Summary 2009 WY 105

Summary of Decision issued August 21, 2009

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

Case Name: Najera v. State

Citation: 2009 WY 105

Docket Number: S-08-0203

Appeal from the District Court of Carbon, Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiffs): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Defendant): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Assistant Attorney General.

Appellant was convicted of two counts of second-degree sexual assault, four counts of third-degree sexual assault, and six counts of incest. He contends that there was insufficient evidence to sustain his convictions on five of the six sexual assault counts and that the sentences for the incest convictions should merge with the sexual assault sentences.

Issues: Whether the trial court erred in denying Appellant’s motion for acquittal on counts I and III-VI. Whether the incest counts should merge for charging and sentencing with the sexual assault charges.

Holdings: Wyo. Stat. 6-2-303(a)(vi), 6-2-304(a)(iii) required the jury to find that Appellant was “in a position of authority over the victim and use[d] this position of authority to cause the victim to submit.” It is uncontested that Appellant, as the victims’ father, occupied a position of authority over the victims. It is also uncontested that he committed the sexual acts that provided the foundation for the charges. He contends only that the State failed to present sufficient evidence that he used his position of authority to cause the victims’ submission. The record in this case, viewed in the light most favorable to the State, establishes that Appellant exercised considerable control over the children. He disciplined them on occasion. He also threatened them. The victims testified that they were afraid that Appellant would either punish them or that they would otherwise get into trouble if they told anyone about the abuse. The facts surrounding the incidents themselves are evidence that Appellant used his status as the victims’ father to gain compliance. With one exception, all incidents of abuse occurred in each victim’s bedroom. For the most part, Mother was absent when the assaults occurred, leaving Appellant as the sole authority figure in the house. Appellant’s argument in this appeal appears to be founded upon the premise that the statute requires the defendant to have overtly threatened the victim prior to committing each act. Appellant cites no authority for this proposition, nor does he present compelling reasons that the statute should be interpreted in this manner. Thus, the State presented sufficient evidence to allow a jury to conclude, beyond a reasonable doubt, that Appellant used his position of authority to cause the victims’ submission.
Merger of sentences implicates a defendant’s constitutional right to be free of multiple punishments for the same offense. This right is one component of the constitutional prohibition against double jeopardy. Consequently, the analytical framework necessary to resolve this issue is derived from the elements test set forth by the United States Supreme Court in Blockburger v. United States. Pursuant to the elements test, two offenses are different when each requires proof of an element that the other does not. Although the elements test is ordinarily applied to the statutory text, questions involving merger of sentences require this test to be applied somewhat differently. Specifically, the focus necessarily expands to embrace those facts proven at trial. The ultimate question becomes whether those facts reveal a single criminal act or multiple and distinct offenses.
In the present case, however, five of the six sexual assault charges required proof that Appellant was the father of the victims and was, therefore, in a position of authority as required by the applicable statute. The incest charges also required the State to prove that Appellant was the father of the victims. All sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for Appellant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Thus, Appellant concluded that the incest counts should merge, for the purpose of sentencing, into the sexual assault counts. However, Appellant was also charged with third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-304(a)(ii) on the basis that the victim was under the age of fourteen years and Appellant was an adult. The State was not required to prove that Appellant was the victim’s father or that he used his position as her father to cause submission. In securing the conviction for the related incest charge, the State was not required to prove that she was younger than fourteen or that Appellant was an adult. Simply put, these two crimes have different elements. Each requires proof of an element that the other does not. Thus, these two counts do not merge for the purpose of sentencing.
Sufficient evidence was presented to support Appellant’s conviction of second-degree sexual assault, as alleged in counts I and IV, and third-degree sexual assault, as alleged in counts III, V, and VI. Five of the six incest convictions, counts VII, IX, X, XI, and XII, merge for the purpose of sentencing into the respective sexual assault convictions, counts I, III, IV, V, and VI.

The convictions are Affirmed on all counts. However, the action is reversed and remanded for entry of a new Judgment and Sentence consistent with this opinion.

J. Burke delivered the opinion for the court.

C.J. Voigt issued a concurring opinion: If two crimes do not bear a lesser- and greater-offense relationship to one another because they each contain an element not contained in the other, the legislature intended that multiple punishments could be imposed, even if the two separate offenses are based upon one underlying set of facts. In the instant case, the appellant could have been sentenced on each and every count upon which he was convicted.

Link: http://tinyurl.com/n7b4dp

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