Harris v. State

• Decision Date: 03 March 2008
• Docket Number: No. S-07-0131.,S-07-0131.
• Citation: 2008 WY 23,177 P.3d 1166
• Parties: Lily M. HARRIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

177 P.3d 1166

2008 WY 23

Lily M. HARRIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0131.

Supreme Court of Wyoming.

March 3, 2008.

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

Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee: Bruce A Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Deputy Attorney General.

VOIGT, Chief Justice.

¶ 1 The appellant appeals from her burglary conviction, raising issues concerning the admission of uncharged misconduct evidence and prosecutorial misconduct. Finding no error, we affirm.

ISSUES

¶ 1. Whether the district court abused its discretion by admitting uncharged misconduct evidence?

2. Whether prosecutorial misconduct occurred when the prosecutor misstated the evidence in the State's proffer of the uncharged misconduct evidence?

3. Whether prosecutorial misconduct occurred when the prosecutor argued in rebuttal that the jury should ignore the State's burden of proof and should not penalize the community if the State had not met its burden of proof?

FACTS

¶ 3 The appellant was employed by Goodwill Industries, Inc., in Cheyenne, Wyoming. While working one evening, she set aside a number of clothing items for her own purchase. A later review of video surveillance showed that the appellant did not pay for all the items that she took. She was confronted by her supervisor on February 22, 2006, and her employment was terminated. Her response was, "I'll get you for this, you bitch."

¶ 4 The Goodwill store was burglarized on the night of May 1, 2006. Items taken included a safe, two pairs of roller blades, two or three bicycle helmets, two Apple i-pod accessories, one or two Remington razors, and a cell phone. Goodwill employees who viewed the surveillance video of the burglary identified the appellant as the burglar. The appellant was charged with burglary and convicted by a jury. Her sentence of three to five years incarceration was suspended and she was placed on probation fly four years.

DISCUSSION

Whether the district court abused its discretion by admitting uncharged misconduct evidence?

¶ 5 We review a district court's rulings on the admissibility of evidence, including uncharged misconduct evidence, for an abuse of discretion, and we will not reverse absent a clear abuse of such discretion. Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206 (Wyo.2007). "A trial court abuses its discretion when it could not have reasonably concluded as it did." Id. at ¶ 8, at 1206-1207. The admissibility of uncharged misconduct evidence is governed by W.R.E. 404(b):

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.

¶ 6 The district court is to determine the admission of proffered evidence under this rule by applying the following test:

[B]ecause uncharged misconduct evidence carries an inherent danger for prejudice, we have also adopted a mandatory procedure for testing its admissibility: (1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo.2002). "Admissibility under W.R.E. 404(b) is not limited to the purposes set forth in the rule, and we have adopted a liberal approach toward admitting uncharged misconduct evidence." Id.

¶ 7 Prior to trial, the State filed a Notice of State's Intent to Introduce Evidence That May. Be Considered 404(B) Evidence. The identified evidence was (1) the appellant had been terminated from employment with Goodwill for suspected theft; (2) at the time of her termination from employment, the appellant had threatened retaliation; and (3) as seen in the surveillance video of the burglary, the coat being worn by the burglar appeared to be identical to a coat allegedly stolen by the appellant at the time she was terminated. The State justified admission of this evidence as proof of res gestae, knowledge of the layout of the store, motive, and identity.

¶ 8 The district court appropriately conducted a pre-trial hearing to determine whether the State's uncharged misconduct evidence would be admitted. In doing so, the court required the State to analyze in detail its proferred evidence under the Gleason factors set forth above (see supra ¶ 6), and it allowed the appellant's counsel to challenge each of those factors. In the end, the court declared the evidence, admissible, finding, it relevant to prove both motive and identity. The court did, however, limit the extent to which the State could characterize the appellant's conduct at the time of her termination as being a theft.

¶ 9 In her appellate brief, the appellant contends, first, that evidence of prior criminal acts is more likely than any other evidence to be unfairly prejudicial to a defendant. See Williams v. State, 2004 WY 117, ¶ 8, 99 P.3d 432, 436 (Wyo.2004). Second, the appellant alleges that the evidence admitted was not the same as the evidence proferred. Specifically, the appellant notes that only one of the State's witnesses identified the appellant as being the burglar in part by describing the burglar's coat as being identical to the one allegedly stolen when the appellant was terminated. Other Goodwill employee witnesses identified the person in the surveillance video as being the appellant by recognizing her hair style, her stocking cap, her clothing, and her boots, and by recognizing the coat as one she customarily wore, rather than the one allegedly stolen.

¶ 10 We cannot agree that the district court abused its discretion in admitting this uncharged misconduct evidence. The court performed an exhaustive pre-trial analysis of the evidence, applied the appropriate test, limited its admissibility to prove particular matters, and limited the extent to which the State could emphasize the alleged theft underlying the termination. Under the particular facts of this case, the alleged theft of the coat, the resultant termination, and the alleged threat of retaliation, were especially probative of motive and identity, and the district court reasonably could have concluded that the evidence was more probative than prejudicial.¹ Furthermore, the district court gave the jury the following limiting instruction in regard to the evidence:

THE COURT: Before we go there, counsel, I need to give the jury a limiting instruction. Now, you've heard some testimony about the facts and circumstances surrounding the firing of the defendant, Lily Harris. In regard to that testimony I need to advise you it has a very limited purpose. You cannot use that to prove the character of the defendant. The State isn't trying to get that in for that purpose, or that the defendant acted in conformity with that.

It is admissible only for a very limited purpose, that is to show the motive at the time of this claimed burglary, that there might be a motive involved for burglarizing this business. It can only be used for that purpose. Now, whether or not you believe that this evidence shows that such a motive was proven is for you solely to determine. That is your call to determine whether or not this evidence of firing and circumstances surrounding it points to motive for this claimed burglary. Thank you.

Clearly, this instruction limited the jury's permissible use of the evidence even beyond the court's pretrial order. As instructed, the jury could only consider the evidence to such extent that it might prove that the appellant had a motive to burglarize the Goodwill store. This may be a distinction without a difference, however, inasmuch as proof of motive generally is intended to prove identity. Mitchell v. State, 865 P.2d 591, 596 (Wyo.1993). In any event, the jury was given this limiting instruction, as required by Gleason, and we presume that juries follow the court's instructions. Brown v. State, 953 P.2d 1170, 1177 (Wyo.1998); Ramirez v. State, 739 P.2d 1214, 1220 (Wyo.1987).

Whether prosecutorial misconduct occurred when the prosecutor misstated the evidence in the State's proffer of the un-charged misconduct evidence?

¶ 11 This allegation is a follow-up to the prior allegation. The appellant contends that the prosecutor misled the district court during the motion hearing by proffering that the uncharged misconduct evidence would help identify the appellant as the burglar by showing that the burglar was wearing the coat allegedly taken by the appellant when she was fired. The appellant finds this proffer to have been misleading and, therefore prosecutorial misconduct, because as it turned out at trial, only one of the State's witnesses identified the appellant as the burglar based upon that coat.

¶ 12 Where there has been an objection at trial, we review claims of prosecutorial misconduct under a harmless error standard. Condra v. State, 2004 WY 131, ¶ 7, 100 P.3d 386, 389 (Wyo.2004). Both W.R.Cr.P. 52(a) and W.R.A.F. 9.04 provide that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" Where there has not been an objection at trial, we review claims of prosecutorial misconduct under a plain error standard. Id., 2004 WY 131, ¶ 6, 100 P.3d at 389. Fundamentally, both ...