Makinen v. State

• Decision Date: 20 May 1987
• Docket Number: No. 86-142,86-142
• Citation: 737 P.2d 345
• Parties: Mathew David MAKINEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 345

737 P.2d 345

Mathew David MAKINEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 86-142.

Supreme Court of Wyoming.

May 20, 1987.

Wyoming Public Defender Program, Leonard D. Munker, Public Defender, Julie D. Naylor, Appellate Counsel, Williams Combs, Student Intern, Cheyenne, for appellant.

A.G. McClintock, Atty. Gen., John W. Renneisen, Senior Asst. Atty. Gen., David K. Gruver, Asst. Atty. Gen., Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellant Mathew Makinen was charged, tried and convicted of incest with his step-daughter, age 13, in violation of § 6-4-402(a)(ii), W.S.1977 (Cum.Supp.1986). ¹ He was sentenced to a term of fifteen to sixty months in the state penitentiary.

Appellant raises the following issues on appeal:

"I

"Whether the decision to allow uncharged misconduct testimony was improperly based on the Rule 404(b) 'opportunity' exception to hearsay.

"II

"Whether the decision to admit the tape recorded interview with prosecutrix was improperly based on its 'investigatory' and 'corroborative' nature."

We will affirm.

The victim is the step-daughter of appellant. After the victim related stories of sexual abuse to two of her friends, they convinced her to speak to the school counselor. This resulted in an interview between the victim and a worker with the Department of Public Assistance and Social Services (D-PASS). Also present at the interview were the school counselor, another D-PASS worker, a police officer and the school nurse. During the interview, which was tape-recorded, the victim related how she had been sexually assaulted by appellant. The first sexual assault occurred in May, 1985, and the most recent assault occurred on September 29, 1985, the day before the victim's thirteenth birthday.

At trial the victim testified that on September 29, 1985, between 8:00 and 9:00 a.m., she was awakened in her bed by appellant, who forced her to disrobe and then sexually assaulted her.

Appellant was subsequently arrested and charged with incest. Trial to a jury resulted in appellant's conviction.

I

In appellant's first issue, he asks whether the trial court's decision to allow uncharged misconduct testimony was improperly based on the Rule 404(b) "opportunity exception to hearsay." Rule 404(b), Wyoming Rules of Evidence provides:

"(b) 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 or accident."

Appellant contends that evidence of prior bad acts was improperly admitted to show opportunity. Before the trial, defense counsel filed a motion in limine to exclude past acts of incest by appellant. The trial court ruled that the state could not bring in evidence of prior bad acts in its case-in-chief to show opportunity, but that such acts might come into evidence if the prosecution's witnesses were impeached on cross examination.

In defense counsel's opening statement, he stated that the evidence would show that appellant did not have the opportunity to commit the alleged crime. At a bench conference thereafter the trial court told defense counsel that if he was going to refer to appellant's lack of opportunity, then that would considerably alter the court's previous ruling regarding prior bad acts showing opportunity.

In his brief, appellant states that there were two references made to prior bad acts during the victim's testimony. The first occurred when the prosecutor asked the victim: "Okay, when was that day, * * * when your dad had last taken you to bed?" The second reference occurred when the victim testified that appellant told her "the first time" that "it was like riding a horse." Defense counsel did not object to these references. On cross-examination defense counsel probed further into "the first time," as well as other prior bad acts.

When evidence of prior bad acts is determined to be admissible pursuant to Rule 404(b), W.R.E., the trial court must further determine if the evidence should be excluded under Rule 403, W.R.E., which provides:

"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

See, e.g., Evans v. State, Wyo., 655 P.2d 1214 (1982). The trial court recognized this when ruling on the motion in limine when he stated:

"The material extraneous to that of the charge, of course, relating to any prior acts of misconduct can, for some reason, be brought into evidence in these cases. And that has to be weighed against the prejudicial effect of that evidence as against its probative value."

In Elliott v. State, Wyo., 600 P.2d 1044 (1979), defendant was charged with sexually assaulting a step-daughter. At issue there was alleged error in admitting evidence of defendant's similar sexual assault on the victim's older sister. We stated that while Wyoming recognizes the general rule that evidence of other crimes or wrongdoing normally is not admissible in a criminal trial, that in the context of sexual offenses, other similar acts may be admitted if the victim of the charged offense is involved. We then held that the evidence of defendant's similar acts with the victim's older sister was properly admitted.

"We note that in cases involving sexual assaults, such as incest, and statutory rape with family members as the victims, the courts in recent years have almost uniformly admitted such testimony. * * * [Citations.] The description of the events by the victim's sister here, together with the testimony of the victim, persuades us that the conduct described was sufficiently similar to pass the test of relevancy under Rule 404(b), W.R.E., and was admissible for the purpose of proving the motive of the appellant." Id., at 1048.

The list of exceptions noted in Rule 404(b) under which evidence of other crimes may be relevant and admissible is not exhaustive, but rather illustrative. United States v. Beechum, 582 F.2d 898, n. 15 (5th Cir.1978); and Hopkinson v. State, Wyo., 632 P.2d 79, 127 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). Evidence of other criminal activity may be admissible if it forms part of the history of the event or serves to enhance the logical development of the facts. This has been called the "course of conduct" exception. Crozier v. State, Wyo., 723 P.2d 42 (1986).

With these principles in mind, we are unable to find, nor has appellant demonstrated, that the admission of evidence regarding appellant's prior bad acts was error under Rules 403 and 404(b), W.R.E. It may also be posited that appellant effectively waived this contention by first failing to timely object, and then by "opening the door" through defense counsel's statements regarding lack of opportunity in opening argument as well as his cross-examination of the victim regarding prior bad acts. See, e.g., Sanville v. State, Wyo., 593 P.2d 1340 (1979); Mullin v. State, Wyo., 505 P.2d 305 (1973), cert. denied 414 U.S. 940, 94 S.Ct. 245, 38 L.Ed.2d 166 (1973), citing State v. Wilson, 32 Wyo. 37, 228 P. 803 (1924).

The crime of incest rarely consists of one isolated incident; rather, it is ongoing and consists of a series of misconduct varying in severity. Therefore, the necessity for the admission of prior bad acts which involve the victim becomes even more compelling. There was no error in admitting evidence of appellant's prior bad acts.

II

In his second issue, appellant claims it was prejudicial error to admit the tape recording of the October 15, 1985, interview between the victim and the D-PASS worker, Carl Shaskey-Setright. Mr. Shaskey-Setright testified at the trial regarding the interview. After asking Mr. Shaskey-Setright if he had listened to the tape recording of the interview and whether it was an accurate recording of the interview, the witness responded affirmatively. The prosecution moved for its admission as well as the transcript of the tape recording. Defense counsel objected to the admission of the tape. The trial court admitted the tape. Whereupon the tape was played for the jury with copies of the transcript given to each juror to follow along.

Appellant claims the tape was inadmissible hearsay under Rule 801(c), W.R.E., which reads:

"(c) Hearsay.--'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

However, a prior consistent statement may be admitted into evidence under the conditions set forth in Rule 801(d)(1) and is not considered hearsay.

"(d) Statements which are not hearsay.--A statement is not hearsay if:

"(1) Prior Statement by Witness.--The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and, if offered in a criminal proceeding, was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving him * * * ."

As the rule states, a prior consistent statement may be introduced to rehabilitate the testimony of a witness that has been impeached with the charges of recent fabrication, or improper influence or motive. See generally, 4 Louisell & Mueller, Federal Evidence § 420, p. 186 (1980).

In this case, appellee correctly...