BOOMGAARDEN, Justice.
Appeal from the District Court of Natrona County
The Honorable Catherine E. Wilking , Judge Representing Appellant:
Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James M. Causey, Senior Assistant Appellate Counsel. Argument by Mr. Causey. Representing Appellee:
Peter K. Michael, Attorney General, Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Katherine A. Adams, Assistant Attorney General. Argument by Ms. Adams. Before DAVIS , C.J., and BURKE *, FOX , KAUTZ , and BOOMGAARDEN , JJ. * Justice Burke retired from judicial office effective October 8 , 2018 , and , pursuant to Article 5 , § 5 of the Wyoming Constitution and Wyo . Stat. Ann. § 5-1-106(f) (LexisNexis 2017) , he was reassigned to act on this matter on October 9 , 2018. BOOMGAARDEN, Justice. [¶1] A jury found Appellant, Miguel Alberto "Michelle" Martinez (Ms. Martinez), guilty of sexual abuse of a minor in the first and second degree. Ms. Martinez seeks reversal of both convictions claiming there is insufficient evidence to sustain them. In addition, Ms. Martinez claims prejudice because the district court precluded her from presenting character evidence pertaining to the victim. We affirm.
Appellant is a transgender individual who identifies as a female.
ISSUES
[¶2] Ms. Martinez presents two issues, which we rephrase as follows:
I. Did the district court err when it denied Ms. Martinez's motion for judgment of acquittal on both counts?
II. Did the district court err when it denied the admission of character evidence of the alleged victim?
FACTS
[¶3] On March 23, 2017, CM's mother, Amber Freudenstein, invited several friends over to her Casper home, including Ms. Martinez, Jamie Brown, and Andrea Pead. While Ms. Freudenstein's ten-year-old daughter, CM, was at school, the group visited, listened to music, and everyone except Ms. Pead drank alcohol. During this time, Ms. Martinez consumed between one and three pints of rum, and was noticeably "buzzed" and "being goofy." [¶4] Around 6:30 p.m., Ms. Martinez went to the only bathroom in the residence, which was located upstairs. Ms. Freudenstein testified Ms. Martinez was upstairs for about 20 minutes. By this time, CM had returned home from school and her mother observed her sitting on the couch in the living room when Ms. Martinez went to use the bathroom. CM testified she went upstairs to get a book from her bedroom and use the bathroom, which was across the hall from her bedroom. CM explained she shut the bathroom door but did not lock it. Ms. Martinez entered the bathroom, without knocking, as CM stood to pull up her pants. Ms. Martinez went over to CM and rubbed CM's right breast with Ms. Martinez's hand and put Ms. Martinez's "dingdong" in CM's "private part" in "the front part" of CM's body. CM kicked Ms. Martinez twice and tried to scream, but Ms. Martinez put a hand over CM's mouth and told her to keep it a secret. Just before Ms. Martinez stopped the assault, CM heard someone stomping up the stairs, whom she thought was her little brother, though was insufficient because no DNA evidence linked Ms. Martinez to the victim, and the nurse who examined CM could not identify the cause of her injuries. The court denied the motion. The defense rested after Ms. Martinez declined to testify. The jury returned guilty verdicts on both charges. [¶15] Defense counsel moved for a new trial on November 2, 2017, claiming the district court erred when it denied admission of the proffered character evidence of the victim. The district court denied the motion for the same reasons it gave at trial. [¶16] On January 29, 2018, the district court sentenced Ms. Martinez to 30 to 45 years imprisonment for the first-degree charge, and 15 to 20 years of imprisonment for the second-degree charge. The court ordered the sentences to run concurrently and gave 307 days credit for presentence confinement. Ms. Martinez filed a notice of appeal two days later.
Ms. Brown testified she went to use the bathroom around 6:30 or 7:00 p.m. and, while doing so, Ms. Martinez walked in without knocking. Ms. Brown stated she left, went back downstairs, and Ms. Moore arrived shortly thereafter to pick up Ms. Martinez.
Surveillance footage shows Ms. Martinez entered the store at 7:30 p.m. She picked up some medication from the pharmacy, used the bathroom, and left approximately 20 minutes later.
DISCUSSION
I. Did the district court err when it denied Ms. Martinez's motion for judgment of acquittal on both counts? [¶17] Ms. Martinez asserts the district court erred when it denied her motion for judgment of acquittal, contending the State presented insufficient evidence to establish sexual intrusion and sexual contact. [¶18] We review a motion for judgment of acquittal in the same light as the district court and apply the same standard as that used when an appeal claims insufficient evidence to convict. Foltz v. State, 2017 WY 155, ¶ 10, 407 P.3d 398, 401 (Wyo. 2017) (citation omitted). Accordingly, we accept the State's evidence as true, including all logical and reasonable inferences which can be drawn from it. Id. (citation omitted). We do not consider the defendant's conflicting evidence and we do not reweigh the evidence or re-examine the witnesses' credibility. Id. (citation omitted). We simply determine whether the evidence - direct or circumstantial - could reasonably support the jury's verdict. Id. ¶ 10, 407 P.3d at 401-02 (citation omitted). Applying this standard, a motion for judgment of acquittal is granted only if "a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." Id. ¶ 10, 407 P.3d at 401 (citation omitted). We conclude the district court did not err when it denied Ms. Martinez's motion for judgment of acquittal.
A. Credibility of CM's Allegations/Lack of Corroborating Evidence [¶19] Ms. Martinez asserts CM's allegations lack credibility because her version of the events would require the jury to ignore her mother's testimony that CM was on the couch at roughly the same time as Ms. Martinez went upstairs to the bathroom, and ignore Ms. Brown's testimony that Ms. Martinez barged into the bathroom when Ms. Brown was there CM and Ms. Martinez. There is no evidence regarding when the fecal matter appeared on CM's body. The evidence also does not explain when the fecal matter appeared on Ms. Martinez's penis. The jury, therefore, could reasonably have concluded that the lack of fecal matter on or in CM's genitalia did not create a reasonable doubt as to Ms. Martinez's guilt.
B. Lack of Evidence of Sexual Arousal, Gratification, or Abuse [¶24] Ms. Martinez asserts the State failed to provide any evidence to support a finding that the sexual intrusion and sexual contact was done for sexual arousal, gratification, or abuse, which Ms. Martinez claims is a required element for both offenses under Wyo. Stat. Ann. § 6-2-301(a)(vi)-(vii) (LexisNexis 2017). [¶25] We first note that Ms. Martinez misreads the elements required for sexual intrusion under the facts of this case. "Sexual intrusion" is defined as:
(A) Any intrusion, however slight, by any object or any part of a person's body,
except the mouth,
tongue or penis, into the genital or anal opening of another person's body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse;
or
(B) Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.
Wyo. Stat. Ann. § 6-2-301(vii)(A)-(B) (emphasis added). CM accused Ms. Martinez of sticking Ms. Martinez's penis in CM's "front part," which renders subsection (vii)(A) inapplicable. Unlike subsection (vii)(A), subsection (vii)(B) does not require proof of specific intent that the "intrusion" was done for the "purposes of sexual arousal, gratification or abuse." Consequently, we reject Ms. Martinez's contention that the conviction for sexual intrusion must fail because the State did not present evidence of Ms. Martinez's specific intent.
[¶26] Ms. Martinez is correct, however, that specific intent is required to support a conviction for sexual contact. "Sexual contact" is defined as "touching,
with the intention of sexual arousal,
gratification or abuse, of the victim's intimate parts by the actor, or of
or
propensities.'");
Hunter v.
State, 307 P.3d 8, 16 (Alaska Ct. App. 2013) (explaining that a person's underlying character for truthfulness must be distinguished from an individual act of untruthfulness);
State v.
Eugenio, 219 Wis. 2d 391, 404,
579 N.W.2d 642 (Wis. Ct. App. 1998) (stating "[c]haracter is evinced by a pattern of behavior . . . over the course of time[,]" and, thus, "a single instance of falsehood cannot imply a character for untruthfulness just as demonstration of a single instance of truthfulness cannot imply the character trait of veracity."). [¶36] In sum, Ms. Freudenstein's proffered testimony related to a specific instance wherein she claimed CM made a false allegation of physical abuse. Ms. Freudenstein's testimony was based largely on hearsay and not on personal knowledge, was not in the form of opinion or reputation, and wholly failed to demonstrate a "generalized" character trait for untruthfulness, and, for all these reasons was not admissible under W.R.E. 403, 404, 405, 602, 608, and 802.
See Gruwell, ¶ 31, 254 P.3d at 233 (citation omitted). The district court did not abuse its discretion when it precluded Ms. Martinez's proffered character evidence pertaining to CM.
We also have repeatedly held that "sexual intercourse is accomplished in a legal sense if there is the slightest penetration of the genital organs of the female by the sexual organ of the male." Pryor v. State, 2009 WY 95, ¶ 9, 212 P.3d 635, 637 (Wyo. 2009) (citing LP v. Natrona Cty. Dep't of Public Assistance and Social Servs., 679 P.2d 976, 993-94 (Wyo. 1984); Rhodes v. State, 462 P.2d 722, 726 (Wyo. 1969); State v. Hines, 79 Wyo. 65, 74-75, 331 P.2d 605, 607-08 (1958)). Unlawful sexual intrusion does not require the vaginal cavity to be fully entered; rather, it is sufficient to sustain a conviction "if there is entry of the male organ into the labia or vulva." Id. (citing LP, 679 P.2d at 994; Rhodes, 462 P.2d at 726).
"Intimate parts" is defined as "the external genitalia, perineum, anus or pubes of any person or the breast of a female person[.]" Wyo. Stat. Ann. § 6-2-301(a)(ii) (emphasis added).
When a defendant desires to introduce evidence of a victim's prior sexual conduct, or reputation or opinion evidence as to her character, the rape shield statute requires the defendant to file a motion with the trial court no less than ten days prior to trial and make an offer of proof establishing the relevance and admissibility of the evidence by affidavit. Wyo. Stat. Ann. § 6-2-312; see also McGarvey v. State, 2014 WY 66, ¶ 17, 325 P.3d 450, 455 (Wyo. 2014). If warranted, the trial court must conduct a hearing to determine if the probative value of the evidence substantially outweighs the potential prejudice. Id.
Ms. Freudenstein referred to DFS as 'CPS' throughout her testimony. --------
CONCLUSION
[¶37] The record contains sufficient evidence to sustain Ms. Martinez's convictions for sexual abuse of a minor in the first and second degree. We also conclude the district court did not err when it ruled the defense's proffered character evidence was inadmissible. We therefore affirm the Judgment and Sentence.