Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Voigt, 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] Gary Marquess (the appellant) was tried and convicted by a jury of aggravated assault and battery, battery, kidnapping, and being a habitual criminal. The appellant appeals from the Judgment and Sentence, arguing that the district court abused its discretion when it admitted evidence of uncharged misconduct and prior consistent statements by the victim. We will affirm.
[¶2] The parties raise two issues in this appeal. Because of our disposition of the second issue we add a third issue to the statement of issues.
1. Did the district court abuse its discretion when it admitted evidence of the events that occurred on March 1, 2009?
2. Did the district court abuse its discretion when it admitted into evidence a 911 recording under W.R.E. 801(d)(1)(B)?
3. Was the 911 recording admissible under W.R.E. 802(2) as an excited utterance?
[¶3] The victim and the appellant met while they were in jail. The series of events leading to the appellant's arrest, trial, conviction, and current appeal occurred following his and the victim's release from jail. On Friday, February 27, 2009, the appellant, the appellant's brother, and the victim got together and drank alcohol and smoked methamphetamine. The three men spent the night at the victim's hotel room. The next day, Saturday, February 28, 2009, the three got together again, consumed alcohol, and again spent the night in the victim's hotel room.
[¶4] The victim testified that on Sunday, March 1, 2009, the appellant asked him about whether he had access to any guns because the appellant needed one "to do some dirt." The victim responded that his parents owned guns and that he could get a gun for the appellant. Later that evening the three men went to a trailer home owned by the appellant's friend. The victim testified that upon arriving at the trailer home the victim stayed in the front family room while the appellant and the appellant's brother made their way to a room located at the back of the residence. A short time later, the victim was summoned to the rear of the trailer by an acquaintance of the victim who asked if the victim was the guy "that knows where to get guns." Once the victim made his way to the rear of the trailer, he was ambushed and held at knife point by the appellant, the appellant's brother, and the acquaintance, who accused the victim of being a confidential informant, or "nark." After some discussion between the armed men and the victim, a third party intervened, the situation de-escalated, and the men left the residence. The men drove to the victim's hotel room where the appellant and the appellant's brother continued discussing the need to obtain guns. The three men once again spent the night in the victim's motel room.
[¶5] On Monday, March 2, 2009, the victim spent most of the morning with the appellant and the appellant's brother in the victim's hotel room. That afternoon, the appellant and the appellant's brother dropped the victim off at his parents' house. The victim testified that when the appellant dropped him off, the victim knew that the appellant wanted him to steal guns from his parents' house. After the victim spent several hours at his parents' house, his mother drove the victim back to his motel room around 9:00 p.m. The victim entered his hotel room to find the appellant and the appellant's brother waiting for him. The appellant asked the victim whether he had any guns for him, to which the victim responded that he did not. The victim testified that the appellant then became very upset, made the victim sit in a chair, and struck the victim in the face. The victim also testified that the appellant was holding a knife during the altercation and made threatening remarks regarding the victim's parents. At some point, the victim stood up from the chair and the appellant punched and kneed the victim and slashed him in the face with the knife. The appellant then left the room to go to the parking lot to get plastic bags, duct tape, and rope from the appellant's brother's truck. The victim attempted to escape through a window, but was stopped by the appellant's brother. Shortly after the appellant returned to the room, the victim escaped through the window. The victim ran to the hotel office where he locked himself in the manager's office and called 911.
[¶6] The appellant was arrested the next morning and charged with two counts of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i)(b) (LexisNexis 2009), conspiracy to commit aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i)(b), § 6-1-303(a), and § 6-1-304, and kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(iii), (b)(i), (d). The State later filed an Amended Information including reference to the habitual offender statute found at Wyo. Stat. Ann. § 6-10-201(a)(i)(b)(ii).*fn1 The appellant was tried on January 25, 2010. The jury found the appellant guilty of aggravated assault and battery, simple battery, and kidnapping. The jury returned a not guilty verdict regarding the conspiracy charge. Following a separate jury trial relating to the habitual offender status, the jury found the appellant guilty, and the district court decreed habitual offender status as it related to the aggravated assault and battery charge and the kidnapping charge. Several months later the district court sentenced the appellant to life imprisonment for the aggravated assault and battery conviction, 180 days for the battery conviction, and life imprisonment for the kidnapping conviction.*fn2 The district court ordered the convictions to run concurrently. The appellant timely appealed.
Did the district court abuse its discretion when it admitted evidence of the events that occurred on March 1, 2009?
[¶7] The appellant argues that the district court abused its discretion when it admitted testimony relating to the incident on the night of Sunday, March 1, 2009, when the appellant, the appellant's brother, and an acquaintance allegedly held the victim at knife point. Specifically, the appellant argues that this testimony was uncharged misconduct evidence, governed by W.R.E. 404(b)*fn3 , the State failed to provide adequate notice of its intent to use such evidence, and the district court failed to order a Gleason hearing relating to the evidence. The State counters that this evidence was not governed by W.R.E. 404(b) because it was direct evidence of one of the crimes charged, namely conspiracy. In the alternative, the State argues that the evidence would have been admitted under W.R.E. 404(b) as "course of conduct" evidence.
[¶8] Although the appellant made no contemporaneous objection to the admission of the evidence, he submitted a pre-trial demand for notice of intent to use W.R.E. 404(b) evidence. Generally, when there is an objection to the admission of evidence, we review the admission of that evidence for an abuse of discretion. Nelson v. State, 2010 WY 159, ¶ 29, 245 P.3d 282, 289 (Wyo. 2010). We have recognized that a pre-trial demand for notice of intent to use W.R.E. 404(b) evidence will act as a timely objection to the admission of W.R.E. 404(b) evidence at trial. Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002). However, as will be discussed below, we do not in this case consider the disputed evidence to be uncharged misconduct evidence, but instead direct evidence of one of the crimes charged. Consequently, the pre-trial demand for notice of intent to use W.R.E. 404(b) evidence did not substitute for a contemporaneous objection at trial to admission of the evidence.
[¶9] Because the appellant failed to object at trial to admission of the disputed evidence, we will review his claim for plain error. Sweet v. State, 2010 WY 87, ¶ 22, 234 P.3d 1193, 1202 (Wyo. 2010). "'Plain error exists when: 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) the party claiming error was denied a substantial right resulting in material prejudice.'" Id. (quoting Schreibvogel v. State, 2010 WY 45, ¶ 19, 228 P.3d 874, 882 (Wyo. 2010)). "The appellant bears the burden of proving plain error." Christensen v. State, 2010 WY 95, ¶ 6, 234 P.3d 1229, 1230 (Wyo. 2010).
[¶10] The first prong of plain error is met because the record clearly reflects testimony by the victim regarding the incident when the victim was held at knife point by the appellant and the other two men. As for the second prong-whether there was a transgression of a clear and unequivocal rule of law-the following has been ...