# Brown v. State

> Wyoming Supreme Court · May 15, 1987 · 736 P.2d 1110

URL: https://www.frixlaw.com/law-library/cases/9627861

## Case

- **Full name:** Walter Joe BROWN, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff)
- **Court:** Wyoming Supreme Court
- **Decided:** May 15, 1987
- **Citations:** 736 P.2d 1110; 1987 Wyo. LEXIS 447
- **Precedential status:** Published
- **Opinion:** Concurrence by Cardine
- **Judges:** Brown, Thomas, Cardine, Urbigkit, MacY
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

CARDINE, Justice,
specially concurring.
I begin this special concurrence with the notion that in this case the testimony of the victim’s older sister that appellant had subjected her to sexual intercourse before shifting his attention to the victim was admissible. The difficulty I have is in finding a clear rule of law that will tell us in the future when bad-act evidence involving other incidents or third parties is admissible and when it is not admissible. Justice Urbigkit, in his dissent, seems to conclude that other bad-act evidence is admissible only if it involves the victim and not if it involves a third party or incidents other than the crime , charged. Such rule would be too restrictive and not in accord with the exceptions of Rule 404(b), W.R.E., which provides:
“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.”
Rule 404(b) does not prohibit bad-act evidence that involves incidents other than the crime charged and persons other than the victim. It is clear from Rule 404(b) that *1117 the list of exceptions allowing for the introduction of other-act evidence is illustrative only and not intended to be exclusive. The exceptions in Rule 404(b) are merely a list of examples in which the evidence may be admitted, but it is not required that the evidence be within one of the exceptions to be admitted. Such evidence may be admitted to “corroborate” the victim. Wright & Graham, Federal Practice and Procedure: Evidence § 5248 (1978) at 520. Such evidence has also been admitted for impeachment purposes, although we held it could not be admitted for that purpose in Kwallek v. State, Wyo., 596 P.2d 1372 (1979). In Crozier v. State, Wyo., 723 P.2d 42 (1986), we said that such evidence was admissible as a “complete story” exception, part of the history of the event, and as a “course of conduct” exception. Neither the corroboration, impeachment, complete story, nor course of conduct exception is listed as an exception to the exclusionary rule in Rule 404(b), W.R.E.
Motive has been suggested as the exclusionary rule exception that allowed the court, in its discretion, to receive the other bad-act evidence in this case. There is support for that proposition in Elliott v. State, Wyo., 600 P.2d 1044 (1979), wherein we specifically held that this type of evidence was admissible for the purpose of proving the motive of appellant. In 2 D. Louisell and C. Mueller, Federal Evidence, § 140 (1985) at 210, motive is described as that which
“serves to explain all kinds of evidence in the case, to make understandable or át least believable that which might otherwise seem obscure and incredible * * * [such as] sexual desires.”
Concededly it is not often that the proposed evidence fits squarely into one of the exceptions to the exclusionary rule. Other bad acts almost always have some character connotations, although admissible for some other legitimate purpose. It seems clear that in all cases the court, after determining that the offered evidence is relevant, not too remote, and more probative than prejudicial, should also determine that it is offered primarily for some legitimate evidentiary purpose and not primarily for the purpose of showing the character of the accused.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9627861. Public record. Not legal advice.