David Edward Ingersoll v. The State of Wyoming , 2022 WY 74 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 74APRIL TERM, A.D. 2022
June 16, 2022
DAVID EDWARD INGERSOLL,
Appellant
(Defendant),
v. S-21-0226
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Appellant:
Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel;
Francis H. McVay, Senior Assistant Appellate Counsel. Argument by Mr. McVay.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Joshua C. Eames, Senior Assistant Attorney General; Donovan Burton,
Assistant Attorney General. Argument by Mr. Burton.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, and GRAY, JJ., and KRICKEN,
D.J.
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 any typographical or other formal errors so that correction may be made before
final publication in the permanent volume.
KRICKEN, District Judge.
[¶1] David Edward Ingersoll was convicted by a jury of sexual abuse of a minor in the
second degree. He argues plain error occurred at trial when several State witnesses
vouched for the credibility of other State witnesses and/or offered opinions of his guilt.
We affirm.
ISSUES
[¶2] Mr. Ingersoll raises two issues, which we restate as follows:
1. Did the district court commit plain error by allowing State witnesses
to vouch for the credibility of other State witnesses and/or to offer
opinions as to Mr. Ingersoll’s guilt?
2. Did the accumulated effect of the errors deprive him of a fair trial?
FACTS
[¶3] In April or May 2019, Mr. Ingersoll met SS, his cousin, at a family funeral. Mr.
Ingersoll was forty-eight years old; SS was fifteen. Mr. Ingersoll gave SS a ride from the
funeral service to the graveyard. After the funeral, Mr. Ingersoll and SS communicated
every day via various social media. Mr. Ingersoll told SS he loved her; “[he would] marry
her;” “[he would] have sex with [her] every night;” and “he [would] have kids with [her].”
SS posted a picture on social media showing her with Mr. Ingersoll and referring to him as
her “best friend.”
[¶4] Around July 4, 2019, SS was at Walmart with her parents and her older sister, VL,
when they encountered Mr. Ingersoll and engaged in friendly conversation. SS
subsequently left her family to go to the electronics and toy departments; Mr. Ingersoll
followed her. As SS walked by the family bathroom, Mr. Ingersoll pulled her into the
bathroom; kissed her; and penetrated her vagina with his penis, causing her to bleed. When
he was finished, Mr. Ingersoll told SS to hide behind the bathroom door and let him leave
first. After SS left the bathroom, VL called her on her cellphone and said the family was
waiting for her in the car. SS returned to the family’s car. Mr. Ingersoll texted SS and told
her not to reveal the bathroom incident to anyone. When SS told him she was bleeding,
Mr. Ingersoll advised her to report it was her menstrual period.
[¶5] Later that evening or the next day, SS told VL she “had sex” with Mr. Ingersoll in
the bathroom at Walmart and she was bleeding. VL told their mother, but their mother did
not believe VL. SS informed their mother about the bleeding but did not reveal the
bathroom incident. About a week later, on July 12, 2019, their mother took SS to the doctor
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for the bleeding. Because SS told the doctor she did not have sex, the doctor did not
perform a sexual assault examination.
[¶6] Three days later, on July 15, 2019, VL told her counselor, Jennifer Banks, that SS
said she had sex with Mr. Ingersoll in the Walmart bathroom. Ms. Banks, who was also
SS’s counselor, confronted SS; SS denied having sex with Mr. Ingersoll. Nevertheless,
Ms. Banks reported the allegations to the Department of Family Services (DFS), which
reported it to the Sheridan Police Department. A week later, Sergeant James Hill and a
DFS caseworker interviewed SS, who admitted she was friends with Mr. Ingersoll but
denied any sexual contact occurred at Walmart. Sergeant Hill suspended his investigation.
[¶7] In October 2019, SS gave her teacher a letter detailing the sexual encounter with
Mr. Ingersoll in the Walmart bathroom. The teacher informed SS’s parents and school
staff about the letter, and the staff reported it to Sergeant Hill. SS also wrote a letter to her
mother describing the encounter and apologizing for lying. Sergeant Hill and the DFS
caseworker interviewed SS a second time. This time, SS informed them Mr. Ingersoll had
sex with her in the Walmart bathroom. Mr. Ingersoll was charged and convicted by a jury
of second-degree sexual abuse of a minor in violation of Wyoming Statute § 6-2-315(a)(i)
(LexisNexis 2021). The district court sentenced him to 16-20 years in prison. This appeal
followed.
DISCUSSION
A. Vouching and Testimony of Guilt
[¶8] At trial, SS, VL, Ms. Banks, and Sergeant Hill testified for the State. Mr. Ingersoll
contends these witnesses impermissibly vouched for the credibility of other State witnesses
and/or offered opinions of his guilt.
[¶9] “Evidentiary rulings are . . . committed to the sound discretion of the district court
and are not subject to appellate second guessing absent an abuse of discretion.” Cazier v.
State, 2006 WY 153, ¶ 10, 148 P.3d 23, 28 (Wyo. 2006) (citing Lopez v. State, 2004 WY
103, ¶ 21, 98 P.3d 143, 149 (Wyo. 2004)). In this case, however, because no objection was
made to the subject testimony, our review is for plain error. Id. To satisfy the plain error
standard, Mr. Ingersoll “‘must show (1) the record is clear about the incident alleged as
error; (2) a violation of a clear and unequivocal rule of law; and (3) he was denied a
substantial right resulting in material prejudice.’” Mendoza v. State, 2021 WY 127, ¶ 12,
498 P.3d 82, 85 (Wyo. 2021) (quoting Ridinger v. State, 2021 WY 4, ¶ 33, 478 P.3d 1160,
1168 (Wyo. 2021)) (other citation omitted).
[¶10] The first prong of plain error review is satisfied because the alleged improper
testimony is clearly reflected in the record. Id., ¶ 13, 478 P.3d at 85. To satisfy the second
prong of plain error review, Mr. Ingersoll “‘must demonstrate the existence of a clear and
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unequivocal rule of law which the particular facts transgress in a clear and obvious, not
merely arguable, way.’” Ridinger, ¶ 34, 478 P.3d at 1168 (quoting Brown v. State, 2019
WY 102, ¶ 13, 450 P.3d 208, 211 (Wyo. 2019)). As we will explain, Mr. Ingersoll did not
meet his burden on the second prong with respect to any of the subject testimony.
Therefore, we need not address the third prong. Id., ¶ 43, 478 P.3d at 1170.
Testimony of SS
[¶11] At trial, SS told the jury about meeting Mr. Ingersoll at the funeral and their
subsequent communications over social media. She recounted him pulling her into the
Walmart bathroom and penetrating her vagina with his penis. She explained to the jury
that she initially denied the sexual abuse occurred to avoid getting him in trouble.
However, she eventually wrote letters to her teacher and her mother describing the abuse.
With respect to the letter to her mother, the following exchange occurred between SS and
the prosecutor:
Q What did you do after you wrote that letter [to
your mother]?
A [My mother] finally believed [VL]. And I told
her I need to tell [VL] – to say sorry to her because she went to
Yellowstone [Boys & Girls Ranch] because of me.
(Emphasis added). After writing the letters to her teacher and mother, SS testified she
disclosed the Walmart incident to Sergeant Hill.
[¶12] Mr. Ingersoll claims SS improperly vouched for VL’s credibility when she told the
jury that, after reading her letter, her mother “finally believed [VL].” “It is settled law that
‘[a] witness may not comment on the truthfulness or veracity of another witness.’”
Fairbourn v. State, 2020 WY 73, ¶ 85, 465 P.3d 413, 432 (Wyo. 2020) (quoting McGinn
v. State, 2015 WY 140, ¶ 14, 361 P.3d 295, 299 (Wyo. 2015)) (other citations omitted).
The purpose of this rule is to preserve the integrity of the jury
process by protecting the jury’s right to act as the final
determiner of the credibility of the witnesses. We have stated,
however, that a trial court does not necessarily commit plain
error when it allows testimony which illuminates some aspect
of the case even though the testimony incidentally bolsters the
credibility of another witness.
Strickland v. State, 2004 WY 91, ¶ 22, 94 P.3d 1034, 1045-46 (Wyo. 2004) (quoting
Blumhagen v. State, 11 P.3d 889, 894 (Wyo. 2000)) (internal citations omitted).
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[¶13] SS did not improperly comment on VL’s credibility or encroach on the jury’s duty
to determine VL’s credibility. SS did not testify VL was truthful or that her mother
believed VL because VL was a truthful person. SS simply described the effect of her letter
on her mother. Placed in context with the remainder of SS’s testimony, this testimony
“illuminate[d]” the course of events, from SS’s initial disclosure to VL; her subsequent
denials to her mother and Ms. Banks; and finally her disclosure of the sexual encounter to
her teacher, her mother, and Sergeant Hill. Any effect SS’s testimony may have had on
VL’s credibility “was purely incidental and . . . not plain error.” Garriott v. State, 2018
WY 4, ¶ 43, 408 P.3d 771, 786 (Wyo. 2018). See also, Byerly v. State, 2019 WY 130, ¶
27, 455 P.3d 232, 243 (Wyo. 2019) (dentist’s testimony that victim is “a pretty tough girl.
She’s not a whiner or somebody that whines every time you touch her. So I think if she
says she’s in pain, I probably would agree that she is” spoke to the victim’s “pain threshold,
not to her veracity, and though it may have incidentally bolstered the credibility of victim’s
claims of pain, it was not vouching testimony”).
Testimony of VL
[¶14] VL testified that after the family returned home from Walmart, SS was “nervous
and shaky and scared and her eyes were watering.” When VL asked what was wrong, SS
said she was bleeding. VL responded, “Oh, it must be your period.” The next day, SS told
VL, “I only bled for a day, sis.” VL told the jury:
And, I was like, “How is that possible?” The only way that
would have happened if you only bled for a day is one thing
you’re spotting, or, two, you had intercourse and you stretched
yourself to where you bled. And those are the only
explanations, but yet she never spotted in her life when it came
to her period. So the only explanation was that she had
intercourse.
(Emphasis added). Subsequently, the prosecutor asked VL whether SS told her what
happened. VL responded, “That’s when [SS] confessed to me that [she] and [Mr. Ingersoll]
went into the family’s bathroom in the back and had intercourse.” Although she promised
not to tell anyone what SS had disclosed, VL told her mother and Ms. Banks. VL further
testified:
And I told [Ms. Banks] what was going on and what [SS] had
told me. And when I got out [of my counseling session], it was
[SS]’s turn to see [Ms. Banks]. And then [Ms. Banks] came
out with [SS] and pulled me over and said, “[SS] denied it.”
And that’s when the first initial investigation happened,
because I told [Ms. Banks] what [SS] had told me, but then
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again [SS] denied it. [SS] was saying it never happened and
that I was the one that was lying.
Q Were you lying?
A I was not.
Q That was what [SS] had told you?
A Yes.
(Emphasis added).
[¶15] Mr. Ingersoll argues VL’s testimony that “the only explanation was that she had
intercourse” constituted an improper opinion of his guilt. “The law is clear that it is the
jury’s role to determine the guilt of the accused and a witness may not express an opinion
as to his guilt.” Fennell v. State, 2015 WY 67, ¶ 24, 350 P.3d 710, 719 (Wyo. 2015) (citing
Carter v. State, 2012 WY 109, ¶ 11, 282 P.3d 167, 170 (Wyo. 2012)) (other citations
omitted). However, “[t]estimony that is otherwise admissible will not be excluded unless
it constitutes an actual conclusion about the guilt or innocence of the accused party . . . .
‘An interpretation of the evidence by a witness, even though that interpretation may be
important in establishing an element of the crime and thus leading to the inference of guilt,
is not in the same category as an actual conclusional statement on the guilt or innocence of
the accused party.’” Ogden v. State, 2001 WY 109, ¶ 23, 34 P.3d 271, 277 (Wyo. 2001)
(emphasis added) (quoting Saldana v. State, 846 P.2d 604, 616 (Wyo. 1993)). See also,
Nielsen v. State, 2018 WY 132, ¶ 26, 430 P.3d 740, 749 (Wyo. 2018) (“[T]estimony need
not be excluded unless it contains an actual conclusion about the guilt or innocence of the
accused party, . . . and a witness may interpret evidence even though that interpretation
may be important in establishing an element of the crime and thus leading to the inference
of guilt.”) (emphasis added) (citation and internal quotations omitted).
[¶16] VL did not improperly opine on Mr. Ingersoll’s guilt. Rather, when VL’s testimony
is read in context, it is clear she was simply explaining her thought process in response to
SS telling her she had only bled for one day. She determined SS was either spotting or had
intercourse. Based on her personal knowledge of SS’s menstrual cycle, VL concluded SS
had sexual intercourse. VL did not, however, offer an opinion as to with whom SS had
sex, let alone indicate it was with Mr. Ingersoll. While her conclusion arguably may have
led to an inference that SS had intercourse with Mr. Ingersoll, VL was simply interpreting
the evidence based on her personal knowledge and observations and did not offer an “actual
conclusion” concerning Mr. Ingersoll’s guilt.
[¶17] Mr. Ingersoll complains VL improperly vouched for her own credibility by telling
the jury she was not lying when she disclosed to Ms. Banks that SS told her she had sex
with Mr. Ingersoll. He does not provide any authority establishing there is a clear and
unequivocal law prohibiting witnesses from vouching for their own credibility. Cf. State
v. Maxon, 465 P.3d 304, 305 (Or. App. 2020) (“The vouching rule is not implicated,
however, when a witness asserts his or her own truthfulness: ‘[A] witness does not
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impermissibly “vouch for” or “bolster” his or her own testimony by proclaiming
truthfulness.’” (quoting State v. Sanchez-Jacobo, 282 P.3d 880 (Or. App. 2012), rev. den.,
298 P.3d 30 (Or. 2013))). As a result, Mr. Ingersoll has failed to establish the district court
committed plain error by allowing the prosecutor to question VL about her own veracity.
[¶18] Mr. Ingersoll also maintains the prosecutor asking VL if she was lying constituted
an impermissible “were-they-lying” question. It is improper for a prosecutor to ask a
defendant during cross-examination whether other witnesses were lying (“were they lying”
questions) because such questions: (1) “invade the province of the jury, as determinations
of credibility are for the jury;” (2) “are argumentative and have no probative value;” (3)
“create a risk that the jury may conclude that, in order to acquit the defendant, it must find
that a contradictory witness has lied;” (4) “are inherently unfair, as it is possible that neither
the defendant nor the contradictory witness has deliberately misrepresented the truth;” and
(5) “create a ‘no-win’ situation for the defendant: if the defendant states that a contradictory
witness is not lying, the inference is that the defendant is lying, whereas if the defendant
states that the witness is lying, the defendant risks alienating the jury.” Talley v. State,
2007 WY 37, ¶¶ 10-11, 153 P.3d 256, 260 (Wyo. 2007) (citations omitted). See also,
McGinn, ¶ 15, 361 P.3d at 299 (“It is ‘misconduct for the prosecutor to cross-examine a
defendant using the “lying” or “mistaken” technique (i.e., well, then if “so-and-so” said
“such-and-such,” was he “mistaken” or “lying?”)’ . . . . These questions are improper
because they ‘require a defendant to comment on another witness’ veracity . . . invade the
province of the jury, create the risk that the jury may conclude that, in order to acquit the
defendant, it must find that the other witnesses lied, and distort the state’s burden of
proof.’” (quoting Barnes v. State, 2011 WY 62, ¶ 9, 249 P.3d 726, 728-29 (Wyo. 2011),
and Beaugureau v. State, 2002 WY 160, ¶ 17, 56 P.3d 626, 635-36 (Wyo. 2002)) (other
citations omitted). “The admonition against asking the [defendant] whether other
witnesses lied applies equally to asking any witness whether another witness has lied.”
Proffit v. State, 2008 WY 114, ¶ 16, 193 P.3d 228, 236 (Wyo. 2008) (citing State v.
Manning, 270 Kan. 674, 19 P.3d 84, 100–01 (2001)).
[¶19] Mr. Ingersoll acknowledges that, because the prosecutor asked VL whether she was
lying, the question “at first blush, . . . does not appear to qualify as a ‘were-they-lying’
question.” However, because SS claimed VL was lying and VL said she was not lying, he
argues VL was essentially asked whether SS was lying, which is improper. We decline to
engage in such mental gymnastics, especially on plain error review “[where] we reverse a
trial court’s decision only if it is so plainly erroneous that the judge should have noticed
and corrected the mistake even though the parties failed to raise the issue.” Causey v. State,
2009 WY 111, ¶ 19, 215 P.3d 287, 293 (Wyo. 2009). The prosecutor did not ask VL
whether SS was lying. She asked VL whether VL was lying. Because such question is not
an improper “were-they-lying” question, Mr. Ingersoll cannot establish error, let alone
plain error.
Testimony of Ms. Banks
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[¶20] Ms. Banks testified that at the July 15, 2019, counseling session, SS reported feeling
stressed over VL lying that SS had sex with Mr. Ingersoll. Ms. Banks reported the
allegations to DFS because she is a “mandatory reporter,” which, she explained to the jury,
means she has to report if she has “knowledge that someone might have been sexually
abused or any kind of child abuse.” Later, on re-direct examination, the prosecutor asked
Ms. Banks, “And, again, why did you report to DFS what was discussed in that first session
with [SS]?” Ms. Banks responded:
Just based upon my supervision and my training and my work
with at-risk children, I reported because I felt I had to. And
I’m not an investigator. I don’t know - - I subsequently had no
idea what happened until recently, but I just felt I had to report
because I had knowledge that someone could have hurt my
client, and that’s what I’m called to do and we’re under a code
of ethics to report things, not just suspected child abuse.
(Emphasis added).
[¶21] Mr. Ingersoll complains Ms. Banks alluded to his guilt while also vouching for SS’s
and VL’s testimony. It is difficult to ascertain Mr. Ingersoll’s argument. He emphasizes
Ms. Banks’ testimony that she had no idea what happened “until recently” and that she
reports not just “suspected” child abuse but “things.” From what we can garner, he is
suggesting (1) Ms. Banks’ testimony about recently learning what had happened somehow
improperly vouched for SS’s and VL’s credibility and offered an opinion of his guilt, and
(2) her testimony that she has a duty to report “not just suspected child abuse” but “things”
indicates the allegations in this case were confirmed, thereby opining about his guilt.
[¶22] The subject testimony did not comment, or even suggest, that Ms. Banks believed
SS or VL. Indeed, Ms. Banks told the jury she was not an investigator, meaning her job
was not to determine the truth of what occurred. Nor did Ms. Banks offer an “actual
conclusion” regarding Mr. Ingersoll’s guilt. In Large v. State, 2008 WY 22, ¶ 15, 177 P.3d
807, 812 (Wyo. 2008), the victim’s psychologist testified he had a “duty to report sexual
abuse if [he] believe[ed] it’s occurring.” We concluded this testimony did not improperly
opine as to the defendant’s guilt because it “implicate[d] only [the psychologist]’s opinion
regarding whether sexual abuse was occurring[;]” “d[id] not provide an opinion regarding
the perpetrator of the abuse[;] and [was] potentially relevant as context for the
investigation.” Id., ¶ 17, 177 P.3d at 813. However, we found it was improper for the
psychologist to testify that the defendant was one of two who “possibly perpetrated” the
abuse because such testimony constituted an opinion that the defendant was guilty. Id., ¶
18, 177 P.3d at 813.
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[¶23] In this case, Ms. Banks did not “provide an opinion regarding the perpetrator of the
[alleged] abuse” or name Mr. Ingersoll as the abuser. She simply explained why she
reported the alleged abuse even though SS denied it occurred. Her testimony also provided
relevant context to the course of investigation, including how the police initially became
involved. Similarly, there is absolutely no indication that Ms. Banks’ statement that she
did not know “until recently” what happened pertained to Mr. Ingersoll’s guilt. Read in
context, it appears she was merely informing the jury that she had only recently learned
what had occurred following her reporting.
[¶24] Because Ms. Banks’ testimony did not vouch for the credibility of others or offer an
opinion of guilt, Mr. Ingersoll has failed to show her testimony transgressed a clear and
unequivocal rule of law.
Testimony of Sergeant Hill
[¶25] Sergeant Hill, who testified as a lay witness, described to the jury his training and
experience as an investigator in sexual offense cases, including attending three sexual
assault seminars and receiving “specialized training” in investigating child abuse cases.
He also explained that when investigating any crime, including sex crimes, he tries “to go
back in time and find out what happened in a moment that [he] wasn’t present for[.]” He
told the jury that in sexual abuse cases involving minor or vulnerable victims, offenders
often “groom” their victims. He defined “grooming” as “behavior by a person meant to
wear down the natural defenses or reaction of another person.” He described grooming as
follows:
Basically getting close to somebody, just like you build a
relationship with anybody. In grooming it has the negative
[connotations] of the person who’s doing the grooming, the
possible perpetrator is doing it with the intent to initiate some
sort of abuse. So they are slowly working on the defenses of
the possible victim with the purpose of perpetrating some sort
of abuse or crime against them. And it goes from -- whether
it’s just getting someone’s natural defenses as far as -- use the
example of a fraud scheme or something like that, somebody
gets close to somebody for the intention of abusing them
financially. We also see it in sexual abuse crimes where
someone is trying to build a relationship and get past
someone’s natural defenses to commit some form of sexual
abuse.
[¶26] Sergeant Hill testified that in child sex abuse cases, the relationship between the
perpetrator and victim “start[s] innocuously. Two people meet each other[,] and the
grooming begins when the perpetrator identifies that the person [he/she] met might be
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someone [he/she] can victimize.” He explained the perpetrator identifies a need in the
victim’s life and seeks to fill that need. For example, if the victim does not have many
friends, the perpetrator will become the victim’s friend. Sergeant Hill testified secrecy is
a large factor in the grooming process because it forms a bond between the perpetrator and
victim and isolates the victim from outside support systems.
[¶27] Sergeant Hill testified about his receipt of the report from DFS and his initial
interview with SS, where she denied having sex with Mr. Ingersoll but admitted she posted
a picture of herself with Mr. Ingersoll on social media and captioned it “[w]ith my best
friend.” The prosecutor then questioned Sergeant Hill as follows:
Q And earlier you described about the grooming.
Did you see any signs that you’ve recognized
from your training and your experience in investigations like
this, [did] you see any signs of grooming in that first interview?
A Yes, I did.
Q What were some of those signs?
A The things that I noticed during the interview that
match up with some of the items I testified about earlier is this
idea of what would normally be an inappropriate relationship
seemingly becoming appropriate. On surface level seeing a
man in his late 40s being posted as “my best friend” with a
young teenage girl would seem on its face to be inappropriate.
So those sorts of buildings of friendship that [SS] described in
the interview of how she told us that she related to Mr.
Ingersoll as a friend. During the interview, I even pointed out
or [the DFS caseworker] pointed out [to SS], “You’re talking
about him as if he’s a peer when he’s clearly not.” So it seemed
very much that idea of somebody coming forward and filling a
need in a possible victim’s life.
[¶28] Thereafter, Sergeant Hill testified about re-opening his investigation after receiving
the letter SS sent to her teacher. He said he re-interviewed SS and searched her phone and
social media activity. Following cross-examination, the prosecutor and Sergeant Hill
engaged in the following colloquy on re-direct:
Q [O]n cross-examination, you were asked some
questions about the defendant being familiar with the family.
Is that something that you expect in these types
of investigations?
A Yes, I do.
Q And why is that?
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A I know from my training and experience, that
often the perpetrators of sexual abuse against children [are] . .
. relative[s] or someone well-known to the family. And,
generally, as part of the grooming process, the relationship is
developed when there’s a potential child victim, not only with
the victim, but also with the family. Getting the trust of the
caregivers and those close to the victim are also part of that
process.
Q And in your training and experience in that role,
what’s the rationale behind a perpetrator doing that?
A The rationale is to gain trust so that they can use
the whole process to lower the natural defenses of the victim
or those that are close to them so that behavior that would
normally be flagged in their minds as objectionable or odd or
suspicious is now, because of the relationship and trust that is
built, is no longer something that raises a flag in the mind of
the victim or the people close to them.
Q And so in your investigation in this matter, did
you -- you already testified, I believe it was yesterday, about
the grooming patterns you saw prior -- during your interview
in July.
Was there anything in the October interview with
[SS] that indicated the same signals or same evidence?
A Yes. In [this] contact with [SS], she mentioned
some of the things that I had discussed yesterday as far as the
contacts, the social media interactions, the describing of the
defendant as her best friend. And then, furthermore, in the
second interview in October, she even described him as a
boyfriend.
Q And any other -- did you see any other
indications of what you would be looking for as grooming in
your investigation?
A I saw also the interactions with the family, as we
just mentioned earlier, that seemed consistent with grooming
behavior. Obviously, they did not appear to have a relationship
-- an ongoing relationship. [VL and SS] didn’t know the
defendant until after the funeral. And then based on my
interviews, it seemed like he was then a part of their lives more
and more going forward and spending time and doing things
around the whole . . . family that was not occurring prior to the
funeral.
Q And between the interview in July and the
October interview, was that still going on, that relationship?
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A Yes. I’d gathered that from my continued
investigation that the relationship and spending time with the
defendant and the family did not cease.
Q Did it ever discontinue?
A Yes. To my knowledge it was discontinued
when [SS] came forward with the note that she gave to her
teacher at that time and the investigation started again actively.
[¶29] Mr. Ingersoll claims Sergeant Hill’s testimony defining grooming, stating Mr.
Ingersoll’s behavior toward SS satisfied that definition, and stating Mr. Ingersoll was
grooming SS constituted an improper opinion of his guilt.1
[¶30] Our precedent makes a distinction between testimony which makes the ultimate
conclusion of guilt, which is improper, and that which simply informs the jury about the
meaning and significance of evidence and leaves the ultimate conclusion of guilt for the
jury, which is not improper. For example, in Stephens v. State, 774 P.2d 60, 65-67 (Wyo.
1989), overruled on other grounds by Large v. State, 2008 WY 22, 177 P.3d 807 (Wyo.
2008), several experts testified the victim had been sexually abused and Mr. Stephens was
the perpetrator. We concluded such testimony improperly opined that Mr. Stephens was
guilty. Id. at 67. Similarly, in Carter, 2012 WY 109, 282 P.3d 16, after describing the
drugs and drug paraphernalia found in Mr. Carter’s possession and at his residence, the
prosecutor asked the investigating agent: “What would you as an expert conclude from
that as to whether or not he is simply a user or whether he might be a dealer?” Id., ¶ 10,
282 P.3d at 169-70. The agent responded:
The totality of the circumstances is what I would have to base
any decision on when I’m looking at a circumstance like this.
With pay/owe sheets and profit and loss statements or sheets,
1
In discussing the first prong of plain error review with respect to Sergeant Hill’s testimony, Mr. Ingersoll
asserts: “The errors alleged are that Sergeant Hill was a lay witness who[] vouched for [SS] and [VS]’s
statements under the objectionable ‘were-they-lying’ question, the multiple hearsay statements of the
alleged victim, and Sergeant Hill’s statement of defendant’s guilt by providing testimony that Mr. Ingersoll
groomed [SS] for sexual assault.” In addressing the second prong of plain error review, however, Mr.
Ingersoll argues only that Sergeant Hill’s testimony improperly commented on his guilt. Because Mr.
Ingersoll provides no cogent argument or pertinent legal authority with respect to his claims concerning
vouching and hearsay, we will not address them. See Pier v. State, 2019 WY 3, ¶ 26, 432 P.3d 890, 898
(Wyo. 2019) (“We do not address arguments not supported by cogent argument or citation to pertinent
authority.” (citing Blevins v. State, 2017 WY 43, ¶ 22, 393 P.3d 1249, 1254 (Wyo. 2017))). Similarly,
although Mr. Ingersoll notes several times in his brief that Sergeant Hill was testifying as a lay witness, he
does not argue grooming evidence must be provided by an expert. In any event, the rule prohibiting a
witness from opining on the guilt of an accused applies to both expert and lay witnesses. Carter, ¶ 11, 282
P.3d at 170 (“This Court’s rule is well established: A witness, lay or expert, may not express an opinion as
to the guilt of the accused.”) (citations omitted).
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scales, packaging material, surveillance equipment, I would
find that indicative of a drug dealer.
Id., ¶ 10, 282 P.3d at 170. We concluded the agent’s testimony went “‘well beyond simply
summarizing the facts of his investigation’” and drew the ultimate conclusion that Mr.
Carter was guilty. Id., ¶ 14, 282 P.3d at 170 (quoting Bennett v. State, 794 P.2d 879, 882
(Wyo. 1990)).
[¶31] In contrast, in Cureton v. State, 2007 WY 168, ¶ 8, 169 P.3d 549, 551 (Wyo. 2007),
a police officer testified those who sell methamphetamine often use it and possession of a
large quantity of drugs could be for either personal use or for resale. As a result, to
determine whether a person in possession of a large quantity of methamphetamine intends
to sell it, he told the jury “one [has] to consider other factors such as the presence of
packaging materials, scales, large amounts of cash or other items of value, and pay/owe
sheets upon which drug transactions are recorded.” Id. The officer opined that the presence
of several of these factors in a case suggests that the methamphetamine is being sold. Id.We determined the officer’s testimony did not constitute an opinion of guilt because “[the
officer] never testified or offered a conclusion about whether the [defendant] was a drug
dealer or that she was guilty of any particular offense. The officer’s testimony merely
informed the jury about the meaning and significance of certain items of physical evidence
collected at the scene[] and left the ultimate conclusion for the jury.” Id., ¶ 11, 169 P.3d at
551. Likewise, in Nielsen, ¶¶ 4-6, 11-14, 430 P.3d at 745-46, several experts opined the
victim’s injuries were consistent with child abuse and non-accidental trauma, which refuted
Mr. Nielsen’s defense that the victim’s head injury was accidental. We concluded: “While
the challenged expert testimony . . . had a devastating impact on Mr. Nielsen’s case, it
merely informed the jury about the meaning and significance . . . of medical evidence, and
. . . did not offer a conclusion as to Mr. Nielsen’s guilt.” Id., ¶ 28, 430 P.3d at 749 (citation
and internal quotations omitted).
[¶32] Sergeant Hill’s testimony did not improperly opine as to Mr. Ingersoll’s guilt. He
informed the jury that child sexual offenders often groom their victims and defined and
provided examples of grooming. He then stated the evidence in this case included several
“signs” or “indications” that Mr. Ingersoll was grooming SS. Sergeant Hill did not opine
or make an “actual conclusion” that Mr. Ingersoll was, in fact, grooming SS or that Mr.
Ingersoll sexually abused SS. He “merely informed the jury about the meaning and
significance” of certain evidence in the case and left the ultimate conclusion of Mr.
Ingersoll’s guilt for the jury. See Nielsen, ¶ 28, 430 P.3d at 749; Cureton, ¶ 11, 169 P.3d
at 551.
B. Cumulative Error
[¶33] Mr. Ingersoll claims the cumulative effect of the errors he asserted above deprived
him of a fair trial. “Cumulative error occurs when ‘two or more individually harmless
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errors ha[ve] the potential to prejudice the defendant to the same extent as a single
reversible error.’” Watts v. State, 2016 WY 40, ¶ 23, 370 P.3d 104, 112 (Wyo. 2016)
(quoting Guy v. State, 2008 WY 56, ¶ 45, 184 P.3d 687, 701 (Wyo. 2008)) (other citation
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.’” Hicks v. State, 2021 WY 2, ¶ 40, 478 P.3d 652, 663 (Wyo. 2021) (quoting
Sweet v. State, 2010 WY 87, ¶ 40, 234 P.3d 1193, 1207 (Wyo. 2010)) (other citation
omitted). Because no error occurred, there can be no cumulative error. Id.CONCLUSION
[¶34] Because the State’s witnesses did not vouch for the credibility of other witnesses or
offer opinions as to his guilt, Mr. Ingersoll failed to establish the district court committed
plain error by allowing the subject testimony. In the absence of any error, the cumulative
error doctrine does not apply.
[¶35] Affirmed.
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