               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 72

                                                                APRIL TERM, A.D. 2016

                                                                         July 18, 2016

BRANDON FREDERICK WIESE,

Appellant
(Defendant),

v.                                                   S-15-0261

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk
      A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne M. Martens, Senior Assistant Attorney General;
      James M. Causey, Senior Assistant Attorney General; John A. Brodie, Assistant
      Attorney General. Argument by Mr. Causey.


Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Brandon Wiese was convicted of one count of burglary. Wiese argues
on appeal that he was prejudiced by the admission of what he contends was uncharged
misconduct evidence. He also claims that prosecutorial misconduct occurred during
closing argument. He contends that his conviction should be reversed for these reasons.
We affirm.

                                                  ISSUES

[¶2] 1.           Was Wiese prejudiced by the introduction of uncharged misconduct
evidence?

          2.      Did the State commit prosecutorial misconduct rising to the level of plain
error?

                                                  FACTS

[¶3] On December 17, 2014, a housekeeper employed by the Holiday Inn of Cheyenne1
called the front desk to report that a man was harassing the hotel staff on the fifth floor.
The housekeeper believed he was in Room 527. Front desk employees reviewed their
records and found that Room 527 was registered to a woman who appeared to have
already checked out. The hotel’s branch office manager called Room 527, and a man
answered the telephone. With slurred speech, he agreed to come to the front desk to sort
out room arrangements as the manager requested.

[¶4] Soon thereafter, hotel staff in the lobby area saw a man they suspected to have
been in Room 527 come downstairs. The hotel’s human resources manager, who had
been alerted to the situation, noticed that he “was acting very erratically” and appeared to
be out of place. Instead of coming to the front desk, he went to the bar to order a drink.
The human resources manager instructed the bartender not to allow him to make any
charges to a room, because she didn’t think he had one. Now needing cash to pay, he
went to an ATM in the lobby area, after which, however, he went back upstairs instead of
returning to the tavern. At that point, the front desk staff called police.

[¶5] Three Cheyenne Police Department officers responded to the call. They
encountered Wiese in the hallway immediately upon reaching the fifth floor. Detective
Kniss and Officer Fernandez approached and began speaking with him. He smelled like
alcohol and acted intoxicated, and his hands were covered with a black residue. For their
own safety, the officers patted Wiese down and discovered a small and nearly empty
bottle of whiskey. When they asked Wiese what he was doing at the hotel, he told them

1
    The hotel has since become affiliated with another chain.


                                                       1
that a friend had paid for a room so that he could stay in the hotel, but he was unable to
provide the friend’s name.

[¶6] Meanwhile, Officer Serkerka entered Room 527 with a hotel manager and spotted
a black duffel bag stashed behind the sofa. The bag contained, among other things,
bottles of pills prescribed to a Donald Gregory. Detective Kniss joined Officer Serkerka
in Room 527 and they found an opened gunpowder container with its contents partially
spilled onto the counter and floor of the bathroom. The gunpowder appeared to be the
same black residue they had seen on Wiese’s hands. The room also reeked of cologne.

[¶7] While Room 527 was being searched, hotel staff notified the officers that the guest
across the hall in Room 526 had reported his bag missing. Officer Sekerka took the
duffel bag to Room 526, and the guest, the same Donald Gregory whose name appeared
on the pill bottles, identified it as the bag that had disappeared from his room. He also
claimed the gunpowder and the cologne wafting through the air in Room 527. Officers
then placed Wiese under arrest.

[¶8] At one point, either during the initial pat down or at the time of his arrest, officers
also found keycards to various hotels in Wiese’s pocket. Several keycards belonged to
the Holiday Inn. The day after Wiese’s arrest, a Holiday Inn manager went to Room 527
and discovered more keycards and a housekeeping smock from a different hotel.

[¶9] Wiese was charged with two counts of burglary under Wyo. Stat. Ann. § 6-3-
301(a) (LexisNexis 2013) for unlawfully entering Rooms 526 and 527 at the Holiday
Inn.2 At Wiese’s preliminary hearing, the circuit court dismissed the burglary count
related to Room 527 because the State failed to prove probable cause to support the
charge. The case was bound over to district court, and Wiese pled not guilty to the
remaining burglary charge associated with the bag taken from Room 526.

[¶10] Prior to trial, Wiese filed a Demand for Notice of State’s Intent to Use Evidence
Pursuant to Wyoming’s Rule of Evidence 404(b). The State did not provide notice that it
intended to use Rule 404(b) evidence at trial, and consequently the district court did not
hold a hearing on that issue. The evidence now claimed to be subject to Rule 404(b) and
improperly received consists of the keycards and the smock.

[¶11] The evidence presented at trial is reflected in the statement of facts above. The
State’s theory was that Wiese entered the hotel and went to the fifth floor, where he likely
found the door to Room 527 propped open by housekeeping staff. The previous guest in
that room had checked out without coming to the front desk, and the State hypothesized
2
  Wyo Stat. Ann. § 6-3-301(a) provides that “[a] person is guilty of burglary if, without authority, he
enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion
thereof, with intent to commit theft or a felony therein.” Burglary is a felony punishable by up to ten
years in prison and a ten thousand dollar fine. Wyo. Stat. Ann. § 6-3-301(b).


                                                    2
that she left her keycard, which was still activated, so that after taking it Wiese could
come and go from that room as a base of operations. The keycards found on his person
were scanned, and one which would open Room 527 was still active.

[¶12] Housekeeping staff had a practice of propping the doors of blocks of rooms to be
cleaned open with the security latchs. In the State’s view, Wiese would then have been
able to enter Room 526 and steal the bag which he then took to 527, and he could have
pilfered other rooms in the same way.

[¶13] The keycards were mentioned in the State’s opening statement as well as in the
testimony of three Holiday Inn employees and two police officers. The smock was
mentioned in the testimony of one employee. All were mentioned in the State’s closing
argument.3 Wiese’s counsel did not object to the opening statement or testimony
concerning the keycards and smock.

[¶14] Wiese exercised his constitutional right not to present evidence or to testify. His
attorney contended from the outset that he was so intoxicated when he entered or was
present in Room 526 that he could not have formed the specific intent to commit theft,
which was required to convict him of the burglary charge. Counsel argued that he was
instead “a drunk idiot acting stupid,” and that he should be convicted of the lesser-
included misdemeanor of criminal entry, which does not require proof of intent to steal.4

[¶15] In closing, the prosecutor argued that Wiese was able to and did form the specific
intent required to convict him of burglary. He pointed out that he occupied Room 527,
then entered Room 526 without permission, took the duffel bag from that room and hid it
behind the couch in 527, harassed the housekeepers, and lied to officers about his right to
occupy 527. The prosecution also pointed out that possession of a stack of keycards and
a housekeeping smock was not consistent with an unplanned entry into Room 526. The
prosecutor ended his summation by exhorting the jury to “[h]old him accountable, or he
will laugh his way out of this courtroom.” Defense counsel did not object to this remark
or ask for an instruction directing the jury to disregard it.


3
  Defense counsel pointed out during the State’s closing that these items had not been received in
evidence. The court held that the prosecution could refer to the testimony about them. This decision has
not been challenged on appeal.
4
  Wyo. Stat. Ann. § 6-3-302(a) (LexisNexis 2013) provides as follows:

                (a)      A person is guilty of criminal entry if, without authority, he
                knowingly enters a building, occupied structure, vehicle or cargo portion
                of a truck or trailer, or a separately secured or occupied portion of those
                enclosures.

Criminal entry is a misdemeanor punishable by no more than six months in jail and a $750 fine. Wyo.
Stat. Ann. § 6-3-302(c).


                                                     3
[¶16] Wiese was found guilty of the single burglary charge and sentenced to eighteen to
thirty-six months in prison. He timely perfected this appeal.

                                           DISCUSSION

Prejudice from the Introduction of Keycards and Smock

[¶17] Wiese claims he was prejudiced by the State’s introduction of the keycards and the
smock. He contends that these items were uncharged misconduct evidence falling under
Wyoming Rule of Evidence 404(b), and that they were never subjected to a 404(b)
analysis before trial because the State did not provide notice that it intended to offer
evidence governed by the rule.5 Rule 404(b) provides as follows:

                (b) 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,
                provided that upon request by the accused, the prosecution in
                a criminal case shall provide reasonable notice in advance of
                trial, or during trial if the court excuses pretrial notice on
                good cause shown, of the general nature of any such evidence
                it intends to introduce at trial.

W.R.E. 404(b).

[¶18] Evidently neither of the attorneys below nor the trial judge considered the
keycards and smock to be 404(b) evidence. An argument could have been made that
some or all of these items were direct evidence which did not fall within 404(b)—
certainly, at a minimum, the keycard to Room 527 was directly relevant to prove that
Wiese was in that room as the State’s theory suggested. However, the State chose not to
raise this issue and instead narrowly argues that admitting this evidence was not
prejudicial. Thus, we will treat the evidence as if it were within the scope of Rule 404(b),
which leads to an analysis which may seem to be a bit artificial.

[¶19] We consider Wiese’s demand for notice of the State’s intent to use 404(b)
evidence a timely objection to the challenged testimony, and so we are not limited to
plain error analysis. Griggs v. State, 2016 WY 16, ¶ 128, 367 P.3d 1108, 1143 (Wyo.
2016) (citing Howard v. State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002)). We

5
  In its pretrial memo, the State listed five Holiday Inn keycards and three miscellaneous keycards. The
listed cards were not actually received in evidence, but as noted above, there was testimony about them.


                                                    4
generally review a decision to receive 404(b) evidence for an abuse of discretion. Id. at
129 (citing Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007)).

[¶20] When a district court decides whether to receive 404(b) evidence, it must test it
using the following general criteria:

             (1) the evidence must be offered for a proper purpose; (2) the
             evidence must be relevant; (3) 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. (citing Vigil v. State, 926 P.2d 351, 357 (Wyo. 1996); Gleason v. State, 2002 WY 161,
¶ 18, 57 P.3d 332, 340 (Wyo. 2002)). We have also held that “[e]ven if a district court
abused its discretion in admitting uncharged misconduct evidence, we must also
determine whether the error was prejudicial.” Hodge v. State, 2015 WY 103, ¶ 8, 355
P.3d 368, 371 (Wyo. 2015) (quoting Mersereau v. State, 2012 WY 125, ¶ 17, 286 P.3d
97, 106 (Wyo. 2012)).

[¶21] Because of the posture of this appeal, we consider only whether receiving the
evidence was prejudicial. Receiving Rule 404(b) evidence is prejudicial where “there is a
reasonable possibility that the verdict might have been more favorable to the defendant if
the error had not been made.” Payseno v. State, 2014 WY 108, ¶ 20, 332 P.3d 1176,
1182 (Wyo. 2014) (citation omitted).

[¶22] In a burglary case, the State must prove that a person entered an enclosure without
authority and with the “intent to steal or commit another felony beyond a reasonable
doubt.” Jennings v. State, 806 P.2d 1299, 1303 (Wyo. 1991). However, direct evidence
of intent to steal is not required. Toth v. State, 2015 WY 86A, ¶ 16, 353 P.3d 696, 703
(Wyo. 2015). A jury may infer the defendant’s intent to steal based on the totality of the
circumstances reflected by the evidence. Lane v. State, 12 P.3d 1057, 1063 (Wyo. 2000).

[¶23] The record leaves no doubt that Wiese entered a hotel room in which he had no
legitimate business. He occupied Room 527 for a time, and he concealed a bag taken
from Room 526 behind the sofa in that room. The fact that he concealed the bag suggests
that he did not want to be seen in possession of it. The jury could infer, as the State
suggested that it should, that he planned to use Room 527 as a base of operations,
pilfering other rooms left open, and then stash the fruits of his labors there. When
confronted by police officers, Wiese concocted a story that he lawfully occupied a room,
and that story was shown to be false. A defendant’s attempts to conceal a crime can
demonstrate intent to steal. Dennis v. State, 2013 WY 67, ¶ 31, 302 P.3d 890, 896-97


                                             5
(Wyo. 2013) (finding defendant guilty of aggravated burglary, having formed the intent
to deprive as established by circumstantial evidence that he sought to conceal his theft of
a pistol). Such attempts are no less probative of the ability to form the intent to steal.

[¶24] Wiese’s defense relied upon persuading a jury that he was so intoxicated that he
could not appreciate that he was taking someone else’s property. The evidence,
excluding that challenged in this appeal, showed some level of planning and
consciousness of guilt. A jury could reasonably conclude that although Wiese was not
completely sober, he was able to form the requisite intent. Wiese has the burden of
proving prejudicial error, see Bromley v. State, 2009 WY 133, ¶ 24, 219 P.3d 110, 116-17
(Wyo. 2009), and he has failed to do so.

Prosecutorial Misconduct in Closing Argument

[¶25] In his second issue, Wiese contends that the State committed prosecutorial
misconduct when the prosecutor stated in closing that the jury must hold Wiese
“accountable, or he will laugh his way out of this courtroom.” Wiese did not object to
this statement or ask for a curative instruction, and we therefore can only review for plain
error. Ortiz v. State, 2014 WY 60, ¶ 104, 326 P.3d 883, 903 (Wyo. 2014).

[¶26] We apply the following requirements for plain error: “1) the record is clear about
the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule
of law; and 3) the party claiming the error was denied a substantial right resulting in
material prejudice.” Id. The record clearly reflects the alleged prosecutorial misconduct,
which satisfies the first part of the test.

[¶27] The second component requires proof that the prosecutor violated established law.
Id. As we have observed:

                     In an often quoted opinion, the United States Supreme
              Court stated that a prosecutor should prosecute with
              earnestness and vigor but “while he may strike hard blows, he
              is not at liberty to strike foul ones.” Berger v. United States,
              295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
              Determining the location of the line between fair and foul
              requires reference to the underlying reasons for limiting
              argument of counsel.

Barela v. State, 787 P.2d 82, 83 (Wyo. 1990).

[¶28] In an effort to help prosecutors and judges find that sometimes elusive line
between fair and foul, we have described certain governing principles:



                                              6
              (a)   The prosecutor may argue all reasonable inferences
              from evidence in the record. It is unprofessional conduct for
              the prosecutor intentionally to misstate the evidence or
              mislead the jury as to the inferences it may draw.

              (b)    It is unprofessional conduct for the prosecutor to
              express his or her personal belief or opinion as to the truth or
              falsity of any testimony or evidence or the guilt of the
              defendant.

              (c)   The prosecutor should not use arguments calculated to
              inflame the passions or prejudices of the jury.

              (d)   The prosecutor should refrain from argument which
              would divert the jury from its duty to decide the case on the
              evidence, by injecting issues broader than the guilt or
              innocence of the accused under the controlling law, or by
              making predictions of the consequences of the jury’s verdict.

              (e)  It is the responsibility of the court to ensure that final
              argument to the jury is kept within proper, accepted bounds.

Trujillo v. State, 2002 WY 51, ¶ 5, 44 P.3d 22, 24-25 (Wyo. 2002). “Closing arguments
should not be designed to inflame the passion and prejudice of the jury.” Barela, 787
P.2d at 85.

[¶29] A statement that the jury must find the accused guilty in order to follow their oath
is improper. Wilks v. State, 2002 WY 100, ¶ 28, 49 P.3d 975, 987 (Wyo. 2003).
However, in Wilks, this Court found the comment “Do your duty, please, and find the
Defendant guilty,” viewed in context, was not improper because the prosecutor did not
suggest that the jury could perform its duty only by finding the accused guilty. Id.

[¶30] In Janpol v. State, 2008 WY 21, 178 P.3d 396 (Wyo. 2008), we concluded that a
prosecutor’s statement in closing that “they want you to find him not guilty and walk
him” was improper. However, because the error was promptly corrected by a sustained
objection and a curative instruction, we held that the district court properly denied a
motion for mistrial. Id. ¶ 25, 178 P.3d at 405; see Jacob A. Stein, Closing Arguments §
1:91 (2015-2016 ed.). Unlike the prosecutor in Wilks, the prosecutor in Janpol focused
on punishment.

[¶31] In this case, the prosecutor insinuated that if the jury accepted Wiese’s defense, he
would avoid punishment and walk out of the courtroom free, which is similar to the



                                              7
statement made in Janpol.6 The further comment that the defendant would “laugh his
way out” of the courtroom implied both that the defendant knew he was guilty and that
the jury would become a laughingstock unless it convicted him of burglary, which is
another way of saying that the only way it could do its duty was to convict of burglary.
We must therefore conclude that this comment, brief though it was, crossed the line into
foul territory and violated a clear rule of law.

[¶32] Turning to the third and final element of plain error, we must determine whether
the error deprived Wiese of a substantial right and was thus unduly prejudicial before we
will reverse the jury’s verdict. Ortiz, ¶ 104, 326 P.3d at 903. “[W]e must evaluate these
comments in the context of the entire argument, and with reference to the entire record.
Hill v. State, 2016 WY 27, ¶ 47, 371 P.3d 553, 566 (Wyo. 2016). “Reversal as a result of
prosecutorial misconduct is not warranted unless a reasonable probability exists that
absent the error the defendant may have enjoyed a more favorable verdict.” Id. ¶ 59, 371
P.3d at 568.

[¶33] Wiese argues that the prosecutor’s “laugh his way out of the courtroom” statement
influenced the jury’s decision because they would not want to be taken for fools,
swindled, or mocked by Wiese if they returned a verdict of not guilty or guilty of
criminal entry. However, the impact of the prosecutor’s remark is slight when considered
in the context of the entire trial record, for reasons that we explained in the section
dealing with receipt in evidence of the keycards and the housekeeping smock. The
prosecutor’s one-liner, although improper, came in the face of extensive evidence of
Wiese’s guilt of burglary. We cannot find that he would have received a more favorable
verdict if the comment had not been made, and the comment thus does not constitute
plain error requiring reversal.

[¶34] Affirmed.




6
 This proposition must be viewed in light of the fact that Wiese’s attorney didn’t argue that he shouldn’t
be convicted of anything – he argued for a conviction of misdemeanor criminal entry. The prosecutor
was arguing that anything less than a finding of guilt on the burglary charge, which carried a much more
severe sentence, would be laughable.


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