Wease v. State

• Decision Date: 05 November 2007
• Docket Number: No. 06-187.,06-187.
• Citation: 2007 WY 176,170 P.3d 94
• Parties: Allan Deon WEASE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

170 P.3d 94

2007 WY 176

Allan Deon WEASE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-187.

Supreme Court of Wyoming.

November 5, 2007.

Representing Appellant: D. Terry Rogers, Acting Wyoming Public Defender; Donna D. Domonkos and Tina N. Kerin, Appellate Counsel, Wyoming Public Defender; Diane E. Courselle, Director, Defender Aid Program; Thomas Justice, Student Intern; and William Elliott, Student Intern. Argument by Ms. Courselle.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] The Appellant, Allan Deon Wease (Wease), seeks review of his twelve convictions for various sex crimes, including second degree sexual assault, third degree sexual assault, and immoral or indecent acts with a child. Wease contends that with respect to Count V of his convictions, he was sentenced under a statute that did not take effect until after the crime was committed. The State concedes this error and agrees that the case must be remanded to the district court for resentencing on that matter.

[¶ 2] With respect to Count VII, Wease contends that the State failed to prove the temporal element of that crime (that the crime occurred within the time limits specified in the instructions given to the jury by the district court, based on the third amended Information). At trial, the State conceded that it had failed to prove that element of the crime and told the jury it should acquit. However, the jury convicted anyway. On appeal, the State propounds an argument that the evidence of the temporal element of the crime was adequate. We do not agree with that argument, and we will reverse that conviction and direct that Count VII be dismissed on remand.

[¶ 3] Wease also contends that the State overwhelmed the jury with literally hundreds of instances of prior bad acts in violation of W.R.E. 404(b) and our jurisprudence with respect to that rule. We will conclude that this contention does not require the reversal of Wease's other eleven convictions.

[¶ 4] Finally, Wease contends that his defense attorney was ineffective because he failed to develop any sort of strategy to limit the wholesale admission of W.R.E. 404(b) evidence. We will conclude that defense counsel's performance was adequate and did not prejudice Wease's case.

[¶ 5] We will reverse in part, affirm in part, and remand to the district court for further proceedings consistent with this opinion.

ISSUES

[¶ 6] Wease articulates these issues:

I. Did the district court impose an illegal sentence when it sentenced Mr. Wease in accordance with the post-amendment sexual assault statute despite the fact that the State established the criminal offense occurred before the statute was amended in 1997?

II. Was the evidence convicting Mr. Wease of the criminal act charged in Count VII insufficient because the State failed to establish that the criminal offense occurred within the time period charged in the third amended information?

III. Did plain error occur when the State overwhelmed the jury with substantial uncharged misconduct evidence which was unduly prejudicial or beyond the scope of the parties' 404(b) stipulation and the trial court failed to take adequate measures to limit the problems with its reckless approach to its evidentiary presentation?

IV. Did trial counsel's failure to develop any meaningful strategy to address the uncharged misconduct and notice issues amount to ineffective assistance of counsel because it led to the virtually unrestricted admission of so much uncharged misconduct that the jury's determination of the issues had to be adversely affected?

The State rephrases the issues somewhat:

I. [Wease's] sentence on Count V exceeded the statutory limits in effect at the time of the offense; thus, [his] sentence on that Count is illegal.

II. Was there sufficient evidence to find [Wease] guilty of Count [VII]?

III. Did the district court err in admitting stipulated uncharged misconduct evidence and was [Wease] prejudiced by the same? Moreover, did the State unnecessarily complicate the presentation of evidence and fail to give proper notice of the sexual intrusion charged in Count III?

IV. Was [Wease's] trial counsel ineffective?

In his reply brief, Wease asserts that the State raised these new issues:

I. In response to Mr. Wease's claim that the evidence was legally insufficient to support conviction on Count VII, the State makes the new argument that the testimony regarding when the alleged offense occurred was only a few months, rather than over one year, from the time period charged.

II. The State makes the new argument that, because Mr. Wease entered a stipulation regarding what evidence could be introduced pursuant to W.R.E. 404(b), he cannot object to any of the W.R.E. 404(b) evidence, because the stipulation makes any error "invited."

III. The State makes the new argument that because Mr. Wease did not file a request for notice of the State's intent to introduce W.R.E. 404(b) evidence, he has waived any objection to the State's introduction of other bad acts evidence which may have departed from the reasonably anticipated scope of the stipulation?

FACTS AND PROCEEDINGS

[¶ 7] The first Information was filed in this case in the district court on July 14, 2005. It alleged twelve distinct crimes that occurred between the years 1994 and 2005. The Information was amended many times. The Information which enumerated the crimes considered by the jury at trial was filed of record on February 8, 2006 (the trial began on February 6, 2006). It also alleged twelve distinct crimes that occurred between 1993 and 2005, and it is those twelve counts that we will describe in more detail later in our discussion. The trial in this case took place from February 6, 2006, through February 9, 2006, so it is readily evident that the elements of the crimes (especially as to dates) did not become solidified until much of the testimony was in.

[¶ 8] The record also reflects that the State filed a Notice of Intent to Use Evidence Pursuant to W.R.E. 404(b) on October 28, 2005. At a hearing held on November 2, 2005, the defense asked for additional time to respond to that notice, and the district court indicated that it would be taken up at a future date. The matter was again broached at a motion hearing held on January 17, 2006. Eventually, the parties reached a general sort of agreement/stipulation and established a so-called "road map" to the 404(b) evidence that the State intended to introduce. In many ways, that road map mirrored the affidavit of the investigating police officers, which summarized the statements given by each of the victims.

[¶ 9] The matters that became the subject of this criminal prosecution first came to light when Wease made salacious overtures to a co-worker in October of 2004. The co-worker complained of a headache, and Wease suggested a cure for that would be for Wease to rub the co-worker's genitals. The co-worker declined that offer. Wease also asked the co-worker to pose nude for him, but that offer was also declined. The co-worker reported this conduct to his supervisor (because he felt he was "violated"). The co-worker also told Charles Brown about it on May 18, 2005. The co-worker said that Brown became very angry about it. The co-worker admitted in cross-examination that he knew that Brown had a father/son-like relationship with two of Wease's potential victims (although they had not yet been identified as victims), and that Brown would get angry when he was told about Wease's behavior (because Wease also had considerable contact with those children). On the night of May 18-19, 2005, Wease was stabbed and Wease believed it was Brown who did it. At the conclusion of this testimony, the district court gave this limiting instruction with defense counsel's acquiescence:

You are instructed that the testimony of the last witness was provided solely to put into context the testimony of the next witness to show why the next witness reported to the police. You're not to consider the evidence as a showing of character of the Defendant or that he acted in conformity with that character trait.

[¶ 10] Charles Brown testified that Wease was a neighbor of his in Mountain View and that in May of 2005 he had a discussion about Wease with the witness described immediately above. The behavior of Wease described above was not repeated, but Brown related that its content "made me sick to my stomach." Brown went on to describe his close relationship with two boys, JS and BG, who were the children of a former girlfriend. Brown reached BG by phone and asked him if "anything had happened" between him and Wease. After a few moments of pausing, BG said, "Yes." Brown then set out to find Wease, but another friend talked him into going to the police instead. Brown happened upon a police officer in Lyman and reported what BG had told him. Although Brown was still in a fury, he eventually went home and did not go out again that night. On cross-examination, Brown admitted he knew that JS and BG had been investigated for child sexual abuse incidents perpetrated by them on other children.

[¶ 11] Sheriff's Deputy Jensen Odde undertook an investigation of BG's allegations of sexual assault against Wease on May 19, 2005. On that same date, Odde was called to the scene of an incident where it was reported that Wease had fallen on a knife. Odde was very skeptical that that could have occurred, based on his examination of the crime scene, and he also observed that Wease had cuts on his wrists that may have connoted a suicide attempt. Odde also found an empty pill bottle that augmented the suicide angle, and so he looked for a suicide note at the scene. Some...