               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 94

                                                            APRIL TERM, A.D. 2013

                                                                  August 7, 2013

MICHAEL JESSE MUNOZ,

Appellant
(Defendant),

v.                                                   S-12-0191

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel.
      Argument by Ms. Olson.

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

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.
VOIGT, Justice.

[¶1] A jury found the appellant guilty of three counts of first-degree sexual abuse of a
minor. On appeal, the appellant raises four separate allegations of error in the district
court. We will reverse on the single issue set forth below and remand the matter to the
district court for further proceedings.

                                                 ISSUE

[¶2] Did the district court abuse its discretion when, under the particular circumstances
of this case, it reversed its prior ruling and admitted certain uncharged misconduct
evidence under W.R.E. 404(b), such reversal occurring after the State had rested?

                                      STANDARD OF REVIEW

[¶3] Our standard for reviewing decisions regarding the admissibility of uncharged
misconduct evidence under W.R.E. 404(b) is 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).

                                                 FACTS

[¶4] On October 28, 2011, the appellant was arraigned in the district court on one count
of second-degree sexual abuse of a minor, and three counts of first-degree sexual abuse
of a minor. The alleged victim of all four crimes was the appellant’s eleven-year-old
niece. On October 10, 2011, the appellant filed a general discovery demand that included
a demand for notice of the State’s intent to introduce evidence under W.R.E. 404(b).1

1
    W.R.E. 404(b) reads as follows:

                          (b) Other crimes, wrongs, or acts. -- Evidence of other crimes,
                  wrongs, or acts is not admissible to prove the character of a person in
                  order to show that he acted in conformity therewith. It may, however, be
                  admissible for other purposes, such as proof of motive, opportunity,


                                                     1
The appellant’s discovery demand, including notice of the State’s intent to introduce
evidence under W.R.E. 404(b), was granted by an order of the district court filed on
November 12, 2011.

[¶5] More than three months later, and only a few days before trial, the State filed its
Notice of Intent to Introduce 404(b) Evidence. In that notice, the State indicated that it
intended, among other things, to call A.M. to testify as the victim of appellant’s
conviction of the crime of indecent liberties with a minor in 1994, about eighteen years
prior to the current event. In response, the appellant filed a Motion in Limine opposing
admission of the State’s evidence. A few days later, the appellant filed a lengthier
objection to admission. In his objection, the appellant analyzed the factors this Court set
forth in Gleason v. State, 2002 WY 161, ¶ 27, 57 P.3d 332, 342 (Wyo. 2002), for district
courts to follow in determining whether to admit uncharged misconduct evidence under
W.R.E. 404(b). In contesting admission of the evidence, the appellant focused upon his
lack of any opportunity at that late date to develop a response to the evidence, and upon
the unfair prejudice to him of telling the jury about an eighteen-year-old conviction for an
offense similar to the one presently charged.

[¶6] The State responded to the appellant’s motion and objection with a brief filed on
March 8, 2012. The State contended that the testimony about the prior events and
conviction was being offered to prove motive, to corroborate the victim’s testimony, to
show that the appellant followed a general course of conduct or plan with each victim,
and to prove the appellant’s identity as the perpetrator of the presently charged crime.

[¶7] On the first day of trial, prior to voir dire, the district court heard the appellant’s
objections to the uncharged misconduct evidence.2 As to the testimony of A.M. in regard
to the eighteen-year-old conviction, the judge had this to say:

                As to the next matter, now adult witness, AM for who was the
                victim in same or similar circumstance, and I take all that on
                face value, the Court in weighing that evidence and the effect
                of that evidence finds today that that evidence must be
                excluded. As an offer of 404(b) before I got to the prejudice I


                intent, preparation, plan, knowledge, identity, or absence of mistake or
                accident, provided that upon request by the accused, the prosecution in a
                criminal case shall provide reasonable notice in advance of trial, or
                during trial if the court excuses pretrial notice on good cause shown, of
                the general nature of any such evidence it intends to introduce at trial.
2
  The hearing on the admissibility of the State’s proferred uncharged misconduct evidence actually began
on the Friday afternoon just prior to the Monday morning trial. During that hearing, the judge
complained that the issue was being presented so late in time, especially because his ruling on the 404(b)
issue would impact his ruling on proposed redactions to be made in interview transcripts.


                                                    2
have to find the factors I would have to consider, I have to
find a stated purpose, and the stated purpose the one closest
enough relating to this case is same or similar act occurred
before, so he couldn’t deny it, I suppose. There is no way
after 18 years I could find that his having been convicted of
that are anything other than attempts to sway the jury, that
for which 404(b) prohibits. He did it before, ladies and
gentlemen of the jury. He did it in a same or similar
circumstance. He’s outright denied he did it.

       Now, I’m taking into account because the [other]
testimony on the same thing, I have to also take into account
[she] argued, [the prosecutor], that he may be a groomer of
some kind, somebody -- not just propensity evidence, but
instead, was setting it up.

        Again, I find difficulty with the proposition under the
circumstances because the setup, if I allowed that be -- that he
lied to the parents -- not about being a sex offender at all, but
kind of a sex offender he was in order to groom somebody,
five years or four years later with no intervention in between.
In fact, I adopted this from his interview, he has kids of his
own, so no reasonable juror, I think, would be in the first
instance connecting up that lie about being a sex offender for
what reasons he’s a sex offender. He didn’t lie about the
reasons; the underlying offense. There’s no rational way to
tie that up and make it simply grooming or access or
opportunity, which I think is the exception, or the purpose,
and under the political [sic] standard I have to find purpose
first.

      I’ll go further though and find this, that as to the
evidence, a conviction for a sex offense 18 years ago, lie
about being a sex offender and status of being a sex
offender every one of those under the circumstances
presented here in my view unfairly. Without any hesitation,
I have to say, that are prejudicial -- extraordinarily
prejudicial, even if I accepted the purpose. I know no one
wants a record where the judge ruled in the alternative at that
time.

       What I’m saying, first off, the purpose offered does
not rationally fit; in other words, what purpose does it serve


                               3
              to put it in. It serves only the purpose that I reacted to begin
              with; that is, it’s propensity evidence, and I can’t allow that.
              Even if I got past the purpose, at this juncture, trying him
              for a sexual assault of a 9-year-old before and the nature of
              that act, the reprehensible conduct of that is not something I
              think the jury would be able to set aside. That’s what
              they’re supposed to be able to do if it gets in following a
              limiting instruction in that regard.

                     That results in the motion in limine being granted so
              that the evidence of previous conviction for indecent liberties,
              the underlying statements of AM that make out that
              conviction, and status as a registered sex offender are not to
              be elicited by counsel or the State in their case in chief. I
              understand that would be mostly different witnesses.

                     In any event, investigating officer or otherwise is not
              to address those matters.

                     The defense motion, or separate motion of the defense
              also asks that the evidence of sex offense and the evidence of
              registration be excluded, and that motion’s granted. There’s
              extraordinary prejudice associated with those matters on the
              face of the record today. (Emphasis added.)

[¶8] The district court concluded this ruling with an explanation that, were
circumstances to change during the trial, and counsel for either side wished to seek
approval to introduce the excluded evidence, counsel should approach the bench and
inquire privately, rather than in front of the jury. The district court’s perception that the
matter would again arise was realized fairly quickly, when, after voir dire and opening
statements, the State asked outside the jury’s presence to be allowed to introduce A.M.’s
testimony. The State reasoned that “when we addressed this previously that the victim’s
credibility had not yet been attacked, and the defense attacked the victim’s credibility in
voir dire and in the opening statement[.]” After discussing for some time with counsel
how the appellant’s prior conviction could affect this victim’s credibility, and whether
such was even an appropriate use of W.R.E. 404(b), the district court again denied the
State’s request on the ground that “[i]t is too soon.” The import of the district court’s
remarks was that, even if uncharged misconduct evidence could be presented to
corroborate a victim’s testimony, this particular victim’s credibility had not yet been
tested sufficiently to admit such evidence.

[¶9] During its case-in-chief, the State called twelve witnesses to testify, including the
alleged victim, who was the State’s final witness. Defense counsel did not cross-examine


                                             4
the alleged victim. At that point, the State rested its case. After a brief hiatus, during
which the district court denied the appellant’s motion for judgment of acquittal, the
prosecutor announced her intention to “make one last attempt” at getting the W.R.E.
404(b) evidence admitted. After some discussion about the effect of the State having
rested its case, the district court allowed the State to renew its request, opining that “[i]t
was clear I was going to have to address it again.”

[¶10] In support of her third attempt to gain approval of admission of the eighteen-year-
old conviction, the prosecutor presented a relatively short argument, which is capsulated
in the following quotation:

                     [PROSECUTOR]: Your Honor, I appreciate you
              entertaining this motion again. I am requesting the Court
              allow the State to present the testimony of AM. I think it has
              become abundantly clear that the victim -- the victim’s
              credibility and corroborating the victim’s statement is very
              important, in a case like this.

                      I renew my motion as it relates to motive also, and rely
              upon what I previously argued as the reason that motive and
              victim corroboration are important. This Court has asked the
              State over and over why is this not propensity evidence, and
              while I’ve indicated that the Court is dancing around the
              issue, it was actually I who was dancing around the issue.

                     This is propensity evidence. All 404(b) is propensity
              evidence; however, the Court directs the jury not to consider
              it as propensity evidence, but to consider it for the proper
              purpose. The State is requesting the testimony of AM be
              allowed.

[¶11] This brief presentation was followed by the following colloquy between defense
counsel and the judge:

                      [DEFENSE COUNSEL]: Your Honor, the Court has
              ruled on this. This will be the third time the Court’s asked to
              rule on it. I think the Court’s ruled correctly. It is -- a lot of
              this is up to the Court’s discretion. I will tell -- I mean, since
              the last time this motion was made there’s been even less of
              any allegations that were challenging her truthfulness. Every
              witness’ credibility is. It’s always that way, but we didn’t
              even cross-examine [the alleged victim]. I mean, I think if



                                              5
             anything, we’ve tailored our defense to the instructions of the
             Court in understanding where the Court is on 404(b).

                    If the Court were to allow this right now I’m not going
             to challenge you. I think I would be in a position -- in a right
             position to ask for a mistrial because our whole strategy has
             been based on one direction and --

                    THE COURT: Well, it’s a direction in fairness that
             you learned about on Monday morning of trial; isn’t that
             correct, Counsel?

                    [DEFENSE COUNSEL]: Yes, but everything from
             voir dire to opening to witnesses, how we’re going to handle
             the witnesses, what we’re going to ask the witnesses,
             everything we’ve done up to this point has been based on the
             fact we’re not going to have 404(b).

                    THE COURT: As a general proposition you believe as
             things change during the trial your -- the pretrial rulings that
             went for you or against you, either one, are grounds for a
             mistrial; in other words, you weren’t prepared to try the case
             with or without the 404(b), two entirely different cases.

                     [DEFENSE COUNSEL]: Yes. The questions we have
             put to the witnesses would have been completely different.

[¶12] In granting the State’s request, the Court concluded that

             as to the prior event and consequence the prejudice here is
             now outweighed by the probative value for purposes of intent,
             of identity of motive to assault a child of this age and so forth,
             and to a lesser degree, but clearly, to evaluate the
             corroboration and corroborate the victim’s testimony.

[¶13] This issue is presented as a W.R.E. 404(b) issue--did testimony presented during
the State’s case-in-chief justify the district court’s decision to admit the uncharged
misconduct evidence? More specifically, did the appellant’s denial of guilt during his
police interview, which interview the State presented to the jury, along with expert
testimony that someone’s DNA besides the appellant’s may also have been present on the
alleged victim’s clothing, justify reversal of the not-yet-cold determination that the
uncharged misconduct evidence was more prejudicial than probative, and was now,
rather than being merely propensity evidence, evidence of motive and corroboration of


                                             6
the alleged victim’s testimony?3 The focal question, however, would seem to fit any
number of pretrial evidentiary rulings that impact the way a defendant presents his or her
case to the jury. Stated more directly, the question here is the effect on a defendant’s
right to a fair trial of the district court reversing an evidentiary ruling after the defendant
has already acted to his detriment in reliance upon that ruling.

[¶14] The State contends that it was not error for the district court to reverse itself on the
evidentiary ruling because “things had changed.” Specifically, the State argues that,
when the district court first ruled to deny admission of the evidence, both the district
court and the State were unaware that the appellant was going to deny guilt, and that he
was going to question the alleged victim’s credibility. This, of course, is nonsense. The
appellant had plead not guilty, he had denied the accusations in a recorded interview,
which interview the State intended to, and did present, to the jury. There was never any
hint that the appellant’s defense was going to be anything other than “I didn’t do it,”
which defense necessitated questioning the alleged victim’s credibility.

[¶15] Having won the W.R.E. 404(b) battle in regard to A.M.’s uncharged misconduct
testimony, the appellant went through voir dire, opening statements, and the State’s entire

3
  As we have previously pointed out, making a distinction between “propensity” evidence and evidence
that simply corroborates the victim’s testimony is not meaningful:

                                The First District Court of Appeal allowed the admission
                       of [the daughter’s] testimony [] because it established a pattern
                       of criminality. Though rejecting the district court’s rationale, the
                       Florida Supreme Court affirmed the result, holding that the better
                       view was to treat the evidence as relevant to corroborate the
                       victim’s testimony, not to establish a pattern of criminality.
                       However, the court was simply playing a game of semantics.
                       There is no difference, in effect, between admitting evidence to
                       show a pattern of criminality and admitting evidence to
                       corroborate the victim’s testimony. The evidence was relevant
                       to corroborate the victim’s testimony because it established a
                       pattern of criminality. The effect of the court’s decision is to
                       allow evidence to establish that the defendant had the propensity
                       to commit the offense in order to bolster the credibility of the
                       victim. Whether it is to corroborate the victim’s testimony, or to
                       establish a pattern of criminality, the evidence will be admitted
                       solely to show the defendant’s propensity to commit crimes,
                       which is strictly prohibited by section 90.404(2).

               John McCorvey, Note, Corroboration or Propensity? An Empty Distinction in
               the Admissibility of Similar Fact Evidence, 18 Stetson L.Rev. 171, 187-88 (1988)
               (footnote omitted). This insightful analysis underscores the difficult line-drawing
               inherent in exercising discretion under Rule 404(b).

Hart v. State, 2002 WY 163, ¶ 28 n.6, 57 P.3d 348, 358 n.6 (Wyo. 2002).


                                                    7
case-in-chief without addressing the “prior bad act” and without tailoring his defense to
address that damning fact. Most importantly, defense counsel did not cross-examine the
alleged victim for fear of “opening the door” to A.M.’s testimony. Then, when it was too
late for all of that to be undone, the district court reversed its previous rulings and
admitted the evidence. Understandably, defense counsel had not presented the case so as
to include an approach to this evidence. We conclude that, regardless of the
righteousness of the final ruling as a matter of W.R.E. 404(b) jurisprudence, the ruling
was unfairly prejudicial to the appellant because it deprived him of a fair trial.

[¶16] Although we have not previously addressed the specific question now before the
Court--the effect upon the appellant’s right to a fair trial of this midstream change of
horses--we have many times discussed the significance of providing a defendant a
constitutionally fair trial. See, e.g., Harlow v. State, 2005 WY 12, ¶ 5, 105 P.3d 1049,
1055 (Wyo. 2005); Williams v. State, 2004 WY 117, ¶ 21, 99 P.3d 432, 445 (Wyo. 2004);
Strickland v. State, 2004 WY 91, ¶ 44, 94 P.3d 1034, 1053 (Wyo. 2004); Belden v. State,
2003 WY 89, ¶ 9, 73 P.3d 1041, 1049 (Wyo. 2003); Rodriguez v. State, 962 P.2d 141,
145 (Wyo. 1998); Fortner v. State, 932 P.2d 1283, 1284 (Wyo. 1997); Daniel v. State,
923 P.2d 728, 733 (Wyo. 1996); and Miller v. State, 904 P.2d 344, 352 (Wyo. 1995).
What is striking about these cases is that, although we recognize the right to a fair trial,
we almost never find that a trial was unfair--no matter what happened! The same can be
said where, although the cases again are not strictly on point, they deal with the
fundamental right of a defendant to present a defense, which is the right implicated by
what happened in the instant case. See, e.g., Gruwell v. State, 2011 WY 67, ¶ 11, 254
P.3d 223, 227 (Wyo. 2011); Bruyette v. State, 2011 WY 99, ¶ 10, 253 P.3d 512, 514
(Wyo. 2011); Breazeale v. State, 2011 WY 10, ¶ 33, 245 P.3d 834, 843 (Wyo. 2011);
Bush v. State, 2008 WY 108, ¶ 58, 193 P.3d 203, 217 (Wyo. 2008); Person v. State, 2004
WY 149, ¶ 14, 100 P.3d 1270, 1277 (Wyo. 2004); Dysthe v. State, 2003 WY 20, ¶ 5, 63
P.3d 875, 879 (Wyo. 2003); Ramirez v. State, 994 P.2d 970, 973 (Wyo. 2000); and Herdt
v. State, 816 P.2d 1299, 1302 (Wyo. 1991).

[¶17] There is a similar list of cases where this Court recognizes the defendant’s
constitutional right to confront and cross-examine adverse witnesses--once again, a right
affected in this case by the addition of an evidentiary fact by the district court’s change of
mind, after the State’s witnesses had already testified and been subject to cross-
examination. See, e.g., Miller v. State, 2006 WY 17, ¶ 7, 127 P.3d 793, 796 (Wyo.
2006); Hannon v. State, 2004 WY 8, ¶ 16, 84 P.3d 320, 329 (Wyo. 2004); Amin v. State,
686 P.2d 593, 595 (Wyo. 1984); Mason v. State, 631 P.2d 1051, 1055 (Wyo. 1981); and
Parker v. State, 24 Wyo. 491, 500, 161 P. 552, 554 (Wyo. 1916).

[¶18] As mentioned above, this Court has rarely reversed a conviction based upon a “fair
trial” argument. But surely it is much more important that we jealously guard a criminal
defendant’s right to a fair trial than that we jealously guard the State’s ability to introduce
uncharged misconduct evidence, especially in the way it happened in this case. The last-


                                              8
cited case in the paragraph above may have said it as well as it can be said: “[I]f it clearly
appears from the record that such fundamental and prejudicial error has been committed
as to amount to a denial of substantial justice, or to deprive the defendant of a fair trial,
the court should not hesitate to reverse the judgment and grant a new trial[.]” Parker,
161 P. at 554.

[¶19] The district court recognized and gave special attention to the extremely
prejudicial nature of uncharged misconduct evidence, and forbade its introduction. That
ruling determined how the appellant presented his case throughout voir dire, opening
statements, and the State’s case-in-chief, including how counsel did or did not cross-
examine witnesses. When the game’s rules changed, those things could not be undone.
In addition, the “springing” of such surprise evidence in so dramatic a fashion--a re-
opening of the evidence--surely exacerbated an additional problem:

              The trial court’s error was compounded herein by the fact that
              the lower court changed the evidentiary rules mid-trial. In
              accordance with the trial court’s pre-trial evidentiary ruling,
              Brewer’s counsel made no mention of pre-accident drug use
              and arrests during opening arguments and direct examination
              of his primary witness, Kimberly Porche. Then, after direct
              examination of Mrs. Porche, the trial court changed the
              evidentiary rules and allowed defense counsel for the first
              time to introduce evidence related to Brewer’s pre-accident
              drug use and arrests. The effect was to prejudice Brewer’s
              counsel and witness and to give the appearance that they were
              hiding information from the jury.

Brewer v. J.B. Hunt Transport, Inc., 9 So.3d 932, 944 (La.App. 1 Cir. 2009), affirmed in
part and reversed in part by Brewer v. J.B. Hunt Transp., Inc., 35 So.3d 230 (La. 2010).

[¶20] Under the particular circumstances that existed here, the delayed admission of the
uncharged misconduct evidence was an abuse of discretion because it was not
reasonable--it was not sound judgment under the circumstances. The W.R.E. 403
balancing had not changed; the evidence remained more prejudicial than probative. The
necessity, if any, to introduce the evidence to corroborate the alleged victim’s statements
had not changed because the defense--“I didn’t do it”--had not changed. The alleged
victim was not even cross-examined, meaning the need to corroborate her testimony had
not changed.




                                              9
                                    CONCLUSION

[¶21] In reaching the conclusion that the district court abused its discretion when it
changed its prior ruling and allowed the evidence, we do not suggest that a district court
may never reconsider a prior ruling on 404(b) evidence and allow evidence it previously
ruled inadmissible. To the contrary, a district court can and should reconsider a prior
ruling when good reason appears on the record and no prejudice results. Where, as here,
however, the record does not show good reason existed and the evidence was clearly
prejudicial, it was not reasonable for the district court to reverse its ruling.

[¶22] Reversed and remanded to the district court for further proceedings.




                                           10
