Counts v. State, S–11–0160.

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBURKE
Citation277 P.3d 94,2012 WY 70
PartiesChristopher Ray COUNTS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Docket NumberNo. S–11–0160.,S–11–0160.
Decision Date22 May 2012

277 P.3d 94
2012 WY 70

Christopher Ray COUNTS, Appellant (Defendant),
The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0160.

Supreme Court of Wyoming.

May 22, 2012.

[277 P.3d 98]

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri Geringer, Senior Assistant Attorney General. Argument by Ms. Geringer.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Christopher Ray Counts was convicted of aggravated burglary and kidnapping. He raises several issues on appeal, but we find no reversible errors in the district court proceedings. We affirm.


[¶ 2] Mr. Counts presents these issues:

1. Did the court abuse its discretion by refusing to admit complete documents and recordings and by admitting altered documents?

2. Did the court abuse its discretion by denying Mr. Counts the right to cross-examine and impeach the witness against him in violation of his constitutional rights?

3. Did the court abuse its discretion in denying the motion for a bill of particulars?

4. Did the court improperly instruct the jury?

5. Was the verdict inconsistent?

6. Was there sufficient evidence to support the verdict?


[¶ 3] Mr. Counts' girlfriend, BP, lived with her children and parents in the parents' home. BP's bedroom was on the lower level of the house. On the evening of July 15, 2010, Jared Gilstrap and Dustin Thomas were planning to go to the county fair with BP. She had known Mr. Gilstrap since high school, and Mr. Thomas was his cousin. BP was not ready when they arrived, so they went into the house to wait. A few minutes later, they heard Mr. Counts begin pounding on one of the windows, calling loudly for BP to let him in to get his cell phone charger. When BP did not respond, Mr. Counts walked around the house, shouting and pounding on windows and the back door. His activities were loud enough to draw the attention of neighbors inside their own homes. One neighbor testified that Mr. Counts sounded “Angry. Very angry.” Three of BP's neighbors called the police.

[277 P.3d 99]

[¶ 4] Mr. Gilstrap and Mr. Thomas testified that BP “freaked out” and became “frantically scared.” She shut off the lights in the house, and positioned herself where she could escape out the back door if Mr. Counts came in the front, or out the front door if he came in the back. BP, Mr. Gilstrap, and Mr. Thomas soon heard a crash at the back door and the sound of breaking glass and wood. As Mr. Counts entered the back door, BP ran out the front. Mr. Gilstrap and Mr. Thomas testified that Mr. Counts was carrying a knife, and that as he passed them, he said, “I warned you once, bitch.”

[¶ 5] BP went out the front door and ran toward a neighbor's house, then tried to hide under a parked pickup. Mr. Counts ran after her, grabbed her by the hair and neck, and dragged her back toward her house. BP was “screaming” and “begging” for help. When Mr. Counts got BP back to her house, he told Mr. Gilstrap and Mr. Thomas to go, and slammed the front door as they exited. They heard thuds and loud screams in the house behind them.

[¶ 6] According to BP, Mr. Counts then forced her downstairs into her room, where he threw her on the bed and choked her while cursing and calling her names. He closed and locked the door to the room, and stood in front of it to prevent her from leaving. Mr. Counts hit her, choked her, and threw objects at her. After about an hour, Mr. Counts calmed down, and BP told him she would take the blame for the broken back door. Mr. Counts tied an electric cable around BP's waist to keep her from escaping, and the two went upstairs to see if the door could be fixed. They decided it could not, and returned to her room.

[¶ 7] The police had arrived by this time, and several officers surrounded the house. An officer called BP on the telephone, asking her and Mr. Counts to come out of the house. Mr. Counts refused. When the officer called a second time, BP handed the telephone to Mr. Counts. The officer told him that the house was surrounded, and eventually Mr. Counts agreed to come outside with BP. As the two went outside, they were met by law enforcement personnel, who took them both into custody.

[¶ 8] The officers found a knife in Mr. Counts' pocket. They investigated inside the house, and found a folding pocket knife under the mattress in BP's bedroom downstairs. They took statements from Mr. Gilstrap and Mr. Thomas. They also took a statement from BP. In later statements, however, BP either recanted her initial statement in certain respects or added significant information that she had not told the police that night. For example, in separate statements to the prosecutor's office and to the public defender's office, she stated that she, not Mr. Counts, had broken the door. She added that Mr. Gilstrap and Mr. Thomas were taking drugs that night and offered her some as well. She also stated that Mr. Counts did not have a knife that night.

[¶ 9] In August, the prosecution learned that Mr. Counts had been communicating with BP. He had been ordered not to contact her, but he used intermediaries or asked her to use a pseudonym. In one letter, for example, he told his cousin to tell BP that

if she doesn't want me to do life she needs to admit to kicking the door open herself earlier that day and she was afraid to tell the truth because she doesn't want her parents to find out because she is afraid of losing her children and her place to live and her stepdad is violent to her.

Mr. Counts also advised BP to admit to getting high with Mr. Gilstrap and Mr. Thomas, and asked her to convince Mr. Gilstrap to deny that Mr. Counts had a knife. In another letter, he asked BP to write a letter to the newspaper saying she had lied about what happened, and specifically saying that she had broken the back door and that Mr. Counts had no knife.

[¶ 10] Mr. Counts was charged with three felonies: aggravated assault and battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(iii) (LexisNexis 2009); aggravated burglary in violation of Wyo. Stat. Ann. § 6–3–301(c)(i); and kidnapping in violation of Wyo. Stat. Ann. § 6–2–201(a)(iii). Based on prior felony convictions, Mr. Counts was also charged as an habitual criminal subject to mandatory life imprisonment under Wyo. Stat. Ann. § 6–10–201(b)(ii). The jury returned a verdict finding

[277 P.3d 100]

Mr. Counts not guilty of the aggravated assault and battery charge, but guilty on the charges of aggravated burglary and kidnapping. During a subsequent phase of the trial, the jury also found Mr. Counts guilty under the habitual criminal statute. The district court ordered him to serve two concurrent life sentences. Mr. Counts filed this appeal.

Issue 1: Redacted documents and recordings

[¶ 11] Despite a no-contact order, Mr. Counts used intermediaries or pseudonyms to send letters to BP while he was incarcerated prior to trial. These letters included observations about her prior statements, and requests or advice about what she should say in the future. Prior to trial, the prosecution informed the district court that it intended to offer excerpts of the letters into evidence. Mr. Counts objected, claiming that the evidence was inadmissible. If the letters were admitted, however, Mr. Counts contended that they should be admitted in their entirety. The district court ruled that excerpts of the letters could be admitted into evidence, with certain inadmissible information redacted. On appeal, Mr. Counts continues to maintain that the letters should have been admitted or excluded in their entirety, and that the district court erred in admitting only excerpts.

[¶ 12] “Rulings on the admission of evidence are placed within the sound discretion of the trial court and, in order to challenge these rulings successfully on appeal, an appellant must show that the trial court committed a clear abuse of discretion.” Glenn v. Union Pacific R.R. Co., 2011 WY 126, ¶ 12, 262 P.3d 177, 182 (Wyo.2011). “A trial court's rulings on the admissibility of evidence are entitled to considerable deference, and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal.” Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo.2006). “Even when a trial court errs in an evidentiary ruling, we reverse only if the error was prejudicial. The appellant must show a reasonable probability that, without the error, the verdict might have been different.” Schmid v. Schmid, 2007 WY 148, ¶ 10, 166 P.3d 1285, 1288 (Wyo.2007).

[¶ 13] Mr. Counts' position is that the complete letters should have been admitted, without redaction, and that the district court erred in allowing only excerpts of the letters into evidence. In support of his contention, Mr. Counts relies upon W.R.E. 106:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Mr. Counts claims that the district court's redactions violated this rule because “[m]ore than half of the content of the letters [was] deleted” and “large parts of the letters were hidden from the jury.”

[¶ 14] We have referred to W.R.E. 106 as the “rule of completeness.” Lopez v. State, 2004 WY 103, ¶ 63, 98 P.3d 143, 158 (Wyo.2004). We have applied it, but without detailed analysis. See, e.g., Hayes v. State, 935 P.2d 700, 706 (Wyo.1997) (prosecution allowed to “present a more complete and accurate picture of the police report” after the defense “presented a partial and selective picture of what was in the report”). Both Mr. Counts and the State...

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