                IN THE SUPREME COURT, STATE OF WYOMING

                                         2013 WY 29

                                                            OCTOBER TERM, A.D. 2012

                                                                    March 13, 2013

KENNETH JAMES HUCKFELDT,

Appellant
(Defendant),

v.                                                   S-12-0183

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                  Appeal from the District Court of Sweetwater County
                          The Honorable Nena James, Judge

Representing Appellant:
      W. Keith Goody, Cougar, WA.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
      Darrell D. Jackson, Prosecution Assistance Clinic, Emily N. Thomas, Student
      Director; and Adrianna J. Potts, Student Intern. Argument by Mr. Racines.

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 Kenneth Huckfeldt of sexual assault in the first degree and
sexual abuse of a minor in the first degree. Huckfeldt appeals the district court’s denial
of a continuance motion and the court’s admission of uncharged misconduct evidence of
his prior conviction for sexual assault of a minor. We find no abuse of discretion in
either ruling and affirm.

                                        ISSUES

[¶2]   Huckfeldt presents the following issues for our review:

             I.      Did the district court abuse its discretion when it
             denied Mr. Huckfeldt’s motion for continuance of the trial
             due to a missing witness and was it mistaken when it found
             that the public defender did not use due diligence?

             II.    Did the district court abuse its discretion in admitting
             into evidence testimony of the victim that resulted in a prior
             conviction of Mr. Huckfeldt for sexual assault?

                                        FACTS

[¶3] In June 2011, HG, then nineteen, reported that her stepfather, Kenneth Huckfeldt,
had raped her approximately three years earlier, shortly before her sixteenth birthday.
HG testified that the assault occurred in an ice fishing hut while she was alone with
Huckfeldt ice fishing at Flaming Gorge reservoir. Toward the end of that afternoon,
when it began to get dark, HG asked Huckfeldt if they could go home. Huckfeldt first
responded that they could not go home until they had caught their limit, and then a short
time later he told HG that the only way they could go home was if she “gave him a piece
of ass.” HG refused and turned her back to Huckfeldt. Huckfeldt then grabbed HG from
behind and pulled her off her chair. HG described what followed:

                     A.     When I was on the floor I tried to get back up
             and he pushed me down. And I asked him, I was like what
             are you doing, and he said we are going to go home. And I
             told him I don’t know what you are doing. Get off of me and
             leave me alone. And I tried to get back up again and he
             pushed me down. And he held my arms down with his knees
             like right up by my muscle part and he covered my mouth and
             told me to not scream or anything or else he would hurt me.
             After he let my mouth go, he kept his knees on my arms and
             he grabbed both of my arms and put them above my head and


                                             1
             he held those there, and he was pulling my pants down behind
             him.
                     Q.     Did he ask you to do anything?
                     A.     He told me to suck his dick.
                     Q.     Okay. What happened then?
                     A.     I told him no, it’s not going to happen. I told
             him to leave me alone.
                     Q.     Okay. What happened then?
                     A.     He started pulling off my pants. And the free
             part of my arm that I had, I tried pulling them back up, but I
             just couldn’t move anymore. And I was in shock, and it just
             happened.
                     Q.     What happened?
                     A.     Sexual intercourse.
                     Q.     How far down did your pants get?
                     A.     Almost to my knees.
                     Q.     What did he – when you say sexual intercourse,
             what do you mean?
                     A.     His penis went into my vagina.
                     Q.     Did he do anything else while he was having
             sex with you?
                     A.     He was groping me from the top, like of my
             upper body over my clothes.
                     Q.     What were you doing?
                     A.     I was screaming and crying and kicking and
             trying to get him off of me.
                     Q.     Did he say anything to you?
                     A.     While it was going [on] he said who is fucking
             you, sweetie pie. And after it was all over he said how does it
             feel knowing that your daddy just fucked you.

[¶4] HG testified that Huckfeldt threatened her and warned her not to tell anyone what
had happened, and after the incident repeatedly asked her if she had told anyone what
happened. HG did not tell anyone about the incident until she got married and discussed
it with her husband, EH. She did not report the incident to her mother or law
enforcement until she learned that her sister KA, who is one year older than HG, reported
that Huckfeldt had inappropriately touched her while she was cleaning the Huckfeldt
home.

[¶5] The incident involving KA occurred in May 2011. KA, who was then twenty
years old, married and living independently of her parents, was cleaning the Huckfeldt
home to earn extra money. KA reported that during her visit on that occasion, Huckfeldt
touched her breasts and she hit his hand away. KA then asked to be paid, and Huckfeldt


                                            2
responded that he would pay her fifty dollars if she showed him her breasts and otherwise
he would pay her only twenty dollars. KA testified that because she was angry, she tried
to alter the amount of the check before she cashed it. After the bank refused to cash the
check, KA called her mother and told her about Huckfeldt touching her breasts and
offering her money if she showed him her breasts.

[¶6] On June 15, 2011, law enforcement interviewed Huckfeldt.1 During that
interview, Huckfeldt admitted to ice fishing alone with HG during the time period
alleged, but he denied that he raped her. Huckfeldt admitted instead that he had had
consensual sex with HG on three occasions over the course of a week and a half when
she was nineteen. According to Huckfeldt, when he asked HG questions concerning
whether she had told anyone, or left voicemail messages to that effect, he was referring
not to the alleged incident when she was sixteen but rather to their consensual sex when
she was nineteen.

[¶7] During his interview, Huckfeldt also denied that he had touched KA’s breasts. He
admitted, however, that he had said to KA that if she wanted money, she had to earn it,
after which he said, “Let me squeeze your tits, and I’ll give you fifty bucks.”

[¶8] On July 7, 2011, the State charged Huckfeldt with sexual assault in the first degree
and sexual abuse of a minor in the first degree, relating to HG’s allegations, and with
incest, relating to KA’s allegations. On September 1, 2011, the State filed notice of its
intent to introduce uncharged misconduct evidence relating to Huckfeldt’s 1995
conviction for second degree sexual assault. The evidence concerned Huckfeldt’s sexual
assault of his then girlfriend’s eleven-year-old daughter, and the State sought its
admission to show motive, intent and knowledge, and to rebut Huckfeldt’s expected
claim of fabrication. Huckfeldt objected to the evidence, and on December 8, 2011, the
district court held a Gleason hearing and ruled that the evidence relating to Huckfeldt’s
1995 conviction was admissible. On January 26, 2012, the court followed up its decision
with a written decision letter detailing its analysis of the Gleason factors.

[¶9] On February 2, 2012, four days before trial, Huckfeldt filed a motion to continue
on grounds that the whereabouts of a material defense witness were unknown and
defense counsel required additional time to locate him. Following a motions hearing that
same day, the district court denied the motion to continue, finding that the witness’
proposed testimony lacked materiality, that questions existed regarding the testimony’s
admissibility, that the missing witness was a fugitive who defense counsel had not shown
could be located within a reasonable amount of time, and that defense counsel had not
exercised due diligence in procuring the witness.

1
   Huckfeldt did not testify at trial, but the State submitted the recording of his interview, which was
approximately sixty-nine minutes in length, as an exhibit. The recorded interview was played in its
entirety for the jury.


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[¶10] On February 8, 2012, after three days of trial, a jury returned a verdict finding
Huckfeldt guilty on the first degree sexual assault and sexual abuse of a minor charges
and not guilty on the incest charge. On March 30, 2012, the district court held a
sentencing hearing and sentenced Huckfeldt to twenty-five to fifty years on the first
degree sexual assault count and to consecutive life without parole on the sexual abuse of
a minor count. On April 17, 2012, Huckfeldt filed a timely notice of appeal asserting
error in the district court’s decisions to deny a continuance and admit uncharged
misconduct evidence.

                                     DISCUSSION

A.    Continuance

[¶11] We address first Huckfeldt’s claim that the district court erred in denying his
request for a continuance to allow time to locate a missing defense witness. “[T]he grant
or denial of a motion for continuance is a discretionary ruling of the district court and,
unless a clear showing of an abuse of discretion resulting in manifest injustice has been
shown by the challenging party, we will not disturb that ruling.” Grady v. State, 2008
WY 144, ¶ 18, 197 P.3d 722, 729 (Wyo. 2008) (citing Sincock v. State, 2003 WY 115,
¶ 25, 76 P.3d 323, 333-34 (Wyo. 2003); Clearwater v. State, 2 P.3d 548, 553 (Wyo.
2000)). This Court’s review for an abuse of discretion is highly dependent on the facts
and circumstances of the individual case, and our primary consideration is the
reasonableness of the district court’s decision. Id.

[¶12] Continuances based upon the unavailability of evidence are governed by Wyo.
Stat. Ann. § 1-9-101. The statute requires that a motion to postpone a trial be supported
by an affidavit showing the materiality of the evidence, that due diligence has been used
to obtain the evidence, and where the evidence may be found. Wyo. Stat. Ann. § 1-9-
101(a). With respect to a missing witness, the statute further provides:

             (b) If the postponement is because of an absent witness, the
             affidavit shall also state:

                    (i) Where the witness resides, if known;

                    (ii) The probability of procuring the testimony within
             a reasonable time;

                    (iii) That absence of the witness was not procured by
             the act or connivance of the party seeking the postponement,
             nor by others at his request or with his knowledge or consent;



                                             4
                     (iv) The facts the witness is expected to prove and that
             affiant believes the facts as stated to be true; and

                   (v) Such facts cannot be proven by any other witness
             whose testimony can be as readily procured.

Wyo. Stat. Ann. § 1-9-101 (LexisNexis 2011).

[¶13] Huckfeldt requested a continuance to allow time to locate EH, HG’s estranged
husband, asserting that EH would provide important impeachment testimony. In support
of its continuance, the defense presented the testimony of its investigator. The
investigator testified that EH was a fugitive and described his efforts to locate EH. He
also addressed the probability that he could find EH within a reasonable time: “Well, I’m
not sure what the definition of reasonable time is, but – I really don’t know. I don’t know
how long it would take to find him. I think there are other avenues.”

[¶14] The investigator also summarized EH’s expected testimony, which he based upon
his review of a law enforcement interview of EH concerning HG’s reported rape. The
investigator stated that EH would testify that while HG did tell him she was raped by
Huckfeldt, the details of the account she gave EH were different from those being
presently reported by HG. Specifically, EH would testify that HG told him she was raped
when she was sixteen, not just before her sixteenth birthday, and HG told him it
happened on a fishing boat, not in an ice fishing hut. The investigator stated that EH
would further testify that he did not know who to believe because HG is a liar.

[¶15] We find no abuse of discretion in the district court’s denial of the continuance
motion. First, given the investigator’s testimony concerning the prospects of finding EH,
the district court correctly found that Huckfeldt failed to establish that EH could be
located and his testimony procured within a reasonable time. This was an acknowledged
difficulty that was even further compounded by EH’s status as a fugitive. See, L.S.
Tellier, Annotation, Right of accused to continuance because of absence of witness who
is fugitive from justice, 42 A.L.R.2d 1229 (1955), § 1[b] (“[T]he cases are in almost
universal accord that denial of an accused’s motion for a continuance because of the
absence of a witness who is a fugitive from justice is not an abuse of discretion.”).

[¶16] Second, the district court correctly concluded that the unavailable testimony
lacked materiality. When EH’s statement to law enforcement is considered in its entirety,
his potential testimony is simply not compelling. After the investigator testified
concerning the expected testimony of EH, the prosecutor played the audio recording of
the EH law enforcement interview for the court. On cross examination, the investigator
then conceded that EH did not in fact attribute his belief that the rape occurred on a boat
to something that HG had told him. He further agreed that EH stated that the rape could
have taken place on an ice fishing trip and that EH concluded, “Honestly, I don’t know.”


                                             5
Finally, the investigator agreed that when EH stated that HG lies, he qualified that
statement by stating that she lies about “mostly petty stuff.”

[¶17] Based on this record, Huckfeldt has not shown that the district court abused its
discretion in denying the requested continuance, or that the denial resulted in a manifest
injustice.

B.    Rule 404(b) Uncharged Misconduct Evidence

[¶18] We turn next to Huckfeldt’s claim that the district court erred in admitting
evidence of his prior sexual assault of an eleven-year-old victim. We review the
admission of uncharged misconduct evidence under W.R.E. 404(b) 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).

Magnus v. State, 2013 WY 13, ¶ 15, 293 P.3d 459, 464-65 (Wyo. 2013) (quoting Rolle v.
State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010)).

[¶19] This Court has acknowledged the difficulties presented by uncharged misconduct
evidence and has 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


                                              6
             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).

Magnus, ¶ 16, 293 P.3d at 465 (quoting Baldes v. State, 2012 WY 67, ¶ 16, 276 P.3d 386,
390 (Wyo. 2012)).

[¶20] To ensure that the probative value of uncharged misconduct evidence is properly
gauged against its potential for unfair prejudice, a district court must weigh several
factors in determining the admissibility of the evidence. With respect to the probative
value of the evidence, a court must consider:

             1. How clear is it that the defendant committed the prior bad
             act?

             2. Does the defendant dispute the issue on which the state is
             offering the prior bad acts evidence?

             3. Is other evidence available?

             4. Is the evidence unnecessarily cumulative?

             5. How much time has elapsed between the charged crime
             and the prior bad act?

Wease v. State, 2007 WY 176, ¶ 54, 170 P.3d 94, 112 (Wyo. 2007) (quoting Rigler v.
State, 941 P.2d 734, 737 n.1 (Wyo. 1997)); see also Gleason v. State, 2002 WY 161,
¶ 27, 57 P.3d 332, 342 (Wyo. 2002). With respect to the evidence’s potential for unfair
prejudice, a court must consider:
             1. The reprehensible nature of the prior bad act. The more
             reprehensible the act, the more likely the jury will be tempted
             to punish the defendant for the prior act.


                                               7
             2. The sympathetic character of the alleged victim of the
             prior bad act. Again, the jury will be tempted to punish the
             defendant for the prior act if the victim was especially
             vulnerable.
             3. The similarity between the charged crime and the prior
             bad act. The more similar the acts, the greater is the
             likelihood that the jury will draw the improper inference that
             if the defendant did it once, he probably did it again.
             4. The comparative enormity of the charged crime and the
             prior bad act. When the prior act is a more serious offense
             than the charged crime, the introduction of that act will tend
             to place the defendant in a different and unfavorable light.
             5. The comparable relevance of the prior bad act to the
             proper and forbidden inferences. Evidence of the prior bad act
             may be much more probative of bad character than it is of any
             legitimate inference permitted by Rule 404(b).
             6. Whether the prior act resulted in a conviction. The jury
             may be tempted to punish the defendant if they believe he
             escaped punishment for the prior bad act.

Wease, ¶ 54, 170 P.3d at 112 (quoting Rigler, 941 P.2d at 737 n.1); see also Gleason,
¶ 27, 57 P.3d at 342-43.

[¶21] A district court is not required to make express findings on each of the above-
outlined factors. Vigil v. State, 2010 WY 15, ¶ 20, 224 P.3d 31, 38 (Wyo. 2010). “We
only require that the record contain ‘sufficient findings to support the trial court’s
conclusions.’” Id. (quoting Williams v. State, 2004 WY 117, ¶ 13, 99 P.3d 432, 442
(Wyo. 2004)).

[¶22] Huckfeldt does not contend that the district court failed to make the required
Gleason findings. He instead challenges the court’s analysis of the prejudicial impact of
the uncharged misconduct evidence as superficial and asserts that the uncharged
misconduct evidence was irrelevant and inflammatory. Huckfeldt argues:

                    The analysis of the district court is superficial at best.
             Here we have an 11 year old victim who was much more
             vulnerable than a 15 or 16 year old adolescent. She was
             subjected to a brutal and violent rape by Mr. Huckfeldt. Any
             juror who heard the testimony of CD would be absolutely
             revolted by the crime. It would not be surprising that a juror



                                             8
              would wonder why Mr. Huckfeldt is even out of custody after
              committing such an egregious offense. It would be expected,
              and a natural response to the evidence, jurors would consider
              Mr. Huckfeldt to be a danger to the local community and a
              threat to children in Sweetwater County. Admitting such
              inflammatory and irrelevant evidence amounted to a directed
              verdict against Mr. Huckfeldt.

[¶23] We disagree that the uncharged misconduct evidence admitted in this case was
irrelevant or that the district court’s analysis of its prejudicial impact was lacking. With
respect to the probative value of the evidence, the State offered the evidence to show
motive, intent, and knowledge, and to disprove fabrication. These facts were certainly in
dispute given that in his statement to law enforcement, Huckfeldt accused HG of
fabricating her rape allegation and stated his firm conviction that “you don’t play with
your kids.” Moreover, this Court has on numerous occasions held that evidence of
similar sexual misconduct is relevant and admissible to prove motive and intent. See
Wease, ¶ 51, 170 P.3d at 110-111 (citing cases); Hart v. State, 2002 WY 163, ¶ 10, 57
P.3d 348, 353 (Wyo. 2002); Gleason, ¶ 19, 57 P.3d at 340.

[¶24] With respect to the prejudicial impact of the uncharged misconduct evidence, the
district court made the following findings relevant to Huckfeldt’s allegation of error:

              1)    The reprehensible nature of the prior bad act.
                    The prior bad act is no more reprehensible than the
              charged crimes; therefore, it is not likely a jury would be
              tempted to punish Defendant for the prior bad act based on its
              reprehensible nature.

              2)      The sympathetic character of the alleged victim of the
              prior bad act.
                      The victim in the prior bad act was approximately 11
              years old, a minor younger than both HG & KA. There is a
              chance that based on the younger age of the victim in the
              prior bad act the jury may view that victim as especially
              vulnerable or more vulnerable than the alleged victims in the
              charged crimes; therefore, there is a higher likelihood the jury
              would be tempted to punish Defendant for the prior bad act
              based on the sympathetic character of the victim. However,
              this likelihood is mitigated somewhat because Defendant was
              convicted for the prior bad act.

                                           ....



                                              9
              4)      The comparative enormity of the charged crime and
              the prior bad act.
                      The prior bad act is no more serious than the charged
              conduct; therefore, the introduction of the prior bad act is not
              likely to place Defendant in a different and unfavorable light.

[¶25] The record supports the district court’s prejudice analysis and its decision to admit
the uncharged misconduct evidence. CD, the victim of Huckfeldt’s prior sexual assault,
was twenty-nine years old when she testified in the present case. She testified that when
she was eleven years old, Huckfeldt, then her mother’s boyfriend, grabbed her by her
hair, threatened her, and forced her to engage in oral sex and sexual intercourse. The
assault against CD was, as Huckfeldt argues, brutal and violent. As is evident from our
earlier recitation of HG’s testimony, however, the assault the jury in this case heard
described by HG was likewise brutal and violent. Additionally, the district court
adequately evaluated and weighed the relative vulnerability of the victims. Although CD
was younger at the time of her attack, HG was small in stature. At the time of trial, she
stood approximately five-feet, four inches in height, and weighed only ninety-five
pounds. And, she was in an isolated location, alone with and dependent on the care of
her stepfather. Both victims were vulnerable, and as the court noted in its analysis,
Huckfeldt had already been convicted and served a prison sentence for his crimes against
CD, mitigating any temptation the jury might feel to punish him for his prior conduct.

[¶26] Finally, in arguing the prejudice that resulted from the district court’s admission of
the uncharged misconduct evidence, Huckfeldt suggests that the limiting instruction the
district court gave did not adequately caution the jury against an emotional reaction to the
evidence. Huckfeldt did not object to the court’s limiting instruction below and has not
presented a plain error analysis on appeal. We therefore decline to address the issue. See
Vigil, ¶ 21, 224 P.3d at 39; Causey v. State, 2009 WY 111, ¶ 19, 215 P.3d 287, 293
(Wyo. 2009).

                                     CONCLUSION

[¶27] We find no abuse of discretion in the district court’s denial of Huckfeldt’s
continuance motion or its admission of uncharged misconduct evidence. Affirmed.




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