Vasquez v. State

386 P.3d 350

2016 WY 129

Jose Adrian Vasquez, Appellant (Defendant),

v.The State of Wyoming, Appellee (Plaintiff).

S-16-0036

Supreme Court of Wyoming.

December 29, 2016

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief

Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, and FOX, JJ., and YOUNG, D.J.

YOUNG, District Judge.

[¶1] After a one-day jury trial, Jose Adrian Vasquez was convicted of three counts of sexual abuse of a minor in the second degree. Appellant contends the district court abused its discretion in admitting evidence that he was in violation of his parole at the time of the offenses. We affirm.

ISSUE

[¶2] Appellant presents one issue for our review:

Whether the district court abused its discretion when it admitted evidence relating to the terms of Appellant's parole and his parole violations.

FACTS

[¶3] Jose Adrian Vasquez was paroled from the Wyoming Medium Correctional Institution (WMCI), after serving time for sexual abuse of a minor in the third degree, on March 5, 2014. He met I.E. in late March 2014, when I.E. was fifteen and Appellant was twenty-three. As a condition of his parole, Appellant was not to have contact with minors. Appellant began his relationship with I.E. when he visited I.E.'s apartment in Torrington, Wyoming, where I.E. lived with his mother. I.E.'s mother, who was using methamphetamine and focused on her boyfriend, left I.E. alone frequently. At some point, Appellant asked I.E. if he wanted to help him plan a skate party. During a walk to discuss the party, Appellant and I.E. held hands. By early April 2014, I.E. spent nearly every day with Appellant at his apartment. At the time I.E. met Appellant, I.E. had few friends, was very lonely, was frequently "depressed" and "felt vulnerable" due to a strained relationship with his mother.

[¶4] The relationship between Appellant and I.E. progressed from touching to sexual encounters. The majority of these encounters occurred at Appellant's residence. Appellant's parole agent, Jason Bauer, and a contract parole agent, Glenn Schleve, discovered Appellant and I.E. together on two separate occasions. Both Appellant and I.E. lied to the parole agents about I.E.'s age. Mr. Bauer imposed an administrative parole sanction against Appellant for his contact with a minor. On April 12th and 13th, 2014, Appellant took I.E. camping at the Rawhide Recreation Area outside of Torrington, Wyoming, where I.E. and Appellant engaged in sexual contact. While waiting for a ride from I.E.'s mother, they encountered Jerry Numon, a guard at WMCI. Mr. Numon knew Appellant from WMCI. Mr. Bauer was notified that Appellant had been seen with I.E.

[¶5] In June of 2014, I.E.'s mother reported to Mr. Bauer that Appellant continued to have contact with I.E. Appellant's parole was revoked. In November of 2014, he was charged with three counts of sexual abuse of a minor in the second degree, in violation of Wyo. Stat. Ann. § 6–2–315(a)(i). Counts two and three alleged the abuse had occurred at the Rawhide Recreation Area. The case proceeded to trial, after which the jury returned a verdict of guilty on all three counts of sexual abuse of a minor in the second degree, in violation of Wyo. Stat. Ann. § 6–2–315(a)(i).

STANDARD OF REVIEW

[¶6] We review rulings on the admissibility of evidence for an abuse of discretion.

We review challenges to the admission of evidence for an abuse of discretion when an objection has been lodged. Cardenas v. State , 2014 WY 92, ¶ 7, 330 P.3d 808, 810 (Wyo. 2014). "[W]here a defendant files a pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b), the same shall be treated as the making of a timely objection to the introduction of the evidence." Howard v. State , 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002). Mr. Hodge filed a demand prior to trial. We therefore review the district court's decision to admit the uncharged misconduct evidence for an abuse of discretion. A trial court's ruling on the admissibility of uncharged misconduct evidence is entitled to considerable deference, " ‘and, as long as there exists a legitimate basis for the trial court's ruling, that ruling will not be disturbed on appeal.’ " Cardenas , 2014 WY 92, ¶ 7, 330 P.3d at 810 (quoting Gonzalez–Ochoa v. State , 2014 WY 14, ¶ 11, 317 P.3d 599, 603 (Wyo. 2014) ). "A trial court abuses its discretion when it could not have reasonably concluded as it did." Bromley v. State , 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206–07 (Wyo. 2007). "Even if a district court abused its discretion in admitting uncharged misconduct evidence, we must also determine whether the error was prejudicial." Mersereau v. State , 2012 WY 125, ¶ 17, 286 P.3d 97, 106 (Wyo. 2012). " ‘Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made.’ " Id. (quoting Vigil v. State , 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo. 2010) ).

Hodge v. State , 2015 WY 103, ¶ 8, 355 P.3d 368, 370–71 (Wyo. 2015).

[¶7] Even if an evidentiary ruling is found to be in error, Appellant has the burden of affirmatively showing that the error was prejudicial.

If we conclude the trial court erred, we must then determine if the error was prejudicial. Bromley v. State , 2009 WY 133, ¶ 24, 219 P.3d 110, 116 (Wyo. 2009). An error is prejudicial if there is a reasonable possibility the verdict might have been more favorable to the appellant if the error had never occurred. Callen v. State , 2008 WY 107, ¶ 5, 192 P.3d 137, 141 (Wyo. 2008). The burden of proving prejudicial error rests with the appellant. Skinner v. State , 2001 WY 102, ¶ 25, 33 P.3d 758, 767 (Wyo. 2001).

Bloomfield v. State , 2010 WY 97, ¶ 17, 234 P.3d 366, 373 (Wyo. 2010).

DISCUSSION

[¶8] Appellant filed a pretrial demand for notice of intent to use W.R.E. 404(b) evidence.¹ The State did not respond, and Appellant subsequently filed a Motion in Limine requesting the district court exclude evidence of his prior conviction for sexual abuse of a minor in the third degree under W.R.E. 404(b) and W.R.E. 403.² Appellant argued the evidence should be excluded under W.R.E. 404(b) and not allowed as W.R.E. 609 impeachment evidence, in the event Appellant testified.³ While the district court agreed that evidence of the prior conviction should not be allowed, the district court allowed testimony as to why Mr. Schleve and Mr. Bauer contacted Appellant, why they were interested in I.E.'s age, as well as evidence of potential parole violations as course of conduct evidence, or intrinsic evidence.

[¶9] Appellant contends that even if relevant, evidence of his parole status, the condition prohibiting contact with minors, the administrative parole sanctions, and subsequent revocation proceedings should have been excluded as their probative value was substantially outweighed by the danger of unfair prejudice under W.R.E. 403. As noted above, Rule 403 provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

[¶10] Appellant urges the Court to find that the danger of unfair prejudice resulting from Mr. Bauer's testimony substantially outweighs any probative value and was in violation of Rule 403. He directs the Court to United States v. Calhoun , 544 F.2d 291 (6th Cir. 1976) for this proposition. In Calhoun , the Sixth Circuit held

The knowledge that Calhoun was on parole at the time of the alleged offense could also arouse an emotional reaction among the jurors, especially those who harbor strong feelings about recidivism and the premature release of those in prison for crimes. Thus in United States v. Poston , 430 F.2d 706 (6th Cir. 1970), we held that it was prejudicial and reversible error to have introduced evidence before a jury that the defendant was on probation at the time of the alleged offense.

Calhoun , 544 F.2d at 296.

[¶11] The State cites United States v. Allums , 379 Fed.Appx. 711, 716–18 (10th Cir. 2010), where the Tenth Circuit explained its decision to take a more flexible approach in permitting testimony from parole agents.

In contrast to the Sixth Circuit's decision in Calhoun , this court has taken a more measured approach. In United States v. Contreras , 536 F.3d 1167, 1169 (10th Cir. 2008), the trial court allowed the prosecution to present testimony from a parole officer who identified the defendant from photographs taken by a video surveillance camera during the charged bank robbery, "but required the Government to limit its direct examination to exclude the details of [the witness's] role as [the defendant's] probation officer." We held that the trial court did not abuse its discretion in allowing the testimony, and we rejected Calhoun 's per se approach. We reasoned that the defendant could freely cross-examine [the probation officer], either by (1) "limit[ing] the scope of his cross-examination to exclude details of the nature of their relationship and focus solely on questions regarding whether [the probation officer's] past interactions with [the defendant] adequately enabled her to identify him from the surveillance photographs[;]" or (2) electing to "fully cross-examine [the probation officer] without concern about testimony regarding her role as [the defendant's] probation officer." Id. at 1171–72.

Our approach in Contreras comports with decisions of other circuits, which have rejected Calhoun 's per se rule and considered the admission of parole and probation officer testimony on a case-by-case

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