Summary 2011 WY 85

Summary of Decision May 26, 2011


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Case Name: Garnica v. State

Citation: 2011 WY 85

Docket Number: S-10-0233

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462305

Appeal from the District Court of Natrona County, Honorable David B, Park, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

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

Date of Decision: May 26, 2011

Facts: After two episodes of domestic violence against his ex-wife, Appellant was charged with two counts of unlawfully touching a household member for a third or subsequent time in the past ten years, in violation of Wyo. Stat. 6-2-501 (b) and (f)(ii) (2007). After a jury trial, the jury found Appellant guilty of both counts. Before sentencing, however, the court allowed the State to amend its Information by correcting the statutory citation. The court sentenced Appellant under the enhanced sentencing provisions.

Issues: Whether the trial court committed reversible error by allowing amendment of the Information after the jury had entered into deliberations, withdrawing a jury instruction from the jury and replacing it with a new instruction, despite the objection of Appellant that the late amendment prejudiced his case by affecting the way he prepared for trial. Whether the trial court imposed an illegal sentence and thereby committed reversible error.

Holdings: In accordance with W.R.Cr.P. 3(e), the reasonableness of a motion to amend an information depends upon two factors: (1) whether the amendment resulted in the charging of an additional or different offense, and (2) whether permitting the amendment prejudiced Appellant’s substantial rights. Technical alterations to an information do not necessarily have the effect of charging a different crime for purposes of W.R.Cr.P. 3(e), and common sense must prevail over technicalities when evaluating an information and amendments thereto. In the present action, the State did not charge Appellant with a different crime by amending the Information – the State was simply correcting a mechanical error. The State’s amendment did not alter the substantive language of the information, and it did not change the elements of the crime. Thus, common sense dictates that the State merely corrected a clerical error, and as a result, Appellant was not prejudiced by the Amended Information because in it, he was not charged with a new crime.

An offense committed under Wyo. Stat. 6-2-501(f) provides for the enhancement of penalties up to a felony, if a household member commits multiple batteries. However, battery does not equate to unlawful contact for the purposes of sentence enhancement. Both of those terms are used purposefully in the statute and each is categorically defined, apart from the other. To qualify for a felony, a person must be found guilty of a third or subsequent offense under (f)(ii). Subsection (f) clearly states that only a person who commits a second or subsequent “battery” is subject to the enhancements enumerated in subsections (i) and (ii), and it does not include a person convicted of “unlawful contact.” Accordingly, the sentence imposed by the trial court was an improper interpretation of the statute and, thus, is an illegal sentence. Unlawful touching, as it is used in § 6-2-501(g), can only be a misdemeanor and subject to the penalties in § 6-2-501(h): “An unlawful contact under subsection (g) of this section is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00) or both.”

The trial court did not abuse its discretion in allowing amendment of the Information after the case was submitted to the jury, and Appellant suffered no prejudice. However, the trial court imposed an illegal sentence regarding Count II. Therefore, the case is remanded to the trial court for resentencing in accordance with this opinion.



Affirmed in part, reversed in part, and remanded.



J. Hill delivered the opinion for the court.