                IN THE SUPREME COURT, STATE OF WYOMING

                                             2016 WY 129

                                                                  OCTOBER TERM, A.D. 2016

                                                                          December 29, 2016


JOSE ADRIAN VASQUEZ,

Appellant
(Defendant),

v.                                                                               S-16-0036

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                       Appeal from the District Court of Goshen County
                           The Honorable John C. Brooks, 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.
Representing Appellee:
      Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General;
      Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames,
      Assistant Attorney General.

Before BURKE, C.J., and HILL, DAVIS, and FOX, JJ., and YOUNG, D.J.


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.
YOUNG, District Judge.

[¶1] After a one-day jury trial, Jose Adrian Vasquez was convicted of three counts of
sexual abuse of a minor in the second degree. Appellant contends the district court
abused its discretion in admitting evidence that he was in violation of his parole at the
time of the offenses. We affirm.

                                         ISSUE

[¶2]   Appellant presents one issue for our review:

             Whether the district court abused its discretion when it
             admitted evidence relating to the terms of Appellant’s parole
             and his parole violations.

                                         FACTS

[¶3] Jose Adrian Vasquez was paroled from the Wyoming Medium Correctional
Institution (WMCI), after serving time for sexual abuse of a minor in the third degree, on
March 5, 2014. He met I.E. in late March 2014, when I.E. was fifteen and Appellant was
twenty-three. As a condition of his parole, Appellant was not to have contact with
minors. Appellant began his relationship with I.E. when he visited I.E.’s apartment in
Torrington, Wyoming, where I.E. lived with his mother. I.E’s mother, who was using
methamphetamine and focused on her boyfriend, left I.E. alone frequently. At some
point, Appellant asked I.E. if he wanted to help him plan a skate party. During a walk to
discuss the party, Appellant and I.E. held hands. By early April 2014, I.E. spent nearly
every day with Appellant at his apartment. At the time I.E. met Appellant, I.E. had few
friends, was very lonely, was frequently “depressed” and “felt vulnerable” due to a
strained relationship with his mother.

[¶4] The relationship between Appellant and I.E. progressed from touching to sexual
encounters. The majority of these encounters occurred at Appellant’s residence.
Appellant’s parole agent, Jason Bauer, and a contract parole agent, Glenn Schleve,
discovered Appellant and I.E. together on two separate occasions. Both Appellant and
I.E. lied to the parole agents about I.E.’s age. Mr. Bauer imposed an administrative
parole sanction against Appellant for his contact with a minor. On April 12th and 13th,
2014, Appellant took I.E. camping at the Rawhide Recreation Area outside of Torrington,
Wyoming, where I.E. and Appellant engaged in sexual contact. While waiting for a ride
from I.E.’s mother, they encountered Jerry Numon, a guard at WMCI. Mr. Numon knew
Appellant from WMCI. Mr. Bauer was notified that Appellant had been seen with I.E.

[¶5] In June of 2014, I.E.’s mother reported to Mr. Bauer that Appellant continued to
have contact with I.E. Appellant’s parole was revoked. In November of 2014, he was


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charged with three counts of sexual abuse of a minor in the second degree, in violation of
Wyo. Stat. Ann. § 6-2-315(a)(i). Counts two and three alleged the abuse had occurred at
the Rawhide Recreation Area. The case proceeded to trial, after which the jury returned a
verdict of guilty on all three counts of sexual abuse of a minor in the second degree, in
violation of Wyo. Stat. Ann. § 6-2-315(a)(i).

                               STANDARD OF REVIEW

[¶6]   We review rulings on the admissibility of evidence for an abuse of discretion.

                     We review challenges to the admission of evidence for
             an abuse of discretion when an objection has been lodged.
             Cardenas v. State, 2014 WY 92, ¶ 7, 330 P.3d 808, 810
             (Wyo. 2014). “[W]here a defendant files a pretrial demand
             for notice of intent to introduce evidence under W.R.E.
             404(b), the same shall be treated as the making of a timely
             objection to the introduction of the evidence.” Howard v.
             State, 2002 WY 40, ¶ 23, 42 P.3d 483, 491 (Wyo. 2002).
             Mr. Hodge filed a demand prior to trial. We therefore review
             the district court’s decision to admit the uncharged
             misconduct evidence for an abuse of discretion. A trial
             court’s ruling on the admissibility of uncharged misconduct
             evidence is entitled to considerable deference, “‘and, as long
             as there exists a legitimate basis for the trial court’s ruling,
             that ruling will not be disturbed on appeal.’” Cardenas, 2014
             WY 92, ¶ 7, 330 P.3d at 810 (quoting Gonzalez–Ochoa v.
             State, 2014 WY 14, ¶ 11, 317 P.3d 599, 603 (Wyo. 2014)).
             “A trial court abuses its discretion when it could not have
             reasonably concluded as it did.” Bromley v. State, 2007 WY
             20, ¶ 8, 150 P.3d 1202, 1206–07 (Wyo. 2007). “Even if a
             district court abused its discretion in admitting uncharged
             misconduct evidence, we must also determine whether the
             error was prejudicial.” Mersereau v. State, 2012 WY 125, ¶
             17, 286 P.3d 97, 106 (Wyo. 2012). “‘Error is prejudicial if
             there is a reasonable possibility that the verdict might have
             been more favorable to the defendant if the error had not been
             made.’” Id. (quoting Vigil v. State, 2010 WY 15, ¶ 11, 224
             P.3d 31, 36 (Wyo. 2010)).

Hodge v. State, 2015 WY 103, ¶ 8, 355 P.3d 368, 370–71 (Wyo. 2015).

[¶7] Even if an evidentiary ruling is found to be in error, Appellant has the burden of
affirmatively showing that the error was prejudicial.


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                  If we conclude the trial court erred, we must then determine if
                  the error was prejudicial. Bromley v. State, 2009 WY 133, ¶
                  24, 219 P.3d 110, 116 (Wyo. 2009). An error is prejudicial if
                  there is a reasonable possibility the verdict might have been
                  more favorable to the appellant if the error had never
                  occurred. Callen v. State, 2008 WY 107, ¶ 5, 192 P.3d 137,
                  141 (Wyo. 2008). The burden of proving prejudicial error
                  rests with the appellant. Skinner v. State, 2001 WY 102, ¶ 25,
                  33 P.3d 758, 767 (Wyo. 2001).

Bloomfield v. State, 2010 WY 97, ¶ 17, 234 P.3d 366, 373 (Wyo. 2010).

                                              DISCUSSION

[¶8] Appellant filed a pretrial demand for notice of intent to use W.R.E. 404(b)
evidence.1 The State did not respond, and Appellant subsequently filed a Motion in
Limine requesting the district court exclude evidence of his prior conviction for sexual
abuse of a minor in the third degree under W.R.E. 404(b) and W.R.E. 403.2 Appellant
argued the evidence should be excluded under W.R.E. 404(b) and not allowed as W.R.E.
609 impeachment evidence, in the event Appellant testified.3 While the district court


1
    W.R.E. 404(b) provides:

                  (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.
2
    W.R.E. 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.
3
    W.R.E. 609 provides, in relevant part:

                  (a) General rule. – For the purpose of attacking the credibility of a




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agreed that evidence of the prior conviction should not be allowed, the district court
allowed testimony as to why Mr. Schleve and Mr. Bauer contacted Appellant, why they
were interested in I.E.’s age, as well as evidence of potential parole violations as course
of conduct evidence, or intrinsic evidence.

[¶9] Appellant contends that even if relevant, evidence of his parole status, the
condition prohibiting contact with minors, the administrative parole sanctions, and
subsequent revocation proceedings should have been excluded as their probative value
was substantially outweighed by the danger of unfair prejudice under W.R.E. 403. As
noted above, 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.”

[¶10] Appellant urges the Court to find that the danger of unfair prejudice resulting from
Mr. Bauer’s testimony substantially outweighs any probative value and was in violation
of Rule 403. He directs the Court to United States v. Calhoun, 544 F.2d 291 (6th Cir.
1976) for this proposition. In Calhoun, the Sixth Circuit held

             The knowledge that Calhoun was on parole at the time of the
             alleged offense could also arouse an emotional reaction
             among the jurors, especially those who harbor strong feelings
             about recidivism and the premature release of those in prison
             for crimes. Thus in United States v. Poston, 430 F.2d 706
             (6th Cir. 1970), we held that it was prejudicial and reversible
             error to have introduced evidence before a jury that the
             defendant was on probation at the time of the alleged offense.

Calhoun, 544 F.2d at 296.


             witness,

                (1) evidence that a witness other than an accused has been convicted
                of a crime shall be admitted, subject to Rule 403, if the crime was
                punishable by death or imprisonment in excess of one (1) year under
                the law under which the witness was convicted, and evidence that an
                accused has been convicted of such a crime shall be admitted if the
                court determines that the probative value of admitting this evidence
                outweighs its prejudicial effect to the accused; and

                (2) evidence that any witness has been convicted of a crime shall be
                admitted if it involved dishonesty or false statement, regardless of the
                punishment.




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[¶11] The State cites United States v. Allums, 379 F. App’x 711, 716–18 (10th Cir.
2010), where the Tenth Circuit explained its decision to take a more flexible approach in
permitting testimony from parole agents.

             In contrast to the Sixth Circuit’s decision in Calhoun, this
             court has taken a more measured approach. In United States
             v. Contreras, 536 F.3d 1167, 1169 (10th Cir. 2008), the trial
             court allowed the prosecution to present testimony from a
             parole officer who identified the defendant from photographs
             taken by a video surveillance camera during the charged bank
             robbery, “but required the Government to limit its direct
             examination to exclude the details of [the witness’s] role as
             [the defendant’s] probation officer.” We held that the trial
             court did not abuse its discretion in allowing the testimony,
             and we rejected Calhoun’s per se approach. We reasoned that
             the defendant could freely cross-examine [the probation
             officer], either by (1) “limit[ing] the scope of his cross-
             examination to exclude details of the nature of their
             relationship and focus solely on questions regarding whether
             [the probation officer’s] past interactions with [the defendant]
             adequately enabled her to identify him from the surveillance
             photographs[;]” or (2) electing to “fully cross-examine [the
             probation officer] without concern about testimony regarding
             her role as [the defendant’s] probation officer.” Id. at 1171–
             72.

             Our approach in Contreras comports with decisions of other
             circuits, which have rejected Calhoun’s per se rule and
             considered the admission of parole and probation officer
             testimony on a case-by-case basis.

Allums, 379 F. App’x at 716–17. We find that the decision to allow or prohibit testimony
from parole or probation agents should be evaluated on a case-by-case basis. Allums, 379
F. App’x at 716–18. The trial court evaluated the proposed testimony and its limits
during the hearing on the Motion in Limine.

[¶12] Appellant further contends, even though there was no direct testimony as to his
previous conviction, the challenged evidence triggered the mandatory W.R.E. 404(b)
analysis, as evidence of his parole status indicates a prior criminal history. Appellant
contends that from this evidence the jury could, and did, logically conclude he was on
parole for a previous crime against a minor. Appellant alleges this evidence improperly
factored into the jury’s determination of guilt, as demonstrated by their inquiry to the


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district court concerning sanctions, to which the district court did not provide a
substantive response. This Court has consistently held that analyses of proffered 404(b)
evidence must take place on the record, and has detailed the process for the analysis
repeatedly, and is often referred to as the Gleason analysis. See Vigil, ¶¶ 19-20, 224 P.3d
at 38.

[¶13] During the hearing on the Motion in Limine, the district court found the State
agreed to omit Appellant’s prior conviction from its case-in-chief. With respect to
testimony of the witnesses that recognized Appellant, that recognition and the basis for
their recognition was ruled admissible. While the district court found that the evidence
concerning portions of the investigation might be considered other wrongs or bad acts,
such as Appellant’s dishonesty to the parole agent, the court found that evidence to be
admissible “course of conduct” evidence. The court ruled that evidence of a potential
parole violation was admissible to establish Appellant’s course of conduct “as part of the
. . . whole explanation of what went on[.]” The district court found that testimony
relating to Appellant’s decision to lie to Mr. Bauer, and to influence I.E. to lie about
I.E.’s name and age, was admissible as the evidence was “directly connected” to his
current charges. The court determined that the evidence “show[ed] motive, guilty mind,
surely knowledge” and that it was therefore admissible under 404(b).

                     We have previously recognized that evidence of
              uncharged misconduct is admissible if it “forms part of the
              history of the event or serves to enhance the natural
              development of the facts.” Bromley, 2007 WY 20, ¶ 9, 150
              P.3d at 1207; Blakeman, 2004 WY 139, ¶ 32, 100 P.3d at
              1237; Crozier v. State, 723 P.2d 42, 49 (Wyo. 1986). We
              have referred to this as the “course of conduct” purpose.
              Crozier, 723 P.2d at 49. Other jurisdictions applying this
              concept have called it the “same transaction” purpose or the
              “complete story” purpose. Id.

Leyva v. State, 2007 WY 136, ¶ 28, 165 P.3d 446, 454 (Wyo. 2007).

[¶14] Appellant further contends the district court erred in allowing testimony that his
parole had been revoked. Two witnesses testified that Appellant confessed to having
sexual relations with I.E. Those witnesses were incarcerated with Appellant after the
revocation of his parole. The reference to the revocation of Appellant’s parole explains
how these inmates had the opportunity to hear Appellant’s confession prior to his trial.
This, too, constitutes course of conduct evidence. However, merely labeling evidence
course of conduct does not except it from the Gleason W.R.E. 404(b) analysis. Reay v.
State, 2008 WY 13, 176 P.3d 647 (Wyo. 2008). Accordingly, this Court will analyze the
trial court’s ruling under the standard set forth below:



                                            6
                      We have said that a district court must consider four
              criteria in applying W.R.E. 404(b) to uncharged misconduct
              evidence: (1) Is the evidence offered for a proper purpose? (2)
              Is the evidence relevant? (3) Is the probative value of the
              evidence substantially outweighed by its potential for unfair
              prejudice? (4) Upon request, should the jury be given a
              limiting instruction? Blakeman v. State, 2004 WY 139, ¶ 31,
              100 P.3d 1229, 1237 (Wyo. 2004) (citing Howard, 2002 WY
              40, ¶ 17, 42 P.3d at 488, and Huddleston v. United States, 485
              U.S. 681, 691, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988)).
              No request for a limiting instruction was made, so we will
              review the district court’s application of the first three
              criteria. If the district court applied these criteria and had a
              legitimate basis for its ruling, we will uphold the decision.
              Gleason v. State, 2002 WY 161, ¶ 20, 57 P.3d 332, 341
              (Wyo. 2002).

Leyva, ¶ 26, 165 P.3d at 454.

[¶15] Evidence of Appellant’s parole status, the condition prohibiting contact with
minors, the administrative parole sanctions, and subsequent revocation of Appellant’s
parole was relevant to the jury’s understanding of how the case and investigation
unfolded. Simply informing the jury that Mr. Bauer visited Appellant’s residence would
not explain the legitimate purpose for which Mr. Bauer inquired as to I.E.’s age or why
the parole agent investigated further. The district court held that Appellant’s motive to
lie about I.E.’s age could not be understood without understanding the potential for a
parole violation. The court found the two were directly connected and illustrated motive,
knowledge, and a guilty mind. In Miller v. State, 830 P.2d 419 (Wyo. 1992), this Court
held that fabrication of false accounts in order to divert suspicion is indicative of guilt.
Similarly, in the present case, testimony concerning Appellant’s parole status and
prohibition of association with minors was relevant to Appellant’s motive for lying to his
parole agent. Further, Appellant also testified he received parole violation sanctions as
part of his defense.

[¶16] The transcript from the hearing illustrates the district court found the State was
offering the challenged information for a proper purpose and that the evidence was
relevant. The record provides a legitimate basis for the district court’s conclusion. The
transcript reflects a lengthy discussion at the hearing with respect to the probative value
of the challenged evidence and the danger of unfair prejudice. Defense counsel agreed
that some evidence of Appellant’s parole status was unavoidable. A limiting instruction
was not requested. Appellant does not assert, nor does the record indicate, that the State
failed to disclose the challenged evidence as 404(b) evidence in an attempt to act in bad
faith or surprise Appellant. The record reflects that the district court considered the


                                             7
required Gleason criteria and had a legitimate basis for its conclusions. Accordingly, we
find no abuse of discretion in the district court’s decision.

[¶17] Affirmed.




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