Pena v. State

780 P.2d 316, 1989 Wyo. LEXIS 199, 1989 WL 105699

• Court: Wyoming Supreme Court
• Decided: September 14, 1989
• Docket: 88-243
• Status: Published

Opinions

GOLDEN, Justice.

On appeal from his conviction for felony assault of a police officer, in violation of W.S. 6-5-204(b), appellant Benny Pena (Pena) claims it was error for the trial court to allow into evidence the testimony of six police officers relating to prior bad acts of Pena involving altercations with the police officers when his defense was a denial of the offense. We affirm.

FACTS

Sometime in the early morning hours of January 30, 1988, a Cheyenne taxi driver called the Cheyenne Police Department to report a truck stuck in a snow bank in the area of 5th and Deming Streets. At approximately 4:45 a.m. Cheyenne Police Officer Phil Brown was dispatched to the area to investigate a “possible drunk driver stuck in the snow.” Upon arriving at the scene, Brown realized that the truck had been removed from the snowbank and moved a block away to the 500 block of Thornes, where he saw a person, later identified as Pena, standing in the street next to the truck. Brown pulled up behind the truck and ordered Pena to move to the side of the street so that he could talk to him because he appeared drunk.

At this point the driver of the truck drove to the end of the street, made a U-turn and parked the truck on the opposite side of the street. Conforming with his police training, Brown started to follow the truck so that he could be parked behind it. As he was driving down the street Brown looked in his rear-view mirror and saw Pena running at “full speed, arms waving, towards the front door of his house.” Brown immediately threw his car into park, grabbed his baton and started to pursue the fleeing Pena.

As Brown entered the yard of the house to which Pena was running, an individual standing in the yard, later identified as Pena’s brother Larry, kicked Brown so hard in the kneecaps that he fell to the ground. Brown got up and chased Larry into the street, where Larry slipped bringing Brown down on top of him. As Brown was holding Larry down on the ground with his baton in an attempt to arrest him, Pena struck a hard blow to Brown from behind throwing Brown over the top of Larry. Brown immediately got up, turned around and saw Pena who began to punch Brown. Still holding on to Larry, Brown made a sweeping motion with his baton in Pena’s direction in an attempt to stop Pena’s attack. During the scuffle, Brown was hit repeatedly in the face, chest and arms by Pena.

A third person arrived to join Pena in the assault on Brown. While trying to fend off these attackers, Brown was struck on the side of his head from the other side by Larry who was still being held by Brown. Larry then began to wriggle out of the jacket Brown was holding onto and, with the aid of Pena and the third person, successfully freed himself and the three ran into the house, leaving Brown in the street with the jacket.

Rather than pursue the three, Brown called for backup. Leaving the jacket in the street, Brown then approached the house and was confronted on the porch by another of Pena’s brothers, John, and the third person in the assault. Brown attempted to enter the house but was pushed off the porch by John. Brown made another attempt but was swung at several times by the third person and told that he would not be allowed to enter without a warrant. About this time a backup officer Mark All-sop arrived. As Allsop walked toward the house amidst the yelling and screaming of John and the third person, Pena’s mother Delores Valdez came out onto the porch and screamed at the officers that they could not enter the house without a warrant. From the porch Brown and Allsop could see into the house and Allsop identified the occupants and assailants of Brown as Pena and his brother Larry based on previous contacts Allsop had had with them.

At that time Brown ran around to the back of the house and saw two unidentified people running away from the house whom he chased for a short distance. Brown returned to the front of the house; as he did so, the third person retrieved the jacket from the street and a struggle over the jacket ensued between Brown, the third person and Delores Valdez. Meanwhile, Pena reappeared on the porch wielding a baseball bat over his head. Allsop raised his baton in defense; Pena yelled and ran back inside the house. More backup officers arrived and John and the third person were arrested. Brown, Allsop and a third officer entered the house and saw Pena and Larry run out the back door; they were later arrested and charged with felony assault of a police officer in violation of W.S. 6-5-204(b).

A consolidated trial of Pena and Larry was held on May 23-26, 1988. A key issue at trial was the identity of the individual who fought with Brown in the street. Delores Valdez testified that the coat Brown alleged Larry had on during the struggle belonged to Pena and that it was in fact Pena that Brown had initially been fighting with in the street instead of Larry, who was in the house with her. She further testified that it was Brown who initiated the attack, not Larry or Pena, that she saw no one strike Brown, and that any actions taken by Larry or Pena were in self defense. In rebuttal the state introduced the testimony of six local law enforcement officers about several previous altercations involving Pena and the officers. After a discussion in chambers, and over the continuing objection of defense counsel, the court admitted this testimony for the purpose of proving intent. A limiting instruction was given to the jury and reiterated before each rebuttal officer testified.

At the close of trial the jury found Pena guilty; Larry was found not guilty. On August 1, 1988, Pena was sentenced to a term of one to two years in the penitentiary. This appeal followed.

ANALYSIS

W.R.E. 404(b)

Pena argues on appeal that the six officers’ testimony was improperly admitted under W.R.E. 404(b), which provides:

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.

This rule operates to ban the use of evidence of a person’s character in order to establish that the person’s behavior on a particular occasion was in conformity with his character. Ortega v. State, 669 P.2d 935, 943 (Wyo.1983). Such evidence may, however, be admissible for other purposes. Trujillo v. State, 750 P.2d 1334, 1336 (Wyo.1988); Coleman v. State, 741 P.2d 99, 103 (Wyo.1987); Brown v. State, 736 P.2d 1110, 1112-14 (Wyo.1987); Ortega, 669 P.2d at 943. This court has adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs or acts if it constitutes proof of one of the purposes in accord with Rule 404(b). Marker v. State, 748 P.2d 295, 297 (Wyo.1988); Carey v. State, 715 P.2d 244, 248 (Wyo.1986). On appeal, deference is given to a trial court’s determination concerning the admissibility of evidence under Rule 404(b); as long as there is a legitimate basis for a court’s decision we cannot say that there was an abuse of discretion. Trujillo, 750 P.2d at 1336; Noetzelmann v. State, 721 P.2d 579, 581 (Wyo.1986); Carey, 715 P.2d at 247; Bishop v. State, 687 P.2d 242, 244 (Wyo. 1984) cert. denied 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985); Ortega, 669 P.2d at 944; Hatheway v. State, 623 P.2d. 741, 743 (Wyo.1981); Vasquez v. State, 623 P.2d 1205, 1208 (Wyo.1981).

When reviewing the admission of prior bad acts evidence, this court has adhered to a five factor test, the Bishop test. Trujillo, 750 P.2d at 1337. The five factors we have considered are whether:

(1) The proof of the other similar crimes is plain, clear and convincing.

(2) The other crimes are not too remote in time from the charged offense.

(3) The evidence of the other crimes is introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence [W.R.E. 404(b)].

(4) The element of the charged offense that the evidence of other crimes is introduced to prove is a material issue in the case.

(5) There is a substantial need for the probative value of the evidence of the other crimes. United States v. Myers, 550 F.2d 1036, 1044-1045 (5th Cir.1977).

First adopted in Coleman, 741 P.2d at 104 and again in Bishop, 687 P.2d at 246. While not controlling of a trial court’s discretion, these factors are helpful in our determination of the propriety of the admissibility of prior bad acts evidence, keeping in mind that not all factors need be present to uphold a trial court’s admission of evidence. Coleman, 741 P.2d at 105; Story v. State, 721 P.2d 1020, 1032 (Wyo.1986), cert. denied 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986).

INTENT

The testimony of the six officers admitted into evidence related various altercations occurring between themselves and Pena. It is not necessary to detail the particulars of each officer’s testimony. Suffice to say, the testimony related a series of altercations in which Pena had exhibited great hostility toward the officers. His actions included: kicking at an officer who had merely approached the scene of a scuffle between Pena and another officer; attempting to hit an officer through the open window of the officer’s patrol car after leaving the scene of an accident when the officer requested that he return to the scene; threatening an officer, assuming a fighting stance and swinging at the him after he had stopped Pena for speeding on a motorcycle; resisting arrest so vigorously after a fight in a bar that it took three officers to restrain him, handcuff him and place him in the patrol car, after which, Pena kicked out the window of the patrol car, kicked an officer in the chest and finally had to be placed in leg irons; and resisting arrest and unsuccessfully fleeing upon being informed that he was to be arrested under an active arrest warrant. This evidence suggested that Pena was the first aggressor in the altercations with the officers, who were lawfully performing their official police duties.

During an in-chambers conference the trial court determined that the six officers’ testimony was admissible in rebuttal for the purpose of proving Pena’s intent to assault Brown. The trial court expressed its reasons for admission of the evidence in the following statement:

THE COURT: Let me tell you what I’m going to do here. First of all, Mr. Apo-daca made a statement to the effect that [Pena] and Larry were simply struggling to get free, and that to me means that the defendants were not motivated, at least by the argument, not motivated by an intent to do harm. This altercation, therefore, was not motivated by an intent to do harm by Larry and [Pena], but an intent to simply struggle to get free. Perhaps it’s even self defense.

Now, the Jury is going to be instructed that the state has the burden of proof, that the conduct of the defendants was an intentional act with the intent to do harm to this individual, an intent to cause bodily harm, bodily injury.

Now, Mr. Apodaca testified, and I think the inference could be drawn, regardless of the type of harm, that testified to by the officer, that that was not the product of a mind with intent to do harm, but the intent of a mind simply struggling to get free.

You could also argue that the defense has projected a picture where the defendants are peaceloving individuals. They’re not possessed of any frame of mind demonstrating ill will towards the police, but rather they were out there in a peaceful manner, trying to prevent the abuse of excessive force by Officer Brown.

That’s how I view one aspect of the defense in this particular case, and because intentions are a central issue to the State’s burden, for that reason I’m going to allow that testimony to come in under 404(b) as circumstantial evidence of proof of the intent that these individuals possessed.

When relating the Bishop factors to this record, it discloses, first, that the officers’ testimony, describing a series of altercations between themselves and Pena, was clear and convincing. We have noted that as a predicate to the introduction of extrinsic acts, c. “the prosecution must establish that the defendant committed them.” Bishop, 687 P.2d at 246. While proof of identity need not be proven beyond a reasonable doubt, a prima facie case is necessary in order for the extrinsic acts to be admissible. Id.

Second, the altercations were not so remote from the offense charged to foreclose their admission into evidence. The oldest altercation introduced into evidence occurred less than seven years before the present charged offense, and the latest just one year before the present offense. “[(Questions concerning remoteness of evidence are left to the sound discretion of the trial court and subject to challenge and disturbance only for clear abuse.” Goodman v. State, 601 P.2d 178, 184 (Wyo.1979) (eight years between prior bad act and charged offense not too remote). See also Elliott v. State, 600 P.2d 1044, 1048 (Wyo. 1979) (three years not too remote). Given the nature of the altercations testified to, seven years is not too remote. Even were we to hold otherwise — that seven years is too remote — remoteness in time of a prior incident is rarely, standing alone, determinative of the admissibility of prior bad acts evidence; rather, it is merely one factor to be considered in determining the question of relevancy. Elliott, 600 P.2d at 1048.

The testimony was admitted for the purpose of proving intent. Intent is one of the enumerated exceptions to Rule 404(b), thus fulfilling the third factor of the Bishop test. It is also one of the elements to be proved beyond a reasonable doubt in the crime of felony assault of a police officer, as proscribed by W.S. 6-5-204(b).¹ As such, intent is a material issue in this case, as required under the fourth Bishop factor. This court has recognized that “evidence is not to be excluded because it tends to show the commission of other offenses ‘where it tends to prove facts material in the trial’ ” Crozier v. State, 723 P.2d 42, 49 (Wyo. 1986) (quoting Valerio v. State, 429 P.2d 317, 318 (Wyo.1967)). Finally, intent being an essential element of the crime charged, the testimony’s probative value as to intent is manifest. See Scadden v. State, 732 P.2d 1036, 1044 (Wyo.1987) (where testimony is relevant to proving an element of the crime, its probative character justifies its introduction); and Coleman, 741 P.2d at 103 (suggesting that prior bad acts evidence “be ruled inadmissible unless it can be shown by the prosecution that it is essential to the proof of an element of the crime allegedly committed by the accused and, indeed, that its use in this sense not be merely cumulative.” M. Berger, 2 Wein-stein’s Evidence, 11404[10] at 404-73-404-74 (1978)). Here, where Pena argued that Brown was the aggressor, that Pena acted only in self defense, and where this defense was corroborated by defense witnesses, the officers’ testimony was critical as rebuttal evidence on the issue of intent, an essential element of the crime, and was not merely cumulative of other evidence presented.

This court has previously held that evidence of prior bad acts is admissible for the purpose of proving intent. Trujillo, 750 P.2d at 1336; Noetzelmann, 721 P.2d at 582; Goodman, 601 P.2d at 181.² In Trujillo, the appellant, a trained boxer, was charged with aggravated assault when his punch broke the victim’s jaw. The court recognized that the pivotal question in the trial was whether he broke the victim’s jaw “ ‘intentionally, * * * under circumstances manifesting extreme indifference to the value of human life * * * ’ under § 6-2-502(a)(i) so that aggravated assault was proven beyond a reasonable doubt.” Id. at 1337. In so recognizing, the trial court permitted the introduction of evidence of a fight occurring between the appellant and another person one hour before he broke the victim’s jaw for the purpose of proving intent. This court affirmed the trial court’s decision holding that the evidence was relevant on the issue of intent and finding that its probative value outweighed its prejudicial effect. Id.

In Goodman, Goodman had been found guilty of manslaughter for shooting a pregnant woman; his defense to the charge was that the shooting had been an accident. During trial, the prosecution, through a series of cross examination questions, elicited testimony from Goodman regarding a similar shooting incident that had occurred some eight years before the shooting in question. In that earlier incident, Goodman had immediately reported the shooting; in the later case, Goodman made no such report, allowing the victim to die. The state presented the evidence on the theory that it tended to prove Goodman’s intent to kill the woman and refuted his theory of accident. The trial court admitted the evidence. This court affirmed the admission stating:

We consider the evidence to have been relevant in the element of intent which the State was obliged to prove in order to establish murder.

* * # * * *

The evidence was probative of appellant’s intent at the time the shooting took place. In addition, it served to rebut appellant’s claim of accident. Evidence such as that presented here is commonly used for just those purposes.

Goodman, 601 P.2d at 181.

A particularly germane definition of “intent,” as quoted in Goodman, is found in 2 D. Louisell and C. Mueller, Federal Evidence, § 140, pp. 224-25 (1985):

3. Intent.

Sometimes loosely defined as “merely the absence of accident,” intent in criminal cases is often an element of the charged crime, which clearly encompasses both the desire to achieve a particular end and the knowledge that such an end is the almost-certain result of an act; no doubt intent has many more specific meanings, depending upon the context and the definition of the crime charged. Other acts by the accused, including other crimes, may be received to prove intent on the common-sense theory that the more often a person acts in a particular way and achieves a particular result, the more likely it is that he intended the result.

(Emphasis added in Goodman.) See also Grabill v. State, 621 P.2d 802, 810 (Wyo.1980).

The evidence introduced through the officers’ testimony related a series of altercations in which Pena acted as the aggressor, without provocation, and seemingly for the sole purpose of not cooperating with law enforcement officials. It is unlikely, in light of the overwhelming evidence introduced through the officers’ testimony, that Pena would have acted any differently when confronted by Officer Brown. His theory of self-defense in response to Officer Brown’s alleged attack is inconsistent with his earlier repeated behavior vis-a-vis police officers. Under Goodman, the officers’ testimony is relevant for the purpose of showing Pena’s intent to do harm in the altercation with Officer Brown. Admittedly, this evidence strikes fairly close to demonstrating a character trait of Pena to fight with police officers. This does not make it inadmissible, however. “It is clear that evidence admissible under Rule 404(b) often tends to implicate the character of the accused, but if the evidence properly is offered for a purpose which is permissible in the light of Rule 402 and 404(b), then it is not excludable simply because it does implicate the character of the accused.” Coleman, 741 P.2d at 102. See also Grabill, 621 P.2d at 809.

IDENTITY

The record also suggests another purpose for which the evidence could properly be admitted. At trial, Delores Valdez testified on defense that it was Pena who had initially been in the' street with Officer Brown, not Larry, thus raising the issue of the identity of Officer Brown’s assailant. Under the Bishop factors, the officers’ testimony was properly admitted for the purpose of showing identity. As discussed above, the proof of the other crimes was clear and convincing and they were not too remote in time to the charged offense. Identity is one of the listed exceptions to the rule. We need cite no authority for the precept that identity is always an element of any crime charged, although it is not always in dispute. As such, it is a material issue in any case, although not always in dispute. Finally, being an element of the crime charged, there is a substantial need for the probative value of the testimony. Bishop, 687 P.2d at 246.

“As a general rule, it can be said proper evidence to identify the accused as the person who committed the crime is not to be excluded because it tends to prove he was guilty of another and independent crime.” Valerio v. State, 429 P.2d 317, 318 (Wyo.1967). See also McCormick on Evidence § 190, pp. 557-63 (E. Cleary, 3d ed. 1984), where it is stated that evidence that an accused committed a crime other than that for which he is charged is admissible to prove identity. “This is accepted,” the author states, “as one of the ultimate purposes for which evidence of other criminal conduct will be received.” We reiterate our statement, “evidence is not to be excluded because it tends to show the commission of other offenses ‘where it tends to prove facts material in the trial.’ ” Crozier, 723 P.2d at 49.

This court has previously held that evidence of prior bad acts can be admitted for the purpose of proving identity. In Marker v. State, 748 P.2d 295 (Wyo.1988), the accused was charged with two counts of aggravated assault with a deadly weapon for cutting the penis of his three year old son. The issue of the identity of the perpetrator of the mutilation was raised when Marker alleged in defense that the boy’s mother was to blame for the child’s injury. The state then introduced evidence seized in a consensual search of Marker’s apartment consisting of three exhibits containing graphic depictions of young boys in various painful sexual situations and describing various torture techniques of boys. The trial court admitted this evidence to show “motive and/or identification,” citing Coleman, 741 P.2d at 105 (evidence admitted for the stated purpose of proving motive found by this court to lead to an inference of identity, an element of the involved crime).

Identity was also at issue in Grabill, where Rule 404(b) was used to allow evidence of prior similar bad acts to be introduced in a child abuse prosecution. This court affirmed the admission finding that the prior bad acts of Grabill were “pertinent to establish by inference * * * who caused the injury.” Grabill, 621 P.2d at 808. The principal test to be used in the determination of the propriety of the admission of evidence is whether or not the proffered evidence “tends directly to prove or disprove a consequential fact such as intent or knowledge, or whether or not it may tend to establish a proposition such as motive, which through a series of inferences may tend to establish the probability of a consequential fact such as intent or knowledge.” Id. In affirming the admission, this court acknowledged that the same inference utilized to show intent or knowledge could likewise be used to show identity, which is undeniably as consequential a fact as intent or knowledge. Id. at 810.

A decision by the Fifth Circuit Court of Appeals is instructive. In United States v. Myers, 550 F.2d 1036 (5th Cir.1977), a bank robbery case, the prosecution attempted to admit evidence of a subsequent bank robbery committed by the accused for the purpose of identifying him as the perpetrator of the robbery in question based on the distinctive modus operandi used in each robbery. The court, noting that identity and modus operandi are often used synonymously, stated:

The probity of evidence of other crimes where introduced for this purpose depends upon both the uniqueness of the modus operandi and the degree of similarity between the charged crime and the uncharged crime. Of course, it is not necessary that the charged crime and the other crimes be identical in every detail. [Citation]. But they must possess a common feature or features that make it very likely that the unknown perpetrator of the charged crime and the known perpetrator of the uncharged crime are the same person. The more unique each of the common features is, the smaller the number that is required for the probative value of the evidence to be significant. But a number of common features of lesser uniqueness, although insufficient to generate a strong inference of identity if considered separately, may be of significant probative value when considered together.

Myers, 550 F.2d at 1045. “A much greater degree of similarity,” the court noted, “between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove state of mind.” Id. See also Carey, 715 P.2d at 248 (“If the issue is identity or modus operandi, the test of substantial relevance for the evidence is higher, because the other acts must also be tied to the defendant.”); Grabill, 621 P.2d at 811; Elliott, 600 P.2d at 1048. Finding the degree of similarity between the charged and uncharged crimes not great enough, the court in Myers reversed the appellant’s conviction. The rule from that case, however, is applicable here.

The similarity of each individual altercation between Pena and the six officers, describing Pena as the aggressor in each case, to the charged offense is insignificant. Yet, considered together, they create an irrefutable inference of identity, suggesting strongly that Pena was the assailant in the charged crime. Moreover, the prior acts are unquestionably tied to Pena. Thus, the evidence was relevant on the issue of identity.

PREJUDICE

Although relevant for the purpose of proving either intent or identity, the officers’ testimony may not be admissible if its prejudicial effect outweighs its probative value. W.R.E. 403. 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.

In Elliott, 600 P.2d at 1049, we said:

The function of performing the comparisons required by Rule 403, W.R.E., generally is held to be discretionary with the trial court. The fact that the evidence is detrimental to the defendant is neutral. For the prejudice factor to come into play the court must conclude that it is unfair. United States v. Dolliole, 597 F.2d 102 (7th Cir.1979)

Evaluating the evidence in this case in light of our earlier decisions and those of other jurisdictions, we cannot say that the danger of unfair prejudice to Pena outweighs the probative value of the officers’ testimony of earlier altercations with Pena. The evidence was properly admitted for the purpose of showing Pena’s intent to do harm and to identify him as the assailant of Officer Brown when the assailant’s identity was placed in issue. The trial court did not abuse its discretion.

Affirmed.

URBIGKIT, J., files a dissenting opinion.

1 . W.S. 6-5-204(b) provides:

(b) A person who intentionally and knowingly causes or attempts to cause bodily injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than ten (10) years.

2 . Goodman's original conviction for first degree murder for the death of a pregnant woman was reversed and remanded; his conviction for killing an unborn child by assault on the mother was affirmed. Goodman v. State, 573 P.2d 400 (Wyo. 1977). After remand, Goodman was convicted of manslaughter for the death of the woman and appealed solely from that conviction on the issue of improper admission of evidence under Rule 404(b).