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Wiese v. State

Supreme Court of Wyoming

July 18, 2016

BRANDON FREDERICK WIESE, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal 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.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          DAVIS, Justice.

         [¶1] 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.


         [¶2] 1. Was Wiese prejudiced by the introduction of uncharged misconduct evidence?

         2. Did the State commit prosecutorial misconduct rising to the level of plain error?


         [¶3] On December 17, 2014, a housekeeper employed by the Holiday Inn of Cheyenne[1] 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 manager requested.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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.

         [¶9] 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.[2] 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.

         [¶10] 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 smock.

         [¶11] 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.

         [¶12] 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 ...

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