Wyoming Supreme Court reverses sexual abuse convictions due to improper CP website testimony and court instruction

The Supreme Court of Wyoming recently reversed and remanded convictions of sexual abuse because of the admission of certain testimony concerning child pornography websites the defendant had allegedly visited and an improper comment by the district court upon evidence. Mersereau v. State, 2012 WY 125 (Wyo. 2012)

At trial, the state sought to admit images of child pornography found on websites that had allegedly been visited by the defendant in order to show a sexual attraction to children. The court found the images to be overly prejudicial, but agreed to allow testimony by an agent as to the content of those websites. On appeal, however, the supreme court found that the agent testifying as to the content of the websites had not actually visited the websites. Further, there was no proof that the websites contained images of actual child pornography. These factors considered - and the fact that the jury was left to assume the images were of small children as the alleged victim was, the testimony prevented the defendant's fair trial.

Also, prior to the forensic examiner testifying as to the contents of the defendant's computer, the court told jurors they were "about to hear evidence that there were child pornography websites on the defendant's computer." On appeal, the defendant argued that this instruction "injected the district court's opinion regarding the weight or quality of the evidence at the trial," and because the argument had not been raised at trial, it was examined for plain error. The supreme court held that the lower court "invaded the province of the jury" with the statement as there was no admissible evidence "that the appellant went to child pornography websites on his computer." As such, the statement by the court was plain error.

For these reasons and others discussed in the opinion, the conviction was reversed, and a new trial was ordered.