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Wimbley v. State

June 2, 2009

NATHAN L. WIMBLEY, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Goshen County The Honorable Keith G. Kautz, Judge.

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

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

[¶1] Nathan Wimbley was convicted and sentenced on one felony count of obtaining property by false pretenses in violation of Wyo. Stat. Ann. § 6-3-407(a)(i) (LexisNexis 2007). On appeal, he asserts that the district court improperly admitted evidence of other misconduct that should have been excluded pursuant to W.R.E. 404(b), and evidence that was unduly prejudicial and should have been excluded pursuant to W.R.E. 403. We will affirm.

ISSUES

[¶2] Mr. Wimbley presents these appeal issues:

1. Did the trial court err in its overbroad admission of evidence under W.R.E. 404(b)?

2. Did the trial court err in admission of argument and evidence that Mr. Wimbley was on parole for another offense and that he was incarcerated in Yuma County, Colorado?

FACTS

[¶3] Joseph Lex Madden is one of the owners of Torrington Livestock Markets, LLC. According to Mr. Madden‟s trial testimony, he received a telephone call from a man who identified himself as Nathan Wimbley. Mr. Wimbley said that he was a broker and dealer in pipe, and that he had pipe in Denver he wanted to sell. As it happened, Mr. Madden was interested in purchasing some pipe, and agreed to purchase one semi-truck load of pipe, or 9,000 feet, for 80ó per foot, or $7,200. Mr. Madden believed this was a good deal, as he thought that the going price for such pipe was $1.00 to $1.25 per foot. Mr. Wimbley indicated that, because he had never done business with Torrington Livestock Markets before, he wanted the $7,200 wired to him in advance. Mr. Madden wired the money from his bank in Torrington, Wyoming, to Mr. Wimbley‟s account at a bank in Cahokia, Illinois.

[¶4] The pipe was supposed to be delivered the following day. It was not. Mr. Madden tried to contact Mr. Wimbley, but Mr. Wimbley did not answer the phone. Mr. Madden left messages, but Mr. Wimbley never returned his calls. Mr. Madden then asked his Special Projects Manager, Doug Chamberlain, to look into the situation.

[¶5] Mr. Wimbley answered Mr. Chamberlain‟s phone call. Asked about the pipe, Mr. Wimbley said that there had been problems arranging for its transportation to Torrington. He said that he could deliver the pipe within a month. Mr. Chamberlain said that was not acceptable, and asked Mr. Wimbley to return the $7,200. Mr. Wimbley agreed to return the money, but he never did, nor did he ever deliver the pipe. Mr. Chamberlain contacted law enforcement authorities, and Mr. Wimbley was charged with obtaining property by false pretenses, in violation of Wyo. Stat. Ann. § 6-3-407(a)(i).*fn1

[¶6] More than a month before trial, Mr. Wimbley‟s counsel filed a "Demand Pursuant to Rule 404(b)," seeking notice of the State‟s intent to introduce any evidence under W.R.E. 404(b). The State provided its notice nine days later. It listed two different types of evidence it intended to offer at trial.

[¶7] The first was testimony from several persons to the effect that Mr. Wimbley had offered to sell them either pipe or fertilizer, and had requested payment in advance. Some of them had made the advance payment, but never received the product. In connection with this testimony, the State also intended to offer testimony from a representative of Mr. Wimbley‟s bank that when Mr. Wimbley‟s account was credited with these advance payments, Mr. Wimbley immediately withdrew the money and depleted the account. The State contended that this evidence demonstrated "a plan, scheme and course of conduct between [Mr.] Wimbley and his "customers,‟" and was "relevant to show [Mr.] Wimbley‟s false pretenses and intent to defraud."

[¶8] The second was testimony from Mr. Wimbley‟s parole officer in Illinois, who could provide identifying information concerning Mr. Wimbley. This evidence was needed to establish identity, the State asserted, because Mr. Madden and Mr. Chamberlain had only talked to Mr. Wimbley by telephone, and had never met with him in person. Shortly after filing the written notice, the State notified counsel for Mr. Wimbley that it also intended to offer testimony from an official from the jail in Yuma County, Colorado, where Mr. Wimbley had been incarcerated. This testimony was ...


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