                IN THE SUPREME COURT, STATE OF WYOMING
                                             2015 WY 103

                                                            APRIL TERM, A.D. 2015

                                                                  August 12, 2015
GRADY LEROY HODGE,

Appellant
(Defendant),

v.
                                                      S-14-0204, S-14-0205
THE STATE OF WYOMING,

Appellee
(Plaintiff).


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

Representing Appellant:
      Office of the State Public Defender: Diane M. Lozano, State Public Defender;
      Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Assistant Appellate
      Counsel. Argument by Ms. Bennett.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Jessica Y.
      Frint, Assistant Attorney General. Argument by Ms. Frint.

Before BURKE, C.J., and HILL, KITE,* DAVIS, and FOX, JJ.
Justice Kite retired effective August 3, 2015.


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.
FOX, Justice.

[¶1] Grady Leroy Hodge was convicted of two counts of first-degree sexual abuse of a
minor for sexually assaulting his teenage daughter. Prior to trial, the district court ruled
certain uncharged misconduct evidence admissible, including testimony presented by an
older daughter. On appeal, Mr. Hodge argues that the district court abused its discretion
by allowing the evidence. After trial, Mr. Hodge’s wife discovered some pictures that
may have assisted in Mr. Hodge’s defense. Mr. Hodge’s attorney moved for a new trial
pursuant to W.R.Cr.P. 33(c), which the district court denied. Mr. Hodge now alleges that
his trial attorney was ineffective for not uncovering the evidence in time to be used at
trial. Finally, Mr. Hodge alleges that his due process rights were violated when his
appeal was delayed due to the court reporter’s untimely filing of the transcripts from the
district court proceedings. We affirm.

                                               ISSUES

[¶2] 1. Did the district court abuse its discretion in admitting uncharged misconduct
evidence at trial?

        2. Did Mr. Hodge’s trial counsel provide ineffective assistance?

       3. Were Mr. Hodge’s due process rights violated as a result of the court
reporter’s untimely filing of the transcripts from the proceedings below?

                                               FACTS

[¶3] Mr. Hodge was convicted of two counts of sexual abuse of a minor in the first
degree for sexually assaulting his teenage daughter, R.H., on two separate occasions. 1
Aside from the dates, the language included in the Information is identical for each count:

                On or between the 1st day of May, 2012, and the 31st day of
                August, 2012,[2] [Mr. Hodge] did, at a time when he was
                eighteen (18) years of age or older, inflict sexual intrusion on
                a victim; namely: R.H., who was less than eighteen (18) years
                of age, and while being the victim’s legal guardian or an
                individual specified in W.S. 6-4-402, contrary to W.S. §6-2-
                314(a)(ii)--SEXUAL ABUSE OF A MINOR IN THE FIRST
                DEGREE[.]
1
  Mr. Hodge was originally charged with two counts of sexual abuse of a minor in the first degree and one
count of sexual abuse of a minor in the third degree. At trial, however, the prosecution moved forward on
only the two charges of sexual abuse of a minor in the first degree.
2
  The other count of sexual abuse of a minor in the first degree charges that the sexual abuse took place
between April 2012 and August 2012.


                                                   1
[¶4] During discovery, Mr. Hodge filed a demand for notice of the State’s intent to
introduce evidence under W.R.E. 404(b). The State complied and filed its notice
outlining the evidence that it intended to introduce, including prior incidents of sexual
abuse R.H. suffered at the hands of Mr. Hodge while the family was living in Texas and
after they moved to Wyoming; and prior acts of sexual abuse committed by Mr. Hodge
against his older daughter, C.T., which also occurred while the family was living in
Texas. The district court held a hearing and issued a lengthy decision letter allowing the
State to introduce much, but not all, of the evidence outlined in its notice.

[¶5] As part of his trial strategy, Mr. Hodge attempted to demonstrate that one of the
incidents of sexual assault charged could not have occurred within the time period
asserted. This strategy revolved around a table made by Mr. Hodge and R.H. R.H.
testified that one of the charged incidents occurred while Mr. Hodge and R.H. were
working on a table they were making for R.H.’s mother (Ms. Hodge) in the family’s
shed. At trial, Mr. Hodge’s attorney elicited testimony from various witnesses that the
table had been finished before the dates of the charged conduct. During her testimony,
Ms. Hodge produced a picture of the alleged table when it was finished, which was dated
prior to the charged conduct. After the jury convicted Mr. Hodge, Ms. Hodge claims to
have uncovered multiple additional pictures on the family computer demonstrating that
the table had, in fact, been finished and placed in the family’s home prior to the charged
conduct. Mr. Hodge moved for a new trial pursuant to W.R.Cr.P. 33(c) on the basis of
the newly discovered evidence. The district court denied the motion, finding that Mr.
Hodge failed to establish each of the factors required to justify a new trial.

[¶6] Mr. Hodge filed his first notice of appeal on October 11, 2013. In a letter bearing
the same date, Mr. Hodge’s counsel requested that the court reporter prepare and file the
transcripts for “all proceedings that you may have reported in this matter.” At the time
Mr. Hodge filed his notice of appeal, his motion for a new trial was still pending in the
district court. Upon denial of his motion for a new trial, Mr. Hodge filed another notice
of appeal on December 13, 2013, and a certification concerning the transcript on
December 18, 2013. The court reporter filed three requests for an extension of time to
file the transcripts―the first two requested ninety-day extensions and the third requested
a thirty-day extension. The district court granted all three extensions. On August 7,
2014, the court reporter filed a notice stating that all of the transcripts had been filed.

[¶7] On appeal, Mr. Hodge argues that the district court abused its discretion by
allowing the uncharged misconduct evidence to be presented to the jury. He also argues
that he received ineffective assistance of counsel due to his trial attorney’s failure to
uncover the pictures in time to be used at trial, and that his due process rights were
violated by the court reporter’s delay in filing the transcripts for the appeal.




                                            2
                                      DISCUSSION

I.     Did the district court abuse its discretion in admitting uncharged misconduct
       evidence at trial?

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

[¶9]    W.R.E. 404(b) provides, in pertinent part:

              Evidence of other crimes, wrongs, or acts is not admissible to
              prove the character of a person in order to show that he acted
              in conformity therewith. It may, however, be admissible for
              other purposes, such as proof of motive, opportunity, intent,
              preparation, plan, knowledge, identity, or absence of mistake
              or accident[.]

This Court has established a “mandatory procedure” for testing the admissibility of
uncharged misconduct evidence pursuant to W.R.E. 404(b):

              1) [T]he evidence is offered for a proper purpose; 2) the
              evidence is relevant; 3) the probative value of the evidence is
              not substantially outweighed by its potential for unfair
              prejudice; and 4) upon request, the trial court instructs the
              jury that the similar acts evidence is to be considered only for
              the proper purpose for which it was admitted.


                                             3
Vigil v. State, 926 P.2d 351, 357 (Wyo. 1996), as modified by Howard v. State, 2002 WY
40, ¶¶ 22-23, 42 P.3d 483, 490-91 (Wyo. 2002). Mr. Hodge only argues on appeal that
the district court abused its discretion when it determined that the probative value of the
uncharged misconduct evidence was substantially outweighed by its potential for unfair
prejudice. In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002), we further
refined our Vigil test and required trial courts to consider specific factors when balancing
probative value versus unfair prejudice.

                    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. 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?

                     . . . 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
                      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.

Id. at ¶ 27, 57 P.3d at 342-43. While trial courts are not required to make express
findings on each factor, they must provide an adequate record for this Court to review.
Id. at ¶ 28, 57 P.3d at 343.

[¶10] In this case, the district court did make express findings on each Gleason factor
and determined that the probative value of the uncharged misconduct evidence was not
substantially outweighed by its potential for unfair prejudice. The district court found
that the prior bad acts were no more serious or reprehensible than the charged acts; that
the victims’ statuses as minors made them sympathetic, but because one of the victims of
the uncharged acts, R.H., was the same person as the victim in the charged acts, the jury
would not be tempted to punish Mr. Hodge for the uncharged misconduct; 3 and that the
evidence was more probative of motive, intent, and course of conduct than it was of “bad
character and illegitimate inferences.” The district court did not abuse its discretion by
concluding as it did. We affirmed the same court when it provided a similar analysis in
Huckfeldt v. State, 2013 WY 29, ¶¶ 22-25, 297 P.3d 97, 103-04 (Wyo. 2013). The
district court executed the required analysis, and while we may have come to a different
conclusion concerning whether the probative value was substantially outweighed by the
prejudicial effect, we cannot say that the district court’s determination was unreasonable
or an abuse of discretion.

II.   Did Mr. Hodge’s trial counsel provide ineffective assistance?

[¶11] “‘Claims of ineffective assistance of counsel involve mixed questions of law and
fact[.]’ Osborne v. State, 2012 WY 123, ¶ 17, 285 P.3d 248, 252 (Wyo. 2012). We

3
 See Heywood v. State, 2009 WY 70, ¶ 12, 208 P.3d 71, 74 (Wyo. 2009) (finding that because the victim
of the uncharged acts was the same person as the victim in the charged acts, she was no more
sympathetic).


                                                 5
review such claims de novo.” Ortega-Araiza v. State, 2014 WY 99, ¶ 5, 331 P.3d 1189,
1193 (Wyo. 2014).

[¶12] To determine whether a defendant has received effective assistance of counsel, we
employ a two-prong test. Frias v. State, 722 P.2d 135, 145 (Wyo. 1986). The burden is
on the defendant to establish, first, that counsel’s performance was deficient, and second,
that the defendant was prejudiced as a result of the deficient performance. Id.; Ortega-
Araiza, 2014 WY 99, ¶ 6, 331 P.3d at 1193.

[¶13] Mr. Hodge argues that he received ineffective assistance of counsel when his trial
attorney failed to uncover photographs stored on Mr. and Ms. Hodge’s home computer
that may have assisted in his defense. In his affidavit requesting that this Court remand
the case for further fact-finding pursuant to W.R.A.P. 21, Mr. Hodge stated:

             My attorney did not obtain the pictures[’] metadata showing
             the dates the table was finished, which proved I could not
             have been in the shed with my daughter when she said I was.
             He did not have this evidence available until after trial when
             my wife brought it to him. The information could have easily
             [been] obtained by the investigator.

In Frias, we relied on the United States Supreme Court’s decision in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether
an attorney’s investigation was adequate.

             “* * * [S]trategic choices made after less than complete
             investigation are reasonable precisely to the extent that
             reasonable professional judgments support the limitations on
             investigation. In other words, counsel has a duty to make
             reasonable investigations or to make a reasonable decision
             that makes particular investigations unnecessary. * * *

             The reasonableness of counsel’s actions may be determined
             or substantially influenced by the defendant’s own statements
             or actions. Counsel’s actions are usually based, quite
             properly, on informed strategic choices made by
             the defendant and on information supplied by the defendant.
             * * * [W]hat investigation decisions are reasonable depends
             critically on such information.”

722 P.2d at 145 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066).




                                            6
[¶14] It is true that the photographs likely could have been easily uncovered by the
investigator or trial counsel himself had either been aware they existed. However, there
is nothing in the record to indicate that either trial counsel or the investigator knew that
the Hodges had these pictures in their possession. In fact, at the hearing on Mr. Hodge’s
motion for a new trial, Ms. Hodge testified that she had only become aware of the
photographs while looking through her computer after the verdict was delivered. Trial
counsel’s failure to explore the Hodges’ home computer for pictures of the table was not
unreasonable considering the record does not indicate he was informed that such
photographs existed. Mr. Hodge was aware that the date range charged in one of the
counts was at issue, and he had every opportunity to scour his computer for pictures of
the table or, at the very least, inform his attorney that such pictures may exist. The record
does not indicate that he did either of these things. “When a client has failed to apprise
his counsel of information crucial to his defense, we decline to find counsel’s failure to
act upon such undisclosed information a basis for a new trial on the grounds of
ineffective assistance of counsel.” United States v. Marcano-Garcia, 622 F.2d 12, 18
(1st Cir. 1980).

[¶15] Even if we were to determine that Mr. Hodge’s trial counsel acted deficiently, Mr.
Hodge has failed to demonstrate that he was prejudiced by the allegedly deficient
performance. Frias, 722 P.2d at 145. Mr. Hodge asserts only that he “was prejudiced, as
he was precluded from introducing evidence crucial to his defense on one count.” Mr.
Hodge has not met his burden of demonstrating that the outcome of the trial would have
been different had the evidence been introduced at trial. Frias, 722 P.2d at 146. A
photograph of the finished table was introduced to the jury at trial, along with testimony
from Ms. Hodge explaining the date the photograph was taken as well as its placement.
If one picture was insufficient to convince the jury of Mr. Hodge’s innocence, it is
unlikely that many pictures of the same table would do so. We find that Mr. Hodge’s
trial attorney effectively defended him.

III. Were Mr. Hodge’s due process rights violated as a result of the court reporter’s
     untimely filing of the transcripts?

[¶16] Mr. Hodge argues that the untimely filing of the transcripts inordinately delayed
his appeal and deprived him of his due process rights.

              [C]ourts have recognized that an appeal that is inordinately
              delayed is as much a “meaningless ritual” as an appeal that is
              adjudicated without the benefit of effective counsel or a
              transcript of the trial court proceeding.        Among the
              circumstances that can lead to a deprivation of due process
              are excessive delays in furnishing transcripts to be used on
              appeal.



                                             7
Daniel v. State, 2003 WY 132, ¶ 44, 78 P.3d 205, 219 (Wyo. 2003) (citations omitted).
To determine whether a delay rises to the level of a due process violation, we have
adopted a modified version of the test set forth in Barker v. Wingo, 407 U.S. 514, 530, 92
S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). Daniel, 2003 WY 132, ¶ 43, 78 P.3d at 218.
The four-part test considers “the length of the delay, the reason for the delay, the
defendant’s diligence in pursuing the right to appeal, and the prejudice to the defendant.”
Id.

[¶17] “The first factor in the balancing test is the length of the appellate delay. ‘Only
passage of an inordinate amount of time triggers due process concern[s].’ Therefore, if a
petitioner cannot establish at least some degree of inordinate delay, the court need not
inquire into the other factors.” Harris v. Champion, 15 F.3d 1538, 1559-60 (10th Cir.
1994) (citations omitted). While we are not inclined to set forth an inflexible length of
time that constitutes inordinate delay, it seems appropriate to judge appellate delay by the
same presumptive standard we utilize in our speedy trial jurisprudence. Id. at 1560. We
have held that some protracted delays are presumptively inordinate or unreasonable.
Boucher v. State, 2011 WY 2, ¶ 11, 245 P.3d 342, 349 (Wyo. 2011) (2,971 days);
Strandlien v. State, 2007 WY 66, ¶ 9, 156 P.3d 986, 990 (Wyo. 2007) (762 days); Berry
v. State, 2004 WY 81, ¶ 34, 93 P.3d 222, 232 (Wyo. 2004) (720 days). Other delays,
however, are not long enough to mandate the presumption, but may still require further
analysis. Potter v. State, 2007 WY 83, ¶ 35, 158 P.3d 656, 665 (Wyo. 2007) (delay of
362 days warrants examination of other Barker factors); Whitney v. State, 2004 WY 118,
¶ 40, 99 P.3d 457, 471 (Wyo. 2004) (delay of 374 days sufficient to trigger further
analysis); Osborne v. State, 806 P.2d 272, 277 (Wyo. 1991) (delay of 244 days was
significant enough to trigger further analysis). In this case, we find that the delay was not
significant enough to trigger due process concerns, and we therefore refrain from
engaging in an analysis of the remaining Barker factors.

[¶18] Mr. Hodge filed his first notice of appeal on October 11, 2013, along with a
certification concerning the transcript. However, just prior to filing his notice of appeal,
Mr. Hodge filed a motion for a new trial pursuant to W.R.Cr.P. 33(c). The version of
W.R.A.P. 2.04 4 in effect at the time provided: “A notice of appeal filed prematurely shall
be treated as though filed on the same day as entry of the appealable order[.]” See also
W.R.A.P. 2.03. At the time he filed his first notice of appeal, Mr. Hodge’s motion for a
new trial was still pending in district court. Thus, his notice of appeal was premature.
Downs v. State, 581 P.2d 610, 612 (Wyo. 1978). We must therefore consider the date of
the district court’s order denying Mr. Hodge’s motion for a new trial, December 11,
2013. 5 Pursuant to W.R.A.P. 2.06, the court reporter was required to file the transcript
within sixty days of the date Mr. Hodge’s notice of appeal became effective. The

4
 W.R.A.P. 2.04 has been amended effective July 1, 2015.
5
 Mr. Hodge filed his second notice of appeal and certification of transcript on December 13, 2013 and
December 18, 2013, respectively.


                                                 8
transcript should have been filed by February 9, 2014. The transcript was filed 179 days
after the required deadline on August 7, 2014. While we do not condone and, indeed, are
disturbed by the court reporter’s unwillingness or inability to comply with our appellate
rules, 6 a delay of 179 days to process an appeal is not significant enough to implicate due
process. See Walters v. State, 2004 WY 37, ¶ 11, 87 P.3d 793, 795 (Wyo. 2004) (finding
a delay of 235 days not significantly long); Taylor v. State, 2001 WY 13, ¶ 6, 17 P.3d
715, 718 (Wyo. 2001) (finding a delay of 236 days not presumptively prejudicial or
significantly long).

                                            CONCLUSION

[¶19] We find that the district court did not abuse its discretion in admitting the
uncharged misconduct evidence; Mr. Hodge had effective assistance of counsel at the
trial level; and Mr. Hodge did not suffer a denial of due process as a result of the
untimely filing of the transcripts for his appeal. Affirmed.




6
  The court reporter did file three requests for extensions of time, which the district court granted.
However, at the time, our rules of appellate procedure did not allow a district court to grant extensions to
court reporters. We have since amended our rules and now allow a court reporter to obtain an extension
under certain circumstances. W.R.A.P. 2.06(b), effective July 1, 2015.


                                                     9
