Coleman v. State, 86-159

• Decision Date: 14 August 1987
• Docket Number: No. 86-159,86-159
• Citation: 741 P.2d 99
• Parties: Donald COLEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 99

741 P.2d 99

Donald COLEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-159.

Supreme Court of Wyoming.

Aug. 14, 1987.

Leonard D. Munker, State Public Defender, Julie D. Naylor, Appellate Counsel, Cheyenne, for appellant (defendant).

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and David K. Gruver, Asst. Atty. Gen., for State of Wyo.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

THOMAS, Justice.

The primary issue to be addressed in this case is the application of Rule 404(b), W.R.E., to the admission of evidence of other crimes, wrongs, or acts in a case in which the element of the crime in issue was the identity of the accused. Coleman was found guilty of knowingly injuring or destroying the property of another in violation of the prohibition and felony sanction set forth in § 6-3-201(a) and (b)(iii), W.S.1977, Cum.Supp.1985. ¹ The trial court permitted one of the victims to testify, over objection and for the purpose of establishing Coleman's ill will, that Coleman threatened to kill their daughter. There is a second issue argued relating to the sufficiency of the evidence to sustain the jury's verdict. Although some suggestions concerning the process for applying Rule 404(b), W.R.E., are offered, we hold there was no error in the admission of the challenged testimony. We conclude that, examined according to the usual standard, all of the evidence was sufficient to sustain the verdict. We affirm the judgment and sentence of the trial court.

Coleman states two issues for this appeal:

"I. Whether the introduction of evidence in violation of Rule 404(b), W.R.E., deprived appellant of a fair trial.

"II. Whether there exists insufficient evidence to support appellant's conviction of destruction of property."

In the Brief of Appellee, the State sets forth three issues as follows:

"I. Was evidence of appellant's prior acts admitted in violation of Rule 404(b), W.R.E.?

"II. Was the admission of evidence of appellant's prior acts harmful error, requiring the reversal of his conviction?

"III. Was the evidence sufficient to sustain the jury's verdict of guilty?"

In the latter part of 1981, Coleman became acquainted with Tammy Nielson. They shared living quarters for four to five months, and she became pregnant during this time. She terminated the relationship with Coleman before the child was born, and her action resulted in a "bitter" relationship. The harsh feelings escalated when the man she later married instituted proceedings to adopt the natural daughter of Coleman and Ms. Nielson. The degree of hostility is demonstrated vividly by the remark made in a telephone conversation in September of 1985 between Coleman and Ms. Nielson. They discussed the adoption proceedings and, in the course of the conversation, Coleman said to Ms. Nielson that "[h]e would get my daughter and if I [Ms. Nielson] ever got her back or made them give her back, I would get her in a pine box." It is Ms. Nielson's testimony about this remark which is the focus of the claim of error under Rule 404(b), W.R.E.

On December 21, 1985, Coleman was asked by a friend if he had been harassing Ms. Nielson any more. Coleman responded to the friend that he hadn't lately but that he was considering slashing her tires and that no one would be able to prove that he had done it. On January 2, 1986, Coleman telephoned Ms. Nielson and told her that he would be over to get the child, this despite an order which had been entered previously restraining him from seeing the child. Ms. Nielson reported this to the police, but they did not pursue the matter. Ms. Nielson and her husband then decided to sleep in their living room instead of their bedroom so they would be closer to the child's bedroom and the front door. At approximately 4:00 A.M., they were awakened by a loud noise. They checked the child's room and found that she still was there. Then they looked out the window of their home but were unable to see anyone outside. The following morning when they did go outside, they found the windshields broken out of three of their vehicles and nine tires on the vehicles slashed. They reported this damage to the police, and an officer was sent to the scene, but only a cursory investigation was accomplished. Through her independent inquiries, Ms. Nielson learned that no one else in the neighborhood had suffered property damage during the night time hours of January 2 and January 3, 1986. During the morning of January 3, 1986, Ms. Nielson telephoned Coleman's father. Coleman apparently was residing with his father, and upon answering the phone, the father advised Ms. Nielson that Coleman was not there and further that he did not know where Coleman was. Later in the morning, an unknown individual "dropped off" Coleman at his father's house. When he came in the house, Coleman's father asked him where he had been, and Coleman advised that he had been in Evanston the entire evening. His father then told Coleman of the conversation with Ms. Nielson and that she had reported damage to her vehicles. Not long after, Ms. Nielson telephoned again and asked Coleman "what he had accomplished in doing the damage to my home." Coleman's response was that "we could get together and talk about it."

At Coleman's trial, a witness testified about his prior act of kicking in Ms. Nielson's door. The trial court sustained an objection to that testimony and instructed the jury to disregard it. A motion for a mistrial based upon that testimony properly was denied. Then Ms. Nielson testified about Coleman's statement during the September, 1985 telephone conversation. This testimony was given in the context of developing the dispute over the adoption proceedings and was elicited during questioning with respect to Coleman's harassment of Ms. Nielson through repeated phone calls. When Ms. Nielson testified about Coleman's statement, defense counsel objected and moved for a mistrial. The court contemplated its ruling for two or three minutes, overruled the objection and allowed the testimony to continue. Later, in chambers during a recess, consistent with a suggestion in Elliott v. State, Wyo., 600 P.2d 1044 (1979), that a record of the court's finding under Rule 403, W.R.E., is helpful in reviewing the exercise of discretion in admitting evidence, the court made the following comment on the record:

" * * * The Court counseled with the parties concerning how it was going to treat this case, how it was going to treat this evidence and what it expected of the State. It cautioned the State that the State should, in broad brush generalities, present the evidence concerning the background of these parties, the expressions of intent and state of mind by the Defendant, the continuing turmoil between the parties, * * * the hostility between the parties, in a broad brush sense and being very, very careful to avoid particularities about heinous or horrible or terrible acts by the Defendant. The Court required that the State reveal to the Court, out of the presence of the Jury, the substance of the testimony that it sought to elicit from the witnesses in order that the Court could make the rulings under 403 that it was required to make and to do that outside of the presence of the Jury. The Court was able to accomplish that and make the findings and reach the conclusion that there was not unfair prejudice to the Defendant by the testimony that the State was intending to offer, in all instances except one. And that instance occurred after the last recess when the Court took Counsel into chambers and asked Counsel what Mrs. Nielson was going to testify in response to the question what was the nature of the conversation concerning threats over the telephone. Counsel told the Court that the witness would testify that, as I recall, * * * Mr. Coleman would go to any lengths to stop the adoption. So the Court considered that under Rule 403 and concluded that it was broad enough in nature not to be unfairly prejudicial to the Defendant and that there was a purpose for its introduction, the state of mind, motive, intent, * * *. Then we went into Court and when we got into Court, Mrs. Nielson said 'He told me I would get my daughter back in a pine box.' And there was an objection and a motion for a mistrial. What the record will not reflect to the Supreme Court is Judge Troughton sitting on the bench, for what, Gentlemen, two minutes, three minutes, in contemplation of the surprise that had been offered and the objection and the motion for mistrial. Because the Court was before the Jury, it did not voice it's ruling even though the Court was spending that long period of time considering the objection and the motion for mistrial under Rule 403.

"Now, the Court allowed the trial to continue, overruled the objection and did not grant the motion for mistrial because * * * the Court made a determination that the testimony was admissible and it was not unfairly prejudicial. It was admissible * * * because it was relevant to the state of mind of the Defendant; it was relevant to show his intent; it was relevant for the purpose of showing purpose and it was relevant for giving the Jury the flavor and a feeling for the situation that existed between the parties. * * * It was made in connection with the adoption proceedings. It was connected to his * * * motive, to stop an adoption proceeding through force and intimidation and strong-arm tactics."

Coleman did not testify at his trial, and other than the hearsay statement to his father, no testimony supported his alibi. A manager of a bar in Lyman, Wyoming, which is near the place where the property was damaged, testified that Coleman was in that bar during the afternoon of January 2, 1986, returned around 7:00 P.M. and stayed there until 1:30 A.M. on the morning of January 3, 1986.

While Coleman argues reversible error with respect to the...