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Rivera v. State10/30/1992
t the credibility of the victims in the charged cases, but it corroborated the testimony of those victims. See Gezzi v. State, 780 P.2d 972 (Wyo. 1989). Further, it disclosed motive by demonstrating a common style of misconduct to achieve sexual gratification and served to demonstrate Rivera planned and intended to effect sexual intrusion in each instance. Evidence of other crimes or misconduct to demonstrate a plan simply depends upon a showing of a relationship between the crimes and the defendant. Bishop. These prior bad acts also corroborated identity. Under our case authority, identity is a material issue in any case for purposes of applying Wyo.R.Evid. 404(b). Pena v. State, 780 P.2d 316 (Wyo. 1989). As set forth in Pena, this court affords deference to the determination of a trial court with respect to the admissibility of evidence of other crimes under Wyo. R.Evid. 404(b). See also Noetzelmann v. State, 721 P.2d 579 (Wyo. 1986); Bishop. As long as there is a legitimate basis for the court's decision, we cannot say that an abuse of discretion is present. Pena; Trujillo v. State, 750 P.2d 1334 (Wyo. 1988).
From our analysis of the record, we conclude the testimony of the Utah victims meets the factors identified in the Bishop test. Both of these young women testified, clearly and without contradiction, that Rivera attempted a sexual assault upon each of them at a time when they were unable to consent and were helpless. Both of those assaults occurred during the summer of 1989, which is not remote in time from the offenses with which Rivera was charged. The material issues that this evidence was offered to demonstrate, and helped to establish, were Rivera's intent, motive, plan, and identity, all of which are permitted by Wyo.R.Evid. 404(b). Our cases demonstrate that, in a sexual assault case, the substantial need for such evidence is present.
The trial judge considered these factors in arriving at his ruling on Rivera's motion in limine. He rather carefully weighed probative value against the countervailing factors found in Wyo.R.Evid. 403 and did this in the context of the procedure suggested in Coleman v. State, 741 P.2d 99 (Wyo. 1987). We agree that, in this case, the probative value of these other bad acts outweighs the danger of unfair prejudice (Wyo.R.Evid. 403) because the clear and unrebutted testimony of the victims with respect to the charged assaults would not necessarily result in Rivera's conviction. The trial court did not commit any abuse of discretion in the admission of the evidence of the other uncharged bad acts.
Rivera asserts error in the introduction of evidence concerning a DNA profile. DNA alludes to deoxyribonucleic acid, which is a molecule that carries the genetic information about humans in nearly all of the cells of the body. The configuration of DNA is different for each individual, with the exception of identical twins, and its characteristics continue unchanged during life. Rivera essentially concedes the general admissibility of this information in the course of his brief, and the true focus of his claim of error is upon the testimony of the expert relating the fact that he would expect to find a similar DNA pattern only in one individual out of 250,000 in the caucasian population. Specifically, Rivera's concern is that the introduction into evidence of statistical information invaded the province of the jury in this instance.
The parties discuss the general admissibility of such evidence under the test of relevancy found in Cullin v. State, 565 P.2d 445 (Wyo. 1977), or in accordance with the criteria articulated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Buhrle v. State, 627 P.2d 1374 (Wyo. 1981), w
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