Granzer v. State

whelming weight of the evidence." Olivas v. Safety Comp. Wyo. rel. & State ex Workers'

Div., WY

(Wy.2006); Pederson v. State ex rel. see also Div., Comp.

Wyo. Workers' case, present we cannot In the "overwhelming weight

say that of the supports appellant's version of

evidence"

events, testimony of Har opposed

less, visit, emergency timing of the room emergency contained

the information record, appellant's partic

room

ipation in that weekend's events. While we appel that the fact of the

are not convinced derby participation

lant's the demolition injury light sheds much

week after the injury July

whether occurred on 3 or

July we do find that substantial evidence supports the record the conclusion that the

appellant prove injury did not oc July

curred at work on

CONCLUSION

[120] The issues of timeliness inju-

appellant's reporting alleged of his work

ry employer to his and the timeliness of his

filing injury report with the Division

played part hearing no officer's deci- case,

sion in this and were waived below hearing

the Division. The officer's determi-

nation that did not injury unsup-

his was work-related was not

ported by substantial evidence.

[T21] Affirmed.

2008 WY 118

Sally GRANZER, Appellant Jo

(Defendant), Wyoming,

The STATE of (Plaintiff).

Appellee

No. S-08-0010. Wyoming. Court of

8,Oct. 2008.

new trial because was instructed improperly prejudiced by and she was improper instruction. The trial evidence on was, however, the "store" element sufficient. We reverse and remand for a new trial. ISSUES The issues for our decision in [T2] this are: case 1. Whether the trial court committed re- by omitting statutory language versible error from the instruction on the elements of child endangerment. produced

2. Whether the State sufficient methamphetamine evidence to dwelling. was stored in Ms. Granzer's

FACTS [18] Ms. Granzer lived in a trailer house Campbell County, Wyoming. She rented Selfe, a room in the trailer to Melissa who year daughter, had a two old GL. GL did not time, live with Ms. Selfe all of the but she did Lozano, Representing Appellant: Diane M. occasionally stay with her. Defender, PDP; Kerin, State Public Tina N. 10, 2006, investigators [14] On October Counsel; Appellate Westling, David E. Sen- went to investigate Ms. Granzer's home to Appellate Argument by ior Counsel. Mr. allegation that she was involved with meth- Westling. amphetamine. Granzer, Ms. Selfe and Representing Appellee: A. Bruce Salz present investigators GL were when the ar- General; burg, Wyoming Attorney Terry L. they searching, rived. As were the investi- General; Armitage, Deputy Attorney D. Mi- gators drug paraphernalia found numerous Pauling, Attorney chael Senior Assistant items, including methamphetamine three General; Pojman, Attorney Leda Assistant smoking pipes light and a bulb used to smoke General; Jenny Lynn Craig, Assistant Attor- drug. All of the items contained meth- ney Argument by Craig. General. amphetamine They residue. also found two baggies methamphetamine with residue un- VOIGT,C.J., GOLDEN, Before and der the couch baggie cushions and a with a HILL, KITE, BURKE, and JJ. quantifiable drug amount of the between the cushion and arm rest of a recliner where Ms. KITE, Justice. sitting during Granzer was the search. One Sally challenges Jo [T1] Granzer her con- investigators believed that Ms. Gran- endangering by knowingly viction for a child baggie zer had removed the pocket from her willfully allowing and her to enter and re- attempted to secret it in the chair. main in a dwelling where Ms. Granzer knew methamphetamine argues was stored. She [15] Ms. Granzer was arrested child, that the was not properly charged endangerment GL, instructed with of a 6-4-405(a)(ifi) the "enter" element of the Wyo. § crime and that violation of Ann. Stat. (LexisNexis 2007). there was insufficient evidence that metham- At the conclusion phetamine was stored guilty We returned a verdict. The conclude that Ms. Granzer is entitled to a judgment jury's district court entered verdict and sentenced Ms. Granzer. She ap- We generally give significant instructing court in deference to the trial pealed. Jury: judge trial is afforded latitude to "The DISCUSSION instructions to the facts of the tailor the Jury Instructions case, error will not found and reversible be part: 405(a)(ii). endangerment Ms. Granzer That statute states violation was convicted pertinent of child § 6-4- trial a whole and sues." long fairly as the instructions when the context of the entire adequately cover the is- viewed as Lapp v. (a) knowingly and person ... shall [NJo 862, (Wyo.2004), v. quoting 864-65 Wilson permit any to:

willfully cause or child (citations State, 912, (Wyo.2000) 14 P.3d 915 ing or vehicle being used to manufacture or store (H) Enter and that remain in a the person room, knows is dwell- meth- proper omitted). objection, ^[19] Normally, we review a claim absence of involving jury using plain instructions incorrect waste cre- amphetamines, or the hazardous State, 152, Butz v. 2007 error standard. WY methamphet- ated the manufacture of ¶18, 650, (Wyo.2007); Lapp, 167 P.3d 655 amines. ¶7, 100 P.3d at 864. Under the added). jury was instruct (emphasis The standard, must show a clear the crime as follows: ed on the elements of violated, unequivocal rule of law was necessary of the crime of The elements record, clearly appears in the and it violation Endangerment, charged in this Child as right to her resulted in denial of case, are: Butz, ¶18, at prejudice. material October, day 1. or about the 10th On State, also, Simmons v. See 2006; Thus, 84, 25, 808, (Wyo.2008). 812 case, Campbell County, Wyoming; justify in order to rever typical sal, instructing court's error in the trial Granzer; Defendant, Sally Jo State, Heywood jury prejudicial. v. must be Knowingly willfully permitted; ¶ 149, 26, (Wyo. 170P.3d 1284 2007WY (GL); A child 2007). dwelling; remain in a To Nevertheless, also we have [¥10] being That the Defendant knew was trial court commits a funda stated that methamphetamine. used to store error, required, when mental and reversal is added). readily apparent (emphasis It is on an essential give it fails to an instruction omitted the "enter" ele- that the instructions ¶ 10, Lapp, 100 of a criminal offense. element instructing by simply crime ment of the State, 865; 2002 Reilly at v. WY P.3d 156 jury required the State was , (Wyo.2002). Proper P.3d 1267 permitted the child to "remain" that she of the crime are instructions on the elements however, not, dwelling. Ms. Granzer did an in a criminal necessary because accused containing the correct offer instruction proof only upon prosecution can be convicted object jury language or otherwise to the of each element of beyond a reasonable doubt instruction. charged. Id. "The test of whether the crime Before we address error, we jury has been properly instructed a crime is whether the necessary re- elements of the correct standard of must determine the cireum- no doubt as to suggests the instrue- instructions leave view. Granzer can be found fundamental, the crime warranting au- stances under which tional error 110, 100 Lapp, have been committed." argues that tomatic reversal. The State reverse, citing Wheaton v. P.3d at we must conclude that order to 56, 120, (Wyo.2003). WY prejudiced by the error. Granzer was give any precedent stating that an er- nized that the failure to instruc- Our [T11l]l jury instructing on the elements of ror tion on an essential element of a criminal suggests that onee the crime is fundamental requiring is re- offense fundamental established, warranted an error is reversal versal of the defendant's conviction." Cole preju- the error regard Cir.1987). without to whether (7th Young, 817 F.2d appears diced the defendant. It this Wright, See also Charles Alan Federal Wyoming originated Vig- statement of law Practice and Procedure: Criminal 2d P.2d 659 In that il v. (1982). § at 728 case, incorrectly the trial court instructed the Id. at 662. manslaughter pursu- on the elements ant to a superseded statute. The defense did Vigil cites a Seventh Circuit case, not, however, object (7th incorrect Cir.1987), instruc- Young, Cole v. 817 F.2d 412 Ostensibly applying tion. authority failing to instruct on an essen- review, standard we stated: tial element of the crime is fundamental er- convict, question as to what occurred ror. There is no case, In that the defendant was law, judge mayhem

at trial. The trial instructed the ed of under Wisconsin but the of the crime of invol neglected on the elements trial court to instruct untary manslaughter, but substituted the great bodily the essential element of harm. culpable neglect terms and criminal care Id. at 428. The that Seventh Circuit ruled lessness for recklessness. This amounts to complete give any jury "the failure to in- require transgression an obvious of the struction on an essential the element of of- judge ment that the trial must instruct charged, fense under cireumstances indicat- jury necessary elements of the ing that the was not otherwise informed State, charged. crime Sanchez v. 751 P.2d element, necessity proof of the of the is a 1300, State, (Wyo.1988); 1307 Horn v. 554 and, process" consequently, violation of due a 1141, P.2d 1148 fundamental error. The Seventh Cireuit addition, declined, however, In this instructional ad- to rule on whether such versely Vigil's affected one of harmless, error could ever be considered ie. rights. Vigil, as the accused in a criminal prejudiced the defendant was not prosecution, only upon can be convicted error, instructional because in that case it beyond proof doubt of each reasonable was sufficient "to hold that the omission of a charged. Stuebgen element of the erime v. great bodily harm instruction have con- State, 870, (Wyo.1976); 548 879 re tributed to the verdict" and that the convie- 358, 1068, Winship, 897 U.S. 90 S.Ct. 25 Thus, tion must be reversed. Id. at 427. it (1970). Clearly, L.Ed.2d 368 did completely scope is not clear what the proven not find that had State ruling "fundamental error" was in Cole. Vigil recklessly beyond a acted reasonable on [113] Based the statement of the law doubt because the was not instructed Vigil, repeatedly we have that fail stated recklessly was an element of involun- give ure to an instruction on an essential Hence, tary manslaughter. Vigil's right, element of the crime is fundamental error. only finding be convicted based on a See, Butz, 118, 655; e.9., Heywood, 167 P.3d at proof beyond a doubt of each reasonable 6, 1284; Seymore at 170 P.3d v. ¶2 charged, element of the crime was denied. 832,19, 401, 152 P.3d 404 Therefore, manslaughter in- because the 110, (Wyo.2007); Lapp, 100 P.3d at 865. neglected struction to include an essential not, however, clearly Our case law does ex Vigil element of the crime for which was plain what that means or the effect of a convicted, we hold that the trial court com- finding of "fundamental error." In Miller v. plain mitted certainly error. This court is (Wyo.1995), 349 we stat declaring not alone in the existence of ed: plain error under these cireumstances. Appeals properly The Failure to instruct on an ele- United States Court of for Vigil, Seventh Cireuit indicated that ment of a crime can be error. "[sltate long recog- prop- and federal courts alike have P.2d at 662. Failure to instruct does not not a fundamental constitutional erly an element of a crime Supreme distinguished Court between struc where that element plain error constitute trial at or where evidence tural errors and errors. Structural er is not contested overwhelming. guilt affecting the defendant's rors are defects framework (Colo. Cowden, 199, 202 People proceeds, v. within the trial rather than which 1987). omission of this definition simply process The errors in the trial itself. specific Neder, defini citing error because 527 U.S. at 119 S.Ct. Fulminante, issue of unlawful was not a contested tion Arizona v. 499 U.S. (1991). if undisputed S.Ct. 1183L.Ed.2d 802 The It at trial that at trial. occurred, have kidnapping had United States Court ruled that it would violently. Miller did accomplished been most instructional errors do not undermine ex-wife and children not contend his and, the foundation of a criminal trial conse willingly. left Because the would have quently, are not "fundamental" or "structur statutory did not of this definition omission 10-11, (distinguish al." Id. at S.Ct. 1827 conviction, Miller was not contribute to his Louisiana, ing Sullivan v. U.S. prejudiced. (1998) 2078,124 S.Ct. L.Ed.2d which held that a instruction defective reasonable doubt Miller case indicates that even [T 14] subject analysis to harmless error was not by failing to in the trial court erred when jury's findings, all of because it vitiated crime, of a struct on an essential element error). Being simple it i.e. was structural object trial still who did not at defendant errors, pre trial errors that are instructional prejudice in order to warrant must show analysis at trial warrant under served the other reversal of his conviction. On harmless constitutional standard de hand, are also cases where this Court there California, Chapman 886 U.S. scribed trial court simply reversed because the has 18, 28-24, 17 L.Ed.2d 705 S.Ct. on an essential element of failed to instruct (1967). Chapman, reviewing Under the crime, specifically inquiring into the without may disregard court errors that are harmless prejudiced the defendant was whether or not ¶¶ Seq, 18-20, Reilly, eg., failure. 55 beyond a reasonable doubt. the 1266-67; at Gabbert v. 2006 WY [T17]) recently employed the struc We ¶ 690, 108, 15, Seymore, (Wyo.2006); 141P.3d 696 dichotomy Large in error tural/trial 5, at 152P.3d 406-07. ¶1 807, (Wyo. 814 ^[115] Vigil was decided 1998 Cole 2008). In Large, we revisited long standing per Subsequent precedent stated that it was error a case. to those deci which 1987 prosecutor opin to elicit a witness's se for a sions, Supreme Court has the United States guilt and the defen guidance on wheth ion about the defendant's provided more definitive prejudice in order to any time the trial dant need not show er reversal is warranted a of his conviction. Overrul jury on an essential obtain reversal court fails to instruct that it ing precedent, "[wJhile our we decided a crime. In Neder v. United element of States, 1, 1827, 144 119 S.Ct. opinion guilt, U.S. an it error to admit be (1999), than structural error.... is trial error rather L.Ed.2d 85 the United States Su Accordingly, longer prose no treat a failing that an to we will preme Court ruled error per opinion guilt as error jury on an element of cutor-elicited instruct essential Id., 130, 177 P.3d at 816. Because Ms. part class of se." an offense is not of the limited testimony object to the trial Large intrin did not fundamental constitutional errors "so guilty, we reviewed her claim require rever that she was sically harmful as to automatic standard, (ie. plain error which rights) typical re under our affect substantial without sal showing prejudice. of material requires Id. at gard to their effect on the outcome." ¶ Id., 31, also, at 7, Espar 177P.3d 816-17. 1827.See Mitchell v. S.Ct. za, 7, 124 S.Ct. 157 L.Ed.2d 268 540 U.S. upon the federal cases Based [T18] (2003). a trial court's Large, we conclude that

[116] In concluding that fail failure to instruct on an element of a crime is or fundamental but an of an offense is not a structural ure to instruct on element apply prejudice. Thus will not Granzer's material As we noted rather a trial error. we Miller, per type analysis to such claims failure to instruct on an essential an "error se" Neder, Instead, when, is not reversible if the element was of error. element objected erroneous instruc defendant not contested or "where evidence of the de- because, guilt overwhelming" court reviews the un- appellate tions at fendant's is cireumstances, claim for harmless error. See W.R.Cr.P. der those the defendant suf- Miller, prejudice 52(a)1 fers no from the violation. Court The United States cases, that, govern at that has directed such 349. Ms. Selfe testified proving grandmother brought early the error ment has the burden of child's GL to her beyond morning a reasonable doubt. was harmless that and Ms. Granzer did not arrive See, e.g., Chapman, 386 U.S. at 87 S.Ct. until later. did not Ms. Selfe stated she Benites, 824; coming stay States v. U.S. talk to Ms. Granzer about GL to United (2004). n. 159 L.Ed.2d 157 S.Ct. at the trailer because she had not seen Ms. However, when, like here and in Granzer for three days. Large, the defendant did lodge appro The State argues rejected testimony could have Ms. Selfe's objection, stan priate trial See, long because she was a time friend Ms. applies. dard of review W.R.Cz.P. Robertson, 52(b); disregarded Granzer's. If United States v. 473 F.3d Cir.2007). (10th testimony then it Selfe's could have inferred explained we As earlier, standard, Ms. Granzer was at the trailer when the child under the and, consequently, arrived her allowed unequivocal a clear and must show Moreover, violated, enter the Ms. Granzer's clearly rule of law the violation record, investigators children told one of the appears and it resulted they had visited their mother at her resi- right to her material denial of 9, 2006, Butz, €18, played dence on October with prejudice. 167 P.3d at 655. See also, Simmons, 125, GL. children's statements were inconsis- 72 P.3d at 812. implication tent with the from Ms. Selfe's proper contrast to the situation where a trial Granzer, testimony that Ms. her children and objection lodged, pre when error is not served, GL were not at the trailer on October appellant's obligation it is the es evidence, Robertson, disputed 2006. Given the prejudiced. tablish she was also, Granzer was entitled to determination 473 F.3d at 1292-98. See United States Olano, 725, 784-35, was, therefore, v. 507 U.S. 118 S.Ct. on the "enter" element. She (1998) (applying materially prejudiced by 128 L.Ed2d 508 the instructional er- 52(b)). F.R.Cr.P. is a ror and entitled to new trial.

jury, main in the the district court violated a clear and Ms. Granzer appears in the record. case because the instructional error equivocal plain in accordance with prosecution rule ^[120] permitted of test law The State concedes that by failing is also The second factor of GL required to § satisfied 6-4-405(a)(fii), to instruct enter to in this clearly un re because, if the evidence not matter of tion phetamine was stored in the trailer. Al there was insufficient evidence that metham acquitted on the though re-try issue, Sufficiency we are [¥23] law, her. See we must also reversing Ms. Granzer Ms. charge of the Evidence e.g., Granzer was insufficient as Wease v. and the State consider entitled to argues jury State, this instruc issue may be a ^[121] We now turn to the third WY 176, 130, 170 P.3d (Wyo.2007); ¶ State, element-whether the instructional error re Dunsmore v. WY right (Wyo.2007). in a to determining sulted denial of substantial In 52(a) 52(b) -Any 1. Rule states: "Harmless er- 2. Rule "Plain error.-Plain error. states: errors ror, defect, irregularity affecting may rights or variance which does or defects substantial be rights disregard- they although brought affect not shall be noticed were not ed." attention of the court." certainly jury to The could infer from the evi- sufficient trial evidence whether there was conviction, following methamphetamine apply we dence that was stored sustain the trailer. of review: standard sufficiency reviewing the of the

When evidence, accepts as true the this Court CONCLUSION Kelly whether a 40, ¶9, ferences tional ences which State's have come to the same result as dence. do not actually did. drawn individuals from it. consider evidence and affords Id. Our that can be drawn quorum of conflicting Jones v. be would, duty is to determine reasonably reasonable (Wyo.2006). or evidence from it those infer even 2006 WY such could, or in fairly evi We ra We conclude the instructional violation rose lowing federal to instruct the crime as set out in tional error was not fundamental. Because tion at show to the level of prejudice. she failed to dence on the "enter" element was consequently, Ms. Granzer suffered material ^[126] The trial court erred when it failed As object Ms. Granzer was law, to the second on the "enter" element of to the erroneous instruc- we conclude the instruc- order to error because the evi- § 6-4-405(a)(iii). justify issue, required disputed; reversal. State Fol- to ^[124] Both parties use the definition presented sufficient evidence to establish the Dic- "store" found the Merriam-Webster "store" element of the crime.

tionary: tion ... disposal." http://www.merriam-webster.com/ "Store: for preservation place or leave or later in a loca- use or trial. Reversed and remanded for a new that, dictionary/store. claims Ms. Granzer KITE, J., opinion delivers the only amount of because measurable Court; VOIGT, C.J., dissenting files a methamphetamine bag was in the from her GOLDEN, J., joins. opinion,in which attempted to hide between pocket which she VOIGT, Justice, dissenting, in which Chief recliner, cushion of the there the armrest and GOLDEN, Justice, joins. methamphetamine is no evidence her "stored" amine located evidence established use, the trailer. She storage. the house was claims that the methamphet- obviously for would also reverse on the issue of the suffi- though sal should flow I agree I respectfully from the instructional with the dissent majority because, that rever- even I We ^[125] are not persuaded ciency of the evidence, which would result fact, entry judgment acquittal. argument. argument reversal for Granzer's adequately to exactly dispute. it The failure of the district court proves what tries as to the elements of the bag tried to hide the of metham- instruct When she recliner, was, charged exacerbated in this case phetamine in the she without offense was appellant that the placing preserva- it in a location for the dearth of evidence question, Moreover, in at a physi- methamphetamine "stored" the home tion or later use. the other in to allowed the child to "enter cal evidence the case was sufficient time she appears undisputed reasonably remain" in the home. It allow the to conclude just at the home methamphetamine appellant in the trailer. arrived was stored did, shortly that when she specify any particular before the officers The statute does not aware that the child was arrived she methamphetamine that must be amount of there, only methamphetamine in There were numer- and that stored empty methamphet- present, than trace amounts implements smoking for other ous trailer, pocket entered. containing baggies, in- was in her when she amine residue may appellant have at cluding light cupboard in the kitchen Evidence that bulb stuff, mattress, past the child to times in the allowed pipe with food under the other home, at which time laundry in a were enter and remain pipe and a basket. There metham- may or not have been bags residue in the couch cushions. there also with there, I phetamine is irrelevant. "stored" entry remand for of a

would reverse and there was in-

judgment acquittal of because to convict.

sufficient evidence significant temporal factor is

[129] The regard to the definition of this case both theory appellant's of

the crime and to the legislature defined the crime

defense. The willfully" allowing a child "knowingly

as dwelling "being in a

to "enter and remain" methamphetamines. ma-

used" to store See

jority opinion supra 16. Neither an infer- the child previous permission for to

ence previ- dwelling,

enter the nor an inference dwelling methamphet-

ous use of the to store

amines, prove that a crime is sufficient other

occurred October

words, the State did not the confluence Specifically, rea.

of actus reus mens proof that the allowed

there was no

a child to and remain in the house at a enter methamphetamine

time that she knew Furthermore,

being there. I would stored that, law, appellant's

find as a matter of

attempt methamphetamine she hide pocket entered

had in her when she legislature

house is not what the had mind required of the crime

when it element methamphetamine be "manufactured" or room, dwelling,

"stored" or vehicle. simple possession case.

This was

2008 WY 121 REECE, Appellant A.

Dawson

(Defendant), Wyoming, STATE (Plaintiff).

Appellee

No. S-07-0296. Wyoming. Court

9,Oct. 2008.

Case Details

Case Name: Granzer v. State

Court Name: Wyoming Supreme Court

Date Published: Oct 8, 2008

Citation: 193 P.3d 266

Docket Number: S-08-0010

Court Abbreviation: Wyo.