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Rivera v. State10/30/1992
Rehearing Denied January 5, 1993.
The primary issues in this case, emanating from convictions of sexual assaults on two minor girls, relate to the admissibility of evidence. Specifically, Kerry Rivera (Rivera) contends that error occurred in the admission into evidence of DNA profiling; in the admission of opinion evidence on his guilt; and evidence of other bad acts in violation of Wyo.R.Evid. 404(b). A further significant claim is raised with respect to violation of the double jeopardy clauses of the state and federal constitutions arising out of charges and convictions of indecent liberties and sexual assault in each instance. Collateral issues include the claim of cumulative error and a claim of credit against the sentences imposed because of pretrial confinement. We hold no error occurred with respect to admission of evidence in this case but, in one instance, the charge of indecent liberties, while properly presented to the jury, merged into the charge of sexual assault for purposes of punishment. We accept the concession of the state with respect to the issue of pretrial confinement. The judgment and sentences of the trial court are affirmed except that one sentence for indecent liberties is set aside, and credit is to be properly awarded for pretrial confinement.
Rivera was charged with, and convicted of, first-degree sexual assault in violation of Wyo. Stat. § 6-2-302(a)(i) (1988) in one instance, and Wyo. Stat. § 6-2-302(a)(iii) (1988) in the other instance, and violations of Wyo. Stat. § 14-3-105 (1986) with respect to two separate minor female victims. In August of 1989, BJL, then sixteen years old, complained of a sexual assault by Rivera. In the course of the investigation of that complaint, law enforcement officers received information of an earlier assault upon MB in March of 1988. MB also was sixteen years old at the time of the assault. The sexual assault count with respect to MB was charged as a violation of the provisions of § 6-2-302(a)(i), and the sexual assault against BJL was charged as a violation of the provisions of § 6-2-302(a)(iii). After a jury trial resulted in convictions on all counts, Rivera was sentenced to not less than five nor more than ten years on each charge of indecent liberties with a minor, and to not less than six nor more than ten years on each of charge of first-degree sexual assault, with the provision that all four sentences were to run concurrently. In addition, the judgment and sentence provided that Rivera was to "be given credit for time served in the Hot Springs County Jail, in the amount of 282 days, said credit to be applied against the minimum and maximum sentence ordered herein [emphasis added]."
In his Brief of Appellant, Rivera states the issues as follows:
I. Whether evidence of DNA profiling was properly admitted at trial.
II. Whether Appellant's constitutional right to a fair trial was abrogated when the trial court admitted testimony in contravention of Bennett v. State.
III. Whether Appellant's constitutional right to be free from double jeopardy was violated.
IV. Whether the trial court improperly admitted evidence of purported prior bad acts.
V. Whether Appellant's convictions should be reversed pursuant to the doctrine of cumulative error.
VI. Whether Appellant should be credited with 282 days time served to be credited against the maximum and minimum terms of all phases of Appellant's concurrent sentences.
The State of Wyoming includes the same issues in its Brief of Appellee, but it restates them in this fashion:
I. Whether the
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