LASCANO v. State

2011 WY 144, 262 P.3d 1259, 2011 Wyo. LEXIS 150, 2011 WL 4953007
CourtWyoming Supreme Court
DecidedOctober 19, 2011
DocketS-11-0009
StatusPublished
Cited by1 cases

This text of 2011 WY 144 (LASCANO v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LASCANO v. State, 2011 WY 144, 262 P.3d 1259, 2011 Wyo. LEXIS 150, 2011 WL 4953007 (Wyo. 2011).

Opinion

HILL, Justice.

[T1] After being convicted of one count of burglary, appellant Joshua Laseano (Las- *1260 cano) appeals the verdiet and argues that the State committed misconduct by misrepresenting the relevance of gang evidence. We disagree and affirm Laseano's conviction. Furthermore, we also affirm the district court's decision to admit the evidence.

ISSUE

[T2] Lascano presents one issue:

The prosecutor committed misconduct by misrepresenting evidence that the trial court relied upon in formulating its decision letter of July 2, 2010, or in the alternative the trial court abused its discretion in failing to inquire into clarity that Lasca-no committed a bad act as required by Gleason v. State, 2002 WY 161, 57 P.8d 382 (Wyo0.2002).

FACTS

[¶3] In early October of 2009, JM (the victim) withdrew himself from gang activity after several years of association with a Raw-lins gang, the "South Side Locos." The vie-tim also dissociated himself with some of his friends, including Lascano, Santos Jaramillo (Jaramillo), and Aurelio Rodriguez (Rodriguez), who were also associated with gang activity.

[¶4] Later that month, on October 29, 2009, Lascano, Jaramillo, and Rodriguez spent the night together. That night, Jaram-illo asked Rodriguez to steal a PlayStations3® and an Xbox860® from the victim's home. After - some - encouragement, - Rodriguez agreed to do so, and the next day he broke into the victim's home, and stole the PlaySta-tion8. Rodriguez delivered the PlayStations to Jaramillo, and Jaramillo gave Rodriguez $200.00 for it.

[T5] The victim's mother noticed that the PlayStation8 was missing and filed a report with the police. During the investigation, Rodriguez admitted to the burglary and was charged thereafter. On December 22, 2009, the State charged Lascano and Jaramillo with conspiracy to commit burglary, in violation of Wyo. Stat. Ann. §§ 6-8-303(a) and 6-3-301(a) and (b) (LexisNexis 2011). Lascano pleaded not guilty, and the case proceeded to trial.

[T6] Prior to trial, the State filed a W.R.E. 404(b) notice and indicated its intent to introduce evidence of Lascano's gang affiliation. The State surmised that Lascano and Jaramillo forced Rodriguez to burglarize the victim's home in retaliation for his renouncing his gang membership. After a hearing, the district court ruled that the gang evidence was admissible to prove motive and knowledge.

[¶7] Trial began on July 27, 2010, and over the State's objection, Lascano and Jar-amillo were tried together. After the jury heard abundant testimony, it found Lascano guilty and the court sentenced him to six to ten years, with credit for 278 days. 1 The prison term was suspended in favor of five years supervised probation. This appeal followed.

STANDARD OF REVIEW

[¶8] In Sullivan v. State, 2011 WY 46, 119-10, 247 P.8d 879, 881 (Wyo.2011), we stated:

Where there has been an objection at trial, we review claims of prosecutorial misconduct under a harmless error standard. Harris v. State, 2008 WY 23, 112, 177 P.3d 1166, 1170 (Wyo.2008). We typically review allegations of prosecutorial misconduct by reference to the entire ree-ord to determine whether or not a defendant's case has been so prejudiced as to deny him a fair trial. Schafer v. State, 2008 WY 149, ¶ 21, 197 P.3d 1247, 1251 (Wyo.2008) (citing Szymanski v. State, 2007 WY 139, ¶ 27, 166 P.3d 879, 886 (Wyo.2007).
In addressing a claim of prosecutorial misconduct, this Court focuses on the prejudice suffered by the defendant. Smith v. State, 2009 WY 2, 1 26, 199 P.3d 1052, 1059 (Wyo.2009). This Court has identified that reversal is not warranted unless a reasonable probability exists, absent the error, that an appellant may have enjoyed a more favorable verdict. Tryjillo v. State, 750 *1261 P.2d 1334, 1337 (Wyo.1988) (citing Jones v. State, 735 P.2d 699, 703 (Wyo.1987)).

Furthermore, we have stated:

'Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion." Solis v. State, 981 P.2d 34, 86 (Wyo.1999) (citation omitted). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. 'In the absence of an abuse of discretion, we will not disturb the trial court's determination" [Griswold v. State, 2001 WY 14, 17, 17 P.3d 728, 17 (Wyo.2001).1 The burden is on the defendant to establish such abuse.
[Wilks v. State], 2002 WY 100, 119, 49 P.3d [975] at 984 (quoting Skinner v. State, 2001 WY 102, 125, 88 P.3d 758, 766 (Wyo. 2001), cert. denied, 585 U.S. 994, 122 S.Ct. 1554, 152 L.Ed.2d 477 (2002)).

Sanchez v. State, 2006 WY 12, ¶ 29, 126 P.3d 897, 908 (Wyo.2006).

DISCUSSION

[19] In his main issue, Laseano argues that the prosecutor committed misconduct by misrepresenting the relevance of W.R.E. 404(b) evidence, which indicated that Lascano was a member of a gang. In its efforts to have the "gang" evidence admitted at trial, the State asserted that the burglary was an act of gang retaliation, and that, but for the gang affiliations, the burglary would not have occurred. More specifically, Lasca-no argues that he was prejudiced at trial because the gang evidence was allowed, but that the State failed to establish an "appropriate foundation as to the gang involvement and/or attempts to renounce and ideas of retaliation."

[T10] Regarding gang evidence, we have said:

Evidence of an individual's gang affiliation can be probative of material issues in certain cases. See generally, for example, Johninson v. State, S317 Ark. 481, 878 SW2d 727, 7830-88 (1994) (collecting cases); People v. James, 117 P.3d 91 (Colo. App.2004), cert. denied, 2005 WL 1864140 (Colo.2005); State v. Roberts, 261 Kan. 320, 931 P.2d 683, 686-87 (1997) (highly probative of witness bias); State v. Tran, 252 Kan. 494, 847 P.2d 680, 687-88 (1998) (res gestae and motive); Butler v. State [120 Nev. 879], 102 P.8d 71, 78-79 (Nev.2004) (probative of motive); State v. Torres, 183 N.J. 554, 874 AZ2d 1084, 1098-95 (2005) (collecting cases); and Annotation, Admissibility of Evidence of Accused's Membership in Gang, 89 AL.R.Ath 775 (1985 and Supp.2005).
[[Image here]]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Burris v. State
78 A.3d 371 (Court of Appeals of Maryland, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
2011 WY 144, 262 P.3d 1259, 2011 Wyo. LEXIS 150, 2011 WL 4953007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lascano-v-state-wyo-2011.