[¶1] A jury convicted Mark Alan Garrison on a charge of first-degree arson for setting fire to his estranged wife's trailer home. Mr. Garrison alleges that the trial court abused its discretion when it admitted evidence of other acts, in violation of W.R.E. 404(b). We affirm.
ISSUE
[¶2] Mr. Garrison presents one issue, which we break into two components:
1. Was it plain error when the district court conducted its 404(b) Gleason analysis after the disputed 404(b) evidence had been admitted and after the close of evidence at trial?
2. Did the district court abuse its discretion when it admitted evidence of other acts at trial?
FACTS
[¶3] With money she inherited from her mother, Ms. Hendricks purchased a mobile home, furnished the mobile home and bought a 2001 Chevrolet Silverado pickup, a 1999 Dodge Ram pickup, and a 1974 Reinell boat. Shortly thereafter, in early 2011, Ms. Hendricks and Mr. Garrison married. By the fall of 2018, and after a series of violent episodes, the couple had become estranged. In November 2013, Ms. Hendricks obtained a protection order which granted her the use of the trailer home, granted Mr. Garrison the use of the 1999 Dodge Ram, and prohibited Mr. Garrison from contacting Ms. Hendricks.
[¶4] During a snowstorm on the evening of December 20, 2013, Ms. Hendricks’ mobile home was consumed by fire. That evening she had gone to pick up her nephew from work; her cat and Mr. Garrison’s bird were inside the home; and a dog was tethered to the front porch. Paula Houlberg, Ms. Hendricks’ neighbor, testified that ehe saw the fire in its early stages on the front
[¶5] Mr. Garrison’s friend testified that he had loaned Mr. Garrison his gas can a couple of days prior to the fire, and that on the day of the fire it was in the back of Mr. Garrison’s truck with about an inch of gas in it. He testified that when Mr. Garrison returned to his friend’s house the next day, the gas can did not have as much gas in it and was “pretty close” to empty.
[¶6] Mr. Garrison was charged with one count of first-degree arson, in violation of Wyo. Stat. Ann. 6-3-101(a) and (b)(i). Later, the State amended the charge to reflect an enhanced penalty due to prior convictions.
[¶7] Prior to trial, Mr. Garrison sought notice of the State’s intent to use 404(b) evidence. The State filed its notice of intent to offer evidence pursuant to W.R.E. 404(b), identifying other acts it contended were admissible under the rule. The proposed evidence consisted of ten separate incidents:
1. On October 30, 2013, Mr. Garrison went to Ms, Hendricks’ workplace, threatened to destroy her belongings, and took her truck.
2. .At the November 8, 2013 circuit court ■hearing on the protection,order, on his way out of the courtroom, Mr. Garrison pointed at Ms. Hendricks and said, , “you’re mine” and threatened to “[k]ick [her nephew’s] ass.”
3. Prior to the fire, Mr. Garrison used a golf club to destroy knickknacks, and to strike,the dog. He shattered Ms. Hendricks’ glass coffee table, covering her with shards of glass. ,
4. On several occasions in November of 2013, Mr, Garrison moved a dresser in .. front of the bedroom door, preventing Ms. Hendricks’ exit,
5. During the summer of 2013, Mr. Garrison forced Ms.'Hendricks to the floor of the truck he was driving, hit her in the head, yelled at her, and refused to let her return to the passenger seat for over 45 minutes.
6. After the protective order was in place and shortly before the fire, Mr. Garri- ■ son entered Ms. Hendricks’ home and sexually assaulted her.
7. On December 9, 2013, Mr. Garrison repeatedly called Ms. Hendricks from several local stores, in violation of the protective order. (Mr. Garrison pled guilty to this violation of the protective , order.)
8. On January 29, 2014, Mr. Garrison called Ms. Hendricks multiple times and threatened to harm her and a friend she was visiting, in violation of the protective order. (Mr. Gairison pled guilty to this violation of the protective order.)
9. On February 2, 2014,, Mr. Garrison again made numerous phone calls to Ms. Hendricks, leaving seven voice mails. (Mr. Garrison pled guilty to this violation of the protective order.)
10. On March 2, 2014, Mr. Garrison called Ms. Hendricks over 128 times, and threatened to harm' her; he ' called her son and threatened him as well. (Mr. Garrison also pled guilty to these violations of the protective order.)
The defense filed its response, and prior to trial, the district court conducted a hearing on the admissibility of these instances of misconduct. At the conclusion of the hearing, the district court provided a “framework” for its ruling. The court announced that incidents 4 and 6 were inadmissible, as were portions of incidents 3 (the portion relating to hitting the dog with the golf club), 5 (Mr. Garrison’s possession of a knife), and 10 (threats against Ms. Hendricks’ son). The court stated that the other instances were admissible to “demonstrate the relationship of the parties” and for “intent, malice, identity, and motive.” The court added that it would provide a more detailed analysis if the case went to trial.
[¶8] In his opening statement at trial, defense counsel stated that Ms. Hendricks had accused Mr. Garrison of many horrible things, including rape and locking her in her bedroom (identified as incidents 4 and 6, above; which had previously been excluded). When the court questioned counsel about opening the door to previously excluded other acts evidence, counsel indicated that his strategy was to show that Ms. Hendricks was exaggerating! Because of the new strategy, defense counsel agreed that' the State could pursue questioning on the two previously excluded incidents. After- the close of evidence, the court placed a more- detailed 404(b) ruling on the record (the Gleason analysis). No limiting instruction on the 404(b) evidence was requested or provided to the jury.
[¶9] The jury convicted Mr, Garrison of one count of first-degree arson for setting his wife’s mobile home on fire, Mr. Garrison timely appeals, arguing that the district court abused its discretion by allowing the uncharged misconduct evidence to be presented to the jury and by reserving its Gleason analysis until after all the evidence had been admitted at trial.
DISCUSSION
[¶10] Mr. Garrison contends that the district court improperly announced its findings as to the 404(b) evidence after the conclusion of trial. He also argues that the district court abused its discretion when it admitted evidence of the other acts. We ’address both arguments below.
[¶11] W.R.E. 404(b) provides:
(b) Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
In Gleason, we set forth factors that the district court must examine to determine the admissibility of 404(b) evidence, and we required the court to articulate its findings. Gleason v. State,
[¶12] Although Mr. Garrison’s pretrial demand for notice of the State’s intent to introduce other acts evidence under W.R.E. 404(b) is treated as a timely objection to the introduction of the evidence, it will not preserve an objection regarding the timing of the Gleason analysis. Hodge v. State,
[¶13] To establish plain error, Mr. Garrison must show that the record clearly reflects the alleged error, the error transgressed a clear, and unequivocal rule of law, and the' transgression adversely affected a substantial right which materially prejudiced him. Griggs v. State,
[¶14] The record clearly reflects the alleged error: at the 404(b) hearing prior to trial, the district court announced its decision on the admissibility of the evidence that the prosecution had proposed, ruling that some incidents and parts of incidents would be inadmissible, while others would be admitted. The court prefaced its decision with the following:
I feel on one hand compelled to give you kind of a framework of what I feel is admissible and not admissible at this time so you'can prepare accordingly. I’m not going to give an entire factor-by-factor, detailed ruling today. If the case goes to trial, I would put all that on the record factor by factor as far as how I reached these conclusions.
It was not until after the close of evidence at trial, and during the jury instruction conference, that the district court provided additional comments regarding admission of the uncharged misconduct evidence, touching upon many of the factors set forth in Gleason for the analysis of 404(b) evidence. See Gleason,
[1115] Mr. Garrison falls short of establishing his burden regarding the prong of the plain error analysis which requires' that the error transgress a clear and unequivocal rule of law. Mr. Garrison argues that the district court did not comply with the procedure mandated by Gleason, which he contends “anticipates a record made roughly contemporaneous with the decision on the 404(b) evidence.” In Gleason, we provided specific guidance to trial courts regarding the analysis of the admissibility of uncharged misconduct, and we described what is required of the proponent of the evidence and the trial court so that we have a record that enables meaningful review. Gleason,
[¶16] In two instances, we have considered whether holding the 404(b) hearing during trial, after jury selection, but prior to opening statements was reversible error. See Vigil,
[¶17] Notwithstanding our resolution of the issue, the procedure set forth in Gleason and its progeny suggests that the only rational time for the trial court to conduct the “mandatory procedure for testing” the admissibility of evidence under Rule 404(b) is before it issues its ruling on the admissibility of the evidence and before any 404(b) evidence is admitted at trial. Williams v. State,
Trial judges are charged with the duty to draw the line amidst the subtle and even “paradoxical” distinctions between admissible and inadmissible other acts evidence. It is reasonable, to believe that this takes time and careful consideration. As Chief Justice Hill stated in Howard [v. State,2002 WY 40 , ¶ 23,42 P.3d 483 , 491 (Wyo. 2002) ], “Rulings on uncharged misconduct evidence are too important to be made in the heat and pressure of a trial, with the jury twiddling its thumbs in the next room.” A trial judge is,, more likely to err in drawing the line if surprised by the evidence and required to rule on the spur of the moment. Having an effective pretrial notice requirement allows a trial judge to be more informed and more meticulous in analyzing admissibility.
Robert S. Hitchcock, Note, Evidence — Pretrial Discovery of Uncharged Misconduct Evidence — No More Pulling the Uncharged Misconduct Card from the Sleeve. Howard v. State,
[¶18] An after-the-fact application of the factors to evidence that has already been admitted to trial is not helpful or meaningful. The court is unlikely to find evidence anything other than admissible once it has already been admitted and the trial has concluded. Moreover, the potential necessity of a limiting instruction requires an articulated rationale for the admission of 404(b) evidence. See e.g., Vigil,
II. Did the district court abuse its discretion when it admitted evidence of other acts at trial?
[1119] We now turn to Mr. Garrison’s contention that ■ the district court abused its discretion when it admitted the 404(b) evidence at trial. “We review challenges to the admission of evidence for an abuse of discretion when an objection has been lodged.” Hodge,
[¶20] “Our task in reviewing a district court’s decision on the admissibility of uncharged misconduct evidence is to determine whether the district court abused its discretion, not to apply the Gleason/Vigil test anew.” Rolle v. State,
[¶21] At .the pretrial hearing on the admissibility of 404(b) evidence, the district court ruled that the fourth and sixth incidents and portions of the third (relating to injury to the dog), fifth (Mr. Garrison’s possession of a knife during the drive to Pathfinder Reservoir), and tenth (relating to Mr. Garrison’s threats to Ms. Hendricks’- son)- incidents would be inadmissible. The court concluded that the remainder of the State’s proposed evidence “would be relevant and admissible for purposes other than those prohibited by Rule 404(b), including to demonstrate .the relationship between the parties” and “it also relates to other proper purposes, including intent, malice, identity, and motive.”
- [¶22] After the close of evidence at trial, and during the jury instruction conference, the district court provided additional comments regarding admission of the uncharged misconduct evidence, touching upon many of the factors set forth in Gleason for the analysis of 404(b) evidence. See Gleason,
[¶28] The other acts-evidence can be broken down into three distinct categories: evidence that was originally excluded, but then admitted by the district court based upon defense counsel’s opening statement; evidence of acts that occurred prior to. the fire; and evidence of telephone calls occurring after the fire. While it is unclear from his argument whether Mr. Garrison contends that all three categories or some subset óf those categories were -improperly admitted, we will examine each category.
- [¶24] The district court originally found inadmissible the proposed evidence regarding Mr. Garrison's barricading Ms. Hendricks’ bedroom door, trapping her inside (incident number 4), and the alleged s’exual assault (incident number 6).- See supra ¶ 7. However, defense counsel conceded that once he raised those items to “show exaggeration” on Ms. Hendricks’ part, the State could properly discuss those matters. Accordingly, incidents 4 and 6 were properly admitted, not as 404(b) evidence, but because they were offered by defense counsel as part of his strategy regarding Ms. Hendricks’ alleged propensity to exaggerate. See Lawrence v. State,
[¶25] We now turn to the remaining two categories of 404(b) evidence. Mr. Garrison argues that this evidence was not admissible because “purposes listed by the court exceeded those legitimately allowed”, under Rule 404(b), The State claims that.the evidence was properly admitted. In its. abbreviated ruling at the Gleason hearing prior to trial, the district court identified what it considered proper purposes under Rule 404(b) for the admission of this evidence: the relationship between the parties to illustrate that “this did not allegedly occur in a vacuum”-; and “other proper purposes, including intent, malice, identity, and motive,” During its post-trial Gleason analysis, the court again identified the “proper purposes” of “intent, malice, identity, motive, and the nature of the relar tionship between the alleged victim and the defendant prior to and after the fire” for the admission of the 404(b) evidence. The court added that because Mr. Garrison had entered a plea of not guilty, all the elements of the crime of arson were at issue, “including malice and identity”; and motive was a disputed issue as well.
[¶27] Mr. Garrison claims that the “relationship between the parties does not fall anywhere within those types of purposes [allowed by Rule 404(b) ] and was easily established by evidence or testimony which did not carry the risks which Rule 404 is designed to prevent.” The rule’s list of “other purposes” for'which prior bad acts may be admitted is “non-exclusive.” Sturgis v. State,
[¶28] Evidence of other acts that occurred prior to the fire fall squarely within “course of conduct.” Evidence that Mr. Garrison went to Ms. Hendricks’ workplace, threatened to destroy her belongings, and took her truck, (incident number 1); that he pointed at Ms. Hendricks and said, “you’re mine” at the circuit court hearing on the protection order (incident number 2); that Mr. Garrison used a golf club to destroy kniekknacks and shatter Ms. Hendricks’ glass coffee (table,, covering her with shards of glass (incident number 3); that during a drive in the summer, Mr. Garrison forced Ms. Hendricks to the floor of the truck, hitting her and yelling at her for a prolonged period of time (incident number 5); and that he violated the protection order by phoning Ms. Hendricks on several occasions prior to the fire' (incident 7) placed the alleged arson in the proper context and allowed the jury to evaluate what otherwise might have appeared to be an isolated incident.
[¶29] Mr. Garrison also claims that because the facts that he and Ms. Hendricks had separated and that she had obtained a protection order were not in dispute, the proba-' tive value of the prior conduct was “nil.” We disagree. The other acts that occurred prior to the fire illustrated the strained relationship between Ms. Hendricks and Mr. Garrison, were probative of the nature of Mr. Garrison’s treatment of Ms. Hendricks, and allowed the jury to place the alleged arson within the context of their relationship. See Bhutto v. State,
[¶30]' Mr. Garrison also argues that the probative value of the prior misconduct evidence is outweighed by its prejudicial effect and thus its admission unfairly prejudiced him. “When appellant claims the testimony was unduly prejudicial under Rule 403, W.R.E., he must demonstrate that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury.” Law v. State,
We have said that, when this Court reviews a trial court’s determination to admit evidence against a W.R.E. 403 challenge, we “will not overturn a trial court’s determination' ... as long as a legitimate basis exists supporting the determination.” Law [v. State ],2004 WY 111 , ¶ 15, 98 P.3d [181,] 187 [ (Wyo. 2004) ]. Further, the appellant “must demonstrate that the evidence had little or no probative value and that it was extremely inflammatory or introduced for the purpose of inflaming the jury.” Id. (quoting Apodaca v. State,627 P.2d 1023 , 1027 (Wyo. 1981)).
Proffit v. State,
[¶31] The State argued, both in its notice of intent to offer 404(b) evidence, and at the hearing on the matter, that the probative value of the -404(b) evidence is not outweighed by its prejudicial effect. The trial court agreed and concluded in its post-evidence Gleason ruling that the evidence was “not substantially outweighed by the danger of unfair prejudice or other concerns listed in Rule 403.” “Evidence is unfairly prejudicial if it tempts the jury to decide the case on an improper basis.” Rolle,
[¶32] In Coleman v. Smith, the defendant was charged with felony destruction of property for slashing his wife’s tires.
[¶33] We reach the same conclusion with respect to the admission of the final category of 404(b) evidence — the incidents that occurred after the fire. All three of those incidents refer to telephone calls made on different days by Mr. Garrison in violation of the protective order (incidents 8, 9, and 10). See supra ¶ 7. Undoubtedly these acts are less relevant than those before and leading up to the arson. However, the district court found
CONCLUSION
[¶34] Mi’. Garrison failed to establish plain error regarding the timing of the district court’s Gleason analysis. The district court did not abuse its discretion when it admitted evidence of other acts in at trial. We affirm.
Notes
. We set forth the factors the district court should evaluate in its exercise of its discretion in admitting uncharged misconduct evidence under Rule 404(b):
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 com.mitted 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?
Evidence is unfairly prejudicial if it tempts the jury to decide the. case on an improper basis. In balancing against its probative value the unfair prejudice created by the evidence, the trial court should consider the extent to which the evidence distracts the jury from the central question whether the defendant committed the charged crime. The trial court should weigh these additional factors against the probative value of the evidence:
1. The reprehensible nature of the prior bad act. The more reprehensible the act, the more likely the jury will be tempted to punish the defendant for the prior act.
2. The sympathetic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendant for the prior act if the victim was especially vulnerable.
3. The similarity between the charged crime and the prior bad act, The more similar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he probably did it again,
4. The comparative enormity of the charged crime and the prior bad act. When the' prior act is a more serious offense than the charged crime, the. introduction of that act will tend to place the defendant in a different and unfavorable light.
5. The comparable relevance of the prior bad act to the proper and forbidden inferences. Evidence of the prior bad act may be .much more probative of bad character than it is of any legitimate inference permitted by Rule 404(b).
6.Whether the prior act resulted in a conviction. The jury may be tempted to punish the defendant if they believe he escaped punishment for the prior bad act,
Rigler [v. State], 941 P.2d [734,] 737 n.1 [(Wyo. 1997)] (citing Dean [v. State], 865 P.2d [601,] 609-10 n.2 [ (Wyo. 1993) ]).
Gleason,
. We recognize that, at times, the trial court can ' only make a conditional 404(b) ruling pretrial, and must make a final ruling during trial after determining 'other evidentiary matters such as foundation.