Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Appellant, Frank Rodriguez, challenges his conviction on a felony charge of battery of a household member, third or subsequent offense, in violation of Wyo. Stat. Ann. § 6-2-501(f)(ii) (LexisNexis 2009). We will affirm.
[¶2] Mr. Rodriguez presents these issues:
1. Did the admission of the alleged victim's statements through the testimony of the investigator violate Appellant's right to confront the witness against him?
2. In denying Appellant's motion for judgment of acquittal, did the district court improperly shift the burden of proof to the defense?
3. Was defense counsel ineffective in (1) failing to object to the alleged victim's statements introduced through the testimony of the investigating officer, and (2) by calling the alleged victim as a witness, thereby waiving Appellant's argument that he had been denied the right to confront the witness?
4. Did the district court abuse its discretion by admitting evidence of uncharged misconduct and prior bad acts?
[¶3] Around noon on January 9, 2009, Mr. Rodriguez's girlfriend, RH, agreed to give him a ride in her car. The couple began to argue even before the car pulled away from the curb. RH later told the police officer that Mr. Rodriguez became "very belligerent, upset, [and] angry," and started calling her names. She got scared, pulled the car back to the curb, and jumped out of the car.
[¶4] As this occurred, three electrical workers were driving past in two separate vehicles. Each of the three witnessed different portions of the encounter between Mr. Rodriguez and RH, but collectively they testified about the entire incident. They saw RH jump out of the car, run in front of it "like she was trying to get away," and run toward the house. They saw Mr. Rodriguez jump out of the car and throw a book bag at her. When it struck her in the back, she "fell to the ground." As she tried to get up, Mr. Rodriguez "ran over, put his left hand down behind her neck, [and] pushed her to the ground." He then "hit her once when she was on the hood of the car, and then he hit her three more times . . . when she was on the ground." After that, RH retreated to the house, and Mr. Rodriguez walked away quickly. One of the witnesses called the police to report the incident.
[¶5] It took the police officer about five minutes to arrive at the scene. He contacted RH, who had gone inside the house. He questioned her about the incident, and in brief, she confirmed that Mr. Rodriguez had grabbed her and thrown her on the ground. The police officer's testimony about what she told him will be quoted at some length later in the discussion. On the basis of his discussion with RH, the police officer contacted Mr. Rodriguez and interviewed him. Mr. Rodriguez confirmed that RH was his girlfriend, that he had become very upset with her in the car, that she pulled the vehicle over, jumped out, and attempted to run away. He said that he had grabbed her by the jacket and shoulder in an effort to stop her from running away from him. He admitted to calling her profane names. At that point, the officer placed Mr. Rodriguez under arrest.
[¶6] At trial, RH was called as a witness by the defense. She testified that she and Mr. Rodriguez had gotten into an argument, but denied that he had hit her. Her testimony was that "he put his hand on my shoulder and asked me not to go."
[¶7] The jury apparently found the testimony of the electrical workers and the police officer more credible than RH's denial, and found Mr. Rodriguez guilty as charged. The district court sentenced him to three to five years imprisonment. Mr. Rodriguez appealed to this Court, seeking a reversal of his conviction.
Right to confront witness
[¶8] During trial, the police officer who first contacted RH related their conversation as follows:
Q. Officer, how long did it take you to arrive at the location where the victim was after you got the original call?
A. I was there very quickly. I would say, within less -- probably less than five minutes.
Q. And when you arrived at the scene, were you able to identify the victim when you arrived?
A. I was, at the residence.
Q. And when you contacted the victim, what was her physical and emotional state at that time?
A. She was out of breath. She was winded. She was very upset and distraught. She appeared to have lost her composure, and at that time, it appeared that she had been ...