Roeschlein v. State

2007 WY 156, 168 P.3d 468, 2007 Wyo. LEXIS 167, 2007 WL 2827524
CourtWyoming Supreme Court
DecidedOctober 2, 2007
Docket06-182
StatusPublished
Cited by25 cases

This text of 2007 WY 156 (Roeschlein 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
Roeschlein v. State, 2007 WY 156, 168 P.3d 468, 2007 Wyo. LEXIS 167, 2007 WL 2827524 (Wyo. 2007).

Opinions

KITE, Justice.

[T1] Mr. Roeschlein was convicted of three counts of delivery of marijuana to minors in violation of Wyo. Stat. Ann. §§ 35-7-1081(a)(i) and 35-7-1036 (LexisNexis 2007).1 [470]*470He appeals, claiming the district court erred by allowing the admission of uncharged misconduct evidence under W.R.E. 404(b) without holding a hearing and failing to order a new presentence investigation report when the report included information about dismissed sexual assault charges. Mr. Roes-chlein also argues that the affidavit executed by a law enforcement officer was insufficient to establish probable ecause to support issuance of a warrant to search Mr. Roeschlein's home and vehicle. We conclude the district court did not err, and, consequently, affirm.

ISSUES

[T2] Mr. Roeschlein presents the following issues on appeal:

[1.] Whether Rule 404(b) was violated when testimony was elicited regarding an uncharged act of delivery of marijuana.
[2.] Whether the district court erred when it denied appellant's request for a new presentence investigation report.
[83.] Whether the affidavit executed in support of the search warrant was inadequate to establish probable cause to search.

The State phrases the issues similarly.

FACTS

[13] Mr. Roeschlein, who was fifty-one years old at the time of trial, owned rental property in Gillette, Wyoming. Each of his victims was living or staying at one of his rental properties In June of 2001, Mr. Roeschlein hired fourteen-year-old RV to help him hand out bill notices around his trailer court. When they finished, they went to Mr. Roeschlein's house and smoked marijuana supplied by him.

[T4] In January and February 2005, LF and RF were living in one of Mr. Roes chlein's apartments with their mother and her boyfriend. LF was fifteen years old and RF was thirteen years old. Mr. Roeschlein was remodeling an apartment across the hall from their apartment and they often went across the hall to watch him work. Several times during these visits, Mr. Roeschlein shared his marijuana with the boys. RF also testified that, on one occasion, Mr. Roes-chlein sold him a bag of marijuana for $30.

[15] Based upon a report from a confidential informant that Mr. Roeschlein was providing marijuana to minors, an investigator with the Campbell County Sheriff's Office executed an affidavit to obtain a warrant to search Mr. Roeschlein's home and vehicle. After the search, Mr. Roeschlein was arrested and charged with several offenses, including one count of delivery of marijuana to RF in February 2005; one count of delivery of marijuana to RF on February 16, 2005; one count of delivery of marijuana to LF on February 16, 2005; one count of delivery of marijuana to RV in 2001; a count of delivery of marijuana to another minor, LW, in February 2005; and two counts of sexual assault against RV and LW. The cireuit court ruled there was insufficient evidence to bind Mr. Roeschlein over to the district court on the sexual assault charges and, consequently, they were dismissed.

[16] The district court convened a jury trial on the charges alleging delivery of marijuana to RV, LF, RF and LW. The State, however, moved to dismiss the delivery charge involving LW because he could not be located to testify at trial. At the conclusion of the trial, the jury found Mr. Roeschlein guilty of delivery of marijuana to RV in 2001 (Count I) and delivery to RF and LF on February 16, 2005, (Counts III and IV), but not guilty of delivery to RF in February 2005 (Count I1).

[17] The district court ordered a presen-tence investigation report (PSI). The probation and parole agent who prepared the report quoted the full text of the original probable cause affidavit, which included the dismissed sexual assault allegations. In addition, she recommended against probation, partly because of her concern about the sex[471]*471ual assault allegations. Mr. Roeschlein objected to the references to the sexual assaults and asked that those portions of the report be stricken or a new PSI be prepared. The district court stated that it would not consider the information pertaining to the sexual assaults, but denied the request for a new PSI. The district court then sentenced Mr. Roeschlein to serve three to six years on each count, with the sentences to run concurrently.

DISCUSSION

1. Uncharged Misconduct Evidence

[18] The State's general theory of the case was that Mr. Roeschlein had delivered the marijuana to the minors by sharing his supply of the substance with them. At trial, however, RF testified that, in addition to smoking marijuana with Mr. Roeschlein, he also purchased a bag of marijuana from him. Mr. Roeschlein claims the district court erred by allowing the evidence of the sale of marijuana to RF to be presented at the trial without conducting a hearing. Rule 404(b) states:

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.

We have adopted a mandatory procedure for testing the admissibility of uncharged misconduct evidence. Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo.2002). To be admissible,

(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (8) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon request, the trial court must instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.

Id. See also, Cazier v. State, 2006 WY 153, 1 29, 148 P.3d 23, 33 (Wyo.2006). The determination of whether these requirements are satisfied in any given case is to be made by the trial court. Gleason, ¶ 18, 57 P.3d at 340. Our role on appeal is, simply, to decide whether admission of the evidence was erroneous. Id.

[19] Although Mr. Roeschlein did not object to REF"s testimony at trial, he had filed a demand for notice of 404(b) evidence prior to the trial. The State did not give notice that it intended to introduce evidence of the sale. We have ruled that "[when a criminal defendant has filed a demand for notice of other bad acts evidence the State intends to introduce at trial, we consider an objection to any such evidence to have been made." Barker v. State, 2006 WY 104, ¶ 15, 141 P.3d 106, 112 (Wyo.2006). See also, Dettloff v. State, 2007 WY 29, ¶ 34, 152 P.3d 376, 385-86 (Wyo.2007). We, therefore, review the admissibility of uncharged misconduct evidence in this case using the abuse of discretion standard. Id.

[110] The initial question we must answer in resolving this case, however, is whether the challenged evidence even falls within the purview of Rule 404(b). The State claims that it does not because it was part of the evidence of a charged crime. Rule 404 governs evidence introduced "'only to demonstrate that the defendant has a disposition to commit erimes.'" Cazier, ¶ 30, 148 P.3d at 33-34, quoting Gleason, ¶ 17, 57 P.3d at 340. Using this principle, we have ruled that testimony which explains some aspect of the charged crime is not uncharged misconduct evidence.

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Bluebook (online)
2007 WY 156, 168 P.3d 468, 2007 Wyo. LEXIS 167, 2007 WL 2827524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roeschlein-v-state-wyo-2007.