### IN THE SUPREME COURT, STATE OF WYOMING

201 3 W Y 41

APRIL TERM

, A.D. 201 3

A p r i l 9

, 2 0 1 3

DOUGLAS HOWARD CRAFT,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 12

- 0107

Ap peal f rom the District Court of Campbell County

The Honorable Michael N. Deegan , Judge

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; Kirk Morgan, Senior Assistant A ppellate Counsel

. Argument by Mr. Morgan.

Representing Appellee : G regory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; James Michael Causey, Se nior Assistant Attorney General; Christyne M. Martens, Assistant Attorney G eneral. Argument by Ms. Martens.

B e f o r e K I T E

, C

. J

. , a n d H I L L

, V O I G T

, B U R K E

, a n d D A V I S

, J J

.

N O T I CE: This opinion is subject to formal revision before publication in Pacific Reporter Third.

R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e C l e r k o f t h e S u p r e m e C o u r t
, S u p r e m e C o u r t B u i l d i n g , C h e y e n n e , W

y o m i n g 8 2 0 0 2

, o f t y p o g r a p h i c a l o r o t h e r f

o r m a l e r r o r s s o c o r r e c t i o n m a y b e m a d e b e f o r e f i n a l p u b l i c a t i o n i n t h e p e r m a n e n t v o l

u m e

.1

K I T E

, C h i e f J u s t i c e

.

[¶1] Douglas Howard Craft was convicted of two count s of first degree sexual abuse of

a minor and one count of second degree sexual abuse of a minor upon his three daughters. He appeals, claiming the prosecutor committed misconduct when he questioned a witness about an exhibit that was not admitted as evid ence, there was a fatal variance between the charges in the information and the charges proven at trial and the district court abused its discretion when it prohibited his expert witness from testifying about his opinion on what type of sexual abuse allega tions were made in this case. Finding no error, we affirm.

I S S U E S

[¶2] Mr. Craft presents the following issues on appeal :

I

. D i d p r o s e c u t o r i a l m i s c o n d u c t o c c u r w

h e n t h e

p r o s e c u t o r

questioned witnesses on an exhibit he did not

intend to submit into evidence?

I I

. C o n c e r n i n g t w o o f t h e v i c t i m s
, P C a n d A

X C

, w a s

t h e r e

. . . a f

a t a l v a r i a n c e b e t w e e n t h e c h a r g e s a l l e g e d a n d t h e

c h a r g e s p r o v e n a t t r i a l ?

I I I

. D i d t h e t r i a l c o u r t a b u s e i t s d i s c r e t i o n w

h e n i t prohibited Mr. Craft’s expert witness from providing an

o pinion as to which class the allegation of sexual abuse falls

within?

T h e S t a t e p r e s e n t s e s s e n t i a l l y t h e s a m e i s s u e s b u t p h r a s e d d i f f e r e n t l y

.

F A C T S

[¶3] Mr. Craft is the father of three daughters, AXC, ALC and PC. AXC and ALC are

twins and were born i n March 2001. PC was born in February 2002, making her just

eleven months younger than the twins. Mr. Craft and the girls’ mother were divorced,

and in 2009 and 2010, he took the girls for weekend visitations at his home.

[¶4] On August 24, 2010, AX C reported to her mother that Mr. Craft had put his penis in her bottom. The mother contacted law enforcement the next day, and a detective arranged for the girls to undergo forensic interviews. During the forensic interviews, each girl separately stated that Mr. Craft had put his penis in her bottom. A few days after the interviews, detectives questioned Mr. Craft and he confirmed that he cuddled with the girls in bed and he may have had an erection at the time.2

[¶5] Mr. Craft was charged with three counts of first degree sexual abuse of a minor in

v i o l a t i o n o f W

y o

. S t a t

. A

n n

. § 6

- 2

- 3 1 4 ( a ) ( i i ) ( L e x i s N e x i s 2 0 1 1 )

, 1 one involving each girl. The information stated that the crimes occurred “[o]n or between March 2009 and March 2010.” The matter went to trial and each of the victims testified. AXC and PC gave differing testimony as to when the abuse occurred. The vi deo recordings of the victims’ forensic interviews were also admitted into evidence and played for the jury.

[¶6] When ALC testified at trial, she could not identify Mr. Craft in the courtroom. Over defense counsel’s objection, the district court a llowed the State to show ALC a photograph, which she identified as being of her father. A detective later testified the photograph was of Mr. Craft and it was taken in August 2010.

[¶7] The defense called Dr. Terence Campbell, a forensic psychologist , as its expert witness. He testified that there are three types of sexual abuse allegations

— confirmed, fabricated and false. Defense counsel asked Dr. Campbell which type of allegation was made in this case and the prosecutor objected, stating that such testimony would invade the province of the jury. The district court sustained the objection, but Dr. Campbell went on to testify at length about his opinions and the specific facts of the case.

[¶8] I n his initial closing argument, the prosecutor did not refer to ALC’s and the detective’s identification of Mr. Craft in the photograph. However, after defense counsel reminded the jury that ALC could not identify Mr. Craft in the courtroom, the prosecutor

stated in rebuttal that ALC had identified the su bject in the photograph as her father and the detective confirmed the photo was of Mr. Craft.

[¶9] The jury found Mr. Craft guilty of first degree sexual abuse of a minor for the counts involving ALC and AXC and second degree sexual abuse of a minor f o r t h e c o u n

t pertaining to PC. 2 After denying Mr. Craft’s renewed motion for judgment of acquittal

1 Section 6

- 2

- 314(a)(ii) states:

(a) An actor commits the crime of sexual abuse of a minor in the first degree if:

. . . . ( i i ) B e i n g e i g h t e e n ( 1 8 ) y e a r s o f a g e o r o l

d e r
, t h e a c t o r i n f

l i c t s s e x u a l i n t r u s i o n o n a victim who is less than eighteen (18) years of a ge, and the actor is the victim’ s legal guardian or an individual specified in W. S. 6

- 4

- 402 [.]

Wyo. Stat. Ann. § 6

- 4

- 402 (LexisNexis 2011) defines the crime of incest and states that it may be committed by sexual intrusi on or contact with a “descendent.”

2 The jury was instructed on the lesser included crime of second degree sexual abuse under Wyo. Stat. Ann. § 6

- 2

- 315(a)(iii) (LexisNexis 2011).3

a n d m o t i o n f

o r a n e w t r i a l

, t

h e d i s t r i c t c o u r

t s e n t e n c e d M r

. C r a f

t t o s e r v e c o n s e c u t i v

e

s e n t e n c e s o f t e n t o f

i f t y y e a r s o n e a c h f

i r s t d e g r e e c o n v i c t i o n a n d t e n t o t w e n t y y e a r s o n

t h e s e c o n d d e g

r e e c o n v i c t i o n

. M r

. C r a f t a p p e a l e d

.

D I S C U S S I O N

1

. I d e n t i f i c a t i o n o f D e f e n d a n t T h r o u g h P h o t o g r a p h

[¶10] Mr. Craft claims the prosecutor committed misconduct by having

A L C a n d t h e d e t e c t i v

e i d e n t i f y h i m f r o m a p h o t o g

r a p h t h a t w a s n o t a d m

i t t e d i n t o

e v i d e n c e and then commenting on it during closing arguments. In general, we review

c l a i m s o f p r o s e c u t o r i a l m i s c o n d u c t f

o r p l a i n e r r o r i f n o o b

j e c t i o n w a s m a d e a t t r i a l o r f o r harmless error if an objection was lodged. Butcher v. State, 2005 WY 146, ¶ 38, 123 P.3d 543, 554 (Wyo. 2005). The State maintains, however, that this issue is not properly raised as prosecutorial misconduct because the prosecutor acted in accordance wit h the trial court’s rulings.

[¶11] The trial was held in January 2012. When ALC was unable to identify Mr. Craft in the court room, the prosecutor asked to approach the bench and proposed to have her look at a photograph of the defendant which was tak en around the time of his arrest. ALC had previously testified that she had not seen Mr. Craft at all during that school year and little during the previous year. Defense counsel objected on the grounds that the question had been “asked and answered” bec ause ALC had already stated she could not identify her father in the court room and the photograph had not been listed as an exhibit by the State. The district court overruled the objection and the prosecutor asked ALC if she could identify the person in the photograph, which was marked as State Exhibit 4 but was not introduced into evidence at the trial or shown to the jury. ALC stated the man in the photograph was “ [ m ] y dad.” A detective testified later, over defense counsel’s objection that the photog raph was not listed as an exhibit or provided during discovery,

that it was of Mr. Craft and was taken in August 2010. The defense did not object when the State referred to the photograph in its rebuttal closing argument.

[¶12] On appeal, Mr. Craft m aintains the State’s questioning of witnesses using the photograph and reference to it during closing argument amounted to prosecutorial misconduct. He cites to several cases he claims support the notion that it is improper for

counsel to refer to exhibit s not admitted into evidence

— United States v. Treadwell, 594

(a) Except under circumstance constituting sexual abuse of a minor in the first degree as defined by W.S. 6

- 2

- 314 , an actor commits the crime of sexual abuse of a minor in the second degree if:

. . . . (i ii) Being eighteen (18) years of age or older, the actor engages in sexual contact with a victim who is less than eighteen (18) years of age and the actor is the victim’ s legal guardian or an individual specified in W.S. 6

- 4

- 402 [.]4

F

. S u p p

. 8 3 1 ( D

. D

. C

. 1 9 8 4 ) ; M a n g a n v

. B r o d e r i c k & B a s c o m R o p e C o

. , 3 5 1 F

. 2 d 2 4 ( 7 t h

C i r

. 1 9 6 5 ) ; G o r

o s t i e t a v

. P

a r k i n s o n

, 1 7 P

. 3 d 1 1 1 0 ( U t a h 2 0 0 9 )

. I n T r e a d w e l l

, 5 9 4 F

. S u p p

. a t 8 3 6

- 4 1

, t

h e c o u r t r u l e d t h e i n a d v

e r t e n t s u b m

i s s i o n o f e x

h i b i t s t o t h e j u r y w

h i c h

w e r e n o t a d m

i t t e d i n t o e v

i d e n c e a t t r i a l d i d n o t m a n d a t e a n e w t r i a l

. T h e c o u r t

s p e c i f i c a l l y d i s t i n g

u i s h e d o t h e r c a s e s t h a t i n v

o l v e d d i r e c t v i o l a t i o n o f c o u r t r u l i n g s a n d

p r e j u d i c i a l e r r o r

. I

d

. M a n g a n

, 3 5 1 F

. 2 d a t 2 8

- 3 1

, w a s a c i v i l c a s e a n d involved an attorney’s deliberate disobedience of the district court’s directive to refrain from inquiring into certain evidence. Gorostieta, 17 P.3d at 1118, hel d that a party may not question a witness about exhibits which were expressly disallowed by the court. T he cases cited by Mr. Craft indicate tha t the attorney s committed misconduct when they

violated court order s

.

[¶13] In Butcher, ¶ 43 n.8, 123 P.3d a t 556 n.8, we provided the following definition of prosecutorial misconduct:

Black’ s Law Dictionary 1237 (7th ed.1999) defines

“ prosecutorial m

isconduct ” as “[a] prosecutor’ s improper or illegal act (or failure to act), esp. involving an attempt to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.”

I n t h e c a s e a t b a r
, t h e p r o s e c u t o r d i d n o t d o a n y t h i n g w h i c h w a s n o t e x

p r e s s l y a p p r o v

e d

b y t h e d i s t r i c t c o u r t

. T h e r e f o r e
, h e d i d n o t c o m

m i t a n i m p r o p e r o r i l l e g

a l a c t

. If we were to accept Mr. Craft’s argument, then any evidentiary error which favors the State would be considered prosecutorial misconduct. That is not accurate.

[¶14] Instead of prosecutorial misconduct, this issue raises the question of whether the district court erred by allowing the State to use the photograph as a means of identifying

Mr. Craft when it was not listed as an exhibit or admitted into evidence. The dis trict court has discretion to determine what, if any, sanctions are appropriate for failing to comply with discovery responsibilities or its pre

- trial orders. See W.R.Cr.P. 16(d)(2); Majors v. State, 2011 WY 63, ¶ 35, 252 P.3d 435, 443

- 44 (Wyo. 2011). “A district court abuses its discretion if it could not have reasonably concluded as it did.” Id.

, ¶ 24, 252

P.3d at 441. “In this context, ‘reasonably’ means sound judgment exercised with regard to what is right under the circumstances and without being a rbitrary or capricious. ’ ” Szymanski v. State, 2007 WY 139, ¶ 15, 166 P.3d 879, 883 (Wyo. 2007)

. Even if the district court abused its discretion in granting or failing to impose sanctions, an appell ant still must demonstrate prejudice to warrant reversal. See Willoughby v. State, 2011 WY 92, ¶ 26, 253 P.3d 157, 165 (Wyo. 2011).

[¶15] The record indicates the photograph was not listed as a potential exhibit by the State and was not addressed in the district court’s memorandum of the pretrial

c o n f e r e n c e

. T h e d i s t r i c t c o u r t o b v i o u s l y d e c i d e d n o s a n c t i o n w a s r e q u i r e d f o r t h e S t a t e ’ s5

f a i l u r e t o g

i v e n o t i c e o f t h e p h o t o g

r a p h

. M r

. C r a f

t d o e s n o t e x

p l a i n s p e c i f

i c a l l y h o w t h e d i s t r i c t c o u r t a b u s e d i t s d i s c r e t i o n b y f a i l i n g t o s a n c t i o n t h e p r

o s e c u t i o n f

o r n o t l i s t i n g t h e

p h o t o g r a p h a s a p o t e n

t i a l e x h i b i t

. H e a

l s o d o e s n o t i d e n t i f

y a n y r u l e o f l a w w

h i c h

p r o h i b i t s i d e n

t i f i c a t i o n t h r o u g

h t h e u s e o f a p h o t o g

r a p h t h a t i s n o t e n t e r e d i n t o e v i d e n c e

.

[¶1 6 ] I n addition, Mr. Craft was not prejudiced by the identification procedure because sufficient other evidence of Mr. Craft’s identity as the perpet rator was presented at trial. Identification does not have to be proven by a witness positively identifying the accused in court; circumstantial evidence from which identity can be inferred is sufficient.
Coleman v. State, 741 P.2d 99, 107 (Wyo. 1987); C ampbell v. State, 589 P.2d 358, 368 (Wyo. 1979). See also

, McCarty v. State, 616 P.2d 782, 785 (Wyo. 1980). Here, ALC testified that her father sexually abused her, and her mother testified that Mr. Craft was

ALC’s father. This evidence was sufficient to identify Mr. Craft as the perpetrator of the

crime.

[¶1 7 ] Fowler v. Tucker, 2012 WL 5519743 (N.D.Fla

. Sept. 28, 2012) (U.S. magistrate judge’s report and recommendation adopted by district court at 2012 WL 5519741 (N.D. Fla. Nov. 14, 2012)) , a habeas c orpus action decided by the United States district court for the northern district of Florida, demonstrates how circumstantial evidence can be used to identify a defendant. Fowler also involved allegations of child sexual abuse. The

victim testified at t rial that “Earl” assaulted her. Like ALC, the victim was unable to identify the defendant in court as her assailant. The court ruled that “a witness’s ability to point the defendant out in court is not a necessary component of the case. ” Instead, the

id entity of the perpetrator may be “inferred from circumstantial evidence

, and the lack of direct, in

- court identification

, goes to the strength of the case.” Id. at 20. The court

f ound the evidence of the identification of the defendant as the perpetrator was sufficient because the victim stated that “Earl” assaulted her, the defendant was known by the name “Earl,” and the defendant lived with the victim and her m other and had access to her at

the time of the incident. Id. at 21.

2

. V a r i a n c e / S u f f i c i e n c y o f t h e E v i d e n c e

[¶1 8 ] Mr. Craft contends there was an unconstitutional variance between the charge s in the information and the charges proven at trial with regard to the dates of the abuse of AXC and PC. Mr. Craft’s argument raises the constitutional issue of a fatal variance and questions the sufficiency of the evidence with regard to those counts. As a result, we must apply both standards of review. O ur standard of review on the variance issue is de

novo because it implicates constitutional notice requirements. Dawes v. State, 2010 WY 113, ¶ 17, 236 P.3d 303, 307 (Wyo. 2010). Reviewing a claim that the trial evidence was insufficient to support a con viction,

w e exami ne and accept as true the State’ s evidence and all

r e a s o n a b l e i n f

e r e n c e s w

h i c h c a n b e d r a w

n f r o m i t

. W e d o n o t6 c o n s i d e r c o n f

l i c t i n g e v i d e n c e p r e s e n t e d b y t h e d e f e n d a n t

. W e d o

n o t s u b s t i t

u t e o u r j u d g

m e n t f o r t h a t o f t

h e j u r y ; r a

t h e r
, w e d e t e r m i n e w h e t h e r a j u r y c o u l d h a v

e r e a s o n a b l y c o n c l u d e d e a c h

o f t h e e l e m e n t s o f t h e c r i m e w a s p r o v e n b e y o n d a r e a s o n a

b l e d o u b t

. T h i s s t a n d a r d a p p l i e s w h e t h e r t h e s u p p o r t i n g e v i d e n c e i s d i r e c t o r c i r c u m s t a n t i a l

.

Anderson v. State, 2009 WY 119, ¶ 6, 216 P.3d 1143, 1145 (Wyo.2009) , quoting Martin v. State, 2007 WY 2, ¶ 32, 149 P.3d 707, 715 (Wyo.2007)

.

I d

.

[¶ 19 ] I n determining whether an unconstitutional or fatal variance occurred, we consider two distinct questions. The first is whether there was a variance. “ [ A ] variance occurs when the evidence presented at trial proves facts different from those alleged in the

information or indictment.” Spagner v. State, 2009 WY 12, ¶ 15, 200 P.3d 793, 800 (Wyo. 2009). If there was a variance, we move to the second question

— whether it was fatal and, consequently, reversal is required. A variance is not fatal “ unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution.” Id.

[¶2 0 ] We explained the variance concepts in another way in Weidt v. State, 2002 WY 74, ¶ 9, 46 P.3d 846, 851 (Wyo. 2002) (citations omitted):

[ A ] v a r i a n c e i s f

a t a l w h e r e t h e i n s t r

u c t i o n s u b m

i t s a n e w a n d

d i s t i n c t o f

f e n s e t o t h e j u r y

. I

n s t r u c t i n g o n o n e f

o r m o f t h e

o f f e n s e w h e r e t h e i n f

o r m a t i o n c h a r g

e s a n o t h e r f

o r m o f t h e

s a m e o f f e n s e i s n o t r e v

e r s i b l e e r r o r a b s e n t a s h o w i n g t h a t t h e

v a r i a n c e b e t w e e n t h e i n f o r m a t i o n a n d t

h e i n s t r u c t i o n i s

m a t e r i a l a n d p r e

j u d i c i a l

. V a r i a n c e s a r e m a t e r i a l w h e r e t h e y

a f f e c t w h e t h e r t h e d e f e n d a n t r e c e i v

e d a d e q u a t e n o t i c e o f t

h e

c h a r g e s a g a i n s t h i m

. V a r i a n c e s a r e p r e j u d i c i a l w

h e r e t h e y

a f f e c t t h e d e f

e n d a n t ' s a b i l i t y t o d e f

e n d t h e c h a r g

e a g a i n s t h i m

.

[¶2 1 ] The information charged Mr. Craft with three counts, one for each girl. The charges pertaining to AXC and PC stated:

C O M E S N O W t h e S t a t e o f W y o m i n g

. . . a n d h e r e b y i n f o r m s t h e C o u r

t a n d g i v e s t h e C o u r t t o u n d e r s t a n d t h a t [ M r

. C r a f t ]

,7 C O U N T I

O n o r b e t w e e n M a r c h 2 0 0 9 a n d M a r c h 2 0 1 0

, i n C a m p b e l l C o u

n t y , W y o m i n g
, d i d i n f

l i c t s e x u a l i n t r u s i o n o n a

m i n o r b e i n g e i g

h t e e n ( 1 8 ) y e a r s o f a g

e o r o l d e r
, t

h e v i c t i m being less than eighteen (18) years of age, and the actor was the victim’s legal guardian or an individual specified in W.S.

6

- 4

- 402 [incest statute], to wit: AXC . . . in violation of Wyoming Statute § 6

- 2

- 314(a)(ii), a felony p unishable under § 6

- 2

- 314(b) and § 6

- 10

- 102, by imprisonment for not more than fifty (50) years, a fine of not more than $10,000, or both,

. . . . C O U N T I I I

O n o r b e t w e e n M a r c h 2 0 0 9 a n d M a r c h 2 0 1 0

, i n C a m p b e l l C o u

n t y , W y o m i n g
, d i d i n f

l i c t s e x u a l i n t r u s i o n o n a

m i n o r b e i n g e i g

h t e e n ( 1 8 ) y e a r s o f a g

e o r o l d e r
, t

h e v i c t i m being less than eighteen (18) years of age, and the actor was the victim’s legal guardian or an individual specified in W.S.

6

- 4

- 402, to wit: PC . . . in violation of Wyoming Statute § 6

- 2

- 314(a)(ii), a felony punishable under § 6

- 2

- 314(b) and § 6

- 10

- 102, by imprisonment for not more than fifty (50) years

, a fine of not more than $10,000

, or both[.]

[¶2 2 ] The jury instructions given at trial stated in pertinent part:

I n s t r u c t i o n N o

. 1 4

T h e n e c e s s a r y e l e m e n t s o f t h e c r i m e o f S e x u a l A b u s e o f a
M i n o r i n t

h e F i r s t D e g

r e e
, a s c h a r g

e d i n C o u n

t I o f t h i s c a s e
, a r e :

1

. B e t w e e n M a r c h 2 0 0 9 a n d M a r c h 2 0 1 0 ;
2

. I n C a m p b e l l C o u n t y , W y o m i n g ; 3

. T h e D e f

e n d a n t

, D o u g

l a s H o w a r d C r a f

t ; 4

. I n f l i c t e d s e x u a l i n t r u s i o n u p o n [ A

X C ] ;
5

. [ A X C ] w a s u n d e r t

h e a g e o f e i g h t e e n ( 1 8 ) ; 6

. Douglas Howard Craft was [AXC’s] legal guardian; and

7

. D o u g l a s H o w a r d C r a f

t w a s a t l e a s t e i g

h t e e n ( 1 8 ) y e a r s o f a g e

.

. . . .

I n s t r u c t i o n N o

. 1 68 T h e n e c e s s a r y e l e m e n t s o f t h e c r i m e o f S e x u a l A b u s e o f a
M i n o r i n t

h e F i r s t D e g

r e e
, a s c h a r g

e d i n C o u n

t I I I o f t h i s c a s e
, a r e :

1

. B e t w e e n M a r c h 2 0 0 9 a n d M a r c h 2 0 1 0 ;
2

. I n C a m p b e l l C o u n t y , W y o m i n g ; 3

. T h e D e f

e n d a n t

, D o u g

l a s H o w a r d C r a f

t ; 4

. I n f l i c t e d s e x u a l i n t r u s i o n u p o n [ P C ] ;
5

. [ P C ] w a s u n d e r t

h e a g e o f e i g h t e e n ( 1 8 ) ; 6

. Douglas Howard Craft was [PC’s] legal guardian; and

7

. D o u g l a s H o w a r d C r a f

t w a s a t l e a s t e i g

h t e e n ( 1 8 ) y e a r s o f a g e

.

T h e s a m e e l e m e n t s w e r e a l s o p r o v i d e d t o t h e j u r y e a r l i e r i n t h e t r i a l p r o c e e d i n g s i n
I n s t r u c t i o n N o

. 1

.

[¶2 3 ] The information and jury instructi ons were virtually identical as they contained all of the same elements and the same dates. As such, there was no variance. Mr. Craft claims, however, that AXC’s and PC’s testimony did not establish the crimes occurred during the charged time frame. Thi s argument questions the sufficiency of the evidence.

[¶2 4 ] In advancing his argument

, Mr. Craft focuses on PC’s statement that she talked to

her sisters about the abuse immediately after it happened and then told her mother as soon as they returned ho me. Mr. Craft also points to AXC’s statement that she talked to

her sisters after she was abus ed and they told their mom a day later. The mother testified that she reported the incident to the police the day after learning of it. The detective

testified that the mother made her report on August 25, 2010. Thus, Mr. Craft maintains

the evidence established the abuse took place in August 2010, which was outside the charged period of March 2009 through March 2010. Mr. Craft’s argument correctly

recounts par t of the evidence presented at trial; however, he does not apply the proper standard for reviewing the sufficiency of the evidence to support a criminal conviction which requires us to accept as true the State’ s evidence and give it all reasonable

infer ences

. See Dawes, ¶ 17, 236 P.3d at 307.

[¶2 5 ] There is no doubt there were inconsistencies in AXC’s and PC’s testimony regarding the time of the abuse . As we have recognized before, such inconsistencies are not uncommon or unexpected for young victi ms of abuse . In Spagner, ¶ 17, 200 P.3d at

800

- 01, we remarked that “any reasonable defendant and his counsel would have anticipated that a [young] victim of repeated sexual abuse might not give a verbatim recital of her earlier reports of the crimes.” C onsider ing the evidence in the light most favorable to the State, we conclude the evidence was sufficient to support the

convictions.

[¶2 6 ] AXC’s birthday is in March and PC’s birthday is in February. At the time of the trial in January 2012, PC was nin e y e a r s o l d a n d i n t h e f o u r t h g r a d e a n d A

X C w a s t e n9

y e a r s o l d a n d i n t h e f

i f t h g r a d e

. D u r i n g t h e p e r i o d s p e c i f i e d i n t h e i n f

o r m a t i o n ( M a r c h

2 0 0 9 t h r o u g h M a r c h 2 0 1 0 )

, P C w o u l d h a v e b e e n s e v

e n o r e i g h t y e a r s o l d a n d i n t h e f

i r s t

o r s e c o n d g

r a d e

. A X C c o u l d h a v

e b e e n s e v

e n
, e i g h t o r n i n e y e a r s o l d b e c a u s e o f h e r
M a r c h b i r t h d a y a n d i n t

h e s e c o n d o r t

h i r d g r a d e

. A X S a n d P C b o t h t e s t i f

i e d t h a t w

h e n

t h e a b u s e o c c u r r e d t h e g

i r l s l i v e d w i t h t h e i r m o t h e r i n t h e G i l l e t t e A p a r t m e n t s

. T h e

m o t h e r t e s t i f

i e d t h a t t h e y h a

d l i v e d i n t h e G i l l e t t e A

p a r t m e n t s f o r f o u r y e a r s b e f

o r e

m o v i n g i n w i t h h e r p a r e n t s i n J u l y 2 0 1 1

.

[¶2 7 ] AXC seemed confused about the time of the abuse when she testified at trial . She thought she was ten years old when the abuse occurred but also confirmed that she was currently ten years old . She then stated that she could not remember how long ago the

abuse occurred. D uring the forensic interview

, she stated that she had just turned nine

y e a r s o l d w

h e n t h e a

b u s e o c c u r r e d a n d it had happened in the spring. 3 P C t o l d t h e f o r e n s i c i n t e r v i e w e r s h e t h o u g h t s h e w a s s e v

e n o r e i g h t y e a r s o l d w

h e n h e r f a t h e r a b u s e d

h e r

. A X C a n d A L C s t a t e d a t t h e f o r e n s i c i n t e r v

i e w t h a t t h e i r f

a t h e r w o u l d a b u s e o n e g i r l

a n d t h e n h a v

e h e r s e n d a n o t h e r o n e i n t o h i s b e d r o o m

. A L C t e s t i f i e d a t t r i a l t h e l a s t t i m e

s h e w a s a b u s ed was a “couple of years ago” and she was in the third grade. This evidence, if believed by the jury, was sufficient to support a conclusion that Mr. Craft

abuse d AXC and PC during th e charged time period.

3

. E x p e r t W i t n e s s T e s t i m o n y

[¶2 8 ] Mr. Craft maintains the district court erred when it refused to allow Dr. Campbell to testify about the type of sexual abuse allegations in this case. We review t he district

court’ s decision as to the admissibility of evidence for abuse of discretion

. Szymanski, ¶ 15, 166 P.3d a t 883

. A district court abuses its discretion if it could not have reasonably

reached the conclusion it did. Id.

[¶ 29 ] Dr. Campbell testified there are three types or varieties of sexual abuse allegations

— confirmed, fabricated and false. He explained that “confirmed” allegations involve “a situation where there is a well defined chain of evidence conclusively demonstrating that the child or the children in question was sexually abused.” Dr. Campbell defined “fabricated” allegations as “circumstances where someone sets out with premeditated malice to lead a child into false allegations of sexual abuse .” “False” allegations occur when no abuse has occurred and there is no “premeditated malice to concoct fabricated allegations,” but premature conclusion s and rumor formation and

dissemination lead to such allegations. His direct testimony then continued as follows:

3 T h e d i s t r i c t c o u r t i n s t r u c t e d t h e j u r y a s f

o l l o w s : “ I f y o u f

i n d t h a t a n y s t a t e m e n t s m a d e b y a n y a l l e g e d

v i c t i m i n h e r f

o r e n s i c i n t e r v i e w a

r e i n c o n s i s t e n t w i t

h t h e t e s t i m o n y s a i d a l l e g e d v i c t i m g a v e i n o p e n c o u r t

, t h e n y o u m a

y o n l y c o n s i

d e r s u c h p r i o r i n c o nsistent statement for purposes of impeaching the testimony of the alleged victim.” This ruling is not challenged on appeal.10 Q

. B a s e d o n y o u r i n t e r p r e t a t i o n o f t

h e m a t e r i a l s

r e v i e w e d a n d t h e e v

i d e n c e p r e s e n t e d i n c o u r t

, w h a t i s y o u r opinion of the type of sexual a buse we’re dealing with today?

[ P r o s e c u t o r ] : I w o u l d o b

j e c t

, Y o u r H o n o r

. I t h i n k t h i s i n v a d e s t h e p r o v

i n c e o f t h e j u r y

.

T H E C O U R T : D o y o u w a n t t o r e s p o n d t o t h a t ?

[ D e f e n s e C o u n s e l ] : Y o u r H o n o r
, a w i t n e s s c a n t e s t i f y

t o t h e i r i n t e r

p r e t a t i o n o f t h e e v

i d e n c e

. T h e y c a n n o t

, y o u k n o w , m a k e a n u l t i m a t e c o n c l u s i o n o f t h a t e v i d e n c e
, b u t t h e y

c a n s t i l l t e s t i f

y a s t o a n i n t e r

p r e t a t i o n o f t h e e v i d e n c e
, e v

e n i f it sort of dances around an ultimate conclusion. So long as Dr. Campbell doesn’t say that this particula r happened, he can most definitely testify to his interpretation of the evidence.

[ P r o s e c u t o r ] : Your Honor, he just identified two ways that this didn’t happen and one way it actually did happen. The translation of that is going to that in his opinion either the defendant is guilty or he’s not guilty. That goes to the ultimate issue this jury is supposed to decided, and that is inappropriate expert testimony.

T H E C O U R T : O b

j e c t i o n s u s t a i n e d

.

[¶30] The State maintains Mr. Craft waived his right to co ntest the district court’s ruling on appeal because he failed to make an offer of proof. W.R.E. 103 states in relevant part:

( a ) E f f e c t o f E r r o n e o u s R u l i n g

. – Error may not be predicated upon a ruling which admits or excludes evidence

unless a substa ntial right of the party is affected, and

. . . . ( 2 ) O f

f e r o f P r o o f

. – In case the ruling is one excluding

evidence , the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

W e e x p l a i n e d t h e o f

f e r o f p r o o f r e q u i r e m e n t i n Bloomfield v. State, 2010 WY 97, ¶ 23, 234 P.3d 366, 375 (Wyo. 2010) (citation omitted):

[ T ] h e r e i s o n l y o n e p r

u d e n t w a y f o r a n o f f e r o f p r o o f t o b e

m a d e a t t r i a l

. T h e a t

t o r n e y w h o s e e k s t o o f

f e r e v i d e n c e
,11 w h i c h h a s b e e n r e f

u s e d o r t o w

h i c h a n o b

j e c t i o n h a s b e e

n

u p h e l d

, s h o u l d t a k e t h e i n i t i a t i v e

. T h e o f f e r o f p r o o f s h o u l d

then take the form of counsel ’ s eliciting the proposed testimony directly from the witness, or entering the tangible

evidence in the record , all outside of the hearing of the jury.

When an appellant has failed to make an offer of proof, it “must result in a waiver of his ability to attribute error to the district court.” Silva v. State, 2012 WY 37, ¶ 21, 271 P.3d 443, 450 (Wyo. 2012). B ecause Mr. Craft failed to make an offer of proof, we could wholly reject his claim on the basis of waiver. Nevertheless, even if we assume from the context of Dr. Campbell’s testimony that he was going to testify that the girls’ allegations

were false or fabricated, we would also reject his claim that the district court abused its discretion because such testimony is inadmissible.

[¶31] Mr. Craft argues Dr. Campbell’s opinion testimony was admissible under W.R.E.

702 and 704. W.R.E. 702 reads:

I f s c i e n t i f

i c
, t e c h n i c a l

, o r o t h e r s p e c i a l i z e d k n o w l e d g e w i l l

a s s i s t t h e t r i e r o f f

a c t t o u n d e r s t a n d t h e e v i d e n c e o r t o d e t e r m i n e a f a c t i n i s s u e
, a w i t n e s s q u a l i f i e d a s a n e x

p e r t b y k n o w l e d g e
, s k i l l

, e x

p e r i e n c e
, t r a i n i n g
, o r e d u c a t i o n
, m a y

t e s t i f y t h e r e t o i n t

h e f o r m o f a n o p i n i o n o r o t h e r w i s e

.

W.R.E. 704 states: “ Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the

trier of fact. ” However, we have repeated ly stated that these evidentiary rules do not allow any witness, whether lay or expert, to express an opinion as to the accused’s guilt or the credibility of another witness. See, e.g

., Cureton v. State, 2007 WY 168, ¶ 10, 169 P.3d 549, 551 (Wyo. 2007); C arter v. State, 2012 WY 109, ¶ 11, 282 P.3d 167, 170 (Wyo. 2012); Hannon v. State, 2004 WY 8, ¶ 88, 84 P.3d 320, 353 (Wyo. 2004).

[¶32] Mr. Craft contends that admission of Dr. Campbell’s testimony was warranted by

our decision in Cureton . Cureton was charged with various drug related offenses and one of the investigating officers testified as an expert witness about the common characteristics of methamphetamine use and trafficking. Cureton claimed reversible error

occurred when the officer testified t hat certain facts in her case indicated drugs were being sold rather than simply used. Cureton, ¶¶ 8

- 9, 169 P.3d at 551. We held the testimony was permissible because the officer did not testify or offer any conclusion about whether Cureton was a drug de aler or guilty of any particular offense. Id.

, ¶ 11,

169 P.3d at 551

- 52.

[¶33] It is true that Dr. Campbell’s testimony was not a direct comment on Mr. Craft’s

g u i l t o r i n

n o c e n c e

. H o w e v

e r
, t h e q u e s t i o n p o s e d b y d e f e n s e c o u n s e l e l i c i t i n g D r

.12

C a m p b e l l ’ s o p i n i o n a b o u

t w h a t t y p e o f s e x u a l a b u s e a l l e g

a t i o n w a s m a d e i n t h i s c a s e
, i

. e

. , c o n f i r m e d

, f a l s e o r f a b r i c a t e d

, w e n t s t r a i g

h t t o t h e c r e d i b i l i t y o f t h e v i c t i m s

. T h e question specifically requested an opinion on whether the victims had made false or fabricated allegations. There is simply no question that Dr. Campbell’s answer would

ha v e been a direct comment on whether the victims were telling the truth or not. Mr. Craft’s situation is, therefore, clearly distinguishable from Cureton

.

[¶34] In many respects, Dr. Campbell’s proposed testimony was similar to the testimony

we criticized in Whiteplume v

. State, 841 P.2d 1332, 1337

- 41 (Wyo. 1992). In that case, the officer testified that he listened to the victim’s story and “made a determination that she had been raped.” We ruled that the officer’s statement constituted an improper opinion on the credibility of the victim and guilt of the accused. Likewise, Dr. Campbell’s proposed testimony clearly fell outside the range of permissible opinion testimony and the district court did not abuse its discretion by excluding it.

[¶35] Affirmed.