### IN THE SUPREME COURT, STATE OF WYOMING

20 20 WY 29

OCTOBER TERM, A.D. 201 9

March 3, 2020

JOSEPH D. LAJEUNESSE,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 19

- 0024

Appeal from the District Court of Campbell County

The Honor able Michael N. Deegan , Judge

Representing Appellant:

Robert J. O ’ Neil, Robert J. O ’ Neil, PC, Gillette

, Wyoming. Argument by M r

. O ’ Neil

.

Rep resenting Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig , Deputy Attorney General; Christ yne M. Martens, S en ior Assistant Attorney General ; Tim othy P. Zintak, Assistant Attorney General . Argument by M r. Zintak

.

Before DAVIS, C.J., and F OX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

NOTICE: This opinion is subject to formal revision before publicati on in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of a n y typographical or other formal errors so that correction may be made before final publication in the perma nent volume.1 GRAY , Justice.

[¶1] Joseph La J eunesse was conv i cted o f two counts of sexual intrusion on a victim

under Wyo. Stat. Ann. § 6

- 2

- 314(a)(i) ( actor sixteen or older and victim under thirteen )

. He appeals his conviction s claiming the district court i mproperly admit ted testimony of other wrongs or acts under W.R.E. Rule 404(b) and improperly admitted testimony about

the victim’s earlier statements to a forensic interviewer under W.R.E. Rule 801(d)(1)(B).

He also conte nds the district court erred in al lowing the Stat e to amend the charging documents at the end of the State’s presentation of evidence

, and this error denied him the opportunity to effectively cross

- examine witnesses in violation of the Confrontation Clause of the United States and Wyoming Constitutions. We affirm.

ISSUES

[¶2] The issues are :

1. Did the district court err when it admitted W.R.E. Rule 404(b) evidence at trial?

2. Did the district court err when it admitted testimony under W.R.E. Rule 801(d)(1)(B) at trial ?

3. Did the district court e rr when it allo w ed the State to

amend the F elony I nformation after the State had presented its witnesses?

FACTS

[¶3] In 2015, w hen C.L. was seven years old

, she

, her parents

, and her three siblings

moved from Colorado to Gillette

, Wyoming

. The f amily lived w ith Mother’s parents in a

two

- bedroom apartment on Stanley Street. C.L. lived in the apartment until May 31, 2016, when she was taken into custody by the Department of Family Services for reasons

unr elated to th is ap peal.

[¶4] During two forensic interviews conducted while C.L. was in State custody , C.L.

described times where her father

, Mr . La J e u nesse, initiated sexual contact with her.

These events occurred after the fam ily moved from Colorado to Stanl ey Street. The first

incident occurred when C.L. was t aking a shower. She reported that Mr. La J eunesse entered the bathroom, shut the door

, and knelt by the tub. He then licked C.L.’s vaginal

area. The second in cident occurred w hile C.L. was taking a nap. Her father climbed o nto the top bunk bed where C.L . was resting. He removed her pajama bottoms and underwear, and “ [ p ] ut his private in [ her ] bottom.”2 [¶5] A n a rrest warrant was issued for Mr. La J eunesse on January 3 1, 2017, charging

him with two counts of f irst

- d egree s exual a buse of a m inor under Wyo. Stat . A nn. § 6

- 2

- 314(a) (i)

, (c). A fter a three

- day trial

, a jury fou nd Mr. La J eune s s e guilty of bot h counts.

The district court sentenced him to no t less than thirty years in prison on each count to run consecutively. Mr. La J eunesse timely appeals.

Pr ocedu ral History

[¶6] Prior to tri al, the State n o tified Mr. La J euness e it would seek admission of W.R.E.

Rule 404(b) evidence . The State planned to present testimony from Mr. La J euness e’s

three ad ult nieces about sexual e ncounters with Mr. La J eunesse wh en the nie ces w ere children in the late 1990s. 1 Mr. La J eune sse objected, claiming the proposed 404(b)

evidence was not offered for a proper purpose under the r ule

, and it was m ore prejudicial than probative. T he district court heard argumen ts a nd received exhibits on t he ques tion

of the adm iss i bility of this evidence

. It found that, although a close call, the probative

valu e of the evidence outweighed the potential for unfair prejudice

— “provided the S tate
limi ts t he test imony of the ni eces so as to prevent it from beco ming unnecessarily

cu mulative.” It then admitted the testimony of these witnesses for the purpose of establishing motive as allowed by the r ule

. The d istr ict cou rt ordered that a limiting

instruction be given to the jury p rior to the testimony at tr ial a nd required the parties to stipulate to an instruction or to pro pose their own. On appeal, Mr. La J e unesse claims t h e alleged inc iden ts were inadmissib le because they were too remote in time and dissimilar

from the current charges

.

[¶7] Mr. La J eunesse al so ob jected to the district c ourt’s admission of the testimony of

forensic examiner , Bra ndi Tonkel, about statements mad e by C.L. duri ng forensic

interviews

. After defense counsel made opening statement and C.L. had testified , the

State moved to admi t Ms. To n k el ’s testimony as eviden ce of C.L.’s prior consistent

statements under W.R.E. R ule 801(d)(1)(B )

. M r. La J euness e argu ed neither the defense opening statement or cross

- examination of C.L. raise d an express or implied charge that

C.L.’s testimony was th e res ult of recent fabrication

, improper influence

, or motive. The

dist ric t court allow ed the testimony

, and Mr. La J eunesse renews his argument on appeal.

[¶8] A t the close of the State’s presentation of evidence, th e Stat e moved to amend the

d ates set forth i n th e Felony Information

. The Felony I nformation orig i nally alleged the

cr i mes occurre d between December 1 , 2015

, and May 31, 2016

, based on information provided by C.L.’s grandmother

. The State later learned from C.L.’s grandfather t hat

C.L. and her fa mily took up residence in the Stanley ap artment a round March 10, 2015.

The State moved to am end the Information to conform to the evidence presented at trial.

1 The State moved to present ad ditional Rule 404(b) evid ence, but the district court d enied adm i ssion

unless Mr

. La J eunesse raised a lack of in tent as part of his defe ns e

.3 At trial, Mr. La J eunesse objected

, claim ing a n amendment at t his s tage of th e tri al

prevent ed h im fr om br inging alibi witnesses for the expanded period of time and violated

his due process right to notice of the charges again st him . He asked for a continuance

. The district cour t denied Mr. La J eunes se’s reque st fo r a contin uance and allowed the

ame ndm en t

. O n appeal, Mr. La J eunesse a bandons his argument relating to al ibi

witnesses . He claim s the amendment was untimely

, and he was substantially prejudiced

because it denied him th e opportunity to effectively cross

- examine C. L. and Ms. Tonk e l

, the onl y t wo subs tant ive wi tnesses at trial

.

STANDARD OF REVIEW

[¶9] I n hi s first two issues , Mr. La J eunesse contends the district court erred when i t
admi tted testimony under W.R.E. Rules 404(b) and 801(d)(1)(B). This C ourt reviews

al leged errors in the admission of e viden ce for an abuse of discretion. Hutchin son v. Taft

, 2010 WY 5, ¶ 27, 222 P.3d 1250, 1257 (Wyo. 2010)

. “Determining whether the trial

court ab used its discretion involves the consideratio n of whether th e court c ould

re asonably conclude as it did, an d wheth er it acted in an arbitrary and capricio us manner.” Ortiz v. State , 2014 WY 60, ¶ 67, 326 P.3d 883, 897 (Wyo. 2014 ) (citations omitted). “A trial court ’ s evidentiary rulings are entitle d to considerab l e defer ence , an d

will not be reve rsed so lo ng as ther e exists a legitimate basis for the tria l court ’ s ruling.”

Id

. (citation and internal quotation marks omitted).

I. Did the district court err when it a dmitted W.R.E. Rule 404(b) eviden c e at trial?

[¶10] M r

. La J euness e c laims the district court ab used it s discr etion when it allowed testimony alleg ing ear l ier acts of sexual abuse of his nieces when they were children

unde r W.R.E. Rule 404(b) . This r ule provides:

(b) Other crimes, wrongs, or acts.

— E vidence of othe r crimes,

wro ngs, or acts is not admiss i ble to prove t he character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such a s proof of motive, opportunity, intent, prepar at ion, plan,

know l edge, identi ty, or absence of mistake or ac cid ent

. . . .

W.R.E. Rule 404(b)

. D istrict courts apply a mandatory test in determining the admissibility of W.R.E. R ule 404 (b) evidence :

(1) the evidence must be offered for a proper purpose; (2) th e evidence must be relevant; (3 ) the probative value of t he

evide nce mus t not b e substantially outweighed by it s potential for unfair prejudice; and (4) upon request, the trial court m ust4 instruct the jury that the similar acts evidence is to be

consider ed only for the p r ope r purpose fo r which it was

admitt ed.

Griggs v. Stat e , 2016 WY 16, ¶ 128 , 367 P.3d 1 10 8, 1143 (Wyo. 2016) (citations omitted)

.

[¶11] “ In Gleason [ v. State

, 2002 WY 1 61, ¶ 30, 57 P.3d 332, 343 (Wyo. 2002)

, ] we set
forth factors that t he district cou r t must examine to determine the admissibilit y of 404(b)

e vidence

, and we required the court to articulate its findings. ” Garrison v. State , 2018 WY 9, ¶ 11 , 409 P .3d 1209, 121 3 (Wyo. 201 8)

. We do not require the trial court to make express findings on each fact or

. Gleason v. State

, 2002 WY 1 61

, ¶ 28, 57 P.3d 332

, 34 3 (Wyo. 2 002)

. The se Gleason factors are:

1. How clea r is it that the defendant committed the pri or bad

act?

2. Does the de fend ant dispute the issue on which the state is offering the prior bad acts evid ence?

3. I s other evidence available?

4. Is t he evide nce unn ecessarily cumulative?

5. H ow much time has elapsed betwee n the charged crime and the prior bad act?

. . . The trial court sho ul d [then] weigh [the follow ing] factors against the probative value of the ev idence:

1. The reprehensible nature of t he prior bad ac t. The more reprehensibl e the act, the mor e likely the ju r y will be tempted to punish the defendant for the prior act.

2. The s ym pathetic character of the a lleged victim of the prior bad act. Again, the j ury will be tempted to punish th e def enda nt f or the prior act if t he victim wa s especially

vu lne rable.

3. T he simi l arity between the charged crime and the p rior

bad act. The more si m ilar the acts, the greater is the likelihood that the jury will draw the imp roper inference that

if the def endan t did it once, he probably did it again.5 4. T he comparative eno rmity of the ch a rged crime and the prior bad act. When t he prior act is a more ser i ous offense than the charge d crime, the introduction of that act will tend

t o place the defendant in a dif feren t and un favorab le light.

5. T he c omparable rel evance of the p rio r bad act to th e proper and forbidden inferences. Eviden ce of the prior bad

act ma y be much more probative of bad character than it is of any legitimate infere nce permitted by Rule 404(b).

6. W he ther the prior act resulted i n a conviction. The jury may b e t empted to punis h the defendant if they believe he escaped punishment for the pri or b ad act.

Gleason

, ¶ 27, 57 P.3d at 342

– 43 (citations omitted)

.

[¶12] “ This analys is is intende d to be conduct ed by the tri al cour t, and we do not apply it

anew on appeal. ” Ma yhew v. State

, 2019 WY 38, ¶ 27, 438 P.3d 617, 62 4 (Wyo. 20 19).

“ Our role is to deter mine whether the trial court abu sed its discretion in considering the requir ed fa ctors. ” Id

.

[¶13] Mr. La J eu nesse concede s the d istrict court made detailed fi ndings on each fac tor but argu e s the court’s conclusion was unreasonable as a matter of law

. Among other things, h e po ints to the difference in Mr. La J eunesse’ s age ( at the time of the previous

conduct he was i n his te ens and the current charges arose wh en he was in h is thirties); in the ages of his alleged vic tims ( t w o n i eces testified the incidents began when the y were four o r five years old and continued over a pe riod of years ; here C.L. was seven ) ; and in

ap proac h ( he thre atened the nieces if they told anyone , when C.L. was not threaten ed )

. Finally, M r. La J eunes se argues he was never charged fo r any contact with his nieces

.

[¶14] The district court’s Gleason analysis noted all the distincti ons rai sed by M r.
La J eunesse

. B ala ncing the probative value of the evidence versu s the potential prejudice,

t h e district court determined the relevance of the uncharged m i sconduct to m otive was high

, but “the chance [ that ] the fact finder may draw [a] forbidden inf ere nc e [ wa s ] also high

. ” The district court concluded:

T he uncharged misconduct evidence clea rly posses ses probative value with respect to the properly identified

purpo ses. It helps to illumina t e Defendant’s motive should he

de ny any wrongd oin g or to est a bli sh hi s knowl e dge and intent

or lack of accident / mistake should he ass e rt he did the physic al act in question but without the requisite intent or6 knowledge or that he did the act but it was ac c i dental or

inadvertent. And

, a lthough it i s a close call , t h e c ourt finds

t h e pr oba tive value is not substantially outweigh e d by the potential for unfair prejudice

– provided the State limits the testimony of the nieces so as to prevent it from becoming

u n necessarily cumulative.

[¶15] W e find no abuse of di scretion in the distr ict cour t’s rul ing. “Motive is generally

defined as that which leads or tempts the mind to indulge in a particular act.” Mayh ew , ¶ 31 , 438 P.3d at 62 7 ( c iting Swett v. State , 2018 WY 144 , ¶ 39, 431 P.3d 1135, 114 6 (Wyo. 2018) )

. “ Alth ough moti ve is not a n elemen t of an y charged crime, it is an

intermediate fact that the prosecution is permitted to prove. ” M ayhew

, ¶ 31, 438 P.3d at

627

. “ Motive becomes p a r ticularly important in child sex abuse cases where the accused denies any w rongd oing, t hereby c reati ng an ‘e videnti a ry conflict ’ between himself and

the victim. ” Winters v. State

, 2019 WY 76

, ¶ 82, 446 P.3d 191, 216 (Wyo. 2019 ) ; Elliott

v. State

, 600 P. 2 d 1044, 1048 (Wyo. 1979); see also Griggs , ¶ 131, 367 P.3d at 1143

– 44 (recog nizin g “mot i ve to se xuall y abuse c hildre n” as p roper use of other acts evidenc e ).

[¶16] Our holding in Winters controls the resolution of Mr

. La J eunes se ’ s claims . I n Winters

, the defen dant a lso argued th er e were “no factual similarities ” between the charges at hand and his prior sexua l miscon duct

. Wint e rs , ¶ 83

, 446 P.3d a t 21 7

. Simil ar

to Mr. La J eunesse’s argument, t he d efendant in Winters further a rgued the prior

misconduct was “too remote in time ”

— o ve r twenty years

— to be relevant and probative

to his present motive. We reje c ted t h o se arg uments, sta ting “[d] espi te thes e dissimilari ties, the other acts

. . . and the charged crimes both involved a k ey similarity: Mr. Winters sexually abusing prepubesce nt children

. . . . [B] oth involved the same class

of victims and both reflec t [ th e d efenda nt’s ] s exual preference fo r pre p ubescent

chi ldren.” 2 Winters

, ¶ ¶ 84

– 85

, 446 P.3d at 21 7 (quoting Mayhew , ¶ 35 , 438 P.3d at 628 )

2 “This Court has consistently held that ‘sexual behav ior with a defendant’s m inor children, adopted children, or step children is unusual sexual beh avior pe rmittin g adm issi on of uncharged mi scon duct

evid ence t o prove motive when t he a c cu sed denie s that t h e charged conduct ever occurred. ’ ” Mayhew

, ¶ 31, 438 P .3d at 627 ( citing Swett

, ¶ 40, 431 P. 3d at 114 6 ) ; s ee also McDowell v . State

, 2014 WY 21, ¶ 2 8, 318 P. 3d 352, 361 ( Wyo. 201 4) ; Brower v. St ate

, 1 P.3d 12 10, 1214 (Wyo. 2000) ; G leason

, ¶ 19, 57

P.3d at 340

– 41 ; Rigler v. State

, 941 P. 2d 734

, 7 38 (Wyo. 1997) (in child sexual abuse case, evidence of

simil ar previous misconduct with differen t victim ad mis sible to prove mo dus operan di, preparation, plan, intent, and credibili ty of vic tim); Daniel v. State , 9 23 P.2d 728, 73 4

– 35 (Wyo. 1996) (i n pr o se cution fo r indecent liberties, testimony of six other childre n about sexu al activities with defen d ant admi ss ibl e to

prove course of conduc t); Jackson v. S tate

, 891 P.2d 70, 75

– 76 (Wy o. 1995) (victim ’ s testimony of p rior sexual acts by defendant ’ s st ep f a th er admiss ible in indecent liberties case as proof of motive, course of

co nduct, and credibility o f vi ctim) ; Joh nso n v. State

, 87 2 P.2d 93, 95

– 98 (Wyo. 199 4) (in indecent

liberties ca se, testi mony of social worker th at defendant had admitted previo us sex u al molestat ion of a

ten

- year

- old girl admissible to prove motiv e, intent, a nd identity); Mitchell v

. Sta te

, 86 5 P .2d 591, 598

– 99 ( Wyo. 1993) (in trial for s econd

- degree sexual assault of a ten

- year

- old girl, defendant ’ s admission of7 (internal quotat ion marks omitted )

. We noted t he amount of time between the prior and

current misconduct is not l imi te d by an arbitra ry num ber of years. Wi n ters

, ¶ 85

, 446

P.3d at 21 7 ; s ee also Griswold v. State

, 994 P.2d 920, 926 (Wyo . 1999) (“[R]emoteness may affect t he weight of the ev id ence rather than its admissibility.”). Rather, “ [ t ] he question is ‘ one of re asona bleness ’ consid ering ‘ the context in w hi c h the evid en ce was introduced and the theory supporting its admissibility. ’ ” W inters , ¶ 85, 446 P.3d at 218 (citi ng Hart v. State , 2 00 2 WY 163, ¶ 2 4 , 57 P.3d 348, 356 (Wyo. 2002) )

.

[¶17] In this case, the district court determi ned the evidence was probative an d relevant

t o motive and g ave a limitin g instruction to the jury prior to the n i eces ’ testimony

. The

t est imony was succin c t and not cumulative. The district court did not abuse i ts di scretion in deciding the earli er acts testimo ny was a dmissible

.

II. Did the di strict court err when it a dmitt ed testimony under W.R.E. Rule 801(d)(1)(B) at t r ial ?

[¶18] The State moved to adm it prior statements made by C.L. during interviews with

Ms. Tonkel wher e C.L. i dentified her fath er as the per petrato r of th e charged sexual

contact . Mr. La J e u nesse ob jected , claiming the te stimony was inadmissible hearsay an d

did not fall within any ex ception under W.R.E. Rule 801(d ) (1) 3 because he had not implied C.L. was fabricat ing her accusation s aga inst him

, or th a t she was improperly

influenced , or had an improp er motive

. The district court disagree d , finding the def en se opening statement had established the predicate for admission of the t estimony

. Mr.

La J eunesse claims the district c o urt ’s concl usion is error.

[¶19] “‘Hear say’ is a sta tement, other than one m ade by the declarant while testifyi ng at the trial or hearing

, offered in evidence to prove the truth of the matter asserted.” W.R .E.

Rule 8 01(c). W.R.E. Rule 802 , g e nerally, pro scribes a d miss i on of hearsay . However,

sexual arousal d ur ing p ri or sexual activity with a three

- year

- old niece, for which the defendant w as convicted, admissible to prove m oti ve ) ; Gezzi v. St a te

, 780 P.2 d 972, 97 7

– 78 ( Wyo. 1989) (in prosecution

f or indece nt liberties with daught er, testimony of older daughter as to s im ilar misc onduct with her admissible to prove defendant ’ s moti ve and victi m ’ s credibility); Brown v . State

, 7 36 P.2d 1110, 1113 ( Wyo. 1987) ( in prosecution for in cest, testimony by vi ctim and her half

- sister implicat ing defendant in prior sexual ab us e ad m is sible bec ause aberrant sexual behavior is probative of motive ); and Ellio tt

, 600

P.2d at 1048

– 49 ( in tri al f or second

- degree sex ual assaul t , testimony of victim ’ s older sister as to similar

m isconduct by defendant w ith her admiss ible to prove moti ve base d on pedoph ilia).

3 W.R.E. Rule 801(d)(1)(B ) provides: (d) Statements which are not hear say.

— A stat emen t is not he ars ay i f: (1) Prior Statem ent by Witness.

— The declarant testifies at the t rial or

h earing and is subject to cross

- exa mination concerning th e state me nt,
and t he statement is

. . . (B) co nsistent with his testimony and is

o ffere d to rebut an e xpre ss or impli ed char ge against hi m of r ecent
fabrication or improper influence or motiv e

. . . .8 W.R.E. Rule 801(d) (1)( B) allows a statement to be admitted at trial if it is a prior

consistent statemen t t ha t meets four requirements :

(1) t hat the declaran t te stif y at trial; (2 ) that the dec larant be

sub ject to cross

- examinati on concerning the prior statement; (3) that the prior stateme nt be consistent with the declarant’s trial testimony; and (4) that the p rior statemen t be offered to rebut an express or i m pli ed c harge against the dec larant of

recent fab rication or improper in flu ence or motive.

Jones v. State , 20 19 WY 45, ¶ 1 5 , 439 P.3 d 753, 757

– 58 (Wyo. 2019) (citing Gr iggs

, ¶ 98, 367 P.3d at 1136 ) ( quotin g Lan caster v

. State , 2002 WY 45, ¶ 17, 43 P.3d 8 0, 88 (Wy o. 2 002 )

, over ruled b y Jones , ¶ 17, 439 P. 3d 753 at 758 ).

[¶20] Mr. La J eunesse concedes the first three of these re q ui rements were me t

. H e argue s the fo urth requirement was not and that the district court err ed when it determined the defense’s open ing s ta tement accused C.L . of re cent fabrication, impr o per influence, or

im proper motive.

[¶21] In its ope ning statement, defense counsel told the jury about a pers on Mr.

La J eunesse had met through his church and who then “ betrayed ” h im. Coun sel expl ained that, if Mr. La J eunesse were t o testif y , he would tell them abou t this other p erson and that

Mr. La J e u ness e fe lt terrible remorse because he failed to protect C.L. from this person

. 4

Co unsel ended with:

A nd you will he ar te stimony from [ C.L. ] , and it will be

d isturbing

, to sa y the lea st. It will upset you. I would expect
it to u pset you. [ C.L. ] would be a sympathetic witne ss, and she deserves our sympathy after what [another adult ] di d to

her. But whether she deserv es ou r sympat hy and whether

she’s a credib le witnes s about w hat Mr. La J eunesse is

accu sed of doing are two e ntirel y different things. And after

cross

- examining her, you will conclude that it is not to be

believed to th e re quired standard, beyond a reasona ble

d oubt.

. . . But there are a couple of things t h at I w ou ld like to make clear to y ou about [ C.L. ] at this time . We are n ot saying that [ C.L. ] has recently fabricated or made up these allegations against her dad. W e do not know at this time, and

4 Mr. La J eunesse did no t testify at trial

, and this pers on was no t referre d to by any witness a fter op ening

statements.9 [we] are n ot sayin g that she has been improperl y influen c ed

or ha s an im proper motive for her tes timony. Thes e q uestio ns

are for you to decide after all the evidenc e has been presented

. . . .

[¶22] W i th respect to the defense op ening stateme nt

, the district court reasoned:

Defen s e cou ns el basically read the Rule out of t he Rule book

, essentially, in his opening remarks, tel ling the ju ry that the

defense was not taking the position that the te stimo ny of the alleged victim was off ered to rebut an express or implied charge against h e r. T he y were not assert ing that she was

r ecently fabr icating, or was ac ting under an improper

i nfluence or motive. But [counsel ] made the remark , “That’s

up to you, the jury.” That, in and of itself

, posit s that

p ossibility to the jury, and thus makes t he as se rt ion that the ju ry might consider that th is young l ady is testif ying, or was going to te stify as sh e did , exactly because she was fabricating or subject to im prope r influence or motive.

. . . In additi on, i n openin g remarks we had this, these

vague allu s ions to [ th e othe r per son ] ; and to be sure that

wasn ’ t sharpened up, but nonetheless, in my view, the spect er was presented of this evil figure, [ th e other per son ]

, w ho

so mehow had in clined this c hild to get on the s tand and testify as she did against her fathe r ; that it w asn’t her father, it

was somehow out of the genesis of [ the other per son ] . And that, as w ell, in my mind amounts to a charge agains t her of

fabricat ion o r improper i nfluence or m otive.

[¶23] Based on the defense ’ s opening statement

, the district cour t allo wed Ms. Tonkel to
testif y about C .L.’s disclosures during the inter views . I n a November 2016 intervie w , Ms. Tonkel testified that C.L. di vulged that “she was i n the shower [and] her f ather had

stuc k his tongue out a little bit and licked her potty w ith hi s tongue.” Following this

disclo sure, Ms. Tonkel s howed C .L. an anatomical drawing

. C.L. i ndicated her “potty”

was her v agina. C.L. said this inciden t occurred after the fam ily had moved back to

Gillette

. Ms. Tonkel further testified that a t a second interview in Ja nuary 2017, C.L. di d

not make a ver ba l state ment. Instead she wrote a note that sai d , “He pu t H is privit in

butum.” Again, using the anatomical drawing, C.L. indicat ed “ p rivit” was her father’s penis and “butum” was her buttocks. C.L. rela ted this i ncident also occurred a fter moving back t o Gille tt e from Co lorad o.

[¶24] “ T rial co u rts must be cautious lest they allow admission of prior c onsis t ent statements any time a victim’s credibility is questioned ” because a defense to the crime of10 sexual abuse of a minor “ will necessarily entail a defense theor y that what the vict im said happ e ned did not happen. ” Jones

, ¶ 24, 439 P.3d at 761. “ Tha t alo n e does not open the

door for admission of prior consistent st atements .” Id

. However, “[t]he ch arge of fabrication or improper motive ne ed not come only a s a s pe cific alleg ation d uring cross

exami nation;

. . . it may be made by implication or innuen do, a n d it may be found in the

‘ th rust ’ of the defenses and testimony presented.” Lancaster

, ¶ 18, 43 P .3d a t 89

.

[¶25] “ [ T ] he distric t cou rt enjo y s considerable l a titude and broad discreti on with respect

to the admission or exclusion of evidence. ” Odegard v . Odegard , 2003 WY 67, ¶ 22, 69

P.3 d 917, 924 (Wyo. 2003)

. “ We d efer to a tri al court’s deter minat ion and will not

disturb the rul ing i f t here is a legitimate b asis fo r it. ” Gonzalez

- C hav arria v. State , 2019 WY 100, ¶ 11, 449 P.3d 1094, 1097 (Wyo. 2019)

. W e find the district court’s

dete rmination to be reasonable.

[¶26] A lthough the defense did not dire ctly maintain C.L. was fabricati ng or had be e n improperly infl u e nced, the jury was invi ted to consider this possibility

. We see no reason why the defense would q u o te W.R.E. Rule 801 (d) (1)(B ) in such a ma nner except to plac e th i s exact consideration bef ore t he jury. I n closing remarks

, Mr. La J eunes s e’s counsel

made e x plici t wha t was implici t i n the opening statement. He argued, as “ sympathetic ”

as C.L. was, “that doesn’t mean th at wh at sh e sa id on the stand [was] anything more than

wh at had been plante d in her mind with the months and months and mo n ths of being in

S t a te cu stody .” The distr ict court did not abuse its discretion in allowing C.L.’s prior

consis tent statemen ts. 5

III. Did the district court err when it allow ed the State to ame nd th e Felony Information after the Stat e had p resented its witne s s es?

[¶27] Mr. La J eune sse con t ends the district court erred in allowing the State to amend the dates of the charges in the Felon y In formation after t he presentati on of the Sta te’s

evidence and w ithou t granting a continuance

. The obje ctions raised by Mr. La J e u nesse at

t rial wer e based exclusively upon the State’s delay in seeking a n amendment and his inability to c all an alibi witness

— an argument not raised on appeal

— for the broadened

5 In this case, th e pre cise source an d tim ing of the all eged fabrication or im proper influence was not
identified. In Wyoming, W.R.E. Rule 8 01(d)(1)(B) does not re quire that p rior consistent state me nts b e made befo re the alleged improper moti ve arose, because “there is an inher ent d ifficulty in determ ining

w hen an improp er motive m ay have arisen[.]” Jones

, ¶ 16, 439 P.3d at 758 (quot ing Makin en v. State

, 737 P.2d 3 45, 349 (Wyo. 19 87))

. However, a p rior co nsistent statement made after the all eged corrupting influence “may be us ed on ly for re habilitati on

. . . a nd n ot as affirm ativ e evidence.” Montoya v. St ate

, 822 P.2d 363, 367 (Wyo. 1991). When admitting evidence for the purpose o f rehabilitatio n , “a l im iting

ins truction mu st be given, if r equested[.]” Id. The district cour t did not admi t Ms. Tonk el’s reite rati o n of

C.L.’s d is c losures as substantive evi dence and provided a limitin g instruc tion to the jury.11 time period

. On appeal, Mr. La Je u ness e claims the amendme nt of the I nformati on w as unti mely and viola t ed his rights und er the Confrontation Clause.

A. Due Process

ST ANDARD OF REVIEW

[¶28] W yoming R ule of Cr iminal P rocedure 3(e) g ives discretion to a trial judge in deciding whether a motion to amend an informat ion should be granted. A l barran v. Stat e , 20 13 WY 1 11, ¶ 11, 309 P. 3 d 817, 820 (W yo. 2013). We revi ew th e trial court ’ s decision applying our abuse of d iscretion sta n dard

. See s upr a ¶ 10

. We also have

“ consistently held that the granting of a motion fo r continuance is within t h e discr etion o f

the tria l court ” an d our r eview, ther efore, “ is li mited to deter mining whether the trial

court abused its discre tion by denying the co n tinuance.” Young v. State , 2005 WY 136, ¶ 9, 121 P.3d 145, 147 (Wyo. 2005) ( ci t ing In re C C

, 2004 WY 1 6 7 , ¶ 23, 102 P. 3d 89 0,

89 7 (Wyo. 200 4) ; Roo se v. State

, 753 P.2d 574, 578 (W yo. 1 98 8); and Gentry v. State

, 724 P.2d 450, 451 (Wy o. 1986) )

.

[¶29] “ An accus e d has a constitutional right to notice of the charges again st him to allow

him a fair opportu nity to def e n d agai nst the char ges ” un der the U nited S tates Constitution, Sixth Amendme nt an d Wyo ming Const it ution, A rt icle 1

, § 10

. 6 Spagn er v. State

, 2009 WY 1 2 , ¶ 10, 200 P.3d 793, 79 8

– 99 (Wyo. 2009). When an accused ’ s constitutiona l rig ht to notice of criminal c har ges is at i ss ue, the de terminati on on t he adequacy of notice is a questi on of law, which we review de novo

. Id

.

DISCUSSION

[¶30] Mr. La J eunesse arg ues the district court erred in al lowing the St ate to amend the

dates of the Felon y Information fr om “on or between D ecember 1, 2 015 ” to “on or

betwee n March 1 0 , 2015 ” after the State had called its witnesses

. Defense counsel objected and request ed a continuance , claiming the Sta te had known the b asis f or the

amendment for ov er a month bef ore trial be gan but w aited unti l after the pre s entation of

the S tate’s evidence before seeking the change. Mr. La J eunes se claimed the amendm ent
would violate his due process rights becaus e it would “ chang [ e ] the nature of the charges

a gains t him b y expan ding th e tim e perio d

. ” The district court foun d there was no add itiona l o r diff erent offense charg ed and the offense s wer e alwa ys alleg ed to h ave

6 Mr

. La J eunesse h as pres en ted no an alysis to s upport an indepen dent examination of the Wyoming

Cons titut ion’s due process o r confron tatio n provisions. Therefore, we will n o t apply a separate analysis

inconsi stent to the f ederal c onstitution. Sheesley v. Sta t e , 2019 WY 32

, ¶ 16, 4 37 P.3d 8 30, 838 (Wy o. 2019); Bear Cl oud v. State , 2014 WY 113, ¶ 14, 334 P.3d 132, 137 (Wyo. 201 4).12 o ccur red after C.L. return ed from Denver with her fami ly. The district court allowed the

am endment a nd denied the req uest for a co ntinuance. 7

[¶31] Moti ons to amend an informati on are governed by W.R .Cr.P. Rule 3(e ), whic h

sta tes:

( e) Amendment of information or citation.

— Witho ut leave of the court, the attorney for the state ma y amend a n information

or c itation until five days before a p reliminary ex ami nation in a case required to be tried in dis tric t cour t or unt il five days before trial for a case not required to be tried in district court. The court may permit an information or citati on to be

amended: (1) With the defend ant ’ s consen t, at any time b efo re

sen t encing. (2) Whet h er or not the defen dant conse nts: (A) At any time before trial if substantial rights of the

defendant are not prejudiced. (B) At any time before verdict o r finding if no

additional o r different offense is charged and if

substanti al right s of the defendant are not prejudiced.

( E m phasi s added

. ) T he amend ment to the Information occurred before the ve rdict

, and

therefore W.R.Cr.P. Rule 3(e)(2)( B ) controls. See Jo ne s v. State

, 2009 WY 33, ¶ 16, 203 P.3d 1091, 109 5

– 9 6 (Wyo. 2009 ). As a res u lt, w e limit our a nalysi s to whether Mr.

La J eunesse ’s substan tial ri ghts were prejudiced. 8

7 To the e x tent Mr. La J e u nesse claims the den i al of a continuance was error

, his argument must fail. He

argues : There are too nume rous cases to me ntion i n which i t was held by the Wyomi ng Supreme Court that when counsel claims “ surprise

, ” that the

re medy is t o ask for

– an d be granted

– a continuan c e to be able to meet

and defen d the “ su rprise

, ” whatever that “ surprise ” may happen to be in the par ti cular c ase at ba r. He fails to cite one case s o holding. W e have held : “ If cont inuan ces are grante d upon demand, ‘ great and

unwarran ted delay s would be e xperienced in the a dministration of justice. ’ ” G entry , 724 P.2d at 45 2 (citation om itted )

. “ The t r ial court is in the bes t position to evaluate all relevan t facto rs aff ecting requests

fo r continuances

— balancing in dividual interests a gainst unn ecessary p o stponements. ” Id

. As discussed inf r a ¶ 33

– 34

, Mr. La J eunesse d oes not demonstra te that d enial of the continuance affect ed his substantial rights, and the d istric t court did not abuse it s discretion b y denying the motion.

8 On appeal, Mr. La J e unesse urge s this Court to adopt a “structu ral defect” analysis , removing the n eed

for showin g prejudice, when th e amendme nt of an i nformation is requested after the State has pres ented

its wit nesses

. “ The purpos e of the struc tural error doctrine is to en sure insist e nce on certain basic,13 [¶32] A n information must “ (1) co ntain the elements of the offense charged; (2) fairly

infor m a defendant of the charges a gainst which he must de fend; and ( 3) enable a

d efenda n t to plead a n acqu ittal or conviction in bar of future prosecu tions for the same

offense. ” Spagner

, ¶ 10, 200 P. 3d at 799 (cit i ng Estrada

- Sanchez v. State , 2 003 WY 45, ¶ 1 3, 66 P.3d 703, 70 8 (Wyo. 2003) )

. “ A detailed affida vi t attached to the info rmatio n may provide some of this informati on. ” Spagne r , ¶ 10, 200 P. 3d at 799

.

[¶33] The facts in this case are nearly ident ical to those in Spagner

. In S pagner , the

defendant was ac cu sed of m ultiple counts of sexual assault o n a minor , in cluding one

count in 2004 wh ile she was livin g with her grandmoth er

. Id

. ¶ 4, 200 P.3d a t 795

. After the State had presented its case, the defendant moved for a judgment of acquittal on the

count a ll eged to h ave occurr ed in 2004, because test imony fr om th e grandmother at tr ial

es ta blished the minor had no t moved in wi th her un til 2005

. Id

. ¶ 19, 200 P. 3d at 801

. We upheld the district cou rt’s decision to grant the amendment because t he charges in t he

Infor mation were “ in the words of the r espective sta tutes ” which “ fairly infor me d [the

defe ndant] of th e charges agai nst which he must defend

, ” an d the State would be

“ precluded from f urther prosecuting the appellant for any sexual assault crime s aga inst

this victim during the full time period alleged. ” I d

. ¶ 12, 200 P. 3d a t 799 (c itation

omi tted)

. We concluded:

F ina lly, we note tha t Wyomi ng fo llows the rule that the sufficiency of an information is d etermined from a broad and enlightened sta ndpoi nt of right reason rather than from a

narrow view of technicalit y and hairspl itting

. The key is

wheth er the defendant has been m is led to h is prej udice

. Here,

where the Affidavit attached t o the Information clearly

indicated that the sexual assaults began after the appellant

moved into the victim ’ s grandmot her ’ s house, the appella n t

was no t misled b y a ge neral date statement that i nc luded

pe riods b efore he moved into the house. Beyond that, the

la ck of factual specificity goes not to the constitution al

ad equacy of the notice, but to the credibility of the S tate ’ s

case.

Id

. ¶ 1 3

, 2 00 P. 3d at 799 ( in ternal citations and quo tat ion mark s omitte d)

.

constitut iona l guarantees that should define the framework of any crimin al tr ia l

. ” Sore nsen v. State , 2019 WY 80, ¶ 17, 444 P.3d 1283, 128 7 (Wyo. 20 19) (citation omitted)

. Th e p lain language of W.R.Cr.P. Rule 3( e) all ows an amendme n t any time prior to a verdic t as long as there is no v iolation o f the

defendan t’s substanti al ri gh ts. We h ave never held the amendment of an i nformation prior to a verdic t
constitutes str uctural er ror

. We decline to do so now.14 [¶34] The p robable cause affidavit acc ompanying Mr . La J eunesse’s information stated

C.L. told Ms. Tonkel the ch arged events “occurred after [her] family had moved back

f rom Colorado” and were “ liv ing wi th C.L.’s grandp arents.” The affidavit also s ta ted the

dates in the Inf ormation were based on the gra ndmother’s r e collection of the time the family moved from Colorado. While the trial test imony of C.L. ’s grandfath er expa nded

the time f rame , t hroughou t the proceed ings

, M r. La J eu nesse k new the r elevant time period began with the family ’s move to the Stanl ey Street ap artment and continued until

C.L. was removed fr om the family. He did not offer any time

- based de fense prio r to the

amendment

. N otice of t he c ha r ges wa s sufficien t as a matter of law

. T he di strict court

did not abuse its d iscretion in allowin g the State to amend the Felony Information without

a conti nuance

.

B. Confrontation Clause

[¶35] Mr. La J eune s se now argue s the a mendment prevented hi m fro m ef fectively cr o ss

examin ing C.L. an d Ms. Tonke l on the amended time frame in violation of the

Confrontation Clause of t h e United States and Wyoming Constitutions

. His objections a t
tri al were not sufficient to raise C onf rontati on C lause concerns to the tri a l court. See

Villarreal v. State , 2017 WY 8 1, ¶ 10, 398 P.3d 512, 516 (Wyo. 2017) (obj ection

insufficien t to raise C o nfrontation C l au se); Anderson v. State , 2014 WY 13, ¶ 20, 317

P.3 d 1108, 1115 (Wyo. 2014) ( C onfrontat ion C la use was not rais ed by “indist i nct” objectio n).

STANDARD OF R EVIEW

[¶36] “ Whe n claims for violation of the Confr ontat ion Clause are not ra ised below, o ur

‘ only avenue for review is under th e doctrine of plain error. ’ ” Villarreal

, ¶ 10, 398 P.3d

at 516 ( quoti ng McClure v. State

, 2010 WY 1 12, ¶ 7, 236 P.3d 1019, 1021 (Wyo . 2010) ) ;

s ee also Anderson

, ¶ 20, 317 P.3 d at 1115 (“[E]ven though the appe llant cl a ims

c onstitutional error, without an appropriate objection, we wi ll review his clai m under a plain error sta ndard.”).

To establish plai n error, the appel la nt must prove (1) the

rec or d cle arly reflects the alleged error; (2) the exist ence of a clear and u nequivocal ru le of law; (3 ) a clear and obvious transgression of that rule of law; and (4) the error a dvers ely

a ffecte d a substantial rig ht resulting in ma te rial prejudice to
him.

A nd erson , ¶ 20, 317 P.3d at 1115

– 16 (citing Zumberg e v. Stat e , 2010 WY 1 11

, ¶ 4, 236 P.3d 1028, 1030 (Wyo. 2010) )

.15 DIS CUSSION

[¶37] T he rec ord r e flects the alleged error

— the amendm ent of the Felony I nformation

. T he Confrontation Clause is a clear and unequivoc al rule of law. The first two requirements for plain error a re met

. How e ver, t he rec ord is also clear that no transgression of the Confro ntation Clause occurred and

, as a re sult

, we do not rea ch the

fourth ste p in the anal ysis

.

In order for there to be a v iolation of the right of

confrontati on, a defendant must show more t h an j ust a denial of the ability to ask specific questions of a p articular witness. Rather, a defendan t must show that he was prohibited “ from engaging in othe r wise appropri ate cross

- e x am ination designed to show a prototypic al form of bias on t he part of

t he w itness

. . . ‘to expose to the jury the facts from which jur ors

. . . could appropriately draw inf erence s rel ating to the

reli ability of the witnes s.’ ” Ha nnon [ v. State

, 2004 WY 8

, ] ¶ 18, 84 P.3 d [320, ] 330 [ ( Wyo. 2004)] (quoting Delaware v. Van Arsd a l l

, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436, 89

L. Ed. 2d 674 ( 1986)). The Confrontation Clause guar antees a
de fendant a n “ opportunity f or effective cro ss

- ex amination,

not cross

- exa m i na tion that is effectiv e in whatever way, and

to whatever e xtent, the d efen dant might w ish.” Van Arsdall

, 475 U.S. at 679, 106 S. Ct. a t 1435 (quoting Delaware v.

Fensterer

, 474 U.S . 1 5, 20, 10 6 S. Ct. 292, 2 9 4 , 88 L. Ed. 2d 15 (1 985) ( per curiam ) ).

Do w n in g v. State , 201 1 WY 113, ¶ 11, 259 P.3d 365, 36 8

– 69 (Wyo. 2011) (q uo t ing

Miller v. State

, 2006 WY 17, ¶ 8, 127 P.3d 793, 796 (Wyo. 20 06 ) )

.

[¶38] C.L. and Ms. Tonkel were unde r subpo ena requiring them to testif y at trial. See

W .R .Cr .P. Rule 17. 9 Neith er we re released from thei r respective subpoena s after the

9 Rul e 17 p rovides in per t inent part: (a) For a tt endance o f w itnesses; f orm; i ss uance.

— Upon th e filing of a precipe there fore, a subpoena shall be issued by the clerk under the sea l

of the court. It s hall state th e name of the court and the tit le, if any, of the p roceed ing, and shall command each person to whom it is directed to

atten d and give te stimony at the time and pla ce sp ec ified the rein.

. . .

. . . (g) Contempt.

— Failure by any person w ithout adequat e excuse to o bey

a s ubpoen a serve d upon that p erson may be deemed a co ntempt of the

court from which the subpoena issued.

W.R.Cr. P. Rule 17 (a)

, (g )

.16 State prese nted i ts c ase. Both remained available to testify had Mr. La J e u nesse called

them. He did not do so

. He was not denied an opp ortunity to conf ront t h ese witnesses

, and t he am en dment to the Felony Infor mation , without a continuanc e , h ad no effect on his defense. See Burton v. Sta te , 2002 WY 71, ¶ 46, 46 P.3d 309, 321 (Wyo. 2002) (“ The

defense wa s not hindered in its ability to im p each t he State ’ s witn esses, and Bu r ton has

no t shown that he was substant ially p rejudiced by the a men dment

. ”); Lindstr om v. State

, 2015 WY 28, ¶ 29, 343 P.3d 792, 799 (Wyo. 2015 ) (amendment of information had no

effect o n theory of defense). 10 Mr

. La J e une s se fai ls to esta blish a violation o f the

Conf ro ntatio n Clause

.

CONCLUS ION

[¶39] Th e district court did not a buse its dis cretion in a dmitting evidence of ot her acts

under W.R. E . Ru le 404(b) or in allowing C.L.’s prior consi stent statements under W.R.E.

Ru le 801(d ) (1)(B)

. T he am endmen t to the Felony Info rmat ion

, with out a continuance

, did n ot de ny Mr. La J eunesse h is rig h t to effect ively cro ss

- examine the witnesses or prejudice his defense. Aff irmed.

10 We are co ncerned, howe ver, th at the St ate did not seek the amendment to the Information until aft er i t had present ed its case. It is true W.R. C r.P. Rule 3(e) does not pla c e a duty on the State to amend an

informat ion at the earliest opportuni ty, but we have admo ni shed the State before that waiting to seek an

amendment “ does not co mport with the pri nciples of fai rn ess essential to our judici al syst em and can only

be attribu t ed to careless ness.” M eek v. State , 2002 WY 1, ¶ 17 , 37 P.3d 1279, 1285 (Wyo. 2002) ; see a ls o Beaugur eau v. State , 2002 WY 160, ¶ 9, 56 P.3d 626, 630 (Wyo. 2002 ) . N onetheless, i n the absence of prejudice, w e do no t find error i n the amendment of the I nf o rmation.