Rivera v. State10/30/1992
o was sleeping beside her but, again, she was awakened by Rivera fondling her. She also testified that, even after she asked him to stop this activity, it still took him a while to desist. She also testified that the following weekend when she was ill she, again, was awakened to find Rivera fondling her.
The other witness testified that, during the summer of 1989, she had taken a prescription drug that causes drowsiness. She awoke to find Rivera straddling her and trying to pull her pants down. We note significant similarities in the cases of BJL and both of the Utah victims. All were friends or acquaintances of Rivera's wife; all had been under the influence of alcohol or, in one instance, a prescription drug that induced drowsiness; and all were sleeping so that they could not consent and, to a degree, were helpless. In each Utah instance, when the victim awakened, Rivera reacted as if nothing was wrong, and he told each of these victims either that he wanted them or they wanted him and he would stop if that was what they wanted. A similar comment was offered by Rivera when BJL awakened.
In Bishop v. State, 687 P.2d 242 (Wyo. 1984), cert. denied, 469 U.S. 1219, 105 S.Ct. 1203, 84 L.Ed.2d 345 (1985), this court approved, from United States v. Myers, 550 F.2d 1036 (5th Cir. 1977), appeal after remand, 572 F.2d 506 (5th Cir. 1978), cert. denied, 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978), five factors to be invoked with respect to the admissibility of evidence of other crimes. The five factors quoted from Myers that are applied in considering the admission of testimony pursuant to Wyo.R.Evid. 404(b) are:
(1) Proof of the other similar crimes must be plain, clear and convincing.
(2) The other crimes must not be too remote in time from the charged offense.
(3) The evidence of the other crimes must be introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence [Wyo.R.Evid. 404(b)].
(4) The element of the charged offense that the evidence of other crimes is introduced to prove must be a material issue in the case.
(5) There must be a substantial need for the probative value of the evidence of the other crimes.
Myers, 550 F.2d at 1044.
The Bishop criteria have been invoked repeatedly and were confirmed as recently as Britton v. State, No. 91-190, 1992 WL 170954, ___ P.2d ___ (Wyo. July 23, 1992). We have held these criteria do not control a trial court's discretion and the evidence still may be admissible even though one of these factors is not satisfied. Story v. State, 721 P.2d 1020 (Wyo. 1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986). Assuming the evidence qualifies under the Bishop criteria, then Wyo.R.Evid. 404(b) specifically permits the introduction of evidence disclosing other crimes or bad acts to show intent, motive, plan, or identity.
Rivera insists the only reason for using the testimony of the Utah victims was to demonstrate that, since he may have committed other bad acts in Utah, he must have committed the crimes he was accused of in Wyoming. It is clear Wyo. R.Evid. 404(b) forbids the use of evidence of a person's character to establish he acted in conformity therewith on a particular occasion. Carey v. State, 715 P.2d 244 (Wyo. 1986), cert. denied, 479 U.S. 882, 107 S.Ct. 270, 93 L.Ed.2d 247 (1986); Ortega v. State, 669 P.2d 935 (Wyo. 1983). So long as the Bishop criteria are met, however, and the permitted purpose for the testimony is demonstrated to be in conformance with Wyo.R.Evid. 404(b), the evidence is admissible.
The testimony of the two victims in Utah not only tended to suppor
Page 1 2 3 4 5 6 7 8 9 10 11 Wyoming DUI Attorneys
DUI Lawyers
|