Summary 2007 WY 20

Summary of Decision issued February 1, 2007

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Case Name: Bromley v. State

Citation: 2007 WY 20

Docket Number: 05-229

Appeal from the District Court of Albany County, the Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Ryn R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Issue: Whether the trial court erred in admitting uncharged misconduct evidence. Whether the trial court gave an erroneous limiting instruction to the jury regarding the uncharged misconduct evidence. Whether sufficient evidence exists in the record to support appellant’s convictions for counts 2 and 3. Whether appellant’s sentence is illegal because counts 2 and 3 should have been merged for sentencing purposes.

Facts/Discussion: (1) Admission of Uncharged Misconduct Evidence: The Court reviews claims of error concerning the improper admission of W.R.E. 404(b) evidence for abuse of discretion and will not reverse the trial court’s decision absent a clear abuse.
Evidence Considered Prior to Trial: The Court reviewed the 404(b) evidence presented by the State and the district court’s findings. The findings are not of the sort the Court described in Gleason as aiding appellate review. However, the Court has said that course of conduct evidence is admissible to give the jury a complete story when it is relevant and necessary to tell the complete story for the jury’s understanding. The district court properly admitted the evidence to show Bromley’s course of conduct. The district court also reasonably concluded the value of the evidence outweighed its potential for prejudice.
Testimony Not Considered Prior to Trial: Prior to trial but after the district court’s ruling on the motion to exclude Rule 404(b) evidence, the State filed an amended witness list identifying Ms. Vigil as a potential witness and indicated her expected testimony. The defense did not move to exclude the witness or her testimony prior to trial and the district court did not conduct a Gleason hearing. The State claimed the doctrine of invited error applied to preclude Bromley from complaining on appeal about any error in the admission of Ms. Vigil’s testimony. Defense counsel did not solicit or consent to Ms. Vigil’s testimony so the invited error doctrine does not apply. The Court concluded the district court’s failure to conduct a Gleason hearing on Ms. Vigil’s testimony did not require reversal. The testimony was not a surprise and the uncharged misconduct portions of the testimony were brief.
(2) Limiting Instruction: The Court affords the trial court significant deference when reviewing questions involving jury instructions. Defense counsel failed to object to the instruction which now forms the basis for Bromley’s claim of error on appeal. The doctrine of invited error applies precluding reversal based upon the improper instruction absent a showing by Bromley the instruction was necessarily prejudicial. Bromley failed to meet his burden.
(3) Sufficiency of the Evidence: The Court’s duty is to determine whether a quorum of reasonable and rational individuals would or even could have come to the same result as the jury actually did. The Court reviewed the evidence presented. Although no evidence directly showed Bromley possessed the nine grams of methamphetamine found outside his residence, the State presented ample circumstantial evidence from which the jury could reasonably conclude it was Bromley’s.
(4) Merger of Sentences: Bromley was charged with possession of a felony amount of a controlled substance in violation of § 35-7-1031(c)(ii) and possession of a controlled substance with intent to deliver in violation of § 35-7-1031(a)(i). Bromley argues that possession was a necessary and indispensable precursor to possession with intent to deliver. Bromley could not have been sentenced separately for the convictions if the two convictions involved precisely the same methamphetamine. The evidence presented at trial showed Bromley possessed methamphetamine both for his own use and for delivery to others. Under those circumstances, the separate sentences were proper.
Holding: Bromley claimed that Rule 404(b) was violated; first by the admission of evidence considered at the 404(b) hearing and second, by the admission of Ms. Vigil’s testimony which was not identified by the State until after the 404(b) hearing. In the first claim, the Court held the district court reasonably concluded the probative value of the evidence outweighed its potential for prejudicing the jury. On the second claim, the Court stated the testimony was not uncharged misconduct evidence and did not require a Gleason hearing. Given the brevity and cumulative nature of the remainder of Ms. Vigil’s testimony, the Court held the district Court’s failure to conduct a Gleason hearing to determine its admissibility did not require reversal. The Court held the doctrine of invited error applied, precluding reversal based upon improper instruction absent a showing by Bromley that the instruction was necessarily prejudicial. The Court held Bromley failed to meet his burden of showing the instruction was necessarily prejudicial. Accepting the State’s evidence as true and giving it all reasonable inferences, the Court held a quorum of reasonable and rational individuals could have concluded Bromley was guilty of possession and possession with intent to deliver a controlled substance. Under the circumstances, separate sentences for possession and possession with intent to deliver were proper.

Affirmed.

J. Kite delivered the decision.

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