Summary 2013 WY 41

Summary of Decision April 9, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: DOUGLAS HOWARD CRAFT v. THE STATE OF WYOMING

Docket Number: S-12-0107

URL: http://www.courts.state.wy.us/Opinions.aspx

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

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate Counsel; Kirk 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; James Michael Causey, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: April 9, 2013

Facts: Douglas Howard Craft was convicted of two counts of first degree sexual abuse of a minor and one count of second degree sexual abuse of a minor upon his three daughters. He appealed, claiming the prosecutor committed misconduct when he questioned a witness about an exhibit that was not admitted as evidence, there was a fatal variance between the charges in the information and the charges proven at trial and the district court abused its discretion when it prohibited his expert witness from testifying about his opinion on what type of sexual abuse allegations were made in this case.

Issues: Mr. Craft presents the following issues on appeal:

1. Did prosecutorial misconduct occur when the prosecutor questioned witnesses on an exhibit he did not intend to submit into evidence?

2. Concerning two of the victims, PC and AXC, was there… a fatal variance between the charges alleged and the charges proven at trial?

3. Did the trial court abuse its discretion when it prohibited Mr. Craft’s expert witness from providing an opinion as to which class the allegation of sexual abuse falls within?

The State presents the same issues but phrased differently.

Holdings: The Court concluded that Mr. Craft was not prejudiced by the identification procedure because sufficient other evidence of Mr. Craft’s identity as the perpetrator was presented at trial. There was no variance between the charges alleged and the charges proven at trial; the evidence was sufficient to support the convictions. Lastly, the district court did not abuse its discretion in excluding the expert testimony, which fell outside the range of permissible opinion testimony. Finding no error, the Court affirmed.

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]

Summary 2010 WY 127

Summary of Decision issued September 21, 2010

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

Case Name: Dougherty v. State

Citation: 2010 WY 127

Docket Number: S-10-0016

Appeal from the District Court of Laramie County, the Honorable Peter G. Arnold, Judge.

Representing Dougherty: Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Dougherty challenged his conviction for child endangerment. He claimed § 6-4-403(b)(iii) which makes it a crime to knowingly commit any indecent or obscene act in the presence of a child, is constitutionally vague. He also asserted the district court improperly instructed the jury.

Facial Challenge: The Court was asked to decide whether the statute provided a standard of conduct. In analyzing the constitutionality of § 6-4-403(b)(iii) the Court looked to cases with similar statutory language. It noted that while the statutory terms “indecent” and “obscene” were somewhat imprecise, they are generally regarded as synonymous and “indecent” has been defined in prior cases, thereby providing the ordinary citizen with notice of the types of conduct that are prohibited. Further, the statute only criminalizes indecent or obscene acts when in the presence of a child (defined as a person under the age of sixteen.) given the statute cannot be said to provide “no standard at all,” it is not unconstitutional on its face.
“As applied” challenge: The standard of review requires the Court to accept the State’s view of the facts. Utilizing that standard, the Court accepted that Dougherty was masturbating in the presence of a little girl. Moreover, the Court has recognized that masturbation in the presence of a child is “indecent” under the indecent liberties statute.
Variance/constructive amendment: Dougherty claimed there was a fatal variance between the information and the jury instructions and/or a constructive amendment to the charge at trial. A constructive amendment occurs when the evidence presented at trial, together with the jury instructions, alter the charge so much that the defendant is convicted of a different crime than was charged. The information contained the details of the charged crime while the jury instruction did not. The State’s theory of the case remained consistent giving Dougherty sufficient notice of the charges and the facts which would be presented a trial. Dougherty claimed that by failing to provide the particulars to the jury in the instructions, the charge was constructively amended. United States v. Bishop was not applicable to the instant case because unlike it, the evidence presented at Dougherty’s trial did not differ from that included in the information. Here, the jury was instructed to determine whether his conduct was indecent or obscene. There was no possible alternative offense at issue in the trial and therefore, no possibility that he was convicted of an offense not included in the charging document.
Jury instructions: Dougherty did not establish that under the circumstances of the instant case, the district court violated a clear and unequivocal rule of law by treating the terms “obscene or indecent” as a single element and not providing a special verdict form to force the jury to choose between the alternatives. Even if a special verdict form should have been used, the Court can still uphold a conviction if there is sufficient evidence of each alternative.

Conclusion: The Court concluded the statute was sufficiently definite and the jury instructions were not erroneous.

Affirmed.

C.J. Kite delivered the decision.

J. Voigt, specially concurring, joined by J. Hill: The Court has previously found statutory language such as this to be constitutional, so the Justice concurred. He wrote separately to voice his continued difficulty with a criminal statute that is so broadly drawn. It is not up to juries to be pointing out, after the fact, what conduct is criminal; that is a legislative task.

Link: http://tinyurl.com/2bjqaz8 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 81

Summary of Decision issued June 19, 2009

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

Case Name: Hulsy v. State

Citation: 2009 WY 81

Docket Number: S-08-0257

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Hulsy: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan. Senior Assistant Appellate Counsel.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Assistant Attorney General.

Facts/Discussion: Hulsy was convicted by a jury of felony interference with a peace officer. Hulsy was engaged in a violent verbal and physical confrontation with an employee at a bar in Jackson. He was eventually subdued and restrained by bar employees and his roommate until Teton County Sheriffs arrived. The Sheriffs had to force him to walk out of the bar. The roommate and the Sheriffs reported that as they were headed down some stairs Hulsy either kicked one of the deputies or lunged forward carrying himself and one of the Sheriffs along with him injuring the Sheriff.
In the prosecutor’s opening and closing statements, he commented that the Sheriff fell down the steps and was injured regardless of whether Hulsy kicked him or lunged forward and dragged him down the stairs with him. The Court noted that it has described the constitutional and procedural principles underlying notice and variance issues in Gonzales v. State, Vernier v. State and Capshaw v. State. It expanded on the principles in the decision in Spagner noting that a variance occurs when the evidence presented at trial proves facts different from those alleged in the information and that a variance is not fatal unless the appellant could not have anticipated from the indictment what evidence would be admitted at trial. The Court found there was sufficient evidence in the trial transcript whereby the jury could have found either version of the events credible and reasonably could have determined beyond a reasonable doubt that the appellant intentionally and knowingly injured the deputy.
A careful review of the record revealed that the State did not shift its theory of prosecution, rather the State took advantage of Hulsy’s defense (that he thrashed and lunged in such a fashion as to knock the Sheriff down the stairs as opposed to kicking him) and pointed out that the net result was the same – the evidence proved the elements of the crime.

Conclusion: Under applicable constitutional and procedural standards, Hulsy was adequately advised of the charge against him and there was sufficient evidence to support the verdict which was not the product of improper alternative charging.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/np5dog .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 12

Summary of Decision issued January 30, 2009

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

Case Name: Spagner v. State

Citation: 2009 WY 12

Docket Number: S-08-0105

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant Spagner: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jenny L. Craig, Interim Faculty Director and Eric Thompson, Student Director, Prosecution Assistance Program.

Facts/Discussion: Appellant was charged by Information with two counts of first-degree sexual assault and three counts of thirds-degree sexual assault. A jury found him guilty of all five crimes. The appellant contended below, and contends again on appeal, that the Information and its supporting affidavit afforded him insufficient notice of the charges against him, that the verdict form was flawed, and that the district court improperly allowed amendment of the Information to conform with the evidence.

Adequately inform appellant: An Information is required to contain the elements of the offense charged, to fairly inform a defendant of the charges against which he must defend and to enable a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Wyoming follows the rule that the sufficiency of an information is determined from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting. The key is whether the defendant has been misled to his prejudice. The Court stated that the Affidavit and Information, although not models of clarity, did not fail to give the appellant adequate notice of the five crimes with which he was being charged.
Fatal Variance Between Charges Alleged and Charges Proven: A variance occurs when the evidence presented at trial proves facts different from those alleged in the information or indictment. A variance is not fatal unless the appellant could not have anticipated from the indictment or information what evidence would be admitted at trial, or the conviction would not bar subsequent prosecution. The Court stated that if they were to find a variance existed it would not have been materially prejudicial to the appellant because the charges remained the same, the nature of the charges remained the same, and the character of the evidence remained the same.
Right to Due Process or Notice: The Court reviews a district court’s decision to grant or deny a motion for leave to amend an information for an abuse of discretion, focusing upon the question of whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious. The Court stated that the issue was decided against appellant through its resolution of the first two issues. Appellant was not misled into believing that he actually was defending the allegation of a crime that took place in 2004. Rather, he was trying to take advantage of a mistake in a recitation of dates by the young victim. No additional or different offense was charged via the amendment and substantial rights of the appellant were not prejudiced.

Conclusion: The Appellant was adequately informed of the charges against which he would be required to defend at trial, there was no fatal variance between the facts alleged and the facts proven at trial, and substantial rights of the appellant were not prejudiced by amendment of the Information.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/bftdjd .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 59

Summary of Decision issued April 11, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note 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.]

Case Name: Rawle v. State

Citation: 2007 WY 59

Docket Number: 05-164

Appeal from the District Court of Lincoln County, Honorable Jere Ryckman, Judge

Representing Appellant (Defendant): Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director DAP; Meghan Reed and Cherie Trine, Student Interns DAP.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robert A. Nicholas, Senior Assistant Attorney General.

Date of Decision: April 11, 2007

Issues: Whether there was a fatal variance between the pleadings and either the jury instructions or the facts proved at trial. Whether the jury instructions accurately set out the law of felony murder, and did the instructions prejudice Appellant. Whether there was sufficient evidence to convict Appellant.

Facts/Discussion: An information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. A variance arises when the evidence presented at trial establishes facts that are different from those alleged in the indictment. Similarly, a shift in the government's theory from the one set out in the indictment to that presented at trial may also constitute a prejudicial variance. However, an action will not be reversed unless the variance affects the defendant's substantial rights. Even in cases where an appellate court determines the existence of a variance, such a variance is not fatal unless the defendant could not have anticipated from the indictment what evidence would be presented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution. Appellant in the present action contends that he was convicted of felony murder as an aider and abettor, but the information charging him with felony murder and the elements provided in the jury instructions required that the state to prove that he actually killed the victim.

Wyo. Stat. 6-1-201 provides that an aider and abettor is to be informed against, tried, and convicted in the same manner as if he were a principal, no distinction is made between an aider and abettor and principal. Hence, an aider and abettor is guilty of the principal crime. Proof of participation in either capacity is sufficient to convict a defendant as a principal, and it is not necessary that the information refer to the aiding and abetting statute. While reference to Wyo. Stat. 6-1-201 in the charging document may be the better practice, the failure to specify that Appellant was an aider and abettor to felony murder did not render the information insufficient or restrict the State to proving that he had been the principal in the murder. Accomplice liability for felony murder is unique in character. Felony-murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. A killing occurring in a continuous transaction involving a robbery is a classic example of felony murder.

Contrary to Appellant's assertion that he had no idea that he was being prosecuted as an aider and abettor, other information in the record revealed that defense counsel had received notice that the State viewed the crimes charged as joint endeavors. The affidavit of probable cause identified all three perpetrators, described the eyewitness testimony, and detailed the incriminating statements one of the other participants gave to the police. Defense counsel obtained ample discovery from the State, including witness statements. If any doubt remained concerning the nature of the State's case, it was resolved several weeks before trial when the State submitted its proposed jury instructions, including an aiding and abetting instruction. Appellant never requested a bill of particulars and, even after receiving the State's proposed jury instructions, did not request a continuance or any clarification from the court or the prosecution.
Based upon the record, it was difficult to believe that Appellant could not have anticipated the State's case against him.
A trial court is given wide latitude in instructing the jury and, as long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found. Instructions must be considered as a whole, and individual instructions, or parts of them, should not be singled out and considered in isolation. Prejudice will be determined to exist only where an appellant demonstrates that the instruction given confused or misled the jury with respect to the proper principles of law. When reading the instructions given to the jury in this action as a whole, the jury was properly and adequately instructed regarding felony murder. If any confusion arose, it likely stemmed from an instruction supplied by the defense which did not state a cognizable defense under Wyoming law. It is similar to one which has been rejected because it is designed to insulate the defendant from culpability by arguing that his cohort actually killed the victim. A defendant is not entitled to such an instruction because that approach has no place in the felony murder doctrine. Accordingly, the district court could have properly rejected that instruction, but having given it, the error was more prejudicial to the State than to Appellant. Pursuant to the doctrine of invited error, this instruction requested by the defense cannot provide grounds for reversal unless it was "necessarily prejudicial," which had not been demonstrated.

Holdings: The State presented testimony from two eyewitnesses. Both of these witnesses discussed the conduct of Appellant and his co-conspirators before, during, and after the robbery and murder. Although a defendant's presence at the time and place of the crime does not conclusively establish guilt as an aider, abettor, or principal, an intent to engage in the criminal venture may be shown by the relationship of the parties and by their conduct before and after the offense. From eyewitness testimony, the jury in this case heard how the conspirators, including the Appellant, freely talked about and carried out their drug related activities. The robbery was also planned and discussed in front of the witnesses. They carried out their plan, and the victim was stabbed to death. One of the witnesses saw the body, the murder weapons, and blood on Appellant, and watched him help dispose of evidence afterward. There was testimony concerning Appellant's active role in driving the victim's vehicle to a remote location and burning it with the dead body inside. Affording every favorable inference to the State, the witness' testimony was sufficient to establish the conspiracy, especially when considered with the other evidence of the behavior of the co-conspirators immediately before and following the robbery and murder. Furthermore, Appellant admitted that he was well aware of the intentions of his companions to rob the victim using steak knives. It was undisputed that armed with this knowledge, he contacted the victim and arranged the meeting anyway. Although Appellant wants to characterize his actions as innocent, the jury could easily infer that he was fulfilling his role in the criminal scheme. Although he claims to have acted under threat, the testimony from the eye-witnesses did not support reluctance or duress. The fact that Appellant provided an alternative explanation for his behavior is irrelevant. The jury was allowed to weigh all the evidence and could have easily concluded that Appellant's undisputed participation in destroying evidence was corroborative of his involvement in the crime. Viewed in a light most favorable to the State, the evidence supported the jury's finding of guilt.

Affirmed.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/yuknu4 .