Elijah Dante Dobbins v. The State of Wyoming ( 2024 )

IN THE SUPREME COURT, STATE OF WYOMING
2024 WY 108OCTOBER TERM, A.D. 2024
October 16, 2024
ELIJAH DANTE DOBBINS,
Appellant
(Defendant),
v. S-24-0080
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Joshua C. Eames, Judge
Representing Appellant:
Office of the State Public Defender: Brandon Booth, Wyoming State Public
Defender*; Kirk A. Morgan, Chief Appellate Counsel; Jeremy Meerkreebs,
Assistant Appellate Counsel.
Representing Appellee:
Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen
R. Jones, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney
General.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.
*An Order Substituting Brandon Booth for Ryan Roden was entered on October 10, 2024.
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.
FOX, Chief Justice.
[¶1] A jury convicted Elijah Dante Dobbins of third-degree sexual abuse of a minor,
strangulation of a household member, unlawful contact, and permitting a house party.
Mr. Dobbins appeals the strangulation conviction, arguing that the district court abused
its discretion by allowing the jury to review three of the State’s video exhibits during
deliberations. We affirm.
ISSUE
[¶2] The sole issue for our review is whether the district court abused its discretion
when it allowed the jury to review three of the State’s video exhibits during deliberations.
FACTS
[¶3] In the fall of 2022, Mr. Dobbins hosted a party at his apartment in Mills,
Wyoming. Mr. Dobbins’s girlfriend, Harmony Lehmbeck, attended the party along with
five of her coworkers. The testimony at trial reflected varying perspectives on the events
of the night.
[¶4] Relevant to this appeal and agreed upon by all witnesses who attended the party, at
some point, Mr. Dobbins and Ms. Lehmbeck got into a fight. The fight became physical,
leaving the kitchen area of Mr. Dobbins’s apartment in a state of disarray. Eventually, the
two ended up by the apartment’s front door. As the struggle continued, Ms. Lehmbeck
ended up on the floor with her shirt off. Several of Ms. Lehmbeck’s coworkers testified
that during this struggle, Mr. Dobbins choked Ms. Lehmbeck either by holding his hands
around her neck or using her shirt, and Ms. Lehmbeck appeared to lose consciousness.
Ms. Lehmbeck testified that Mr. Dobbins was only trying to restrain her and remove her
from the apartment and that he did not choke her. She also testified that she never lost
consciousness.
[¶5] One of the coworkers, ReiAnn Leal, captured three videos of the struggle on her
phone. The first video, State’s Exhibit 100, is five seconds long and shows Mr. Dobbins
and Ms. Lehmbeck, both standing, shoving each other near the apartment’s front door.
The second video, State’s Exhibit 101, is less than three seconds long and shows
Mr. Dobbins kneeling over Ms. Lehmbeck, who is laying on the floor with no shirt on.
The third video, State’s Exhibit 102, is fifteen seconds long and shows Mr. Dobbins
yelling to someone off camera and Ms. Lehmbeck laying on the floor, still shirtless.
State’s Exhibit 100 has no audio, State’s Exhibit 101 has audio for the whole video, and
State’s Exhibit 102 only has audio for about half of the video.
[¶6] The State charged Mr. Dobbins with ten counts related to the events of the party.
The case proceeded to a jury trial. At trial, the videos taken by Ms. Leal were played for
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the jury during Ms. Leal’s testimony, and again during Ms. Lehmbeck’s testimony. At
the end of Ms. Leal’s testimony, the district court stated that it would be collecting the
videos to “keep custody” of them. The videos were listed in the index to exhibits in the
trial transcript.
[¶7] After the case was submitted to the jury, the district court held a conference to
clarify “what exhibits were admitted and going back.” The district court stated that its
“notes” included Exhibits 100, 101, and 102. Regarding whether these exhibits would be
going to the jury during deliberations, the district court said:
Obviously, 100, 101, 102, and 200 being videos will not be
going back to the jury. Certainly, if we receive a request from
them to view those, my intent would be to require that they
give a reason why they want to view those, bring everyone
back into the courtroom and then play any appropriate
portions of the videos here in open court.
Neither the State nor Mr. Dobbins objected to this plan regarding the videos or their
inclusion in the district court’s list of exhibits.
[¶8] During deliberations, the jury sent a note to the district court asking, “Would we
be able to watch the video of the fight[?]” The district court, with the approval of
Mr. Dobbins and the State, responded to the jury by asking which videos they wanted to
watch, which portions they wanted to watch, and their reason for wanting to review the
videos. 1 The jury requested to view the entirety of State’s Exhibits 100, 101, and 102
“[t]o clarify the alleged strangulation and battery.” Mr. Dobbins objected to showing the
videos again, noting that the jury had already viewed the videos on two occasions. The
district court overruled the objection and stated that it would allow the jury to review
each of the videos twice, explaining that “[t]hey are fairly quick videos. You blink and
you miss some of it.” The jurors were brought back into the courtroom, where the videos
were each played twice under the court’s supervision.
[¶9] The jury convicted Mr. Dobbins of third-degree sexual abuse of a minor,
strangulation of a household member, unlawful contact, and permitting a house party. It
acquitted him of the remaining six counts. Mr. Dobbins timely filed a notice of appeal.
On appeal, Mr. Dobbins challenges only his conviction for strangulation of a household
member.
1
In crafting these questions, the district court specifically referenced our decision in Hicks v. State, which
outlines the procedure a trial court must follow when a jury requests to review a video that is testimonial.
2021 WY 2, ¶ 29, 478 P.3d 652, 661 (Wyo. 2021).
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STANDARD OF REVIEW
[¶10] Mr. Dobbins contends that it was error for the district court to permit the jury to
view State’s Exhibits 100, 101, and 102 during deliberations. With regard to allowing the
jury access to exhibits during deliberations, we have said:
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.
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).
Hicks, 2021 WY 2, ¶¶ 26-27, 478 P.3d at 660-61. Thus, the decision to allow a jury to
review exhibits during deliberations is reviewed for an abuse of discretion, but that
discretion is constrained when the exhibits are testimonial. Id.; Soares v. State, 2024 WY
39, ¶ 41, 545 P.3d 871, 881 (Wyo. 2024).
DISCUSSION
[¶11] Mr. Dobbins argues that the district court abused its discretion by allowing the
jury to view the three videos after they had begun deliberating. He first contends that the
videos, while published to the jury during trial, were never admitted into evidence. He
also argues that the videos were testimonial and should have been subjected to carefully
controlled procedures before allowing the jury to review them, if at all. Finally, he argues
that to the extent the district court attempted the procedures required for testimonial
videos, these procedures were deficient. We will address each of these arguments in turn.
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I. Mr. Dobbins did not raise the issue of whether the videos were admitted with the
district court and offers no plain error analysis on appeal.
[¶12] Mr. Dobbins first contends that the three videos at issue were not admitted into
evidence and thus should not have been viewed by the jury during deliberations. He
claims that “[t]he exhibits were part of Ms. Leal’s testimony, not independently admitted
evidence.” While Mr. Dobbins objected to playing the videos for the jury after they had
begun deliberations, he did so on the basis that the jury had already viewed the videos
twice and that he “would object to them watching them once, you know, yet again. But
that’s just a general objection.” This objection did not raise the issue of whether the
videos had been properly admitted. In fact, when the case was submitted to the jury, the
district court expressly addressed the parties to clarify “what exhibits were admitted and
going back.” Despite this opportunity to raise the issue of whether the videos were
admitted, Mr. Dobbins agreed with the district court’s list of exhibits, which included
State’s Exhibits 100, 101, and 102.
[¶13] Normally, when a defendant does not object to an alleged error at trial, we review
for plain error. See Lee v. State, 2024 WY 97, ¶ 12, 555 P.3d 496, 499 (Wyo. 2024).
However, where an appellant does not offer a plain error analysis, we have declined to
review for plain error. Benedict v. State, 2024 WY 55, ¶ 17, 548 P.3d 989, 994 (Wyo.
2024) (citing Baker v. Baker, 2023 WY 121, ¶ 17 n.3, 539 P.3d 412, 416 n.3 (Wyo.
2023); Rodriguez v. State, 2019 WY 25, ¶ 38 n.7, 435 P.3d 399, 411 n.7 (Wyo. 2019)). In
his brief, Mr. Dobbins makes only passing statements that the videos were not admitted.
He cites no authority for this argument, does not offer a plain error analysis, and appears
to rely solely on the lack of a formal statement from the district court that the videos had
been admitted into evidence. “We will not conduct a plain error review.” Benedict, 2024
WY 55, ¶ 17, 548 P.3d at 994.
II. The videos were non-testimonial.
[¶14] Mr. Dobbins next contends that State’s Exhibits 100, 101, and 102 were
testimonial, limiting the district court’s discretion to allow the jury to view them during
deliberations. The State responds that the videos were non-testimonial, allowing the
district court broad discretion in providing them to the jury during deliberations. We
agree with the State.
[¶15] Our precedent is clear as to the procedure trial courts must follow before granting
a jury access to testimonial materials during deliberations. Hicks, 2021 WY 2, ¶ 29, 478
P.3d at 661 (“With regard to a testimonial videotape, [Wyo. Stat. Ann.] § 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 relevant portions under carefully controlled procedures.”).
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To know when to follow this procedure, a trial court must be able to identify a
testimonial exhibit.
Our decisions have not expressly defined the
distinction between testimonial and nontestimonial evidence
for purposes of this rule, but Colorado courts have provided
helpful guidance. They define a testimonial out-of-court
statement as one that narrates past events, and nontestimonial
evidence as that which depicts an event itself rather than
providing a narration of it. People v. Rogers, 68 P.3d 486,
494 (Colo. App. 2002) (citing People v. Aponte, 867 P.2d
183, 188 (Colo. App. 1993)). This is consistent with our
Court’s treatment of such evidence. See Warner, 897 P.2d at
475 (tape recording of drug transaction properly allowed into
jury deliberations as nontestimonial exhibit); Munoz v. State,
849 P.2d 1299, 1301 (Wyo. 1993) (same); Pino v. State, 849
P.2d 716, 719 (Wyo. 1993) (same); Taylor v. State, 727 P.2d
274, 276 (Wyo. 1986) (holding videotaped interview of
victim to be testimonial); Schmunk v. State, 714 P.2d 724,
728, 744 (Wyo. 1986) (videotaped pre-arrest interview held
to be testimonial).
Bogard v. State, 2019 WY 96, ¶ 89, 449 P.3d 315, 336 (Wyo. 2019) (Davis, C.J.,
specially concurring) (footnote omitted).
[¶16] The videos in this case do not narrate past events or otherwise perform the
functions of a witness at trial. Of the two videos that have any audio, State’s Exhibit 102
is the only video where any words are discernable. In that video, Mr. Dobbins can be
heard shouting to someone off camera, “when she’s out, she’s out—don’t f***ing unlock
the door.” Mr. Dobbins’s statement in State’s Exhibit 102 lacks context, does not narrate
events, and does not risk him functioning as a “speaking witness” regarding the
strangulation charge. Hicks, 2021 WY 2, ¶ 27, 478 P.3d at 661 (quoting Warner v. State,
897 P.2d 472, 475 (Wyo. 1995)). The videos “depict[] an event itself rather than
providing a narration of it.” Bogard, 2019 WY 96, ¶ 89, 449 P.3d at 336 (Davis, C.J.,
specially concurring).
III. The district court did not abuse its discretion when it allowed the jury to review
the videos during deliberations.
[¶17] Though the exhibits were non-testimonial, the district court opted to allow the jury
to review the videos under a more controlled procedure. Mr. Dobbins finds fault in the
district court’s procedure, arguing that the court did not obtain an adequate reason from
the jury to justify allowing them to review the videos.
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[¶18] Unless an exhibit requested by the jury is testimonial, a trial court has considerable
discretion in deciding whether to submit the exhibit to the jury during deliberations.
Hicks, 2021 WY 2, ¶ 26, 478 P.3d at 660 (citing Chambers v. State, 726 P.2d 1269, 1276-
77 (Wyo. 1986), receded from on other grounds by Lancaster v. State, 2002 WY 45,
¶ 16, 43 P.3d 80, 88 (Wyo. 2002)). Because the exhibits here are non-testimonial, it is
through this discretionary lens that we review the district court’s decision to allow the
jury to review the video.
[¶19] The district court, upon receiving the request from the jury to review the videos,
held a conference with Mr. Dobbins and the State. After discussing the matter with the
parties, the district court responded to the jury by asking which videos they wanted to
watch, which portions of those videos they wanted to watch, and their reason for wanting
to review the videos. Though Mr. Dobbins made a “general objection” to the jury
watching the videos again, the district court explained its reason for allowing the jury to
review the videos so long as their answers to its questions were sufficient:
Okay. And, for the record, the reason why I think it’s
appropriate to play them at all, [the State] touched on this, is
for at least two of them, it is fairly quick. They are fairly
quick videos. You blink and you miss some of it. I think the
third one is a little bit longer. But my proposal would be we
simply play whichever ones they want to watch and have a
good enough reason twice.
The jury responded that they wished to review all three of the videos taken by Ms. Leal
“[t]o clarify the alleged strangulation and battery.” The jurors were brought back into the
courtroom, where the videos were each played twice under the court’s supervision.
[¶20] Because the videos were non-testimonial, the district court’s additional
precautions were not required. Though Mr. Dobbins disputes the sufficiency of the jury’s
reason for reviewing the videos, the district court was not required to obtain a reason for
the jury to review these non-testimonial videos. Hicks, 2021 WY 2, ¶¶ 26, 29, 478 P.3d at
660-61. The district court did not abuse its discretion by being more careful than our
precedent requires. “A court abuses its discretion only when it could not reasonably
decide as it did.” Keller v. State, 2024 WY 71, ¶ 18, 551 P.3d 450, 457 (Wyo. 2024)
(quoting Wanberg v. State, 2020 WY 75, ¶ 14, 466 P.3d 269, 273 (Wyo. 2020)). The
district court recognized that the short nature of the videos justified an additional
viewing, and did not abuse its discretion by allowing the jury to view the non-testimonial
videos under controlled circumstances.
[¶21] Affirmed.
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