Appeal from the District Court of Sweetwater County The Honorable Nena James, Judge
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jessica Y. Frint, Assistant Attorney General. Argument by Ms. Frint.
Before BURKE, C.J., and HILL, KITE, [*] DAVIS, and FOX, JJ.
[¶1] Grady Leroy Hodge was convicted of two counts of first-degree sexual abuse of a minor for sexually assaulting his teenage daughter. Prior to trial, the district court ruled certain uncharged misconduct evidence admissible, including testimony presented by an older daughter. On appeal, Mr. Hodge argues that the district court abused its discretion by allowing the evidence. After trial, Mr. Hodge's wife discovered some pictures that may have assisted in Mr. Hodge's defense. Mr. Hodge's attorney moved for a new trial pursuant to W.R.Cr.P. 33(c), which the district court denied. Mr. Hodge now alleges that his trial attorney was ineffective for not uncovering the evidence in time to be used at trial. Finally, Mr. Hodge alleges that his due process rights were violated when his appeal was delayed due to the court reporter's untimely filing of the transcripts from the district court proceedings. We affirm.
[¶2] 1. Did the district court abuse its discretion in admitting uncharged misconduct evidence at trial?
2. Did Mr. Hodge's trial counsel provide ineffective assistance?
3. Were Mr. Hodge's due process rights violated as a result of the court reporter's untimely filing of the transcripts from the proceedings below?
[¶3] Mr. Hodge was convicted of two counts of sexual abuse of a minor in the first degree for sexually assaulting his teenage daughter, R.H., on two separate occasions.Aside from the dates, the language included in the Information is identical for each count:
On or between the 1st day of May, 2012, and the 31st day of August, 2012, [ [Mr. Hodge] did, at a time when he was eighteen (18) years of age or older, inflict sexual intrusion on a victim; namely: R.H., who was less than eighteen (18) years of age, and while being the victim's legal guardian or an individual specified in W.S. 6-4-402, contrary to W.S. §6-2-314(a)(ii)--SEXUAL ABUSE OF A MINOR IN THE FIRST DEGREE[.]
[¶4] During discovery, Mr. Hodge filed a demand for notice of the State's intent to introduce evidence under W.R.E. 404(b). The State complied and filed its notice outlining the evidence that it intended to introduce, including prior incidents of sexual abuse R.H. suffered at the hands of Mr. Hodge while the family was living in Texas and after they moved to Wyoming; and prior acts of sexual abuse committed by Mr. Hodge against his older daughter, C.T., which also occurred while the family was living in Texas. The district court held a hearing and issued a lengthy decision letter allowing the State to introduce much, but not all, of the evidence outlined in its notice.
[¶5] As part of his trial strategy, Mr. Hodge attempted to demonstrate that one of the incidents of sexual assault charged could not have occurred within the time period asserted. This strategy revolved around a table made by Mr. Hodge and R.H. R.H. testified that one of the charged incidents occurred while Mr. Hodge and R.H. were working on a table they were making for R.H.'s mother (Ms. Hodge) in the family's shed. At trial, Mr. Hodge's attorney elicited testimony from various witnesses that the table had been finished before the dates of the charged conduct. During her testimony, Ms. Hodge produced a picture of the alleged table when it was finished, which was dated prior to the charged conduct. After the jury convicted Mr. Hodge, Ms. Hodge claims to have uncovered multiple additional pictures on the family computer demonstrating that the table had, in fact, been finished and placed in the family's home prior to the charged conduct. Mr. Hodge moved for a new trial pursuant to W.R.Cr.P. 33(c) on the basis of the newly discovered evidence. The district court denied the motion, finding that Mr. Hodge failed to establish each of the factors required to justify a new trial.
[¶6] Mr. Hodge filed his first notice of appeal on October 11, 2013. In a letter bearing the same date, Mr. Hodge's counsel requested that the court reporter prepare and file the transcripts for "all proceedings that you may have reported in this matter." At the time Mr. Hodge filed his notice of appeal, his motion for a new trial was still pending in the district court. Upon denial of his motion for a new trial, Mr. Hodge filed another notice of appeal on December 13, 2013, and a certification concerning the transcript on December 18, 2013. The court reporter filed three requests for an extension of time to file the transcripts―the first two requested ninety-day extensions and the third requested a thirty-day extension. The district court granted all three extensions. On August 7, 2014, the court reporter filed a notice stating that all of the transcripts had been filed.
[¶7] On appeal, Mr. Hodge argues that the district court abused its discretion by allowing the uncharged misconduct evidence to be presented to the jury. He also argues that he received ineffective assistance of counsel due to his trial attorney's failure to uncover the pictures in time to be used at trial, and that his due process ...