Howard v. State
| Decision Date | 15 March 2002 |
| Docket Number | No. 00-243.,00-243. |
| Citation | 42 P.3d 483,2002 WY 40 |
| Parties | Melody HOWARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; and Tina N. Kerin, Assistant Appellate Counsel, Representing Appellant.
Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling and Kimberly A. Baker, Assistant Attorneys General, Representing Appellee.
Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
[¶ 1] Melody Howard (Appellant) appeals her convictions on one count of forgery and one count of credit card fraud. Appellant alleges error in the prosecution's failure to timely respond to a request for intent to use evidence under W.R.E. 404(b), in the prosecutor's remarks during closing argument, and in the sufficiency of the evidence to sustain her forgery conviction. We find no errors and affirm Appellant's convictions, but we modify the rule of Vigil v. State, 926 P.2d 351 (Wyo.1996) in regard to the admission of evidence under W.R.E. 404(b).
[¶ 2] Appellant presents three issues for review:
The State concurs with Appellant's presentation of the issues:
Appellant offered an additional issue in her reply to the State's brief:
Did the State fail to provide cogent argument or pertinent authority for its argument that no notice of the 404(b) evidence was required?
[¶ 3] In April of 1998, Carrie Huff gave her estranged husband's credit card numbers to her housemate, Warren Harlow (Harlow). The numbers were written on a piece of paper, and at no time did Harlow ever possess the actual card. Harlow used the card to purchase gasoline, cigarettes, and snacks from two convenience stores in Casper. The clerk who processed all of the transactions at both locations was Appellant, who would manually enter the card number into the machine. Harlow would sign the receipts in the name of the cardholder, Eric Huff. On several occasions, Appellant would enter an amount greater than the merchandise purchased and give the overcharge to Harlow as cash back.
[¶ 4] Inevitably, Eric Huff received a bill from his credit card company with the unauthorized charges on it. An investigation quickly led the police to Harlow and Appellant. Appellant was charged with two counts of forgery in violation of Wyo. Stat. Ann. § § 6-3-602(a)(ii) and (b), two counts of conspiracy to commit forgery in violation of Wyo. Stat. Ann. § § 6-1-303(a) and 6-3-602(a) and (b), and one count of unlawful use of a credit card in violation of Wyo. Stat. Ann. §§ 6-3-802(a)(i) and (b)(iii). Harlow, meanwhile, pleaded guilty to charges of forgery and credit card fraud and agreed to testify against Appellant.
[¶ 5] On February 12, 1999, Appellant filed a "Defendant's Demand for Speedy Trial and Demand for Notice of Intent to Introduce Evidence Under 404(b)." The demand, as it related to W.R.E. 404(b) evidence, provided:
THE DEFENDANT HEREBY FURTHER DEMANDS the State provide Notice of intent to introduce any evidence under Rule 404(b) of the Wyoming Rules of Evidence (W.R.E.). Said Notice shall include the specific evidence the State wishes to introduce, and the legal authority or theory for the admissibility of same. Said Notice shall also be given to the Defense in a timely manner prior to the trial in this matter so the Defense may prepare objections and request a hearing to determine the admissibility of said evidence.
The trial was scheduled to commence on July 12, 1999. That morning, prior to jury selection, the trial judge held a hearing to resolve any pretrial issues. At this time, the prosecutor gave the first indication that the State planned to introduce evidence of Appellant's use of illegal drugs (methamphetamine). The State's theory was that Appellant and Harlow used the cash from the overcharges on the credit card to obtain drugs. The State planned to introduce evidence to that effect through two witnesses: Harlow and the police detective who interviewed Appellant. The defense objected to the evidence on two grounds: (1) the lack of notice in light of their request; and (2) the evidence was unfairly prejudicial. The district court granted the defense's motion to bar the evidence but indicated it would reconsider the matter after jury selection.
[¶ 6] After jury selection, the district court revisited the defense's motion and decided to allow the evidence. At one point, the district court speculated that the proposed evidence might not fall under Rule 404(b):
The initial observation I'll make is that much of the case law dealing with prior acts—and in this particular case, it appears to me that the offered evidence is not in the category of prior acts, but is, in fact, part in [sic] parcel of the offenses charged and at issue in this trial.
The trial judge later noted Nevertheless, the court proceeded to analyze the admissibility of the evidence under Rule 404(b) in light of the factors set out by this Court in Vigil. The court concluded that the evidence was admissible to show motive, plan, preparation, and/or absence of mistake. The trial judge offered the defense the opportunity for a limiting instruction. The defense did not avail itself of the offer.
[¶ 7] The State's plan to put the drug evidence before the jury did not go quite as it had planned. In her opening statement, the prosecutor stated she would present testimony from Harlow and a police detective that Appellant and Harlow had jointly used the cash from the credit card overcharges to purchase drugs. At trial, the State called Harlow to the stand to testify against Appellant. Harlow, however, refused to testify about the drugs. Since he had not been charged with any crimes related to drugs or been granted immunity for his testimony, Harlow was naturally reluctant to testify and invoked his Fifth Amendment right against self-incrimination. The trial judge upheld Harlow's invocation and refused to allow the State to make any inquires into that area. The police detective called by the State did testify that during an interview, Appellant stated that she and Harlow used the money from the credit card to obtain drugs.
[¶ 8] Appellant's defense was that she believed Harlow had permission to use the credit card. She testified that during his first purchase, Harlow made a telephone call and handed the receiver to her. The male individual on the line identified himself as Eric Huff and stated that Harlow had permission to use the card. Appellant denied receiving any benefits from Harlow's usage of the card, including cash or drugs.
[¶ 9] After the State presented its evidence, Appellant moved for acquittal on all counts. The district court granted the motion on the two conspiracy charges. Appellant renewed her motion for acquittal on the other charges after the presentation of her defense. The trial judge granted the motion on one of the forgery counts but allowed one count of forgery and one count of credit card fraud to go to the jury. A guilty verdict was returned on both counts. Additional facts will be mentioned in the following discussion, as necessary.
[¶ 10] Appellant argues that the district court abused its discretion in admitting the Rule 404(b) evidence related to her and Harlow's purchase of drugs with the cash obtained from the credit card overcharges. She contends that the State violated our dictates in Vigil by waiting until the day of trial to notify her of its intent to use the evidence despite her request for notice filed some five months prior. Appellant argues that this delay in notification prejudiced her ability to put on a proper defense. The State counters that the Vigil decision did not require pretrial notice and mandated a hearing on the admissibility of proposed 404(b) evidence only upon a specific objection by the defense at trial or during a pretrial motions hearing.1
[¶ 11] The district court admitted the evidence showing that Harlow and Appellant had used the cash back from the credit card to purchase drugs on two grounds: (1) It was substantive evidence of the conspiracy charge; and (2) It was prior bad acts evidence under Rule 404(b) admissible for the limited purpose of demonstrating motive, plan, preparation, and/or lack of mistake. Initially, we disagree with the district court's conclusion that the drug evidence was substantive evidence of the conspiracy charge.
[¶ 12] A person is guilty of conspiracy to commit a crime if: (1) he agrees with one or more persons that they (or one or more of them) will commit a crime; and (2) one or more of them does an overt act to effect the objective of the agreement. Wyo. Stat. Ann. § 6-1-303(a) (LexisNexis 2001). The crime that was the subject of the conspiracy charge was forgery:
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