IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 156

OCTOBER TERM, A.D. 2013

December 19, 2013

LASHAWN SIDNEY KING,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-12-0187

Appeal from the District Court of Natrona County

The Honorable Catherine E. Wilking, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Elisabeth M.W. Trefonas, Assistant Public Defender;* Patricia L. Bennett, 

Assistant Public Defender. Argument by Ms. Bennett.

Representing Appellee:

Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy 

Attorney General; Jeffrey S. Pope Assistant Attorney General. Argument by Mr. 

Pope.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

*Order Allowing Withdrawal of Counsel entered July 16, 2013.

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.
1

VOIGT, Justice.

[¶1] The appellant, LaShawn Sidney King, was convicted of attempted first-degree 

murder, kidnapping, and two counts of aggravated assault and battery after he attacked 

the victim and hit her several times in the face and body with a sledgehammer. In this 

appeal, the appellant argues his convictions should be reversed because the district court 

improperly admitted evidence of the appellant’s previous violent behavior against the 

victim, a transcript was provided to the jury of a telephone conversation between the 

appellant and the victim, and trial counsel was ineffective for waiving the appellant’s 

right to a speedy trial.

1

 Finding no error, we affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it determined that testimony 

regarding previous violence in the appellant’s relationship with the victim was 

admissible under W.R.E. 404(b)?

2. Did the district court abuse its discretion when it allowed the jury to review a 

transcript of a telephone recording between the appellant and the victim while the 

recording was being played at trial?

3. Was trial counsel ineffective because he requested a continuance and filed a 

waiver of speedy trial signed by the appellant, contrary to the appellant’s desire not to 

waive his right to a speedy trial?

FACTS

[¶3] On May 6, 2011, the appellant called the victim and asked her to go to a movie 

with him because he was moving to Detroit the next day. The victim reluctantly agreed, 

picked up the appellant from his apartment, and drove them to the movie theatre. The 

appellant asked the victim to park her van off to the side of the road instead of in the 

parking lot, but she refused and parked in the main parking lot. She then heard a “dull 

thump” inside the van. She turned and looked at the appellant, who was staring straight 

at her. The victim tried to get out of the van, but the appellant grabbed her by the hair 

and hit her in the eye with a sledgehammer. The appellant continued to hit the victim 

with the sledgehammer, hitting her again in the eye, the hand, and the back of her head.

 

1

In his brief, the appellant also argued that his two convictions of aggravated assault and battery should 

have merged for the purposes of sentencing. However, at oral argument, the appellant conceded that the 

issue was moot after this Court’s decision in Sweets v. State, 2013 WY 98, 307 P.3d 860 (Wyo. 2013).
2

[¶4] The victim struggled out of the van as the appellant screamed that he was going 

to kill her. The appellant grabbed the victim, forced her into the van, and drove the van 

away from the theatre. As she was in the back of the van, unable to see clearly due to 

her injuries, the victim located her cell phone and called 911. Although the victim did 

not have a conversation with the 911 dispatcher, she made statements to the appellant 

that gave the dispatcher an idea of where she was and what was happening to her. 

Eventually, the victim hid the cell phone in a basket in the hopes the appellant would not 

notice the phone or that she had dialed 911.

[¶5] After driving through the Casper area, the appellant stopped the van and asked the 

victim where her cell phone was located. The appellant then rummaged through the 

back of the van until he found the cell phone in the basket. The appellant began hitting 

the victim with his fists while telling her that he was going to kill her. He removed the 

battery from the phone, threw the phone to the floor of the van, and began driving again. 

Eventually, law enforcement officers were able to locate the van, arrest the appellant, 

and seek medical attention for the victim. Following a jury trial, the appellant was 

convicted of attempted first-degree murder, kidnapping, and two counts of aggravated 

assault and battery.

DISCUSSION

Did the district court abuse its discretion when it determined that 

testimony regarding previous violence in the appellant’s relationship 

with the victim was admissible under W.R.E. 404(b)?

[¶6] Before trial, the prosecution filed a notice that it intended to use evidence, 

pursuant to W.R.E. 404(b), of the appellant’s violent behavior in his relationship with the 

victim and towards a former girlfriend. The prosecution asserted the evidence was proper 

to show the appellant’s motive and intent when he attacked the victim, and that the 

appellant’s actions toward the victim were not done by accident or mistake. The 

appellant objected to the notice, asserting the notice did not describe the prior conduct 

with sufficient specificity, the evidence of prior conduct was unfairly prejudicial, and the 

prior conduct was too remote in time. The district court held a hearing, wherein both 

parties gave lengthy arguments regarding the nature of the proposed evidence. 

Thereafter, the district court held another hearing where it gave an oral ruling regarding 

the evidence. After conducting an analysis of each piece of evidence offered by the 

prosecution, it held that the prosecution could not introduce any evidence of the 

appellant’s abuse against his previous girlfriend and several instances where the appellant 

allegedly threatened the victim’s family members and accused the victim of cheating. 

However, the district court determined specific instances of violence by the appellant 

against the victim would be admissible. The appellant now argues the district court’s 

decision was an abuse of discretion because it listed several proper purposes for the use 
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of the evidence pursuant to W.R.E. 404(b), instead of identifying one specific purpose for 

each piece of evidence.

[¶7] When reviewing a district court’s decision regarding the admissibility of evidence 

pursuant to W.R.E. 404(b), this Court uses the following standard of review:

We review claims of error concerning the improper admission 

of W.R.E. 404(b) evidence for abuse of discretion and will 

not reverse the trial court’s decision absent a clear abuse. 

Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo. 

2006). A trial court abuses its discretion when it could not 

have reasonably concluded as it did. Id. In this context, 

“reasonably” means sound judgment exercised with regard to 

what is right under the circumstances and without being 

arbitrary or capricious. Id.

Munoz v. State, 2013 WY 94, ¶ 3, 307 P.3d 829, 830 (Wyo. 2013) (quoting Bromley v. 

State, 2007 WY 20, ¶ 8, 150 P.3d 1202, 1206-07 (Wyo. 2007)). Further, if the evidence 

was admitted in error, we must determine whether the error was prejudicial. Rolle v. 

State, 2010 WY 100, ¶ 9, 236 P.3d 259, 264 (Wyo. 2010). “Error is prejudicial if there is 

a reasonable possibility that the verdict might have been more favorable to the defendant 

if the error had not been made.” Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo. 

2010).

[¶8] In Gleason v. State, 2002 WY 161, 57 P.3d 332 (Wyo. 2002), this Court 

admonished the district courts from engaging in the “shotgun approach” of listing every 

conceivable purpose for the admissibility of evidence under W.R.E. 404(b), followed by 

a nondescript statement that the probative value of the evidence outweighs the prejudicial 

effect. Id. at ¶ 30, at 343. Instead, we required the record to reflect “the trial court’s 

identification of the purpose or purposes for admission of the evidence, the findings and 

conclusions establishing relevance and probative value, and the factors considered in 

balancing probative value against the potential for unfair prejudice.” Id. To ensure the 

probative value of the evidence is balanced against the potential for unfair prejudice, 

district courts are to make the following considerations:

In determining the probative value of prior bad acts 

evidence, the trial court should consider the following factors:

1. How clear is it that the defendant committed the 

prior bad act?

2. Does the defendant dispute the issue on which the 

state is offering the prior bad acts evidence?
4

3. Is other evidence available?

4. Is the evidence unnecessarily cumulative?

5. How much time has elapsed between the charged 

crime and the prior bad act?

Evidence is unfairly prejudicial if it tempts the jury to 

decide the case on an improper basis. In balancing against its 

probative value the unfair prejudice created by the evidence, 

the trial court should consider the extent to which the 

evidence distracts the jury from the central question whether 

the defendant committed the charged crime. The trial court 

should weigh these additional factors against the probative 

value of the evidence:

1. The reprehensible nature of the prior bad act. The 

more reprehensible the act, the more likely the jury 

will be tempted to punish the defendant for the prior 

act.

2. The sympathetic character of the alleged victim of

the prior bad act. Again, the jury will be tempted to 

punish the defendant for the prior act if the victim was 

especially vulnerable.

3. The similarity between the charged crime and the 

prior bad act. The more similar the acts, the greater is 

the likelihood that the jury will draw the improper 

inference that if the defendant did it once, he probably 

did it again.

4. The comparative enormity of the charged crime 

and the prior bad act. When the prior act is a more 

serious offense than the charged crime, the 

introduction of that act will tend to place the defendant 

in a different and unfavorable light.

5. The comparable relevance of the prior bad act to 

the proper and forbidden inferences. Evidence of the 

prior bad act may be much more probative of bad 
5

character than it is of any legitimate inference 

permitted by Rule 404(b).

6. Whether the prior act resulted in a conviction. The 

jury may be tempted to punish the defendant if they 

believe he escaped punishment for the prior bad act.

Gleason, 2002 WY 161, ¶ 27, 57 P.3d at 342-43 (quoting Rigler v. State, 941 P.2d 734, 

737 n.1 (Wyo. 1997)).

[¶9] A review of the record shows that the district court did not engage in the “shotgun 

approach” of which we disapproved in Gleason. Rather, it rightfully identified the 

purposes for which the prosecution sought introduction of the evidence and discussed 

each purpose, citing cases where the same type of evidence was used for the same 

purposes:

It is important that the Court identify -- and I have 

reviewed the case law with regard to the alleged admissible 

purposes being put forth by the State.

With regard to motive, it is clear and well settled in 

Wyoming that threats against a victim can be introduced 

properly to show motive.

Also, that the defendant’s conduct toward the victim 

may also be relevant at trial to establish motive, and that the 

prosecution is permitted to prove the accused’s motive to 

identify the accused as the perpetrator of the charged crime.

The case law the Court has reviewed and is relying on 

with regard to motive is Kenyon v. State, 96 P.3d 1016, a 

2004 case; Bhutto v. State, 114 P.3d 1252, also a 2004 case; 

and Mitchell v. State, 865 P.2d 591.

With regard to intent and malice, the Court is aware 

that there are both general and specific-intent crimes charged 

here.

The case law is also clear with regard to 404(b) 

evidence as it relates to intent and malice. Uncharged 

misconduct can be relevant and admissible to prove intent in 

both general and specific intent cases. That’s Johnson v. 

State, 936 P.2d 458, a 1997 case.
6

Also, prior conflicts between the parties, including 

assault, are properly used to show intent, Wilson v. State, at 

14 P.3d 912, it’s a 2000 case; again, the Bhutto case; Moore 

v. State, 80 P.3d 191; a 2003 case; and most recently, Rolle v. 

State, 236 P.3d 259, Wyoming 2010.

With regard to identity, it’s clear in Wyoming that 

evidence of other prior bad acts may be admitted for the 

purpose of proving identity. Again, that’s the Johnson case. 

The Johnson case, Rolle case, and Pena v. State, 780 P.2d 

316 a 1989 case. 

Finally, with regard to course of conduct, Wyoming 

case law is clear that evidence of prior assaults may be 

admissible to establish a course of conduct between the 

parties as part of intent. And, again, that’s the Moore v. State

case.

[¶10] After explaining why motive, intent, malice, identity, and course of conduct are 

proper purposes for this type of evidence in this case, the district court went on to explain 

why it was not going to allow in a significant portion of the prosecution’s requested 

evidence under W.R.E. 404(b). The district court found that the allegations regarding the 

previous girlfriend were not specific enough to warrant admission into evidence. Further, 

the district court found that some of the evidence regarding threats against the victim and 

her family were not offered for a proper purpose and lacked specificity and, thus, were 

also excluded. Thereafter, the district court analyzed the remaining evidence using all of 

the factors in Gleason. With respect to the proper purposes, the district court found:

First, is the evidence offered for a proper purpose 

under Vigil[?] With the exceptions, as I said, that I’ve just 

ruled on, I do find that based upon a review of the elements of 

the charged offenses, it does appear that the offered evidence 

is properly used for the identified purposes.

The defendant’s motive as well as his intent are clearly 

at issue in this case. It is unknown to me, but it would appear 

to the Court that the defendant disputes some, if not all, of the 

acts alleged.

Evidence of the relationship between [the appellant] 

and the alleged victim, including the discord and the violence 

that may have occurred between them, is relevant to the 
7

defendant’s motive to commit the alleged crimes, and it is 

also admissible to establish a course of conduct between the 

parties as part of intent.

Under the circumstances of the case and based upon 

the case law, the evidence proposed is properly offered for the 

purpose of showing motive, intent, identity, and absence of 

mistake, as well as course of conduct.

The record shows the district court engaged in a thoughtful analysis of the purposes for 

which the prosecution sought to introduce the evidence and carefully weighed the

probative value of the evidence against the potential for unfair prejudice.

[¶11] The appellant’s primary complaint appears to stem from the fact that the district 

court identified more than one proper purpose for the admission of the evidence. 

Clearly, the district court identified several proper purposes for the introduction of the 

evidence. However, that does not mean it engaged in the “shotgun approach” of simply 

naming every possible proper purpose. In fact, this Court previously has recognized that 

the district courts are not required to pinpoint only one proper purpose for the admission 

of evidence. Rolle, 2010 WY 100, ¶ 15, 236 P.3d at 268 n.3; Sturgis v. State, 932 P.2d 

199, 203 (Wyo. 1997). The district court correctly identified the proper purposes for the 

admission of the evidence and weighed the evidence in accordance with the Gleason 

factors. The district court’s conclusions were reasonable under the circumstances, and 

we do not find the district court abused its discretion.2

Did the district court abuse its discretion when it allowed the jury to 

review a transcript of a telephone recording between the appellant and 

the victim while the recording was being played at trial?

[¶12] During its case in chief, the prosecution played a recorded telephone conversation 

between the appellant and the victim. The jury was provided with a transcript of the 

conversation to review while the recording was played. The appellant objected to the use 

of the transcript on the grounds that he did not believe the victim—who was testifying at 

the time—knew if the transcript was an accurate reflection of the recording and that the 

 

2 Although we do not find the district court abused its discretion in its ultimate conclusion regarding the 

admission of the evidence under W.R.E. 404(b), we do feel compelled to clarify one of the factors in the 

Gleason analysis that was misapplied here. When determining the probative value of the evidence, the 

district court must ask whether “other evidence [is] available.” Gleason, 2002 WY 161, ¶ 27, 57 P.3d at 

342. Here, the district court analyzed whether other evidence of the uncharged misconduct was 

available. The correct question, however, is whether other evidence of the proper purpose—i.e., motive, 

intent, identity, etc.—is available. Mersereau v. State, 2012 WY 125, ¶ 26, 286 P.3d 97, 110 (Wyo. 

2012). If it is, the uncharged misconduct becomes less probative.
8

members of the jury should form their own opinions about what was being said on the 

recording. The district court overruled the appellant’s objection and informed the jury:

I would direct that after the recording is played, the 

transcripts will be collected from the members of the jury. 

And I would again specifically caution the members of the 

jury that even though the transcript is being given to you 

while you listen to the recording, it is only an aid to you in 

your consideration of the evidence, and you need to rely upon 

your own hearing and your own perception of this recording 

in connection with your actual evaluation and use of that 

evidence.

On appeal, the appellant argues that the district court abused its discretion when it 

allowed the jury to look at the transcript because there is nothing in the record to indicate 

the district court considered whether the transcript was reliable and consistent with the 

actual conversation in the recording.

[¶13] “The admission of evidence, including the admission of transcripts to assist the 

trier of fact, lies within the sound discretion of the trial court and will not be disturbed 

absent a clear abuse of discretion.” Munoz v. State, 849 P.2d 1299, 1300 (Wyo. 1993). 

While the transcripts in this case were not admitted into evidence, but only used as an aid, 

the abuse of discretion standard of review still applies. See United States v. Jacob, 377 

F.3d 573, 581 (6th Cir. 2004). This Court will not find that an abuse of discretion has 

occurred, so long as “there exists a legitimate basis for the trial court’s ruling.” Foster v. 

State, 2010 WY 8, ¶ 14, 224 P.3d 1, 7 (Wyo. 2010) (quoting Wimbley v. State, 2009 WY 

72, ¶ 10, 208 P.3d 608, 611 (Wyo. 2009)). Further, even if the use of the transcript was 

error, this Court will only reverse the appellant’s conviction if the error was prejudicial. 

Reay v. State, 2008 WY 13, ¶ 8, 176 P.3d 647, 650 (Wyo. 2008). “Error is prejudicial if 

there is a reasonable possibility that the verdict might have been more favorable to the 

defendant if the error had not been made.” Id.

[¶14] The appellant argues that the district court abused its discretion when it 

determined the jury could look at a transcript of the recorded telephone conversation 

without the district court first making a record as to why the transcript was necessary, 

accurate, and reliable. With respect to the accuracy and reliability of the transcript, the 

appellant asserts the district court had a duty to examine the person who prepared the 

transcript. However, this Court has never required the person who prepared the transcript 

specifically to testify in order to lay a foundation for the accuracy of a transcript. Instead, 

this Court has held that, “[w]hen testimony supplied by either the transcriber or a 

participant in the conversation verifies the transcript’s accuracy, authentication is 

satisfied.” Munoz, 849 P.2d at 1300 (emphasis added). Here, the victim, who was one of 

the participants in the recorded telephone conversation, testified that she had reviewed 
9

the transcript and, to the best of her knowledge, it appeared to be an accurate reflection of 

the conversation. Thus, the transcript was properly authenticated.

[¶15] Additionally, this Court has recognized that transcripts of a recording can be 

useful to a jury. See Crisp v. State, 944 P.2d 1165, 1168 (Wyo. 1997); Munoz, 849 P.2d 

at 1300. While there is nothing in the record to indicate exactly why the district court 

believed the transcript would be beneficial to the jury, it is not outside the bounds of 

reason to believe that it would be. We decline to find the district court abused its 

discretion in allowing the jury to look at the transcript while it was contemporaneously 

listening to the recording.

[¶16] It is worth noting that, even if the district court had abused its discretion in 

allowing the jury to use the transcript, the appellant has failed to demonstrate how the 

verdict may have been more favorable to him if the transcript had not been used. See 

Reay, 2008 WY 13, ¶ 8, 176 P.3d at 650. The appellant has spent a significant portion of 

his brief arguing that there is nothing in the record to show the transcript was accurate 

and reliable; however, at no time in his argument does he ever claim the transcript is 

inaccurate or unreliable. It is difficult to see how the appellant could be prejudiced by the 

lack of a record regarding the accuracy of the transcript if the transcript is, in fact, 

accurate.

Was trial counsel ineffective because he requested a continuance and 

filed a waiver of speedy trial signed by the appellant, contrary to the 

appellant’s desire not to waive his right to a speedy trial?

[¶17] Approximately two weeks before the appellant’s trial was to begin, the 

prosecution gave notice that it intended to introduce into evidence the recorded telephone 

conversation between the appellant and the victim. The appellant’s counsel objected to 

the notice and requested the evidence be excluded or, in the alternative, he be granted a 

continuance of the trial so that he could consult with an expert regarding the recording. 

The district court held a hearing on the matter and granted the appellant a continuance on 

the condition that the appellant file a written waiver of his right to speedy trial. The next 

day, the appellant filed a written waiver. Now, however, the appellant claims he did not 

want to waive his right to a speedy trial and that he received ineffective assistance of 

counsel when his trial attorney told the district court the appellant would waive that right 

and filed a waiver to that effect.

[¶18] When reviewing a claim of ineffective assistance of counsel, we review the record 

de novo. Mickelson v. State, 2012 WY 137, ¶ 16, 287 P.3d 750, 755 (Wyo. 2012). In 

order to prevail on a claim of ineffective assistance of counsel, the appellant “must 

demonstrate on the record that: 1) counsel’s performance was deficient and 2) prejudice 

resulted.” Jenkins v. State, 2011 WY 141, ¶ 5, 262 P.3d 552, 555 (Wyo. 2011) (quoting 

Dettloff v. State, 2007 WY 29, ¶ 17, 152 P.3d 376, 382 (Wyo. 2007)).
10

When reviewing a claim of ineffective 

assistance of counsel, the paramount determination is 

whether, in light of all the circumstances, trial 

counsel’s acts or omissions were outside the wide 

range of professionally competent assistance. Hirsch

[v. State, 2006 WY 66], ¶ 15, 135 P.3d [586,] 593 

[(Wyo. 2006)]. We indulge a strong presumption that 

counsel rendered adequate assistance and made all 

significant decisions in the exercise of reasonable 

professional judgment. Id. Under the two-prong 

standard articulated in Strickland [v. Washington, 466 

U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 

(1984)], to warrant reversal on a claim of ineffective 

assistance of counsel, an appellant must demonstrate 

that his counsel failed to render such assistance as 

would have been offered by a reasonably competent 

attorney and that counsel’s deficiency prejudiced the 

defense of the case. Id. “The benchmark for judging 

any claim of ineffectiveness must be whether counsel’s 

conduct so undermined the proper functioning of the 

adversarial process that the trial cannot be relied on as 

having produced a just result.” Id., quoting Strickland, 

466 U.S. at 686, 104 S.Ct. [at 2064].

The burden of proving that counsel was 

ineffective rests entirely on the appellant. Martinez v. 

State, 2006 WY 20, ¶ 23, 128 P.3d 652, 663 (Wyo. 

2006). The appellant must also demonstrate the 

existence of a reasonable probability that, absent the 

deficiency in counsel’s performance, the result of the 

proceedings would have been different. Id. A failure 

to make the required showing of either deficient 

performance or sufficient prejudice defeats an 

ineffectiveness claim. Id. An ineffectiveness claim 

may be disposed of solely on the ground of lack of 

sufficient prejudice. Id.

Dettloff, 2007 WY 29, ¶¶ 18-19, 152 P.3d at 382-83. We 

have also stated that when assailing counsel’s assistance, an 

appellant must provide more than mere speculation or 

equivocal inferences. Duke v. State, 2004 WY 120, ¶ 36, 99 
11

P.3d 928, 943 (Wyo. 2004), cert. denied, 544 U.S. 1062, 125 

S.Ct. 2513, 161 L.Ed.2d 1113 (2005).

Jenkins, 2011 WY 141, ¶ 6, 262 P.3d at 555.

[¶19] Here, we can readily dispose of the appellant’s claim of ineffectiveness due to the 

lack of a showing of sufficient prejudice. The appellant makes no argument whatsoever 

about how the result of the proceedings against him would have been different had his 

trial counsel not requested and received a continuance of the trial date. Instead, the 

entirety of his argument regarding prejudice is that the continuance and waiver of speedy 

trial “subjected him to further delay, incarceration, and anxiety.” This is an insufficient 

showing of prejudice and, thus, we find the appellant did not receive ineffective 

assistance of counsel.

CONCLUSION

[¶20] The district court did not abuse its discretion when it determined that testimony of 

previous violent acts committed by the appellant against the victim was admissible 

under W.R.E. 404(b). Further, the district court did not abuse its discretion when it 

allowed the jury to review a transcript of a recorded telephone conversation between the 

appellant and the victim while the jury was actively listening to the recording. Finally, 

the appellant did not receive ineffective assistance of trial counsel when his counsel 

requested and was granted a continuance of the trial date so counsel could consult with 

an expert witness. Affirmed.