Summary 2006 WY 108

Summary of Decision issued August 31, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library for assistance.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Gabbert v. State

Citation: 2006 WY 108

Docket Number: 05-34

Appeal from the District Court of Converse County, the Honorable John C. Brooks, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina M. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Issue: Whether fundamental error occurred in instructing the jury. Whether there was insufficient evidence to convict Appellant of two counts of kidnapping. Whether prosecutorial misconduct occurred during trial, warranting reversal. Whether the trial court erred in admitting irrelevant testimony regarding the arrest of Appellant. Whether cumulative error occurred, warranting reversal.

Holding: Appellant was convicted after a jury trial of one count of aggravated robbery, two counts of aggravated assault, four counts of kidnapping (Hershberger, Thomas and Thomas’ two children), one count of conspiracy to deliver a controlled substance, one count of delivery of a controlled substance and one count of using a firearm during the commission of felonies.
Issue I – Jury Instructions: Appellant did not object to the challenged instructions at trial therefore the Court reviewed them under the doctrine of plain error. The doctrine demands the record be clear as to the incident alleged as error, that the Appellant demonstrate the existence of a clear and unequivocal rule of law which was violated in a clear and obvious way, and that the error adversely affected a substantial right resulting in material prejudice to Appellant. The kidnapping statute required the jury to determine whether Appellant confined the victims with the intent to facilitate a felony. The larceny instruction given by the district court did not differentiate between the crime of misdemeanor larceny and felony larceny. The record reflects that at trial the district court failed to properly instruct the jury on an essential element of the kidnapping crime. The Court reversed Appellant’s kidnapping convictions. Having determined that Appellant’s convictions on the kidnapping charges must be reversed, the conviction on the use-of-firearm conviction must likewise be reversed.
Issue II – Evidentiary Sufficiency: This claim involves the kidnapping convictions pertaining to the Thomas children. The convictions have been reversed but the claim must be addressed because a finding of insufficient evidence on those convictions would amount to a judgment of acquittal and would prohibit the State from retrying Appellant on those charges. Citing Bush v. State, Appellant claimed Instruction No. 27 contained alternative theories for satisfying the unlawful confinement element and sufficient evidence must exist on both alternatives to sustain the conviction on each count. Instruction No. 27 was a definitional instruction. The Court stated that the rule of Bush does not apply to definitional instructions. Additionally, the Court stated that there is no need under Bush and its progeny for sufficient evidence to exist as to both subsections of the challenged definitional instruction.
Issue III – Prosecutorial Misconduct: When reviewing a claim of prosecutorial misconduct, the entire record must be considered. The Court’s primary focus is whether an accused’s case has been so seriously prejudiced by the error that a fair trial has been denied. Appellant bears the burden of establishing prejudicial error. The Court carefully examined Appellant’s various prosecutorial misconduct claims and concluded that Appellant had not established reversible error with respect to any of his allegations. He did not demonstrate within the context of the record of the case how the prosecutor’s alleged improprieties adversely affected his trial. The Court was not convinced from their review of the entire record that any of the complained of conduct had a deleterious effect on the jury’s verdict.
Issue IV – Admission of Evidence: The Court’s standard when reviewing a trial court’s evidentiary ruling is that such decisions are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality and remoteness of the evidence. In the absence of an abuse of discretion the Court will not disturb the trial court’s determination. The burden is on the defendant to establish such an abuse. It would require that Appellant show that the outcome of the trial could have been more favorable had the error not occurred. Within the record of the case, Appellant failed to demonstrate how the outcome of his trial would have been more favorable absent the complained of testimony.
Issue V – Cumulative Error: The Court did not consider the claim that the cumulative effect of the errors complained of warranted reversal even if they did not warrant it when standing alone.

The Court reversed the four kidnapping convictions. As a result the use-of-firearm conviction was also reversed. The case was remanded on those charges. The remaining issues were found to have no merit and those convictions affirmed.

J. Golden delivered the order for the court.

Link to the case: http://tinyurl.com/gw69c .