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Dike v. State11/30/1999
ence. Quoting 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence ' 5215, at 278 (1978), Dike maintains that the testimony A>dominat the mind of the jury=@ and prevented it from making a A>rational determination of the truth.=@
Dike did not object to the challenged testimony, and he is unable to overcome his burden to demonstrate that a clear and unequivocal rule of law was violated because the probative value of this evidence outweighed any prejudicial effect. Dike was charged with threatening to use a drawn firearm. The fact that various handguns, along with ammunition, were found in the house was relevant to show that Dike had these types of weapons available to him. The defense elicited testimony that the officers did not know whether any of the seized items belonged to Dike. The jury, therefore, had a complete picture and was able to weigh the evidence and draw reasonable inferences therefrom. We agree with the state=s observation that it is unlikely a Wyoming jury would become so inflamed by the fact that a defendant owns or has access to guns that it would abandon its duty to reach a rational verdict on the basis of the evidence and the court=s instructions.
Dike also challenges testimony from his ex-girlfriend regarding his Ahabit@ of carrying a handgun in his truck. She testified that Dike kept handguns in his truck during the time that they dated, which was approximately three to four years prior to the trial. Dike objected to this testimony, citing W.R.E. 404, 405, and 406. The ex-girlfriend also identified one of the pistols seized from the Dike residence as being one of the guns Dike carried in his truck. Dike argues on appeal that the testimony concerned activities too remote in time to be relevant to the current charges against him.
W.R.E. 406 provides:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
The ex-girlfriend=s testimony was relevant because it demonstrated that Dike owned or had access to guns which made the possibility that he had a gun in his truck on the night in question more likely. Dike has not cited authority for his proposition that his ex-girlfriend=s knowledge of his habits was too old to be relevant. We defer to the sound discretion of the trial court and its decision to allow the jury to consider the remoteness of the evidence in deciding what weight to give to it.
We come to the same Conclusion regarding the relevance of the victim=s husband=s unchallenged testimony that Dike had told him on several occasions that he had a handgun in his pickup. This testimony was relevant to the charged crime in that it too made the likelihood more probable that Dike had a gun on the night in question.
D. Taped Telephone Conversation
Dike complains that the trial court abused its discretion by allowing the jury to hear portions of the victim=s taped telephone call to the Platte County sheriff=s office. The state responds that the trial court properly admitted the tape as excited utterances, prior consistent statements, and statements of a then-existing state of mind.
In general, rulings on the admissibility of evidence are within the sound discretion of the trial court and are entitled to considerable deference. Such rulings will not be disturbed on appeal absent demonstration of a clear abuse of discretion. This court will not find an abuse of discretion as long as a legitimate
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