               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 156

                                                         OCTOBER TERM, A.D. 2013

                                                                December 19, 2013
LASHAWN SIDNEY KING,

Appellant
(Defendant),

v.                                                   S-12-0187

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Natrona County
                      The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Elisabeth M.W. Trefonas, Assistant Public Defender;* Patricia L. Bennett,
      Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jeffrey S. Pope Assistant Attorney General. Argument by Mr.
      Pope.

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

*Order Allowing Withdrawal of Counsel entered July 16, 2013.


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.
VOIGT, Justice.

[¶1] The appellant, LaShawn Sidney King, was convicted of attempted first-degree
murder, kidnapping, and two counts of aggravated assault and battery after he attacked
the victim and hit her several times in the face and body with a sledgehammer. In this
appeal, the appellant argues his convictions should be reversed because the district court
improperly admitted evidence of the appellant’s previous violent behavior against the
victim, a transcript was provided to the jury of a telephone conversation between the
appellant and the victim, and trial counsel was ineffective for waiving the appellant’s
right to a speedy trial.1 Finding no error, we affirm.

                                                ISSUES

[¶2] 1. Did the district court abuse its discretion when it determined that testimony
regarding previous violence in the appellant’s relationship with the victim was
admissible under W.R.E. 404(b)?

       2. Did the district court abuse its discretion when it allowed the jury to review a
transcript of a telephone recording between the appellant and the victim while the
recording was being played at trial?

      3. Was trial counsel ineffective because he requested a continuance and filed a
waiver of speedy trial signed by the appellant, contrary to the appellant’s desire not to
waive his right to a speedy trial?

                                                FACTS

[¶3] On May 6, 2011, the appellant called the victim and asked her to go to a movie
with him because he was moving to Detroit the next day. The victim reluctantly agreed,
picked up the appellant from his apartment, and drove them to the movie theatre. The
appellant asked the victim to park her van off to the side of the road instead of in the
parking lot, but she refused and parked in the main parking lot. She then heard a “dull
thump” inside the van. She turned and looked at the appellant, who was staring straight
at her. The victim tried to get out of the van, but the appellant grabbed her by the hair
and hit her in the eye with a sledgehammer. The appellant continued to hit the victim
with the sledgehammer, hitting her again in the eye, the hand, and the back of her head.




1
  In his brief, the appellant also argued that his two convictions of aggravated assault and battery should
have merged for the purposes of sentencing. However, at oral argument, the appellant conceded that the
issue was moot after this Court’s decision in Sweets v. State, 2013 WY 98, 307 P.3d 860 (Wyo. 2013).


                                                    1
[¶4] The victim struggled out of the van as the appellant screamed that he was going
to kill her. The appellant grabbed the victim, forced her into the van, and drove the van
away from the theatre. As she was in the back of the van, unable to see clearly due to
her injuries, the victim located her cell phone and called 911. Although the victim did
not have a conversation with the 911 dispatcher, she made statements to the appellant
that gave the dispatcher an idea of where she was and what was happening to her.
Eventually, the victim hid the cell phone in a basket in the hopes the appellant would not
notice the phone or that she had dialed 911.

[¶5] After driving through the Casper area, the appellant stopped the van and asked the
victim where her cell phone was located. The appellant then rummaged through the
back of the van until he found the cell phone in the basket. The appellant began hitting
the victim with his fists while telling her that he was going to kill her. He removed the
battery from the phone, threw the phone to the floor of the van, and began driving again.
Eventually, law enforcement officers were able to locate the van, arrest the appellant,
and seek medical attention for the victim. Following a jury trial, the appellant was
convicted of attempted first-degree murder, kidnapping, and two counts of aggravated
assault and battery.

                                     DISCUSSION

           Did the district court abuse its discretion when it determined that
         testimony regarding previous violence in the appellant’s relationship
                 with the victim was admissible under W.R.E. 404(b)?

[¶6] Before trial, the prosecution filed a notice that it intended to use evidence,
pursuant to W.R.E. 404(b), of the appellant’s violent behavior in his relationship with the
victim and towards a former girlfriend. The prosecution asserted the evidence was proper
to show the appellant’s motive and intent when he attacked the victim, and that the
appellant’s actions toward the victim were not done by accident or mistake. The
appellant objected to the notice, asserting the notice did not describe the prior conduct
with sufficient specificity, the evidence of prior conduct was unfairly prejudicial, and the
prior conduct was too remote in time. The district court held a hearing, wherein both
parties gave lengthy arguments regarding the nature of the proposed evidence.
Thereafter, the district court held another hearing where it gave an oral ruling regarding
the evidence. After conducting an analysis of each piece of evidence offered by the
prosecution, it held that the prosecution could not introduce any evidence of the
appellant’s abuse against his previous girlfriend and several instances where the appellant
allegedly threatened the victim’s family members and accused the victim of cheating.
However, the district court determined specific instances of violence by the appellant
against the victim would be admissible. The appellant now argues the district court’s
decision was an abuse of discretion because it listed several proper purposes for the use



                                            2
of the evidence pursuant to W.R.E. 404(b), instead of identifying one specific purpose for
each piece of evidence.

[¶7] When reviewing a district court’s decision regarding the admissibility of evidence
pursuant to W.R.E. 404(b), this Court uses the following standard of review:

             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.

Munoz v. State, 2013 WY 94, ¶ 3, 307 P.3d 829, 830 (Wyo. 2013) (quoting Bromley v.
State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007)). Further, if the evidence
was admitted in error, we must determine whether the error was prejudicial. Rolle v.
State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010). “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).

[¶8] In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002), this Court
admonished the district courts from engaging in the “shotgun approach” of listing every
conceivable purpose for the admissibility of evidence under W.R.E. 404(b), followed by
a nondescript statement that the probative value of the evidence outweighs the prejudicial
effect. Id. at ¶ 30, at 343. Instead, we required the record to reflect “the trial court’s
identification of the purpose or purposes for admission of the evidence, the findings and
conclusions establishing relevance and probative value, and the factors considered in
balancing probative value against the potential for unfair prejudice.” Id. To ensure the
probative value of the evidence is balanced against the potential for unfair prejudice,
district courts are to make the following considerations:

                   In determining the probative value of prior bad acts
             evidence, the trial court should consider the following factors:

                    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
       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?

       Evidence is unfairly prejudicial if it tempts the jury to
decide the case on an improper basis. In balancing against its
probative value the unfair prejudice created by the evidence,
the trial court should consider the extent to which the
evidence distracts the jury from the central question whether
the defendant committed the charged crime. The trial court
should weigh these additional factors against the probative
value of the evidence:

       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.

       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



                              4
                    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.

Gleason, 2002 WY 161, ¶ 27, 57 P.3d at 342-43 (quoting Rigler v. State, 941 P.2d 734,
737 n.1 (Wyo. 1997)).

[¶9] A review of the record shows that the district court did not engage in the “shotgun
approach” of which we disapproved in Gleason. Rather, it rightfully identified the
purposes for which the prosecution sought introduction of the evidence and discussed
each purpose, citing cases where the same type of evidence was used for the same
purposes:

                   It is important that the Court identify -- and I have
             reviewed the case law with regard to the alleged admissible
             purposes being put forth by the State.

                    With regard to motive, it is clear and well settled in
             Wyoming that threats against a victim can be introduced
             properly to show motive.

                    Also, that the defendant’s conduct toward the victim
             may also be relevant at trial to establish motive, and that the
             prosecution is permitted to prove the accused’s motive to
             identify the accused as the perpetrator of the charged crime.

                   The case law the Court has reviewed and is relying on
             with regard to motive is Kenyon v. State, 96 P.3d 1016, a
             2004 case; Bhutto v. State, 114 P.3d 1252, also a 2004 case;
             and Mitchell v. State, 865 P.2d 591.

                    With regard to intent and malice, the Court is aware
             that there are both general and specific-intent crimes charged
             here.

                    The case law is also clear with regard to 404(b)
             evidence as it relates to intent and malice. Uncharged
             misconduct can be relevant and admissible to prove intent in
             both general and specific intent cases. That’s Johnson v.
             State, 936 P.2d 458, a 1997 case.


                                           5
                     Also, prior conflicts between the parties, including
              assault, are properly used to show intent, Wilson v. State, at
              14 P.3d 912, it’s a 2000 case; again, the Bhutto case; Moore
              v. State, 80 P.3d 191; a 2003 case; and most recently, Rolle v.
              State, 236 P.3d 259, Wyoming 2010.

                     With regard to identity, it’s clear in Wyoming that
              evidence of other prior bad acts may be admitted for the
              purpose of proving identity. Again, that’s the Johnson case.
              The Johnson case, Rolle case, and Pena v. State, 780 P.2d
              316 a 1989 case.

                     Finally, with regard to course of conduct, Wyoming
              case law is clear that evidence of prior assaults may be
              admissible to establish a course of conduct between the
              parties as part of intent. And, again, that’s the Moore v. State
              case.

[¶10] After explaining why motive, intent, malice, identity, and course of conduct are
proper purposes for this type of evidence in this case, the district court went on to explain
why it was not going to allow in a significant portion of the prosecution’s requested
evidence under W.R.E. 404(b). The district court found that the allegations regarding the
previous girlfriend were not specific enough to warrant admission into evidence. Further,
the district court found that some of the evidence regarding threats against the victim and
her family were not offered for a proper purpose and lacked specificity and, thus, were
also excluded. Thereafter, the district court analyzed the remaining evidence using all of
the factors in Gleason. With respect to the proper purposes, the district court found:

                     First, is the evidence offered for a proper purpose
              under Vigil[?] With the exceptions, as I said, that I’ve just
              ruled on, I do find that based upon a review of the elements of
              the charged offenses, it does appear that the offered evidence
              is properly used for the identified purposes.

                      The defendant’s motive as well as his intent are clearly
              at issue in this case. It is unknown to me, but it would appear
              to the Court that the defendant disputes some, if not all, of the
              acts alleged.

                     Evidence of the relationship between [the appellant]
              and the alleged victim, including the discord and the violence
              that may have occurred between them, is relevant to the


                                             6
                defendant’s motive to commit the alleged crimes, and it is
                also admissible to establish a course of conduct between the
                parties as part of intent.

                       Under the circumstances of the case and based upon
                the case law, the evidence proposed is properly offered for the
                purpose of showing motive, intent, identity, and absence of
                mistake, as well as course of conduct.

The record shows the district court engaged in a thoughtful analysis of the purposes for
which the prosecution sought to introduce the evidence and carefully weighed the
probative value of the evidence against the potential for unfair prejudice.

[¶11] The appellant’s primary complaint appears to stem from the fact that the district
court identified more than one proper purpose for the admission of the evidence.
Clearly, the district court identified several proper purposes for the introduction of the
evidence. However, that does not mean it engaged in the “shotgun approach” of simply
naming every possible proper purpose. In fact, this Court previously has recognized that
the district courts are not required to pinpoint only one proper purpose for the admission
of evidence. Rolle, 2010 WY 100, ¶ 15, 236 P.3d at 268 n.3; Sturgis v. State, 932 P.2d
199, 203 (Wyo. 1997). The district court correctly identified the proper purposes for the
admission of the evidence and weighed the evidence in accordance with the Gleason
factors. The district court’s conclusions were reasonable under the circumstances, and
we do not find the district court abused its discretion.2

           Did the district court abuse its discretion when it allowed the jury to
          review a transcript of a telephone recording between the appellant and
                 the victim while the recording was being played at trial?

[¶12] During its case in chief, the prosecution played a recorded telephone conversation
between the appellant and the victim. The jury was provided with a transcript of the
conversation to review while the recording was played. The appellant objected to the use
of the transcript on the grounds that he did not believe the victim—who was testifying at
the time—knew if the transcript was an accurate reflection of the recording and that the


2
  Although we do not find the district court abused its discretion in its ultimate conclusion regarding the
admission of the evidence under W.R.E. 404(b), we do feel compelled to clarify one of the factors in the
Gleason analysis that was misapplied here. When determining the probative value of the evidence, the
district court must ask whether “other evidence [is] available.” Gleason, 2002 WY 161, ¶ 27, 57 P.3d at
342. Here, the district court analyzed whether other evidence of the uncharged misconduct was
available. The correct question, however, is whether other evidence of the proper purpose—i.e., motive,
intent, identity, etc.—is available. Mersereau v. State, 2012 WY 125, ¶ 26, 286 P.3d 97, 110 (Wyo.
2012). If it is, the uncharged misconduct becomes less probative.


                                                    7
members of the jury should form their own opinions about what was being said on the
recording. The district court overruled the appellant’s objection and informed the jury:

                     I would direct that after the recording is played, the
              transcripts will be collected from the members of the jury.
              And I would again specifically caution the members of the
              jury that even though the transcript is being given to you
              while you listen to the recording, it is only an aid to you in
              your consideration of the evidence, and you need to rely upon
              your own hearing and your own perception of this recording
              in connection with your actual evaluation and use of that
              evidence.

On appeal, the appellant argues that the district court abused its discretion when it
allowed the jury to look at the transcript because there is nothing in the record to indicate
the district court considered whether the transcript was reliable and consistent with the
actual conversation in the recording.

[¶13] “The admission of evidence, including the admission of transcripts to assist the
trier of fact, lies within the sound discretion of the trial court and will not be disturbed
absent a clear abuse of discretion.” Munoz v. State, 849 P.2d 1299, 1300 (Wyo. 1993).
While the transcripts in this case were not admitted into evidence, but only used as an aid,
the abuse of discretion standard of review still applies. See United States v. Jacob, 377
F.3d 573, 581 (6th Cir. 2004). This Court will not find that an abuse of discretion has
occurred, so long as “there exists a legitimate basis for the trial court’s ruling.” Foster v.
State, 2010 WY 8, ¶ 14, 224 P.3d 1, 7 (Wyo. 2010) (quoting Wimbley v. State, 2009 WY
72, ¶ 10, 208 P.3d 608, 611 (Wyo. 2009)). Further, even if the use of the transcript was
error, this Court will only reverse the appellant’s conviction if the error was prejudicial.
Reay v. State, 2008 WY 13, ¶ 8, 176 P.3d 647, 650 (Wyo. 2008). “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.

[¶14] The appellant argues that the district court abused its discretion when it
determined the jury could look at a transcript of the recorded telephone conversation
without the district court first making a record as to why the transcript was necessary,
accurate, and reliable. With respect to the accuracy and reliability of the transcript, the
appellant asserts the district court had a duty to examine the person who prepared the
transcript. However, this Court has never required the person who prepared the transcript
specifically to testify in order to lay a foundation for the accuracy of a transcript. Instead,
this Court has held that, “[w]hen testimony supplied by either the transcriber or a
participant in the conversation verifies the transcript’s accuracy, authentication is
satisfied.” Munoz, 849 P.2d at 1300 (emphasis added). Here, the victim, who was one of
the participants in the recorded telephone conversation, testified that she had reviewed


                                              8
the transcript and, to the best of her knowledge, it appeared to be an accurate reflection of
the conversation. Thus, the transcript was properly authenticated.

[¶15] Additionally, this Court has recognized that transcripts of a recording can be
useful to a jury. See Crisp v. State, 944 P.2d 1165, 1168 (Wyo. 1997); Munoz, 849 P.2d
at 1300. While there is nothing in the record to indicate exactly why the district court
believed the transcript would be beneficial to the jury, it is not outside the bounds of
reason to believe that it would be. We decline to find the district court abused its
discretion in allowing the jury to look at the transcript while it was contemporaneously
listening to the recording.

[¶16] It is worth noting that, even if the district court had abused its discretion in
allowing the jury to use the transcript, the appellant has failed to demonstrate how the
verdict may have been more favorable to him if the transcript had not been used. See
Reay, 2008 WY 13, ¶ 8, 176 P.3d at 650. The appellant has spent a significant portion of
his brief arguing that there is nothing in the record to show the transcript was accurate
and reliable; however, at no time in his argument does he ever claim the transcript is
inaccurate or unreliable. It is difficult to see how the appellant could be prejudiced by the
lack of a record regarding the accuracy of the transcript if the transcript is, in fact,
accurate.

         Was trial counsel ineffective because he requested a continuance and
         filed a waiver of speedy trial signed by the appellant, contrary to the
               appellant’s desire not to waive his right to a speedy trial?

[¶17] Approximately two weeks before the appellant’s trial was to begin, the
prosecution gave notice that it intended to introduce into evidence the recorded telephone
conversation between the appellant and the victim. The appellant’s counsel objected to
the notice and requested the evidence be excluded or, in the alternative, he be granted a
continuance of the trial so that he could consult with an expert regarding the recording.
The district court held a hearing on the matter and granted the appellant a continuance on
the condition that the appellant file a written waiver of his right to speedy trial. The next
day, the appellant filed a written waiver. Now, however, the appellant claims he did not
want to waive his right to a speedy trial and that he received ineffective assistance of
counsel when his trial attorney told the district court the appellant would waive that right
and filed a waiver to that effect.

[¶18] When reviewing a claim of ineffective assistance of counsel, we review the record
de novo. Mickelson v. State, 2012 WY 137, ¶ 16, 287 P.3d 750, 755 (Wyo. 2012). In
order to prevail on a claim of ineffective assistance of counsel, the appellant “must
demonstrate on the record that: 1) counsel’s performance was deficient and 2) prejudice
resulted.” Jenkins v. State, 2011 WY 141, ¶ 5, 262 P.3d 552, 555 (Wyo. 2011) (quoting
Dettloff v. State, 2007 WY 29, ¶ 17, 152 P.3d 376, 382 (Wyo. 2007)).


                                             9
             When reviewing a claim of ineffective
      assistance of counsel, the paramount determination is
      whether, in light of all the circumstances, trial
      counsel’s acts or omissions were outside the wide
      range of professionally competent assistance. Hirsch
      [v. State, 2006 WY 66], ¶ 15, 135 P.3d [586,] 593
      [(Wyo. 2006)]. We indulge a strong presumption that
      counsel rendered adequate assistance and made all
      significant decisions in the exercise of reasonable
      professional judgment. Id. Under the two-prong
      standard articulated in Strickland [v. Washington, 466
      U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
      (1984)], to warrant reversal on a claim of ineffective
      assistance of counsel, an appellant must demonstrate
      that his counsel failed to render such assistance as
      would have been offered by a reasonably competent
      attorney and that counsel’s deficiency prejudiced the
      defense of the case. Id. “The benchmark for judging
      any claim of ineffectiveness must be whether counsel’s
      conduct so undermined the proper functioning of the
      adversarial process that the trial cannot be relied on as
      having produced a just result.” Id., quoting Strickland,
      466 U.S. at 686, 104 S.Ct. [at 2064].

             The burden of proving that counsel was
      ineffective rests entirely on the appellant. Martinez v.
      State, 2006 WY 20, ¶ 23, 128 P.3d 652, 663 (Wyo.
      2006). The appellant must also demonstrate the
      existence of a reasonable probability that, absent the
      deficiency in counsel’s performance, the result of the
      proceedings would have been different. Id. A failure
      to make the required showing of either deficient
      performance or sufficient prejudice defeats an
      ineffectiveness claim. Id. An ineffectiveness claim
      may be disposed of solely on the ground of lack of
      sufficient prejudice. Id.

Dettloff, 2007 WY 29, ¶¶ 18-19, 152 P.3d at 382-83. We
have also stated that when assailing counsel’s assistance, an
appellant must provide more than mere speculation or
equivocal inferences. Duke v. State, 2004 WY 120, ¶ 36, 99



                             10
             P.3d 928, 943 (Wyo. 2004), cert. denied, 544 U.S. 1062, 125
             S.Ct. 2513, 161 L.Ed.2d 1113 (2005).

Jenkins, 2011 WY 141, ¶ 6, 262 P.3d at 555.

[¶19] Here, we can readily dispose of the appellant’s claim of ineffectiveness due to the
lack of a showing of sufficient prejudice. The appellant makes no argument whatsoever
about how the result of the proceedings against him would have been different had his
trial counsel not requested and received a continuance of the trial date. Instead, the
entirety of his argument regarding prejudice is that the continuance and waiver of speedy
trial “subjected him to further delay, incarceration, and anxiety.” This is an insufficient
showing of prejudice and, thus, we find the appellant did not receive ineffective
assistance of counsel.

                                    CONCLUSION

[¶20] The district court did not abuse its discretion when it determined that testimony of
previous violent acts committed by the appellant against the victim was admissible
under W.R.E. 404(b). Further, the district court did not abuse its discretion when it
allowed the jury to review a transcript of a recorded telephone conversation between the
appellant and the victim while the jury was actively listening to the recording. Finally,
the appellant did not receive ineffective assistance of trial counsel when his counsel
requested and was granted a continuance of the trial date so counsel could consult with
an expert witness. Affirmed.




                                           11
