Hunter Lee Hicks v. The State of Wyoming

                IN THE SUPREME COURT, STATE OF WYOMING

                                       2021 WY 2___

                                                       OCTOBER TERM, A.D. 2020

                                                                   January 6, 2021

 HUNTER LEE HICKS,

 Appellant
 (Defendant),

 v.                                                   S-20-0058

 THE STATE OF WYOMING,

 Appellee
 (Plaintiff).

                    Appeal from the District Court of Campbell County
                        The Honorable Michael N. Deegan, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk
      A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate
      Counsel. Argument by Ms. Wilson.

Representing Appellee:
      Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
      General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M.
      Mercer, Assistant Attorney General. Argument by Ms. Mercer.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne,
Wyoming 82002, of typographical or other formal errors so correction may be made before final
publication in the permanent volume.
KAUTZ, Justice.

[¶1] A jury found Hunter Lee Hicks guilty of third-degree sexual abuse of a minor, TM.
He claims the district court erred by admitting into evidence TM’s prior consistent
statements and allowing the jury to view, during deliberations, a muted clip of a video of
him and a police officer walking through the bedroom where the abuse occurred. We
affirm.

                                         ISSUES

[¶2]   We restate Mr. Hicks’ issues on appeal as:

       I.     Did the district court plainly err when it admitted into evidence TM’s
              out-of-court statements?

       II.    Did the district court abuse its discretion when it allowed the jury to
              review a clip of a muted video during deliberations?

       III.   Was Mr. Hicks denied a fair trial due to cumulative error?

                                         FACTS

[¶3] On May 12, 2018, fourteen-year-old TM spent the night with her friend, WG. WG
lived with her mother, Stephanie Hicks, and her thirty-three-year-old stepfather, Mr. Hicks,
in Gillette, Wyoming. The girls slept in the same bed in WG’s downstairs bedroom; a light
was on in an adjacent bathroom. At approximately 4:00 or 5:00 a.m. on May 13, 2018,
TM woke from a nightmare and saw a figure reflected in the television. At first, she
thought it was WG. She realized it was Mr. Hicks when he began rubbing her feet. As
TM pretended to sleep, Mr. Hicks moved his hands slowly up her leg until he squeezed her
bare buttocks underneath her shorts and underwear. Mr. Hicks stopped touching TM’s
buttocks when WG stirred. He then moved to TM’s head and began rubbing her temples.
She pretended to wake up and told him to stop. He asked her what she wanted for breakfast,
and she responded, “nothing, because [she] wasn’t hungry.” Mr. Hicks started tickling
TM’s feet and asked if she liked it. She said, “No.”

[¶4] WG woke up and saw Mr. Hicks leaving the room. She got out of bed to turn the
bathroom light off. TM started crying and told WG to leave the light on because Mr. Hicks
had just touched her and she was scared. TM contacted her mother, Lori Mallak, to tell
her what had happened. Ms. Mallak called TM’s father, Troy Mallak, and relayed what
TM had told her; she then drove to the Hicks’ house. Mr. Mallak left work and arrived at
the Hicks’ house a short time later. While en route, he called 911 to report TM had been
molested.


                                             1
[¶5] Gillette Police Department Officers Troy Cyr and Alan Stuber responded to the call
and spoke with the people gathered at the Hicks’ house. The interviews were recorded by
the officers’ body cameras. Mr. Hicks denied touching TM inappropriately. He told
Officer Stuber he had gone to WG’s room to ask the girls what they wanted for breakfast
and noticed TM was about to fall off the bed, so he pushed her back on. Officer Stuber
and Mr. Hicks went downstairs to WG’s room, and Mr. Hicks showed him around while
explaining what had happened earlier that morning.

[¶6] Ms. Mallak and WG told the police what TM said about the abuse. The Mallaks
transported TM to the police department, where she was interviewed by Sergeant Eric
Dearcorn. That interview was also recorded.

[¶7] The State charged Mr. Hicks with third-degree sexual abuse of a minor under Wyo.
Stat. Ann. § 6-2-316(a)(iv) (LexisNexis 2019) for taking immodest, immoral or indecent
liberties with TM. The case proceeded to a jury trial. The jury found Mr. Hicks guilty,
and the district court sentenced him to serve 30 to 60 months in prison. This appeal
followed.

[¶8] We will provide more details about the facts and course of proceedings as needed
in our discussion of the issues.

                                             DISCUSSION

    1. Hearsay/Prior Consistent Statements

[¶9] TM testified as the State’s first witness at trial and described her encounter with Mr.
Hicks. She also testified she told WG and Ms. Mallak about the abuse shortly after it
happened and was interviewed by Sergeant Dearcorn. In open court during cross-
examination of TM, Mr. Hicks used part of the recorded video of her interview with
Sergeant Dearcorn to refresh her recollection.1 TM’s entire recorded interview was later
admitted into evidence without objection during Sergeant Dearcorn’s direct examination.
Ms. Mallak testified concerning TM’s statements about Mr. Hicks touching TM’s “butt,”
feet and head. Mr. Hicks objected to Ms. Mallak’s recount of TM’s statements, but the
district court allowed the testimony as a prior consistent statement under Wyoming Rule
of Evidence (W.R.E.) 801(d)(1)(B). WG testified about what she observed that morning
and what TM told her. The State showed WG part of a video of her interview with police
when she could not remember everything TM said. Mr. Hicks did not object to WG’s
testimony or the video of her interview. On appeal, Mr. Hicks challenges the admission of

1
 The technique of refreshing the witnesses’ recollections with videos played in the presence of the jury was
used by both parties throughout the trial. The district court noted the approach was unusual because the
jury is typically excused while a witness is shown a video to refresh his or her recollection, but it allowed
the practice to continue in this case because no one objected.
                                                     2
TM’s recorded interview under W.R.E. 801(d)(1)(B). He also asserts the repetition of
TM’s claim of abuse by the State’s witnesses impermissibly bolstered her testimony.

[¶10] Mr. Hicks did not object at trial to the admission of TM’s recorded interview, so we
review his claim for plain error. Griggs v. State, 2016 WY 16, ¶ 81, 367 P.3d 1108, 1132
(Wyo. 2016). Plain error is established when: (1) the record clearly reflects the claimed
error; (2) the party asserting the error demonstrates a clear and obvious violation of a clear
and unequivocal rule of law; and (3) the party proves the violation adversely affected his
substantial rights resulting in material prejudice. Brown v. State, 2019 WY 102, ¶ 13, 450
P.3d 208, 211 (Wyo. 2019); Hathaway v. State, 2017 WY 92, ¶ 29, 399 P.3d 625, 634
(Wyo. 2017); Griggs, ¶ 81, 367 P.3d at 1132-33.

[¶11] The admission of TM’s recorded interview is clearly reflected in the record,
satisfying the first element of the plain error test. Although he does not conduct a plain
error analysis in his brief, Mr. Hicks asserts the video was improperly admitted as a prior
consistent statement because it was recorded “after the motive to fabricate and/or the
improper influence arose.”

[¶12] W.R.E. 801(c) defines hearsay as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Under W.R.E. 802, hearsay statements generally are not admissible. However,
Rule 801(d)(1)(B) provides that, under certain circumstances, prior consistent statements
are not hearsay. The rule states:

              (d) Statements which are not hearsay. – A statement is not
              hearsay if:
                   (1) Prior Statement by Witness. – The declarant testifies
              at the trial or hearing and is subject to cross-examination
              concerning the statement, and the statement is . . . (B)
              consistent with his testimony and is offered to rebut an express
              or implied charge against him of recent fabrication or improper
              influence or motive[.]

Id.

[¶13] Four requirements must be satisfied for admission of a prior consistent statement
under W.R.E. 801(d)(1)(B): (1) the declarant must testify at trial; (2) the declarant must
be subject to cross-examination concerning the prior statement; (3) the prior statement must
be consistent with the declarant’s trial testimony; and (4) the prior statement must be
offered to rebut an express or implied charge against the declarant of recent fabrication or
improper influence or motive. Griggs, ¶ 98, 367 P.3d at 1136; Large v. State, 2008 WY
22, ¶ 37, 177 P.3d 807, 818-19 (Wyo. 2008).


                                              3
[¶14] Mr. Hicks’ argument focuses on the fourth element of the Rule 801(d)(1)(B) test.
Applying that element, we consider “when the alleged fabrication, improper influence, or
motive arose.” Jones v. State, 2019 WY 45, ¶ 16, 439 P.3d 753, 758 (Wyo. 2019). We
agree with Mr. Hicks that TM’s motive to fabricate arose before she was interviewed by
Sergeant Dearcorn. The defense asserted in opening statement and during cross-
examination of TM that, when her family transported her to the police station to be
interviewed, they encouraged TM to fabricate or exaggerate Mr. Hicks’ actions.

[¶15] Applying Federal Rule of Evidence (F.R.E.) 801(d)(1)(B), the United States
Supreme Court has ruled prior consistent statements are not admissible to “rebut an express
or implied charge of recent fabrication or improper influence when made after the alleged
improper motive arose.” Jones, ¶ 16, 439 P.3d at 758 (citing Tome v. United States, 513
U.S. 150, 156, 115 S.Ct. 696, 700, 130 L.Ed.2d 574 (1995) (emphasis in original)). See
also, United States v. Brooks, 736 F.3d 921, 935 (10th Cir. 2013) (F.R.E. 801(d)(1)(B)
“allows prior consistent statements to be used to rebut a charge of recent fabrication as long
as the motive to lie does not predate the prior statement. This premotive rule applies even
when a prior consistent statement is being used . . . to rehabilitate a witness rather than
being offered for its truth.”) (citations omitted). This Court has, however, held W.R.E.
801(d)(1)(B) does not require prior consistent statements be made before the improper
motive arose to be admissible. Jones, ¶ 16, 439 P.3d at 758. See also, Griggs, ¶ 105, 367
P.3d at 1137 (“Our approach is intentionally different from the federal courts’ application
of F.R.E. 801(d)(1)(B) which limits admission of consistent statements to those that were
made prior to the alleged fabrication or improper influence or motive. Consequently,
Wyoming courts allow a broader use of prior consistent statements than the federal courts
do.”).

[¶16] In Wyoming,

              [a] prior consistent statement may be used as substantive
              evidence if the alleged improper influence arose after the
              statement was made. However, if the prior consistent
              statement was made after the improper influence arose, then
              the statement may only be used for rehabilitative purposes.
              When a prior consistent statement is admissible only for
              rehabilitative purposes, a limiting instruction must be given,
              but only if requested.

Griggs, ¶ 104, 367 P.3d at 1137 (quoting Frenzel v. State, 849 P.2d 741, 751 (Wyo. 1993))
(other citations omitted). Mr. Hicks did not request an instruction limiting the purpose of
the recorded interview to rehabilitating TM. When no request is made to limit the purpose
of a post-motive consistent statement, the district court does not err by failing to give such
an instruction. Proffit v. State, 2008 WY 103, ¶ 31, 191 P.3d 974, 983 (Wyo. 2008) (The
defendant did not request an instruction limiting the purpose of a post-motive consistent

                                              4
statement; therefore, the “district court was not legally obligated to give one, and no error
[could] be premised on its failure to do so.”); Dike v. State, 990 P.2d 1012, 1024 (Wyo.
1999) (the district court’s obligation to give a limiting instruction is predicated on a request
by the defendant).

[¶17] Given there is no clear and unequivocal rule in Wyoming which prohibited
admission of TM’s consistent statements, Mr. Hicks has not demonstrated plain error. See
also, Cook v. State, 7 P.3d 53, 58 (Wyo. 2000) (W.R.E. 801(d)(1)(B) does not prohibit
admission of post-motive consistent statements for the purpose of evaluating the credibility
of the declarant who testifies at trial. “Without a rule violation, [the appellant] cannot
satisfy the second prong of our test for plain error[.]”).

[¶18] Mr. Hicks also claims the State improperly used Ms. Mallak’s and WG’s testimony
and WG’s and TM’s video-taped interviews to bolster TM’s testimony by “piling on” prior
consistent statements. Mr. Hicks did not specifically object to the evidence as improperly
bolstering TM’s testimony; thus, our review is for plain error. See Buszkiewic v. State,
2018 WY 100, ¶ 33, 424 P.3d 1272, 1282 (Wyo. 2018) (“The objector should lay his finger
on the particular point intended to be raised so that the trial court will have notice and an
opportunity to cure the alleged error.”) (quoting Sanderson v. State, 2007 WY 127, ¶ 13,
165 P.3d 83, 88 (Wyo. 2007) (some quotation marks omitted)). See also, Farrow v. State,
2019 WY 30, ¶ 22, 437 P.3d 809, 817 (Wyo. 2019) (When the objection made at trial
differs from the argument on appeal, the plain error standard of review applies.).

[¶19] The testimony Mr. Hicks challenges is clearly shown in the record, establishing the
first element of the plain error test. We turn next to a search for a clear and obvious
violation of a clear and unequivocal rule of law. In Seward v. State, 2003 WY 116, ¶ 16,
76 P.3d 805, 811-12 (Wyo. 2003), we cautioned trial courts against allowing the State to
use Rule 801(d)(1)(B) to pile on consistent statements, bolstering the victim’s testimony.
The prosecution abuses the rule by having the victim repeat her accusations to others for
the purpose of using those statements at trial as prior consistent statements. Id. See also,
Tombroek v. State, 2009 WY 126, ¶ 14, 217 P.3d 806, 812 (Wyo. 2009) (recognizing that
Rule 801(d)(1)(B) is susceptible to abuse). “Such a trial strategy could render the
statements irrelevant and unfairly prejudicial, particularly if the consequence of repeating
the same testimony several times unduly emphasizes that testimony over all other
testimony in the case.” Seward, ¶ 16, 76 P.3d at 811-12. See also, Winters v. State, 2019
WY 76, ¶ 41, 446 P.3d 191, 206 (Wyo. 2019) (acknowledging the danger of the State
presenting “numerous witnesses to repeat the victim’s allegations, thereby piling on
consistent statements” (citations and quotation marks omitted)).

[¶20] In Wilde v. State, 2003 WY 93, ¶ 11, 74 P.3d 699, 706 (Wyo. 2003), the victim
testified first at trial. The victim’s mother, a law enforcement officer, the victim’s
pediatrician, an emergency room nurse, and a forensic examiner were also called as
witnesses. Id., ¶¶ 3, 11, 74 P.3d at 702, 706. They “repeated all, or at least parts of, the

                                               5
allegations made by [the victim].” Id., ¶ 11, 74 P.3d at 706. We concluded the district
court erred by allowing the State to pile on repetitive and highly prejudicial prior statements
to bolster the victim’s testimony. Id., ¶ 14, 74 P.3d at 707-08 (citing 4 Mueller &
Kirkpatrick, Federal Evidence § 405 (2d. ed. 1994, Supp. 2002)). See also, Jones, ¶ 22,
439 P.3d at 759-60.

[¶21] However, the sheer number of times the victim’s out-of-court statements are
allowed at trial is not dispositive as to whether the district court permitted the prosecution
to improperly bolster the victim’s testimony. In Tombroek, ¶¶ 4, 14-15, 217 P.3d at 808,
811-12, we held the district court did not abuse its discretion by allowing a doctor, the
victim’s mother, the victim’s sister, and the investigating police officer to repeat the
victim’s statement that the appellant had sexually assaulted her. Distinguishing Seward
and Wilde, we emphasized the State’s purpose in gathering the evidence is an important
consideration in determining whether admission of testimony repeating the victim’s
statement was proper. Id., ¶¶ 14-15, 217 P.3d at 811-12.

              Our concern in Seward was not so much the repetitious nature
              of the testimony, as it was the State using W.R.E. 801(d)(1)(B)
              as a tool for impermissible trial tactics by having a victim
              repeat accusations to authority figures for the direct purpose of
              using those statements later at trial as prior consistent
              statements. . . . We did . . . acknowledge that W.R.E.
              801(d)(1)(B) is susceptible to abuse and we take this
              opportunity to repeat that concern. In fact, we even cautioned
              district courts regarding admitting this type of testimony
              without first considering why the interviews occurred and the
              probative value of admitting such evidence. However, the
              concerns that we discussed in Seward do not exist here. The
              victim made her statements to the witnesses in a manner that
              would be expected from a victim in the early stages of a typical
              sexual assault investigation, rather than in a manner resembling
              trial preparation tactics, as was our concern in Seward.
              Accordingly, the prior consistent statements were properly
              admitted. . . .
                     A reading of th[e] entire opinion [in Wilde v. State, ¶¶
              11–14, 74 P.3d at 706–08] reveals . . . that the focus of our
              concern was, as in Seward, the vouching nature of the
              questioned testimony, and its resultant prejudice.

Id. (citations omitted). See also, Winters, ¶ 42, 446 P.3d at 206-07 (the district court’s
admission of the victim’s out-of-court statements to a forensic interviewer and a police
officer was proper because the statements were made in a manner expected in the early

                                              6
stages of a sexual abuse investigation); Schreibvogel v. State, 2010 WY 45, ¶¶ 27-30, 228
P.3d 874, 884-85 (Wyo. 2010) (appellant did not establish the district court committed
plain error by allowing three witnesses to recount statements made by the victim).

[¶22] There is no indication in this case the State elicited TM’s out-of-court statements as
part of its trial strategy. Like in Tombroek and Winters, TM made her statements to the
witnesses in a manner that would be expected from a victim initially reporting an incident
of sexual abuse, rather than as an impermissible trial preparation tactic. She told her mother
and WG what happened immediately after it occurred.2 Sergeant Dearcorn interviewed
TM shortly after the incident as part of a typical sexual abuse investigation. See Jones, ¶
22, 439 P.3d at 760 (the victims made statements to the forensic interviewers “‘shortly after
the initial report in a manner that would be expected in the early stages of a typical
investigation’” (quoting Griggs, ¶ 112, 367 P.3d at 1139)). Consequently, the district court
did not violate a clear and unequivocal rule of law in a clear and obvious way by allowing
Ms. Mallak and WG to testify about what TM related to them immediately after the incident
or by allowing the jury to view the videos of TM’s and WG’s interviews with police.

    2. Muted Video of Walk-Through of WG’s Bedroom

[¶23] The video of Mr. Hicks’ May 13, 2018, interview was admitted at trial, without
objection, during the State’s direct examination of Officer Stuber. The video included a
walk-through of WG’s bedroom with Mr. Hicks explaining his version of the events earlier
that morning. When the video was played at trial, it included the audio.

[¶24] During deliberations, the jury asked to re-watch the video of Mr. Hicks’ interview.
The district court directed the jury to describe the specific part of the video it wanted to see
and the purpose of its request. The jury stated: “In regards to the Hunter Hicks interview
State Exhibit 1, we would like to see the walk-through of the basement re-creating the
incident with Officer Stuber walking in and through the bedroom of [WG] to see the
lighting and layout of the bedroom.”

[¶25] The district court acknowledged the video was testimonial evidence; however, the
jury had narrowed its request to viewing the lighting and layout of the bedroom. The court
decided the jury could review the relevant part of the video with the sound turned off, so
“it’s not really even a testimonial exhibit anymore, it’s like having a photograph in the jury
room.” Mr. Hicks objected because the lighting was different in the video than at the time
of the incident. He also claimed the State did not lay a foundation for using the video to

2
 The circumstances of TM’s revelations to Ms. Mallak and WG also raise the possibility that their testimony
was admissible under certain exceptions to the hearsay rule, including: a present sense impression under
W.R.E. 803(1) (“A statement describing or explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.”); or an excited utterance under W.R.E. 803(2)
(“A statement relating to a startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition.”).
                                                     7
show the lighting in the room. The State pointed out it was daylight at the time the video
was recorded, so there was light coming in through the window. The district court stated
the jury “necessarily understands that the lighting is not exactly as it was at the time of the
incident; for one, it was filmed during daylight hours, and I think there’s some daylight
going through [the window].” The court further explained, “it would be incumbent upon
counsel to have pointed out [the difference in the lighting conditions] to the jury when the
trial was being conducted[.]”

[¶26] We addressed what materials the jury should be allowed to view during
deliberations in Chambers v. State, 726 P.2d 1269, 1275-77 (Wyo. 1986), receded from on
other grounds by Lancaster v. State, 2002 WY 45, ¶ 16, 43 P.3d 80, 88 (Wyo. 2002),
overruled on other grounds by Jones, ¶ 25, 439 P.3d at 762. When trial exhibits are non-
testimonial, the district court has broad discretion in deciding whether to submit them to
the jury during deliberations. Chambers, 726 P.2d at 1275; Munoz v. State, 849 P.2d 1299,
1301 (Wyo. 1993). Absent an abuse of discretion, we will not disturb the district court’s
decision. Munoz, 849 P.2d at 1301.

[¶27] Testimonial materials, on the other hand, may not be sent to the jury for
unsupervised review. Id. “The rule was designed to prevent juries from ‘unduly
emphasizing [the submitted testimony] over all of the other testimony in the case.’” Id.
(quoting Schmunk v. State, 714 P.2d 724, 733 (Wyo. 1986)). See also, Taylor v. State, 727
P.2d 274, 276 (Wyo. 1986) (applying the principles set out in Chambers); Warner v. State,
897 P.2d 472, 475 (Wyo. 1995) (“The general rule is that testimonial video or audio tape
recordings should be permitted in the jury room only in rare circumstances because they
may function as a ‘speaking witness’ whose testimony may be unduly emphasized. Even
when permitted, a trial court may allow the playing of only relevant portions of the tape
under controlled procedures.”) (citing Munoz, 849 P.2d at 1301).

[¶28] Wyo. Stat. Ann. § 1-11-209 (LexisNexis 2019) permits the district court to refresh
the jury’s recollection of trial testimony under certain circumstances.

                      After the jurors have retired for deliberation, if there is
              a disagreement between them as to any part of the testimony,
              or if they desire to be informed as to any part of the law arising
              in the case, they may request the officer to conduct them to the
              court where information upon the matter of law shall be given.
              The court may give its recollection as to the testimony on the
              points in dispute, in the presence of or after notice to the parties
              or their counsel.

[¶29] With regard to a testimonial videotape, § 1-11-209 requires the court to ascertain
exactly why the jury wants to view the videotape, decide whether the tape will give the
jury key facts without unduly emphasizing a witness’s testimony, and only show the

                                               8
relevant portions under carefully controlled procedures. Chambers, 726 P.2d at 1276-77;
Taylor, 727 P.2d at 276.

[¶30] The videotape of Mr. Hicks’ interview, as originally shown to the jury at trial, was
clearly testimonial. The district court followed the procedure outlined in Chambers and its
progeny when it directed the jury to provide more information about the specific parts of
the video it wanted to review and the purpose for which it wanted to see those parts. After
reviewing the jury’s clarification, the district court decided to “remove” the testimonial
aspect of the video because the information the jury sought was not Mr. Hicks’ testimony,
but the lighting and layout of the room. Mr. Hicks claims the district court abused its
discretion by allowing the jury to view the muted video for the same reasons he objected
below – the video did not accurately depict the lighting conditions at the time of the abuse
and the State did not lay foundation for admission of the video for the purpose of showing
the amount of light in the room.

[¶31] “When evidence which is admissible as to one (1) party or for one (1) purpose but
not admissible as to another party or for another purpose is admitted, the court, upon
request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”
W.R.E. 105. Even if a limiting instruction is warranted, the district court is not obligated
to give one, if it is not requested. Chapman v. State, 2001 WY 25, ¶ 22, 18 P.3d 1164,
1174 (Wyo. 2001) (“‘If . . . the defendant does not present an appropriate request, the trial
court is not required to give the limiting instruction.’” (quoting Rigler v. State, 941 P.2d
734, 738 (Wyo. 1997)). Evidence admitted without a limiting instruction “‘may be
considered for any legal purpose for which it is admissible, although the evidence, when
introduced, was intended for a particular purpose.’” Grabill v. State, 621 P.2d 802, 811
(Wyo. 1980) (quoting Westland Nursing Home, Inc. v. Benson, 517 P.2d 862, 866 (Colo.
Ct. App. 1974)). See also, Tombroek, ¶ 13, 217 P.3d at 811 (“Because there was no request
for a limiting instruction, we must assume that the jury used the evidence for whatever
purpose it chose[.]”); Connolly v. State, 610 P.2d 1008, 1011 (Wyo. 1980) (“To charge the
trial court with the duty of protecting defendant’s right to receive a limiting instruction,
thereby relieving the attorney of that obligation, would be an exercise in role-switching
which we are not ready to condone, and which would, in any case, be contrary to the
procedural responsibilities contemplated by [W.R.E.] 105[.]”).

[¶32] Mr. Hicks did not object when the video of Mr. Hicks’ interview with Officer Stuber
was admitted into evidence, and he did not request a limiting instruction informing the jury
it should not be considered for the purpose of discerning the lighting in the bedroom.
Consequently, the district court admitted the entire video, including the walk-through of
WG’s bedroom, without restriction. Given that ruling, the jury could consider the evidence
for any purpose it wanted.

[¶33] Mr. Hicks also claims that, by removing the sound, the district court impermissibly
altered the video, making it into an entirely new exhibit which was not admitted into

                                             9
evidence. He cites no authority regarding the alteration of exhibits. Instead, he likens his
case to Worcester v. State, 2001 WY 82, 30 P.3d 47 (Wyo. 2001). Mr. Worcester was
charged with reckless operation of a watercraft after he was involved in a collision. Id., ¶
4, 30 P.3d at 49. During his trial in justice of the peace court, “the witnesses used two
small personal watercraft models for demonstrative purposes in front of the jury.” Id., ¶¶
5-6, 30 P.3d at 49-50. The exhibits were not received into evidence at trial, but the court
permitted the models to go to the jury room during deliberations. Id., ¶ 6, 30 P.3d at 50.
On plain error review, we determined the court violated a clear and unequivocal rule of
law by allowing items not admitted into evidence at trial into the jury room. Id., ¶ 10, 30
P.3d at 51. However, Mr. Worcester was not materially prejudiced by the error. Id., ¶ 12,
30 P.3d at 51-52.

[¶34] Worcester is not comparable to the case at bar for two reasons. First, the district
court did not allow the jury unlimited access to State’s Exhibit 1; it permitted the jury to
view a specific portion of the video in a carefully controlled environment. More
importantly, unlike the models in Worcester, State’s Exhibit 1 was admitted into evidence.

[¶35] Under § 1-11-209, Taylor, 727 P.2d at 276, and Chambers, 726 P.2d at 1276-77,
the district court was required to ascertain exactly why the jury wanted to view the
videotape and only show the relevant portions under carefully controlled procedures. The
statute and our precedent, therefore, anticipate some modification of the original form of
the testimony. We do not suggest that any alteration of evidence is permissible; however,
Mr. Hicks has not demonstrated the district court abused its discretion in this case by
playing the clip of State’s Exhibit 1 without the sound. See Proffit, ¶ 5, 191 P.3d at 966
(“The burden is on the appellant to establish an abuse of discretion.”).

[¶36] Furthermore, Mr. Hicks was not prejudiced by the district court allowing the jury to
consider the lighting in the room. An error is prejudicial if there is a reasonable probability
the verdict would have been more favorable to the appellant had the error not occurred.
Swett, ¶ 12, 431 P.3d at 1140 (citing Bustos v. State, 2008 WY 37, ¶ 9, 180 P.3d 904, 907
(Wyo. 2008) and Burton v. State, 2002 WY 71, ¶ 12, 46 P.3d 309, 313 (Wyo. 2002)).

[¶37] Mr. Hicks claims the difference between the lighting conditions at the time of the
abuse and the walkthrough was important because the jury may have been trying to
determine if TM was telling the truth when she testified she saw a reflection in the
television and/or whether it was so dark Mr. Hicks could not see what part of TM’s body
he was touching. Initially, we are not convinced the jury necessarily sought to review the
lighting conditions in the room at the time of the incident (i.e. how light or dark it was in
the room at that point in time). The jury note referred to “lighting,” which could simply be
the location of the lights mentioned in testimony. A standard definition of lighting is “the
arrangement of lights” in a room or house. https://dictionary.cambridge.org/us/dictionary/
english/lighting.


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[¶38] Mr. Hicks’ claim that the lighting conditions could have been important to the jury
in determining if TM was telling the truth about seeing his reflection in the television is
dubious because the television was not visible in the video. Moreover, there was no dispute
as to Mr. Hicks’ identity. He admitted he was in the room and that he touched TM. He
only disputed the nature of the touch.

[¶39] Mr. Hicks’ own testimony dispels any question about whether he could see what
part of TM he was touching:

                    [Defense Counsel] . . . And so when you go into [WG’s]
              room, describe how you get there.

                     [Mr. Hicks] I walk down the stairs, of course. Turn on
              the light, walk down the stairs, I turn on the light in the living
              room. Walk – you come down the stairs and then you take a
              right and you go around and then go straight back, and her
              bedroom is on the right-hand side.

                      The door was open when I got down there. I walked in,
              I said, “Hey, girls.” I didn’t get any response.

                     Q.     And then what was the lighting like in the room?

                     A.     The bathroom light’s on and the living room
              light behind me is on. So I mean you can see pretty clearly in
              the room.

Mr. Hicks has not demonstrated there is a reasonable probability the verdict would have
been more favorable to him if the district court had refused the jury’s request to view the
video.

   3. Cumulative Error

[¶40] Mr. Hicks claims that even if any single error is insufficient to warrant reversal of
his conviction, the cumulative effect of the errors deprived him of a fair trial. “‘The
purpose of evaluating for cumulative error is to address whether the cumulative effect of
two or more individually harmless errors has the potential to prejudice the defendant to the
same extent as a single reversible error.’” Buszkiewic, ¶ 43, 424 P.3d at 1284 (quoting
Sweet v. State, 2010 WY 87, ¶ 40, 234 P.3d 1193, 1207 (Wyo. 2010) (other citation and
quotation marks omitted)). When performing a cumulative error analysis, “we consider
only matters that were determined to be errors, and not any matter assigned as error but
determined not to be erroneous.” Sweet, ¶ 40, 234 P.3d at 1207. See also, In re KMO, 2012


                                             11
WY 99, ¶ 37, 280 P.3d 1203, 1215 (Wyo. 2012). Given the district court did not err, there
is no basis for finding cumulative error.

                                    CONCLUSION

[¶41] The district court did not commit plain error by admitting evidence of TM’s out-of-
court statements about the abuse. It also did not abuse its discretion by allowing the jury
to review during deliberations the muted video of Mr. Hicks’ walkthrough of WG’s room.
In the absence of any error, the cumulative error doctrine does not apply.

[¶42] Affirmed.




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