Garrison v. State

• Citation: 409 P.3d 1209
• Decision Date: 02 February 2018
• Docket Number: S-17-0130
• Parties: Mark Alan GARRISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

409 P.3d 1209

Mark Alan GARRISON, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

S-17-0130

Supreme Court of Wyoming.

February 2, 2018

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel; Kirk A. Morgan^* , Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; James M. Causey, Senior Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

409 P.3d 1211

¶1] A jury convicted Mark Alan Garrison on a charge of first-degree arson for setting fire to his estranged wife's trailer home. Mr. Garrison alleges that the trial court abused its discretion when it admitted evidence of other acts, in violation of W.R.E. 404(b). We affirm.

ISSUE

[¶2] Mr. Garrison presents one issue, which we break into two components:

1. Was it plain error when the district court conducted its 404(b) Gleason analysis after the disputed 404(b) evidence had been admitted and after the close of evidence at trial?

2. Did the district court abuse its discretion when it admitted evidence of other acts at trial?

FACTS

[¶3] With money she inherited from her mother, Ms. Hendricks purchased a mobile home, furnished the mobile home and bought a 2001 Chevrolet Silverado pickup, a 1999 Dodge Ram pickup, and a 1974 Reinell boat. Shortly thereafter, in early 2011, Ms. Hendricks and Mr. Garrison married. By the fall of 2013, and after a series of violent episodes, the couple had become estranged. In November 2013, Ms. Hendricks obtained a protection order which granted her the use of the trailer home, granted Mr. Garrison the use of the 1999 Dodge Ram, and prohibited Mr. Garrison from contacting Ms. Hendricks.

[¶4] During a snowstorm on the evening of December 20, 2013, Ms. Hendricks' mobile home was consumed by fire. That evening she had gone to pick up her nephew from work; her cat and Mr. Garrison's bird were inside the home; and a dog was tethered to the front porch. Paula Houlberg, Ms. Hendricks' neighbor, testified that she saw the fire in its early stages on the front porch of the home and that it spread "like something had been poured ... following a trail" to the front door and then to other parts of the home. It was later determined that gasoline appeared to have been poured on the porch and inside the front door of the trailer. The fire investigator eliminated other potential sources for the fire and concluded that gasoline inside the front door was likely the origin of the fire. A video from the Houlbergs' security camera revealed that shortly before the fire, a late 1990's Dodge Ram truck drove by, a man walked toward the mobile home; later, the same man ran away from the home with the dog, and a glow from the fire reflected on a nearby camper and window.

[¶5] Mr. Garrison's friend testified that he had loaned Mr. Garrison his gas can a couple of days prior to the fire, and that on the day of the fire it was in the back of Mr. Garrison's truck with about an inch of gas in it. He testified that when Mr. Garrison returned to his friend's house the next day, the gas can did not have as much gas in it and was "pretty close" to empty.

[¶6] Mr. Garrison was charged with one count of first-degree arson, in violation of Wyo. Stat. Ann. 6-3-101(a) and (b)(i). Later, the State amended the charge to reflect an enhanced penalty due to prior convictions.

[¶7] Prior to trial, Mr. Garrison sought notice of the State's intent to use 404(b) evidence. The State filed its notice of intent to offer evidence pursuant to W.R.E. 404(b), identifying other acts it contended were admissible under the rule. The proposed evidence consisted of ten separate incidents:

1. On October 30, 2013, Mr. Garrison went to Ms. Hendricks' workplace, threatened to destroy her belongings, and took her truck.

[409 P.3d 1212

2. At the November 8, 2013 circuit court hearing on the protection order, on his way out of the courtroom, Mr. Garrison pointed at Ms. Hendricks and said, "you're mine" and threatened to "[k]ick [her nephew's] ass."

3. Prior to the fire, Mr. Garrison used a golf club to destroy knickknacks, and to strike the dog. He shattered Ms. Hendricks' glass coffee table, covering her with shards of glass.

4. On several occasions in November of 2013, Mr. Garrison moved a dresser in front of the bedroom door, preventing Ms. Hendricks' exit.

5. During the summer of 2013, Mr. Garrison forced Ms. Hendricks to the floor of the truck he was driving, hit her in the head, yelled at her, and refused to let her return to the passenger seat for over 45 minutes.

6. After the protective order was in place and shortly before the fire, Mr. Garrison entered Ms. Hendricks' home and sexually assaulted her.

7. On December 9, 2013, Mr. Garrison repeatedly called Ms. Hendricks from several local stores, in violation of the protective order. (Mr. Garrison pled guilty to this violation of the protective order.)

8. On January 29, 2014, Mr. Garrison called Ms. Hendricks multiple times and threatened to harm her and a friend she was visiting, in violation of the protective order. (Mr. Garrison pled guilty to this violation of the protective order.)

9. On February 2, 2014, Mr. Garrison again made numerous phone calls to Ms. Hendricks, leaving seven voice mails. (Mr. Garrison pled guilty to this violation of the protective order.)

10. On March 2, 2014, Mr. Garrison called Ms. Hendricks over 128 times, and threatened to harm her; he called her son and threatened him as well. (Mr. Garrison also pled guilty to these violations of the protective order.)

The defense filed its response, and prior to trial, the district court conducted a hearing on the admissibility of these instances of misconduct. At the conclusion of the hearing, the district court provided a "framework" for its ruling. The court announced that incidents 4 and 6 were inadmissible, as were portions of incidents 3 (the portion relating to hitting the dog with the golf club), 5 (Mr. Garrison's possession of a knife), and 10 (threats against Ms. Hendricks' son). The court stated that the other instances were admissible to "demonstrate the relationship of the parties" and for "intent, malice, identity, and motive." The court added that it would provide a more detailed analysis if the case went to trial.

¶8] In his opening statement at trial, defense counsel stated that Ms. Hendricks had accused Mr. Garrison of many horrible things, including rape and locking her in her bedroom (identified as incidents 4 and 6, above, which had previously been excluded). When the court questioned counsel about opening the door to previously excluded other acts evidence, counsel indicated that his strategy was to show that Ms. Hendricks was exaggerating. Because of the new strategy, defense counsel agreed that the State could pursue questioning on the two previously excluded incidents. After the close of evidence, the court placed a more detailed 404(b) ruling on the record (the Gleason analysis). No limiting instruction on the 404(b) evidence was requested or provided to the jury.

[¶9] The jury convicted Mr. Garrison of one count of first-degree arson for setting his wife's mobile home on fire. Mr. Garrison timely appeals, arguing that the district court abused its discretion by allowing the uncharged misconduct evidence to be presented to the jury and by reserving its Gleason analysis until after all the evidence had been admitted at trial.

DISCUSSION

[¶10] Mr. Garrison contends that the district court improperly announced its findings as to the 404(b) evidence after the conclusion of trial. He also argues that the district court abused its discretion when it admitted evidence of the other acts. We address both arguments below.

[409 P.3d 1213

I. Was it plain error when the district court conducted its 404(b) Gleason analysis after the disputed 404(b) evidence had been admitted and after the close of evidence at trial?

¶11] W.R.E. 404(b) provides:

(b) 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.

In Gleason , we set forth factors that the district court must examine to determine the admissibility of 404(b) evidence, and we required the court to articulate its findings. Gleason v. State , 2002 WY 161, ¶ 30, 57 P.3d 332, 343 (Wyo. 2002).¹

[¶12] Although Mr. Garrison's pretrial demand for notice of the State's intent to introduce other acts evidence under W.R.E. 404(b) is treated as a timely objection to the introduction of the evidence, it will not preserve an objection regarding the timing of the Gleason analysis. Hodge v. State , 2015 WY 103, ¶ 8, 355 P.3d 368, 371 (Wyo. 2015) ; Vigil v. State , 2010 WY 15, ¶ 9, 224 P.3d 31, 35 (Wyo. 2010). In Vigil , the appellant challenged the timing of the 404(b) hearing, but had not raised the issue in the trial court. Id . We held that because no objection...