                IN THE SUPREME COURT, STATE OF WYOMING

                                         2016 WY 62

                                                              APRIL TERM, A.D. 2016

                                                                     June 22, 2016

RICKY L. DOUGHERTY,

Appellant
(Defendant),

v.                                                   S-15-0218

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                      The Honorable Catherine R. Rogers, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
      N. Olson, Chief Appellate Counsel; and Eric M. Alden, Senior Assistant Appellate
      Counsel. Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne M. Martens, Senior Assistant Attorney General; and
      Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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] After a jury convicted Ricky Lee Dougherty of one count of child
endangering/obscene act for exposing himself in front of an eleven-year-old girl and then
masturbating in a Cheyenne park, Mr. Dougherty contends on appeal that the district
court did not properly instruct the jury as to the definition of the word “presence” as it is
used in the charging statute, Wyo. Stat. Ann. § 6-4-403(b)(iii). Also, Mr. Dougherty
argues that the district court improperly admitted evidence of his prior bad acts in the
form of court documents rather than testimony. We will reverse.

                                          ISSUES

[¶2]   Mr. Dougherty presents two issues for our review:

              1. The trial court erred in refusing to instruct the jury on the
                 meaning of “presence” in W.S. § 6-4-403(b)(iii).
              2. The trial court improperly admitted Exhibits 9A and 9B.

                                          FACTS

[¶3] On July 1, 2014, eleven-year-old MT, her mother, and sisters were fishing at Lions
Park in Cheyenne. MT noticed Mr. Dougherty pacing behind her, and when she turned
around for the last time, he was within two to four feet of her with his hands in his pants
and “playing with himself.” MT reported this to her mother who then observed that Mr.
Dougherty was partially exposed and masturbating. MT’s mother then reported the
incident to police.

[¶4] Mr. Dougherty denied any wrongdoing when questioned by law enforcement – he
only admitted that he was rubbing himself because of sciatic pain. Nevertheless, Mr.
Dougherty was charged with one count of child endangering-obscene act pursuant to
Wyo. Stat. Ann. § 6-4-403(b)(iii) (LexisNexis 2015). Under this statute, it is illegal to
“[c]ommit any indecent or obscene act in the presence of a child.” The State moved to
join the instant case with a previous charge on an unrelated incident in a different park
with a different victim where Mr. Dougherty allegedly engaged in similar conduct. The
district court granted the State’s motion.

[¶5] Prior to trial the State also filed a notice of its intent to introduce W.R.E. 404(b)
evidence concerning Mr. Dougherty’s previous convictions for sexual misconduct and
other criminal activity, arguing that those prior convictions showed proof of motive and
intent. Mr. Dougherty objected to the admission of the convictions citing concerns with
the age of the conviction, their relevance (not stemming from sexual misconduct), and the
prejudicial nature outweighing the evidence’s probative value. The court ruled that the
State could use a limited number of Mr. Dougherty’s convictions for similar behavior to


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demonstrate motive, intent, and lack of mistake. Upon the State’s motion, the court also
granted the State leave to dismiss the companion case, in which the victim was an infant.

[¶6] At trial on the single remaining charge, the State admitted evidence regarding Mr.
Dougherty’s prior bad acts but limited that evidence to certified copies of two judgments
and sentences for convictions of child endangering-obscene act crimes. Prior to the
admission of the documents, Mr. Dougherty expressed his concern with the documents
but ultimately did not object. However, at his request, the court issued a limited
instruction before the introduction of those documents.

[¶7] Prior to trial when filing his proposed jury instructions, Mr. Dougherty requested
the district court to give an instruction defining the word “presence” used in the charging
statute, § 6-4-403(b)(iii). Citing a Florida case, Mr. Dougherty requested that the term
“presence” be defined as “more than a child merely being in the vicinity where an
indecent or obscene act occurs. A violation cannot occur unless a child sees or senses
that a[n] indecent or obscene act is happening.” In opposition to this request, the State
voiced its concerns about using a definition from a mid-level Florida court about a word
that was not otherwise “unconstitutionally vague.” After trial and after the dismissal of
the companion case, the court indicated that it would not provide the definition of the
word “presence.” Mr. Dougherty objected but the court decision was made. The court
stated that it did not feel that further instruction on the definition of the word would help
the jury to better do its job.

[¶8] The jury returned a guilty verdict and the Court sentenced Mr. Dougherty to serve
four to five years in prison. This appeal followed. Additional facts will be provided.

                                      DISCUSSION

Jury Instructions

[¶9] Mr. Dougherty first argues on appeal that the trial court erred when it refused to
instruct the jury on the definition of the term “presence” after first ruling that it would
give the instruction. Mr. Dougherty argues that his trial strategy and specifically his
cross-examination of the victim was tailored based upon the trial court’s decision at the
beginning of the trial to allow a jury instruction on the definition of the word “presence.”
Dougherty argues that the ruling change effected a change of the elements in the statute
and thus the presentation of his case was tailored to that earlier ruling.

[¶10] Regarding the proper standard of review on this issue, Mr. Dougherty submits that
his argument involves review of an issue of law, but we disagree and conclude that abuse
of discretion remains the correct standard under which to review his argument. We
review a district court’s decision on jury instructions for an abuse of discretion. Adekale
v. State, 2015 WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015) (quoting Budder v. State,


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2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 2010)). District courts have substantial
latitude to tailor jury instructions to the facts of the case. Id. “A trial court does not abuse
its discretion by referring the jury to instructions that, when viewed as whole and in the
context of the entire trial, fairly and adequately cover the issues.” Id.

[¶11] The following is also instructive when reviewing a district court’s decision
regarding jury instructions:

                      When we review claims of error involving jury
              instructions, the district court is afforded significant
              deference. Luedtke v. State, 2005 WY 98, ¶ 28, 117 P.3d
              1227, 1232 (Wyo.2005). A district court is “given wide
              latitude in instructing the jury and, as long as the instructions
              correctly state the law and the entire charge covers the
              relevant issue, reversible error will not be found.” Id.
              (citations omitted); see also Hawes v. State, 2014 WY 127,
              ¶ 15, 335 P.3d 1073, 1078 (Wyo.2014). Its ruling on an
              instruction must be prejudicial to constitute reversible error.
              Heywood v. State, 2007 WY 149, ¶ 26, 170 P.3d 1227, 1234
              (Wyo.2007) (citation omitted), abrogated on other grounds
              by Granzer v. State, 2008 WY 118, 193 P.3d 266
              (Wyo.2008). Because the purpose of jury instructions is to
              provide guidance on the applicable law, prejudice will result
              when the instructions confuse or mislead the jury. Id.

Brown v. State, 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 2015).

[¶12] Upon filing his proposed jury instructions, Mr. Dougherty asked that the court
define the word “presence,” as it is used in § 6-4-403(b)(iii), as “more than a child merely
being in the vicinity where an indecent or obscene act occurs. A violation cannot occur
unless a child sees or senses that a[n] indecent or obscene act is happening.” After
approving Mr. Dougherty’s proposal before trial, at the close of evidence, as the district
court was sifting through jury instructions, it inquired about the instruction that defined
the word “presence.” Specifically, the court’s colloquy went as follows:

                     The Court: … [Defense Counsel], you proposed an
              instruction follow[ing] the analysis set forth in Warner v.
              Florida. In my interpretation of your proposal of that
              particular instruction was that it was targeted a lot more at the
              now-dismissed docket than it was at this docket. But tell me
              your position on that proposed instruction at this time.




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                     [Defense counsel]: Your Honor, I still believe strongly
              in the definition. I think it should be used in the jury
              instruction. I’m sure the State is confident that they have
              evidence that the child saw or sensed it.
                     …
                     [Prosecutor]: Well, Your Honor, we would
              respectfully object to that instruction. And I mean no
              disrespect. We don’t believe that is the law. Just as we
              argued in that 191 docket, so we would make the same
              argument in this docket. Thank you.

                     The Court: … The Court is not going to, in this docket,
              deliver this instruction to the jury. I don’t think it helps the
              jury do their job. I don’t think it adds anything, and it won’t
              be numbered and it won’t be delivered to the jury.

[¶13] In consideration of whether it was error for the court to reverse its earlier ruling on
the proposed definition we begin with our own case law. This Court has said, “In
general, a court should honor its earlier rulings unless there is a legitimate reason not to
do so.” Daniels v. State, 2014 WY 125, ¶ 13, 335 P.3d 483, 487 (Wyo. 2014). Other
cases, while not directly on point, have observed lower courts changing a ruling mid-trial.
Mr. Dougherty directs us to Munoz v. State, 2013 WY 94, ¶ 16, 307 P.3d 829, 834 (Wyo.
2013). There, this Court found that the reversal of a pre-trial W.R.E. 404(b) ruling mid-
trial deprived the defendant of his right to a fair trial. In comparison with the instant
case, while the district court also changed its ruling, it explained its reasoning in doing so
such that it avoids a finding of error by this Court.

[¶14] The trial court’s justification for not giving the jury the proposed definition of
“presence” after all was that it first ruled in favor of providing the jury instruction
containing the definition because of a similar charge, in a companion case, that existed
pre-trial. That charge and case was dismissed because the alleged victim was an infant.
We agree with the district court that delivering Mr. Dougherty’s proposed instruction
would not have helped the jury to better do their job. Again, when reviewing claims of
error involving jury instructions, the district court is afforded significant deference.
Luedtke v. State, 2005 WY 98, ¶ 28, 117 P.3d 1227, 1232 (Wyo.2005). Under these
circumstances, we must conclude that the court did not abuse its discretion when it did
not admit the proposed jury instruction after it initially ruled that it would.

Rule 404(b) Evidence

[¶15] Mr. Dougherty’s second and final argument is that the district court abused its
discretion when it admitted certified copies of two judgments and sentences of Mr.



                                               4
Dougherty’s previous convictions for child-endangerment/obscene acts. On this issue we
must reverse and remand.

[¶16] Initially, before trial the State filed its Notice of Intent to Introduce Evidence
Under W.R.E. 404(b) to show motive and lack of mistake on Mr. Dougherty’s part. Over
Mr. Dougherty’s objection, the court ruled that the State could use a limited number of
Mr. Dougherty’s convictions for similar behavior to demonstrate motive, intent, and lack
of mistake. However, because the State did not disclose that evidence to Mr.
Dougherty’s defense counsel pre-trial, the evidence was disallowed. In lieu of that
evidence, the court admitted copies of prior judgment and sentence documents showing
Mr. Dougherty’s prior convictions of similar crimes. Here, Mr. Dougherty contends that
the admission of those prior conviction documents was improper in that it goes against
the very purpose of W.R.E. 404(b) – convicting a defendant merely because he has done
“bad” things before. We agree.

[¶17] We typically review challenges to the admission of evidence for an abuse of
discretion when an objection has been lodged. Hodge v. State, 2015 WY 103, ¶ 8, 355
P.3d 368, 370-71 (Wyo. 2015) (quoting Cardenas v. State, 2014 WY 92, ¶ 7, 330 P.3d
808, 810 (Wyo. 2014)). Mr. Dougherty submits that this issue should be reviewed for an
abuse of discretion. The State, however, argues that because Mr. Dougherty did not
object to the form of the evidence when the State asked the court to admit the exhibits,
this Court should review the admission for plain error. About this we have previously
said the following:

             “[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.”


                                             5
              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)).

Hodge, ¶ 8, 355 P.3d at 371. Here, Mr. Dougherty made his pretrial demand for Rule
404(b) evidence, but he also entered a pretrial objection to its admissibility on the ground
that its potential for unfair prejudice outweighed its probative value. Given the
discussion in Hodge and given that Mr. Dougherty filed a demand prior to trial, we thus
find it proper here to review this issue for an abuse of discretion.

[¶18] W.R.E. 404(b) states:

              (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, 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.

We have consistently cautioned that prior misconduct evidence carries an inherent danger
for prejudice; consequently, we require district courts to follow a mandatory procedure
for testing its admissibility:

              (1)    the evidence must be offered for a proper purpose; (2)
                     the evidence must be relevant; (3) the probative value
                     of the evidence must not be substantially outweighed
                     by its potential for unfair prejudice; and (4) upon
                     request, the trial court must instruct the jury that the
                     similar acts evidence is to be considered only for the
                     proper purpose for which it was admitted. Vigil, 926
                     P.2d at 357 (quoting United States v. Herndon, 982
                     F.2d 1411, 1414 (10th Cir.1992)).

Griggs v. State, 2016 WY 16, ¶ 128, 367 P.3d 1108, 1143 (Wyo. 2016) (quoting Gleason
v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002)). The Gleason test is


                                              6
intended to be conducted by the trial court; consequently, we do not apply it de novo on
appeal. Our role is to determine whether admission of the evidence was error.

[¶19] Prior to trial, the court addressed the admissibility of prior bad act evidence under
W.R.E. 404(b) and ruled that certain incidents about which Mr. Dougherty was
criminally charged would be admitted to show motive, intent, and lack of mistake.
However, during trial rather than submitting details/evidence regarding the underlying
acts, the prosecution offered two judgments and sentences indicating only that Mr.
Dougherty had been convicted and sentenced to prison in 1992 for child
endangering/indecent exposure and in 2009 for child endangering/obscene act. No
evidence regarding the actual crimes was presented to the jury nor was any detail
contained in the judgment and sentence documents. 1 Only certified copies of those
documents showing Mr. Dougherty’s two convictions were admitted as exhibits.

[¶20] Evidence of prior convictions alone, without testimony regarding the underlying
acts, generally cannot provide clear evidence that the convicted person committed the
acts in question. See State v. Wright, 719 N.W.2d 910, 916 n.1 (Minn. 2006). “[I]t is not
the fact of the conviction that counts when the proof is offered under Rule 404(b), but the
fact that the person committed the underlying acts.” 1 Christopher B. Mueller & Laird C.
Kirkpatrick, Federal Evidence § 4:31, p. 775 (4th ed. 2013). This Court is generally in
agreement with this concept.

[¶21] The evidence admitted in this case was ostensibly character evidence within the
scope of Rule 404(b). Generally, such evidence should be relevant and more probative
than prejudicial. Lindstrom v. State, 2015 WY 28, ¶ 21, 343 P.3d 792, 797 (Wyo. 2015).
Such evidence must be relevant to a proper purpose. The trial court identified the
purposes for prior conviction evidence in this case as proof of motive, intent or lack of
mistake. The judgments and sentences admitted in evidence did not and could not show
motive, intent or lack of mistake because there were no facts presented about the
circumstances of those prior convictions indicating a connection to the facts of this case.
Without such facts, the exhibits could not make the issues of motive, intent or lack of
mistake more or less probable. Here, the evidence existed solely to show that Mr.
Dougherty had a propensity for committing bad acts only because he had done so before.
This is not the proper purpose of 404(b) evidence. Accordingly, we must conclude that
the trial court abused its discretion when it admitted the documents.

[¶22] Our conclusion that the district court abused its discretion in admitting the
evidence does not end our analysis. We still must determine whether the error was
prejudicial.

1
  While the prosecution had planned to present evidence about Mr. Dougherty’s underlying crimes, the
court prohibited the admission of that evidence because it had not been disclosed to defense attorneys
prior to trial.


                                                   7
                    Even if the district court admitted evidence in error,
             we must consider whether the error was prejudicial or
             harmless. 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. Prejudicial error
             requires reversal, while harmless error does not.

Lindstrom, 2015 WY 28, ¶ 22, 343 P.3d 792, 797 (Wyo. 2015).

[¶23] When considering the evidence against Mr. Dougherty in its entirety, we conclude
that there is a reasonable possibility that the verdict would have been more favorable to
him if the judgment and sentence documents had not been admitted. Those documents,
without any further supporting evidence, existed only to show that Mr. Dougherty had a
propensity for committing crimes. W.R.E. 404(b) clearly states: – “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.” As a result, this Court can only conclude
that the error in admitting the judgment and sentence documents was not harmless. We
must reverse and remand for a new trial.

                                    CONCLUSION

[¶24] We find no error in the trial court’s refusal to admit the proposed jury instruction
after it initially ruled that it would. However, we must find that the court abused its
discretion when it admitted the judgment and sentence documents to show W.R.E. 404(b)
evidence. Furthermore, we conclude that the admission of those exhibits was prejudicial,
and we reverse and remand for a new trial.




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