               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 97

                                                          OCTOBER TERM, A.D. 2016

                                                                  October 10, 2016

SKUYLER SALINAS,

Appellant
(Defendant),

v.                                                   S-16-0066

THE STATE OF WYOMING,

Appellee
(Plaintiff).

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

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; David
      E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

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

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.
DAVIS, Justice.

[¶1] Appellant Skuyler Salinas asks us to set aside his stalking conviction. He claims
the district court erred in not granting a mistrial and in not imposing a stiffer sanction for
a discovery violation. We affirm.

                                              ISSUES

[¶2] 1. Did the district court abuse its discretion by not granting a mistrial for a
violation of an order in limine concerning W.R.E. 404(b) evidence?

        2. Did the district court abuse its discretion by imposing a discovery sanction that
precluded the State from introducing untimely disclosed text messages but allowing the
jury to hear testimony about them?

                                               FACTS

[¶3] Appellant and Ashley Martinez’s relationship ended a year after their daughter,
L.S., was born. After some time had passed, an incident occurred in Fort Collins,
Colorado. While Ms. Martinez, her date, and L.S. were stopped at a traffic light,
Appellant, who apparently had been following them, came over and began punching her
car and yelling at them. Ms. Martinez was eventually able to drive off, call the police,
and get to the police station.

[¶4] The next day, Ms. Martinez obtained a temporary ex-parte stalking order of
protection. After a hearing was held a few days later, an order of protection valid for six
months was issued. That order forbade Appellant from contacting Ms. Martinez and
certain members of her family. Appellant repeatedly violated the order by texting Ms.
Martinez.

[¶5] Appellant was tried on one count1 of felony stalking for violating the protective
order.2 As the case proceeded toward trial, the State filed a notice of intent to introduce
evidence pursuant to W.R.E. 404(b). It disclosed that it intended to introduce evidence of
Appellant’s misconduct and interactions with Ms. Martinez and her family members that
occurred outside the scope of the charged date range. Appellant objected and a hearing
was held, after which the district court excluded much of the evidence sought to be
introduced by the State by an order in limine.


1
  At one point Appellant was charged with felony stalking in two cases, which the district court
consolidated at the State’s request. Only one count was ultimately tried.
2
  Wyo. Stat. Ann. § 6-2-506(e)(iv) (Lexis Nexis 2015) provides that a person who violates a temporary or
permanent order of protection by, inter alia, communicating with a person protected by the order in a
manner that harasses commits a felony punishable by imprisonment for up to ten years.


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[¶6] The court allowed the State to present evidence concerning the details of four
separate incidents, including the Fort Collins event that led to the protective orders.
However, the district court’s order precluded witnesses from testifying that Appellant
“was arrested, charged or pled guilty to any crime.”

[¶7] Appellant also filed a motion to compel certain specific discovery. In particular,
he asked that the court require the State to produce Ms. Martinez’s father David
Martinez’s cell phone for inspection. The State responded as follows:

              This is not available for inspection by Defense Counsel. Mr.
              Martinez’s cell phone at one time contained text message
              conversations between him and the Defendant in January and
              August, 2014, copies of which have been provided to defense
              counsel in discovery. Mr. Martinez is employed by the
              military and has a very high security clearance. His cell
              phone is provided through his employment and is subject to
              the same security clearance.

              Further, it is believed by the State that the Defendant’s
              mother is in possession of his cell phone that was used to
              harass [Ms. Martinez] and David Martinez. It is also believed
              by the State that the Defendant is in regular contact with his
              mother via telephone and could at any time cause his cell
              phone to be produced to his defense counsel for her
              inspection.

[¶8] The record does not contain a ruling on this motion, so it remained an open issue
until trial. The court’s case management order required the parties to file pretrial
memoranda fifteen days before trial, and to list all exhibits. The State listed “screen shots
of text messages sent to David Martinez’s phone from Defendant on January 31, 2014.”
Wyoming Rule of Criminal Procedure 16(a) provides that upon written demand, the State
shall permit the inspection of documents intended for use by the State at trial. Mr.
Salinas’ attorney did make such a demand. The record is unclear as to exactly what
inspection was permitted, but the State should have allowed inspection of documents it
intended to use at trial.

[¶9] A jury trial commenced, and Ms. Martinez was called by the State. She testified
about her interactions with Appellant that led to the issuance of the protective order and
about subsequent violations of that order. During her direct examination, the following
exchange occurred:

              Q. Did you ever at any point deny visitation to Mr. Salinas?



                                              2
                A. Yes, ma’am.

                Q. During that period of time?

                A. Yes, ma’am.

                Q. When was that?

                A. We found out that he had two active warrants, one in
                Cheyenne, and one in Colorado.

Appellant’s attorney immediately objected to the last answer and asked for a bench
conference. Defense counsel argued that the answer violated the court’s 404(b) order in
limine and moved for a mistrial.

[¶10] The district court denied the motion because it found that the answer was not
responsive to the question asked, that it was not a deliberate violation of the order by the
State, and that it was not sufficiently prejudicial to require a mistrial. It then instructed
the jury that “the information from this witness that warrants existed will go without
further explanation and is stricken. That is, you are not to consider, one way or the other,
the evidence concerning warrants.”

[¶11] The State also called David Martinez. During the course of direct examination,
Appellant’s attorney requested a bench conference to discuss evidence he believed the
State was going to introduce through Mr. Martinez. He objected to the introduction of
screen shots of text messages between Mr. Salinas and Mr. Martinez, which was the
subject of the motion to compel. He argued that he was not provided copies of the
messages until that morning, just before Mr. Martinez took the witness stand, and that he
had not seen them before.

[¶12] The district court ruled that the screenshots of the text messages were not written
statements under W.R.Cr.P. 16(a)(1), and so the State did not have a duty to provide
them.3 Nevertheless, the district court found the issue before it to be whether disclosure
of the subject text messages prejudiced Appellant’s ability to proceed with the witness. It
ultimately decided to let Mr. Martinez testify about the texts, but that the screenshots of
the exhibits could not be shown to the jury or introduced as exhibits.


3
 The district court’s reasoning that the text messages were not written statements by Appellant leaves this
Court somewhat at a loss. Our review of W.R.Cr.P. 16(a)(1)(A)(i) convinces us that a written statement
by Appellant would include his text messages. Cf. Ceja v. State, 2009 WY 71, ¶¶ 13-17, 208 P.3d 66, 68-
70 (Wyo. 2009); 5 Wayne R. LaFave et al., Criminal Procedure § 20.3(b) (4th ed., Dec. 2015 update); 2
Charles A. Wright et al., Federal Practice & Procedure Criminal § 253 (4th ed., Apr. 2016 update). We
will treat them as such.


                                                     3
[¶13] The trial continued and culminated in a guilty verdict. The district court sentenced
Appellant to serve three to five years in prison with a boot camp recommendation to the
Department of Corrections.4

[¶14] Appellant timely perfected this appeal.

                                         DISCUSSION

Denying Motion for Mistrial

[¶15] Appellant asserts that the district court erred in denying his motion for a mistrial
because of the statement made by Ms. Martinez about his outstanding warrants. The
denial of a motion for mistrial is reviewed for an abuse of discretion. Hill v. State, 2016
WY 27, ¶ 42, 371 P.3d 553, 564 (Wyo. 2016); McGill v. State, 2015 WY 132, ¶ 8, 357
P.3d 1140, 1144 (Wyo. 2015). We have explained the standard as follows:

               (1) when a motion for mistrial or new trial is presented, the
               district court considers the motion and grants it if justice so
               requires; (2) justice requires that the motion be granted only if
               the appellant has been prejudiced because his or her
               substantial rights were abridged; (3) if the motion is denied,
               and that denial is appealed, we review that denial for an abuse
               of discretion; (4) abuse of discretion has occurred where the
               district court could not have reasonably concluded as it did.

Hill, ¶ 42, 371 P.3d at 565.

[¶16] There is no doubt that Ms. Martinez stated on direct examination that Appellant
had warrants out for his arrest. There is likewise no question that such a statement
violated the in limine order. However, this Court has reaffirmed that “[g]ranting a
mistrial is an extreme and drastic remedy that should be resorted to only in the face of an
error so prejudicial that justice could not be served by proceeding with trial.” McGill, ¶
11, 357 P.3d at 1145 (quoting Warner v. State, 897 P.2d 472, 474 (Wyo. 1995)).

[¶17] The district court therefore had to determine whether the statement was so
prejudicial that justice could not be served by continuing with the trial. McGill, ¶ 12, 357
P.3d at 1145. It was in the best position to assess its prejudicial impact. See id., ¶ 11,
357 P.3d at 1145. We find that the court reasonably concluded that Ms. Martinez’s
statement—a single statement that was volunteered and unresponsive to the question
asked—was not so prejudicial as to warrant a mistrial. See Warner, 897 P.2d at 474-75.

4
 If Appellant was accepted in the boot camp program and successfully completed it, his sentence might
be reduced to place him on probation, in the district court’s discretion.


                                                  4
Furthermore, the district court took appropriate curative action by striking the response
and giving a cautionary instruction to the jury. See McGill, ¶ 12, 357 P.3d at 1145. We
have no reason to suppose that the jury did not follow the instruction, and we can
therefore only believe it disregarded the statement. See id. (reaffirming that when the
jury is instructed to disregard evidence that has been objected to and sustained, the
instruction provided is considered sufficient to thwart any prejudice arising from it). The
district court’s denial of Appellant’s motion for a mistrial was therefore reasonable, and it
did not abuse its discretion.

Sanction for Discovery Violation

[¶18] Both Appellant and the State frame the second issue as one centering upon a
claimed discovery violation based upon the late disclosure of Mr. Martinez’s text
messages. Although the circumstances are unclear, we will assume that the screenshots
of the text messages were not disclosed, and that they are statements which should have
been. This narrows the question to the appropriateness of a sanction. A district court’s
determination of a sanction for a discovery violation is reviewed by this Court for an
abuse of discretion. Toth v. State, 2015 WY 86A, ¶ 25, 353 P.3d 696, 704-05 (Wyo.
2015). The ultimate issue is whether or not the court could reasonably conclude as it did.
Id.

[¶19] Wyoming’s rules governing criminal procedure provide as follows with respect to
a party’s failure to comply with discovery obligations and the court’s power to act in such
a situation:

              (d) Regulation by court. –

                                      *      *       *

              (2) Failure to Comply. – If at any time during the course of
              the proceedings, it is brought to the attention of the court that
              a party has failed to comply with this rule, the court may
              order such party to permit the discovery or inspection, grant a
              continuance, or prohibit the party from introducing evidence
              not disclosed, or it may enter such other order as it deems just
              under the circumstances. The court may specify the time,
              place and manner of making the discovery and inspection and
              may prescribe such terms and conditions as are just.

W.R.Cr.P. 16(d)(2). In this same vein, we have referred to several factors to aid a court
in determining the appropriateness of a sanction:




                                              5
               (1) the reasons the State delayed producing the requested
               materials, including whether or not the prosecutor acted in
               bad faith when it failed to comply with the discovery order;
               (2) the extent of prejudice to the defendant as a result of the
               delay; and (3) the feasibility of curing the prejudice with a
               continuance. Once those factors are weighed, the district
               court should impose the least severe sanction which will
               ensure the State’s compliance with its discovery
               responsibilities.

State v. Naple, 2006 WY 125, ¶ 24, 143 P.3d 358, 365 (Wyo. 2006) (citations omitted)
(agreeing with federal case law interpreting Rule 16(d)(2), which provides three factors
for the court to consider in determining the appropriateness of a sanction).

[¶20] We find that the district court could reasonably conclude as it did. It was well
within the bounds of reason when it ruled that the State could elicit testimony about the
text messages, but that copies of the text messages would not be received in evidence and
thus would not be shown to the jury or sent to the jury room during deliberations.
W.R.Cr.P. 16(d)(2) permits such an order, and the sanction provided a fair balance based
upon the nature of the evidence and discovery dispute surrounding it. This ruling was not
without meaning—the State lost its ability to let the jury see the screenshots and have
them to study as much as it wished during deliberations, as it could have if they had been
timely produced.5 This should provide some deterrent to future violations. The district
court did not abuse its discretion in fashioning this sanction for the discovery violation it
appears to have found.

[¶21] Affirmed.




5
 The parties have not raised any issues about the so-called “best evidence” rule to be found in Wyoming
Rules of Evidence 1001 through 1007, and we will not venture into that territory in this opinion.


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