Marker v. State, 87-54

• Decision Date: 05 January 1988
• Docket Number: No. 87-54,87-54
• Citation: 748 P.2d 295
• Parties: Thomas MARKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 295

748 P.2d 295

Thomas MARKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-54.

Supreme Court of Wyoming.

Jan. 5, 1988.

Leonard D. Munker, State Public Defender; and Wyatt R. Skaggs, Chief Trial Counsel, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen.; John W. Renneisen, Deputy Atty. Gen.; and David K. Gruver, Asst. Atty. Gen., for appellee.

Before THOMAS, CARDINE, URBIGKIT, and MACY, JJ., and HANSCUM, D.J.

URBIGKIT, Justice.

This is an appeal from convictions on two counts of aggravated assault with a deadly weapon in violation of §§ 6-2-502(a)(ii) and 6-1-104(a)(i), W.S.1977, 1987 Cum.Supp.

Appellant states the issue as:

"Whether the trial court erred in admitting evidence of sadomasochistic materials."

We affirm.

FACTS

On February 24, 1986, Thomas Marker (appellant) was charged with two counts of aggravated assault with a deadly weapon. Count I was alleged to have occurred on or about December 26, 1985, and Count II as amended was alleged to have occurred on or about February 16-17, 1986. The victim and the crime were the same in both counts: appellant cut the penis of his three-year-old son, Robert. A jury convicted appellant of both counts, and sentence was imposed of seven to ten years on Count I and a consecutive term of ten years probation on Count II.

Evidence to which appellant objected consisted of three exhibits: a magazine entitled "299 Bound Boys," and two photocopied excerpts from a book found with the magazine which described various torture techniques. These three exhibits were seized in a consensual search of appellant's apartment. In fact, appellant had drawn a map to aid the officer in finding the material.

The trial judge denied appellant's motion in limine to prevent the admission of these specified items, and allowed their introduction to show "motive and/or identification." Later, the police officer testified that he had seized the materials and then described the publication "299 Bound Boys." The magazine contains a graphic depiction of boys in their late teens in various painful situations, including having their genitals placed in ropes, chains, and other painful devices. ¹

ADMISSIBILITY

Appellant essentially argues that the admission of this evidence was in error because it was character evidence not admissible under Rule 404(a), W.R.E., and additionally that it should have been excluded as unduly prejudicial under the balancing test of Rule 403, W.R.E. We disagree, finding in the specific facts of this case that the evidence was properly admitted to prove identity under Rule 404(b), W.R.E. ² At trial, appellant denied committing the offenses, and the general theory of the defense was to blame the mother for the child's injury.

"Wyoming follows the general rule that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Elliott v. State, Wyo., 600 P.2d 1044 (1979). The general rule is codified in the first sentence of Rule 404(b). In applying the second sentence of the rule, however, we have adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs, or acts. * * * Such evidence is admissible if it is substantially relevant for other purposes, and its probative value outweighs its prejudicial effect. Grabill v. State, [Wyo., 621 P.2d 802 (1980) ]; and Elliott v. State, supra. See also 22 Wright and Graham, Federal Practice and Procedure: Evidence § 5239 (1978)." (Emphasis added.) Bishop v. State, Wyo., 687 P.2d 242, 245 (1984), cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985).

In Goodman v. State, Wyo., 601 P.2d 178, 181 (1979), this court recognized:

" * * * A prior act of the accused need not be criminal in character in order to be relevant for purposes of Rule 404(b). United States v. Senak, 7th Cir.1975, 527 F.2d 129, 143, cert. denied 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758; 2 Louisell and Mueller, Federal Evidence, § 140, p. 121 (1978)."

In more recent analysis, in Coleman v. State, Wyo., 741 P.2d 99, 105 (1987), we considered the prior-bad-acts motive exception as admissible in relation to identity:

" * * * It was offered for a permissible purpose to show motive, the state of mind of Coleman, intent, purpose, and a continuing course of conduct. It was material because evidence of motive can lead to an inference of identity which is an element of this crime. That concept is appropriately stated in J. Weinstein and M. Berger, 2 Weinstein's Evidence, supra, § 404 at 404-108:

" 'Motive has been defined as "supply[ing] the reason that nudges the will and prods the mind to indulge the criminal intent." Two evidentiary steps are involved. Evidence of other crimes is admitted to show that defendant has a reason for having the requisite state of mind to do the act charged, and from this mental state it is inferred that he did commit the act.' " (Emphasis added.)

Wright and Graham, Federal Practice and Procedure: Evidence § 5239, pp. 465-466 (1978) states:

"The exception [for proof of identity] is usually thought of as involving evidence of a method of committing crimes that is so distinctive as to constitute a 'signature' of the culprit. But this is only one way in which evidence of other crimes may serve to identify the actor. Identity may also be shown when the other crime establishes that the defendant is one of a limited class of persons with the capacity to commit the crime * * *."

Identity was also at issue in Grabill v. State, Wyo., 621 P.2d 802 (1980), where Rule 404(b), W.R.E. was used to allow evidence of prior bad acts to be introduced in a...