               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 21

                                                     OCTOBER TERM, A.D. 2013


                                                           February 11, 2014


DELBERT R. MCDOWELL,

Appellant
(Defendant),

v.                                                    No. S-13-0058

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                    Appeal from the District Court of Laramie County
                         The Honorable Michael Davis, Judge


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. Argument by Mr. Morgan.

Representing Appellee:

       Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney
       General; Jeffrey S. Pope, Assistant Attorney General; Darrell D. Jackson,
       Director, and David E. Singleton, Student Intern, University of Wyoming, College
       of Law, Prosecution Assistance Program. Argument by Mr. Singleton.

Before KITE, C.J., and HILL, VOIGT*, and BURKE, JJ., and LAVERY, D.J.

*Justice Voigt retired effective January 3, 2014.
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.
LAVERY, District Judge.

[¶1] Delbert McDowell appeals his convictions on six counts of sexual abuse of a
minor in the third degree under Wyo. Stat. Ann. § 6-2-316(a)(i) and one count of sexual
abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(i). He claims
the district court erred in holding that testimony he intended to rebut the State’s W.R.E.
404(b) evidence was evidence of his character which opened the door to rebuttal by the
State pursuant to W.R.E. 404(a)(1) and W.R.E. 405(a). Finding no error, the judgment is
affirmed.

                                           ISSUE

[¶2]   McDowell presents one issue for review by this Court:

              Did the trial court abuse its discretion when it ruled that
              defense counsel opened the door and allowed the State to
              introduce additional 404(b) evidence?

The State rephrases the same issue:

              Defendants can offer evidence about relevant character traits
              in their case-in-chief; but on cross-examination, a prosecutor
              may inquire into relevant specific instances of the defendant’s
              conduct to rebut the offered character testimony. Here,
              McDowell called a witness who opined about his good
              character when interacting with children.            On cross-
              examination, the prosecutor asked the witness if she knew
              McDowell had two misdemeanor convictions for sexually
              assaulting children. Did the district court abuse its discretion
              when it allowed these questions?

                                          FACTS

[¶3] McDowell, who lived in Georgia, came to stay with his brother’s family during
the summer of 2008, to help build a new bathroom in his home. The amended
information, filed January 17, 2012, alleged that on several occasions over the course of
two weeks, McDowell approached B.M., his brother’s 13-year-old foster daughter,1 in the
house or garage and touched her with his genitals, sometimes inside and sometimes


1
 In the summer of 2008, B.M. was a foster child; at the time of trial, she had been adopted by
McDowell’s brother and sister-in-law.




                                              1
outside her clothing or pajamas.

[¶4] The State filed a notice of intent to introduce evidence pursuant to W.R.E. 404(b)
on May 23, 2012, and an amended notice the next day. The district court held hearings
on the State’s notices on May 25, 2012, and May 29, 2012, after McDowell’s counsel and
the district court had an opportunity to review the second notice and the State had an
opportunity to obtain more information about McDowell’s prior convictions.

[¶5] Pursuant to analysis of the factors this Court prescribed in Gleason v. State, 2002
WY 161, ¶ 27, 57 P.3d 332, 342 (Wyo. 2002), the district court limited the scope of
extrinsic misconduct evidence the State would be allowed to present at trial. Specifically,
the district court ruled that the State could present the testimony of A.M., B.M.’s sister,
that on one occasion during the same time frame, McDowell engaged in the same sexual
conduct toward A.M., who was 14-years-old, as he directed at B.M., to show
McDowell’s motive, plan, intent, and absence of mistake. The district court further ruled
that B.M.’s testimony that several instances of conduct similar to the charged offenses
occurred during the summer of 2009, while her family and McDowell were visiting
Florida, would also be admissible for the same reasons, as well as to show a continuing
course of conduct toward B.M.

[¶6] The district court allowed the State to present the fact that McDowell was a
registered sex offender because this evidence explained why B.M. reported the charged
offenses two years after they occurred, when she learned McDowell was a registered sex
offender. The State asked to present evidence of the felony conviction and two
misdemeanor convictions, including facts of the crimes, but the district court limited the
State to presenting only the facts of the felony conviction. The district court indicated
preliminarily that presenting the facts of the two misdemeanor offenses in addition to the
felony would be unnecessarily cumulative, but reserved a final ruling for trial.

[¶7] At the final pretrial conference, on June 1, 2012, the Friday before trial, the district
court reaffirmed that it had not determined the admissibility of the misdemeanor
convictions. The parties also discussed the proposed testimony of Dorie Steele,
McDowell’s sister, identified in his pretrial witness list. The State objected categorically
that none of Ms. Steele’s proposed testimony was relevant. The State argued to the
district court that McDowell’s amended pretrial memorandum said, “Miss Steele will
testify regarding the defendant’s upbringing, his role in his children’s lives and the rest of
the family. She will testify to the effect of the defendant being a registered sex offender
and how he responds to that on a day-to-day basis.” The district court correctly noted
that much of that testimony would not be admissible, except that if the rules of evidence
were read broadly, testimony that McDowell is around children all the time and there has
never been a problem would probably be admissible as evidence of his character. The
district court also warned McDowell that such evidence would open the door for the State
to cross-examine Ms. Steele about what she really knew about McDowell’s past.


                                              2
[¶8] During the State’s case-in-chief, the district court determined that because the
misdemeanors occurred near the same time as the felony, they did not add much in the
way of probative value. S.D., the victim in the felony case, A.M., and B.M. testified
regarding the W.R.E. 404(b) evidence the parties and the district court had anticipated.
B.M. testified to three incidents of sexual contact with McDowell; first, in the hotel room
the first day while Ms. Steele and Ms. Lynch were sleeping, then at the beach the next
day, and finally back in the hotel room after going to the beach.

[¶9] Three witnesses testified during the defense’s case-in-chief. McDowell’s brother,
B.M.’s foster father, testified that he discussed the fact that McDowell was a registered
sex offender with his mother-in-law, who was watching the children that summer, and
with people at his church, but he did not tell his children because they were too young.
He did allow McDowell to be around his children, believing that because McDowell was
their uncle, he would not abuse them. McDowell’s brother also testified on direct
examination about how McDowell was with kids:

             Q. Okay. Well, describe Uncle Del and how he is with your
             kids.

             A. Uncle Del, how he is with my kids? Uncle Del, I grew up
             with him. Uncle Del has been touchy-feely, playful ever since
             youth. Kids always loved Uncle Del, and so did my kids.

             Q. You say touchy-feely, playful. Was he that way with your
             children?

             A. Yes, he was.

             Q. Okay. And did you ever see anything that was
             inappropriate, that you thought might be inappropriate?

             A. Absolutely not.

[¶10] McDowell also called a friend, Veronica Lynch, to testify. She testified that she
accompanied McDowell and Dorie Steele during the family trip to Florida in the summer
of 2009. The McDowell family had two hotel rooms, one for men and one for women.
Because they were crowded, she stayed at a different hotel the first night. She testified
that McDowell was not alone with B.M. the first day. The next day she returned back to
the hotel during breakfast, went to the beach with the whole family, and stayed in their
hotel room that night. She testified that McDowell was not out of her sight the whole
day.



                                            3
[¶11] McDowell also presented the testimony of his sister, Dorie Steele. Ms. Steele has
three children. She testified that in her family it was normal to be very “touchy” and
affectionate, frequently kissing and hugging. She further testified that McDowell was
always allowed to be around her children when they were young and that she did not
“have any problem with Delbert being around” her children and that she did not “have
any problems with” McDowell and her children while they were growing up. When
asked on direct what kind of an uncle McDowell was, Ms. Steele described McDowell as
“the fun uncle. He’s the uncle that you want to be with. He’s real juvenile. He’s real
attentive, and he’s just a funning-loving (sic) uncle.” Ms. Steele also testified that she
went to Florida with McDowell and Ms. Lynch, and similarly did not see McDowell do
anything inappropriate at the hotel or on the beach.

[¶12] On cross-examination, Ms. Steele reiterated her testimony that she had not ever
had any problems with McDowell. The State inquired whether she would trust him
around her children, and she replied that she would, although her children are now adults.
The State inquired whether knowing he was a registered sex offender would change her
opinion, and Ms. Steele replied that would depend on the circumstances. The State then
attempted to clarify whether it was her present opinion that McDowell was safe around
her grown children or safe around children in general, and she answered “yes” to both
questions. The State immediately asked whether her opinion would change if she knew
about the circumstances of the conviction which S.D. had testified about. Then the State
asked whether she knew McDowell was convicted of sexually assaulting another child.
McDowell immediately objected, and moved for a mistrial out of the hearing of the jury.
The State expressed the view that McDowell had opened the door to rebuttal character
evidence.2 The district court ruled that by testifying that she trusted him around kids,
Ms. Steele had effectively testified that McDowell has a character trait that he is not
dangerous to children. It denied the motion for a mistrial and allowed the State to rebut
that testimony in the manner provided by W.R.E. 404(a)(1) and W.R.E. 405(a).

[¶13] McDowell contends that the district court’s ruling was an abuse of discretion
because the State, not McDowell, first elicited Ms. Steele’s opinion about McDowell’s
character. McDowell further contends Ms. Steele’s testimony upon direct examination
did not put his character in issue, but instead rebutted the State’s W.R.E. 404(b) evidence.


2
  The admissibility of the misdemeanor convictions was vigorously contested before trial, and the district
court did not rule on it in advance. The district court would not have abused its broad discretion under
W.R.E. 104(a) if it had determined that McDowell had not presented character evidence. In
circumstances like this it is helpful to the trial court for the proponent of problematic evidence to seek an
advance ruling that the door has been opened before asking a potentially prejudicial question. See, e.g.,
Steven Lubet, Modern Trial Advocacy at 236 (4th ed. 2009) (“To prevent prejudice to the moving party,
many judges will instruct counsel to refrain from mentioning the subject evidence until the reserved
motion can be ruled on. This will generally require the offering attorney to wait until she believes the
foundation has been established and then approach the bench for a decision on the motion in limine.”).



                                                     4
The State’s position is essentially that the district court’s ruling was correct. The State
argues showing McDowell’s good character was the only relevant purpose of
Ms. Steele’s testimony.

                               STANDARD OF REVIEW

[¶14] Evidentiary rulings are reviewed for an abuse of discretion:

             Generally, decisions regarding the admissibility of evidence
             are entrusted to the sound discretion of the district court. We
             afford considerable deference to the district court’s decision
             and, as long as a legitimate basis exists for the district court’s
             ruling, it will not be reversed on appeal. Under the abuse of
             discretion standard, our primary consideration is the
             reasonableness of the district court’s decision. The burden of
             establishing an abuse of discretion rests with the appellant.

             If we find that the district court erred in admitting the
             evidence, we must then determine whether or not the error
             affected [the appellant’s] substantial rights, providing grounds
             for reversal, or whether the error was harmless. The error is
             harmful if there is a reasonable possibility that the verdict
             might have been more favorable to [the appellant] if the error
             had never occurred. To demonstrate harmful error, [the
             appellant] must prove prejudice under circumstances which
             manifest inherent unfairness and injustice, or conduct which
             offends the public sense of fair play.

Garner v. State, 2011 WY 156, ¶ 9, 264 P.3d 811, 816-817 (Wyo. 2011) (quoting Foster
v. State, 2010 WY 8, ¶ 4, 224 P.3d 1, 3–4 (Wyo. 2010) (quoting Proffit v. State, 2008
WY 103, ¶ 12, 191 P.3d 974, 977–978 (Wyo. 2008))).

[¶15] To the extent that McDowell’s argument raises a constitutional due process issue,
we review it de novo. West v. State, 2013 WY 128, ¶ 12, 311 P.3d 157, 160 (Wyo. 2013)
(citing Smith v. State, 2009 WY 2, ¶ 35, 199 P.3d 1052, 1063 (Wyo. 2009); Bush v. State,
2008 WY 108, ¶ 58, 193 P.3d 203, 217 (Wyo. 2008); Hannon v. State, 2004 WY 8, ¶ 13,
84 P.3d 320, 328 (Wyo. 2004)).

                                      DISCUSSION

Character Evidence under the Rules

[¶16] Rule 404 of the Wyoming Rules of Evidence, the same in substance as Rule 404


                                             5
of the Federal Rules of Evidence, generally prohibits any party from offering evidence
that any person acted in conformity with his character, but allows a defendant in a
criminal case to introduce evidence of his own character or the character of the alleged
victim:

               (a) Character evidence generally. – Evidence of a person’s
               character or a trait of his character is not admissible for the
               purpose of proving that he acted in conformity therewith on a
               particular occasion, except:

                       (1) Character of Accused. – Evidence of a pertinent
                       trait of his character offered by an accused, or by the
                       prosecution to rebut the same;

                       (2) Character of Victim. – Evidence of a pertinent trait
                       of character of the victim of the crime offered by an
                       accused, or by the prosecution to rebut the same, or
                       evidence of a character trait of peacefulness of the
                       victim offered by the prosecution in a homicide case to
                       rebut evidence that the victim was the first aggressor.

W.R.E. 404. Character evidence is relevant evidence, but is generally excluded. “The
overriding policy of excluding such evidence, despite its admitted probative value, is the
practical experience that its disallowance tends to prevent confusion of issues, unfair
surprise and undue prejudice.” Michelson v. United States, 335 U.S. 469, 476, 69 S.Ct.
213, 218-219, 93 L.Ed. 168 (1948).3 The traditional “mercy rule” exception in a criminal
case permits a defendant to introduce character evidence as a “counterweight against the
strong investigative and prosecutorial resources of the government.” F.R.E. 404, 2006
Advisory Committee Notes (quoting C. Mueller & L. Kirkpatrick, Evidence: Practice
Under the Rules, pp. 264-265 (2d ed. 1999)).

[¶17] Character evidence is generally “[e]vidence regarding someone’s general
personality traits or propensities, of a praiseworthy or blameworthy nature; evidence of a
person’s moral standing in a community.” Black’s Law Dictionary 636 (9th ed. 2009).
Evidence of a propensity toward sexual deviation is character evidence. Gruwell v. State,
2011 WY 67, ¶ 31, 254 P.3d 223, 233 (Wyo. 2011). Rule 405 prescribes the form of
character evidence presented by a defendant and rebuttal by the prosecution:


3
  Michelson was decided prior to the advent of the Federal Rules of Evidence. At common law, only
reputation, not opinion, character evidence was allowed. Michelson, 335 U.S. at 477, 69 S.Ct. at 219.
That aspect of Michelson was superseded by F.R.E. 405 and W.R.E. 405. See United States v. Scholl, 166
F.3d 964, 974 (9th Cir. 1999) and 2 Mueller & Kirkpatrick, Federal Evidence § 4:43 (4th ed. 2013).



                                                  6
              (a) Reputation or opinion. – In all cases in which evidence of
              character or a trait of character of a person is admissible,
              proof may be made by testimony as to reputation or by
              testimony in the form of an opinion. On cross-examination,
              inquiry is allowable into relevant specific instances of
              conduct.

              (b) Specific instances of conduct. – In cases in which
              character or a trait of character of a person is an essential
              element of a charge, claim, or defense, or is in issue under
              Rule 404(a)(2), proof may also be made of specific instances
              of his conduct.

W.R.E. 405. Thus, testimony that a defendant is not the type of person who would
commit the charged offense may be rebutted by cross-examination whether the witness
knows of prior crimes. Taul v. State, 862 P.2d 649, 654-655 (Wyo. 1993).

[¶18] So far there is no disagreement between the parties. The principal dispute is
whether McDowell presented character evidence through the direct examination of
Ms. Steele. McDowell relies on the principle that the “government may not turn [a
percipient witness] into a character witness by asking him what kind of a man defendant
was, and then use those questions to bootstrap into the case evidence of defendant’s prior
convictions which it was prohibited from using in its case-in-chief.” United States v.
Gilliland, 586 F.2d 1384, 1389 (10th Cir. 1978). In Gilliland, the defendant presented a
witness, the defendant’s stepson, who testified that he saw the defendant buy the car the
defendant was alleged to have stolen. Id. at 1386. The witness did not express an
opinion whether the defendant was the kind of person who would steal a car until the
government asked that question on cross-examination. Id. Applying that principle to this
case, then, the opinion of Ms. Steele offered on cross-examination, that McDowell was
safe around children, does not open the door to rebuttal character evidence.

[¶19] Similarly, in United States v. Crenshaw, the defendant presented an alibi witness,
the defendant’s fiancée, who testified that the defendant was with her at all times relevant
to the alleged shooting. Id., 359 F.3d 977, 1002 (8th Cir. 2004). In Crenshaw, the
government argued that the alibi testimony was effectively character evidence because it
included a description of the defendant’s interactions with his family which tended to
show that he was a gentle, caring person. Id. The court characterized this as an
incidental effect of the alibi testimony, and held accordingly that cross-examination on
specific instances of character was beyond the scope of direct examination. Id. This
holding is consistent with the general rule that a defendant may achieve an effect similar
to character evidence by relating a personal history which suggests good character. See
22A Wright & Miller, Federal Practice & Procedure Evidence § 5236 (2d ed. 2013)


                                             7
(“To say that the issue of character is tendered whenever an inference of good character
is possible is to simply destroy Rule 404 inasmuch as anytime the defendant denies he
acted as charged, one may infer that he thinks his character if not good is at least better
than it has been portrayed by the prosecution.”); see also McCormick on Evidence § 191
n.23 (7th ed. 2013). Thus, it is clear that, for example, the evidence that McDowell
served in the Coast Guard for 18 years suggests a law abiding character without opening
the door to rebuttal character evidence.

[¶20] McDowell argues that in sum and substance Ms. Steele only testified that she had
observed her children’s interactions with him before he was a registered sex offender.
McDowell essentially contends the State’s cross-examination question whether
McDowell was trustworthy with children was beyond the scope of Ms. Steele’s testimony
on direct examination. The State distinguishes Crenshaw and Gilliland in that in those
cases the prosecution attempted to transform an occurrence witness into a character
witness by asking cross-examination questions about incidental aspects of a witness’s
testimony on direct examination. Here, the State contends, Ms. Steele’s testimony that
McDowell was well behaved around her children when they were young had no possible
relevant purpose other than to show that McDowell was generally trustworthy around
children.

[¶21] The district court did not abuse its discretion in concluding that Ms. Steele’s
testimony included character evidence. The inference of good character created by
Ms. Steele’s testimony was not incidental because there was no other relevant purpose for
most of her testimony.4 In contrast, any inference of good character created by
McDowell’s brother’s testimony that he observed McDowell around his children,
including B.M. and A.M., and never saw any inappropriate behavior, was incidental to
the primary purpose of his testimony, which was some evidence tending to disprove
B.M.’s testimony about the charged offenses and A.M.’s testimony about the W.R.E.
404(b) evidence involving her.

[¶22] McDowell contends that if Ms. Steele’s testimony was character evidence, then it
was specific instances of conduct which were inadmissible on direct pursuant to W.R.E.
405. McDowell offers that the appropriate remedy for the prosecution, if he offered
inadmissible evidence, was to object and exclude that evidence; the prosecution should
not be allowed to sit mute, acquiescing to his error, in order to obtain the advantage of
introducing rebuttal character evidence. He relies on a prominent learned treatise:

               What sorts of evidence of character will open the door to
               prosecution rebuttal under Rule 404(a)(1)? Rule 405 only


4
 Ms. Steele’s testimony that she was present during the trip to Florida and did not witness the Florida
W.R.E. 404(b) evidence was relevant to rebut that evidence.



                                                  8
             permits the defendant to use opinions and reputation, but
             there can be inferences as to his character that arise from
             other types of proof. Suppose, for example, that the defendant
             offers a specific instance of his conduct that tends to prove his
             character. Such evidence might be admitted for some other
             purpose—e. g., to rebut prosecution evidence under Rule
             404(b)—or it might come in because the prosecution failed to
             object. Similarly, a witness might give an opinion that is not
             directly concerned with the defendant’s character but that
             would support an inference as to his character. Does such
             evidence give the prosecution the right to offer opinion and
             reputation evidence of the defendant’s character?

             The answer should be “no.” If the evidence is admissible for
             some other purpose, the prosecution’s remedy is a limiting
             instruction. If the evidence is inadmissible, the prosecution
             can object and have it excluded. Only where the defendant
             offers evidence of reputation or a direct opinion of his
             character should the prosecution be entitled to introduce
             opinion and reputation evidence of his bad character. To hold
             otherwise would be to permit all sorts of inadvertent openings
             of the door to character proof since almost any proof of the
             innocence of the defendant can contain some inference as to
             his character. This is not to say that the prosecution cannot
             rebut such circumstantial evidence of character with similar
             proof; only that the use of such proof does not entitle the
             government to offer evidence of character under Rule 404(a)
             (1).

22A Wright & Miller, § 5236 (footnotes omitted) (citing contra Johnson v.
Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (testimony of daughter that she had
never seen her father with drugs was inadmissible character evidence but nonetheless
“opened the door” to inquiry into specific instances on cross-examination)). McDowell’s
argument in this regard has a certain appeal; this Court has recognized that “[e]vidence of
a defendant’s previous wrongdoing can have a powerful impact on the fact finder and that
is the obvious reason prosecutors try so hard to introduce it. That is also the reason why
we must protect against its misuse.” Heywood v. State, 2009 WY 70, ¶ 19, 208 P.3d 71,
76 (Wyo. 2009) (Kite, J., specially concurring). The trial court could have, in the
exercise of its sound discretion to control the presentation of evidence, limited the
evidence in the way McDowell suggests. See W.R.E. 611; W.R.E. 403; Grable v. State,
649 P.2d 663, 673 (Wyo. 1982), overruled on other grounds by Vlahos v. State, 2003
WY 103, 75 P.3d 628 (Wyo. 2003). This Court need not establish a uniform rule of law
on this issue in order to decide this case because Ms. Steele’s testimony is not so narrow.


                                            9
Ms. Steele does, albeit colloquially, offer an opinion. She testified both that she did not
“have any problem with” McDowell being around her children and that she did not “have
any problems” when McDowell was around her children. “Have a problem with” can
reasonably be interpreted as a colloquial way to express a negative opinion about a
person or thing.

[¶23] Moreover, the expectation that questions or testimony about reputation or opinion
as to character will use the terms reputation or opinion is unrealistic:

             Specific acts. Even though acts and broader patterns of
             behavior lie behind character, describing acts is not the same
             thing as giving character evidence, and an account of acts
             does not fit Rule 404(a)(1). On the other hand, broad
             generalizations summing behavior in a phrase should be
             allowed as an accommodation to ordinary conventions of
             human expression and language usage: Thus it should be
             perfectly acceptable, for instance, to prove that the defendant
             is peaceful or nonviolent by testimony that he “never hurt
             anybody during all the time I’ve known him,” or to prove she
             is honest by means of testimony that she “always tells the
             truth,” and to show his law-abiding character by proof that
             “As far as I know, he was never arrested or charged with a
             crime.” A purist might argue that these phrases reflect acts
             and not traits, but it is pointless to require witnesses to
             conform their testimony to some ideal level of abstraction
             when phrases alluding in these broad ways to behavior are
             common currency in ordinary expression, and when they so
             obviously refer directly to character and effectively
             communicate the same meaning that the abstractions would
             express. Some rather wooden decisions, however, insist on a
             purist approach and unwisely reject such evidence.

1 Mueller & Kirkpatrick, Federal Evidence § 4:23 (4th ed. 2013) (footnotes omitted)
(citing Michelson, 335 U.S. at 478, 69 S.Ct. at 219-220 (approving testimony that witness
has “heard nothing against” defendant on assumption that “if no ill is reported,” then
reputation must be good)). The clear implication of Ms. Steele’s testimony that she never
had any problems with McDowell, in light of her testimony that he was the attentive,
juvenile “fun uncle,” is her opinion that he is trustworthy with children. Ms. Steele’s
testimony was supported by an adequate foundation, showing familiarity with and
knowledge of McDowell over an extended time. 2 Mueller & Kirkpatrick, § 4:42. The
district court did not abuse its discretion in determining that McDowell opened the door
to rebuttal character evidence.



                                            10
Due Process

[¶24] McDowell also argues that even if the rules of evidence permit the government to
use specific instances of conduct to cross-examine Ms. Steele, the straightforward
application of the rules to this situation is fundamentally unfair, violating the Due Process
Clause of the Fourteenth Amendment. The prosecution was permitted to use W.R.E.
404(b) evidence to show intent, lack of accident or mistake, and a continuing course of
conduct toward B.M.; the prosecution was also permitted to use W.R.E. 404(b) evidence
to show motive, which in the context of a sexual abuse case means an unnatural sexual
attraction to children. See, e.g., Brown v. State, 736 P.2d 1110, 1113 (Wyo. 1987),
superseded by statute on other grounds, 1987 Wyo. Sess. Laws ch. 157, § 3, as
recognized in Jones v. State, 771 P.2d 368, 370 (Wyo. 1989). McDowell argues that the
only way to rebut such evidence is with evidence that he does not have an unnatural
sexual attraction to children. But, he complains, he is placed in a difficult position if
presenting evidence to rebut W.R.E. 404(b) evidence opens wide the door to allow the
government to present more evidence of his bad character.

[¶25] McDowell’s argument seems to be that being placed on the horns of such a
dilemma infringes his due process or Sixth Amendment right to a meaningful opportunity
to present a complete defense. See Hannon, ¶¶ 63-64, 84 P.3d at 347 (citing Crane v.
Kentucky, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)). A defendant is entitled
to present “competent and reliable” evidence which is necessary to present a meaningful
defense. Hannon, ¶ 63, 84 P.3d at 347. This right is limited by the “countervailing
public interests” in the “integrity of the adversary process, which depends both on the
presentation of reliable evidence and the rejection of unreliable evidence, the interest in
the fair and efficient administration of justice, and the potential prejudice to the truth-
determining function of the trial process.” Taylor v. Illinois, 484 U.S. 400, 414-415, 108
S.Ct. 646, 656, 98 L.Ed.2d 798 (1988). Rules of evidence abridge the right to present a
defense when they are “‘arbitrary’ or ‘disproportionate to the purposes they are designed
to serve,’” and the evidence “implicate[s] a sufficiently weighty interest of the
[accused].” United States v. Scheffer, 523 U.S. 303, 308-309, 118 S.Ct. 1261, 1264-
1265, 140 L.Ed.2d 413 (1998). The Supreme Court has recognized that the constitutional
propriety of some rules of evidence, such as the rules regarding evidence of dishonest
character, cannot seriously be disputed. Nevada v. Jackson, ____ U.S. ____, ____, 133
S.Ct. 1990, 1993, 186 L.Ed.2d 62 (2013).5

[¶26] It has long been recognized that the rules regarding character evidence engender
difficult trial strategy decisions:


5
  The drafters of Rule 404 of the Federal Rules of Evidence suggested that Rule 404 is also “so deeply
imbedded in our jurisprudence as to assume almost constitutional proportions and to override doubts of
the basic relevancy of the evidence.” F.R.E. 404(a), 1972 Advisory Committee Notes.



                                                 11
             [T]he law extends helpful but illogical options to a defendant.
             Experience taught a necessity that they be counterweighted
             with equally illogical conditions to keep the advantage from
             becoming an unfair and unreasonable one. The price a
             defendant must pay for attempting to prove his good
             name is to throw open the entire subject which the law has
             kept closed for his benefit and to make himself vulnerable
             where the law otherwise shields him. The prosecution may
             pursue the inquiry with contradictory witnesses to show that
             damaging rumors, whether or not well-grounded, were
             afloat—for it is not the man that he is, but the name that he
             has which is put in issue. Another hazard is that his own
             witness is subject to cross-examination as to the contents and
             extent of the hearsay on which he bases his conclusions, and
             he may be required to disclose rumors and reports that are
             current even if they do not affect his own conclusion. It may
             test the sufficiency of his knowledge by asking what stories
             were circulating concerning events, such as one’s arrest,
             about which people normally comment and speculate. Thus,
             while the law gives defendant the option to show as a fact that
             his reputation reflects a life and habit incompatible with
             commission of the offense charged, it subjects his proof to
             tests of credibility designed to prevent him from profiting by
             a mere parade of partisans.

Michelson, 335 U.S. at 478-479, 69 S.Ct. at 220 (emphasis added; footnotes omitted).
Prosecutors and courts have become more enamored of Rule 404(b) evidence in the years
since the United States Supreme Court spoke in Michelson, resulting in erosion of the
protection from evidence of bad character provided by Rule 404. See generally 22A
Wright & Miller, § 5240. Nevertheless, the admissibility of specific instances of conduct
for limited purposes under Rule 404(b) is still substantially limited by the exacting
analysis required by Gleason.

[¶27] Despite this difficult position, McDowell was not unable to respond to the
government’s W.R.E. 404(b) evidence. He had the opportunity to respond to B.M.’s
testimony about extrinsic acts in Florida through the testimony of Ms. Steele and
Ms. Lynch to the effect that those acts could not have occurred. To the extent that the
W.R.E. 404(b) evidence showed intent or lack of accident or mistake, he had the
opportunity to respond with the testimony of his brother and sister that their family was
very touchy-feely and affectionate, and McDowell in particular was touchy-feely and
playful, supporting his argument that the W.R.E. 404(b) testimony of B.M. and A.M., as
well as the charged offenses, were misunderstood. None of that testimony opened the


                                           12
door to character evidence.

[¶28] More fundamentally, McDowell’s belief that Ms. Steele’s testimony that he was
not inappropriate with her children rebuts the inference of a motive of unnatural sexual
attraction toward children reflects an overbroad understanding of this Court’s decisions.
This Court has consistently held that “sexual behavior with a defendant’s minor children,
adopted children, or step-children is unusual sexual behavior permitting admission of
uncharged misconduct evidence to prove motive when the accused denies that the
charged conduct ever occurred.” Brower v. State, 1 P.3d 1210, 1214 (Wyo. 2000);
Gleason, ¶ 19, 57 P.3d 340-341 (collecting cases). Generally this is because it is
inherently difficult for ordinary jurors to conceive that a person would behave so
bizarrely. See Brown, 736 P.2d at 1113 (citing Elliott v. State, Wyo., 600 P.2d 1044
(1979)). But as the district court in this case recognized, once a jury’s instinct that such
conduct is inherently implausible is defeated by W.R.E. 404(b) evidence of a prior sex
offense, additional instances of prior conduct have only minimal probative value. Just as
the inference of a motive of sexual deviancy is not much improved by merely showing
more prior bad acts, it is not disproved by showing that on some occasions in the past a
defendant has not misbehaved around children because no one would doubt that’s
possible. McDowell hoped that Ms. Steele’s testimony would rebut the inference of
motive raised by the State’s W.R.E. 404(b) evidence. But the State’s response,
challenging her opinion with inquiry into specific instances of conduct, per W.R.E.
405(a), served its intended purpose: to discredit Ms. Steele’s opinion about McDowell.
That his evidence was rendered ineffective does not mean he was denied an opportunity
to present a complete defense.

[¶29] The Court cannot say that limitations of and framework for character evidence set
out in Rule 404 and Rule 405 is so arbitrary or disproportionate to its purposes as to
violate McDowell’s constitutional right to present a defense. As the United States
Supreme Court persuasively explained:

              We concur in the general opinion of courts, textwriters and
              the profession that much of [character evidence] law is
              archaic, paradoxical and full of compromises and
              compensations by which an irrational advantage to one side is
              offset by a poorly reasoned counter[-]privilege to the other.
              But somehow it has proved a workable even if clumsy system
              when moderated by discretionary controls in the hands of a
              wise and strong trial court. To pull one misshapen stone out
              of the grotesque structure is more likely simply to upset its
              present balance between adverse interests than to establish a
              rational edifice.

Michelson, 335 U.S. at 486, 69 S.Ct. at 223-224.


                                            13
                                    CONCLUSION

[¶30] The district court did not abuse its discretion when it ruled that McDowell opened
the door to character evidence under Rule 404(a)(1) and Rule 405(a), and the State’s
presentation of rebuttal character evidence did not violate his constitutional right to
present a defense.

[¶31] Affirmed.




                                          14
