Summary 2011 WY 47

Summary of Decision March 14, 2011

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Case Name: Donald Ray Daves v. State of Wyoming

Citation: 2011 WY 47

Docket Number: S-10-0135

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461819

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin Daraie, Assistant Attorney General. Argument by Mr. Daraie.

Date of Decision: March 14, 2011

Facts: Appellant was convicted after a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter referred to as “the victim”). On appeal, he challenged the district court’s response to a jury question requesting a definition of “used a firearm” and claimed he was denied his constitutional right to be present when the court provided supplemental instructions to the jury. He also argued that the evidence was insufficient to convict him on four counts of first degree sexual assault because the State did not prove that he gained the victim’s submission by threatening her, her boyfriend and himself.


Issues: Whether the district court’s instruction defining what it means to have “used” a firearm while committing a felony violated clearly established Wyoming law, and was it a valid and reasonable interpretation of Wyo. Stat. Ann. § 6-8-101(a). Whether the district court committed reversible error by conferring with counsel and responding to questions presented by the jury during deliberations. Whether the evidence was sufficient to support appellant’s convictions for first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302 (a)(ii).

Holdings: Appellant failed to establish the district court committed plain error when it defined “used a firearm” for the jury. The Court concluded that, although the district court erred by failing to provide the supplemental instructions to the jury in open court while the defendant was present, the error was not prejudicial. Finally, the record contained sufficient evidence to support the first degree sexual assault convictions because the State demonstrated Appellant threatened the victim and himself with serious bodily injury or death in order to obtain her submission to the sexual assaults. Affirmed.

Chief Justice Kite delivered the opinion for the court.