Summary 2009 WY 117

Summary of Decision issued September 23, 2009

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

Case Name: Snow v. State

Citation: 2009 WY 117

Docket Number: S-08-0222

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

Representing Appellant Snow: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel.

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

Facts/Discussion: Snow appealed from a felony stalking conviction. That conviction is one part of the complicated factual and procedural posture of the case.

Double jeopardy: There was no double jeopardy motion or objection below. The Court has previously held that the issue of double jeopardy is jurisdictional because it involves the power of the State to bring the appellant into court and therefore may be raised at any time. Snow contends that his right to protection against double jeopardy was violated when he was convicted and punished for the August 23, 2006 protection order violation and then was convicted and punished for stalking based on a course of conduct that included the same incident.
The Court noted first that the State was correct in its assertion that the felony stalking retrial was not a subsequent proceeding but a continuation of the earlier proceeding. The Court was left with the question of whether Snow could have initially been charged with both the violation of the protection order and felony stalking and whether once Snow was convicted of both, the crimes merged for the purposes of sentencing. If double jeopardy was violated, it had to have been in the sense of multiple punishments rather than subsequent prosecutions. The fact that a continuing course of conduct engendered several charges creates no impediment to multiple convictions and sentences. The fact the appellant was punished for violating a protection order did not prohibit his also being punished for felony stalking.
Lesser-included offense instruction: The elements of the crime of criminal entry are not a subset of the elements of felony stalking. The Court noted that it continues to follow the statutory elements test of Blockburger.
Questions submitted by jury: During deliberations, the jury sent a note to the judge asking a question. The Court has followed the rule that no party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury is instructed, stating distinctly the matter to which the party objects and the grounds of the objection. The Court allowed that the page in the exhibits folder that appeared to be a jury question and that the parties treated as such would suffice as the alleged error. The rule of law in the instant case was clear and unequivocal: criminal defendants are entitled to a jury trial with the jury as the sole fact-finder. Within that context, the Court considered whether the district court usurped the fact-finding role of the jury by identifying for it the evidence that the State contended amounted to the course of conduct underlying the stalking charge. The Court determined that the response invaded the province of the jury.
The Court stated the instant case was nothing like Heywood v. State. In Heywood the failure was that the verdict form was inadequate. In the instant case, the given instructions and the verdict form were appropriate. The district court’s error was not harmless. Snow had a constitutional right to have the facts of the case determined solely by the jury. The fact that one jury had already failed to convict him of stalking based upon the same evidence and that the jury indicated in its question that it was unsure of what facts made up the course of conduct necessary to find the appellant guilty supported the reasonable probability that without the judge’s inappropriate evidentiary guidance, the jury would not have reached the verdict that it did.

Conclusion: Snow’s constitutional right against double jeopardy was not violated by the district court’s failure to dismiss the stalking charge. The retrial after a mistrial did not invoke subsequent jeopardy and Snow was not punished twice for the same offense, inasmuch as the crime of violation of a protection order is not a lesser-included offense of the crime of stalking. Neither, for the same reason, did the district court commit plain error in refusing to instruct the jury that criminal entry is a lesser-included offense of stalking. The district court committed plain error, however, by guiding the jury toward particular evidence during the jury’s deliberations. This resolution makes the fourth and fifth stated issues and the second part of the jury question issue moot, and the Court declined to address them.

Reversed and remanded.

C.J. Voigt delivered the decision.

J. Burke dissenting: The justice dissented stating that the district court correctly provided a substantive response to the jury questions as mandated by our decision in Heywood. That substantive response did not “invade the province of the jury.” There was no plain error and the conviction should have been affirmed.

Link: http://tinyurl.com/nvpnru .

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