Summary 2008 WY 35

Summary of Decision issued April 1, 2008

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

Case Name: Javorina v. State

Citation: 2008 WY 35

Docket Number: S-07-0103

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender and Tina N. Kerin, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Mi8cahel Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General.

Facts/Discussion: According to the judgment and sentence entered in the district court, Javorina was convicted of larceny and possession of stolen property. Actually, he was convicted of larceny and concealing stolen property. Javorina contended that the district court erred in failing to instruct the jury that unauthorized use of a motor vehicle was a lesser-included offense of the crime of larceny under the circumstances of the case. In addition, he contended that inadmissible victim impact testimony was elicited from the victim and his wife and the evidence was argued by the prosecution in closing argument as though it was a pertinent factor to his guilt.
Lesser-Included Offense of Joyriding: After review, the Court concluded that upon the defendant’s request, the district court was required to give the lesser included offense instruction because its elements are a subset of the greater crime’s elements and there was at least minimal evidence that could cause the jury to convict on the lesser rather than the greater offense. The failure constituted reversible error.
Victim Impact Testimony: The Court applied the plain error standard because no contemporaneous objections were made. The record clearly presented the incident alleged to be error. Javorina demonstrated that a clear and unequivocal rule of law was violated in a clear and obvious way. But, he failed to present cogent argument or to cite pertinent authority to convince the Court that he was denied a substantial right resulting in material prejudice to him.
The Court also noted that they assumed the questions asked and the argument made showed an ignorance of the law rather than a malicious intent to inflame the jury. The Court stated that a district court should respond to such an incident sua sponte if need be, or upon request, permit the defendant to make the necessary objection outside the hearing of the jury.

Holding: With respect to the conviction for larceny, the judgment and sentence of the district court are reversed, and the matter remanded to the district court for further proceedings consistent with the opinion, including the judgment and sentence to accurately reflect Javorina’s conviction for concealing stolen property, rather than possession of stolen property.

Reversed.

J. Hill delivered the decision.

Special concurrence by J. Burke: J. Burke would have granted a new trial on all counts because the prosecutor’s arguments emphasizing the victim’s medical condition and attachment to his motorcycle throughout the trial attempted to use sympathy for the victim as a basis for the jury’s decision.

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

[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.]