*1 WY 156 ROESCHLEIN, Appellant Alan Max
(Defendant), (Plaintiff). Wyoming, Appellee
STATE
No. 06-182. Wyoming.
Supreme Court 2, 2007.
Oct. *2 Terry
Rеpresenting Appellant: Rogers, D. Defender, PDP; Interim State Public Donna Domonkos, Appellate Argument D. Counsel. by Ms. Domonkos. Crank,
Representing Appellee: Patrick J. General; Attorney Terry Armitage, Depu- L. General; ty Attorney Pauling, D. Michael General; Attorney M. Senior Assistant Leda Pojman, Attorney Argu- General. Assistant Pojman. ment Ms. VOIGT,C.J., GOLDEN, HILL,
Before KITE, BURKE, JJ.
KITE, Justice. Mr. Roeschlein was convicted delivery marijuana to mi three counts of Wyo. §§ Ann. 35-7- nors in violation of Stat. 1081(a)(i) (LexisNexis 2007).1 35-7-1036 (ii) Any other controlled substance classified 35-7-1031(a)(ii) § Stat. Ann. states: Wyo. act, (a) Except guilty of a crime and I, III, in Schedule II or as authorized it is may imprisoned manufacture, for not conviction any person deliv- unlawful for (10) years, er, more than more than ten fined not possess or with intent to manufacture or both; ($10,000.00), dollars ten thousand deliver, a controlled substance. Any person 35-7-1036(a) states, Wyo. § in rele- respect Stat. Ann. who violates this subsection with to: part: vant court erred claiming the district appeals, they He from their often went uncharged hall to watch him work. mis- аcross the Several by allowing the admission visits, during times these Mr. Roeschlein with- conduct evidence under W.R.E. boys. RF failing shared his with the also holding hearing and to order out that, occasion, testified on one Mr. Roes- investigation report when new *3 bag marijuana him chlein sold of for $30. dis- report included information about missed sexual assault by a law enforcement officer was insufficient to home and vehicle. ance of court did not chlein establish also a warrant argues probable affirm. err, and, cоnsequently, to search Mr. Roeschlein's that the affidavit We ecause to charges. Mr. Roes- conclude support executed issu- After the providing tor with the dential search Mr. Roeschlein's home and vehicle. executed an affidavit to obtain a [15] informant Based search, Mr. marijuana Campbell County that Mr. Roeschlein was to Roeschlein was arrest- minors, report Sheriff's Office from a confi- an warrant investiga- to offenses, includ- ed and with several ISSUES marijuana ing delivery count of to RF onе of The State ing when it when new search. uncharged quate support [83.] [2.] [1.] Whether Rule [T2] issues on presentence investigation report. Whether the affidavit executed Whether testimony Mr. phrases of the search warrant denied appeal: establish act of the issues was elicited appellant's delivery 404(b) was violated presents similarly. request of regarding an was inade- the follow- marijuana. cause erred for a to trial on the they were dismissed. marijuana ruary marijuana sexual assault there was insufficient of against February count of Roeschlein over to the district court on the February 2005; RV The district court convened a delivery to RV to RF on charges and and two counts of sexual assault 2005; to another 2005; charges LW. The of 2001; alleging one count of one count of February marijuana evidence minor, and, a count of cireuit court ruled delivery consequently, LW, in to bind Mr. delivery delivery to LF on 2005; of mari- delivery Feb- jury one of of RV, LF, juana RF and LW. The FACTS delivery moved to dismiss Roeschlein, fifty-one charge involving was not [13] Mr. who because he could be LW trial, years testify at the time of owned rental located to at trial. At the conclusion old Gillette, Wyoming. Each of property in his trial, found Mr. Roeschlein living staying guilty delivery marijuana at one of his of in 2001 victims was to RV (Count I) properties delivery rental In June of and to RF and LF on (Counts 16, 2005, IV), fourteen-year-old February Roeschlein hired RV III and but help guilty February him out notices around his not to RF in hand bill (Count I1). finished, they they trailer court. When went mari- Mr. Roeschlein's house smoked presen- [17] The district court ordered a juana supplied by him. (PSI). investigation report pro- tence January February parole agent prepared In LF bation who living report quoted original and RF in one of Roes the full text of the affidavit, apartments with their mother and cause which included the chlein's boyfriend. years allegations. her LF was fifteen old and dismissed sexual assault ad- dition, years against probation, she was thirteen old. Mr. Roeschlein recommended remodeling partly across the hall because of her concern about the sex- (18)
Any eighteen years age junior punishable by by person or over fine authorized 35-7-1031(a) by distributing 35-7-1031(a)(ii), by imprison- who violates W.S. W.S. term controlled substance listed in Sched- other up ment to twice that authorized W.S. 35- I, II, IH, (18) person eighteen ules to a under 7-1031(a)(i), or both. years age years is at three his who least allegations. any given ual assault Mr. Roeschlein ob- satisfied case is to be made ¶ Gleason, jected to the references to the sexual as- court. at portions is, appeal saults and asked that those of the Our role on simply, to decide report pre- stricken or a new PSI be whether admission of the evidence was erro pared. The district court stated that neous. Id.
would ing to the sexual then sentenced Mr. Roeschlein to serve request three to six sentences to run for a new PSI. The district court consider years concurrently. assaults, on each the information count, but denied the with the pertain- ject We have ruled that "[when а criminal defen it intended to introduce evidence of the sale. the trial. The State did not demand for notice of to REF"s Although Mr. Roeschlein did not ob trial, evidence give he had filed a notice that prior *4 dant filed a demand for notice of other has DISCUSSION bad acts evidence the State intends to intro the case was that Mr. Roeschlein had deliv his trial, however, he also ered the 1. smoking marijuana supply Uncharged purchased marijuana [18] of the substance with them. At RF The State's Misconduct Evidence a testified to the minors bag with Mr. of general theory that, marijuana Roeschlein, in by sharing addition Id. from of WY v. ty 2007). We, therefore, review the admissibili duce at such evidence to have been made." Barker (Wyo.2006). See case State, of 29, ¶ 34, using uncharged trial, 2006 the abuse of discretion standard. we consider an WY 152 P.3d misconduct also, 104, ¶15, Dettloff 376, 141 objection evidence 385-86 State, 106, in to (Wyo. 2007 this 112 him. Mr. Roeschlein claims the district 404(b) states: court erred sale of without by allowing conducting the evidence of the to be a hеaring. presented Rule whether the within the answer in purview resolving challenged The initial of Rule this evidence even falls question 404(b). case, however, The State we must is crimes, part claims that it does not wrongs,
Evidence of
because was
other
or acts
charged
the evidence of a
crime.
Rule 404
prove
is not
admissible
the character of
governs
"'only
evidence introduced
person
a
in order to
in
to dem
show that he acted
disposition
onstrate that the defendant
conformity
may,
therewith.
It
has
¶
Cazier,
30,
to commit erimes.'"
purposes,
admissible for
148 P.3d at
other
such as
¶
33-34,
Gleason,
17,
motive,
quoting
intent,
57 P.3d at
proof
opportunity,
340.
prepa-
ration,
Using
principle,
this
we have ruled that
plan, knowledge,
identity,
testi
or ab-
mony
explains
aspect
some
sence of mistake or accident.
charged
uncharged
crime is not
misconduct
adopted mandatory procedure
We have
for
See,
¶ 27,
eg., Bromley,
evidence.
150 P.3d
testing
admissibility
uncharged
mis
Barker,
explained
at 1211.
сoncept
We
State,
conduct evidence. Gleason v.
2002
¶
(some
36,
On redirect Q. questioned LF as follows: you yоu Do recall how it was that Q. your apartment complex went from you was-you've Do recall when it de- over to his house? ap- [defense seribed for that counsel] |A. parently point you your at some How did we? trip brother and the defendant take Q. Yeah. apartment complex from the over to drove his truck. A. We his house? Q. Who apartment all went from the A. Yes. complexover to his house? Q. Doyou remember when that was brother, A. Me,my Max. got that ar day relation Max Q. Whenyou got over tо his house-do rested? know what it was in? subdivision got A. It's to be at least over two weeks A. Sleepy Hollow. before, or at least a week. Q. Okay. you get Onee over to that resi Q. Okay. you you And I believe testified dence, anyone get out truck did guys drive from the com go into the house? Hollow; plex Sleepy to the house in A. Max. right? Q. Didanyone go with him?
A. Yeah. my stayed A. No.Me and brother Q. And only person gets out of car-in the truck. the car is the defendant? Q. Was particular why there a reason A. Yes. you going three of over there? Q. Hegoes gets something inside and cables, going get A. Wewere some and then comes back out? something some cables for his or TV A. Yes. like that. Q. Andyou guys leave? Q. Allright. you if Do know he was able to find those cables? A. Yes.
A. Yeah, brought earlier, he them As we stated back the evidence II, pertained of the sale to Count
truck. Q. Did generally charged to RF in Febru- bring anything he else with him ? ary jury 2005. The was not convinced that . A. He brought my bag me and brother a crime, Mr. Roeschlein committed that either Q. Abag of what ? by with, sharing marijuana selling a. Marihuan to, and, consequently, found him not Q. Didyou pay Mr. Roeschlein for ? guilty acquittal of Count II. The on Count II those-for that marihuana jury's is in finding contrast verdict . Yes guilty Roeschlein of Counts III and IV for
Q. How delivery marijuana you pay much him? RF and LF both on February 2006. A. $30.
ny about tions tention. The same time as the Mr. Roeschlein delivered ery." charged crime because it was "not at of a different regarding The record does not the sale was not nature Roeschlein claims the testimo- charge Count charged delivery than and the II simply marijuana support intrinsic to the alleged and it was to RF in his con- instruc- deliv- under the 404(b). . the district court offense conduct a sale evidence was admissible under Rule challenged testimony charged Under hearing ambit in Count II and did not fall these to determine whether the did not err Rule cireumstances, 404(b), we conclude failing where Campbell County during the month of Feb- Sentencing ruary 2005. The documents did not state alleged delivery whether the occurred Mr. {[{17]) We review district court's selling to RF or sеntencing decisions for abuse of discretion. *6 sharing boys' it with him. The "A sentence will not be disturbed because of placed the date the sale as week or two sentencing procedures unless the defendant prior to Mr. Roeschlein's arrest mid-Feb- discretion, can show an procedural abuse of ruary was, 2005. The evidence of the sale him, prejudicial conduct cireumstances therefore, distinguishable from the evidence which manifest inherent and in unfairness charged delivery of the other оn Feb- justice, public or conduct which offends the 16, 2005, ruary which was near the date Mr. State, play." fair sense of Smith v. 941 P.2d Consequently, Roeschlein was arrested. the also, State, (Wyo.1997). 750 See Lee v. pertained sale evidence to the crime 129, ¶ 10, (Wyo. 2001WY 36 P.3d 1138 not, therefore, in Count II and un- 2001). only "An error warrants reversal charged misconduct evidence under Rule prejudicial when it is appel and it affects an 404(b). rights. party lant's substantial The who is Moreover, even i#f the evi appealing bears the burden to estаblish that Lee, ¶ 10, prejudicial." an error was 36 P.3d any dence did fall under Rule error in State, quoting Trusky admitting it hearing without a was harmless (Wyo.2000), quoted which Candelaria v. under W.R.Cr.P. 52 and W.R.A.P. 9.04.2 Mr. (cita Roeschlein the claims evidence could have (Wyo.1995) 439-40 omitted). jury egre inflamed the because it is tions more gious for an adult to sell to a [118] After returned simply
minor than to share it. We are not verdict, completely the district court A convinced ordered PSI. Roeschlein's logic; unnecessary probation parole agent Wyo it and is to delve from the reasoning any ming Department into his prepared because it is clear of Corrections admitting error in report quoted the evidence did not affect which cause rights. his substantial supporting original affidavit information. 52(a) rights W.R.Cr.P. and W.RA.P. 9.04 both state which does not affect substantial shall be error, defect, "any irregularity disregarded." or variance probation agent's cause affidavit referred to the reference to the sexual charges dis- in the evaluation assault counts assault and recom- two sexual judge the circuit court determined section. The not re- after mendation missed evidence to bind was insufficient there spond directly objection. to that court on those to the district over governs presentence W.R.Cr.P. 32 addition, the "Evaluation & Ree- counts. -In states, in investigations part: and relevant included of the PSI ommendation" section (a) Investigation. Presentence following statement: every felony When Made.-In case troubling to this is the Writer What is Depаrtment of Probation and Parole any wrongdoing at denial of Defendant's investigation shall conduct wrongly feels he was con- all and that he report and submit a to the court.... It difficult to determine the victed. is felony investigation report cases the inappropriate be- extent of Defendant's but, may parties' waived be with juveniles and how far that has havior with consent, may permit report the court Though original of the gone.... some Otherwise, sentencing. filed after to be dismissed, alleged in- charges were by the court before the shall be considered behavior the Defendant appropriate sexual imposition granting of sentence or the juveniles, in with these same was involved probation. cannot, conscience, good this Writer (2) Report.-The report presen- disregard that information in deter- simply investigation tence shall contain: appropriate The De- mining an sentence. (A) history Information about the unwillingness any to discuss as- fendant's defendant, includ- charaсteristics pects charges these makes it even more record, any, ing prior criminal if finan- to determine what would be best difficult condition, cial cireumstances af- protection society and for the for the fecting the defendant's behavior Defendant's own rehabilitation needs. may helpful imposing sentence Therefore, recommend this Writer would in the correctional treatment of the de- [privilege] the Defendant be denied fendant; probation at this It is felt the first time. soos de оk priority to ensure that the children of (8) Disclosure. Secondary community are safe. (A) ... The court shall afford the de- be the Defendant's rehabilita- that would *7 fendant and the defendant's counsel an needs, tion which could be better assessed opportunity report to comment on the in a structuredenvironment. and, court, in the discretion of the to por- to Mr. Roeschlein filed motion strike testimony other introduce or information or, alternative, for a the PSI in the tions of any inaccuracy rеlating alleged to factual complained generally about the new PSI. He in it. contained allegations to the sexual assault references ock o opportunity to con- because he never had (C) If the comments of the defendant charges. front about those the witnesses and the defendant's counsel or sentencing hearing, Mr. At the [T19] or other information introduced them objected including specifically to allege any inaccuracy pre- factual probable аffidavit portions the of the cause investigation report sentence or pertaining to the sexual assaults the PSI. thereof, summary report part of the or objection, response In to Mr. Roeschlein's shall, the court as each matter contro- it court stated that be- verted, make: it was "inaccurate" because lieve PSI finding allegation; A as to the or probable affidavit properly quoted the cause (ii) A that the court record. Never- determination no such which was theless, finding necessary the mat- court stated that it would because the district will not be taken that information in its sentenc- ter controverted not consider objected sentencing. into account in A written ing decision. Mr. Roeschlein also that, stating after would not consider the findings and determi- record of such ac- appended charges to and sentencing decision, nations shall be dismissed its any copy presentence company disregarded agent's the court also recom- by refusing to оrder a new PSI that did not probation agent's recommendation in decid- that [¥21] the district court abused investigation report available On appeal, penal Mr. Roeschlein claims institutions. thereafter made its discretion that the district court mendation to the extent it relied charges. | In event, blindly there is no indication relied upon ‘ ' those ' jection, when Mr. Roeschlein ing hearing because the district court did not is entitled to new PSI and another sentenc- W.R.Cr.P. was not regardless ments of Rule inaccurate. that since there include the information from the dismissed cause court erred dant's sion decision without enced in the PSI in sion not bound over to the district tains that the district court was charges his by that case. count Mr. Roeschlein was count contain assault [123] objection to the (Wyo.2008), in Bitz v. it would not consider fully In contrast dismissed affidavit about objection, the PSI of the information from the charges that its information. Mr. Roeschlein main- stating in its Mr. cause affidavit Bits, charges, 82(a)(8)(C)..Bitz, ¶ 17, ruling complied the district court misunderstood understood Mr. Roeschlein's ob of whether or not information." by considering, investigation report should 'not a Defense Roeschlein also claims that he 32(a)(8)(C)(i). Mr. Roeschlein sentencing that the were. we ruled that to order a new prior dismissed the district court ruled first recommendation PSI: two counts which were 2008 WY making required, by objected counsel the dismissed sexual to trial and another pertaining situation in with the "Defense counsel acquitted complying decision. over the defen charges the dismissed to the argued the district PSI court, sentencing 78 P.3d at cause was our deci probable require arguing on, tainted to the in his refer Thus, inclu Bifz, with that one . who deliver controlled substances to well was that the district court reasoned and ically There Roeschlein. find that ing upon Mr. situation and crimes and discretion in court's rationale three to six he ordered them to be concurrent. count of stating the maximum statute was charges. had "[blecause dant's dismissed count, and, rejecting date for and the involvement of convicted. The district court [T26]) The record is clear that the district judge evidence improperly counts within, adopted the sentences should *8 range approved by returned thoughtfully stated is no request probation the defendant The district sentenced Mr. Roeschlein to serve Instead, charges for indication that twenty years per years imposing aptly enhanced carefully presented a "not Roeschlein's for influenced which Mr. Roeschlein was judge to RF. for he would not consider sеriousness of the offense evaluated Mr. Roeschlein's at this time." stated. The the record demonstrates fact at the lower end of incarceration on each probation, the sentences was well- jail guilty" the State's properly sentence noted the court addressed the defen- minors, is not a penalties recognized sentence under the imposed run by the district court sentences. the verdict on one then reviewed the dismissed consecutively, judge specif- exercisеd its I'm stating count. The against good legislature. Ultimately, concerning legislature for adults sentences argument that the going minors, candi- Mr. of, probation agent's strike the recommendation 3. Search Affidavit Warrant based, partly, upon that was least dismissed sexual assault charges. Although [127] Roeschlein claims specifically by the district court did not given address the affidavit a law enforcement offi objection probation Mr. Roeschlein's in support to the cer 'of the search warrant was reсommendation, agent's we are confident insufficient to establish cause. 476 challenge adequacy refusing of to order a new investi- not
Roeschlein the affidavit gation report. in suppress in a motion part of court. the record Moreover, the affidavit is not on appeal and, according [131] Affirmed. Justice, record HILL, not of the parties, specially concurring. was to the was bound delivered to attached the affidavit over. Mr. to his Roeschlein, court when the case appellate brief. the affidavit agree that we should affirm this case because [132] I write is not in the record. separately because I do not Rather, I to a brief. record, ruled that also, record to his brief" the official procedure party's failure to utilize ering documents which ¶ 761 cause affidavit is on 1291-92 (Wyo.1999). [v. 10, 1, bringing to the Aragon appeal. appellate [Wyo. 945 n. n. 1 Hornecker v. 2006 WY on which to base we (Wyo.2000). CJ (Wyo.2006). provide a basis " ], 2005], record, See, refuse to consider [128] '[aln 2005 WY record P.3d Barnes v. eg., 47, ¶ 6, appellant bears the burden not included reviewing court a sufficient and he and we will not condone We W.R.A.P. by State, The rules of 5, Because the attaching its are the rules 1,n. cannot ¶ 20, have v. for Barnes, decision," Aragon SA, (Wyo.2006). 977 P2d simply 3.04; supplementing 2006 consistently supplement the official documents sufficiency 998 Follett appellate attached WY consid [756,] P.2d See 49, v. ' 'was not Roeschlein's was who has issued a search warrant shall would affirm on the merits because for such the record was the district court most difficult to discern them ing therewith and shall file them tory and all of the The cline to treat Roeschlein's issue counsel and our of the district or adequate. davit [183] the warrant responsibility, certainly papers there. papers with clerk. The support W.R.Cr.P. For this property appellate should Taking oversight. complete cireuit court in the responsibility of the search I copy was seized." reason, to forward the would that one 41(f) counsel papers responsibility In the fulfillmеnt of an provides: direct I adequate step would with the clerk judicial officer record, return, regard. on its merits. see of both warrant connection further, county in to it that the affi- "(F clerk not missing excuse inven- and it attach It is Fil- get de- papers and have them added to to this Court CONCLUSION appeal. Upon receipt record on of those The district court did not abuse its papers, I would assess the issue on its merits judgment and affirm the and sentence. by failing conduct a hear- discretion admissibility testi- cоncerning of RF's ing marijua-
mony Mr. Roeschlein's sale about testimony part of the
«na to him. The was and, con-
evidence about 404(b). Furthermore, related to that evidence. because the dence sequently, was' erly complied with W.R.Cr.P. prejudiced mandating. jury acquitted him on the *9 addition, not admission "other misconduct" hearing Mr. Roeschlein under Rule 32 when it court charge prop- evi- Joel Randy Appellee STATE (Defendant), 2007WY157 FERGUSON, Appellant No. 06-171. (Plaintiff). Wyoming, not consider the informa- that would stated Wyoming. Supreme Court of presentence investi- in Mr. Roeschlein's tion 4, 2007. Oct. report pertaining to the dismissed gation charges. The sexual assault not, therefore, discretion abuse its