Summary 2011 WY 144

Summary of Decision October 19, 2011


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Case Name: Lascano v. State

Citation: 2011 WY 144

Docket Number: S-11-0009

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464645

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: October 19, 2011

Facts: After being convicted of one count of conspiracy to commit burglary, Appellant appeals the verdict and argues that the State committed misconduct by misrepresenting the relevance of gang evidence.

Issues: Whether the prosecutor committed misconduct by misrepresenting evidence that the trial court relied upon in formulating its decision letter or in the alternative the trial court abused its discretion in failing to inquire into clarity that Appellant committed a bad act as required by Gleason v. State, 2002 WY 161 (2002).

Holdings: Evidence of an individual’s gang affiliation can be probative of material issues in certain cases.
Appellant takes issue with the fact that no State witness directly testified that Appellant and another gang member told a third gang member to burglarize the victim’s home because the victim had renounced his gang membership. However, the State did elicit testimony from which the jury could reasonably infer that the burglary happened because the victim had left the gang. The State has no obligation to provide specific testimony to that effect. The gang membership of the victim, along with the relationships it established, provided knowledge, but more importantly, motive. The evidence was not received to show bad character or the propensity to commit crimes, but instead why Appellant would burglarize the victim.

Additionally, the district court instructed the jury regarding the gang evidence in order to confine it to its proper purpose. The district court’s instruction stated that the jury could not entertain the gang affiliation evidence as evidence that Appellant conspired to commit burglary, but only could consider it to establish Appellant’s “motive and knowledge necessary to commit the charged crime.” It is assumed that the jury followed this instruction.

In an alternative argument, Appellant argues that the district court abused its discretion by allowing the admission of the gang evidence in the first place. When determining the admissibility of evidence under W.R.E. 404(b), a district court is required to determine if the evidence is offered for a proper purpose, if it is relevant, and if its probative value is not substantially outweighed by its potential for unfair prejudice.

For proper appellate review of the admissibility of evidence under W.R.E. 404(b), the record must reflect that the trial court required the State not only to identify the proper purpose for which uncharged misconduct evidence is being offered, but also to explain how or why it is probative, and why it is more probative than prejudicial. In determining the probative value of prior bad acts evidence, the trial court should consider the following factors: 1). How clear is it that the defendant committed the prior bad act? 2). Does the defendant dispute the issue on which the state is offering the prior bad acts evidence? 3). Is other evidence available? 4). Is the evidence unnecessarily cumulative? 5). How much time has elapsed between the charged crime and the prior bad act?

In the present action, the district court held a W.R.E. 404(b) hearing prior to trial, and after doing so, concluded that the gang evidence would be admitted to prove motive and knowledge. Furthermore, a thorough review of the record shows that the evidence was properly admitted and that the district court acted more than appropriately.

No prosecutorial misconduct occurred when gang evidence was admitted in this case and, furthermore, the district court did not abuse its discretion in so admitting the gang evidence.

Affirmed.



J. Hill delivered the opinion for the court.