Monday, December 16, 2013

Summary 2013 WY 152

Summary of Decision December 11, 2013

District Judge Deegan delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.


Docket Number: S-12-0246


Appeal from the District Court of Park County the Honorable Steven R. Cranfill, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: December 11, 2013

Facts: Appellant appeals his dual convictions by jury for violating Wyo. Stat. Ann. §§ 6-2-303(a)(vi) and 6-2-303(a)(viii), each proscribing, in the disjunctive, Sexual Assault in the Second Degree. The district court merged the convictions for purposes of sentencing only, imposing concurrent sentences of not less than three (3) nor more than five (5) years incarceration. Separate financial assessments were imposed in respect of each conviction. Appellant appeals on the basis of sufficiency of the evidence to establish he was in a position of authority as required by Wyo. Stat. Ann. § 6-2-303(a)(vi), prosecutorial misconduct in two counts and violation of his constitutional right to not be exposed to double jeopardy by the sufferance of two convictions for the same criminal act under disjunctive provisions of one statute.

Issues: Whether or not there was sufficient evidence to support a jury finding of “position of authority” as required for conviction under Wyo. Stat. Ann. § 6-2-303(a)(vi). Whether or not the prosecutor, in his closing argument to the jury, engaged in prosecutorial misconduct when he attempted to define the term “reasonable doubt.” Whether or not the prosecutor, in his opening remarks and closing argument, as well as in development of the evidence, urged the jury to convict Appellant on an improper basis by painting the victim as a sympathetic figure, including eliciting impermissible victim impact evidence, eliciting an emotional response to the victim by the jury, and urging the jury to hold the Defendant accountable. Whether the constitutional protection against double jeopardy requires this court to vacate one of the two convictions under disjunctive provisions of one statute when both convictions rest upon the same criminal act.

Holdings/Conclusion: We affirm on all issues presented other than the last. As to it, the sufferance of two convictions for violations of disjunctive sections of Wyo. Stat. Ann. § 6-2-303, we reverse both convictions and remand for entry of a new judgment and sentence convicting the Defendant of one violation of Wyo. Stat. Ann. § 6-2-303 and imposing one sentence.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

No comments:

Check out our tags in a cloud (from Wordle)!