Mayhew v. State, 438 P.3d 617

Background

Defendant William Mayhew was convicted by a jury of four counts of third-degree sexual assault for abusing three minors (victims were family members and one neighborhood child) during the 1990s–2000s; sentenced to consecutive terms totaling 28–35 years; appeal followed.
State sought to admit “other acts” evidence under W.R.E. 404(b): photos and videos of unrelated young girls taken by Mayhew at youth programs, and testimony from his adult daughter describing historic sexual abuse (State ultimately pursued the daughter’s testimony and the photos/videos at the hearing).
District court performed a Rule 404(b) analysis, found the photos/videos relevant to motive and intent and not substantially more prejudicial than probative, and admitted nine photos and six videos; the daughter’s testimony was also admitted (not appealed).
The State also introduced a vibrator seized from Mayhew’s home after a bench conference; defense objected that it was not listed in the State’s pretrial exhibit list and later raised foundation concerns.
On appeal Mayhew argued (1) the photos/videos were inadmissible character/lifestyle evidence under W.R.E. 404(b) and (2) the vibrator was improperly admitted because it was not listed pretrial and lacked foundation.
Supreme Court of Wyoming affirmed: found no abuse of discretion admitting photos/videos as probative of a sexual preference/motive to abuse children; declined to review foundation claim for vibrator because defendant failed to timely object and adopted rule that foundation objections must be raised at trial to preserve appellate review; overruled objection to omission from pretrial list because defense claimed no prejudice.

Issues

Issue	Plaintiff's Argument (Mayhew)	Defendant's Argument (State)	Held
Admissibility under W.R.E. 404(b) of photos/videos of unrelated children	Photos/videos were impermissible character/lifestyle evidence and unduly prejudicial; some were taken after charged conduct so not probative of motive	Evidence probative of Mayhew’s sexual preference for prepubescent children and thus relevant to motive and to resolve credibility where defendant denies wrongdoing	Affirmed: district court did not abuse discretion; photos/videos admissible to show motive and lack of mistake given similarity of victim class and defendant’s denial
Timing of other-acts evidence (subsequent vs prior acts)	Subsequent acts cannot prove motive because motive must precede the crime	Subsequent uncharged acts can still show a continuing sexual motive or preference explaining both acts	Affirmed: order of occurrences does not preclude admissibility where both acts reflect same motive; remoteness affects weight, not per se admissibility
Use of prosecutor’s argument and judge’s “creepiness” comment to show improper character use	Court and prosecutor used evidence to portray bad character rather than a proper 404(b) purpose	Prosecutor’s argument linked evidence to motive (sexual preference); judge applied 404(b) factors and limited instruction was available	Affirmed: argument did not convert evidence into impermissible character evidence; limiting instruction issue not preserved for appeal
Admission of seized vibrator (pretrial disclosure and foundation)	Exhibit omitted from State’s pretrial list and lacked proper foundation	Exhibit was disclosed in discovery and was identified by victim; custodian later testified to chain of custody	Affirmed: omission did not prejudice defense so district court’s exercise of discretion proper; failure to timely object to foundation precluded appellate review (court adopts rule that foundation objections must be made at trial)

Key Cases Cited

Swett v. State, 431 P.3d 1135 (Wyo. 2018) (Rule 404(b) analysis and relevance of motive evidence where defendant denies charged conduct)
Moser v. State, 409 P.3d 1236 (Wyo. 2018) (required Rule 404(b) procedure and factors trial courts must consider)
Griggs v. State, 367 P.3d 1108 (Wyo. 2016) (probative vs. prejudicial balancing factors for other-acts evidence)
Mitchell v. State, 865 P.2d 591 (Wyo. 1993) (discussion of two forms of motive evidence and relevance of uncharged misconduct)
Garrison v. State, 409 P.3d 1209 (Wyo. 2018) (admission of subsequent acts under 404(b) to show relationship and motive)
Wilde v. State, 74 P.3d 699 (Wyo. 2003) (distinguishing inadmissible "lifestyle" evidence that permeates trial)
Young v. State, 375 P.3d 792 (Wyo. 2016) (discussion on plain error review and foundation objections; courts may decline plain error review where foundation objection not raised at trial)
Mersereau v. State, 286 P.3d 97 (Wyo. 2012) (reversing admission of photos that lacked clear sexual nature and probative value; used to distinguish cases where photos are of defendant’s own children)