Summary 2012 WY 37
Summary of Decision March 12, 2012
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Case Name:
Silva v. State of Wyo.
Citation:
2012 WY 37
Docket Number: S-11-0124
Appeal from the District Court of Sweetwater
County, The Honorable Jere A. Ryckman, Judge
Representing
Appellant (Defendant): Diane Lozano,
State Public Defender PDP; Tina N. Olson, Appellate Counsel; 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; Jenny L. Craig, Senior
Assistant Attorney General; Andrew J. Kuhlmann, Assistant Attorney
General. Argument by Mr. Kuhlmann.
Before KITE, C.J., and GOLDEN, HILL, and
BURKE, JJ., and TYLER, D.J.
Date of Decision: March 12, 2012
Facts:
Appellant walked across the city toward his estranged fiancée’s apartment,
outlining en route his plan and his progress in a torrent of scurrilous voice
and text messages sent to the victim’s cell phone. Upon arrival at the apartment, Appellant
pounded loudly on the front door, awakening his former girlfriend. She refused to let him. Alarmed when he
persisted, she dialed 911 to summon help.
Appellant then broke through the window screen, came into the apartment.
Appellant followed her into the bedroom where he beat her, seized her hair and
dragged her down the hall.
A neighbor shouted his assistance and
attempted to enter the locked apartment.
Appellant yelled to the neighbor that he should “mind his own business”
and that Appellant was “just trying to get his wife home,” all-the-while
plodding toward the living room at the front of the apartment, pulling the
victim by her hair.
When Appellant reached the living room with
his victim in tow, he released her and unlocked the front door to accost the
interloping neighbor. As Appellant
exited through the door, the victim quickly shut and locked it behind him, and
retreated into the apartment. The victim
listened as Appellant confronted and grabbed the neighbor. The neighbor fought back. Battered and disoriented, Appellant staggered
away from the apartment complex only later to be apprehended by police where he
was formally arrested, taken to the hospital for treatment, and jailed.
Appellant planned to show at trial that he
lacked any specific intent to remove the victim so that he could “inflict
bodily injury on or to terrorize” her.
Appellant planned to demonstrate that his true intent at the time of the
incident was actually to protect the victim from vulnerabilities to her safety
caused by her habitual alcohol consumption by merely taking her to his
home. Appellant proposed to present
detailed evidence of the victim’s past conduct, particularly related to her
frequent use of alcohol. Appellant also wanted
to provide of the victim’s putative extraneous sexual behavior prior to the
date that the events transpired.
After completing the hearings and listening to
the arguments of counsel, the district court ruled that evidence of the
victim’s drinking habits and alcohol-related arrests was germane to Appellant’s
defense. The district court found that
evidence of the victim’s misdemeanor convictions for alcohol-related violations
was inadmissible under W.R.E. 609. The
district court also held that evidence regarding the victim’s sexual conduct
while she was intoxicated or evidence that she was once sexually assaulted
while she was passed-out was inadmissible since such evidence was not relevant,
was unrelated to the victim’s reputation for truthfulness or untruthfulness,
and was generally viewed as an impermissible overt attack upon her character
which was not at issue in the case.
At trial, the district court gave Appellant’s
trial counsel considerable latitude in examining the victim and other witnesses
concerning the prior conduct of the victim at various times when she was
intoxicated. Although the district court
remained steadfast in its pretrial prohibition of evidence of the victim’s
sexual conduct while intoxicated or evidence that she was sexually assaulted
while passed-out, Appellant never asked to make an offer of proof outside the
hearing of the jury to preserve for the record any proposed evidence concerning
the victim’s sexual past in accordance with W.R.E. 103.
The district court also refused Appellant’s
proffered lesser-included offense instruction. The district court agreed with
the State’s argument that Attempted False Imprisonment is not a lesser-included
offense to Attempt to Commit Kidnapping where, as specifically charged in this
case, Appellant’s purported criminal conduct involved an attempted removal –
not confinement – of the victim.
Ultimately, the jury found Appellant guilty of
Aggravated Burglary and Attempt to Commit Kidnapping. The district court sentenced Appellant to
imprisonment for twelve to fifteen years on each count to be served concurrent,
but consecutive to an imprisonment sentence in an unrelated case.
Issues: 1) Whether the trial court erred in
precluding relevant evidence of the victim’s prior conduct, prohibiting
Appellant from fully presenting his defense; and 2) Whether the court
improperly refused to instruct on the lesser included offense of false
imprisonment.
Holdings: The Court found that the district court
properly excluded irrelevant evidence of the victim’s past conduct. Further, the district court did not err in
refusing to instruct the jury on a proffered lesser-included offense
instruction which required elements not required for the higher felony
offense.
D.J. Tyler delivered the opinion for the
court.
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