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Scadden v. State WY 12 P. McClintock, Atty. The victim was a student and team member. On appeal, appellant raises one statutory construction constitutional question, and six procedural or sufficiency issues, as claimed error:. Unconstitutionality of the statute: Section a vi violates Art. Course-of-activities evidence: Introduction of testimony concerning appellant's teaching and coaching methods and his influence over students other than the two alleged victims violated the Wyoming Rules of Evidence, and deprived appellant of a fundamentally fair trial.

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Sex-offense expert testimony: Admission of Detective Reikens' testimony about the range of responses she encountered as a police officer investigating sexual-abuse and sexual-assault cases constituted error. Motion for a mistrial: Denial of appellant's motion for a mistrial was unjustified in light of Ms. Hoxey's improper testimony as the State Crime Laboratory specialist, regarding the 38 undeated pubic hairs found in the school closet where admitted sexual activity occurred. Cumulative evidence: Rejection for introduction of the transcript of MBS' preliminary hearing denied appellant his constitutional right to defend.

Sufficiency of the evidence: There was insufficient evidence to support appellant's conviction. Instructions: Refusal to give the jury Instruction 14 and appellant's proposed Instructions A and B was error. The sexual-assault allegations involve his relationship with MBS, a high school student and volleyball athlete who graduated inand with KR, another EastHigh School student and volleyball player who graduated in The sexual affair between the coach and KR began in October ofand lasted a shorter time, terminating when police investigatory activities intervened.

Appellant Lady in the Cheyenne shirt cjs 32 convicted on one charge of second-degree sexual assault under that statute, and acquitted of the other four charged offenses. The conviction, which resulted in a sentence of confinement for two to five years, involved an incident with MBS that occurred about December 26, Conversely, appellant sought to convince the jury that with MBS he developed a relationship of consensual sex founded on love, and that KR seduced him. In both cases he maintained that the young women freely consented.

Appellant's argument apparently won favor with the jury on four charges but not the fifth - or it decided that a conviction on one offense would suffice. Logically, in result, the burden of proof beyond a reasonable doubt was Lady in the Cheyenne shirt cjs 32 met on the four counts for which he was acquitted. The details will only be included in this opinion as justified in the discussion and disposition of the issues raised on appeal.

State, Wyo. In this context, we examine appellant's two constitutional challenges. State of Connecticut, U. Wade, U. He concedes that the State of Wyoming does have the power to regulate sexual relations, but that that power is limited by due-process protections of this fundamental and protected liberty.

This court agrees. Appellant tried his case under the consent theory, but the jury found him guilty under a statute and instructions which required it to find beyond a reasonable doubt that the victim did not consent. May it suffice to say that where the constitutional rights to privacy confront the state's police power, the privacy rights do not extend to sexual relations between high school coach-instructors and underage students.

Within the purview of this case, we determine that instructors do not have a constitutional right to have sexual relations with minor students in the state's educational system. We distinguish any authority which pertains to adults or concerns the privacy-of-the-home relationship. State of Connecticut, supra. Instruction No. The alleged victim did not consent to sexual intrusion, but was caused to submit because of defendant's use of his position of authority as to her. The defense of consent involves two separate elements.

That the alleged victim had the present ability to consent or the defendant could not reasonably have known that the alleged victim lacked the present ability to consent. See an excellent discussion of the course-of-conduct consent question in State v. Kennedy, Utah, P. The primary purpose for these proscriptions against sexual relations is the absence of acceptable consensual participation in the act. The State of Wyoming has a compelling interest in regulating sexual contacts between persons when one of those persons does not consent or lacks the capacity to consent.

Incest or statutory rape are readily apparent examples. State v. Ross, 16 Wyo. This legislative act permits the State to show that the victim did not consent, by demonstrating that the perpetrator occupied a position of authority over the victim and used that position to impose his sexual will. The consensual status of the conduct can be disproved by establishing the participants' relationship, and the defendant's use of that relationship to compel the victim to succumb.

This statute is neither unreasonable nor arbitrary, and is within the police power of the state to enact laws for the general welfare of the people. Kalman v.

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Western Union Telegraph Co. Kamps, 68 Wyo. Because, under the position-of-authority statute, the jury found no legal consent, this case does not involve consensual sexual relations, and appellant's due-process argument does not apply. The well-established standard for an equal-protection challenge was stated by this court in Keser v. State, supra, P. Part of the rationale for this rule is that vagueness encourages arbitrary and erratic arrests and convictions. Papachristou v.

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City of Jacksonville, U. Wyoming has followed the constitutional guideline that a criminal statute violates an essential principle of due process if. Gallegos, Wyo. Armstrong, Wyo. The requirement of a reasonable degree of certainty in legislation, especially in the criminal law, is a well-established element of the guarantee of due process of law. No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.

A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence Lady in the Cheyenne shirt cjs 32 necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. The constitutional guarantee of equal rights under the law see Art. See also Newton v. Griffin, La. The statute itself can be challenged, or the statute's application to a particular defendant can be the basis of the attack. Under these provisions, a criminal statute must meet two requirements in order to pass constitutional muster.

First, it must give adequate notice to individuals of the conduct which is proscribed and punishable by law. Second, adequate standards must be provided for those charged with determining the guilt or innocence of the accused. See also Commonwealth v. Stenhach, Pa. Rather, the State prosecuted and appellant was convicted under the last phrase of the definition: "any other person who by reason of his position is able to exercise ificant influence over a person. We do not find appellant's characterization of the law persuasive, since common sense will be applied by this court to the statutory language.

Dover v. State, supra. Mazurie, U. It is not necessary, nor does the law permit us to examine the constitutionality of the statute by inventing situations in which the law's application might seem absurd or invalid. Sanchez v. McArtor v.

It is helpful to look to Burton's Legal Thesaurus, which defines authority as: "[J]urisdiction, legal power, legitimacy, prerogative, right to adjudicate, right to command, right to determine, right to settle issues, rightful power. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge. Control over; jurisdiction.

Often synonymous with power. One in a position of authority is a person who acquires that status by virtue of society and its system of laws granting to him the right of control over another. For example, society grants to a jailer power over his prisoner, and, therefore, the jailer is in a position of authority over the prisoner.

Likewise, the teacher or coach is vested with power by a grant from society.

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The legislature enacted the statute to prohibit persons in such positions of authority from using those positions to cause any individual who might be subject to authoritative power to submit to sexual acts. As reposed in our educational system, society vested him with an authoritative status over her. Even though, in the criminal prosecution, the State did not rely on his employment as a teacher, his authority devolved from that ascribed status. We think it is not.

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The State's structural positing of this case, in not relying on the fact that appellant was a teacher to show that he was in a position of authority over MBS, does not somehow negate the fact that appellant indeed occupied that position. Absent the fact that appellant was the victim's teacher, none of the events for which appellant was charged and convicted would have occurred. In light of these facts, we decline appellant's invitation to strike the statute as void for vagueness. A plethora of trial evidence comprehensively demonstrated that appellant was in a position of authority over MBS.

A person of ordinary sensibilities in appellant's position clearly should have known that his conduct was forbidden.

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Several of the young women on the team testified about the games the team members and appellant played on the bus when traveling to compete. The games included, among others, "blue dot" thumping another's forehead with a knuckle to create a bruise"Texas brain finders" twisting a knuckle into another's templeand "snuggies" reaching into another's pants and pulling up her underpants. When the team was on the road at away games appellant spent considerable time in the young women's motel rooms, kissed some of the team members good-night and "tucked them in.

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Other testimony included appellant's habit of walking into their locker room while the young women were dressing, general comments about how they trusted and respected him, how appellant made them feel comfortable around him, and how his intimacy with them and casual attitude around them fostered their trust and cultivated his influence.

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