Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General;
Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General. Argument by Mr. Pope.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] A jury found the appellant guilty of three counts of first-degree sexual abuse of a minor. On appeal, the appellant raises four separate allegations of error in the district court. We will reverse on the single issue set forth below and remand the matter to the district court for further proceedings.
[¶ 2] Did the district court abuse its discretion when, under the particular circumstances of this case, it reversed its prior ruling and admitted certain uncharged misconduct evidence under W.R.E. 404(b), such reversal occurring after the State had rested?
STANDARD OF REVIEW
[¶ 3] Our standard for reviewing decisions regarding the admissibility of uncharged misconduct evidence under W.R.E. 404(b) is as follows:
We review claims of error concerning the improper admission of W.R.E. 404(b) evidence for abuse of discretion and will not reverse the trial court's decision absent a clear abuse. Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo.2006). A trial court abuses its discretion when it could not have reasonably concluded as it did. Id. In this context, " reasonably" means sound judgment exercised with regard to what is right under the circumstances and without being arbitrary or capricious. Id.
Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo.2007).
[¶ 4] On October 28, 2011, the appellant was arraigned in the district court on one count of second-degree sexual abuse of a minor, and three counts of first-degree sexual abuse of a minor. The alleged victim of all four crimes was the appellant's eleven-year-old niece. On October 10, 2011, the appellant filed a general discovery demand that included a demand for notice of the State's intent to introduce evidence under W.R.E. 404(b). The appellant's discovery demand, including notice of the State's intent to introduce evidence under W.R.E. 404(b), was granted by an order of the district court filed on November 12, 2011.
[¶ 5] More than three months later, and only a few days before trial, the State filed its Notice of Intent to Introduce 404(b) Evidence. In that notice, the State indicated that it intended, among other things, to call A.M. to testify as the victim of appellant's conviction of the crime of indecent liberties with a minor in 1994, about eighteen years prior to the current event. In response, the appellant filed a Motion in Limine opposing admission of the State's evidence. A few days later, the appellant filed a lengthier objection to admission. In his objection, the appellant analyzed the factors this Court set forth in Gleason v. State, 2002 WY 161, ¶ 27, 57 P.3d 332, 342 (Wyo.2002), for district courts to follow in determining whether to admit uncharged misconduct evidence under W.R.E. 404(b). In contesting admission of the evidence, the appellant focused upon his lack of any opportunity at that late date to develop a response to the evidence, and upon the unfair prejudice to him of telling the jury about an eighteen-year-old conviction for an offense similar to the one presently charged.
[¶ 6] The State responded to the appellant's motion and objection with a brief filed on March 8, 2012. The State contended that the testimony about the prior events and conviction was being offered to prove motive, to corroborate the victim's testimony, to show that the appellant followed a general course of conduct or plan with each victim, and to prove the appellant's identity as the perpetrator of the presently charged crime.
[¶ 7] On the first day of trial, prior to voir dire, the district court heard the appellant's objections to the uncharged misconduct evidence. As to the testimony of A.M. in regard to the ...