Pena v. State

Decision Date14 September 1989
Docket NumberNo. 88-243,88-243
PartiesBenny PENA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard Munker, State Public Defender, Cheyenne, Wyoming Defender Aid Program, Gerald M. Gallivan, Director, Darrell V. Goodman, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Sr. Asst. Atty. Gen., Sandra J. Espy, Student Intern, Cheyenne, for appellee.


GOLDEN, Justice.

On appeal from his conviction for felony assault of a police officer, in violation of W.S. 6-5-204(b), appellant Benny Pena (Pena) claims it was error for the trial court to allow into evidence the testimony of six police officers relating to prior bad acts of Pena involving altercations with the police officers when his defense was a denial of the offense. We affirm.


Sometime in the early morning hours of January 30, 1988, a Cheyenne taxi driver called the Cheyenne Police Department to report a truck stuck in a snow bank in the area of 5th and Deming Streets. At approximately 4:45 a.m. Cheyenne Police Officer Phil Brown was dispatched to the area to investigate a "possible drunk driver stuck in the snow." Upon arriving at the scene, Brown realized that the truck had been removed from the snowbank and moved a block away to the 500 block of Thomes, where he saw a person, later identified as Pena, standing in the street next to the truck. Brown pulled up behind the truck and ordered Pena to move to the side of the street so that he could talk to him because he appeared drunk.

At this point the driver of the truck drove to the end of the street, made a U-turn and parked the truck on the opposite side of the street. Conforming with his police training, Brown started to follow As Brown entered the yard of the house to which Pena was running, an individual standing in the yard, later identified as Pena's brother Larry, kicked Brown so hard in the kneecaps that he fell to the ground. Brown got up and chased Larry into the street, where Larry slipped bringing Brown down on top of him. As Brown was holding Larry down on the ground with his baton in an attempt to arrest him, Pena struck a hard blow to Brown from behind throwing Brown over the top of Larry. Brown immediately got up, turned around and saw Pena who began to punch Brown. Still holding on to Larry, Brown made a sweeping motion with his baton in Pena's direction in an attempt to stop Pena's attack. During the scuffle, Brown was hit repeatedly in the face, chest and arms by Pena.

                the truck so that he could be parked behind it.  As he was driving down the street Brown looked in his rear-view mirror and saw Pena running at "full speed, arms waving, towards the front door of his house."   Brown immediately threw his car into park, grabbed his baton and started to pursue the fleeing Pena

A third person arrived to join Pena in the assault on Brown. While trying to fend off these attackers, Brown was struck on the side of his head from the other side by Larry who was still being held by Brown. Larry then began to wriggle out of the jacket Brown was holding onto and, with the aid of Pena and the third person, successfully freed himself and the three ran into the house, leaving Brown in the street with the jacket.

Rather than pursue the three, Brown called for backup. Leaving the jacket in the street, Brown then approached the house and was confronted on the porch by another of Pena's brothers, John, and the third person in the assault. Brown attempted to enter the house but was pushed off the porch by John. Brown made another attempt but was swung at several times by the third person and told that he would not be allowed to enter without a warrant. About this time a backup officer Mark Allsop arrived. As Allsop walked toward the house amidst the yelling and screaming of John and the third person, Pena's mother Delores Valdez came out onto the porch and screamed at the officers that they could not enter the house without a warrant. From the porch Brown and Allsop could see into the house and Allsop identified the occupants and assailants of Brown as Pena and his brother Larry based on previous contacts Allsop had had with them.

At that time Brown ran around to the back of the house and saw two unidentified people running away from the house whom he chased for a short distance. Brown returned to the front of the house; as he did so, the third person retrieved the jacket from the street and a struggle over the jacket ensued between Brown, the third person and Delores Valdez. Meanwhile, Pena reappeared on the porch wielding a baseball bat over his head. Allsop raised his baton in defense; Pena yelled and ran back inside the house. More backup officers arrived and John and the third person were arrested. Brown, Allsop and a third officer entered the house and saw Pena and Larry run out the back door; they were later arrested and charged with felony assault of a police officer in violation of W.S. 6-5-204(b).

A consolidated trial of Pena and Larry was held on May 23-26, 1988. A key issue at trial was the identity of the individual who fought with Brown in the street. Delores Valdez testified that the coat Brown alleged Larry had on during the struggle belonged to Pena and that it was in fact Pena that Brown had initially been fighting with in the street instead of Larry, who was in the house with her. She further testified that it was Brown who initiated the attack, not Larry or Pena, that she saw no one strike Brown, and that any actions taken by Larry or Pena were in self defense. In rebuttal the state introduced the testimony of six local law enforcement officers about several previous altercations involving Pena and the officers. After a discussion in chambers, and over the continuing objection of defense counsel, the court admitted this testimony for the purpose of proving intent. A limiting instruction At the close of trial the jury found Pena guilty; Larry was found not guilty. On August 1, 1988, Pena was sentenced to a term of one to two years in the penitentiary. This appeal followed.

was given to the jury and reiterated before each rebuttal officer testified.


W.R.E. 404(b)

Pena argues on appeal that the six officers' testimony was improperly admitted under W.R.E. 404(b), which provides:

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.

This rule operates to ban the use of evidence of a person's character in order to establish that the person's behavior on a particular occasion was in conformity with his character. Ortega v. State, 669 P.2d 935, 943 (Wyo.1983). Such evidence may, however, be admissible for other purposes. Trujillo v. State, 750 P.2d 1334, 1336 (Wyo.1988); Coleman v. State, 741 P.2d 99, 103 (Wyo.1987); Brown v. State, 736 P.2d 1110, 1112-14 (Wyo.1987); Ortega, 669 P.2d at 943. This court has adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs or acts if it constitutes proof of one of the purposes in accord with Rule 404(b). Marker v. State, 748 P.2d 295, 297 (Wyo.1988); Carey v. State, 715 P.2d 244, 248 (Wyo.1986). On appeal, deference is given to a trial court's determination concerning the admissibility of evidence under Rule 404(b); as long as there is a legitimate basis for a court's decision we cannot say that there was an abuse of discretion. Trujillo, 750 P.2d at 1336; Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986); Carey, 715 P.2d at 247; Bishop v. State, 687 P.2d 242, 244 (Wyo.1984) cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985); Ortega, 669 P.2d at 944; Hatheway v. State, 623 P.2d. 741, 743 (Wyo.1981); Vasquez v. State, 623 P.2d 1205, 1208 (Wyo.1981).

When reviewing the admission of prior bad acts evidence, this court has adhered to a five factor test, the Bishop test. Trujillo, 750 P.2d at 1337. The five factors we have considered are whether:

(1) The proof of the other similar crimes is plain, clear and convincing.

(2) The other crimes are not too remote in time from the charged offense.

(3) The evidence of the other crimes is introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence [W.R.E. 404(b) ].

(4) The element of the charged offense that the evidence of other crimes is introduced to prove is a material issue in the case.

(5) There is a substantial need for the probative value of the evidence of the other crimes. United States v. Myers, 550 F.2d 1036, 1044-1045 (5th Cir.1977).

First adopted in Coleman, 741 P.2d at 104 and again in Bishop, 687 P.2d at 246. While not controlling of a trial court's discretion, these factors are helpful in our determination of the propriety of the admissibility of prior bad acts evidence, keeping in mind that not all factors need be present to uphold a trial court's admission of evidence. Coleman, 741 P.2d at 105; Story v. State, 721 P.2d 1020, 1032 (Wyo.1986), cert. denied 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986).


The testimony of the six officers admitted into evidence related various altercations occurring between themselves and Pena. It is not necessary to detail the particulars of each officer's testimony. Suffice to say, the testimony related a series of altercations in which Pena had exhibited great hostility toward the officers. His actions included: kicking at an officer who had merely approached the scene of a scuffle between Pena and another officer; attempting to hit an officer through the open window of the officer's patrol car after leaving the scene of an accident when During an in-chambers conference the trial court...

To continue reading

Request your trial
23 cases
  • Gezzi v. State
    • United States
    • Wyoming Supreme Court
    • September 27, 1989
    ...real events, I reject this trend of trial by propensity. The usage of bad acts evidence in Wyoming, outlined in Pena v. State, 780 P.2d 316 (Wyo.1989) (Urbigkit, J., dissenting), is no more relevant to direct proof than is the use in this case of an older sister's recitation of her father's......
  • JOHNSON v. U.S.
    • United States
    • D.C. Court of Appeals
    • October 17, 1996
    ...v. Cofield, 127 N.J. 328, 605 A.2d 230, 235 (1992) (held "evidence of the other crime must be clear and convincing"); Pena v. State, 780 P.2d 316, 318 (Wyo. 1989) (without reference to Huddleston, followed previous practice of requiring "plain, clear and convincing" RUIZ, Associate Judge, c......
  • Virgilio v. State
    • United States
    • Wyoming Supreme Court
    • June 4, 1992
    ...1354 (Wyo.1989); Gezzi v. State, 780 P.2d 972 (Wyo.1989), Urbigkit, J., dissenting; King v. State, 780 P.2d 943 (Wyo.1989); Pena v. State, 780 P.2d 316 (Wyo.1989); Garcia v. State, 777 P.2d 1091 (Wyo.1989); Justice v. State, 775 P.2d 1002 (Wyo.1989); Campbell v. State, 772 P.2d 543 (Wyo.198......
  • Duffy v. State, 87-160
    • United States
    • Wyoming Supreme Court
    • March 21, 1990
    ...where commonly cited authority provides little relevance. But the basic result of creating two crimes out of one conduct, Pena v. State, 780 P.2d 316 (Wyo.1989), invades the entire philosophy upon which protection against double jeopardy was initially developed and subsequently invested int......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT