Appeal from the District Court of Carbon County The Honorable Wade E. Waldrip, Judge
The opinion of the court was delivered by: Hill, 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] After being convicted of one count of burglary, appellant Joshua Lascano (Lascano) appeals the verdict and argues that the State committed misconduct by misrepresenting the relevance of gang evidence. We disagree and affirm Lascano's conviction. Furthermore, we also affirm the district court's decision to admit the evidence.
[¶2] Lascano presents one issue:
The prosecutor committed misconduct by misrepresenting evidence that the trial court relied upon in formulating its decision letter of July 2, 2010, or in the alternative the trial court abused its discretion in failing to inquire into clarity that Lascano committed a bad act as required by Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002).
[¶3] In early October of 2009, JM (the victim) withdrew himself from gang activity after several years of association with a Rawlins gang, the "South Side Locos." The victim also dissociated himself with some of his friends, including Lascano, Santos Jaramillo (Jaramillo), and Aurelio Rodriguez (Rodriguez), who were also associated with gang activity.
[¶4] Later that month, on October 29, 2009, Lascano, Jaramillo, and Rodriguez spent the night together. That night, Jaramillo asked Rodriguez to steal a PlayStation3® and an Xbox360® from the victim's home. After some encouragement, Rodriguez agreed to do so, and the next day he broke into the victim's home, and stole the PlayStation3. Rodriguez delivered the PlayStation3 to Jaramillo, and Jaramillo gave Rodriguez $200.00 for it.
[¶5] The victim's mother noticed that the PlayStation3 was missing and filed a report with the police. During the investigation, Rodriguez admitted to the burglary and was charged thereafter. On December 22, 2009, the State charged Lascano and Jaramillo with conspiracy to commit burglary, in violation of Wyo. Stat. Ann. §§ 6-3-303(a) and 6-3-301(a) and (b) (LexisNexis 2011). Lascano pleaded not guilty, and the case proceeded to trial.
[¶6] Prior to trial, the State filed a W.R.E. 404(b) notice and indicated its intent to introduce evidence of Lascano's gang affiliation. The State surmised that Lascano and Jaramillo forced Rodriguez to burglarize the victim's home in retaliation for his renouncing his gang membership. After a hearing, the district court ruled that the gang evidence was admissible to prove motive and knowledge.
[¶7] Trial began on July 27, 2010, and over the State's objection, Lascano and Jaramillo were tried together. After the jury heard abundant testimony, it found Lascano guilty and sentenced him to six to ten years, with credit for 278 days.*fn1 The prison term was ...