428 P.3d 167
Wyo.2018Background
- In Aug. 2015 Broberg allegedly entered his cousin ML's dark bedroom and had intercourse with her while she believed it was her husband; ML later identified Broberg by voice and observed him leaving wearing dark boxers. ML reported the assault and a sexual assault exam was performed.
- Investigators seized Broberg’s black boxer shorts with an Eric Cartman image; DNA testing showed contributions from Broberg, ML, ML’s husband, and a fourth unknown contributor.
- The State charged Broberg with two counts of second-degree sexual assault (anal and vaginal). At trial the State called Broberg’s girlfriend AB, who testified she earlier had intercourse with Broberg and that he "stuck his finger in [her] butt." Defense did not object at that moment; the State had not disclosed any W.R.E. 404(b) intent pretrial.
- After the State rested, defense moved for mistrial on grounds AB’s testimony was unnoticed W.R.E. 404(b) evidence; the court denied mistrial, limited the purpose for which the jury could consider AB’s statement (offered to give a curative limiting instruction), but did not conduct a full Gleason hearing before admission.
- Jury convicted on the vaginal-intercourse count and acquitted on the anal-penetration count. Broberg appealed asserting erroneous admission of 404(b) evidence without notice and without a Gleason hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AB's testimony about digital anal penetration was inadmissible W.R.E. 404(b) evidence entered without required pretrial notice and Gleason hearing | Broberg: the testimony was prior-bad-act character evidence; State failed to disclose and no Gleason hearing was held, so admission was an abuse of discretion | State: testimony not 404(b) or, if it is, it was admissible for a non-character purpose (to explain source of unknown DNA) and harmless; offered a limiting instruction | Court: AB’s digital-penetration remark qualified as 404(b) evidence and was erroneously admitted without the required Gleason analysis, but the error was harmless (no prejudice); conviction affirmed |
Key Cases Cited
- Gleason v. State, 57 P.3d 332 (Wyo. 2002) (sets Gleason factors and requires pretrial findings and limiting instruction for W.R.E. 404(b) evidence)
- Howard v. State, 42 P.3d 483 (Wyo. 2002) (pretrial demand for 404(b) notice constitutes timely objection)
- Schreibvogel v. State, 228 P.3d 874 (Wyo. 2010) (difficulty applying abuse-of-discretion review when issue not timely objected to at trial; counsel should object to suspected 404(b) evidence)
- Volpi v. State, 419 P.3d 884 (Wyo. 2018) (illustrates pretrial Gleason practice and requirements)
- Garrison v. State, 409 P.3d 1209 (Wyo. 2018) (Gleason analysis must be made contemporaneously before admission; after-the-fact analysis is unhelpful)