Summary 2007 WY 149

Summary of Decision issued September 19, 2007

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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.

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