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Broberg v. State

Supreme Court of Wyoming

October 1, 2018

KIRK ELMER BROBERG, JR., Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Goshen County The Honorable Patrick W. Korell, Judge.

          Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Jesse Naiman, Assistant Attorney General.

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


         [¶1] Appellant Kirk Broberg, Jr. appeals from his conviction of second degree sexual assault contending the district court improperly admitted W.R.E. 404(b) evidence. We affirm.


         [¶2] Mr. Broberg presents the issue on appeal as: Did the trial court abuse its discretion by admitting evidence of prior bad acts absent notice from the State of its intent to offer such evidence and without conducting a Gleason hearing?


         [¶3] In the summer of 2015, Mr. Broberg lived with his first cousin, ML, her husband, and their children. On August 12, 2015, ML invited several people to their home for a bonfire, food, and drinks. Later in the evening, Mr. Broberg's girlfriend, AB, and her friend stopped by to see Mr. Broberg. Mr. Broberg and AB went into a bedroom and had intercourse. Thereafter, AB left the residence with her friend.

         [¶4] Around 10:30 p.m., ML and her husband went to bed and had intercourse. ML's husband left the room to watch a movie with the children in the living room, where he fell asleep. ML remained in the bedroom sleeping on her stomach. Mr. Broberg entered the room and awoke ML by engaging in sexual intercourse with her from behind. The room was dark and he pushed ML's head down into the pillow while whispering, "Don't wake the boys." ML believed he partially stuck his finger or his thumb into her anus as he whispered, "Are you ready for this?" ML quickly pulled away and said, "Not tonight, Babe," but continued having sexual intercourse believing she was having sex with her husband. Eventually, Mr. Broberg spoke in his regular voice and ML realized the man was Mr. Broberg. She immediately stopped the activity and covered up with her comforter. Mr. Broberg left the room, but came in a few minutes later and offered ML a cigarette. By this time, ML had turned on a light and was sitting on the edge of the bed, enabling her to observe Mr. Broberg's dark, black boxers with what she thought to be the "Martian from the Looney Toons . . . the cartoon guy" imprinted on them. After Mr. Broberg left the room again, ML went to the living room and woke her husband to tell him what happened. The couple confronted Mr. Broberg, who denied the incident and left the residence.

         [¶5] The following day, ML went to the emergency room where hospital staff reported the matter to law enforcement. The hospital staff performed a sexual assault examination with an officer present. Law enforcement officers gathered additional DNA samples from swabbing the cheeks of Mr. Broberg, ML, and her husband, a few days later. They also executed a search warrant and obtained a pair of Mr. Broberg's boxer shorts with an image of Eric Cartman[1] on them, along with other physical evidence from the residence.

         [¶6] The State Crime Lab analyzed the DNA samples provided and confirmed Mr. Broberg, ML, and her husband all contributed to the DNA mixture obtained from Mr. Broberg's boxers, along with a fourth unknown contributor. Thereafter, the State charged Mr. Broberg with two counts of second degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(iv) (Lexis Nexis 2017). Count I alleged anal penetration and Count II alleged vaginal intercourse.

         [¶7] Prior to trial, Mr. Broberg filed a demand for disclosure of W.R.E. 404(b) evidence. The State disclosed no such evidence. At trial, the State called AB as a witness. She testified about having intercourse with Mr. Broberg earlier that night; he "stuck his finger in [her] butt," and he did not ejaculate. Mr. Broberg's counsel did not object to this testimony. The State also called AB's friend, who testified she observed Mr. Broberg wearing a pair of black boxers with Eric Cartman on them on the night of the party.

         [¶8] Mr. Broberg's counsel moved for judgment of acquittal after the State rested. The district court denied the motion, finding the State presented sufficient evidence to establish a prima facie case.[2] Mr. Broberg then moved for a mistrial claiming portions of AB's testimony were improper pursuant to W.R.E. 404(b) and prejudicial. After taking the motion under advisement and allowing the defense to present its case, the district court denied the motion for mistrial. In its ruling, the district court prohibited the State from making any arguments Mr. Broberg acted in conformity with the events with his girlfriend and the alleged sexual assault of ML, but allowed the State to use the evidence to explain to the jury why there were four different sets of DNA on Mr. Broberg's boxers. Mr. Broberg's counsel declined the court's offer to provide a curative instruction, hoping to avoid calling more attention to AB's testimony.

         [¶9] The jury convicted Mr. Broberg of one count of second degree sexual assault for the vaginal intercourse, but acquitted him of the count related to anal penetration. Mr. Broberg timely appealed his conviction challenging the admission of W.R.E. 404(b) evidence relative to AB's testimony, absent notice from the State of its intent to introduce the evidence and a hearing pursuant to Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002).


         [¶10] Mr. Broberg asserts the district court abused its discretion by admitting AB's testimony concerning digital penetration, which he classifies as improper and unnoticed W.R.E. 404(b) evidence. The State contends the evidence does not implicate W.R.E. ...

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