Summary 2012 WY 1

Summary of Decision January 4, 2012

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Case Name:  Walker v. State of Wyoming

Citation:  2012 WY 1

Docket Number: S-11-0103

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464983

Appeal from the District Court of Campbell County, The Honorable Michael N. Deegan, Judge

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

Representing Appellee (Plaintiff): Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Stewart M. Young, Faculty Director, Prosecution Assistance Program, Joshua B. Taylor, Student Director, and Callan Riedel, Student Intern.  Argument by Ms. Riedel.

Date of Decision: January 4, 2012

Facts:  The appellant’s ex-wife was shopping at Wal-Mart with her daughter. She was talking to a sales clerk when her daughter noticed the appellant approaching.  The two then heard the appellant say something to the effect of, “Wow, you must be making a lot of money these days.”  He stood approximately four feet away from his ex-wife when he made this comment.  Mother and daughter quickly left the store.  As a result of this encounter, the appellant was charged with felony stalking in violation of Wyo. Stat. Ann. § 6-2-506(b)(e)(iv). 

Prior to trial, the district court ruled that fourteen incidents of alleged harassment by the appellant directed at his ex-wife over the previous four years would be admitted into evidence pursuant to W.R.E. 404(b).  At trial, the jury was given conflicting and misleading instructions with regard to the State’s burden of proof as to the elements of the crime.  After deliberating, the jury found the appellant guilty of felony stalking.  The appellant now appeals that conviction.

Issue: Did plain error result when the trial court instructed the jury that evidence of acts comprising a course of conduct of harassment admitted as W.R.E. 404(b) uncharged misconduct need only be proved by a preponderance of the evidence where a course of conduct of harassment is an element of the charged offense?

Holdings:  The Court found that the elements instruction correctly indicated that each element of the crime of stalking, including a course of conduct, must be proven beyond a reasonable doubt for conviction.  However, the district court admitted the incidents comprising the course of conduct as W.R.E. 404(b) uncharged misconduct evidence, rather than as evidence of the charged crime, and instructed the jury that to consider such incidents, the acts must be established by a preponderance of the evidence.  For that reason, the Court reversed and remanded for a new trial. 

J. Voigt delivered the opinion for the court.