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Temen v. State

February 24, 2009

BRYAN ALLAN TEMEN, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.

The opinion of the court was delivered by: Hill, Justice.

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

[¶1] Appellant, Bryan Temen (Temen), was convicted of robbery and misdemeanor credit card fraud. He appeals those convictions asserting that the district court erred in allowing amendment of the information during trial. Temen was originally charged with felony credit card fraud, but the evidence presented at trial fell short of the $1,000.00 felony level, and the district court permitted amendment of the information to the misdemeanor level. In addition, Temen asserts that the district court erred in admitting prior bad acts evidence under W.R.E. 404(b). We will affirm.

ISSUES

[¶2] Temen advances these two issues:

I. Did the trial court err in allowing amendment of the information during trial?

II. Did the trial court err in admitting evidence under W.R.E. 404(b)?

The State conformed its statement of the issues to those posed by Temen.

FACTS AND PROCEEDINGS

[¶3] The issues raised in this appeal do not turn on the sufficiency of the evidence, so we will relate only an abbreviated version of the facts and only make reference to the proceedings as they relate to the amendment of the information and the admission of W.R.E. 404(b) evidence during the State's case in chief.

[¶4] On November 1, 2006, Deputy Foy with the Laramie County Sheriff's Department responded to a call regarding a robbery and unauthorized use of a credit card. The victim of the crimes, Anthony Flores, told Officer Foy that in the early morning hours of November 1, 2006, outside of a nightclub called The Den, he had been attacked by three men while he was sitting in his vehicle. He was hit in the head and face, his keys were pulled out of the ignition of his vehicle, and his wallet was ripped from a chain that was attached to his pants. Mr. Flores stated that his Warren Federal Credit Union debit card*fn1 was inside his wallet and, since the time of the robbery, there had been several unauthorized transactions made using that card.

[¶5] Deputy Camery of the Laramie County Sheriff's Department conducted a further investigation into the incident. He met with the Site and Support Manager at Warren Federal Credit Union and was able to determine that $939.80 of unauthorized charges had been incurred on the victim's debit card and that there was an additional $672.32 of attempted purchases. Deputy Camery also observed video surveillance footage from the local WalMart Super Center, King Soopers, and Sapp Brothers Truck Stop, which showed two individuals using the victim's card. These individuals were identified as Schon Shafer and Temen. Further, a King Soopers Valued Customer Card issued to Temen was used in conjunction with the stolen card at King Soopers.

[¶6] Deputy Camery interviewed Schon Shafer, and Shafer stated that Temen told him he had assaulted a man at The Den, ripped the keys out of his vehicle's ignition, stole his wallet, and then used his credit card to make purchases. Deputy Camery then interviewed an individual named Joshua Jennings. Jennings related that Temen also had told him that he assaulted a man and stole his credit card, and that he and Shafer then made various purchases using the credit card.

[¶7] On March 6, 2007, the circuit court issued an arrest warrant for Temen after he had been charged by information with one count of robbery, in violation of Wyo. Stat. Ann. § 6-2-401(a)(i) (LexisNexis 2007), and one count of credit card fraud, whereby he had obtained property worth in excess of $1,000.00, in violation of Wyo. Stat. Ann. § 6-3-802(a)(i) and (b)(iii). Temen's arraignment was held on March 26, 2007, and he entered pleas of "not guilty" to both charges.

[¶8] In preparation for trial, the State filed a notice of intent to introduce evidence pursuant to W.R.E. 404(b). That notice informed Temen that the State intended to introduce evidence regarding his previous conviction for forgery to prove his intent and the absence of mistake or accident with respect to the current charges of credit card fraud. Temen then filed a motion in limine regarding potential evidence that might be produced pursuant to W.R.E. 609, if his client testified. On September 10, 2007, the district court held a motions hearing, during which it heard extensive argument regarding the introduction of Temen's previous conviction, as well as the use of prior convictions to impeach him if he testified on his own behalf. The district court indicated that it likely would be admissible and that Temen should be prepared to further address that issue when it arose during the course of trial. However, the trial court also determined that it could not make a final ruling on the issue until other evidence was presented at trial.

[¶9] Trial commenced on September 18, 2007. On the second day of trial, the State filed a Motion to Amend Charges. The district court granted the motion, and Count II, formerly charging felony credit card fraud, was reduced to a misdemeanor. At the close of the State's case, the district court took judicial notice of the fact that Temen had been previously convicted of forgery, and so informed the jury. The parties had agreed to this method of introducing the W.R.E. 404(b) evidence.

[¶10] After Temen presented his case, which consisted solely of his own personal testimony, the jury returned guilty verdicts on both counts of the Amended Information. On January 11, 2008, the district court entered its Judgment and Sentence. Temen was sentenced to a term of incarceration of not less than eight nor more than ten years for the robbery and not less than four nor more than six months for the credit card fraud, with the sentences to run concurrently. He was also ordered to pay restitution and applicable fees. A timely notice of appeal was filed on January 24, 2008.

DISCUSSION

Amendment of the Information Mid-Trial

[¶11] Temen's contentions in this regard rely on W.R.Cr.P. 3(e) which provides:

(e) Amendment of information or citation. -- Without leave of the court, the attorney for the state may amend an information or citation until five days before a preliminary examination in a case required to be tried in district court or until five days before trial for a case not required to be tried in district court. The court may permit an information or citation to be amended:

(1) With the defendant's consent, at any time before sentencing.

(2) Whether or not the defendant consents:

(A) At any time before trial if substantial rights of the defendant ...


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