Heinemann v. State

• Court: Wyoming Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: Heinemann v. State, 12 P.3d 692 (Wyo. 2000)
• Decision Date: 26 October 2000
• Docket Number: No. 99-143., No. 99-135
• Parties: Anthony L. HEINEMANN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). Anthony L. Heinemann, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).

12 P.3d 692

Anthony L. HEINEMANN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

Anthony L. Heinemann, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).

Nos. 99-135, 99-143.

Supreme Court of Wyoming.

October 26, 2000.

Representing Appellant: Sylvia L. Hackl, Public Defender; Donna D. Domonkos, Appellate Counsel; and John J. DeLeon, Legal Intern.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director Prosecution Assistance Program; Ericka Smith and Stacy Martinez, Student Interns.

Before LEHMAN, C.J., and THOMAS, MACY,¹ GOLDEN, and HILL, JJ.

THOMAS, Justice.

The novel question that Anthony Lee Heinemann (Heinemann) presents, in his appeals from convictions and sentences in two related cases,² is the efficacy of his prior conviction in Colorado for attempted first-degree sexual assault to invoke the enhanced sentencing provisions of Wyo.Stat.Ann. § 6-2-306(d) (Lexis 1999). Heinemann also argues error attributable to the trial court's admission into evidence, pursuant to W.R.E. 404(b), of prior sexual assaults. We hold that attempted first-degree sexual assault, as defined by Colorado statutes, is a qualifying prior offense for purposes of sentence enhancement under Wyo.Stat.Ann. § 6-2-306(d). We also are satisfied that the trial court did not err with respect to the evidence of prior sexual assaults admitted at Heinemann's trials. We affirm the Judgment and Sentence of the Court entered in the trial court in both cases.

Heinemann, in the Brief of Appellant, filed in his behalf in the consolidated appeals, states the issues in this way:

I. Whether inclusion of attempted sexual assault for sentencing enhancement via W.S. 6-3-306 is error?

II. Did the Court deprive Appellant of due process and a fair trial when it failed to establish 404(b) evidence by clear and convincing evidence?

III. Was Appellant's due process rights and right to a fair trial violated when 404(b) evidence was impermissibly allowed at trial?

The Brief of Appellee, filed for the State, restates the issues in this way:

I. Did the district court in Docket 24, No. 491, properly sentence appellant to life without parole under the provisions of Wyo.Stat. § 6-2-306(d)?

II. Was the district court required to make findings that the prior acts of appellant, admitted under Wyoming Rule of Evidence 404(b), were established by clear and convincing evidence?

III. Did the district court properly admit evidence of prior acts of appellant under Wyoming Rule of Evidence 404(b)?

On May 20, 1997, four junior high school students were walking home from school. They encountered Heinemann, who was in a maroon car, in the parking lot of a video store. The four minors, A.T., a thirteen year-old female; Z.K., a twelve year-old male; and T.H. and T.T., both fourteen year-old females, either requested or were offered a ride by Heinemann. After asking the students if they liked to party, and receiving an affirmative answer from A.T., who said she liked tequila, Heinemann stopped at a liquor store where he purchased some tequila, wine coolers and peppermint schnapps. They then picked up some lemons, and proceeded to Heinemann's apartment. At his apartment, they listened to music, and the students drank some of the alcoholic beverages. A.T. became intoxicated, and she went with Z.K. into the back bedroom. While they were out of the room, Heinemann asked T.H. and T.T. to play his version of strip poker in which the losers would remove clothing and possibly have sex. The two girls declined, even after Heinemann offered them twenty dollars to play. A.T., quite intoxicated, came out of the bedroom, and lost her balance while talking to a friend on the telephone. Heinemann held her up from behind, placed his hands under her shirt and brassiere, and rubbed her breasts until Z.K. told him to stop.

The circumstances leading to the second charge occurred on October 16, 1997. On that occasion, Heinemann offered a ride to A.G., a female high school student aged eighteen. A.G. was across the street from her high school smoking a cigarette. Heinemann, driving a red tone car, offered to take A.G. to buy more cigarettes. Instead, he drove to his apartment, and invited A.G. to come in for a little bit. Once inside, Heinemann mixed two alcoholic drinks, and offered one to A.G. When she declined, Heinemann tried to force A.G. to take the drink, and spilled it on her.

Heinemann then proposed a card game, and told A.G. that if she won, he would take her back to school, but if he won, she would remove an article of clothing. A.G. reluctantly agreed. They each picked a card, and Heinemann told A.G. that he had won. He told her she had to take off a piece of clothing, and when she balked, he forcibly removed her t-shirt. Heinemann then proposed that they play another hand, promising to return her shirt and take her back to school if she won. Heinemann declared himself the winner of the second game, and demanded A.G.'s pants, which he forcibly removed when she resisted again. He then suggested a third round of the card game, still promising to return A.G.'s clothing and take her back to school if she won. Predictably, Heinemann won again, and he demanded A.G.'s brassiere, which he forcibly removed when she resisted.

Heinemann, after removing his own clothes, began kissing A.G.'s breasts, and told her he would use a condom. A.G. kicked Heinemann, dressed hastily, and attempted to leave the apartment. Heinemann grabbed her, and pulled her back, telling her she was not going anywhere. A.G. fell to the floor, hitting her head on a coffee table. She again attempted to leave, this time getting a few steps beyond the door, when Heinemann grabbed her hair, pulled her back into the apartment, and began choking her. He then apparently decided to end the assault, and offered to take A.G. back to school. Heinemann put his clothes back on, and at that point in time, a police officer, summoned by a neighbor, arrived.

The events of May 20, 1997, involving the four minors, resulted in Heinemann being charged in the District Court for the First Judicial District, in and for Laramie County, in Docket 24, No. 474, with one count of taking indecent liberties with a minor and one count of furnishing alcohol to minors. He entered pleas of not guilty to both counts. In response to a motion from Heinemann, the trial court ordered the State to give notice if it intended to introduce evidence under W.R.E. 404(b). Heinemann also filed a motion in limine, seeking to prohibit the State from introducing evidence of prior sexual assault allegations or convictions.

Heinemann's assault on A.G. was addressed by charging him with one count of attempted first-degree sexual assault and one count of third-degree sexual assault in the District Court for the First Judicial District, in and for Laramie County, in Docket 24, No. 491. He entered pleas of not guilty to both counts. As in the other case, the trial court ordered the State to provide notice of its intent to introduce evidence under W.R.E. 404(b). Heinemann again filed a motion in limine to prevent the State from using evidence of prior sexual assaults.

In response to Heinemann's motion in Docket 24, No. 474, the State filed notice of its intent to introduce, as W.R.E. 404(b) evidence, five separate instances of Heinemann's prior bad acts:

1. Evidence that, in 1988 in Colorado, the Defendant engaged in similar conduct as that described by A.T. with [S.L.], a sixteen (16) year old. [S.L.] was approached by the Defendant in his vehicle, was given a ride, was given alcohol, and was forced to perform sexual acts before he would take her home.

2. Evidence that, in 1988 in Colorado, the Defendant engaged in similar conduct and use of force as that described by A.T. with [M.M], his roommate's girlfriend. She was home alone with the Defendant when he turned off the light, came up behind her, shoved her into the door, pressed his body into hers, and attempted to kiss her neck. She pushed him away and ran upstairs to her bedroom. The defendant pursued her into the bedroom, grabbed her by the arm and pulled her sweater off, grabbing her breast in the process. He then pushed her down onto the bed where she was able to kick him in the stomach. He left for [a] moment, but returned and started pushing her around again. She was able to dial 911, but the Defendant hung up the phone before she could speak. [M.M.] then ran downstairs to use the phone in the kitchen, but the Defendant tackled her as she reached the phone. Police arrived shortly thereafter. Police found an open prophylactic on the coffee table that the Defendant intended to use.

3. Evidence that, in May 1997, the Defendant engaged in similar conduct as that described by A.T. with [A.G.], an eighteen (18) year old. [A.G.] was approached by the Defendant in his vehicle, was given a ride to his apartment, was offered alcohol, and forced to submit to sexual contact and attempted sexual intrusion.

4. Evidence that, in 1995 in Cheyenne, Wyoming, the Defendant engaged in similar conduct as that described by A.T. with [R.F.], a seventeen (17) year old neighbor. He approached her and offered her alcohol if she would come to his apartment. When she refused and began to walk away, the Defendant grabbed her by the arm and pulled her towards him. She pulled away and left.

5. Evidence that, in August in Cheyenne, Wyoming, the Defendant engaged in similar behavior as that described by A.T. with M.L., age fifteen (15). M.L. was walking her dog when the Defendant pulled up beside her in his vehicle and said hello. She said hi in return and kept on walking. The Defendant continued to drive along beside her waving a twenty (20) dollar bill at her. She then ran to a friend'[s] home. The Defendant continued to drive by the home of her friend until the friend's mot

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