from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Kirk A. Morgan, Senior
Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
James M. Causey, Senior Assistant Attorney General; John A.
Brodie, Assistant Attorney General. Argument by Mr. Causey.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant Brandon Wiese was convicted of one count of
burglary. Wiese argues on appeal that he was prejudiced by
the admission of what he contends was uncharged misconduct
evidence. He also claims that prosecutorial misconduct
occurred during closing argument. He contends that his
conviction should be reversed for these reasons. We affirm.
1. Was Wiese prejudiced by the introduction of uncharged
the State commit prosecutorial misconduct rising to the level
of plain error?
On December 17, 2014, a housekeeper employed by the Holiday
Inn of Cheyenne called the front desk to report that a man
was harassing the hotel staff on the fifth floor. The
housekeeper believed he was in Room 527. Front desk employees
reviewed their records and found that Room 527 was registered
to a woman who appeared to have already checked out. The
hotel's branch office manager called Room 527, and a man
answered the telephone. With slurred speech, he agreed to
come to the front desk to sort out room arrangements as the
Soon thereafter, hotel staff in the lobby area saw a man they
suspected to have been in Room 527 come downstairs. The
hotel's human resources manager, who had been alerted to
the situation, noticed that he "was acting very
erratically" and appeared to be out of place. Instead of
coming to the front desk, he went to the bar to order a
drink. The human resources manager instructed the bartender
not to allow him to make any charges to a room, because she
didn't think he had one. Now needing cash to pay, he went
to an ATM in the lobby area, after which, however, he went
back upstairs instead of returning to the tavern. At that
point, the front desk staff called police.
Three Cheyenne Police Department officers responded to the
call. They encountered Wiese in the hallway immediately upon
reaching the fifth floor. Detective Kniss and Officer
Fernandez approached and began speaking with him. He smelled
like alcohol and acted intoxicated, and his hands were
covered with a black residue. For their own safety, the
officers patted Wiese down and discovered a small and nearly
empty bottle of whiskey. When they asked Wiese what he was
doing at the hotel, he told them that a friend had paid for a
room so that he could stay in the hotel, but he was unable to
provide the friend's name.
Meanwhile, Officer Serkerka entered Room 527 with a hotel
manager and spotted a black duffel bag stashed behind the
sofa. The bag contained, among other things, bottles of pills
prescribed to a Donald Gregory. Detective Kniss joined
Officer Serkerka in Room 527 and they found an opened
gunpowder container with its contents partially spilled onto
the counter and floor of the bathroom. The gunpowder appeared
to be the same black residue they had seen on Wiese's
hands. The room also reeked of cologne.
While Room 527 was being searched, hotel staff notified the
officers that the guest across the hall in Room 526 had
reported his bag missing. Officer Sekerka took the duffel bag
to Room 526, and the guest, the same Donald Gregory whose
name appeared on the pill bottles, identified it as the bag
that had disappeared from his room. He also claimed the
gunpowder and the cologne wafting through the air in Room
527. Officers then placed Wiese under arrest.
At one point, either during the initial pat down or at the
time of his arrest, officers also found keycards to various
hotels in Wiese's pocket. Several keycards belonged to
the Holiday Inn. The day after Wiese's arrest, a Holiday
Inn manager went to Room 527 and discovered more keycards and
a housekeeping smock from a different hotel.
Wiese was charged with two counts of burglary under Wyo.
Stat. Ann. § 6-3-301(a) (LexisNexis 2013) for unlawfully
entering Rooms 526 and 527 at the Holiday Inn. At Wiese's
preliminary hearing, the circuit court dismissed the burglary
count related to Room 527 because the State failed to prove
probable cause to support the charge. The case was bound over
to district court, and Wiese pled not guilty to the remaining
burglary charge associated with the bag taken from Room 526.
Prior to trial, Wiese filed a Demand for Notice of
State's Intent to Use Evidence Pursuant to Wyoming's
Rule of Evidence 404(b). The State did not provide
notice that it intended to use Rule 404(b) evidence at trial,
and consequently the district court did not hold a hearing on
that issue. The evidence now claimed to be subject to Rule
404(b) and improperly received consists of the keycards and
The evidence presented at trial is reflected in the statement
of facts above. The State's theory was that Wiese entered
the hotel and went to the fifth floor, where he likely found
the door to Room 527 propped open by housekeeping staff. The
previous guest in that room had checked out without coming to
the front desk, and the State hypothesized that she left her
keycard, which was still activated, so that after taking it
Wiese could come and go from that room as a base of
operations. The keycards found on his person were scanned,
and one which would open Room 527 was still active.
Housekeeping staff had a practice of propping the doors of
blocks of rooms to be cleaned open with the security latchs.
In the State's view, Wiese would then have been able to
enter Room 526 and steal the bag which he ...