Summary 2007 WY 155

Summary of Decision issued September 26, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Marquez-Guitierrez v. State

Citation: 2007 WY 155

Docket Number: 06-117

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Defendant): D. Terry Rogers, State Public Defender; and Donna D. Domonkos, Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Senior Assistant Attorney General. Argument by Mr. Rehurek.

Issue: Whether the district court erred in denying Appellant’s motion to suppress the evidence when he was illegally detained and there was no reasonable suspicion to detain him until he consented to a search of his vehicle.

Facts/Discussion: After approximately 180 pounds of marijuana was discovered in the van in which he was a passenger, Appellant was arrested. A jury found him guilty on three counts of drug-related charges.
Standard of Review: The Court will not disturb a ruling on a motion to suppress absent a clear abuse of discretion.
Appellant claims that the Trooper impermissibly expanded the scope of the traffic stop, that the consent to search was tainted by the illegal detention and that these errors violated both the federal and state constitutions.
State Constitutional Analysis: Article 1, § 4 of the Wyoming Constitution requires searches and seizures to be reasonable under all of the circumstances. The Court must analyze the reasonableness of the detention under all of the circumstances, and whether or not the trooper had reasonable suspicion to justify the intrusive measures used. The district court held that the detention was reasonable in the instant case because the observations made by the trooper supported his reasonable suspicion and allowed the continued detention. The Court agreed and noted their statement in Marinaro v. State that during the course of a legal detention of an individual, law enforcement officers may pose questions to that person that are unrelated to the underlying purpose of the seizure and that are not independently justified by reasonable suspicion. From the Court’s review of the record, the Court concluded that the district court’s conclusion was supported by the evidence presented. Although any of the circumstances alone may not have justified the detention, all of them together support the conclusion the Trooper had reasonable suspicion to believe criminal activity was afoot. Appellant substantially relied on O’Boyle which the Court noted was distinguishable in the case “both by the extensiveness of the questioning and the absence of a reasonable suspicion of criminal activity.”
Appellant argued that his consent to the search of his vehicle was involuntary because it was preceded by an unlawful detention. The argument failed because the Court had already held that the detention prior to consent was lawful. The consent to search was given by the driver, not Appellant. It was apparent from the facts in the record and the testimony from the driver at the suppression hearing, that no constitutional violation had occurred.
Federal Constitutional Analysis: In determining whether a traffic stop detention was reasonable under the Fourth Amendment, the Court applied the two-part Terry stop inquiry: whether the initial stop was justified and whether the officer’s actions during the detention were reasonably related to the circumstances. The initial stop was not challenged so the Court focused on whether the trooper’s actions were reasonably related in scope to the circumstances. The Court was guided by the principles delineated in O’Boyle. They concluded the scope of the detention initially was appropriately tailored to the reason for the stop.

Holding: It was apparent from the facts in the record and the testimony from the driver at the suppression hearing, that no state constitutional violation had occurred. Based on the record the Court concluded the detention did not violate the Fourth Amendment to the United States Constitution.

Affirmed.

J. Hill delivered the opinion.

Link: http://tinyurl.com/2s6t7p .

Order Suspending Attorney

Summary of Order issued September 25, 2007

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

Case Name: Board of Professional Responsibility, Wyoming State Bar v. William Daniel Elsom

Docket Number: D-07-0004

Order Suspending Attorney From the Practice of Law

The matter came before the Court upon a Notice of Filing of Judgment, filed August 30, 2007, by Bar Counsel for the Wyoming State Bar. Bar Counsel provided the Court with a copy of the “Judgment in a Criminal Case” that was filed on October 5, 2006 in the case of United States of America v. William D. “Dan” Elsom. Mr. Elsom has been convicted of conspiracy to commit sales of unregistered securities, a felony under federal law. Pursuant to Section 18, the Court is required to enter an order immediately suspending the attorney. See also, Section 3(y)(i).

Ordered that, effective immediately, Elsom is suspended from the practice of law in this state, pursuant to Section 18 of the Disciplinary Code, pending final disposition in a disciplinary proceeding. This Order will be transmitted by the Clerk of the Court to the Board of Responsibility and to Bar Counsel for the Wyoming State Bar.

C.J. Voigt delivered the order for the court.

Order Adopting Emergency Temporary Provision

Summary of Order issued September 24, 2007

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

Order Adopting Emergency Temporary Provision to Article I, Section 3(d), Bylaws of the Wyoming State Bar

The matter came before the Court upon notification from the President, Wyoming State Bar, that there was a need for an emergency temporary addition to Article I, Section 3(d) regarding classes of membership, specifically, inactive status. The Court ordered that application of the requirement that an inactive member must be engaged in the active practice of law in this or another state for five years of the preceding seven in order to return to active status without examination may be waived for inactive members who can demonstrate that the member received advice from the Wyoming State Bar staff that they could return to active status without examination if the member returned within seven years of electing inactive status. Application under the temporary order must be received by the Bar Office no later than October 1, 2008. There shall be no appeal of denial under this provision.

The provision shall be automatically terminated and of no force as of November 1, 2008. Due to the temporary nature, it will not be published in the advance sheets of the Pacific Reporter, the Wyoming Reporter or the Wyoming Court Rules volume, but it will be posted on the Wyoming Supreme Court website, the Law Library website, and the Wyoming State Bar website.

C.J. Voigt delivered the order for the court.

Summary 2007 WY 154

Summary of Decision issued September 25, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Symington v. Symington

Citation: 2007 WY 154

Docket Number: S-07-0044

Appeal from the District Court of Sweetwater County, the Honorable Nena R. James, Judge

Representing Appellant (Defendant): Robert J. O’Neil, Gillette, Wyoming.

Representing Appellee (Plaintiff): Mark W. Gifford, Casper, Wyoming.

Issue: Whether the trial court properly declined to exercise further child custody jurisdiction.

Facts/Discussion: Father appeals the district court’s order declining jurisdiction of a child custody dispute pursuant to Wyo. Stat. Ann. § 20-5-307 on the basis that Idaho provided a more appropriate forum for resolution of the dispute.
Standard of Review: In child custody proceedings, the determination of whether to exercise jurisdiction or to defer to the courts of another state is reviewed for an abuse of discretion.
The district court made its decision pursuant to the inconvenient forum provision of the Wyoming UCCJEA. The evidence established that the children had lived in Idaho for nearly two years, during which time they had attended Idaho schools and seen a counselor there. It reflected that the GAL had often been limited to telephone conversations with the children because of the distance involved. Father lived in Gillette so that the district court in Sweetwater County was no longer a convenient forum for either party.
The decision to decline jurisdiction is not based on fault. Rather it is a determination of which forum is more appropriate.

Holding: There was sufficient evidence to support the district court’s decision to defer to the jurisdiction of the Idaho court. The Court noted that by the time Mother filed her most recent motion, the one now under review, the children had lived in Idaho longer, more of their school and counseling records had accumulated there, and the majority of witnesses with pertinent information were there. Combining these factors with the need to appoint another GAL, the Court was unable to find any abuse of discretion by the district court in declining jurisdiction.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/3coeav .

Summary 2007 WY 153

Summary of Decision issued September 25, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Prickett, n/k/a Wendelin v. Prickett

Citation: 2007 WY 153

Docket Number: 06-282

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Plaintiff): Eric Eugene Jones, Wheatland, Wyoming.

Representing Appellee (Defendant): Ronald G. Pretty, Cheyenne, Wyoming.

Issues: Whether the district court’s finding that the State of Nebraska did not have jurisdiction of the child custody case was contrary to the evidence. Whether the district court’s finding that Wyoming was the most convenient forum for child custody and visitation was arbitrary and capricious.

Facts/Discussion: Mother claims that the district court erred in its decision that Wyoming, not Nebraska, retains exclusive, continuing jurisdiction pursuant to Wyo. Stat. Ann. § 20-5-302 over custody and visitation issues arising form the parties’ Wyoming divorce decree.
Standard of Review: The Court reviews a district court’s decision regarding its jurisdiction in child custody matters de novo. In contrast, they review a court’s decision whether or not to decline jurisdiction under the inconvenient forum provisions of Wyo. Stat. Ann. § 20-5-307 for an abuse of discretion.
The case required the Court to apply Wyoming’s version of the UCCJEA. The district court determined that the two part test of Wyo. Stat. Ann. § 20-5-302(a)(i) was not met because although Mother and children moved to Nebraska, Father continued to live in Wyoming.
The district court found that Wyoming was not an inconvenient forum. This was based on the factual findings which the Court found to be supported by evidence in the record.
Nebraska allows foreign custody orders to be registered in the state to ease enforcement of those orders. The district court properly recognized the distinction between Father consenting to registration of his Wyoming custody order and consenting to Nebraska taking jurisdiction.
The Court also noted that Nebraska had also adopted the UCCJEA with jurisdictional requirements nearly identical to those set forth in Wyo. Stat. Ann. §§ 20-5-301 to 20-5-310. There was no evidence in the record that the Nebraska jurisdictional requirements had been satisfied.

Holding: The district court maintained exclusive, continuing jurisdiction to resolve custody and visitation issues arising from the parties’ original Wyoming divorce decree. The Court found no abuse of discretion in the district court’s determination that Wyoming remained an appropriate jurisdictional forum.

Affirmed.

J. Burke delivered the opinion.

Link: http://tinyurl.com/32xldn .

Summary 2007 WY 152

Summary of Decision issued September 21, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Butz v. State

Citation: 2007 WY 152

Docket Number: 06-215

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director, DAP; Patricia Lara, Student Intern, DAP. Argument by Ms. Lara.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.

Issues: Whether there was sufficient evidence to demonstrate that Appellant knowingly and willfully permitted his daughters to remain in a room or dwelling where methamphetamine was possessed when the State’s evidence showed that, while he and his daughters were helping a friend pack up his house, Appellant unexpectedly came upon a small baggie of methamphetamine and that baggie was placed in a different room than the one in which his daughters remained. Whether the trial court committed plain error when it did not instruct the jury on the definition of: “knowingly” – a key element of the child endangerment statute. Whether prosecutorial misconduct occurred when in summation the prosecutor relied upon facts that had never been presented to the jury; was this conduct likely to mislead the jury and to result in a conviction based upon improper outside factors in violation of Appellant’s due process rights.

Facts/Discussion: Appellant challenges his conviction for endangering his children by knowingly and willfully allowing them to remain in a dwelling where he knew methamphetamine was possessed. Appellant worked for David Raths who used marijuana and methamphetamine and sold methamphetamine. Law enforcement was investigating Raths’ involvement with illegal drugs. They executed a search warrant at the same time that Appellant and his daughters were at the Raths home packing his things to move.

“Knowingly and Willfully” Element: The first two issues pertain to the language of § 6-4-405(b).
Sufficiency of the Evidence: The Court determines whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt. The Court noted that Appellant’s argument implicated the difference between general and specific intent crimes. The Court has consistently ruled that criminal statutes including the mental elements of “knowingly and/or willfully” describe general intent crimes. Under the clear language of the statute, the State was required to prove Appellant knowingly and willfully permitted the children to remain in a place where he knew methamphetamine was possessed. The trial evidence together with the reasonable inferences flowing from it was sufficient.
Jury Instructions: The Court reviewed using the plain error standard because Appellant did not object to the jury instructions nor did he offer an instruction. The Court’s precedent makes it clear that the statutory terms “knowingly” and “willfully” generally do not have specialized meanings any different from their common meanings.
Prosecutorial Misconduct: The Court reviewed Appellant’s claims of prosecutorial misconduct for plain error because he did not object to the statements at trial. The statements were made during the rebuttal portion of the closing argument. The prosecutor’s misstatement of the evidence appeared in the record and was a violation of a clear and unequivocal rule of law which satisfied the first two elements of the plain error standard. The Court reviewed the record and stated they were not convinced that the prosecutor’s statements materially prejudiced the Appellant.

Holding: The trial evidence together with the reasonable inferences flowing from it was sufficient to justify the jury’s finding that the State had proven beyond a reasonable doubt he knowingly and willfully allowed the children to remain in the dwelling where he knew methamphetamine was possessed. The district court did not violate a clear and unequivocal rule of law by failing to instruct the jury on a “technical” meaning of the intent element of the crime. The Court stated there was no basis for concluding Appellant was prejudiced by the prosecutor’s misstatement.

Affirmed.

J. Kite delivered the opinion.

Link: http://tinyurl.com/2k3ucr .

Summary 2007 WY 151

Summary of Decision issued September 20, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Halliburton v. Gunter; Halliburton v. Gunter

Citation: 2007 WY 151

Docket Number: 06-205; S-07-0076

W.R.A.P. 11 Certified Question from the United States District Court for the District of Wyoming, the Honorable William F. Downes, Judge

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge

Representing Appellant (Defendant/Intervenor): Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming. Argument in Case No. 06-205 by Mr. Shumate.

Representing Appellee (Plaintiff): Kent W. Spence and M. Kristeen Hand of The Spence Law Firm, LLC, Jackson, Wyoming. Argument in Case No. 06-205 by Mr. Spence.

Issue: The underlying question in these related cases is whether the personal representative appointed to pursue a wrongful death action under Wyo. Stat. Ann. § 1-38-102(a) must be a resident of the State of Wyoming as is required for intestate estate administrators under the probate code, Wyo. Stat. Ann. § 2-4-201(c). The Court declined to answer the question because the probate court did not err in denying a wrongful death action defendant’s motion to intervene in the probate for the purpose of challenging appointment of the personal representative, and because that wrongful death action defendant likewise does not have standing to challenge that appointment in the wrongful death action, itself.

Facts/Discussion: Intervention: The Court reviewed “intervention”, including the cases which described their standard of review: Masinter v. Markstein and State Farm v. Colley. The Court stated they agreed with the district court’s reasoning and reliance upon Murg v. Barnsdall Nursing Home.
In the absence of an incompetent administrator, one can contest appointment of the administrator only if one is entitled, in one’s own right, to act as administrator. A potential wrongful death action defendant is not so entitled.
Standing: The existence of standing is reviewed de novo. The district court also relied upon standing in denying Halliburton’s access to a declaratory judgment in the probate action. Standing requires a legally protectable and tangible interest at stake in the litigation. The district court properly concluded that Halliburton had no genuine legal interest in the probate court’s appointment of Gunter as personal representative. The Court’s conclusion that Halliburton lacked standing to raise the issue carried over into the federal court wrongful death action as well. Halliburton’s personal stake is the same in both cases. Therefore, inasmuch as Halliburton lacked standing to challenge the appointment of the personal representative, it would be inappropriate for the Court to answer the underlying substantive question of the validity of the appointment.

Holding: A wrongful death action defendant does not have standing to challenge the appointment of the estate’s personal representative because a wrongful death action defendant does not have a personal stake or tangible interest in that appointment. Neither may a wrongful action defendant intervene in the probate estate action as a matter of right for the purpose of challenging the appointment of the personal representative. Finally, the district court sitting in probate did not err as a matter of law or abuse its discretion in denying permissive intervention of the wrongful death action defendant into the probate estate action.

C.J. Voigt delivered the opinion.

Link: http://tinyurl.com/2yzd6m .

Summary 2007 WY 150

Summary of Decision issued September 19, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Heywood v. State

Citation: 2007 WY 150

Docket Number: 06-193

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Deputy Attorney General.

Issue: Whether there was reversible error where Appellant claims that one of the prosecutors, who argued at his sentencing for various drug charges, represented Appellant nearly ten years earlier when he was charged with driving without insurance, where Appellant did not object to the prosecutor’s appearance at sentencing and where the only evidence of the earlier presentation is a single document attached to Appellant’s brief and not included in the official record.
Facts/Discussion: Appellant claims reversible error occurred when a prosecutor who Appellant claims represented him when he was charged with driving without insurance ten years earlier, argued for the State at his sentencing for various drug charges.
Appellant bears the burden of bringing to the reviewing court a sufficient record. The Court would not consider the uncertified document attached to Appellant’s brief in the case. No evidence pertaining to the error appeared in the record, so Appellant’s argument was unsupported by competent evidence.

Holding: Appellant’s argument that he had a previous attorney-client relationship with the prosecutor and that therefore the prosecutor should have been barred from arguing at his sentencing was not supported by the record.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ywjn3g .

Summary 2007 WY 149

Summary of Decision issued September 19, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Heywood v. State

Citation: 2007 WY 149

Docket Number: 06-150

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge

Representing Appellant (Defendant): D. Terry Rogers, Interim State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Ms. Domonkos.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director, and Mackenzie Williams and Brian J. Hunter, Student Interns. Argument by Mr. Hunter.

Issues: Whether the district court erred in refusing to instruct the jury that third-degree sexual assault and sexual battery are lesser-included offenses to the crime of second-degree sexual assault. Whether the district court committed plain error in declining to answer a question presented by the jury during its deliberations asking the court to identify which allegation formed the basis for each of the three separate counts.

Facts/Discussion: Appellant appeals his convictions on three counts of second-degree sexual assault. He contends the district court erred in refusing to give certain lesser-included offense instructions and in failing to answer a question presented by the jury during deliberations.
Whether the district court erred in refusing to instruct the jury that third-degree sexual assault and sexual battery are lesser-included offenses to the crime of second-degree sexual assault. The jury must be instructed as to the lesser offense only if there is at least minimal evidence that could cause the jury to convict on the lesser offense, rather than the greater offense. The failure to give a lesser-included offense instruction in those circumstances constitutes reversible error. Whether a lesser-included offense instruction should be given is a question of law that the Court reviews de novo.
After reviewing the elements of third-degree sexual assault as defined in the statute presented for inclusion as a lesser-included offense, the Court determined that third-degree sexual assault was not a lesser-included offense of second-degree sexual assault as charged. Consequently, the district court did not err in refusing to give that instruction.
The next question is whether the crime of sexual battery was a lesser-included offense to the crime of second-degree sexual assault as charged. The Court reviewed the language in question and stated that sexual battery appeared to be a lesser-included offense of second-degree sexual assault. The Court stated the further question was whether the mens rea element of the two statutes was different. Second-degree sexual assault as charged in this case does not include as an element that the appellant specifically intended sexual arousal, gratification, or abuse. Therefore the district court did not err in refusing to give the lesser-included offense instruction.
Whether the district court committed plain error in declining to answer a question presented by the jury during its deliberations asking the court to identify which allegation formed the basis for each of the three separate counts. The Court reviewed the “jury note”, the district court’s response to that note and the Information filed in the instant case. The Information did not contain a plain, concise and definite written statement of the essential facts constituting the offense charged. Appellant waived his right to a preliminary examination in circuit court missing the opportunity to make the allegations more certain. Also, he did not seek a bill of particulars for the purpose of making the general allegations more specific. There was not a transcript in the record of the instruction conference. The record reflected that defense counsel did not object to any of the ten numbered instructions that were read to the jury. The test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed. The Court concluded that the district court committed prejudicial error in failing to provide a substantive answer to the jury’s question in the instant case. The Court stated there was some temptation to affirm the three convictions on the ground that there was sufficient evidence to justify a finding of guilt beyond a reasonable doubt on each of them. However, they stated did not know for sure what incidents were charged or what incidents were found by the jury to have been committed by looking at the record.
The Court noted that both parties asked the Court to apply the plain error analysis because the record did not reflect that defense counsel had objected to the district court’s decision not to give a substantive answer to the jury question. The record does not reflect that defense counsel was given an opportunity to object. The record was inadequate to the extent that it did not reveal whether or not the district court followed mandatory procedures in handling the jury question. The Court stated that the problem in the instant case went far beyond the inadequacy of the appellate record and that it is the obligation of the State and the district court to provide due process of law to a criminal defendant.

Holding: Neither third-degree sexual assault nor sexual battery is a lesser-included offense to second-degree sexual assault as proposed in the instant case. The district court did not err in refusing to instruct the jury as to lesser-included offenses. Reversible error occurred, however, when the district court failed adequately to instruct the jury as to the separate crimes charged and when it apparently failed to provide the jury with a substantive response to its question concerning the charged offenses, because the question reflected obvious and understandable confusion as to how to apply the law to the facts.

Reversed and remanded.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/29onbp .