Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge.
The opinion of the court was delivered by: Golden, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.
[¶1] A jury convicted Appellant William T. Roden of conspiracy to commit aggravated robbery, two counts of aggravated robbery, and two counts of aggravated assault and battery. Roden seeks reversal of those convictions, asserting numerous evidentiary errors at trial. We will affirm.
[¶2] Roden presents the following issues for our review:
I. The State‟s introduction of alleged other bad acts by William Roden, despite its failure to notify the defense of its intent to use 404(b) evidence, resulted in reversible error.
II. The trial court committed plain error by allowing the State to elicit testimony from witnesses that they pled guilty to charges similar to that for which William Roden was on trial and which arose out of the same criminal transaction.
[¶3] On September 9, 2007, Ryan Ott gave his girlfriend, Keyla Hodges, $5,000.00 he had received from Roden, along with $5,000.00 of his own money, and sent her to buy a pound of methamphetamine. When Hodges returned an hour later, she had neither the money nor the drugs in her possession. This incited Ott to devise a plan to recover either the money or the drugs.
[¶4] Ott had Hodges show him where the alleged failed drug deal occurred. After identifying the location, Ott went to Roden‟s shop to enlist his assistance in the recovery. Roden and Ott discussed their options and then drove to the home they believed belonged to Nathan Luth and Dusty Henderson -- the two men from whom Hodges claimed she had attempted to purchase the methamphetamine earlier that day. They then broke a window and entered the home, only to discover they had the wrong residence.
[¶5] After realizing their mistake, Roden and Ott left the area and picked up Hodges, who then assisted the men in locating the correct house.*fn1 Upon arriving at the location, they parked their vehicle across the street and discussed their plans for retrieving the money. During that discussion, Hodges described the layout of the house and the possible location of the occupants. She also informed the men there was a sword located near the front door and that there were dogs in the house. Thereafter, Ott armed himself with a shotgun, and the two men, both disguised in bandanas and hoodies, exited the vehicle and entered the residence.
[¶6] Once inside, Roden grabbed the sword Hodges had described. The two men then went to Henderson‟s bedroom, kicked in the door, and ordered Henderson to follow them. In the process, Ott struck Henderson in the forehead with the barrel of the shotgun, causing a large gash that ultimately required fourteen stitches. The men then proceeded across the hall to Luth‟s bedroom, where they also kicked in the door, struck Luth in the head with the shotgun, and ordered him to accompany them. Roden and Ott escorted the men downstairs to the living room and directed them to lie down on the floor. While Ott held Luth and Henderson at gunpoint, Roden ransacked the house to find the money. When Roden‟s efforts proved unsuccessful, the men demanded the location of the money and hit, kicked and threatened Luth and Henderson with the shotgun and sword. After a period of time, Roden and Ott realized that Luth and Henderson did not have the money and left the residence, taking with them, among other things, the sword, Luth‟s cell phone and iPod, and drug paraphernalia. The men returned to their vehicle, where Hodges was waiting, and the threesome drove away from the scene.
[¶7] Ott and Hodges were arrested a few weeks later in South Dakota. During an interview following her arrest, Hodges implicated herself, as well as Roden and Ott, in the robbery of Luth and Henderson, and provided police with the location of the stolen sword. Based on Hodges‟ statements and the post-robbery investigation, the State charged Roden with conspiracy to commit aggravated robbery in violation of Wyo. Stat. Ann. §§ 6-1-303(a) and 6-2-401(a) and (c) (LexisNexis 2009), two counts of aggravated robbery under Wyo. Stat. Ann. § 6-2-401(a) and (c) (LexisNexis 2009), and two counts of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) and (b) (LexisNexis 2009). A jury later convicted Roden on all five counts, and the district court imposed an overall prison sentence of thirty to fifty years. This appeal followed. Additional facts will be set forth as needed in our discussion of the issues.
[¶8] Where an objection is posed, we review a trial court‟s evidentiary ruling for an abuse of discretion.
A trial court‟s decision on the admissibility of evidence is entitled to considerable deference, and will not be reversed on appeal unless the appellant demonstrates a clear abuse of discretion. "[A]s long as there exists a legitimate basis for the trial court‟s ruling, that ruling will not be disturbed on appeal." Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo. 2006).
Leyva v. State, 2007 WY 136, ¶ 17, 165 P.3d 446, 452 (Wyo. 2007). If we conclude the trial court erred in admitting evidence, we must then consider whether the error was prejudicial or harmless. W.R.A.P. 9.04.
[¶9] When no objection is lodged in the trial court to the evidence challenged on appeal, we apply our plain error standard of review. Plain error will not be found unless:
(1) the record clearly shows the alleged error; (2) the party claiming the error demonstrates a violation of a clear and unequivocal rule of law; and (3) the party proves the violation adversely affected a substantial right resulting in material prejudice. Miller v. State, 2006 WY 17, ¶ 15, 127 P.3d 793, 797-98 (Wyo. 2006). Whether an error is reviewed on the basis of plain error or on the basis of harmless error, our primary focus is whether the appellant‟s case was so seriously prejudiced by the error that he was denied a fair trial. Butcher v. State, 2005 WY 146, ¶ 38, 123 P.3d 543, 554 (Wyo. 2005); Lopez v. State, 2004 WY 103, ¶ 56, 98 P.3d 143, 157 (Wyo. 2004). This involves a determination as to whether, "based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused." Lopez, ¶ 56, 98 P.3d at 157. The burden of establishing prejudicial error rests upon the appellant. Butcher, ¶ 39, 123 P.3d at 554.
[¶10] At the time of Roden‟s trial, W.R.E. 404(b) provided:*fn2 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, ...