Bishop v. State

Decision Date20 July 1984
Docket NumberNo. 83-157,83-157
Citation687 P.2d 242
PartiesMichael Lynn BISHOP, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

BROWN, Justice.

Appellant Michael Lynn Bishop was charged by an information with two counts of burglary in violation of § 6-7-201(a)(i), W.S.1977. Count I alleged that appellant committed a burglary on December 22, 1980, and Count II alleged that appellant committed another burglary on February 25, 1982. Appellant pled not guilty to both counts.

Appellant filed a motion to sever the two counts for the purposes of trial contending prejudice and because the two charges were remote in time. The trial court denied the motion to sever. Appellant also filed a motion in limine asking the court to preclude the state from introducing evidence of prior bad acts which included evidence of theft, receiving stolen property and burglary. This motion was also denied. Appellant was found guilty of both counts and sentenced to the penitentiary. The court further required that appellant pay restitution on both counts. Appellant claims that the trial court erred in admitting evidence of prior acts of misconduct, in denying the motion to sever, and in imposing restitution as a post-incarceration condition.

We will affirm in part and reverse in part.

Appellant first argues that the trial court erred in admitting evidence of prior acts of misconduct and of unrelated, unsolved burglaries. On appeal deference is given to a trial court's determination concerning the admissibility of evidence. As long as there is a legitimate basis for a court's decision we cannot say that there was an abuse of discretion. Ortega v. State, Wyo., 669 P.2d 935 (1983). To resolve this issue we will examine the evidence admitted at trial and Rule 404(b), Wyoming Rules of Evidence.

Appellant objects to the evidence and testimony admitted under Rule 404(b) because it tends to involve and incriminate him in other unrelated incidents. The evidence objected to relates to three burglaries in Laramie, Wyoming, with which appellant was not charged. The sequence of events involving the Laramie burglaries is: December 22, 1980--Burgess residence burglarized (Count I); March 20, 1981--Boswell residence burglarized; September 30, 1981--Bentley and McCue residences burglarized; and February 25, 1982--McNiff residence burglarized (Count II).

The Burgess home was broken into sometime between 1:00 p.m. and 6:30 p.m. on December 22, 1980. The back door to the house had been forcibly opened and left ajar. The house looked in order but the Burgesses discovered that silverware, jewel boxes, pistols, coins and wristwatches were missing. One of the pistols had a serial number which matched the serial number on a pistol recovered from the Federal Pawn Shop in Denver on May 25, 1982. The individual who made the pawn was Michael L. Bishop.

The Boswell home was broken into between 8:00 a.m. and 3:30 p.m. on March 20, 1981. Entry was made through the ground-floor bedroom window at the back of the house. There were no fingerprints and nothing was disturbed in the house, but the sterling silver, some jewelry, and two sterling silver candlesticks were missing. At trial Mrs. Boswell identified the candlesticks as those taken from her home as well as she could without benefit of initials or a serial number. They were recovered on August 10, 1982, from a family in Cheyenne who had received them from Michael L. Bishop, a "personal friend."

The Bentley burglary occurred between 2:00 p.m. and 3:00 p.m. on September 30, 1981. Entry was gained by forcing open the back door of the house. Very little was disturbed inside the house, but much of the Bentleys' jewelry and silverware had been taken.

The time of day the McCue burglary occurred on September 30, 1981, is unknown. The burglar entered through a sliding glass window at the back of the house. Again, little was disturbed but the McCues discovered almost all of their jewelry and a camera were missing. The silver was hidden in the kitchen.

The evidence which tends to tie appellant to the Bentley and McCue burglaries is the manner in which the burglaries were conducted, and the fact motel clerks had receipts that stated Michael L. Bishop stayed in Laramie September 29, 1981, and checked out September 30, 1981.

The next event, November 1, 1981, which tended to incriminate appellant is an automobile accident after which certain items were found in appellant's vehicle. The investigation of the accident revealed weapons, pistols, several items of jewelry, silverware, surgical rubber gloves, and a screwdriver. 1 The fifth and final burglary occurred on or about February 25, 1982. This burglary is Count II of the information. The burglar entered through the back of the house at an unknown time of day by forcing open a back door. No fingerprints were found; however, a footprint was found and a plaster cast was made of the footprint. Items taken included a music box, a western pistol, two wristwatches, and meerschaum pipes. (All the McNiffs' silverware and jewelry were in their safe deposit box at the bank.)

On or about March 1, 1982, a music box similar in description to that taken from the McNiff residence was presented by Bishop to a New Mexico antique dealer. It was learned that Bishop had previously sold the antique dealer some sterling silver with a red stone in each handle, which was later determined to be stolen.

It was again learned that Bishop had registered at a Laramie motel on February 24, 1982, and checked out on February 25, 1982. This coincides with the McNiff burglary, and placed appellant in Laramie at the time of the burglary.

Bishop was being interviewed by the Laramie police on September 2, 1982, when Detective O'Malley noticed his boots. It was noted that he was wearing a pair of Dingo boots that had the same type of sole and were the same size as the plaster cast which the police had taken from the McNiff residence.

For evidence to be admissible at trial under Rule 404, W.R.E., it must also be relevant under Rule 402, W.R.E. Relevant evidence is defined in Rule 401, W.R.E., as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Once it is determined that the evidence is relevant, it must then be determined if the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time as defined in Rule 403, W.R.E. If there is evidence of other crimes, wrongs, or acts, then it may only be admissible under Rule 404(b), W.R.E., and cannot be used to show the character of the accused or that the accused has a propensity to commit crimes such as those with which he is charged. Rule 404, W.R.E.

"Other crimes, wrongs, or acts.--Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Rule 404(b), W.R.E.

Wyoming follows the general rule that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Elliott v. State, Wyo., 600 P.2d 1044 (1979). The general rule is codified in the first sentence of Rule 404(b). In applying the second sentence of the rule, however, we have adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs, or acts. See Ortega v. State, supra; Evans v. State, Wyo., 655 P.2d 1214 (1982); Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Hatheway v. State, Wyo., 623 P.2d 741 (1981); Grabill v. State, Wyo., 621 P.2d 802 (1980); Elliott v. State, supra. Such evidence is admissible if it is substantially relevant for other purposes, and its probative value outweighs its prejudicial effect. Grabill v. State, supra; and Elliott v. State, supra. See also 22 Wright and Graham, Federal Practice and Procedure: Evidence § 5239 (1978).

From our detailed review of the record we believe that the Bentley and McCue burglaries do not tend to make appellant's guilt in the charged burglaries more probable. Evidence of other crimes may be used to show that the modus operandi of the other crimes matches the crime charged. This helps prove the defendant's guilt when the perpetrator of the other crimes is known, and therefore helps prove the defendant's guilt when he is the perpetrator of the other crimes, and the other crimes are

"* * * unique or unusual, and similar in nature to the crime charged, or (whether unusual or not) very close in detailed resemblance to the crime charged (distinctively similar), then such crimes may be proven and the trier allowed to infer that the accused is probably the culprit, since the crime charged bears the mark of his handiwork. * * *" 2 Louisell and Mueller, Rule 404, § 140, p. 142 (1978).

But, "[i]n no event will evidence of other criminal acts be admissible unless a relationship between such acts and the defendant is established." 1 Wharton's Criminal Evidence, § 240, p. 532 (1972). The manner in which the Bentley and McCue burglaries were committed, while being similar, were not so unique as to warrant admission into evidence to prove the identity of the accused, the ultimate issue in this case. The fact that appellant was in Laramie...

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