Lukе MICKELSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 06-156.
Supreme Court of Wyoming.
March 17, 2008.
2008 WY 29 | 1080
Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Assistant Attorney General. Argument by Ms. Pojman.
Before VOIGT, C.J., and GOLDEN, HILL, and BURKE, JJ, and JAMES, D.J.
VOIGT, Chief Justice.
[¶1] Appellant, Luke Mickelson, was convicted of onе count of possession of a deadly weapon with unlawful intent under
ISSUES
[¶2] Although they phrase them somewhat diffеrently, the parties agree that the issues1 in this case are as follows:
1. Was sufficient evidence presented at trial to support Appellant‘s conviction for possession as well as transport of a weapon with unlawful intent under
2. Were Appellant‘s constitutional rights violated because of a variance between the charging documents and the verdict form and instructions presented to the jury?
3. Was the verdict inconsistent?
FACTS
[¶3] Appellant and the victim in this case have a history of confrontations over Appellant‘s attempts to enter the Buckhorn Bar, from which Appellant is banned. On March 20, 2005, the victim was riding with a friend when they decided to stop for coffee. The two men left their vehicle blocking an alley behind the coffee shop and went inside. Some time later the victim exited the coffee shop to move the vehicle. Appellant was seated in his car, blockеd in by the vehicle. The victim testified at trial that Appellant pointed a revolver at him and told him to move his car or he would “get some of this.” Appellant, on the other hand, maintained that the revolver (a family heirloom) was on a bag on the seat of the car next to him, though his hand was on it, and that he never showed it to the victim. A chase ensued around town, ending with the victim and his friend seeking protection at the police station and reporting the matter to authorities. Ap-
[¶4] Upon receiving the victim‘s complaint, the police went to the Buckhorn Bar, where Appellant‘s vehicle had been spotted. Appellant refused to comply with police commands, refused to relinquish the gun, yelled that the gun was not loaded, and fоr the officers to shoot him. The police finally utilized a taser to immobilize Appellant so they could arrest him.
DISCUSSION
[¶5] The first two issues in this appeal relate to a single incident that occurred at trial. Appellant was charged under
Possession, manufacture or disposition of deadly weapon with unlawful intent; penalties.
A person who knowingly possesses, manufactures, transports, repairs or sells a deadly weaрon with intent to unlawfully threaten the life or physical well-being of another or to commit assault or inflict bodily injury on another is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than one thousand dollars ($1,000.00), or both.
[¶6] The second Amended Information charged Appellant with “possession, manufacture or disposition of deadly weapon with unlawful intent” and recited:
THE ESSENTIAL FACTS ARE that on or about the 20th dаy of March 2005, while in the North alley, located in the 100 block of Grand Avenue, in the City of Laramie, County of Albany, the Defendant, LUKE EDWARD MICKELSON, did intentionally or knowingly possess a deadly weapon, to wit: Colt revolver, with the intent to unlawfully threaten the life or physical well-being of [the victim].
[¶7] Appellant and the State each submitted proposed jury instructions two weeks before trial. Appellant did not propose a jury instruction on the elements of the weapons offense. The State requested a jury instruction that read in pertinent part:
The elements of the crime of Possession of a Deadly Weapon with Unlawful Intent, as charged in this case, are:
1. On or about the 20th day of March 2005;
2. In Albany County, Wyoming;
3. The Defendant, Luke Edward Mickelson;
4. Knowingly possessed or transported a deadly weapon;
5. With intent to unlawfully threaten the life or physical well-being of another.
[¶8] It appears that the district court removed the word “transported” from that instruction before it presented the instructions to counsel at trial because the following exchange occurred during the jury instruction conference:
[DEFENSE COUNSEL]: May I suggest a change, perhaps? Just to—I mean, we never did particulars—or anything is charged as possession or transportation of a deadly weapon with unlawful intent. I—because one of the things I‘m going to argue on that is, Hey, though, look. He had no idea—a) that he never threatened [the victim], but he had no idea he was gоing to be down there at the alley and he definitely didn‘t transport it with any intent.
THE COURT: Well, then if we are going to do that, we should change the instruction on No. 4 as well to be consistent, because No. 4 is just possession with unlawful intent.
[DEFENSE COUNSEL]: Oh, okay. On the—sure. Yeah.
THE COURT: And I think the charge is possession or transportation, isn‘t it, Richard?
[PROSECUTOR]: Well, that‘s the name of the statute.2
THE COURT: Okay. Well, it is not an unreasonable request. I will add that in No. 4.
...
[DEFENSE COUNSEL]: Something dawned on me, Judge. Are we going to have a Tanner problem with Count No. I is whether or not they were able to find him guilty of possession or transport?3
THE COURT: Does it matter? I don‘t think so.
[DEFENSE COUNSEL]: I thought I would bring it up.
THE COURT: Yeah, I know what you are saying but—no, I don‘t think it matters.
[DEFENSE COUNSEL]: Okay. I just thought I would bring it up in case.
THE COURT: I‘ll think on that but I don‘t think it does. And I know what you are saying. So okay, I‘ll make that change on the verdict form, also....
[¶9] Appellant claims two reversible errors based on this series of events. His first claim is based on our decisions in Bush v. State, 908 P.2d 963 (Wyo.1995) and its progeny. We made it quite clear in Bush that, when the state presents the jury with alternative methods of committing the crime but the verdict form does not allow us to determine the method upon which the jury based its conviction, there must be sufficient evidence in the record to support conviction for each method that appears in the instructions. Id. at 967. This problem should never arise, as it is easily remedied with a special verdict form that requires the jury to identify the basis on which it convicted the defendant. Unfortunately, the jurors in this case were only asked to return a general verdict of guilt or innocence as to the charge, which they did.
[¶10] We must first address the fact that Appellant invited the error of which he now complains. “As applied to jury instructions, the invited error doctrine provides that use of an instruction proposed by the appellant may not be grounds for reversal unless the instruction was necessarily prejudicial.” Bromley v. State, 2007 WY 20, ¶ 35, 150 P.3d 1202, 1213 (Wyo.2007). A mistake in jury instructions that interferes with the jury‘s ability properly to understand or examine the separate elements of each crime charged is necessarily prejudicial. See Vigil v. State, 859 P.2d 659, 664 (Wyo.1993); Gabbert v. State, 2006 WY 108, ¶ 11 n. 5, 141 P.3d 690, 695 n. 5 (Wyo.2006). Here, the jury instruction led the jury to consider two methods of committing an offense, where only one was originally charged. That is only a prejudicial error, however, if the evidence is not sufficient separately to support conviction based on each method. Tanner v. State, 2002 WY 170, ¶ 10, 57 P.3d 1242, 1245 (Wyo. 2002). It is not a necessarily prejudicial error.
[¶11] In this case, the error was сertainly not prejudicial, as the record reflects that the prosecution presented evidence that Appellant transported the gun from the alley and on the subsequent chase through town,4 with the intent to threaten his victim. Ap-
[¶12] Appellant‘s second claim is that a fatal variance occurred between the charging document, and the charge ultimately presented to the jury.
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. We will not reverse 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 prеsented at trial or unless the conviction based on an indictment would not bar a subsequent prosecution.’
Rawle v. State, 2007 WY 59, ¶ 11, 155 P.3d 1024, 1027 (Wyo.2007) (citations and quotation marks omitted).
[¶13] Once again, Appellant complains of an error of his own making. The State charged Appellant with possessing a deadly weapon. The verdict form and jury instructions were in accordance with that charge until Appellant insisted that the additional “transport” wording be added. See supra ¶ 8. The rule against suсh variance is intended to ensure that a defendant has adequate notice to prepare for his own defense. Barker v. State, 2006 WY 104, ¶ 29, 141 P.3d 106, 116 (Wyo.2006). As noted above, a variance of that sort is not necessarily prejudicial, but is only fatal if “the defendant could not have anticipated from the indictment what evidence would be presented at trial[.]” Rawle, 2007 WY 59, ¶ 11, 155 P.3d at 1027. See supra ¶ 10. The portions of the record we have quoted in this opinion clearly show that Appellant assumed (however incorrectly) that he was charged with transporting as well as with possession, and crafted his arguments at trial accordingly. Appellant invited the error, which was not necessarily prejudicial, and, therefore, he cannot be heard to complain of it on appeal.
[¶14] Appellant‘s final argument is that the jury‘s finding of guilt for possession of a deadly weapon with unlawful intent is neсessarily inconsistent with the acquittal for assault with a deadly weapon. This argument fails because, as we have repeatedly stated, consistency is not a requirement for a valid jury verdict in a criminal trial. Moore v. State, 2003 WY 153, ¶ 16, 80 P.3d 191, 196 (Wyo.2003).
In a case in which there are multiple counts, each one is treated as if it were a separate indictment. The verdict on the various counts need not be consistent. An acquittal on one count does not prevent conviction on another, even though the evidence is the same and defendant could not have committed one crime without committing both, so long as the evidence is sufficient to support conviction on the count on which a guilty verdict was reached.
Id.
[¶15] We have already addressed the issue of sufficiency of the evidence above and decline to repeat the analysis herе. See supra ¶ 9.
CONCLUSION
[¶16] The doctrine of invited error precludes a finding for Appellant either on sufficiency of the evidence or on the variance between the initial charges and the eventual verdict returned by the jury. There is no need for consistency in a criminal jury verdict as long as sufficient evidence was presented to support each conviction. We affirm.
VOIGT, C.J., delivers the opinion of the Court; JAMES, D.J., files a dissеnting opinion.
JAMES, District Judge, dissenting.
[¶17] I respectfully dissent because I do not believe the district court has jurisdiction over a case where the defendant has not had a preliminary hearing in circuit court and has not properly waived his right to that hearing under the rules.
(a) Right.—In all cases required to be tried in the district court, except upon indictment, the defendant shall be entitled to a preliminary examination in the circuit court. The defendant may waive preliminary examination but the waiver must be written or on the record. If the preliminary examination is waived, the case shall be transferred to district court for further proceedings.
(b) Probable cause finding.—If from the evidence it appears that there is probable cause to believe that the charged offense or lesser included offense has been committed and that the defendant committed it, the judicial officer shall enter an order so finding and the case shall be transferred to the district court for further proceedings....
(Emphasis added.)
[¶18] Reading these rules together, it is clear that a preliminary hearing is not only a right of every defendant, but also the mechanism by which the circuit court transfers jurisdiction to the appropriate district court. The rule allows the circuit court to accept adequate waiver of the right to a preliminary hearing as an alternate way for the сase properly to be transferred to the district court. The record in this case shows that Appellant did not waive his right to a preliminary hearing in circuit court in writing or on the record. There is no evidence that Appellant was even informed of his right to a preliminary hearing on the charge for which he was eventually convicted. In fact, the record shows that the charge for which Appellant was convictеd never went through circuit court at all, and so was never properly transferred to a district court for trial. The Trujillo case cited by the majority was a challenge involving alleged defects in the preliminary hearing. Trujillo v. State, 880 P.2d 575, 581-82 (Wyo.1994). That case determined that defects in a hearing were waived if not raised before trial, but did not address a total lack of such a hearing. Id. at 582. It is that important procedural defect that raises jurisdictionаl concerns here.
[¶19] The purpose of a preliminary hearing is to determine whether there is probable cause to believe that the charged offense, or some lesser included offense, has been committed, and that the defendant committed the offense.
[¶20] In light of the above-quoted precedent, I find the logic adopted by this Court in Trujillo unpersuasive. See supra ¶ 9. The reasoning in Trujillo is that a guilty verdict somehow “cures” the failure to find probable cause to bind a defendant over to trial. Trujillo, 880 P.2d at 582-83. By that logic, a search based on a faulty warrant would be upheld as long as it yielded evidence, because the fact that evidence was present would “cure” the lаck of probable cause for the underlying search warrant. That is inconsistent with basic constitutional principles, as well as our own jurisprudence on the issue of probable cause. I would dismiss this case for lack of jurisdiction, because this Court cannot have jurisdiction over an appeal where the district court never acquired jurisdiction over the matter.