Hart v. State

• Court: Wyoming Supreme Court
• Writing for the Court: VOIGT, Justice.
• Citation: Hart v. State, 2002 WY 163, 57 P.3d 348 (Wyo. 2002)
• Decision Date: 29 October 2002
• Docket Number: No. 01-247.,01-247.
• Parties: Robert A. HART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

57 P.3d 348

2002 WY 163

Robert A. HART, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-247.

Supreme Court of Wyoming.

October 29, 2002.

Carol Seeger of Carter Law Office, Gillette, WY, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] Robert A. Hart (Hart) entered a conditional plea of nolo contendere to one count of taking indecent liberties with a minor, reserving his right to appeal the district court's pretrial ruling on the admissibility under W.R.E. 404(b) of certain uncharged misconduct evidence. We affirm.

ISSUE

[¶ 2] The single issue before this Court is the propriety of the district court's ruling that certain uncharged misconduct evidence would be admissible at trial.

FACTS

[¶ 3] On November 14, 2000, a sixteen-year-old girl (hereinafter C.B.) reported to the Moorcroft police that during a car trip from Rapid City, South Dakota, to Moorcroft on September 10, 2000, Hart had fondled her thighs, breasts, and vagina, and that he had digitally penetrated her vagina. Hart is the husband of C.B.'s great-aunt, who was present in the car's back seat with Hart and C.B. Hart's wife was sleeping during the alleged incident. C.B.'s grandfather and great-uncle occupied the front seat. Hart was charged with one count of taking indecent liberties with a minor, in violation of Wyo. Stat. Ann. § 14-3-105 (LexisNexis 2001).

[¶ 4] On May 9, 2001, Hart filed a request for a pretrial hearing to determine the admissibility under W.R.E. 404(b) of any uncharged misconduct evidence.² On the day of the hearing on the motion, the State filed a Notice of 404(b) Evidence, in which it listed four witnesses who would testify about prior uncharged misconduct by Hart. Those witnesses were:

1. P.R. A thirty-eight-year-old cousin of C.B.'s mother would be called to testify that Hart had molested her from her earliest childhood memories until she was about ten years old. The molestations, which consisted of Hart fondling her breasts and vaginal area with his hands and penis, usually took place during times when P.R. was staying overnight at Hart's residence, but also occurred at her home and on a fishing trip. Hart's wife was often present, either sleeping in another room or in the same room, but unaware of what was happening.

2. T.L. A thirty-nine-year-old cousin of C.B.'s mother would be called to testify that Hart had molested her from the time she was ten years old until she was thirteen years old. As with P.R., the molestations, which consisted of Hart fondling and penetrating her with his hands and penis, would occur when T.L. stayed overnight at Hart's residence and Hart would come into her bedroom when he returned from working a swing or second shift. T.L. would also testify that she told her uncle, L.R., about the molestation.

3. L.R. L.R. was expected to testify that T.L. did, indeed, tell him at the time about the molestation, but that he did nothing about it because he did not believe her.

4. D.B. C.B.'s mother would be called to testify that when she was nine or ten years old, she was molested by Hart at Hart's residence in a manner and under circumstances similar to those described by P.R. and T.L.

[¶ 5] In a decision letter issued after the hearing, the district court ruled as follows:

In light of the nature of the particular allegations made against the Defendant, and given the nature and similarity of the proposed 404(b) evidence, specifically the testimony of [P.R.] and [T.L.], the court finds that the same should be admitted.

With regard to the proffered testimony of [L.R.] and [D.B.], the court reserves its ruling as the admissibility of the same hinges on trial developments.

[¶ 6] Subsequently, Hart's attorney filed a Request for Specific Findings of Fact and Conclusions of Law Relating to Admissibility of 404(b) Evidence, in which he argued that, in its decision letter, the district court (1) did not identify the purpose or purposes for which the proposed evidence was being admitted; and (2) did not analyze how the evidence was more probative than prejudicial. Without further hearing, the district court issued a second decision letter, the substantive portion of which is as follows:

As per Vigil v. State, 926 P.2d 351 (Wyo.1996) the test the court is to apply in gauging 404(b) submissions is the same as provided for under the comparable federal rule. Consequently, the court in making its analysis has looked to federal authorities as well as state authorities. Based upon all of the authorities, the court in the prior analysis determined, and should have stated that such evidence may be used to show:

1. Motive;

2. Intent and/or modus operandi;

3. Identification;

4. Plan or scheme; and,

5. Absence of mistake or accident.

In this case the allegations are that Defendant committed improper sexual acts against a minor. Moreover, the alleged act is to have been committed in the presence of other adults. The evidence noticed under 404(b) is remarkably similar. While the court is troubled by the remoteness in time issue, the offered witnesses are to testify that this same Defendant took sexual advantage of them when they were minor children. The circumstances of the proposed testimony is such that it appears that Defendant's actions against the 404(b) witnesses were very similar to the allegations made in the current action. All of the women are/were minors and relatives. Adults were present at the times of the alleged acts. Defendant is alleged to have operated in a fashion that would call the credibility of purported victims into question.

Given the circumstances of the proposed 404(b) witness[es] as presented at the hearing, the fact that they had no reason to communicate with each other regarding this matter, the fact that at least one of them reported abuse as a child and was disbelieved, among other things, the court is of the opinion that the proposed testimony is reliable enough to be considered by the trier of fact for the purposes stated herein. The fact that the proposed witnesses are now adults appears to the court to lend credence to the proposed testimony. Why would these two women, although related, essentially strangers, come forth after all of these years with stories of sexual abuse at the hands of Defendant? Why would these stories have so many similarities to the current allegations? Thus, under the test which this court has applied under Rule 403, the offered 404(b) testimony is more probative than prejudicial.

[¶ 7] Following this ruling, Hart and the State entered into a plea agreement wherein Hart entered a conditional plea of nolo contendere to the charged offense, but reserved his right under W.R.Cr.P. 11(a)(2) to appeal the district court's rulings under W.R.E. 404(b). Judgment was entered against Hart and, after a presentence investigation, he was sentenced to the custody of the Department of Corrections for a period of not less than thirty months and not more than seventy-two months. The sentence was suspended, however, under Wyo. Stat. Ann. § 7-13-107 (LexisNexis 2001), and Hart was given one year in the county jail, to be followed by six years of supervised probation. Hart timely appealed.

DISCUSSION

[¶ 8] Where an objection has been lodged at trial, as in the instant case, the standard for review of rulings under W.R.E. 404(b) is abuse of discretion. Johnson v. State, 936 P.2d 458, 462 (Wyo.1997) (quoting Sturgis v. State, 932 P.2d 199, 201 (Wyo. 1997)). The rulings of the district court are entitled to considerable deference on appeal, and will not be reversed so long as there exists a legitimate basis for the ruling. Brower v. State, 1 P.3d 1210, 1213 (Wyo. 2000). In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo.2002), we recently reviewed Wyoming's uncharged misconduct evidence jurisprudence. We will not repeat that discussion here. Suffice it to say that, while continuing to adhere to the test for the admissibility of such evidence found in Vigil v. State, 926 P.2d 351 (Wyo.1996), we did in Gleason, 2002 WY 161, ¶¶ 26-30,57 P.3d at 332, require trial courts in the future to ensure that the record reflects not only specific identification of the proper purpose or purposes for which such evidence is being admitted, but also sufficient analysis of probativeness and prejudicial effect to allow for appellate review.³ Because the instant case was heard before Gleason was published, we will not herein apply that case's more demanding standards.

[¶ 9] The State's notice of uncharged misconduct evidence did not set forth any proposed purpose for the testimony. During the hearing, the prosecutor argued that the uncharged misconduct evidence was probative of motive, intent, identity, absence of mistake or accident, and credibility of the victim. In addition, although he did not use the phrase modus operandi or the words plan or scheme, he did argue for the probative value of the "pattern" of Hart's conduct. In its second decision letter, the district court found the evidence admissible to prove motive, intent and/or modus operandi, identification, plan or scheme, and absence of mistake or accident. We must assume, because that is all the information we have, that the State would have been allowed to argue, and the jury would have been instructed, that the testimony of the four uncharged misconduct evidence witnesses could be considered as proof of all the purposes listed by the district court.

[¶ 10] Wyoming has a long line of cases in which similar uncharged misconduct has been admitted in child sexual abuse and indecent liberties cases, most often as probative of motive or intent. See Gleason, 2002 WY 161, ¶ 19, 57 P.3d at 332, slip op. at 7. For instance, in Brown v. State, 736 P.2d 1110, 1113 (Wyo.1987), testimony by the...