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Volpi v. State

Supreme Court of Wyoming

June 14, 2018

JONATHAN LEE VOLPI, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal 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.

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

          BURKE, Chief Justice.

         [¶1] 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.[1] 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.


         [¶2] 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?


         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.[2]

         [¶8] 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.

         [¶9] 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.


         I. Rule 404(b) Uncharged Misconduct

         [¶10] 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.

         [¶11] 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 appeal. Id.

          [¶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 or accident.

         We have 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 404(b):

(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 act?
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 sufficient." Id.

         [¶14] 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 with Appellant.

          [¶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)[3] 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.[4]

         In its decision letter, incorporated into the order by reference, the district court identified three purposes for this evidence. We will address each in turn.

         [¶16] 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.

         [¶17] 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.

         In 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 ...

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