James v. State, 93-228

• Decision Date: 29 December 1994
• Docket Number: No. 93-228,93-228
• Citation: 888 P.2d 200
• Parties: Lloyd JAMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 200

888 P.2d 200

Lloyd JAMES, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 93-228.

Supreme Court of Wyoming.

Dec. 29, 1994.

Public Defender Program, Leonard D. Munker, State Public Defender, Deborah Cornia, Appellate Counsel, Cheyenne, Brett Johnson, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., D. Michael Pauling, Sr. Asst. Atty. Gen., Prosecution Assistance Program, Theodore E. Lauer, Director, Karen Matson, and Elizabeth Chapman, Student Intern, Laramie, for appellee.

Before GOLDEN, C.J., and THOMAS, CARDINE, ^* MACY, ^** and TAYLOR, JJ.

GOLDEN, Chief Justice.

Appellant appeals from his conviction on two counts of indecent liberties with a minor, claiming error in the admission of hearsay testimony and uncharged misconduct evidence, and in the exclusion of evidence concerning the victim's sexual history. Appellant also alleges prosecutorial misconduct in the state's opening statement and closing and rebuttal closing arguments.

We affirm.

ISSUES

Appellant presents the following issues for our review:

I. Did the trial court err in allowing the introduction of evidence concerning prior uncharged bad acts of the appellant?

II. Did the trial court err in granting the state's motion in limine prohibiting evidence of the victim's prior bad acts?

III. Did the trial court err in allowing introduction of hearsay statements made under the excited utterance exception to the hearsay rule?

IV. Was the appellant denied his right to a fair trial when the prosecutor made improper remarks in his closing argument?

The state rephrases the issues as:

I. Did the district court err in allowing the admission of evidence concerning prior uncharged acts of appellant?

II. Did the district court err in granting the state's motion in limine to prohibit evidence of the victim's prior bad acts?

III. Did the district court properly admit hearsay statements under the excited utterance exception to the hearsay rule?

IV. Did remarks made by the state during closing argument deny appellant his right to a fair trial?

FACTS

Appellant met J.S. in 1989 when she was fifteen years old and appellant was nineteen. For the next four years, appellant and J.S. lived together off and on and had two children together. Appellant and J.S. lived part of their four years together with her family (the S Family), including her younger brother, B.S., who was thirteen years old when appellant moved in with the S Family.

On February 22, 1993, J.S. discovered appellant and her younger brother, B.S., engaged in oral sex in the basement of the house she shared with appellant. On February 26, 1993, the state filed a felony information against appellant charging him with nine counts of indecent liberties with a minor (B.S.) between the dates of September 20, 1992, and February 22, 1993. On April 15, 1993, the state filed its final amended information charging appellant with two counts of indecent liberties with a minor, stemming from sexual acts appellant allegedly committed with B.S. on the dates of February 8, 1993, and February 22, 1993.

On May 19, 1993, the state filed a motion in limine to exclude evidence of the victim's prior homosexual conduct and his counseling and treatment for that behavior. The trial court granted that motion on June 2, 1993.

Appellant's trial was held June 2-3, 1993. Several witnesses testified, including J.S., who testified that on February 8, 1993, the date of one of the charged counts, she witnessed no sexual conduct but found appellant and the victim in a bedroom together. She also testified that on February 22, 1993, within thirty minutes after discovering appellant and the victim engaged in oral sex, she reported what she had seen to her cousin and to her grandmother. Over defense counsel's objection, the trial court, citing the excited utterance exception to the hearsay rule, permitted both the grandmother and the cousin to testify concerning J.S.'s statements.

Also over defense counsel's objection, the trial court ruled admissible evidence of uncharged sexual acts between appellant and the victim. The victim testified that on as many as ten different occasions, between the dates of February 8, 1993, and February 22, 1993, he engaged in sexual acts with appellant. The victim testified he consented to sex with appellant and at times initiated the encounters.

During his opening statement and closing and rebuttal closing arguments, the prosecutor made several statements which appellant now claims constituted prosecutorial misconduct. We will set forth those statements in our discussion of that issue.

On June 3, 1993, the jury returned its verdict finding appellant guilty of both counts of indecent liberties with a minor. Appellant was sentenced to two concurrent terms in the Wyoming State Penitentiary of not less than four nor more than eight years. This appeal followed.

DISCUSSION

1. Uncharged Misconduct Evidence

Appellant contends the trial court permitted the introduction of the victim's testimony concerning uncharged acts between appellant and the victim in violation of Wyoming Rules of Evidence 404(b). Rule 404(b) reads:

Other crimes, wrongs, or acts.--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.

At trial, the prosecution submitted the evidence for the purpose of showing intent, motive, plan, lack of mistake, or "a whole gamut of things." On appeal, the state has modified the proposed purposes to establishing motive and demonstrating course of conduct.

On appeal, this court affords great deference to the trial court's determination of admissibility of uncharged misconduct evidence. Dean v. State, 865 P.2d 601, 606 (Wyo.1993); Mitchell v. State, 865 P.2d 591, 596 (Wyo.1993). As long as a legitimate basis exists for the trial court's ruling, we will not find an abuse of discretion. Dean, 865 P.2d at 606; Mitchell, 865 P.2d at 596. The trial court's discretion is not without limits, however, and this court has adopted a five-part test governing the admissibility of uncharged misconduct evidence. The factors to consider are:

1. The extent to which the prosecution plainly, clearly, and convincingly can prove the other similar crimes;

2. The remoteness in time of those crimes from the charged offense;

3. The extent to which the evidence of other crimes is introduced for a purpose sanctioned by W.R.E. 404(b);

4. The extent to which the element of the charged offense, that the evidence is introduced to prove, is actually at issue;

5. The extent to which the prosecution has a substantial need for the probative value of the evidence of the other crimes.

Dean, 865 P.2d at 606 (citing Bishop v. State, 687 P.2d 242, 246 (Wyo.1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345); see Mitchell, 865 P.2d at 595. The trial court has broad discretion in balancing these Appellant argues the trial court committed reversible error in admitting the uncharged misconduct evidence because the evidence failed to serve a proper purpose under Rule 404(b), it did not satisfy any of the Bishop requirements, and the unfair prejudice of the evidence outweighed its probative value. While we find cause for concern in the handling of the uncharged misconduct evidence--in the prosecution's failure to specify precisely the purpose to be served by the evidence, in the trial court's failure to instruct on the specific purpose for which the jury could consider the evidence and in the state's change of purpose on appeal, we conclude, because the trial took place before this court's decisions in Dean and Mitchell, the trial court did not abuse its discretion in admitting the evidence.

factors, and each of the five factors need not be satisfied to justify admission of evidence under Rule 404(b). Dean, 865 P.2d at 606.

This court has held that evidence of uncharged misconduct may be admitted under Rule 404(b) to demonstrate course of conduct. Mitchell, 865 P.2d at 596; Brown v. State, 817 P.2d 429, 433 (Wyo.1991). We have explained that evidence of course of conduct is helpful to clarify what happened between an accused and the victim and is integral to understanding the context of the crime charged. Brown, 817 P.2d at 433; Scadden v. State, 732 P.2d 1036, 1044 (Wyo.1987). The evidence of uncharged acts between appellant and the victim served to clarify what happened between the two and thus served a proper 404(b) purpose.

We also find the remaining Bishop factors satisfied. Clear and convincing evidence of the uncharged misconduct was provided in the victim's testimony concerning the acts. The credibility of that testimony was for the jury to determine. Additionally, the uncharged acts were not too remote in time from the charged offense. The victim could not provide specific dates but rather a period of time which put the most remote date within five months of the charged acts. We have upheld the admission of uncharged acts as remote as eight to eleven years before the charged acts. See Britton v. State, 845 P.2d 1374, 1376 (Wyo.1992). Finally, the evidence was necessary, as we noted earlier, to paint a complete picture of appellant's relationship with the victim and, additionally, to respond to appellant's assertions the victim fabricated the charges against appellant after he rejected the victim's advances.

We are thus satisfied the trial court did not abuse its discretion in finding the evidence admissible under Rule 404(b). We also reject appellant's contention that the trial court permitted excessive detail in the victim's testimony concerning the uncharged acts creating an unfair prejudice that outweighed the probative value of the evidence. The victim's testimony...