Summary 2009 WY 25

Summary of Decision issued February 24, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Temen v. State

Citation: 2009 WY 25

Docket Number: S-08-0071

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Appellant Temen: Diane M. Lozano, Wyoming State Public Defender; and Tina N. Kerin, Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Temen was convicted of robbery and misdemeanor credit card fraud. He contended the district court erred in allowing amendment of the information during the trial and when it admitted prior bad acts evidence under W.R.E. 404(b).

Amendment of the Information Mid-Trial: Temen’s contentions rely on W.R.Cr.P.3(e) which the Court noted vested the district court with wide discretion in granting or denying a motion to amend an information. When it became apparent the State’s evidence was not sufficient to support a felony charge, the district court called the matter to the State’s attention. Neither the clerk’s record nor the trial transcript reflected that defense counsel objected to the amendment reducing the charge to a misdemeanor. During the trial proceedings, the district court informed the jury that he had granted the motion of the State to amend the information. No additional or different offense was charged and the substantial rights of the defendant were not prejudiced.
W.R.E.404(b) Evidence: Temen had been previously convicted of forgery. The State gave notice of its intent to use that conviction under the rule to show his use of the credit card was intentional and not the result of mistake. Defense counsel accepted the circumstance that if his client testified, then his prior convictions could be used to impeach him. The State limited its questions by asking if Temen had been convicted of any felonies and he replied that he had been so convicted three or four times. The Court admonished the jury that the parties had stipulated that Temen had been convicted of the crime of forgery for the limited purpose of establishing lack of mistake or accident. This was reinforced by an instruction given to the jury in writing before deliberations began.

Conclusion: Temen made no cogent argument nor did he cite any pertinent authority that would cause the Court to conclude that the amendment of the information constituted the charging of a different offense or that he was in any way prejudiced by the amendment. The district court did not abuse its discretion in admitting the disputed 404(b) evidence.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/b4jugc .

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