Summary 2007 WY 156

Summary of Decision issued October 2, 2007

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Case Name: Roeschlein v. State

Citation: 2007 WY 156

Docket Number: 06-182

Appeal from the District Court of Campbell County, the Honorable Dan R. Price,II, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender, PDP; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Issues: Whether Rule 404(b) was violated when testimony was elicited regarding an uncharged act of delivery of marijuana. Whether the district court erred when it denied appellant’s request for a new presentence investigation report. Whether the affidavit executed in support of the search warrant was inadequate to establish probable cause to search.

Facts/Discussion: Appellant was convicted of three counts of delivery of marijuana to minors in violation of Wyo. Stat. Ann. §§ 35-7-1031(a)(ii) and 35-7-1036.
Uncharged Misconduct Evidence: The State’s general theory of the case was that Appellant had delivered the marijuana to the minors by sharing his supply with them. At trial RF testified that he also purchased a bag from Appellant. The Court’s mandatory procedure for testing the admissibility of uncharged misconduct evidence states that the evidence must be offered for a proper purpose; the evidence must be relevant; the probative value must not be substantially outweighed by its potential for unfair prejudice; and 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. The Court’s role on appeal is to decide whether admission of the evidence was erroneous and in the instant case, they used the abuse of discretion standard. First the Court determined whether the challenged evidence fell within the purview of Rule 404(b). They determined that the evidence of the sale was distinguishable from the evidence of the other charged delivery and therefore was not uncharged misconduct evidence under the rule. The challenged testimony was part of the offense charged in Count II and did not fall under the rule, so the Court concluded the district court did not err by failing to conduct a hearing.
Sentencing: The Court reviews a district court’s sentencing decisions for abuse of discretion. The party who is appealing bears the burden to establish that an error was prejudicial. The district court’s rationale for the sentences was well-reasoned and aptly stated. The judge specifically stated that he would not consider the dismissed charges and recognized that the jury returned a “not guilty” verdict on one count of delivery to RF. The record was clear that the district court thoughtfully evaluated Appellant’s situation and crimes and imposed sentences within the range approved by the legislature.
Search Warrant Affidavit: The affidavit was not part of the record on appeal and, according to the parties, was not part of the record delivered to the district court when the case was bound over. Appellant attached the affidavit to his appellate brief. The appellant bears the burden of bringing a sufficient record to the reviewing court and he cannot supplement the record by attaching documents to his brief. The rules of appellate procedure provide a basis for supplementing documents. Because the probable cause affidavit was not included in the official record, the Court refused to consider its sufficiency on appeal.

Holding: The district court did not abuse its discretion by failing to conduct a 404(b) hearing concerning the admissibility of RF’s testimony about Appellant’s sale of marijuana to him. The testimony was part of the evidence about a charged delivery and consequently, was not “other misconduct” evidence mandating a hearing under Rule 404(b). Furthermore, Appellant was not prejudiced by admission of the testimony because the jury acquitted him on the charge related to that evidence. In addition, the district court properly complied with W.R.Cr.P. 32 when it stated that it would not consider the information in Appellant’s presentence investigation report pertaining to the dismissed sexual assault charges. The district court therefore, did not abuse its discretion by refusing to order a new presentence investigation report.

Affirmed.

J. Kite delivered the opinion.

J. Hill specially concurred: He stated he would affirm on the merits because the affidavit in support of the search warrant was adequate.
W.R.Cr.P. 41(f) provides that the judicial officer who has issued a search warrant shall attach to the warrant the copy of the return, inventory and all of the papers in connection and file them with the clerk in which the property was seized. J. Hill would have not declined to treat Appellant’s issue on its merits. The papers should have been in the record. He would have directed the clerk of the district court to forward the missing papers, have them added to the record on appeal, assessed the issue on its merits and affirmed the judgment and sentence.

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