Summary 2008 WY 29

Summary of Decision issued March 17, 2008

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

Case Name: Mickelson v. State

Citation: 2008 WY 29

Docket Number: 06-156

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

Representing Appellant (Defendant): Robert T. Moxley, PC, Cheyenne, Wyoming.

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

Facts/Discussion: Mickelson was convicted of one count of possession of a deadly weapon with unlawful intent and was simultaneously acquitted of a charge of aggravated assault. Appellant contended that there was insufficient evidence to support his conviction, that there was a fatal variance between the charging document and his eventual conviction, and that the verdict was inconsistent.
The Court noted that Mickelson invited the error because the jury instruction was one which he proposed. The instruction led the jury to consider two methods of committing an offense where only one was originally charged. That would be prejudicial error if the evidence was not sufficient separately to support conviction based on each method. The record reflected that the prosecution presented evidence that Mickelson transported the gun from the alley and on the subsequent chase through town with the intent to threaten his victim. The jury could have inferred that he intended to threaten the welfare of the victim.
The question of a fatal variance between the charging document and the charge ultimately presented to the jury was also an error of his own making. The variance occurred as a result of Mickelson’s insistence on the addition of the “transport” wording.
The jury’s finding of guilt for possession of a deadly weapon with unlawful intent was not inconsistent with the acquittal for assault with a deadly weapon. The Court has repeatedly stated that consistency is not a requirement for a valid jury verdict in a criminal trial.

Holding: The doctrine of invited error precludes a finding for Mickelson either on sufficiency of the evidence or on the variance between the initial charges and the eventual verdict returned by the jury. There is no need for consistency in a criminal jury verdict as long as sufficient evidence was presented to support each conviction.

Affirmed.

C.J. Voigt delivered the decision.

D.J. James dissenting: District Judge James dissented because she did not believe the district court had jurisdiction over a case where the defendant had not had a preliminary hearing in circuit court and had not properly waived his right to that hearing under the rules. The Trujillo case cited by the majority was a challenge involving alleged defects in the preliminary hearing. That case determined that defects in a hearing were waived if not raised before trial, but did not address a total lack of such a hearing.

Link: http://tinyurl.com/2of7la .

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