Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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] A jury convicted Larry Magnus of conspiracy to obtain property by false pretenses, and the district court sentenced him to a prison term of eight to ten years. On appeal, Magnus challenges the admission of uncharged misconduct evidence and alleges prosecutorial misconduct in the State's sentencing recommendation. We affirm.
[¶2] Magnus presents the following issues on appeal:
I. Did the district court abuse its discretion in admitting into evidence testimony of a prior incident where Mr. Magnus had solicited money in a similar manner under W.R.E. 404(b)?
II. Did prosecutorial misconduct occur when the State argued undocumented allegations in a Memorandum in Respect of Sentencing?
[¶3] In 2011, Larry Magnus and his wife, Deb Magnus, representing themselves as a charitable organization for disabled and disadvantaged children, solicited and collected donations from individuals and businesses in Gillette, Wyoming. In conducting their operation, Deb Magnus generally would make the solicitations and Larry Magnus would collect the donations.
[¶4] Deb Magnus called numerous donors and requested a charitable donation of between twenty-five dollars and one-hundred dollars to send disabled or disadvantaged children to attend a magic show. She informed potential donors that any contribution was tax deductible as a donation to a charitable or non-profit organization. In at least one instance, Deb Magnus represented that she was affiliated with the Board of Cooperative Educational Services (BOCES), an organization that provides education services and programs for children with special needs. After Deb Magnus received a commitment from a donor, Larry Magnus would collect the donation in person. Between January and March 2011, Larry Magnus collected donations from the Gillette community totaling $12,720.00. Contrary to what the donors were told, Larry and Deb Magnus were making a profit from the sales of the children's show tickets.
[¶5] On March 11, 2011, the State charged Larry Magnus with one count of obtaining property by false pretenses, which it later amended to a charge of one count of conspiracy to obtain property by false pretenses. On June 3, 2011, the State provided notice of its intent to present uncharged misconduct evidence pursuant to W.R.E. 404(b), identifying three prior incidents in which Magnus had engaged in conduct similar to the facts underlying the conspiracy charge. The first two incidents occurred in 2001 and involved solicitations for charitable donations to junior police academies in Casper, Wyoming and Evans, Colorado. Neither Casper nor Evans had a junior police academy program associated with the city police department. The third incident occurred in 2008 in Loveland, Colorado and was a conviction for charitable fraud in relation to solicitations for a Loveland Children's Show. The State's notice identified each incident and the proposed witnesses who would testify regarding each incident, but it did not provide any biographical informational concerning the witnesses.
[¶6] Magnus objected to the proposed uncharged misconduct evidence, and on July 12, 2011, the district court held a Gleason hearing. During the Gleason hearing, the State described the prior incidents and the purposes for which it sought to introduce the evidence, but it again did not provide biographical information concerning the witnesses. Magnus argued that the State had failed to articulate with sufficient specificity the purposes the evidence was intended to serve. After taking the matter under advisement, the court, on July 14, 2011, issued an order allowing the uncharged misconduct evidence.
[¶7] On appeal, Magnus contests only the admission of the 2008 Loveland, Colorado conviction. Concerning admissibility of that evidence, the district court included the following findings in its order allowing the uncharged misconduct evidence:
(iii) Loveland, Colorado: the court finds the evidence of this incident is relevant to each of the proper purposes above-noted. Specifically, the incident, if believed by the jury, demonstrates the following with respect to the instant case: the Defendant had the intent to violate the law as charged; he had the motive to do so (self-enrichment); he had knowledge of the fraudulent nature of his activity in the instant case inasmuch as he had in the prior instance been warned off his enterprise by law enforcement; and, for the same reason, he could not claim his activity in the instant case amounted to a mistake or an accident. Furthermore, the other act or wrong -- and, with respect to this particular instance, a criminal conviction for charitable fraud -- evidences a course of conduct or modus operandi on the part of the Defendant.
4. . In evaluating each specific alleged instance, it is sufficiently clear the Defendant committed the prior acts, wrongs or, in the case of Loveland, Colorado, the prior crime alleged. As well, the defense appears to be the Defendant had no criminal intent in engaging in the activities charged in the Amended Felony Information. Therefore, his state of mind in engaging in these activities is squarely at issue. Certainly other evidence is available with respect to the charge contained in the Amended Felony Information -- that is, evidence surrounding the presently charged acts -- and the court weighs this fact in its decision. However, the evidence of other acts, wrongs or crimes is not unnecessarily cumulative. It establishes a pattern of fraudulent activity on the part of the Defendant utilizing a repeated modus operandi.
6. The prior instances of conduct are no more reprehensible than the present alleged instance of conduct. Therefore, the jury will not be tempted to punish the Defendant for the prior acts. In respect to the Loveland, Colorado act, the Defendant has already been punished by conviction of charitable fraud.
7. The alleged victims of the prior acts were no more vulnerable or sympathetic than the alleged victims in the instant case -- in all instances the alleged victims were members of the general public. Therefore, the jury will not be tempted to punish the Defendant on account of any special vulnerability of the alleged victims in the previous instances.
10. The prior alleged instances of conduct on the part of the Defendant are more relevant to the proper purposes announced (intent, motive, knowledge, course of conduct, modus operandi, absence of mistake or accident) than they are probative of bad character. The Defendant, according to these prior acts, had an especial proclivity for charitable fraud and, in this regard, his modus operandi and pattern were idiosyncratic and strong.
[¶8] On September 20, 2011, the jury trial began on the charge against Magnus. During the trial, the State presented the testimony of thirty-four victims from the Gillette community concerning the solicitations and donations related to the charged crime. The State also presented uncharged misconduct evidence on two of the three prior incidents identified in its pretrial notice, the Casper junior police academy solicitations and the Loveland children's show solicitations. Before each witness' testimony concerning an incident of uncharged misconduct evidence, the district court read the jury a cautionary instruction defining the purposes for which the jury was permitted to consider the evidence. The instruction was repeated during the State's closing argument.
[¶9] With respect to the Loveland incident, the State presented the testimony of a Loveland police detective who investigated the incident and the testimony of an elderly individual from whom Magnus had attempted to collect a donation for the Loveland show. Magnus did not object to the elderly Loveland witness as unfairly sympathetic either before trial or when she was called to testify.
[¶10] On September 22, 2011, the jury returned a guilty verdict, and on October 14, 2011, the district court entered a Judgment Upon Jury Verdict. Before Magnus' sentencing hearing, the State filed a Memorandum in Respect of Sentencing. In its memorandum, the State recommended the maximum sentence of eight to ten years of imprisonment.
Due to the volume of victims, the effect of his actions on the victims, the amount of money collected in this case, and the Defendant's history of criminal activity, the State respectfully argues that the Defendant be sentenced to a term of imprisonment for not less than eight (8) years nor more than ten (10) years, to be served consecutively to any term imposed by the court in the pending probation revocation proceeding in Case No. 2008CR826, Larimer County, Colorado. Upon release, the Defendant should also be ordered to pay restitution to the victims in the amount of $12,720.00.
[¶11] In support of its recommendation, the State attached a spreadsheet identifying over three hundred Gillette businesses and individuals from whom Magnus solicited and collected donations. The State also urged the district court to consider the uncharged misconduct, including the two incidents for which evidence was presented at trial: the Casper junior police academy incident, citing the testimony of a former Casper police detective; and the Loveland incident, citing the testimony of the Loveland detective. Also included in the uncharged misconduct that the State argued should be considered in sentencing were allegations that Magnus had engaged in similar uncharged misconduct in Casper and Cheyenne. The State's memorandum cited to a "review of the deposit tickets and copies of negotiated checks obtained by the Gillette Police Department for Bank of the West Account No. 803012962, . d/b/a The Children's Show," which showed deposits of approximately $143,000.00 worth of checks made out to the Cheyenne Children's Show and the Casper Children's Show.
[¶12] On November 15, 2011, Magnus filed an Objection to Presentence Investigation Report and Motion to Strike Portions of the Report. Magnus objected to the tone of the report as lacking neutrality and siding with the State's sentencing recommendation, and he objected to the attachment of the State's memorandum to the presentence investigation (PSI) report. In objecting to the PSI report, Magnus challenged the State's support for its victim restitution claim, but he did not otherwise object to the ...