and it

further does not appear as though her proposed testimony is

of the type which requires an expert report to be prepared.

[|10] At trial, the State elicited the following testimony from Ms. Tonkel over defense

counsel’s objection:

So, Ms. Tonkel, what is your understanding of what a

Qdelayed disclosure is?

A.

So a delay in disclosure would be based on research as

well as what we see in practice that children will often wait to

tell, and between 25 and 30 percent of child abuse victims

will never tell. And the average age of disclosure is 55, and

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that’s a national average. So what we know is that most

children will delay a disclosure.

In other words, something happens to the child and

Qthey don’t immediately go and tell, is that as simple of what a

delayed disclosure is at its most elemental level?

A.

Yes; so that could be hours, days, years, again, a

lifetime.

[fll] On cross-examination, defense counsel followed up on Ms. Tonkel’s testimony

concerning delayed disclosure:

You talked a little bit about sometimes in your

Qexperience, children’s - children will wait to tell you - you

talked about a little bit about delayed disclosures; do you

remember that?

A.

In practice and in research, yes.

Q.

Okay.

And one of the things that can be a predictor for when

a child might disclose is safety; is that right?

A.

Yes.

So once the perpetrator no longer lives in the house,

Q.

that - that would be a piece that could keep them safe,

maybe?

A.

Physical safety.

[][12] On redirect, the prosecutor elicited further testimony, without objection, detailing

the myriad reasons a child might delay disclosure, along with an explanation. Those

reasons included: the relationship between the child and offender; social and

developmental factors (not understanding sex and the need to tell); fear of not being

believed; and fear of what may happen to the offender and the victim’s family.

[Tfl 3] In the State’s closing argument, the prosecutor did not discuss or refer to Ms.

Tonkel’s testimony concerning delayed disclosure. Defense counsel then argued in

closing:

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You heard from Brandi Tonkel. She’s great on the witness

stand, there was no doubt about that. She told you a lot about,

“Well, sometimes there are reasons why delayed reporting

happens,” but did she tell you anything about why delayed

reporting in this case didn’t happen? And the answer to that is

no.

She’s a great speaker. She has a lot of information, but

when you shift (sic) through that, what does she tell you

about this case? This defendant? Because, remember, every

child is different, every case is different. What does she

actually tell you about this case? And the answer to that is

very little. She can’t tell you why [RR] delays reporting[.]

[|14] In the State’s rebuttal closing argument, the prosecutor responded by discussing at

length Ms. Tonkel’s testimony concerning the reasons for delayed reporting and

correlating those reasons to the evidence the jury heard concerning RR’s circumstances.

Defense counsel did not object.

[]|15] The jury found Mr. Meece guilty on both counts of second-degree sexual abuse of

a minor, and the district court entered judgment and sentenced him to a prison term of

eight to thirteen years on each count, to be served concurrently.

STANDARD OF REVIEW

[|16] Mr. Meece contends the prosecutor committed misconduct during his opening

statement and closing argument. Because Mr. Meece did not object to either instance, we

review for plain error. King v. State, 2023 WY 36, ]J 33, 527 P.3d 1229, 1242 (Wyo.

2023). To establish plain error, Mr. Meece “must show (1) the record is clear about the

incident alleged as error; (2) a violation of a clear and unequivocal rule of law; and (3) he

was denied a substantial right resulting in material prejudice.” Id. (quoting Ridinger v.

State, 2021 WY 44 33, 478 P.3d 1160, 1168 (Wyo. 2021)).

DISCUSSION

[^| 17] We have defined prosecutorial misconduct as follows:

Prosecutorial misconduct is a prosecutor’s improper or illegal

act (or failure to act), especially involving an attempt to

persuade the jury to wrongly convict a defendant or assess an

unjustified punishment. Prosecutorial misconduct claims are

not intended to provide an avenue for tactical sandbagging of

the trial courts, but rather, to address gross prosecutorial

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improprieties that have deprived a criminal defendant of his

or her right to a fair trial. A prosecutor’s conduct is not

misconduct unless he knew or should have known it would

deprive the defendant of the right to a fair trial. It is

something more than evidentiary error. We distinguish

prosecutorial misconduct from evidentiary error because

otherwise, any evidentiary error which favors the State would

be considered prosecutorial misconduct.

King, 2023 WY 36, H 16, 527 P.3d at 1238 (cleaned up).

I. There was no plain error committed in the State’s opening statement

[f 18] During the State’s opening statement, the prosecutor told the jury:

I anticipate that as part of that investigation, you’ll

hear about [RR] submitting to a forensic interview where she

goes and provides a detailed account by someone who’s

trained in dealing with these types of situations where you

have a child victim or witness to get their side of the story.

[f 19] Mr. Meece contends this statement was misconduct because “[wjhile the State said

that they would not offer Ms. Tonkel as an expert, they referenced her expertise in their

opening.” Because the record clearly reflects the incident alleged as error, the first prong

of the plain error analysis is met. Mr. Meece cannot, however, show that this alleged

error violated a clear and unequivocal rule of law.

[]}20] First, what Mr. Meece is truly claiming is that the State strayed from its pretrial

designation of Ms. Tonkel’s testimony. That is an evidentiary error, not misconduct.

King, 2023 WY 36,

16, 31, 527 P.3d at 1238, 1241-42 (rejecting argument that

prosecutor’s attempt to elicit expert testimony in violation of case management order was

misconduct and instead treating it as an alleged evidentiary error). Moreover, the

prosecutor’s statement during opening aligned with the State’s witness designation for

Ms. Tonkel, which said, in part, that she “may testify regarding her education, training

and experience in the area of forensic interviewing, [and] her interview of the victim in

this case[.]”Mr. Meece has therefore not established that the prosecutor’s statement

violated a clear and unequivocal rule of law.

II. There was no plain error committed in the State’s closing argument

fl[21] Mr. Meece contends the following argument made during the State’s rebuttal

closing was misconduct:

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We’ve heard test - or [defense counsel] brings to your

attention Ms. Tonkel’s testimony; how she’s able to provide

information concerning delayed disclosures, what delayed

disclosure is, and what are causes for delayed disclosures.

Let’s consider to what Ms. Tonkel did testify to. Again, go

back to Instruction Number 4 and draw reasonable inferences

from the evidence that has been presented to you.

Ms. Tonkel talked about a reason for delayed

disclosure is the relationship between the offender and the

child. Consider the relationship between this offender and the

child; a close relationship, one [RR] revered until things went

south. The nature of that relationship was absolutely a

contributing factor to that delayed disclosure. You heard the

evidence, you heard from Ms. Tonkel. Draw reasonable

inferences to reach that conclusion.

Another consideration for why disclosures are delayed

is social development. As Ms. Tonkel testified, all these kids

are different, they all approach the world differently, they see

it through different eyes at various stages of development.

Curiously, Ms. Tonkel talked about the fifth grade as

being a time when these delayed disclosures will often come

forward because they might have some type of sex education

class. This disclosure occurred last year. [RR’s] presently in

the sixth grade, meaning last year, she was in the fifth grade.

Looking to the reasons why Ms. Tonkel testified that

there are delayed disclosures corresponds to this case with

respect to the victim’s age at the time of that disclosure.

Ms. Tonkel further testified about reason[s] for those

delayed disclosures: Fear of being believed. Ladies and

gentlemen, we’re here in court now testing [RR’s] account of

what happened. Another reason was fear of what might

happen to the offender. And she characterize (sic) this in a

couple different ways. One, the offender might be some type

of a breadwinner in the household; or two, mother might not

be one who can actually care for them if they are to report.

So what happened to the offender? We know that [RR]

was very close with this defendant. We know that she resided

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with him for a period of time. We know she had very positive

views of him, but we also know that the relationship between

her mother and this defendant ended, and it was only after

that relationship ended that she came forward with this

disclosure.

Ms. Tonkel provided circumstances of where these

delayed disclosures come into play. I submit to you the

evidence that has been presented to you neatly corresponds

with all of those bases.

[Tf22] Mr. Meece asserts that through this argument the State relied on Ms. Tonkel to tell

the jury that R.R.’s disclosure “had all the hallmarks of truth given her expertise in

delayed disclosures.” He contends this was improper because it amounted to vouching for

RR’s credibility. He further contends the State argued matters not in evidence “by saying

that R.R.’s nature of disclosure was truthful because it bore the hallmarks of delayed

disclosure.” The first prong of our plain error review is met because the record is clear as

to the incident alleged as error. As with his first claim of misconduct, however, Mr.

Meece cannot show that this alleged error violated a clear and unequivocal rule of law.

[1f23] Vouching occurs when a prosecutor offers his opinion of a witness’s credibility, as

distinguished from when he infers credibility from the same evidence the jury has before

it. Byerly v. State, 2019 WY 130, ^ 21, 455 P.3d 232, 242 (Wyo. 2019) (citing Collins v.

State, 2015 WY 92, f 36, 354 P.3d 55, 64-65 (Wyo. 2015)). In the above-quoted

argument, the prosecutor made no reference to or comment on RR’s credibility. He

instead asked the jury to consider Ms. Tonkel’s testimony and correlate that to the

evidence it heard concerning RR’s circumstances. We have previously addressed much

the same scenario and held it did not constitute impermissible vouching.

[Tf24] In Budig v. State, a psychologist testified to the nature of disclosures by child

victims of sexual abuse, and the prosecutor argued the evidence showed that was what

happened in that case. 2010 WY 1, J 16, 222 P.3d 148, 154-55 (Wyo. 2010). On appeal,

the defendant argued “that by saying that the behaviors described by Dr. Lindberg are

‘exactly what happened’ in this case, the prosecutor gave more credibility to the

victims[’] testimony, thereby improperly vouching for their credibility.” Id., 2010 WY 1,

f 17, 222 P.3d at 155-56. We rejected the argument.

After reviewing the entire record on appeal, and

particularly the trial transcripts, we find that the prosecutor’s

comments relating the victims’ actions to the general

behaviors described by Dr. Lindberg were not tantamount to

vouching for the victims’ credibility. The prosecutor’s

statements merely informed the jury about the relevance of

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Dr. Lindberg’s testimony and suggested how that testimony

might assist the jury in determining the facts at issue. Such

use of expert testimony is proper. See Lessard v. State, 719

P.2d 227, 233-34 (Wyo. 1986) (expert testimony as to why

sexual assault victim would ask assailant not to tell about

sexual encounter was admissible in that it did not constitute

testimony with respect to veracity of victim, but rather

assisted jury in understanding evidence).

Id., 2010 WY 1,1 18, 222 P.3d at 156.

ft|25] Given our clear precedent, it is again apparent that what Mr. Meece is truly

claiming is that the State’s closing argument strayed from its pretrial designation of Ms.

Tonkel’s testimony. But, as we noted above, that is an evidentiary error, not misconduct.

King, 2023 WY 36,1flj 16, 31, 527 P.3d at 1238, 1241-42. Mr. Meece has not challenged

the admissibility of the evidence on appeal or offered any analysis of its admissibility.

Moreover, although Mr. Meece objected to the State’s initial examination of Ms. Tonkel

concerning delayed disclosures, defense counsel was the first to ask Ms. Tonkel about a

reason for delayed disclosures, and he did not object when the State followed up with a

more extensive inquiry into those reasons. The evidence concerning the reasons for

delayed reporting was thus admitted without objection, and the prosecutor was free to

comment on it and suggest reasonable inferences from it. Bogard v. State, 2019 WY 96,

119, 449 P.3d 315, 321 (Wyo. 2019) (citing Teniente v. State, 2007 WY 165, K 30, 169

P.3d 512, 524 (Wyo. 2007)). Mr. Meece has therefore failed to establish that the

prosecutor’s statement violated a clear and unequivocal rule of law.

[TJ26] Affirmed.

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