                IN THE SUPREME COURT, STATE OF WYOMING

                                         2013 WY 13

                                                            OCTOBER TERM, A.D. 2012

                                                                   January 31, 2013

LARRY EDWARD MAGNUS,

Appellant
(Defendant),

v.                                                   S-12-0134

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                   Appeal from the District Court of Campbell County
                      The Honorable Michael N. Deegan, Judge

Representing Appellant:
      Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel;
      Kirk A. Morgan, Senior Assistant Appellate Counsel, Wyoming Public Defender
      Program.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and
      Jeffrey Pope, Assistant Attorney General.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, 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.
HILL, Justice.

[¶1] A jury convicted Larry Magnus of conspiracy to obtain property by false
pretenses, and the district court sentenced him to a prison term of eight to ten years. On
appeal, Magnus challenges the admission of uncharged misconduct evidence and alleges
prosecutorial misconduct in the State’s sentencing recommendation. We affirm.

                                         ISSUES

[¶2]   Magnus presents the following issues on appeal:

                     I.     Did the district court abuse its discretion in
              admitting into evidence testimony of a prior incident where
              Mr. Magnus had solicited money in a similar manner under
              W.R.E. 404(b)?
                     II.    Did prosecutorial misconduct occur when the
              State argued undocumented allegations in a Memorandum in
              Respect of Sentencing?

                                         FACTS

[¶3] In 2011, Larry Magnus and his wife, Deb Magnus, representing themselves as a
charitable organization for disabled and disadvantaged children, solicited and collected
donations from individuals and businesses in Gillette, Wyoming. In conducting their
operation, Deb Magnus generally would make the solicitations and Larry Magnus would
collect the donations.

[¶4] Deb Magnus called numerous donors and requested a charitable donation of
between twenty-five dollars and one-hundred dollars to send disabled or disadvantaged
children to attend a magic show. She informed potential donors that any contribution
was tax deductible as a donation to a charitable or non-profit organization. In at least one
instance, Deb Magnus represented that she was affiliated with the Board of Cooperative
Educational Services (BOCES), an organization that provides education services and
programs for children with special needs. After Deb Magnus received a commitment
from a donor, Larry Magnus would collect the donation in person. Between January and
March 2011, Larry Magnus collected donations from the Gillette community totaling
$12,720.00. Contrary to what the donors were told, Larry and Deb Magnus were making
a profit from the sales of the children’s show tickets.

[¶5] On March 11, 2011, the State charged Larry Magnus with one count of obtaining
property by false pretenses, which it later amended to a charge of one count of conspiracy
to obtain property by false pretenses. On June 3, 2011, the State provided notice of its
intent to present uncharged misconduct evidence pursuant to W.R.E. 404(b), identifying


                                              1
three prior incidents in which Magnus had engaged in conduct similar to the facts
underlying the conspiracy charge. The first two incidents occurred in 2001 and involved
solicitations for charitable donations to junior police academies in Casper, Wyoming and
Evans, Colorado. Neither Casper nor Evans had a junior police academy program
associated with the city police department. The third incident occurred in 2008 in
Loveland, Colorado and was a conviction for charitable fraud in relation to solicitations
for a Loveland Children’s Show. The State’s notice identified each incident and the
proposed witnesses who would testify regarding each incident, but it did not provide any
biographical informational concerning the witnesses.

[¶6] Magnus objected to the proposed uncharged misconduct evidence, and on July 12,
2011, the district court held a Gleason hearing. During the Gleason hearing, the State
described the prior incidents and the purposes for which it sought to introduce the
evidence, but it again did not provide biographical information concerning the witnesses.
Magnus argued that the State had failed to articulate with sufficient specificity the
purposes the evidence was intended to serve. After taking the matter under advisement,
the court, on July 14, 2011, issued an order allowing the uncharged misconduct evidence.

[¶7] On appeal, Magnus contests only the admission of the 2008 Loveland, Colorado
conviction. Concerning admissibility of that evidence, the district court included the
following findings in its order allowing the uncharged misconduct evidence:

             3. …
                                            ….
             (iii) Loveland, Colorado: the court finds the evidence of
             this incident is relevant to each of the proper purposes above-
             noted. Specifically, the incident, if believed by the jury,
             demonstrates the following with respect to the instant case:
             the Defendant had the intent to violate the law as charged; he
             had the motive to do so (self-enrichment); he had knowledge
             of the fraudulent nature of his activity in the instant case
             inasmuch as he had in the prior instance been warned off his
             enterprise by law enforcement; and, for the same reason, he
             could not claim his activity in the instant case amounted to a
             mistake or an accident. Furthermore, the other act or wrong –
             and, with respect to this particular instance, a criminal
             conviction for charitable fraud – evidences a course of
             conduct or modus operandi on the part of the Defendant.
             4. … In evaluating each specific alleged instance, it is
             sufficiently clear the Defendant committed the prior acts,
             wrongs or, in the case of Loveland, Colorado, the prior
             crime alleged. As well, the defense appears to be the
             Defendant had no criminal intent in engaging in the activities


                                            2
              charged in the Amended Felony Information. Therefore, his
              state of mind in engaging in these activities is squarely at
              issue. Certainly other evidence is available with respect to
              the charge contained in the Amended Felony Information –
              that is, evidence surrounding the presently charged acts – and
              the court weighs this fact in its decision. However, the
              evidence of other acts, wrongs or crimes is not unnecessarily
              cumulative. It establishes a pattern of fraudulent activity on
              the part of the Defendant utilizing a repeated modus operandi.
                                             ….
              6.      The prior instances of conduct are no more
              reprehensible than the present alleged instance of conduct.
              Therefore, the jury will not be tempted to punish the
              Defendant for the prior acts. In respect to the Loveland,
              Colorado act, the Defendant has already been punished by
              conviction of charitable fraud.
              7.      The alleged victims of the prior acts were no more
              vulnerable or sympathetic than the alleged victims in the
              instant case – in all instances the alleged victims were
              members of the general public. Therefore, the jury will not
              be tempted to punish the Defendant on account of any special
              vulnerability of the alleged victims in the previous instances.
                                             ….
              10. The prior alleged instances of conduct on the part of
              the Defendant are more relevant to the proper purposes
              announced (intent, motive, knowledge, course of conduct,
              modus operandi, absence of mistake or accident) than they
              are probative of bad character. The Defendant, according to
              these prior acts, had an especial proclivity for charitable fraud
              and, in this regard, his modus operandi and pattern were
              idiosyncratic and strong.

[¶8] On September 20, 2011, the jury trial began on the charge against Magnus.
During the trial, the State presented the testimony of thirty-four victims from the Gillette
community concerning the solicitations and donations related to the charged crime. The
State also presented uncharged misconduct evidence on two of the three prior incidents
identified in its pretrial notice, the Casper junior police academy solicitations and the
Loveland children’s show solicitations. Before each witness’ testimony concerning an
incident of uncharged misconduct evidence, the district court read the jury a cautionary
instruction defining the purposes for which the jury was permitted to consider the
evidence. The instruction was repeated during the State’s closing argument.




                                              3
[¶9] With respect to the Loveland incident, the State presented the testimony of a
Loveland police detective who investigated the incident and the testimony of an elderly
individual from whom Magnus had attempted to collect a donation for the Loveland
show. Magnus did not object to the elderly Loveland witness as unfairly sympathetic
either before trial or when she was called to testify.

[¶10] On September 22, 2011, the jury returned a guilty verdict, and on October 14,
2011, the district court entered a Judgment Upon Jury Verdict. Before Magnus’
sentencing hearing, the State filed a Memorandum in Respect of Sentencing. In its
memorandum, the State recommended the maximum sentence of eight to ten years of
imprisonment.

             Due to the volume of victims, the effect of his actions on the
             victims, the amount of money collected in this case, and the
             Defendant’s history of criminal activity, the State respectfully
             argues that the Defendant be sentenced to a term of
             imprisonment for not less than eight (8) years nor more than
             ten (10) years, to be served consecutively to any term
             imposed by the court in the pending probation revocation
             proceeding in Case No. 2008CR826, Larimer County,
             Colorado. Upon release, the Defendant should also be
             ordered to pay restitution to the victims in the amount of
             $12,720.00.

[¶11] In support of its recommendation, the State attached a spreadsheet identifying over
three hundred Gillette businesses and individuals from whom Magnus solicited and
collected donations. The State also urged the district court to consider the uncharged
misconduct, including the two incidents for which evidence was presented at trial: the
Casper junior police academy incident, citing the testimony of a former Casper police
detective; and the Loveland incident, citing the testimony of the Loveland detective.
Also included in the uncharged misconduct that the State argued should be considered in
sentencing were allegations that Magnus had engaged in similar uncharged misconduct in
Casper and Cheyenne. The State’s memorandum cited to a “review of the deposit tickets
and copies of negotiated checks obtained by the Gillette Police Department for Bank of
the West Account No. 803012962, … d/b/a The Children’s Show,” which showed
deposits of approximately $143,000.00 worth of checks made out to the Cheyenne
Children’s Show and the Casper Children’s Show.

[¶12] On November 15, 2011, Magnus filed an Objection to Presentence Investigation
Report and Motion to Strike Portions of the Report. Magnus objected to the tone of the
report as lacking neutrality and siding with the State’s sentencing recommendation, and
he objected to the attachment of the State’s memorandum to the presentence investigation
(PSI) report. In objecting to the PSI report, Magnus challenged the State’s support for its


                                             4
victim restitution claim, but he did not otherwise object to the substance of the State’s
sentencing memorandum. Nor did Magnus file a separate objection or response to the
State’s sentencing memorandum.

[¶13] On February 14, 2012, the district court held a sentencing hearing. During that
hearing, counsel for Magnus reiterated his objection to the tone of the PSI report,
objected to the attachment of the State’s memorandum to the report, and objected to the
State’s restitution claim. Magnus did not otherwise respond to the State’s sentencing
memorandum or object to the contents or accuracy of that document.

[¶14] In response to Magnus’ objection, the court excised the State’s sentencing
memorandum from the PSI report. After consideration of the PSI report and hearing
from the State and Magnus, the court sentenced Magnus to a term of imprisonment of
eight to ten years. Magnus timely filed his Notice of Appeal.

                                      DISCUSSION

A.    Admission of Rule 404(b) Uncharged Misconduct Evidence

[¶15] The first argument Magnus presents on appeal is a challenge to the district court’s
admission of uncharged misconduct evidence under W.R.E. 404(b). This Court reviews a
decision to admit uncharged misconduct evidence as follows:

                We review claims of error concerning the improper
                admission of W.R.E. 404(b) evidence for abuse of
                discretion and will not reverse the trial court’s decision
                absent a clear abuse. Thomas v. State, 2006 WY 34, ¶ 10,
                131 P.3d 348, 352 (Wyo. 2006). A trial court abuses its
                discretion when it could not have reasonably concluded as
                it did. Id. In this context, “reasonably” means sound
                judgment exercised with regard to what is right under the
                circumstances and without being arbitrary or capricious.
                Id.
             Bromley v. State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206–07
             (Wyo. 2007). Even if we determine that a district court
             abused its discretion in improperly allowing admission of
             uncharged misconduct evidence, and thus the evidence was
             admitted in error, we must also determine whether the error
             was prejudicial. Solis v. State, 981 P.2d 34, 36 (Wyo. 1999).
             “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.” Vigil v. State, 2010 WY 15,
             ¶ 11, 224 P.3d 31, 36 (Wyo. 2010).


                                              5
Rolle v. State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010).

[¶16] We have acknowledged the difficulties presented by uncharged misconduct
evidence and have adopted a four-part test to guard against its misuse:

             [B]ecause uncharged misconduct evidence carries an inherent
             danger for prejudice, we have also adopted a mandatory
             procedure for testing its admissibility: (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. Vigil, 926 P.2d at
             357 (quoting United States v. Herndon, 982 F.2d 1411, 1414
             (10th Cir. 1992)). We do not apply this test on appeal; rather,
             it is intended to be conducted by the trial court. Beintema v.
             State, 936 P.2d 1221, 1224 (Wyo. 1997). Our role is to
             determine whether admission of the evidence was error. Id.;
             Spencer v. State, 925 P.2d 994, 997 (Wyo. 1996).

Baldes v. State, 2012 WY 67, ¶ 16, 276 P.3d 386, 390 (Wyo. 2012) (quoting Gleason v.
State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002)).

[¶17] On appeal, Magnus does not argue that the district court erred in admitting the
uncharged misconduct evidence relating to the Casper junior police academy incident.
Nor does he contest the admission of the Loveland detective’s testimony concerning the
Loveland crime. Magnus limits his challenge to the testimony of the elderly witness who
was a targeted victim of Magnus’ Loveland crime, and his sole contention with regard to
the witness is that the evidence’s probative value was outweighed by its potential for
unfair prejudice because the elderly witness was “the epitome of a sympathetic witness.”

[¶18] As evidence of the sympathetic nature of the witness, Magnus points to the
witness’ age, her poor memory and confusion, her residence in an assisted living
complex, and her very tight financial budget. Magnus suggests that these characteristics
made the witness unfairly sympathetic and contends that the district court’s comparison
of the victims of the charged crime and uncharged misconduct was superficial and
inadequate. Magnus summarizes his argument as:

             The evidence presented by the State demonstrated that Mr.
             Magnus was trying to defraud a little old lady of her last ten
             dollars at the end of the month. It is the prejudicial effect of


                                             6
              that testimony that needed to be evaluated. The court failed
              to weigh the prejudicial nature of this witness, when it
              conducted it[s] analysis. The mere fact that in the most
              general sense all of the victims share the quality that they
              were “members of the general public,” as the district court
              found in reaching its decision, does not satisfy the proper
              inquiry. Cf. Trevino v. Gates, 99 F.3d 911, 922 (9th Cir.
              1996) (trial judge did not abuse discretion in excluding
              testimony of highly sympathetic child witness).

[¶19] We note that Magnus has raised his concern regarding the relative sympathy of the
victims for the first time on appeal. He did not raise his concerns in his objection to the
uncharged misconduct evidence, during the Gleason hearing, in an objection to the
district court’s written order that contained the comparative victim analyses, or when the
witness testified at trial. While we recognize that the district court was not afforded an
opportunity to address in the first instance this newly raised concern regarding the State’s
uncharged misconduct evidence, we have not required that as a condition to appeal a
Rule 404(b) objection.

                      In Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332,
              340 (Wyo. 2002), we said the standard for reviewing rulings
              under W.R.E. 404(b) generally is abuse of discretion but
              where the defense fails to object to such evidence at trial the
              plain error standard applies. More recently, however, we said:
                    [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 such evidence. The State must then
                    respond with sufficient information to meet the balance
                    of the Huddleston [v. U.S., 485 U.S. 681, 108 S.Ct.
                    1496, 99 L.Ed.2d 771 (1988)] test adopted in Vigil [v.
                    State, 926 P.2d 351 (Wyo. 1996)] [i.e., the State must
                    justify the evidence a s p r o p e r u n d e r o n e o f t h e
                    exceptions to character evidence articulated in W.R.E.
                    404(b) or the general expansion of that rule and
                    demonstrate that the evidence is relevant for the
                    proposed purpose].
              Williams v. State, 2004 WY 117, ¶ 12, 99 P.3d 432, 439
              (Wyo. 2004). Thus, in accord with Williams, a defendant is
              not required to object to uncharged misconduct evidence at
              trial if he has filed a pretrial demand for notice of intent to
              introduce Rule 404(b) evidence. The rationale for this rule is
              that “rulings on uncharged misconduct evidence are too


                                                7
             important to be made in the heat and pressure of a trial, with
             the jury twiddling its thumbs in the next room.” Id., at 440.

Dettloff v. State, 2007 WY 29, ¶ 34, 152 P.3d 376, 385-86 (Wyo. 2007).

[¶20] Magnus did request notice of the State’s intention to present uncharged
misconduct evidence, and the State provided that notice. The district court then ordered
the evidence admissible following a Gleason hearing. We thus conclude that Magnus
preserved his objection and address his argument that the district court abused its
discretion when it permitted the elderly witness to testify regarding the Loveland crime.

[¶21] Based on our review of the record, we must disagree with Magnus that the witness
at issue presented as a highly sympathetic witness. The witness had difficulty recalling
dates and names, but she rejected defense counsel’s suggestion that she resided in an
assisted living apartment, describing herself as “very independent.” And the witness
provided unwavering testimony concerning her interactions with Magnus and her
participation in an undercover operation with the Loveland police:

                    Q.      And when did you meet Mr. Larry Magnus?
                    A.      Well, I had a call one week from a lady telling
             me that they were collecting money for children. And I said
             what was this for. And it was for taking underprivileged
             children to places and concerts and things that they wouldn’t
             usually get to go to. And I had worked with the City of
             Loveland a lot, and in fact, I started the children’s daycare.
             And I was suspicious that this wasn’t a legitimate cause. I
             worked so much with them.
                                             ….
                    Q.      And then could you explain to the jury what
             happened next?
                    A.      Yes. I was brought up that if a person could
             look you straight in the eyes and he was talking to you, you
             could rely on their word. I am the older generation, when we
             were taught things at home that counted. And I always
             remembered that. The next week after the first phone call, I
             had the call again. And I made an appointment for him to
             come out and wanted to see if he could look me in the eye
             straight and talk. I told him I would have $10 –
                    Q.      Okay.
                    A.      -- for the children’s benefit.
                    Q.      Okay, and so what happened next?




                                            8
                      A.     He came, and he was punctual. And I had the
             $10. And he couldn’t look me in the eyes, kept looking
             down, on the side from the waist down.
                                             ….
                      Q.     And so you had your $10 and the man arrives
             and what happens?
                      A.     No, I didn't give it to him. I had the $10 in my
             hand. This was the last of the month. I said, you know what
             this is the last of the month. It was a weekend coming up. I
             think I will wait till I get my check next week and maybe I
             can give you some more money because I was pretty sure that
             this was a scam. So he left without the money.
                                             ….
                      Q.     Okay. And so what happened next?
                      A.     Well, the two police officers came early, hid
             their cars, went in the office. And he didn’t come at 4:15, and
             it kept on and on. And finally at 5:30, I called him, and he
             said that he had been to the little town below for a pickup,
             and he had two more places to go on the west side. I asked
             him where he was at. And he was 20 minutes away in the
             northern part of town, and I told him my time was as good as
             the rest of them, I had been waiting that long and I wanted to
             leave that evening, and he was to either come then or forget
             it, to that effect.
                      Q.     So then what happened?
                      A.     So he did come in about 20 minutes, like I said,
             took him close to that. So I met him there at the office door,
             and there are outside doors. I met him in between with the
             office door half wide open so they could hear everything that
             was said. I gave him the money, and he handed me a receipt
             for $10. And I said, no, I gave you $50 and I want that to
             show what I gave.
                      Q.     How did he respond?
                      A.     He did correct it reluctantly, and so then that
             was the end of it. And I spoke loud enough that they could
             hear me inside the office.
                      Q.     So the officer could hear you, okay.
                      A.     And they let him get outside and then they
             nailed him and handcuffed him, and he had a stack of
             receipts. Can I say all this?

[¶22] The above testimony does not strike this Court as the testimony of a person of
feeble mind or spirit. Because the record does not reflect the testimony of a particularly


                                             9
vulnerable witness, we find no abuse of discretion in the district court’s finding that the
victims of the uncharged misconduct were no more vulnerable or sympathetic than those
of the charged crime. Additionally, Magnus has not shown that he was unfairly
prejudiced by the substance of the elderly witness’ testimony. She was not the only
witness who testified to the Loveland crime, and Magnus has not appealed the admission
of the Loveland’s detective’s testimony concerning the same criminal conduct. Nor has
Magnus challenged the district court’s findings that the Loveland crime itself was no
more reprehensible than the charged crime and that the jury was unlikely to punish
Magnus for the Loveland crime because Colorado had already convicted and punished
him. Based on this record, we can find no abuse of discretion in the district court’s
determination that the probative value of the Loveland evidence, including the testimony
of the elderly witness, was not outweighed by its potential for unfair prejudice.

B.    Prosecutorial Misconduct in Sentencing

[¶23] In his second issue, Magnus contends that the State committed prosecutorial
misconduct in its sentencing memorandum to the district court, resulting in the
imposition of a longer sentence. During the sentencing hearing, Magnus did not object to
the sentencing memorandum or the court’s sentencing procedure, and our review is
therefore confined to a search for plain error. Sandoval v. State, 2009 WY 121, ¶ 6, 217
P.3d 393, 395 (Wyo. 2009). Our plain error analysis requires that an appellant “establish,
by reference to the record, a violation of a clear and unequivocal rule of law in a clear
and obvious, not merely arguable, way and that the violation adversely affected a
substantial right resulting in material prejudice.” Joreski v. State, 2012 WY 143, ¶ 11,
288 P.3d 413, 416 (Wyo. 2012) (quoting Jealous v. State, 2011 WY 171, ¶ 11, 267 P.3d
1101, 1104 (Wyo.2011)). Material prejudice means a reasonable probability exists that
the result would have been more favorable in the absence of the alleged error. Id.

[¶24] Because this issue presents a challenge to the prosecutor’s conduct and the court’s
sentencing decision, we are also guided by the following:

                   We review a district court’s sentencing decisions for
             abuse of discretion. Roeschlein v. State, 2007 WY 156, ¶ 17,
             168 P.3d 468, 473 (Wyo. 2007). A sentence will not be
             disturbed because of sentencing procedures unless the
             defendant can show an abuse of discretion, procedural
             conduct prejudicial to him, circumstances which manifest
             inherent unfairness and injustice, or conduct which offends
             the public sense of fair play. Id. An error warrants reversal
             only when it is prejudicial and it affects an appellant’s
             substantial rights. Id. The party who is appealing bears the
             burden to establish that an error was prejudicial. Id.



                                             10
Joreski, ¶ 10, 288 P.3d at 416 (quoting Noller v. State, 2010 WY 30, ¶ 7, 226 P.3d 867,
869 (Wyo. 2010)).

[¶25] Our precedent illustrates that a sentencing court may consider a wide range of
factors about the defendant and the crime when imposing sentence. Joreski, ¶ 11, 288
P.3d at 416.

             They are free, in the exercise of their sentencing discretion, to
             consider victim impact statements, PSIs and other factors
             relating to the defendant and his crimes in imposing an
             appropriate sentence within the statutory range. Garcia v.
             State, 2007 WY 48, ¶ 10, 153 P.3d 941, 944 (Wyo. 2007),
             citing Smith v. State, 2005 WY 113, ¶ 37, 119 P.3d 411, 422
             (Wyo. 2005). Trial courts are permitted to consider a
             defendant’s character when exercising their discretion to
             impose sentence. Doherty, ¶ 35, 131 P.3d at 974. In
             evaluating character, the trial court may consider a broad
             range of reports and information. Gorseth v. State, 2006 WY
             109, ¶ 15, 141 P.3d 698, 703 (Wyo. 2006). A defendant’s
             cooperation with authorities and remorse for his actions are
             appropriate factors to be considered when imposing sentence.
             Dodge v. State, 951 P.2d 383, 386 (Wyo. 1997). A sentencing
             recommendation contained in a PSI is one of the factors that a
             court may properly consider in determining the appropriate
             sentence to impose. Duke v. State, 2009 WY 74, ¶ 15, 209
             P.3d 563, 569 (Wyo. 2009).

Joreski, ¶ 13, 288 P.3d at 416-17 (quoting Noller, ¶ 13, 226 P.3d at 871); see also Manes
v. State, 2004 WY 70, ¶ 9, 92 P.3d 289, 292 (Wyo. 2004) (quoting Mehring v. State, 860
P.2d 1101, 1117 (Wyo. 1993) (“Evidence of prior criminal activity is ‘highly relevant to
the sentencing decision’ and may be considered by the sentencing court despite the fact
that no prosecution or conviction may have resulted.”)).

[¶26] Due process requires, however, that a court consider only accurate information in
imposing sentence. Sandoval, ¶ 8, 217 P.3d at 395; Manes v. State, ¶ 9, 92 P.3d at 292.

             “[A] sentencing decision cannot be based upon unreliable
             information, undocumented information, or inaccurate
             information.” Hubbard v. State, 2008 WY 12, ¶ 24, 175 P.3d
             625, 630 (Wyo. 2008). If a prosecutor brings undocumented
             or inaccurate allegations to the district court’s attention
             during sentencing, he engages in misconduct.             Id.
             Nevertheless, a showing that inaccurate information was


                                             11
              presented to the court will not necessarily justify a reversal;
              “the defendant must demonstrate that the trial court relied
              upon the statements in sentencing to prevail.” Manes, ¶ 9, 92
              P.3d at 292. See also, Hubbard, ¶ 19, 175 P.3d at 629.

Sandoval, ¶ 8, 217 P.3d at 395-96.

[¶27] In its sentencing memorandum, the State alleged that Magnus engaged in the same
criminal conduct in Casper and in Cheyenne, i.e., misrepresenting himself as a charitable
organization and soliciting donations for children’s shows in those communities. Magnus
contends that these allegations are undocumented and constitute prosecutorial misconduct
because no evidence of these allegations was presented at trial and Magnus was never
charged with these crimes. We disagree.

[¶28] This Court has held that a trial court, in the exercise of its sentencing discretion,
may:
            go beyond the record to consider the defendant’s past conduct
            and activities including evidence of crimes for which charges
            were filed but no conviction resulted. The scope of the
            inquiry may include the factual basis of dismissed charges “as
            well as hearsay reports implicating the defendant in other
            crimes if such reports are deemed sufficiently reliable.”

Capellen v. State, 2007 WY 107, ¶ 16, 161 P.3d 1076, 1080 (Wyo. 2007) (quoting
Swingholm v. State, 910 P.2d 1334, 1339 (Wyo.1996)).

[¶29] The State’s allegations concerning Magnus’ activities in Casper and Cheyenne
were based on reliable documentation. The State identified the bank account from which
it obtained the information, and it identified the time periods of deposit tickets and
negotiated checks it reviewed in forming its allegations that Magnus engaged in the same
activities in these other communities. The State’s memorandum provided sufficiently
reliable information concerning the allegations, and we thus find no violation of a clear
and unequivocal rule of law.

[¶30] We likewise reject Magnus’ assertion that he did not have an opportunity to
respond to the allegations in the State’s sentencing memorandum. The State filed its
sentencing memorandum on October 6, 2011, and the court held its sentencing hearing on
February 14, 2012. Magnus had ample notice of the State’s allegations, access to the
account records—since they were his records, and an opportunity to respond either in
writing before the sentencing hearing or during the sentencing hearing. See Capellen,
¶ 19, 161 P.3d at 1081 (“Mr. Capellen was afforded a full opportunity at sentencing to
dispute all of the information he challenges in this appeal. Accordingly, he was not
deprived of a fair sentencing.”).


                                             12
[¶31] Finally, even if we were to conclude that the information in the State’s sentencing
memorandum was undocumented or unreliable, the record contains no indication that the
district court relied on those allegations in making its sentencing decision. Instead, the
record shows that the court was more concerned with Magnus’ Colorado felony
conviction, his commission of the present crime while on probation for the Colorado
crime, and what the court perceived as his failure to acknowledge his mistakes.

                     And the court, like counsel, has plenty of experience in
             sentencing proceedings. And it is not surprising to see a
             sentencing recommendation for incarceration, as is present
             here from the PSI author, when we have an individual who
             was on felony probation for a like offense.
                     Now granted it might not be the identical offense, and
             you made something of that, I think in your objection here,
             did you not? It is not an identical offense, but it is a like
             offense and that is how I would take the submittal from the
             presentence author. And under the terms of his probation
             there, I think, he wasn’t supposed to be out of state. Certainly
             wasn’t supposed to be engaging in this kind of behavior
             again. And so with a prior felony behind him for a like kind
             of activity, it is just not real surprising to see a
             recommendation for incarceration.
                     So all of that having been taken into account, the court
             finds the defendant is not a fit and proper candidate for
             probation.
                                            ….
                     Mr. Magnus, this isn’t the first time you have been
             through an experience like this. And I realize just from your
             comments that you don’t see your behavior as others seem to
             have seen it. And that in and of itself requires some analysis
             by you. Just that one issue right there, why it is you see the
             world differently, apparently, than everybody else does. And
             I think maybe if you straighten that out, maybe that will result
             in you not being back in court on these kinds of charges
             again.

[¶32] The district court entered a sentence permitted by law, and Magnus has not shown
plain error in the sentencing proceedings.

                                    CONCLUSION




                                             13
[¶33] We find no abuse of discretion in the district court’s admission of uncharged
misconduct evidence and no plain error in the sentencing proceedings. Affirmed.




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