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
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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ and BOOMGAARDEN, JJ.
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.
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?
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.
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.
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 on them, along with other
physical evidence from the residence.
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.
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.
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. 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.
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).
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. ...