Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Appellant, Stuart Cordell Vigil, challenges his conviction of one count of third-degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-316(a)(i).*fn1 He contends the district court erred in admitting evidence in violation of W.R.E. 404(b). He also asserts that the jury instruction relating to that evidence was erroneous. We affirm.
[¶2] The issues on appeal are:
1. Did the district court commit prejudicial error by holding the hearing regarding the admissibility of W.R.E. 404(b) evidence during trial?
2. Did the district court abuse its discretion in admitting evidence of Appellant's prior conviction for sexual contact with a minor under W.R.E. 404(b)?
3. Was the limiting instruction provided to the jury relating to the 404(b) evidence erroneous and, if so, has the Appellant established that the error was prejudicial?
[¶3] The charges against Appellant stem from an incident that occurred on November 11, 2007. Appellant was 51 and the victim was 15. They were neighbors. On occasion, the victim and members of her family visited with Appellant at his home. The victim also frequently visited Appellant's home when no one else, except Appellant, was there. Appellant employed the victim to help clean his home. He gave her driving lessons and took her to restaurants.
[¶4] On the morning of November 11, 2007, Appellant invited the victim and her aunt and uncle to go out for breakfast. The victim went to Appellant's home to wait for a call from the aunt. While waiting, Appellant offered to give the victim a massage. He told her to go into his bedroom and to take off her clothes. The victim complied. She covered herself with a towel and laid face down on Appellant's bed. Appellant massaged her back, arms, and legs. At some point during this massage, he rubbed the victim's breasts and vaginal area. He used massage oil or lotion during the massage. Afterward, the victim showered and they left to meet the aunt and uncle for breakfast. Later that day, the victim told her boyfriend about the incident. The boyfriend told the victim's parents. They called law enforcement.
[¶5] Deputies from the Laramie County Sheriff's Department investigated and spoke with Appellant. He gave differing versions of the incident to the deputies. The deputies testified at trial. Appellant told the initial investigating deputy that he gave the victim a massage that morning. He said that the massage took place in his living room. He initially repeated the same story to a second deputy during an interview at the sheriff's department. During that same interview, he said the victim was fully clothed and he only massaged her back. However, he also admitted that he used oil during the massage. When questioned by the deputy as to how he could use the oil if the victim was clothed, he told the deputy that he had lifted up her shirttail and used the oil on the lower part of her back.
[¶6] An interview with a third deputy occurred after Appellant's arrest. In that interview, Appellant admitted to the deputy that the massage had occurred in his bedroom and that the victim was naked but covered with a towel. He told the deputy that he used oils during the massage. He denied that anything sexual happened but told the deputy that ―A little slip and you could be right there . [i]n her vagina.‖
[¶7] In January 2008, Appellant was charged with one count of third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. § 6-2-316(a)(i). Shortly after being charged, Appellant filed a demand for notice of intent to introduce evidence of uncharged misconduct under W.R.E. 404(b). In June 2008, the State replied by filing a notice of intent to introduce evidence of Appellant's past conviction for sexual contact with a 13-year-old girl in Colorado. On August 7, 2008, the State filed an amended notice of intent. In that notice, the State advised that it also intended to introduce evidence that Appellant married a 16-year old, after engaging in premarital sexual relations. In both notices, the State requested a hearing. On August 12, 2008, the State filed a request for a 404(b) hearing. Despite the requests, no hearing was held prior to trial.
[¶8] The 404(b) hearing occurred during the first day of trial after the jury had been selected but before opening statements. During the hearing, the district court ruled that Appellant's prior conviction was admissible to refute a claim of mistake or accident and to prove sexual intent. The judge indicated that the prior marriage evidence might be admissible in cross-examination if Appellant testified, but that he would reserve ruling on the matter until trial. Appellant did not testify and that evidence was not admitted. The jury found Appellant guilty. The district court imposed a sentence of twelve to fourteen years. This appeal followed.
Timing of the 404(b) Hearing
[¶9] In his first issue, Appellant challenges the timing of the 404(b) hearing. He contends that the court erred by failing to hold the hearing prior to trial. Appellant did not make any objection to the timing of the hearing at trial. Accordingly, we review for plain error. To establish plain error, Appellant must show: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) he was denied a substantial right which materially prejudiced him. Miller v. State, 2009 WY 125, ¶ 10, 217 P.3d 793, 798 (Wyo. 2009). Appellant has failed to satisfy that burden. He has not established a violation of a clear and unequivocal rule of law or that he was prejudiced by the timing of the hearing.
[¶10] We have expressed ―a firm preference for the pretrial determination of issues concerning uncharged misconduct.‖ Gleason v. State, 2002 WY 161, ¶ 18 n.2, 57 P.3d 332, 340 n.2 (Wyo. 2002) (emphasis in original), citing Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002). We have recognized that pretrial determination enhance[s] the defendant's prospects of receiving due process and a fair trial, it will also enhance the district court's ability to reflect and rule upon a significant evidentiary issue. Rulings on uncharged misconduct evidence are too important to be made in the heat and pressure of a trial, with the jury twiddling its thumbs in the next room.
Howard, ¶ 23, 42 P.3d at 491. We have, however, never found reversible error simply because the 404(b) hearing was not held prior to trial. For example, in Heywood v. State, 2009 WY 70, 208 P.3d 71 (Wyo. 2009), the 404(b) hearing was held at the same time as the hearing in this case, after jury selection and prior to opening statements. We affirmed the conviction finding that Mr. Heywood failed to establish prejudicial error despite late notice of the State's intent to use 404(b) evidence. Id., ¶ 13, 208 P.3d at 74. Similarly, in this case, Appellant has failed to establish that he was prejudiced in any manner as a result of the timing of the 404(b) hearing. He had ample notice of the State's intent to introduce the evidence. He does not claim that he was surprised by the evidence or that his trial preparation was hindered in any manner. Appellant has failed to establish plain error.*fn2
Admissibility of 404(b) Evidence
[¶11] ―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.‖ Leyva v. State, 2007 WY 136, ¶ 17, 165 P.3d 446, 452 (Wyo. 2007). ―[A]s long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal.‖ Id., quoting Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo. 2006). If evidence was admitted in error, we must determine whether the error was prejudicial. Solis v. State, 981 P.2d 34, 36 (Wyo. 1999). Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made. Id.
[¶12] Appellant contends that the district court abused its discretion by admitting evidence of his prior conviction. At the time of Appellant's trial, Rule 404(b) of the Wyoming Rules of Evidence provided:*fn3
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, ...