Prosecution, defense spar over admissible evidence in Moser case
By Trudy Balcom
RAWLINS — Carbon County District Court Judge Wade Waldrip heard testimony from attorneys for the prosecution and defense in the case of Jonathon Moser on Tuesday.
Moser, a former teacher and volleyball coach at Rawlins Middle School, is facing three counts of second-degree sexual abuse of a minor and one count of first-degree sexual abuse of a minor.
Moser was initially charged Jan. 29 with three counts of second-degree sexual abuse of a minor. The affidavit was amended Feb. 5 to include the first-degree charge.
Moser is also facing three counts of second-degree sexual abuse in Converse County.
The charges in both counties involve alleged abuse of students.
The hearing was scheduled to discuss the Wyoming Rule of Evidence 404(b).
Jonathon Moser, who is free on bond, attended the hearing with his attorney, Timothy Cotton of Casper. Moser’s wife also attended the proceedings.
Deputy Prosecuting Attorney Dawnessa Snyder represented the state. Both the defense and the prosecution had filed briefs with the court outlining their arguments with regard to Rule 404(b).
Rule 404(b) is intended to prevent the use of character evidence that might unfairly prejudice a jury.
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” states the Federal Rule of Evidence.
“I have read the law and know the law, but application of the law is difficult,” Judge Waldrip told the attorneys.
Waldrip seemed to challenge Deputy Prosecutor Dawnessa Snyder to meet the standards of the rule.
He told Snyder that she must come up with something other than alleged victim testimony that the defendant is “weird.”
“Really, the matter is to talk about the touching,” Snyder responded.
Snyder said she was willing to reduce the number of witnesses from 10, but that she did want to bring in witnesses from Converse County.
Snyder’s comments were brief. “We believe we have met the criteria for 404(b),” she said.
Moser’s attorney, Cotton, disagreed.
“These are serious charges, we are asking the court to take that into consideration,” Cotton told the judge.
“What that means is that you cannot say if he did it once, he did it again,” Cotton said of the rule.
Cotton pointed to the fact that after Moser’s alleged victims were first interviewed by Carbon County Deputy Thomas Lakia in February 2015, no charges were brought against Moser at that time.
After charges were filed against Moser in Converse County on Jan. 14, the case against him was reopened in Carbon County.
Cotton briefly reviewed some of the testimony given by alleged victims during police interviews, pointing to possible inconsistencies. He also stated there was nothing pointing to misconduct in Moser’s personnel file.
Cotton repeatedly quoted the legal precedence set by a 2002 Wyoming Supreme Court case, Gleason vs. State of Wyoming. In that case, the Supreme Court ruled in favor of a man charged with sexual abuse of a minor, saying that the “…the trial court erred in admitting evidence of certain uncharged misconduct.”
“When you go into the analysis with all of those Gleason factors, how clear is it the defendant committed prior bad acts? It’s difficult, if not impossible, to say that it occurred,” Cotton said.
Cotton did not deny his client touched students, but contended that they were “innocuous gestures” that were “misconstrued.” Cotton went on to flatly deny that there was any evidence from particular witnesses, saying, “it never happened.”
According to Wyoming Press Association Attorney Bruce Moats, Rule 404(b) does allow exceptions under certain circumstances. Character evidence may be allowed if it relates to motive, opportunity, intent, preparation and other factors a jury uses to weigh evidence against a defendant.
“If they can show that non-charged acts are relevant, if it is similar enough in in circumstance or time…it is not enough for non-charged evidence to point to a person’s character,” Moats told the Daily Times on Tuesday.
Judge Waldrip asked the prosecution to outline which exception to the rule she intended to pursue.
Snyder said she intended to “prove a course of conduct.”
“These are not innocuous gestures misconstrued, that’s not what’s going on here. When I read the Glenrock report, I thought I was reading the (Carbon County) report,” Snyder said.
She also noted that all of the allegations against Moser occurred within about a one-year time frame.
“This is a he said/she said situation…this is the proper type of evidence. It’s the defendant’s conduct that brings us to this place,” Snyder said.
Judge Waldrip told the defense and prosecution he planned to take the matter under advisement, and that he would issue a written opinion, but offered no time frame for the completion of that task.
The trial in the case was initially scheduled to begin July 19, but will likely be delayed.
If the District Court rules against the prosecution’s use of testimony from alleged victims that were interviewed by law enforcement in 2015, the prosecution’s case in Carbon County could prove untenable.