### IN THE SUPREME COURT, STATE OF WYOMING

20 2 3 WY 60

A PRIL TERM , A.D. 202 3

June 9

, 2023

TAYLOR SCOTT MEECE

,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 2 2

- 0249

A

ppeal from th e District Court of Cam pbe l l Cou n t y Th e Ho norable James Michael Causey , Judge

Representing Appellan t : Office of the S t ate Public Defender: Diane Lozano

, Wyoming State Public Defender; Kirk A

. Morgan , Ch ief Appellate Counsel ; Robin S. Cooper, Seni or Assistant Appellate Counsel

.

R e p re senting App elle e : Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen

R

. Jo nes , Senior Assi stant At torney General ; and John J

. Woykovsky

, Senior Assistant Attorney General.

Befo re FOX , C.J., and KAUTZ, BOOMGAARDEN, GRA Y, an d FENN

, JJ

.

NOTICE: This opin ion is subject to for mal revi sion before pu blication in Paci fi c Reporter T hi rd. Rea ders are

re quested to notify th e Clerk of the Sup reme C ourt, Supre me C o ur t Building, Cheyenne, Wyomin g 82002, of any typographical or other for m al err ors so that corre ction may be made b efo re f inal pub lication in th e permanent volum e.1 FOX

, Chief Justice

.

[¶1] A jury convicted Taylor Scott Meece of two counts of second

- degree sexual abuse

of a minor. On appeal he contends the prosecutor committe d p r osecut ori al misconduct by misusing a forensic interviewer’s testimony in his opening statement and closing
argument . We find no misconduct and affirm.

ISSUE

[¶2] The sole issue on appeal is whether the prosecu tor committed misconduct in the

way he referre d t o and u sed the testimony of a forensic interviewer in his opening statement and closing argument.

FACTS

[¶3] RR was born in February 201 0. During the years 2017 to 2019, she lived with her grandfather in Gillette, Wyoming along with her young er brother, h er m other, 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 mot her started dating

him.

[¶4] One night in 2017 or 2018, RR was lyin g in bed trying to sleep when Mr. Meece

entere d her bedroom and laid down in bed next to her. He unzipped his pants , took her right hand, and masturbated while hold ing her hand around his peni s

. H e 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 tha t
she was scared, pretended to be asleep while it was happening, an d did not understand

what had happen ed or know what to do

.

[¶5] RR became withdrawn and less talkative after the incident. About a y ear later, she told her younger brother MR what happened but made him promise not to tell anyone

because she was scared some thi n g else would happen. MR recalle d that RR “said it might

have been [Mr. Me ece] , but she doesn’t re a lly k now.” He also recalled that she was crying and begged him not to tell their parents.

[¶6] Sometime after telling her brother what had happened , RR told her soon

- to

- be stepsister LW

. In March 2 021, RR to ld 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 he r. RR told h er m o ther, who told RR’ s f a ther, and RR’s

father took RR to the Gillette Police Department to report the incident. About a month later, a forensic i nterviewer, Brandi Tonkel, in terv i ewed RR about the incident.2 [¶7] The State charged Mr. Meece with two counts of second

- degree sexual ab u se of a minor

. In its pretri al submission, it listed Ms. Tonkel as a wit n ess , 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 rep o rt and CD

of sa id interview. ” Shortly before t he pretrial con f erenc e, Mr. Meece filed a motion asking that the State be required to provide the defense a written expert report from Ms.

Tonkel.

[¶8] At the pretrial conference, the State objected to providin g t h e r equested report

. It

p ointed 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 asser ted Ms. Tonkel w ould not b e t e sti fying 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 ;

moreo ver, she does ha ve an are a of expertise, that’s wh y w e

pr ovided 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 cross

examination, tha t could change things

, I

– I don ’t believe we’re quite th ere yet

.

[¶9] The district court took Mr. Meece’s motion under advisement and then issued a written order denying it. The court reason ed:

In this case, th e Defen dant has been pr ovide d wit h Ms. Tonkel’s curriculum vitae, interview report, and a copy of the

in ter v iew . The State has declared that it does not intend to

elicit expert opinion testimony from Ms. Tonkel , and it

further does no t appear as though her propos ed testimony is

of th e typ e which requires an expert report to be prepared.

[¶10] At trial, the State el i cit ed the following testimony from Ms. Tonkel over defense

counsel’s objection :

Q. So, Ms. Tonkel, w hat is your unde rsta n ding of what a delayed disclosure is?

A. So a delay in disclosure would be based on research as well as what we see in practice t hat chi ldren will often wait to tell, and between 25 and 30 percent of child abuse victims

will never tel l. And the avera ge a g e of disclosure is 55, and3 that ’s a national average. So what we know is that most children will delay a disclosure.

Q. In other wor d s, something happens to the child and they don’t immediately go and tell , is that as simple of what a delayed dis closu re i s at its most elemental level?

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

lifetime.

[¶11] On cross

- examination, defense cou nse l fo llowed up on Ms. Tonkel’s testimony

concern ing delayed disclosure:

Q. Y ou talked a lit tl e bit about sometimes in your experience , children’s

– children will wait to tell you

– you talked about a little bit abo ut delayed disclosures; do you

remember th a t?

A. In practice and in research, yes.

Q. O kay.

And one of the things that can be a pr e dicto r for when a child might disclose is safety; is that right?

A. Yes.

Q. So once the perpetrator no longer lives in the house,

that

– that would be a piece th a t c ould keep them safe, maybe?

A. Physical safety.

[¶12] O n redi rect, the prosecutor elicited further testimony , without objection, detailing the myriad reasons a child might de lay disclosure , along with an explanation

. Those

reasons includ ed : t he relati ons h ip between the c hild and offender ; s oci al and developmental factors (not understanding sex and the need to tel l) ; fear of not being believed; and fear of what may happen to the offender and the victim’s family.

[¶13] In the State’s closing ar gument, the pr ose c uto r did no t discuss or refe r t o M s. Tonkel’s testimony concerning delayed disclosure. Defense counsel then argued in closing:4 You heard from Brandi Tonkel. She’s great on the witness

stand , there was no doubt abou t that. She told you a lot ab out,

“We ll, som et i me s t here 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 grea t speaker. She has a lot of information, but when you shift (s ic) thr ou g h t ha t, 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 y ou why [ RR] del ay s re po rting [.]

[¶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 reason s to the evidence the j ury heard concerning RR ’ s c ircumstances. 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 dist rict court entered judgment a nd senten ced him t o a p rison term of eight to thirteen years on each co unt

, to be served concurrently

.

STANDARD OF REVIEW

[¶16] Mr. Meece contends the pr osecutor committed misconduct during his openi n g

s ta tement and closing argument. Because Mr. Meece did not object to either in stance, we review for plain error. King v. State , 2 023 WY 36, ¶ 33, 527 P.3d 1229

, 1242 (Wyo. 2023). To establish pl ain error, Mr. Meece “ must show ( 1) the rec ord is clear abou t th e incident alleged as error; (2) a violation of a clear and unequivocal rule of law; and (3) he was denied a substantial right res u lti ng in material prejudice.” Id

. (quoting Ridinger v. State , 2021 W Y 4, ¶ 33, 478 P.3d 1160, 1168 (Wyo. 2021) ).

DISCUSSION

[¶17] We have defined prosecutorial misconduct as follows:

Prosecutorial misc ond u ct is a pr osecutor’s improper or illegal act (or failure to act), especiall y involving an attempt to

per suade the jury to wro ng ly convict a defendant or assess an unjustified punishment. Prosecutorial misconduct claims are not intended to provide an av enu e fo r tacti cal sandbagging of the trial courts, but rather, to address gross prosecutorial5 improprieties that have deprive d a cr iminal defendant of his or her right to a fair trial. A prosecutor’s conduct is not

misconduct unless he knew or should have kno w n i t would deprive the defendant of the right to a fair trial. It is

someth ing more than evidentiary err or. We distinguis h

pr os ecutorial misconduct from evidentiary error because otherwise, any evidentiary error which favors the State would

be consider ed p ros ecutori al misconduct.

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

I. The re was no plain error committed i n th e State’s opening statement

.

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

I anticipate that as part o f t h at investigation, you’ll hear about [RR] submitting to a forensic interview where she goes and provides a detailed accoun t by s omeone who’s

trained in dealing with these types of situations where you have a child victim or witness to get their side of the sto ry.

[¶19] Mr. Meece contends this statement was misconduct because “[w]hi le 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 err or, the first prong

of the plain error analysis is met. Mr. Meece ca n not, 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 o f M s . T onkel’s testimo ny . That is an evidentiary er ro r , not misconduct. King

, 2023 WY 36, ¶¶ 16, 31, 527 P.3d at 1238, 1241

- 42 (rejecting argument that prosecutor’s attem pt to elicit expert testimony in violation of case management order was

misconduct and i n s tea d treating it as an alleged evidentiary e r ro r)

. Moreover, the

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

Ms. Tonkel , which said

, in part

, that she “may testify regarding her education, training and experie nc e in the area of forensic in terviewing, [and] h er i n terview 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. The re was no plain erro r committed in th e S t ate ’s closing argument.

[¶21] Mr

. Mee c e contends the following argument made d uring the State’s rebuttal closing was misconduct :6 We’ve heard test

– or [defense counsel] brings to your attention Ms. Tonkel’s testimony; how she’s able to pr ovide

information co n cer ning delayed disclosures

, what delayed disclosure is, and what are causes fo r delayed disclosures. Let’s consider to what Ms. Tonkel did testify to. Again, go

back to In struction Number 4 and draw reasonable inferences

from the evid ence that has bee n p r ese nted to you.

Ms. Tonke l talk e d about a reason for delayed

disclosure is th e relationship between the offender and the child. Consider the relationship between this offender and the child; a close relationship, one [RR] revered unt il things went

so uth

. Th e nature of that relatio n ship w as absolutely a contributing factor to that d elayed disclosure. You heard the evidence, you heard from Ms. Tonkel. Draw reasonable

inferences to reach that conclusion.

Another consideration for why d isclosures are de lay e d

i s social development. As Ms. T on kel 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 fift h grade as being a t i me when these delayed discl o sures wi ll often com e forward because they might have some type of sex education

class. This disclosure o ccurred last year. [RR’s] presently in the sixth grade, meaning last year, she was in the fifth grade.

Looking to the re a son s why Ms. Tonkel testif i e d th at

t here 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: Fe ar of being belie ved

. La dies and gentlemen, we’ re h ere i n cou rt 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 b e some type
of a bre a dwi nner in the household; or t wo, m other 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 resided7 with him for a period of tim e

. W e kno w she had very pos it iv e vie ws 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 pr ovided circumstan ces of where these delayed dis cl os ures come in to play. I submit to you the evidence that has been presented to you neatly corresponds

with all of those bases.

[¶22] Mr. Meece asserts that th r ough this arg ument the State relied on Ms. Tonkel to tell

th e ju ry th at R .R. ’s disclosure “ had all the hallmarks of truth given her expertise in delayed disclosures.” He contends th is was imp roper because it amounted to vouching for

RR’s credib ility. He further contends the State argu ed m atter s n ot in evidence “by saying

th at 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 t he record i s clear as to the incident alleged a s er ror. As with his first claim of misconduct, howev er, Mr.

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

.

[¶23] Vouching occurs when a prosecutor offers his opinion of a w itness’s credibility, as distinguished from whe n he infe rs credibility from the same evidence the ju ry h as befor e it. Byerly v. State

, 2019 WY 130, ¶ 21, 455 P.3d 232, 242 (Wyo. 2019) (citing Co llins v.

State , 2015 WY 92, ¶ 3 6 , 354 P.3d 55, 64

- 6 5 (Wy o. 2015) )

. In the above

- quoted argument, th e p r ose cutor 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

evi dence it heard concerning RR’s circumstances

. W e ha ve pr evi ously addressed much

the same scenario an d h e ld it did not constitute impermissible vouching.

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

victims of sexual a buse, and the prosecutor argued the evidence sh ow ed that w as what happened in that case. 2010 WY 1, ¶ 1 6 , 2 22 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 happe ned ’ in this case, the prosecutor gave more cre di bi lity to the

victims [’] testimony, thereby imprope rly vou ching for their credibility. ” Id. , 2010 WY 1, ¶ 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 tha t th e pro sec utor’s

comments relating the victims’ act ion s to the general behaviors described by Dr. Lindberg were not tantamount to vouching for the victims’ credibility. The prosecutor’s statements merely inf ormed the jury about the relevance of8 Dr. Lindb er g’ s tes tim ony and suggest ed how that testimony migh t a s sis t 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. 1 98 6) ( expe rt testimony as to why

sexual assault vi cti m wo uld ask assailant not to tell about

sexual encounter was admissible in that it did not constitute testimony with respect to veracity of victim, but r ather assisted jury in understanding evidence).

Id

. , 20 10 W Y 1, ¶ 18, 222 P.3d at 156.

[¶25] Given our c lea r pr ecedent, i t 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, t h at i s an evid entiary error, not misconduct

. King , 202 3 W Y 36 , ¶¶ 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 admis sibility.

Moreo ver, a lthough Mr. Meece objected t o t he S tate’s initial examination of Ms. Tonkel

con cer n ing 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 fo llowed up with a more extensive inquiry into th os e r easo ns. The evidence concerning the reasons for

del a yed reporting was thus admitted without objection , and the prosecutor was free to comment on it and suggest reasonable infere nc es from it. Bogard v. State

, 2019 WY 96, ¶ 19, 449 P.3d 315, 321 (Wyo. 2019) ( citing Teniente v. State , 2007 WY 165, ¶ 30, 16 9

P

. 3d 512, 524 (Wyo. 2007) )

. Mr. Meece has therefore failed to establish that the prosecutor’s statement violated a clear and uneq uivocal r ule of law

.

[¶26] Affirm ed.