Summary 2011 WY 116

Summary of Decision August 8, 2011


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Case Name: Rathbun v. State

Citation: 2011 WY 116

Docket Number: S-10-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464133

Appeal from the District Court of Laramie County, Honorable Michael K. Davis, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel.

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General.

Date of Decision: August 8, 2011

Facts: The appellant was convicted of attempted kidnapping and sentenced to life in prison. He appeals the denial of two pre-trial motions to dismiss, and raises two issues concerning sentencing.

Issues: Whether the appellant’s prosecution for attempted kidnapping was barred by the doctrine of double jeopardy due to his earlier guilty plea to battery. Whether the State was barred by the doctrine of res judicata from refiling the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause. Whether the district court applied the proper penalty range in imposing sentence. Whether the district court’s determination of the penalty range in imposing sentence violated the appellant’s right to trial by jury.

Holdings: No person may be placed in jeopardy more than once for the same criminal offense. Where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements’ test, the double jeopardy bar applies. The inquiry under the same-elements test is “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution. The two offenses at issue in the present case are misdemeanor battery, in violation of Wyo. Stat. 6-2-501(b) and attempted kidnapping, a felony, in violation of Wyo. Stat. 6-1-301(a) and 6-2-201(a)(iii) and (d). Each of these statutes contains an element not contained in the other. Battery requires both the use of physical force and resultant bodily injury, neither of which element is contained in the crime of attempted kidnapping. Attempted kidnapping requires the intent to commit the crime of kidnapping, and a substantial step toward commission of that crime—which substantial step logically may or may not involve physical force or bodily injury—neither of which element is contained in the crime of battery. In cases such as this, where two crimes each contain elements not contained in the other, there is no preclusive effect, and the subsequent prosecution does not violate double jeopardy.

The doctrine of res judicata neither bars the refiling of charges nor a subsequent preliminary hearing on those charges, where there has been a dismissal of those charges based upon a failure of proof of probable cause at a preliminary hearing. Further, Wyoming law does not require the production of new or different evidence at the subsequent hearing, or that the subsequent hearing take place before the same circuit court judge or magistrate.

Kidnapping is a single crime described in Wyo. Stat. 6-2-201(a) and (b), and that subsection (c), rather than defining a lesser-included offense, describes mitigating conduct subsequent to the kidnapping that may allow for a reduced sentence. The appellant bears the burden of proving such mitigating conduct and, if competent evidence of such is produced, the question must be presented to the jury. It logically follows that, where there has not been a completed kidnapping, but instead an attempted kidnapping, the mitigating circumstances described in subsection (c) cannot occur. The potential “anomaly” in the statute that a person who completes a kidnapping but releases the victim unharmed could be subject to a lesser penalty than a person who merely attempts a kidnapping is recognized, but anomalies created by statute are not to be corrected by the court. The legislature has exclusive authority over criminal punishment and sentencing and because it would violate the constitutional principle of separation of powers, to supply what would appear to be omissions in a statute, or to correct what to be defects in a statute. The district court correctly applied the sentencing provisions of Wyo. Stat. Ann. § 6-2-201(d) after the appellant was convicted of attempted kidnapping.

A sentencing judge may not find facts that take a sentence beyond the sentencing range supported by the jury’s verdict alone. While facts in aggravation of sentence must be found by a jury, facts in mitigation of sentence may be found by the judge. If a required finding of fact exposes the defendant to a greater penalty than that authorized by the jury’s guilty verdict, that finding must be made by the jury. In the present action, there is one crime—kidnapping—for which the maximum sentence is as stated in Subsection (d). Where there has been a completed kidnapping, the defendant is at liberty to produce evidence to prove, in mitigation of sentence, that he or she voluntarily released the victim substantially unharmed. If that is not accomplished, the sentencing range remains as it is stated in Subsection (d). Of even more significance to the instant case is the inescapable conclusion, from the clear language of the statute, that any evidence in mitigation can only be evidence of post-kidnapping conduct, meaning that Subsection (c) does not apply to attempted kidnapping. Thus, there was no constitutional violation in the procedure by which the appellant was sentenced.

The appellant’s prosecution for attempted kidnapping was not barred by the doctrine of double jeopardy because battery is not a lesser-included offense to attempted kidnapping under the same-elements test. Neither the doctrine of res judicata nor the doctrine of collateral estoppel bars the refiling of a criminal charge and a subsequent preliminary hearing after a charge has been dismissed following a preliminary hearing where a lack of probable cause was found. The district court applied the proper punishment range in sentencing the appellant, and the district court’s determination of the appropriate punishment range did not violate the appellant’s right to trial by jury.

Affirmed.

J. Voigt delivered the opinion for the court.