Summary
On rehearing, the Supreme Court of Wyoming considered whether an unavailable witness's statement was admissible under Wyoming Rule of Evidence 803(1) as a present sense impression. The court held that the defendant had not preserved or adequately argued the issue and, independently, that the statement did not qualify because the declarant did not perceive the event and made the statement at least thirty-five minutes later. The court affirmed the judgment and sentence.
Topics
Practice areas
Questions Presented
- Whether Studie's statement to AW was admissible under W.R.E. 803(1) as a present sense impression.
- Whether Moe preserved the present-sense-impression argument for appellate review.
- Whether the trial court abused its discretion or committed plain error by excluding the statement.
Holdings
- Moe failed to preserve the present-sense-impression exception because he argued only that the hearsay was admissible due to the declarant's unavailability, thereby invoking W.R.E. 804 rather than W.R.E. 803(1).
- Moe's appellate challenge failed independently because he did not analyze the issue under the plain-error standard and did not present cogent argument or pertinent authority applying W.R.E. 803(1) to the facts.
- Studie's statement was not admissible as a present sense impression under W.R.E. 803(1).
Key quotations
“We hold that it was not.” (at 149)
“It is settled law that a proponent of evidence has the burden to apprise the trial court that a rule of evidence permits the admission of that evidence.” (at 151)
“Parsing this rule, we first identify the several elements which the proponent of a statement must prove: 1) the declarant perceived an event or condition; 2) the declarant utters a statement which describes or explains the event or condition perceived; 3) the declarant utters that descriptive or explanatory statement while perceiving the event or condition or immediately after perceiving the event or condition.” (at 151-152)
“The phrase should not be used to admit statements that do not fit within the rationale of the exception.” (at 153)
Factual background
Moe was convicted based on an alleged nonconsensual sexual encounter with AB in Moe's bedroom. Dakota Studie, Moe's roommate, remained in the living room while Moe and AB were in the bedroom and therefore did not observe the encounter. After AB and her companions made several stops and returned to confront Moe and Studie, Studie told AW that he did not see anything wrong; the statement was made at least thirty-five minutes after the encounter.
Procedural history
A jury convicted Moe of taking immodest, immoral, or indecent liberties with a sixteen-year-old girl, and the trial court sentenced him to two to five years in prison. The Wyoming Supreme Court previously affirmed the judgment and sentence in Moe v. State, 2005 WY 58, 110 P.3d 1206 (Wyo. 2005). On rehearing, the court granted review of the single evidentiary issue concerning Dakota Studie's excluded hearsay statement and again affirmed.