*3 KITE, C.J., Before GOLDEN, HILL, VOIGT, BURKE, JJ. KITE, Chief Justice.
[T1] Ray Donald Daves was convicted af- ter a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter victim"). referred to as "the On appeal, he challenges the district court's re- sponse to a question requesting a defini- tion of "used a firearm" and claims he was denied his constitutional right to be when the provided court supplemental in- structions jury. He argues also the evidence was insufficient to convict him because ing gained firm. four her, counts her the State victim's boyfriend of first submission did degree sexual himself. prove by threaten- We af- assault vorce. victim going to return were Mr. Daves On April some told FACTS process of her the victim Mr. jewelry, so she Daves and the getting that he was a di- while district mental further defined tains court injury or the State degree sexual mission victim not sufficient erred demonstrated instructions court to the sexual "used conclude prejudicial. death and committed assault failing to evidence himself in order firearm" that, although the has failed Finally, the was assaults. Mr. convictions with to plain error provide the to present, Daves threatened support obtain to establish serious because record open jury. We *4 the error her sub- the when it district supple- bodily first con- the agreed rest storming and They some parakeet River. She went access that he perform Mr. both one did [15] her residence of her Daves to two went places, of her area to to meet While would not oral near to a jewelry was pulled different agreed to jewelry. he have sex retrieve an they were take coffee hid the in Laramie access area road conditions on him. any available a him. He motels because her to a gun shop, and the accompany He told buried with gun in his at the jewelry. and He then on the because picked her forced her motel. access he returned rooms. were him to his dead Laramie the clothing decided it was poor. area, They first the up At to with ISSUES motel office into the victim took the and normal," while "act her to He told him. following the presents Daves Mr. [T3] people so that offices motel were appeal: on issues in they were suspicious. Onee get not would ment of The State I. III. Was I. II. Was port all be jury on the instruction? Did firearm"? the issues: Wyoming felony violate Did the reasonable "used" defining what Stat. provides the there sufficient Mr. §Ann. a trial court firearm district Daves law, during supplemental prosecution interpretation 6-8-101(a)? a more definition it means clearly established denied while court's was it a evidence misinstruct detailed theories? committing a of "use his instruction valid and of to right to state- Wyo. have of a sup- the to the motel on table. During that clothes again Mr. more himself, threatening to commit he presence. victim's next him finally dropped gun out the bed. alternately pointed in its Daves "somebody was later at morning, after times. aimed and boyfriend. After case, room, sexually assaulted have sexual He case encounter, During He forced the second but then gun her off also threatened he park. and kill At put at her. going to die she some he intercourse the at her residence directed He her course put promised sexual him gun gun at stated, He also point he to remove suicide with of the next to her to assault, he gun vietim two with her and "Do told her to meet kill the it. He put the night." on in her night, get him. him her the gun." use this revers make me commit Do not court me. district deceive II. Didthe ible error ed by the responding conferring during deliberations? questions present counsel victim they summoned told As soon as parents about she arrived police. home, When assaults attempted to contact sup officers sufficient the evidence III. Was residing, he trailer where camper first for convictions port appellant's leading the After vehicle. in his off took in violation assault sexual degree roads icy back over a chase officers 6-2-802(a)@ii)? §Ann. Wyo. Stat. Laramie, outside of he eventually surren- During deliberations, [T10] sent dered. the following question to the district court judge: "[Wle have a definition of "threatened [T8] charged The State Mr. Daves with to use a firearm[.]' [We would like the one count aggravated assault battery definition of '[uJsed a firearm' as referred to Wyo. violation of Stat. § Ann. 6-2- in instruction #13 on 502(a)(ifi) (LexisNexis [Count] 4." The dis 2009), one count of trict court counsel, called in possession without deadly of a weapon with unlawful defendant, and told them about jury's intent in Wyo. violation of § Stat. Ann. 6-8- question and the (LexisNexis research his assistant had 2009), four counts of first done on the definition of "use of a firearm." degree sexual assault Wyo. violation of The research had uncovered an ALR 6-2-302(a)(ii)(LexisNexis § Stat. Aun. article 2009), on the definition of "use" of a firearm under five counts of use of a firearm while commit- § 924(c)(1), U.S.C. which ting criminalized car felony Wyo. violation of Stat. Anu. rying using a firearm while 6-8-101(a) (LexisNexis committing a 2009), and one violent crime or drug trafficking. F. Dough- count of kidnapping in violation Wyo. Stat. erty, What Constitutes "Use" 6-2-201(a)(ii)(LexisNexis §Ann. 2009). Af- Firearm Purposes U.S.C.A., 984(c)(1), jury trial, ter a Pro for he was convicted on all viding Penalty Use Firearm During twelve charges. The district sentenced *5 Drug Trafficking Crime or him Crime to Vio lengthy serve a term of incarceration. of lence, (1995). 125A.L.R. Fed. 545 appealed. first, [T11] At defense counsel stated DISCUSSION that he did not jury believe the needed to be instructed on the definition because "this is A. Definition of "Used a Firearm." not legal technical language." He stated that [T9] Mr. Daves was charged with five he thought they should be instructed to "use counts of use of a firearm while committing a their common understanding of the word." felony, in 6-8-101(a): violation of The district court judge decided to instruct (a) person A who uses a firearm while jury in writing, as follows: committing felony a shall imprisoned be LADIES AND GE[NJTLEMEN: for (10) not more than ten years in addi- As general proposition, a firearm is tion to punishment for felony. For "used" if [it] is available to facilitate the a second or subsequent conviction under underlying offense, and it is required not this person section a shall imprisoned be that the weapon be actually brandished or for (20) not more than twenty years in fired. One method in which a may firearm addition to punishment for the felony. be used protect is to the underlying erimi- Count IV was one of the charges under this nal enterprise. Further, a firearm can be statutory section. Instruction No. 13 in- used as a device to embolden or lend cour- jury: formed the age actor, to the or as a device to intimi- IV, For Count the elements of the crime of date alleged vietim. Use Firearm While Committing a Felo- The written instruction was consistent with ny, charged as in this case are: article, the ALR and defense counsel did not 1. On or about the 4th or day 5th April object. 2009; appeal, [112] On Mr. Daves main 2. In Albany County, Wyoming; tains that the district court erred instruct 3. Defendant, The DONALD RAY ing in accordance with the ALR DAVES; article because a later United States Su 4. Firearm; Used a preme decision, Court Bailey v. United 5. While committing the felony States, 516 of Sexual 137, U.S. 501, 116 S.Ct. Assoult in the Degree.... First (1995), LEd.2d 472 superseded by statute, 1. The had instructed on the regard defini- aggravated assault battery and tion of "threatens to use" deadly weapon charge. 189, at 116 S.Ct. at Bailey, 516 U.S. driving. in the set out the definition rejected parts under was convicted Robinson 508-04. not did counsel defense Because article.2 locked trunk in a having a firearm for statute plain instruction, our apply we object to crack sold she closet when dem to in a bedroom "In order of review. standard error 140, Id. at officer. an undercover to cocaine clear error, 'must show onstrate 504. at 116 S.Ct. violated, the law was rule of unequivocal and record, clearly appears Court Supreme violation States The United [T 14] material 924(c)(1) to his right a substantial convic- him denied the defendants' reversed State, 2010 WY Dougherty prejudice." did not actions tions, concluding that their (Wyo.2010), 1176, 1183 124, reaching that 127, P.3d In a firearm. "use" of involve ¶ 17, 89, State, 2009 WY Creecy v. quoting the statute decision, noted the court addition, In 1089, (Wyo.2009). "using" a firearm "carrying" or criminalized to following standards any of vio- erime always apply to in relation during we claims Id. in reading of the mental Bailey Turning to and there unequivocal er error trict was ed relation cases-Bailey dants ment resulting search seat officers § firearm When instructions, vidual must nificant isolation." should "search issue, as 924(c)(1) 924(c)(1) which the record (citations appeals stopped for court's analysis, we of errors turned the entire instruction decision, were be considered saw found reversible to a reviewing questions mirror instructions The instructions, are front deference. conviction the second him rule of of two be instruction omitted). drug up 830 documents We prejudicial alleged error convicted we in the trunk jury question use and Robinson. as singled out the district which push console of charge covers a traffic of the jury instructions: afford by the district the confine consider of a firearm trafficking crime. error law. We start defendants grams of correctly state something between was aas considered transcript element Jury violated passenger in will error." under infraction based and considered our the parts whole, whether court's is his vehicle and the trial court not be involving clearly shown cocaine. during and exhibits review the relevant Both in different a clear on a loaded includes "[Als consolidat- car he rendition. our compart- with the the the law and found." supple- U.S.C. Bailey defen- them, indi- to a fold- long sig- The and dis- A lence carrying and tive "requires evidence fendant, ed operative offense." phasis "use" bolden" a definition gun noted S.Ct. can Id. at ley was based playing, firearm. pels reference "use" obviously, could ence but obvious cate 924(c)(1), that "use" a firearm 116 S.Ct. interpreting include change in employment The or a table under at 505-07. 148, that the conclusion place to a offense drug the certainly includes satisfy § active-employment a use that factor original). Id. at bartering, 116S.Ct. [T15l in the cireumstances many different active firearm noteWe the statute. can be to a "to using a defendant. firing or trafficking of a "use" which and is a upon the 505. ruling is not our in relation protect Because firearm employment of firearm 924(c)(1). Thus, a refer- insufficient forceful However, sufficient a "use." calculated at 508. "use," the firearm Wyoming firearm, Thus, striking makes In that even 116 S.Ct. attempting to fire the order crime. Id. at unique The court this included under just as the presence activities. in his the result brandishing, dis- mere understanding of drugs or to the firearm to show binding upon us with, the court the to reading com- statute. an offender's at 505 148-45, 116 Id. language bring about distinguish $ amount possession court possession a firearm the and, predicate 924(c)(1) *6 having a rejected aof at 142- in Bu- an predi- silent stat- most (em- em- also gun We, de- ac- an issue. law on this part) to the (pocket supplement cumulative 2. The changed Bailey had indicated edition ALR 256%
therefore, start with our traditional rules of completely Bailey, we would not con- statutory interpretation. clude that the instruction clearly errone-
"In statutes, interpreting Furthermore, ous. primarily reading we the instruction legislature's whole, determine as a intent. If we do not believe that Mr. Daves' language clear, is sufficiently we do concerns are valid. The entire tenor of the not resort to rules of construction. We instruction indicates that the "use" contem- apply general our rule that we look to plated by the statute had to be in the context ordinary meaning obvious of a actually facilitating the crime. statute when the language unambigu- is ous." We together construe parts all A review of the pre evidence pari materia, statutes in and, in as- sented in this case also demonstrates certaining the meaning given law, of a Mr. Daves was not prejudiced by supple we consider and construe in harmony all mental instruction. The record is clear that statutes relating to the subject same he gun "used" the in accordance with both having the general same purpose. general meaning of the term and the When the language is not clear or is "active employment" approved definition ambiguous, the court must look to the Supreme Court in Bailey. they While mischief the statute was intended to were in the truck at the access area near the cure, the historical setting surrounding river, Mr. pulled gun pointed enactment, its public policy of the it at the victim. promised The victim to do state, law, conclusions of and other whatever he asked. He then forced her to prior and contemporaneous facts and perform oral sex on him while he held the circumstances, making use of the accept- gun in his hand. ed rules of construction to ascertain a legislative intent that is reasonable and [118] Mr. Daves told the victim that if consistent. she tried escape, he "put would a cap in Jansma, Merrill v. 26, ¶ 28, WY [her] head ... leav{ing] a hole the size of a 270, (citations (Wyo.2004) 284-85 mug." coffee He had gun with him while omitted). they were in office, the motel booking a State, Stanton v. ¶ 12, WY 130 P.3d room. Once room, were the motel (Wyo.2006). continued to threaten her with gun [116] The ordinary and obvious meaning *7 remind her presence. of its At point, some of "use" is employ "to for purpose, some put put he gun the into a placed case and it on a service, into make use of." Webster's Third However, table. that did change not the fact New Int'l Dictionary (2002). 2524 sup- The that he had consistently threatened to shoot plemental provided instruction by the district the over course of the evening. As the court included this concept. Mr. Daves ar- Supreme Court stated in Bailey, even "the gues, however, that the instruction expanded silent but obvious and presence forceful of a the definitionof "use" beyond that allowedin gun on a table can be 'use'" as defined in Bailey to allow the to convict him even that decision. Bailey, 516 148, U.S. at 116 if found he merely possessed, or even S.Ct. at 508. The evidence established that constructively possessed, gun the without ac- Mr. Daves "used" the firearm as contemplat- tively employing it in the commission of the ed in Bailey by actively employing it and predicate felonies. Because there is no stat- making it operative an factor in utory committing definition of applicable "use" §to 6-8- the underlying 101 addition, felonies In we have not previously interpreted "used" the term in firearm in the context accordance statute, with the the plain district court definition did not of the term violate a clear employing it unequivocal rule of for purpose law when the of making instructed the the victim submit jury. Thus, even if accept we to his Mr. will. Mr. not, Daves Daves therefore, argument supplemental the prejudiced instruction by the district court's instruction could be read in way that did not comport on the definition of "used a firearm."
257 48, in W.R.Cr.P. also confirmed principle is Pro- Jury Instruction Supplemental B. part: in relevant provides which cess judge the definition sent of tion of discussed [119] the first kidnapping a second asking "unlawfully confined" As we both issue, for note of "used questions with charge. The district mentioned additional asking jury sent a firearm." legal guidance in relation a note counsel, but legal defini discussion It also to the court impaneling of at the tence, (a) shall be rule. every Presence verdiet, arraignment, except as otherwise present stage and at Requwired.-The of at the initial jury and the return the trial at the imposition of sen- time of the provided including the appearance defendant by this plea, during these present Mr. Daves respond court then The district discussions. (c) -A defendant Required. Not Presence instructi with a written question to each ed following situa- present not be need on.3 tions: [120] Mr. Daves claims the district
jury instruction
present
two
court violated
struction
present
State,
and counsel
pletely define
instruct
review
cause
(Wyo.2008);
whether
the method
jury was
aspects-his
¶¶ 24-27,
no
2008 WY
applies.
is one
during
objectionwas
proceedings.
Mr. Daves
jury,
however,
instructed.
his
our standard
See,
his
right
the district
conference
98,
law,
constitutional
right to be
Snow
¶ 8,
supplemental
see,
to be
lodged to
that does
had the
This
505,
The determination
190
eg., DeMillard
error standard
with the
State,
present
argument
P.3d
513-14
present when
review.
right
right
his absence
not com
128,
used
at the
(Wyo.
to be
WY
has
Be
130
in
be
v.
tion-whether
respond
present
torneys
unequivocally
tions of
State,
or
ence is
and the
not err
conference.
question
jury question conference
P.2d at
(8)
875
not required
At a conference
law. W.R.Cr.P.
during the conference
by not
judge are
P.2d
177.
lawl.]
stated
We
716,
jury's questions. We
having
judge decided how
Thus,
start with
during a
simply
724
that a defendant's
the district
him
or
(Wyo.1994);
48(c)(B); Lobatos v.
had the
argument
discussing ques
where
the first
when the
right
instruction
court did
counsel
for the
upon a
Seeley,
to the
ques
to be
pres
have
at
2009).
unequivocal
prejudice.
ed
denied
above,
record shows
him a substantial
Under
Dougherty,
rule
of law and
a violation
standard,
¶
right to his
has
239 P.3d
which
to demonstrate
of a
such violation
clear and
we
material
at 1183.
quot
writing,
tion involves
defendant
(LexisNexis
jury's question
rather
present.
The more substantive
than
2009)
way the
Wyo. Stat.
states:
open
instructing them
judge responded to
court with
Ann.
§ 1-11-
ques
*8
for deliber-
have retired
jurors
the
After
Amendment
The Sixth
{[1T21]
between
ation,
disagreement
a
if there is
1, §
Constitution,
10 of
Article
States
United
testimony,
if
the
or
any part of
as to
pro
them
the due
Wyoming Constitution
any part
informed as
they
to be
desire
a criminal
guarantee
each
clauses of
cess
case, they may
during
arising in the
present
be
right to
of the law
defendant
them to the
conduct
officer to
request
Maupin v.
trial.
stage of his
every critical
matter
upon the
information
Seeley
where
(Wyo.1985);
State,
722
P.2d
694
may give
The court
given.
be
law shall
This
(Wyo.1998).
State,
v.
in the Code
Although
is found
this statute
regard
4.
with
court's instruction
The district
3.
Procedure,
efficacy
recognized its
we have
Civil
"unlawfully
stated:
confined"
the definition
See, eg., Hey
well.
prosecutions, as
in criminal
accomplished
if it is
is unlawful
"A confinement
149, 170 P.3d
2007 WY
State,
v.
wood
force,
deception."
threat or
P.2d 342
State,
(Wyo.2007);
Hoskins
(Wyo.1976).
its recollection as to the testimony on
jury
verdict,
returned its
juror
and each
was
points
dispute,
presence
in the
polled
to confirm that he
agreed
or she
after
parties
notice to the
or their counsel.
verdict.
Id.
judge should
[T24] Under
have answered
this
statute,
jury's
ques
ly close case. The bulk of the evidence was
Moreover,
this
was not an
especial
open
tions in
court rather than responding to
provided by the victim's testimony. As the
Moreover,
them in writing.
is
district court acknowledged during
jury
entitled
present
jury's
to be
question
when a
conference,
instruction
the result
turned on
on a substantive matter
is answered. An whether
or not
believed the victim.
swering
jury's question is tantamount
distinguishes
This factor
present
case
jury
"Jury
instruction.
gener-
instruction is
Maupin,
from
723-24,
694 P.2d at
where we
*
ally
point
held to be a
in the
pro
eriminal
reversed the defendant's conviction because
ceeding which warrants
presence
of the
the case was close and
Maupin's
absence
Seeley,
defendant."
259
all
sufficient
following standard:
ciency of the evidence
three theories.
jury;
jury could have
[Wle
State's
ences
do
sented
substitute
not consider
evidence
examine
which
rather,
[980]
evidence
by the
our
can be
we determine
When
to
judgment for
and
conflicting evidence
defendant.
and all
support
reasonably concluded
claim,
drawn
accept as
reviewing a suffi
reasonable
the verdict
we
from it. We
We do
that of the
whether
apply
true the
infer-
pre-
not
on
a
believe[d]
ity to execute
302(a)(ii).
that
threatened
ing to
anyone." He claims
caused
submitted
tim,
has to
evidence
claims the evidence
the State
inflict death
the victim's
establish
on
victim's
that the actor
The
evidence
three different
each of the
these threats."
was
jury instructions
boyfriend,
that
or serious
submission
alleging that
that,
is
and
there
theories.
has the
insufficient
because
argued that
people-the
bodily injury on
was sufficient
by "threaten-
Section
present abil-
Mr. Daves
himself,
Mr. Daves
the State
specified
because
6-2-
vic-
he
crime
reason-
showing that the victim
of the
elements
there was no
each
ability
doubt. This
he had the
beyond
ably
reasonable
believed
proven
supporting
applies
whether
boyfriend
standard
against
the threat
execute
satisfy
or cireumstantial.
is direct
not
evidence
suicide did
to commit
his threats
119, ¶ 6,
State,
216
2009 WY
v.
"anyone."
Anderson
statutory
Dawes
ways the crime
§Ann.
mit
burglary
ted. The
were
failed to
(Wyo.1995) and
enters
structure
guilty of
general verdict
lating includes
statute
occupied
1245-46, both concerned
tin v.
P.3d
[131]
larceny
terms of
(Wyo.2007).
charged. We
v.
1143,
6-3-801(a) (LexisNexis
or remains
State,
(Wyo.2010).
specify
portion
statute,
Bush v.
State,
or
burglary
information,
vehicle,
2007WY
alternatives,
2010 WY
Tanner,
forms
6-8-801(a),
which
felony
thereof,
which
State,
(Wyo.2009),
burglary
if,
or
stated
without
aspects of the statute
in Bush
jury instructions
separately secured or
therein."
2, 32,
states:
1%
with intent
charges under
113, ¶
building,
¶
charged with vio
11-13,
may
there are
that when the
2009).
quoting Mar
authority, he
149 P.3d
"A
and Tanner
prosecution
963,966-67
be commit
Wyo.
57 P.3d at
person
236 P.3d
occupied
to com
Under
many
Stat.
707,
is
Adams
when
that
to deliver
guage.
more
ing
quired a
controlled
to another
the State was
persons.
(Wyo.2003) addressed similar
aof
conspired with
delivered the
[133]
finding that
that the
Bush
the defendant
controlled
persons
he makes
Adams was
he delivered
showing that he
The sexual
We
substance,
State,
a controlled
person.
and its
jury verdict be
to commit the
controlled substance
rejected Adams'
Adams
specific
substance,
required
2003 WY
a threat
has committed
progeny do
Id.,
charged with
which
a controlled substance
assault
conspired
substance,
persons and that
¶
agreed with one or
152,
regarding the basis for the verdict
ren-
CONCLUSION
delivery
dered. Adams'
conviction is sus-
[137] The district court did not commit
long
tainable so
as sufficient evidence was
in its
jury's
error
to the
re-
presented
response
that he
methamphet-
delivered
quest for a definition of "used a firearm."
amine
May
"to another" in
of 2001.
In
Although the district court
instance,
erred
instruct-
this
the record evidences that the
ing
jury
writing
in
delivery charge
open
instead of
surrounded Adams' deliv-
court with
present,
ery
that
methamphetamine
error
Benjamin.
to
Therefore,
prejudicial
was not
under
the facts of
unlikely
is
this
jury's
verdict
jury's
Finally,
was based on
case.
finding
evidence was
sufficient to
support Mr.
that Adams
Daves'
methamphetamine
delivered
convictions on the four
to
counts of sexual
assault in
degree
the first
Neuman
argues.
as Adams
proved
because the State
the requisite ele-
Id.,
21-22,
was not prove to the threat VOIGT,Justice, specially concurring. was directed specific toward a person. As the victim described the events which took I [T89] concur in majority opinion. I place throughout night, it was clear that write separately only to mention one other and, Daves threatened to kill her consid reason responses to all substantive ering that he aimed gun multiple questions should be read to the open times, she reasonably believed he had the court, with the present. defendant If a writ- ability carry to through with that threat. In response ten simply is handed to a bailiff for addition, Mr. Daves aimed gun at him delivery jury room, self, causing beg her to him not kill him record does not reflect whether the instruc- presence. self in her obviously He had the tion was thereafter given read or to each of present ability to execute that threat as well. jurors by presiding juror, or even [¥36]) The victim also testified that Mr. juror that the presiding received the written Daves said going he was boyfriend to kill her instruction from the bailiff. and demanded she take him to where the boyfriend refused, lived. She so she could
not have reasonably believed he had the
present ability to execute that threat. Nev-
ertheless, ability his carry out the threat seriously injuring or killing either himself,
victim or was sufficient satisfy