Summary 2011 WY 101

Summary of Decision June 29, 2011

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Case Name: Kelly David Robinson v. State of Wyoming

Citation:  2011 WY 101

Docket Number: S-10-0234

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463589

Appeal from the District Court of Crook County, the Honorable Dan R. Price II, Judge.

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.  Argument by Ms. Pojman.

Date of Decision: June 29, 2011

Facts: Appellant was convicted of three misdemeanors and one felony.  All of these crimes arose in a domestic violence context.  Appellant challenged one of those misdemeanor convictions, a violation of a protection order charged under Wyo. Stat. Ann. § 6-4-404.  The gravamen of the crime was that he mailed a letter from his jail cell in Oregon (where he was being held on a warrant for his other Wyoming crimes) to the victim who had obtained the protection order.  The posting and the eventual receipt of that letter by the victim was the basis for the violation of the protection order issued by the circuit court of Crook County.  Among other things, Appellant claimed that there was insufficient evidence to sustain a conviction for the crime charged. 

Issues: Whether the district court had subject matter jurisdiction to prosecute a violation of Wyo. Stat. Ann. § 7-3-510(c) under § 6-4-404.  Whether venue was proper where Appellant’s act occurred outside the county of prosecution.  Whether there was sufficient evidence presented to prove an act of violation of the protection order within Crook County. Whether the trial court abused its discretion by allowing the testimony of the “domestic violence” expert.

Holdings: If all had gone as it should, Appellant would have been charged under § 7-3-510(c).  However, given that the protection order was actually issued under Title 6, Appellant could have been prosecuted under § 6-2-506(d).  However, there appeared to be no basis to have charged and convicted Appellant under § 6-4-404(b), and there was no evidence in the record on appeal that relates to such a crime.  Because of this error, the Court was compelled to reverse that conviction.  Although it had the superficial appearance of being a harmless error as contemplated by W.R.A.P. 9.04 (in that all three of the punishment provisions are virtually identical), the Court concluded that the lack of evidence to support the conviction, as charged, mandated reversal.  Because of this disposition, the Court did not need to address the other issues raised.  The judgment of the district court was reversed as to the conviction entered pursuant to § 6-4-404, and the remainder of the judgment was affirmed.  The sentence imposed for the § 6-4-404 conviction was vacated, and the matter was remanded to the district court for adjustment of the sentence accordingly.

Although the decision was based upon grounds somewhat different from those raised in the briefs, the Court reversed that conviction and remanded the matter to the district court with directions that the conviction at issue be vacated and that Appellant be resentenced accordingly.

Justice Hill delivered the opinion for the court.