Broberg v. State, S-17-0308

• Citation: 428 P.3d 167
• Decision Date: 01 October 2018
• Docket Number: S-17-0308
• Parties: Kirk Elmer BROBERG, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

428 P.3d 167

Kirk Elmer BROBERG, Jr., Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0308

Supreme Court of Wyoming.

October 1, 2018

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Jesse Naiman, Assistant Attorney General.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ and BOOMGAARDEN, JJ.

BOOMGAARDEN, Justice.

[¶1] Appellant Kirk Broberg, Jr. appeals from his conviction of second degree sexual assault contending the district court improperly admitted W.R.E. 404(b) evidence. We affirm.

ISSUE

[¶2] Mr. Broberg presents the issue on appeal as: Did the trial court abuse its discretion by admitting evidence of prior bad acts absent notice from the State of its intent to offer such evidence and without conducting a Gleason hearing?

FACTS

[¶3] In the summer of 2015, Mr. Broberg lived with his first cousin, ML, her husband, and their children. On August 12, 2015, ML invited several people to their home for a bonfire, food, and drinks. Later in the evening, Mr. Broberg’s girlfriend, AB, and her friend stopped by to see Mr. Broberg. Mr. Broberg and AB went into a bedroom and had intercourse. Thereafter, AB left the residence with her friend.

[¶4] Around 10:30 p.m., ML and her husband went to bed and had intercourse. ML’s husband left the room to watch a movie with the children in the living room, where he fell asleep. ML remained in the bedroom sleeping on her stomach. Mr. Broberg entered the room and awoke ML by engaging in sexual intercourse with her from behind. The room was dark and he pushed ML’s head down into the pillow while whispering, "Don’t wake the boys." ML believed he partially stuck his finger or his thumb into her anus as he whispered, "Are you ready for this?" ML quickly pulled away and said, "Not tonight, Babe," but continued having sexual intercourse believing she was having sex with her husband. Eventually, Mr. Broberg spoke in his regular voice and ML realized the man was Mr. Broberg. She immediately stopped the activity and covered up with her comforter. Mr. Broberg left the room, but came in a few minutes later and offered ML a cigarette. By this time, ML had turned on a light and was sitting on the edge of the bed, enabling her to observe Mr. Broberg’s dark, black boxers with what she thought to be the "Martian from the Looney Toons ... the cartoon guy" imprinted on them. After Mr. Broberg left the room again, ML went to the living room and woke her husband to tell him what happened. The couple confronted Mr. Broberg, who denied the incident and left the residence.

[¶5] The following day, ML went to the emergency room where hospital staff reported the matter to law enforcement. The hospital staff performed a sexual assault examination with an officer present. Law enforcement officers gathered additional DNA samples from swabbing the cheeks of Mr. Broberg, ML, and her husband, a few days later. They also executed a search warrant and obtained a pair of Mr. Broberg’s boxer shorts with an image of Eric Cartman¹ on them, along with other physical evidence from the residence.

[¶6] The State Crime Lab analyzed the DNA samples provided and confirmed Mr. Broberg, ML, and her husband all contributed to the DNA mixture obtained from Mr. Broberg’s boxers, along with a fourth unknown contributor. Thereafter, the State charged Mr. Broberg with two counts of second degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(iv) (Lexis Nexis 2017). Count I alleged anal penetration and Count II alleged vaginal intercourse.

[¶7] Prior to trial, Mr. Broberg filed a demand for disclosure of W.R.E. 404(b) evidence. The State disclosed no such evidence. At trial, the State called AB as a witness. She testified about having intercourse with Mr. Broberg earlier that night; he "stuck his finger in [her] butt," and he did not ejaculate. Mr. Broberg’s counsel did not object to this testimony. The State also called AB’s friend, who testified she observed Mr. Broberg wearing a pair of black boxers with Eric Cartman on them on the night of the party.

[¶8] Mr. Broberg’s counsel moved for judgment of acquittal after the State rested. The district court denied the motion, finding the State presented sufficient evidence to establish a prima facie case.² Mr. Broberg then moved for a mistrial claiming portions of AB’s testimony were improper pursuant to W.R.E. 404(b) and prejudicial. After taking the motion under advisement and allowing the defense to present its case, the district court denied the motion for mistrial. In its ruling, the district court prohibited the State from making any arguments Mr. Broberg acted in conformity with the events with his girlfriend and the alleged sexual assault of ML, but allowed the State to use the evidence to explain to the jury why there were four different sets of DNA on Mr. Broberg’s boxers. Mr. Broberg’s counsel declined the court’s offer to provide a curative instruction, hoping to avoid calling more attention to AB’s testimony.

[¶9] The jury convicted Mr. Broberg of one count of second degree sexual assault for the vaginal intercourse, but acquitted him of the count related to anal penetration. Mr. Broberg timely appealed his conviction challenging the admission of W.R.E. 404(b) evidence relative to AB’s testimony, absent notice from the State of its intent to introduce the evidence and a hearing pursuant to Gleason v. State , 2002 WY 161, 57 P.3d 332 (Wyo. 2002).

DISCUSSION

[¶10] Mr. Broberg asserts the district court abused its discretion by admitting AB’s testimony concerning digital penetration, which he classifies as improper and unnoticed W.R.E. 404(b) evidence. The State contends the evidence does not implicate W.R.E. 404(b), but even if it does, admission of the testimony did not prejudice Mr. Broberg.

[¶11] Prior to trial, Mr. Broberg filed his demand for notice of W.R.E. 404(b) evidence, but the State did not respond to the demand. During the trial, the State elicited the following testimony from AB about her intercourse with Mr. Broberg:

Q. Do you remember during that intercourse, did Mr. Broberg ejaculate?

A. No.

Q. Do you remember anything else about the intercourse?

A. Anything specific?

Q. Yes, ma’am.

A. Like how specific?

Q. Do you remember any other distinguishing acts or memorable acts that were committed during the sexual intercourse?

A. Stuck his finger in my butt.

Mr. Broberg did not object to this testimony.

[¶12] The following day, after the State rested its case, Mr. Broberg’s counsel moved for a mistrial. The State responded that the testimony about Mr. Broberg’s failure to ejaculate did not fall within the scope of W.R.E. 404(b). The State did not make the same claim as to the digital anal penetration testimony. The State did not directly concede the penetration testimony was inadmissible to prove the character of Mr. Broberg. However, it proffered an alternative purpose for the testimony which could make it admissible under W.R.E. 404(b). That purpose, according to the State, was to show the potential source of DNA from an unknown fourth person found inside Mr. Broberg’s boxers. The State further argued the facts of the case were well-known to the parties and disclosed prior to trial, although the State recognized AB’s trial testimony slightly differed from her written, pretrial statement.³ Nonetheless, the State informed the court it would not object to a "curative" jury instruction:

The State will not object if there is a need for a curative instruction. I’ll leave that up to the court and defense. If there is to be a curative instruction, perhaps it should state essentially the language right out of 404(b) . We have a jury that’s sworn to follow the law. I’m confident they will. And if they are instructed that they are not to consider that act for anything other than the transfer of the DNA, I’m confident that the jury can make that determination and will follow the law as instructed by the court.

(Emphasis added.)

[¶13] In denying Mr. Broberg’s motion for a mistrial, the district court did not expressly state whether it found AB’s testimony to be inadmissible 404(b) character evidence, but it limited the purpose for which the State could use AB’s testimony about digital penetration and offered to provide a "curative" jury instruction applying language from W.R.E. 404(b) :

THE COURT: All right. I’m going to read the curative instruction on the record then and indicate that you wish and desire that it not be read to the jury. ‘The State has presented evidence of sexual contact between the defendant and his girlfriend for the purpose of demonstrating a possible transfer of DNA. You are not to consider the evidence for any other purpose including that defendant acted in conformity with any other acts. ’ That would be the proposed [instruction] by the court. Given your preference, Ms. Schneider, and the fact that this may call attention, the court is going to find it appropriate then not to give that jury instruction.

(Emphasis added.)

[¶14] Implicit in the district court’s offer of an instruction limiting the purpose for which the jury could consider AB’s testimony is the conclusion the evidence of digital penetration was inadmissible under W.R.E. 404(b) to prove Mr. Broberg’s character, but was admissible for a different purpose. See Reay v. State , 2008 WY 13, ¶ 16, 176 P.3d 647, 652 (Wyo. 2008) (citing Thomas v. State , 2006 WY 34, ¶ 36, 131 P.3d 348, 358 (Wyo. 2006) ). We agree AB’s testimony relating to digital anal penetration is inadmissible character evidence under W.R.E. 404(b) and could not be used to show Mr. Broberg acted in conformity with such character on this occasion. However, we disagree evidence of digital anal penetration on AB was...