### THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 92

APRIL TERM , A.D. 202 1

A ugust 11, 2021

BRADLEY DEAN JACKSON,

Appellant (Defendant),

v.

THE STATE OF WYOMING,

Appellee (Plaintiff). S

- 21

- 0015

A

ppeal from the District Court of Sheridan Cou n t y The Ho norable John G. Fenn , Judge

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel

. Argument by Mr. Morgan

.
Repre senting Appellee: Bridget L. H i ll, Atto rney General; Jen n y L. Craig , Deputy At torney General ; J

o shua C. Eames, Senior Assist ant Attorney Gener al; Tim othy P. Zintak, Senior Assistan t Attorney General

. Argument by Mr. Zintak

. Befo re FOX , C.J., and DAVIS * , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

* Chief Justi ce at tim e of oral argument

.

NOTICE: This opin ion is subject to for mal revi sion before pu blication in Paci fi c Repor ter T hi rd. Rea ders

are requested to notify the Clerk of the Sup reme C ourt, Supreme Court Building, Cheyenne, Wyomin g 82002, of any typographi cal or other formal errors so that corre ction may be made b efo re f inal pub lication in th e permanent volum e.1 FOX , Chief Justice

.
[¶1] A jury convicted Bradley Jackson of strangulation of a household member. On appeal, Mr. Jackson argues that th e district court er red when it admitted evidence that he violated a no

- contact order when he called the victim after his arrest , and that the victim’s hearsay statement recorded on the responding officer’s body cam should not have been allowed as an excited utterance. We a ffirm.

ISSUES

[¶2] Mr. Jackson raises thre e issues:

I. Was Mr. Jackson prejudiced by the admiss ion of evidence that he violated a no

- co ntact order when he called the victim from jail ?

II. Did the district court err when it determined the victim’s
state ment on the responding officer’ s body cam was an excited utterance?

III. Did cumulative error deprive Mr. Jackson of a fair trial?

FACTS

[¶3] Bradley Jackson and K.W.’s five

- year relationship ended after Mr. Jackson came home from the b a r , accused K.W. of cheatin g, repeatedly threw her to the bed, choked her, and smothered her with a blanket. The couple’s upstairs neighbor s overheard the commotion and called the police. Corporal Nevada Kri n kee arrived on the scene, heard a thu d and a sc ream, then knocked on the door and announced himself. K.W. answered the door

, and Corporal Kr in kee entered the apartment. Cor p oral Kri n kee directed Mr. J ackson and K. W . to separate areas of the apartment while the y waited for a second officer to arrive o n the scene. When the second officer arrived, he took Mr. Jackson into the hall and Corporal Kri n k e e spoke to K.W. in the livi ng room

.
[¶4] Initially, K.W. reported that Mr. Jackson had arrived home drunk and had shoved her

. Corporal Kri n kee did not believe her initi al statement. As he questioned her , K.W.’s story evolved. A bout ten minutes after Corporal Krinkee arrived at the apartment, K.W. fully disclosed her version of the night’s ev ents. She reported that Mr. Jackson arrived home from the bar, went into the bedroom, and accused her of cheating on him with a friend

. Mr. Jackson then went to the kit chen and after several minutes returned

, threw t he blankets off K.W. and onto the floor, and w hen K.W. stood to retrieve them, he pushed her back onto the bed with his hands around her neck and his thumbs pushing into the underside of her jaw. K.W. asserted that sh e could not breathe and felt a throbbing pain2 around h er neck. T his happened three times. Mr. Jackson also placed the blankets over K.W.’s head , making it diff icult for her to breathe

. He then discovered K.W.’s phone and took it to the kitchen. K.W. chased after him

, smacked the phone out of his hand , and picked it up

. As she backed out of the kitchen

, Corporal Krinkee k nocked on the door.

[¶5] Corporal Krinkee took photos of K.W.’s injuries, including a mark under her chin and bruises on her arms. He arrested Mr. Jackson

, w ho was charged w ith stra ngulation of a household m ember. The c ircuit c ourt ordered Mr. Jackson to have no contact with K.W. Despite this order, Mr. Jackson called K.W. twice

. K.W. did no t answer Mr. Jackson’s f i r st call, but she did speak to him when he called later in the day. In the jailhouse recording, s he told Mr. Jackson that they were not supposed to be talk ing and Mr. Jackson sa id:

Okay. So I just wa nt ed to let you know like this i s really bad for me, really bad. So, I ’ m not sure w hat you told those guys but it ’ s really bad for me. Griz [his dog] will be gone. I won’t have a job left. I ’ ll probably hav e to sell the truck. At least my house is ren ted maybe that will still be there. I just wanted to let you know, I ’ m not sure what you said, but it’s way bad. And everything else goes without saying. You know I am obviously sorry as [expletive] and everything else. But than ks for g etting it. I do n’t know who you ’ ve talke d to otherwise. Anyone?

The pair then talked for a few more seconds about who K.W. had s poke n with and her injuries. Then she indicated again they were not supposed to be speaking

, a nd they hung
up. Mr. Jackson then called a friend and admitted he had called K.W. even though he was unde r a no

- contact order.

[¶6] The State filed a pretrial notice that it intended to introduce the phone calls and the fact Mr. Jackson made them in violati on of a no

- contact o rder. The State argued that th e evidence was admissibl e as “post

- crime guilty m i nd evidence” and therefore not subject to W.R.E. 404(b), but asserted it was admissible even if the court determine d Rule 404(b) applied

. At the first pre trial conferen ce , the district court p roposed excluding the

ex i s t ence of the no

- contact order to avoid the Rule 404(b) issue. The State opposed this suggesti on , arguing Mr. Jackson ’s violation of the no

- contact order was “guilty

- mind evide nce” and therefore outside Rul e 404(b ), and “among the State’s more probative

e v idence .” Mr. Jackson objected to the admission of the recorded phone calls, but, despite makin g a propensity argument, agreed they were not subject to Rule 404(b). The distri ct court took the issue under advisement and

, at the second pretrial conference

, ruled in the State’s favor and unde rtook a brief 404(b) analysis despite both parties st ating it did not apply

. T he district court allowed the evidence that Mr. Jackson viola ted a no

-3 contact order when he called K.W., but excluded Mr. Jackson’s contempt of court conviction

.
[¶7] The S tate also filed a pre tri a l not ice that it intended to introdu ce Corporal Krinkee’s body cam video of K.W

. ’s statement

. It asserted the body cam vide o was admissible under the excited utteran ce exception in W.R.E. 80 3(2). Mr. Jackson
p r e served his objection to the evidence at the second pretrial conference and asserted the district court should determine the admissibility of the evidence when it was p resented at
t rial. At trial, both sides a dm i t ted p arts of the body cam footage. At one point, the State moved to introduce a five

- minute portion of Corporal Krinkee’s body cam vid e o

. Mr. Jackson objected and argued that it was misleading and the State sho uld show the entire video. The district court overruled the obj e ctio n and sai d

, “ [ I ] f you want additional portions of th at body

- cam video to b e a dm itted, you can do that on cross

examination.

. . . There was some discussion at pretrial about the hearsay component of that. And the Court finds that there’s sufficient foundatio n that it qualifies as an excited
utterance. ” O n cross

- examination, Mr. Jackson’s attorney questioned Corporal Krinkee about K.W.’s statements to him about her injuries. The State objected to the que stioning on hearsay grounds

, and the distric t court overruled the object io n because it had admitted the statements as excited utterances.

[¶8] Mr. Jackson’s theory was that he committed domestic battery, but not strangulation

, becau se he did not impede K.W.’s breathing or cir culation

. Compare Wyo. Stat. Ann. § 6

- 2

- 511(a) (LexisNexis 2019) (“ A household member is guilty of domestic battery if he knowingly or recklessly causes bodily injury to another household member by use of physic al force

. ”) with Wyo. Stat. An n. § 6

- 2

- 5 09(a) (“ A person is
gu ilty of strangulation of a household member if he intentionally and knowingly or recklessly causes or attempts to cause bodily injury to a household member by impeding the normal b reathing or ci rculation of blood

. ”). The ju ry convict ed Mr. Jackson of
st r a ngulation of a household member

, and the district court sentenced him to three to five years in prison. Mr. Jackson appeals.

DISCU SSION

I. Mr. Jackson Was Not Prejudiced b y t he Admiss ion o f t he Recorded Ph one Calls

[¶9] Prior to trial, the State filed notice of its intent to introduce Mr. Jackson’s jailhous e phone calls , including the fact that they were made in violation of a no

- contac t orde r, as evidence at trial

. The State , citi ng P al mer v. S tate , 2009 WY 129, 218 P.3d 941 (Wyo. 2009), argued the calls were “guilty

- mind ” evidence and therefore not subject to a 404(b) Gleason analysis

, and Mr. Jackson agreed wit h the S tate’s assertion

. The district court recognized the potential 404(b) problem and conducted an abbreviated analysis of the issue : “In conducting the 404(b) analysis, the Court finds that the evidence is being offered for a proper purpose, t hat is, state of min d of guilt, that the evidence is relevant,4 and the probative value is not substantially outweighed by the unfair prejudice.” At oral
arg ument on appeal

, Mr. Jackson ’ s counsel argue d that tri al counsel on both s id es misapplied the Palm er analysis and suggested that the jailhouse phone calls should hav e been subject ed to a 404(b ) analysis

. Mr. Jackson a sked this Court to clarify whether Palmer ex cluded all “guilty

- mind” evide nc e from a 404(b) analysis

. We take this opportunity to do so

.

A. Palmer , Rule 404(b), and C onsciousness of G uilt E vidence

[¶10] “A core principl e of Wyoming Rule of Evidence 404(b) ‘is tha t the defe ndant in a criminal ca se should not be convicted because he is an unsavory person, nor because of past misdeeds, but only because of his guilt of the particular crime charged. ’” Blanchar d v. State , 202 0 WY 97, ¶ 18 , 468 P.3d 685, 691 (Wyo. 2020) (quoting Vinson v. State
, 202 0 WY 93
, ¶ 17, 467 P.3d 1009 , 1012 (Wyo. 2020)). To protect against this, the State is required to give notice of its intent to use 404(b) evidence. Gutierrez v. State
, 2020 WY 150 , ¶ 4, 477 P. 3d 528, 53 0 (Wyo. 2020). This notice the n triggers a Gleason h earing in which the district court must follow “a mandatory procedure . . . for testing the admissibility of 404(b) evidence.” Putnam v. State , 2020 WY 133, ¶ 31, 474 P.3d 61 3, 62 2 (Wyo. 2020) . To be admissible:

(1) the evidence m ust be offered for a p roper purpose; (2) the evidence must be relevant; (3) the probative value of the evidence must not be substantially outweighed by its potential for unfair prejudice; and (4) upon r equest, the t rial court must instruc t the ju ry that th e similar acts evide nc e is to be considered only for the proper purpose for which it was admitted.

Id. (quoting Moser v. State , 2018 WY 12, ¶ 21, 409 P.3d 1236, 1243

- 44 (Wyo. 2018)).

[¶11] I n Palmer

, we e xcluded certa in instances of “guilty

- mind ,” also calle d

“ consciousness of gu il t , ” evidence from the 404(b) analysis. There, the State proffered evidence from a witness that Mr. Palmer and another party asked the witness to provide a false al ibi for Mr. Pa lmer. Palmer , 2009 WY 129
, ¶ 10, 21 8 P.3d a t 944. Th e State asserted the e vidence was not character evidence under Rule 404(b), but rather “guilty

mind” evidence. Id . at ¶ 13, 218 P.3d at 945. We held, the “W.R.E. 404(b) analysis does

no t apply to post

- crime ‘ guilt y mind ’ evidence such a s that o ffered by the State in the ins ta nt case.” Id

. (emphasis added). Palmer did not place all “guilty

- mind” or

“ consciousness of guilt ” evidence outside the 404(b) framework.

[¶12] Wyoming Rule of Evidence 404(b) provi des: “ Evidenc e of other crimes, wrongs,

or a cts is not admissible to prove t he character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes .” Not a ll5 guilty

- mind evidence is evidence of “ other crimes, wrongs, or acts” and therefore may not r equire 404(b) analys is . However, guilty

- mind evidence may also be evidence of other crimes , wrongs, or act s. In those circ umstances , other jurisdictions categorize “guilty

- mind,” or “ consciousness of guilt ” eviden ce as a proper purpo se to be an alyzed und er Rule 404(b). See

, e.g. , United States v. Cordero , 973 F.3d 603, 619 (6th Cir. 2020) (Threat of violence against a witness was admissible under Rule 404(b) to show consciousness of guilt); United Sta tes v. Almeid a , 748 F.3d 41, 51

- 52 (1st Cir. 2014) (up holding distr ict cou rt ’s d ecision that defendant’s use of false identification was admissible under Rule 404(b) as consciousness of guilt); United St ates v. Simmons , 470 F.3d 1115, 1125 (5th Cir. 2006) (defendant’s state

- court testimony was admis sible unde r Rule 404(b) becaus e it was admitt ed to show consciousness of guilt, not that he “ was a bad person, and, therefore, must have [committed the crime] ”); United States v. Hayden

, 85 F.3d 153, 159 (4th Cir . 1996) (“Evi dence of witness intimidation i s admissib le to prove consciou sn e ss of guilt a nd criminal intent under Rule 404(b)

. ”); United States v. Mickens , 926 F.2d 1323, 1329 (2nd Cir. 1991) (“ [T ] he standards for admission of Rule 404(b) evidence were sa tisfied. The testimony . . . was not offere d to prove Mickens’ bad charac te r or crim inal propensi ty, but rather to prove his consciousness of guilt.”); see also 1 McCormick On Evid. § 190.5 (8th ed.) , Westlaw (database updated January 2020) (“ [ A ] variation of the reasoning permits proof of a con sciousness of guilt as evidence d by criminal acts of t he accused that are de signed to obstruct justi ce or to avoid punishment.”). We join the jurisdictions that consider “ consciousness of guilt, ” or “guilty

- mind” evidence a proper purpose under Rule 404(b ). If the S tate proposes using evidence of “other cr imes, wrongs, or act s” to show the defendant’s “ consciousness of guilt ” it must give notice of that intent and the court must apply the standard Gleason analysis

.

B. Standard of Review

[¶13] Mr. Jackson filed a pretr ial demand for notice of the St ate’s inte nt to use 404(b) evi de nce. Therefore , we review first for an abuse of discretion. Mitchell v. State

, 2020 WY 142, ¶ ¶ 2 0

- 21 , 476 P.3d 224, 232 (Wyo. 2020)

. Here , because the parti es argued the evidence fell outsid e Rule 404 (b), the d istrict court only m ad e a cursory 404(b) ruling 1

1 I n his writ ten appeal, Mr. Jackson a rgued the district court erred when it admitted evidence that he violated a no

- contact order wh en he called K.W. because it was irrelevant and prejudicial under W.R.E. 401 through 403. During oral argument, we asked Mr. J ackson’s counsel whether Rule 40 4( b) applied to this case and he said

, “ I do think it’s a 404(b) analysis. I do think the court did kind of apply a 404 (b) analysis.” See Bourke v. Grey Wolf Drilling Co., LP
, 2013 WY 93, ¶ 4 2 n.8
, 305 P.3d 1164, 1 174 n. 8 (Wyo. 2013) (declining to address potential venue issue because it was not briefed and neither party “conceded or contended tha t the objectio n to venue w as waived when they were asked about that possibility at oral argument”)

. B ecause t he district court did “ kin d of apply a 404(b ) analysis,” and because we conclude the evidence should have been analyzed under W.R.E. 404(b), and counsel asserte d at oral ar gument that Rule 404 (b) should apply

, we discuss it under that rule. T he W. R.E. 401 through 403 relevancy and balancing test s a re the second and third elements of the 404(b) analysis. Putnam , 20206 and did not review any of the Gleason factors

. 2 “Our task in reviewing a district court ’ s decision on the adm issibility of uncharged misconduct evidence is to dete rmine whether the di st ri ct court abused its discretion, not to apply the Gleason /Vigil [ v. State
, 926 P.2d 351 (Wyo. 1996) ] test anew.” Miller v. State

, 2021 WY 16, ¶ 17, 479 P.3d 387, 392 (Wyo. 2021)

. T he distric t court identified “ state of mi nd of guil t” as the proper pur po se but did not evalua te the factors. “[A] buse of discretion, or the lack thereof, cannot be determined by reviewing a record that cont ains no info rmation as to how that discretio n

was exerc ised.” Cercy v . Sta te , 2019 WY 131, ¶ 39, 455 P.3d 678, 691 (Wyo. 2 019) (quoting Gleason , 2002 WY 161
, ¶ 28, 57 P.3d 343)

. Because the dis trict court made a 404(b) ruling without examining the Gleason factor s , our inquiry turns to whether Mr. Jack son was prejudiced by the a dm ission of the 40 4(b) evidence. Miller , 2021 W Y 16, ¶ 17, 479 P.3d at 392

. “ [ A ] n error is prejudicial when ‘there is a reasonable

WY 133
, ¶ 31, 474 P.3d at 622

. 2 The Gleaso n fac tors are: 1. How clear is it that the defendant committed the prior bad act? 2. D oes the defendant dispute the i ssu e on which the sta te is offering the prior bad acts evidence? 3. Is other evidence available? 4. Is the evi dence unnecessarily cumula tive? 5. How much time has elapsed between the charged crime and the prior bad act?

. . . The t rial court should [then ] w eigh [the followin g] factors against the probative value of the evidence: 1. The reprehensible nature of the prio r bad act. The more reprehensib le the act, the more likel y the jury will be tempted to punish the defendant for the prior act. 2. The symp ath etic character of the alleged victim of the prior bad act. Again, the jury will be tempted to punish the defendan t for the prior act if the vict im was especially vulnerable. 3. The similarity between the charged crime an d the pr ior bad act. The

more sim ilar the acts, the greater is the likelihood that the jury will draw the improper inference that if the defendant did it once, he prob ably did i t again. 4. The comparative enormity of the charged crime and the prior bad

a ct. Whe n the prior act is a mo re serious offense th an the charged crime, the introduction of that act will tend to place the defendant in a different and unfavorable l ight. 5. The comparable relevance of the prior bad act to the proper and forbidden infe rences. Evidence of the prior ba d act may be much m ore probative of bad character tha n it is of any legitimate inference permitted by Rule 404(b). 6. Whether the pri or act r esulted in a conviction. The jury may be tempted to punish the defendant if the y believ e he escaped punishment f o r the prior bad ac t. Lajeunesse v. State
, 2020 WY 29, ¶ 11
, 458 P.3d 1213, 1218 (Wyo. 2020) (quoting Gleason v. State
, 2002 WY 161
, ¶ 27, 57 P.3d 332, 342

- 43 (Wyo. 2002) ).7 probability that the result would have been more f avorable to the defendant had the error
not oc curred. ’ ” Id

. at ¶ 18, 479 P. 3d at 392 ( quoti ng Mitchell , 2020 WY 142
, ¶ 2 1, 476 P.3d a t 232)

.
C. No P rejudice

[¶14] Mr. Jackson does not argue that the calls were inadmissible. Rather, he asserts he was prejudiced when the State introduced evidence he viol ated a no

- contact order wh en he called K.W. f rom jail

. To support his argu ment, Mr. Jackson points t o the number of times the State referenced the no

- contact violation and the State’s statement at the pretrial conference that it was “among the State’s mor e probative evid ence

. ” He d oes not, however, explain how there is a reason able probability the result would have been more favorable to him without the e videnc e.

[¶15] T here was plen ty of other evidenc e to support the jury’s conviction . K.W. testified in detai l about Mr. Jackson strangling her

, the upstairs neighbors testified abo ut what they overheard, including Mr. Jackson’s state ment , “ How about I [e xpl etive] strangle you,” multiple witnesses testified about K.W.’s injuries and the St ate i ntroduced photographs of the injuries, the nurse practit ioner who examined K.W. at urgent c are testified that the carotid artery was located underneath the visible abrasions on K.W.’s neck, and the State i ntr oduced a recorde d phone call in wh ich Mr. Jackson admitted he grabbed K .W. by the neck

. Considering the record, there is no reasonable probab ility the

v erdict would have bee n m ore favorable to Mr. Jackson without the evidence that he violated a no

- con tact order when he called K.W. from jail.

II. The D istrict C ourt D id N ot E rr by A dmitting the B ody ca m V ideo as an E xcited U

tterance

A. Standar d of Revie w

[¶16] The partie s disagr ee about whether we should apply an abuse of discretion or a plain error s tandard. The State filed a pretrial notice of intent to introduce W.R.E. 803(2) excited utterance evidence and analyzed the five factors

. At the second pr etrial

con ference, the Sta te discussed the factors and asserted the purpose of the filing was to give notice so the court was prepared to rule on the issue at trial. Mr. Jackson lodged a
gene ral o bjection to the evide nce , stating: “ [ W ] e wo uld prefer to reserve our objection. We will raise an objection to the evidence that the State wants to introduce in th eir notice here.” The district court a ssured the pa rties it would review t he evidence before the trial. At trial, the State moved to introduce a fiv e

- minute portion of the body cam footage rather than the entire video

. Mr. Jac kson objected on completeness grounds and the district court ruled: “ Based on that objection, Exhibit 26 is admitted . The re was some discussion at pretrial about the hearsay component of that. And the Court fi nds that there’s sufficien t f oundation that i t qualifies as an excited utterance. So 26 is admitted.”8 [¶17] Because Mr. Jackson did not object on hearsay grounds at trial we w ould normally review for plain error. Gutierrez
, 2020 WY 15 0
, ¶ 5, 477 P.3d at 530

. Plain error revi ew is premised on the idea that, “ [w] ithout a proper objection, the district court did not have an opportunity to addre ss and, if appropriate, correct the error.” Bus zkiewic v. State

, 2018 WY 100, ¶ 33, 424 P.3 d 1 272, 1282 (Wyo. 2018)

. Fu rther, “ [i] t is a basic premise of appellate practic e that to preserve an issue for appeal

, that issue must be called to the attention of the trial court in a clear manne r. ” Cowboy’s LLC v. Schumacher , 2018 WY 61, ¶ 16, 419 P. 3d 498 , 503 (Wyo. 2018) (c ita tions omitted)

. Here, the excited utterance issue was clearly called to t he district court ’s attention

. The State thoroughly briefed the issue, Mr. Jackson lodged a gen eral objection to the evidence at the second pretrial

con fer ence, the district cour t w as fully apprise d of the excited utterance argument, and it ruled the body cam footage qualified as an excited utterance when the State moved to admit it at trial. Thus, in this case

, we review for an abuse of discretion. See Gar land v. State , 2017 WY 102 , ¶ 17, 401 P.3d 480, 485 (Wyo. 2017) (quoting 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 1 :10 (4th ed. 2013) ) (a party who lodged an objection p retrial does not need to renew the objection if the court en tered a definitive ruli ng e ither pre trial o r during the trial)

.

B. W.R.E. 803(2) E xcited U tterance

[¶18] “‘ Hearsay ’ is a statemen t, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of th e m atter asserted

. ” W.R.E

. 8 01 (c)

. Generall y, hearsay is inadmissible. W.R.E. 802. However, there ar e several exceptions to the general rul e , including W.R.E. 803(2), which permits excited
utteran ces

. An excited utterance is “ [ a ] statement relating to a s tartling event or condi tio n made while the declarant was under the stress of excitement caused by the event or condition.” W.R .E. 803(2). This Court has identified five f actors courts should con sider when applying the excited utterance exception: “(1 ) th e nature of the startli ng event; (2) the d eclarant’s physical manifestation of exciteme nt; (3) the declarant’s age; (4) the lapse of time between the event and the hearsay statement; and (5) wheth er the sta tement was made in response to an inquiry.” B ruce v. State , 2015 WY 46, ¶ 4 8, 346 P.3d 909, 924 (Wyo. 2015) ( citations omitted).

[¶19] Review of the body cam footage reveals that t he first factor weighs in favor of admission. K.W. was the victim of a violent crime that took p lace in her own home

. Mr. Jac kson asserts the second fac tor weighs against admission because K.W. shows little emotion for the first fou r to five minutes of the video. However, K.W. visibly exhibits more emotion as her discussio n with Corporal Krinkee continues and she tells him more abo ut the full scope of th e a ltercation with Mr. Jackson

. By the time she explains the strangulation, K.W . is crying and rocking on the sof a. Thus, the second factor weighs toward admission. The t hird factor is neutral

. Sanchez v. State , 2011 WY 77, ¶ 23, 253 P.3d 136, 143 (Wyo . 2 011)

. The fourt h factor also weighs toward9 admission

. W hile it is unclear how much time passed between when Mr. Jackson strangled K.W. an d her statement to Corporal Kri nkee, it is un disputed that the altercation between K.W . and Mr. Jackson was ongoin g a nd only stopped when Corporal Krinkee knocked on the door. Bruce , 2015 WY 46
, ¶ 50, 346 P.3d at 925

.
[¶20] The fifth factor weighs against admission. K.W. made her full sta tement only after extended questioning from Corporal Kr inkee

, whe n he made it clear he did not believe K.W.’s initial statements

. When K.W. finally told her full story

, she described what Mr. Jackson did , but did not say she could not breathe until C orpor al Krinkee suggested it wi th a leading quest ion. Fu rther, i t was Corporal Krinkee, not K.W.

, wh o described Mr. Jackson’s actions as “strangulation.” Thi s is dif ferent than the open

- en ded questioning in ot her cases and more akin to “detailed int e rro g ation

- style q uestioning that might n egate the use of the excited utterance exception.” 30B Fed. Prac. & Proc. Evid. § 6819 , Westlaw (database up dated April 20 21) ; Com pare Sanchez

, 2011 WY 7 7
, ¶ 23, 253 P.3d at 143 ( no indication victim’s statements were in res ponse to the officer’s inquiry); Boykin v. State , 2005 WY 15, ¶ 10, 105 P.3d 481, 484 (Wyo. 2005) ( The victim’s non

- responsive answer to the clerk’s inqui ry sugge sted her response was

s pon taneous and not th e result of reflection

. ) ; Oldman v. State

, 998 P.2 d 957, 963 (Wyo. 2000) ( finding that the fifth factor weighed in favor of admission because the victim made her statement before the doctor asked any ques tions); Dike v. State

, 990 P.2d 10 12, 1022 (Wyo. 199 9) ( “ [M] any of the victim ’ s statements were not re ally in response to the dispatcher ’ s inquiries, and it appears that the questioning was really an attempt by the dispatcher to calm the victim. ” ) ; with Un ited Sta tes v. Frost , 684 F.3d 96 3
, 973

- 75 (10th Cir . 2012) (suggesting that office r’s detailed questi oning asking the victim to walk him through what happened, as opposed to simply asking “what happened,” indicate s a lack of spontaneity but not significan tly enou gh to satisfy plain err or )

, overruled on oth er ground s by United States v. Bustamante

- Conchas

, 850 F.3d 1130 (10 th Cir. 2017)

.
[¶21] Here, though the fifth factor weighs against admission, the first, second, and fourth factors weigh in its favor. Furt her, whi le the factors are a he lpf ul tool, the ultim ate inquiry “remains whether the ‘declarant’s cond ition at the time was such that the statement was spontaneous, excited or impul sive rather than the product of reflection and deliberation.’” Bruce , 2015 WY 46
, ¶ 48, 346 P.3d at 924 ( quo ting Sanchez , 2011 WY 77
, ¶ 22, 253 P.3d at 143). The video shows t hat K.W. was very upset when she responded to Corporal Krinkee’s questions

. While her answers occurred in response to his ques tioning, they appear sponta neous ra ther than the result of re flection. The dis trict
court could reasonably find the statement wa s an excited utterance. Therefo re, it did not abuse its discretion.

III

. No C umulative E rror

[¶22] Mr. Jackson argues tha t the combination of the two issu es result s in prejudicial
error, e ven if the issues on their own do not. “Cumulative error occurs when two or more10 nonre versible errors have the pote ntial to prejudice the defendant to the same extent as a single reversible error .” McGil l v. State , 2015 WY 132
, ¶ 2 1 , 357 P.3d 114 0, 1148 (Wyo. 2015) (citing McClelland v. State , 2007 WY 57, ¶ 27, 155 P.3 d 1 013, 1022 (Wyo. 2007)). “In conducting a cumula tive error evaluation, we consider only matters that we have determined to be e rrors.” Bogard v. State

, 2019 W Y 96, ¶ 69, 449 P.3d 315, 332 (Wyo. 2019) ( quoting Guy v. State , 2008 WY 56, ¶ 45, 184 P.3d 687

, 701 (Wyo. 2008)). Here,

we found that Mr. Jackso n was not prejudiced by the admission of the “guilty

- mind” evidence , and the d istrict c ourt did not err when i t admitted the body c am video as an excited utteranc e. Thus, there is no basis for Mr. Jackson ’s claim of cumulative error.

CONCLUSION

[¶23] Mr. Ja ckson was not prejudiced by the introduction o f evidence that he violated a

no

- c ontact or der when he called the vi ctim and the distr ict court did not abuse its discretion when it admitted the body cam video as an excited utterance. Finding no error

occurr ed, there is no basis for Mr. Jackson’s cumula tive error claim. Affirmed.