from the District Court of Campbell County The Honorable John
R. Perry, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General; Christyne M.
Martens, Senior Assistant Attorney General; Kelly M. Shaw,
Assistant Attorney General. Argument by Ms. Shaw.
BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.
Appellant, Jonathan Lee Volpi, was convicted of several
crimes arising from a violent episode involving his
girlfriend. He challenges his convictions for strangulation
of a household member, domestic battery, and two counts of
kidnapping. He claims the district court erred by
permitting the State to introduce evidence of prior instances
of misconduct involving the same victim. He also contends the
court violated his double jeopardy protections by entering
two separate convictions for kidnapping and by entering
separate convictions for domestic battery and strangulation
of a household member. We reverse Appellant's second
kidnapping conviction and affirm the remaining convictions.
Appellant presents three issues:
1. Did the district court abuse its discretion in allowing
the State to introduce evidence of uncharged misconduct?
2. Do the two convictions for kidnapping violate
Appellant's protections against double jeopardy?
3. Do the separate convictions for domestic battery and
strangulation of a household member violate Appellant's
protections against double jeopardy?
On June 27, 2015, Appellant and A.M., who was Appellant's
girlfriend at the time, attended a party. At some point,
Appellant asked A.M. to go outside with him. Once outside,
Appellant insisted on leaving the party immediately and did
not let A.M. go back inside to say goodbye to the other
guests or to put on her shoes. They went to her car. A.M.
thought that Appellant just wanted to go "down the
street to have sex in the car." They drove a short
distance and parked in a cul-de-sac. Appellant "brought
up the sex" and A.M. told him no "because there
were houses right there." Appellant then told her to
take him home. A.M. asked if she could go back to the party
for her shoes and cigarettes, and to say goodbye and
Appellant said "no." A.M. then proceeded to drive
towards their apartment.
During the drive, Appellant fooled with the gear shift,
attempting to shift it into park and reverse while the
vehicle was moving. A.M. stopped the vehicle in an effort to
avoid damage to the transmission and to convince Appellant to
stop that conduct. Once the vehicle was stopped, Appellant
grabbed the keys from the ignition and pretended to throw
them out the window. After A.M. exited the vehicle to search
for the keys, Appellant attacked her. He forced A.M. to her
knees, grabbed her by the hair, and slammed her head on the
ground. He then told A.M. that he still had the keys and the
two returned to the vehicle. A.M. sat in the passenger seat
and Appellant drove. During the drive, A.M. attempted to call
the police but Appellant grabbed her phone and threw it out
the window. He began speeding and A.M. begged him to stop. In
response, Appellant ripped off the sun visors and rear-view
mirror and threw them out the window.
When they arrived at their home, A.M. went in first. She
attempted to retrieve her dog and leave through the back
door. Before she could escape, however, Appellant discovered
that the dog had defecated on the floor. He picked up the
feces and shoved it into A.M.'s mouth. Appellant then
pinned A.M. to the floor, put her arm behind her back, and
sat on her. He then covered A.M.'s mouth and nose with
his hand. A.M. "could not breathe" and felt like
she was going to pass out.
Appellant eventually released A.M. and allowed her to get up.
She went to the kitchen sink to wash the feces from her
mouth. While she was at the sink, Appellant attacked her
again. This time, Appellant grabbed A.M. by her hair and
pushed her head into a cabinet. He then held a knife to her
throat. He told A.M. they were going to a hotel. When A.M.
stated that she did not want to go, Appellant picked her up,
walked out of the apartment, and threw her in the backseat of
her car. He then drove at high speeds toward the Cam-Plex,
outside of Gillette.
A deputy with the Campbell County Sheriff's Office
observed the car speeding towards him. He activated his
lights and pulled the car over. After stopping, Appellant
attempted to flee the scene. He was subsequently apprehended
and arrested. Law enforcement backup was called to the scene
and emergency medical personnel arrived and provided
treatment to A.M. Marijuana was discovered during a search of
the vehicle after Appellant was placed in custody. A.M. told
law enforcement that it belonged to Appellant. Appellant was
arrested and charged with a variety of crimes.
Prior to trial, Appellant requested notice of the State's
intent to offer evidence under Rule 404(b) of the Wyoming
Rules of Evidence. The State filed a response indicating its
intent to introduce evidence of two prior instances of
domestic violence committed by Appellant against A.M. and
evidence of Appellant's methamphetamine and prescription
drug abuse. Appellant objected. Following a hearing, the
district court entered an order permitting the State to
introduce evidence relating to the two prior instances of
domestic violence and excluding the drug abuse evidence.
After a three-day jury trial, Appellant was found guilty of
all charges except aggravated assault and battery. The
district court imposed concurrent sentences of imprisonment
on the misdemeanors: six months for domestic battery, twelve
months for interference with a peace officer, six months for
destruction of property, and six months for possession of a
controlled substance. For his conviction of strangulation of
a household member, Appellant was assessed a fine of $10, 000
and sentenced to three to five years of incarceration, to run
consecutively to the misdemeanor sentences. For each count of
kidnapping, Appellant was sentenced to a prison term of eight
to sixteen years. At the sentencing hearing, the court stated
that the sentences for kidnapping were to run consecutively
to the other sentences but concurrent with each other. The
written judgment, however, stated that Appellant's
sentences for kidnapping were to be served consecutively to
the other sentences and consecutively to each other.
Appellant filed a timely appeal.
Rule 404(b) Uncharged Misconduct
In his first issue, Appellant contends the district court
abused its discretion in admitting evidence of uncharged
misconduct under Rule 404(b). He challenges the admission of
evidence relating to two prior instances of misconduct. The
first incident occurred in October 2014, approximately eight
months before the events giving rise to the present case. The
second incident occurred approximately "a week or
two" prior to the events at issue.
Appellant contends that the evidence was not properly
admissible under W.R.E. 404(b), that the district court
failed to provide adequate justification for admission of the
evidence in its pretrial order, and that the "only
relevance appears to be as forbidden propensity
evidence." Appellant filed a pretrial demand for notice
of the State's intent to introduce evidence under W.R.E.
404(b), and objected to the admissibility of that evidence at
the pretrial hearing. Accordingly, we review the district
court's decision admitting the uncharged misconduct
evidence for an abuse of discretion. Dougherty v.
State, 2016 WY 62, ¶ 17, 373 P.3d 427, 432 (Wyo.
2016). In evaluating whether there has been an abuse of
discretion, we must determine whether the district court
could reasonably have concluded as it did. Id. As
long as there exists a legitimate basis for the trial
court's ruling, that ruling will not be disturbed on
[¶12] W.R.E. 404(b) provides:
(b) Other crimes, wrongs, or acts. - Evidence of
other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake
long recognized that admission of 404(b) evidence carries the
risk of inherent prejudice.
The general rule is, of course, that such evidence is not
admissible, and for good reason:
. . .
Especially in criminal cases, what may be called the basic
rule of exclusion is a rule of fundamental importance in
American law. It implements the philosophy that a defendant
should not be convicted because he is an unsavory person, nor
because of past misdeeds, but only because of his guilt of
the particular crime charged. In practical effect, the Rule
limits use of prior crimes, calling for exclusions where the
evidence tends only to show propensity. As the Supreme Court
has stated emphatically, such evidence is excluded
not because it is irrelevant, but because
"practical experience" teaches that exclusion
"tends to prevent confusion of issues, unfair surprise
and undue prejudice."
Wease v. State, 2007 WY 176, ¶ 59, 170 P.3d 94,
116 (Wyo. 2007) (emphasis in original) (quoting 1 Christopher
B. Mueller and Laird C. Kirkpatrick, Federal
Evidence, § 4:21, at 691-92 (3rd ed. 2007) (quoting
Michelson v. United States, 335 U.S. 469, 475-76, 69
S.Ct. 213, 218-19, 93 L.Ed 168 (1948))). Because of that
risk, we require a pretrial hearing to determine the
potential admissibility of proposed 404(b) evidence.
Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483,
491 (Wyo. 2002).
[¶13] We have listed the factors for testing the
admissibility of uncharged misconduct evidence under Rule
(1) the evidence must be offered for a proper purpose; (2)
the evidence must be relevant; (3) the probative value of the
evidence must not be substantially outweighed by its
potential for unfair prejudice; and (4) upon request, the
trial court must instruct the jury that the similar acts
evidence is to be considered only for the proper purpose for
which it was admitted.
Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d
332, 340 (Wyo. 2002); United States v. Herndon, 982
F.2d 1411, 1414 (10th Cir. 1992). We have instructed trial
courts to consider five factors when determining the
probative value of prior bad acts evidence:
1. How clear is it that the defendant committed the prior bad
2. Does the defendant dispute the issue on which the state is
offering the prior bad acts evidence?
3. Is other evidence available?
4. Is the evidence unnecessarily cumulative?
5. How much time has elapsed between the charged crime and
the prior bad act?
Gleason, ¶ 27, 57 P.3d at 342. Further, we
require the trial court to identify the purpose or purposes
for admission of the evidence, to articulate its findings
regarding relevance and probative value, and to list the
factors it considered in balancing probative value against
the potential for unfair prejudice. Id., ¶ 30,
57 P.3d at 343. We warned that the "'shotgun
approach' of listing every conceivable purpose for
admissibility, followed by a bald statement that probative
value outweighs prejudicial effect will no longer be
In this case, it is undisputed that a proper pretrial hearing
was held and that the district court provided its ruling in a
decision letter prior to trial. Appellant contends, however,
that the district court's findings are inadequate to
support admission of the evidence and that the district court
abused its discretion in admitting the evidence. We agree
[¶15] In an order entered by the district court
following the hearing, the court found
that the evidence regarding the events of June 20, 2015
(approximately one week prior to the events alleged in the
case at bar; Defendant's act of domestic violence against
the same victim) and in October 2014 (Defendant's
throwing nude victim out of bed and dragging her outside) are
admissible in the State's case in chief.
decision letter, incorporated into the order by reference,
the district court identified three purposes for this
evidence. We will address each in turn.
First, the court concluded that the evidence was relevant in
establishing A.M.'s state of mind and to place her
behavior in context. There are two primary concerns with this
ruling: (1) the evidentiary ruling should have been
conditional; and (2) the State failed to provide an adequate
basis for admission of course of conduct evidence.
In our precedent involving 404(b) evidence, we have routinely
emphasized the need for pretrial determination of 404(b)
evidentiary issues. As we stressed long ago and have
regularly repeated: "Rulings on uncharged misconduct
evidence are too important to be made in the heat and
pressure of a trial, with the jury twiddling its thumbs in
the next room." Howard, ¶ 23, 42 P.3d at
491; Garrison v. State, 2018 WY 9, ¶ 17, 409
P.3d 1209, 1215 (Wyo. 2018). We reaffirmed our preference for
pretrial determination of 404(b) issues recently in
Garrison, ¶ 18, 409 P.3d at 1215:
To ensure there is no doubt in the future as to the timing of
the Gleason analysis, while maintaining our
preference for a pretrial determination, we hold that, at a
minimum, the Gleason analysis must be made
contemporaneously with the ruling on admissibility and prior
to the admission of any 404(b) evidence.
emphasizing the preference for pretrial determination,
however, we also cautioned that not all 404(b) issues can be
definitively resolved prior to trial. In many situations, a
conditional ruling is appropriate. "We recognize that,
at times, the trial court can only make a conditional 404(b)
ruling pretrial, and must make a final ruling during trial
after determining other evidentiary matters such as
foundation." Id., ¶ 18 n.2, 409 P.3d at
1215 n.2. See also W.R.E. 104(b) ("When the
relevancy of evidence depends upon the fulfillment of a
condition of fact, the court shall admit it upon, or subject
to, the introduction of evidence sufficient to support a