Hodge v. State

• Decision Date: 12 August 2015
• Docket Number: S–14–0205.,Nos. S–14–0204,s. S–14–0204
• Citation: 355 P.3d 368,2015 WY 103
• Parties: Grady Leroy HODGE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

355 P.3d 368

2015 WY 103

Grady Leroy HODGE, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

Nos. S–14–0204

S–14–0205.

Supreme Court of Wyoming.

Aug. 12, 2015.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jessica Y. Frint, Assistant Attorney General. Argument by Ms. Frint.

Before BURKE, C.J., and HILL, KITE^* , DAVIS, and FOX, JJ.

Opinion

FOX, Justice.

[¶ 1] Grady Leroy Hodge was convicted of two counts of first-degree sexual abuse of a minor for sexually assaulting his teenage daughter. Prior to trial, the district court ruled certain uncharged misconduct evidence admissible, including testimony presented by an older daughter. On appeal, Mr. Hodge argues that the district court abused its discretion by allowing the evidence. After trial, Mr. Hodge's wife discovered some pictures that may have assisted in Mr. Hodge's defense. Mr. Hodge's attorney moved for a new trial pursuant to W.R.Cr.P. 33(c), which the district court denied. Mr. Hodge now alleges that his trial attorney was ineffective for not uncovering the evidence in time to be used at trial. Finally, Mr. Hodge alleges that his due process rights were violated when his appeal was delayed due to the court reporter's untimely filing of the transcripts from the district court proceedings. We affirm.

ISSUES

[¶ 2] 1. Did the district court abuse its discretion in admitting uncharged misconduct evidence at trial?

2. Did Mr. Hodge's trial counsel provide ineffective assistance?

3. Were Mr. Hodge's due process rights violated as a result of the court reporter's untimely filing of the transcripts from the proceedings below?

FACTS

[¶ 3] Mr. Hodge was convicted of two counts of sexual abuse of a minor in the first degree for sexually assaulting his teenage daughter, R.H., on two separate occasions.¹

Aside from the dates, the language included in the Information is identical for each count:

On or between the 1st day of May, 2012, and the 31st day of August, 2012,^[ [[^{2 ]} [Mr. Hodge] did, at a time when he was eighteen (18) years of age or older, inflict sexual intrusion on a victim; namely: R.H., who was less than eighteen (18) years of age, and while being the victim's legal guardian or an individual specified in W.S. 6–4–402, contrary to W.S. § 6–2–314(a)(ii) —SEXUAL ABUSE OF A MINOR IN THE FIRST DEGREE[.]

[¶ 4] During discovery, Mr. Hodge filed a demand for notice of the State's intent to introduce evidence under W.R.E. 404(b). The State complied and filed its notice outlining the evidence that it intended to introduce, including prior incidents of sexual abuse R.H. suffered at the hands of Mr. Hodge while the family was living in Texas and after they moved to Wyoming; and prior acts of sexual abuse committed by Mr. Hodge against his older daughter, C.T., which also occurred while the family was living in Texas. The district court held a hearing and issued a lengthy decision letter allowing the State to introduce much, but not all, of the evidence outlined in its notice.

[¶ 5] As part of his trial strategy, Mr. Hodge attempted to demonstrate that one of the incidents of sexual assault charged could not have occurred within the time period asserted. This strategy revolved around a table made by Mr. Hodge and R.H. R.H. testified that one of the charged incidents occurred while Mr. Hodge and R.H. were working on a table they were making for R.H.'s mother (Ms. Hodge) in the family's shed. At trial, Mr. Hodge's attorney elicited testimony from various witnesses that the table had been finished before the dates of the charged conduct. During her testimony, Ms. Hodge produced a picture of the alleged table when it was finished, which was dated prior to the charged conduct. After the jury convicted Mr. Hodge, Ms. Hodge claims to have uncovered multiple additional pictures on the family computer demonstrating that the table had, in fact, been finished and placed in the family's home prior to the charged conduct. Mr. Hodge moved for a new trial pursuant to W.R.Cr.P. 33(c) on the basis of the newly discovered evidence. The district court denied the motion, finding that Mr. Hodge failed to establish each of the factors required to justify a new trial.

[¶ 6] Mr. Hodge filed his first notice of appeal on October 11, 2013. In a letter bearing the same date, Mr. Hodge's counsel requested that the court reporter prepare and file the transcripts for “all proceedings that you may have reported in this matter.” At the time Mr. Hodge filed his notice of appeal, his motion for a new trial was still pending in the district court. Upon denial of his motion for a new trial, Mr. Hodge filed another notice of appeal on December 13, 2013, and a certification concerning the transcript on December 18, 2013. The court reporter filed three requests for an extension of time to file the transcripts—the first two requested ninety-day extensions and the third requested a thirty-day extension. The district court granted all three extensions. On August 7, 2014, the court reporter filed a notice stating that all of the transcripts had been filed.

[¶ 7] On appeal, Mr. Hodge argues that the district court abused its discretion by allowing the uncharged misconduct evidence to be presented to the jury. He also argues that he received ineffective assistance of counsel due to his trial attorney's failure to uncover the pictures in time to be used at trial, and that his due process rights were violated by the court reporter's delay in filing the transcripts for the appeal.

DISCUSSION

I. Did the district court abuse its discretion in admitting uncharged misconduct evidence at trial?

[¶ 8] We review challenges to the admission of evidence for an abuse of discretion when an objection has been lodged. Cardenas v. State, 2014 WY 92, ¶ 7, 330 P.3d 808, 810 (Wyo.2014). “[W]here a defendant files a pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b), the same shall be treated as the making of a timely objection to the introduction of the evidence.” Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo.2002). Mr. Hodge filed a demand prior to trial. We therefore review the district court's decision to admit the uncharged misconduct evidence for an abuse of discretion. A trial court's ruling on the admissibility of uncharged misconduct evidence is 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.’ ” Cardenas, 2014 WY 92, ¶ 7, 330 P.3d at 810 (quoting Gonzalez–Ochoa v. State, 2014 WY 14, ¶ 11, 317 P.3d 599, 603 (Wyo.2014) ). “A trial court abuses its discretion when it could not have reasonably concluded as it did.” Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206–07 (Wyo.2007). “Even if a district court abused its discretion in admitting uncharged misconduct evidence, we must also determine whether the error was prejudicial.” Mersereau v. State, 2012 WY 125, ¶ 17, 286 P.3d 97, 106 (Wyo.2012). “ ‘Error is prejudicial if there is a reasonably possibility that the verdict might have been more favorable to the defendant if the error had not been made.’ ” Id. (quoting Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo.2010) ).

[¶ 9] W.R.E. 404(b) provides, in pertinent part:

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[.]

This Court has established a “mandatory procedure” for testing the admissibility of uncharged misconduct evidence pursuant to W.R.E. 404(b) :

1) [T]he evidence is offered for a proper purpose; 2) the evidence is relevant; 3) the probative value of the evidence is not substantially outweighed by its potential for unfair prejudice; and 4) upon request, the trial court instructs the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Vigil v. State, 926 P.2d 351, 357 (Wyo.1996), as modified by Howard v. State, 2002 WY 40, ¶¶ 22–23, 42 P.3d 483, 490–91 (Wyo.2002). Mr. Hodge only argues on appeal that the district court abused its discretion when it determined that the probative value of the uncharged misconduct evidence was substantially outweighed by its potential for unfair prejudice. In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo.2002), we further refined our Vigil test and required trial courts to consider specific factors when balancing probative value versus unfair prejudice.

In determining the probative value of prior bad acts evidence, the trial court should consider the following factors:

1. How clear is it that the defendant committed the prior bad act?

2. Does the defendant dispute the issue on which the state is offering the prior bad acts evidence?

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged crime and the prior bad act?

... The trial court should weigh these additional factors against the probative value of the evidence:

1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.

2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.

3. The similarity between the charged crime and the prior bad act. The more similar the acts, the greater is the likelihood that the jury will draw the

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