*1 232 Bonham,

mopolis Security Employment Had the Terry SEELEY, Appellant Kent adopted a rule al previously Commission (Defendant), reconsideration, Hupp lowing Mr. for by surprise not have been taken would Wyoming, The STATE of agency recon this case decided to when (Plaintiff). Appellee its sider decision. No. 83-244. patent at the admin- of a error Correction Supreme Wyoming. Court of judiciary time istrative level will save expense an may parties save 7, March 1986. objectives. appeal. Both desirable by requiring They should not be foreclosed authority a statutory to reconsider

specific Administrative

decision when rulemaking serve Act’s statutes

Procedure procedur- needed

as a mechanism to create its agency rules an to reconsider own

al for legislature,

erroneous decisions. event, right ultimate retains the through the of the Adminis-

decision text by specific provi-

trative Procedure Act or agency statutes.

sions the individual control afforded

The additional seq., process, 28-9-101 et

rules review § (1984 Replacement), conjunc-

W.S.1977 Procedure

tion with the Administrative

Act, signifi- seq., very et 16-3-101 § legislative Land &

cant restraint. See XIV L.Rev., supra,

Water for discussion process as ad-

the rather unusual retained legislative control or su-

ministrative

pervision providing participation 3—102(c);ap- attorney general, § 16— 3—103(d);and

proval by governor, § 16— legislature, 28-9-101 review 16-3-103(a)(i). seq.,

et and § reversal,

I concur would adopt

deny agency authority to reasonable discretionary procedure

rules afford

rehearing process. sions, especially a decision is determined 253 Minn. (1958); 91 N.W.2d A.L.R.2d when obviously Smelting Refining upon Dis- American & Co. v. to be erroneous. reflection Board, Hearing Pollution Control burdened with correct- Air trict courts need Arizona agency rel. ing 113 Ariz. State ex which become obvious to an errors agency jurisdiction Republic Review, Corp. when the Steel v. Environmental Board loses before Ohio.Ops.3d process

judicial appeals Anchor Ohio St.2d is invoked. Ass’n, Bongards Creamery Casualty Co-Op N.E.2d Co. *2 primary respects some intertwine with the admissibility issues of evi- prior dence of acts bad co-defendant; of the court to failure limit effect of bad by appropri- acts to the co-defendant’s case *3 instruction; equal protec- ate the denial of the ineffective tion of the law because of trial; assistance of counsel at and an abuse sentencing appellant. of discretion in We conclude that there is no reversible judgment and sen- error this case. The tence are affirmed. Seeley’s

The statement of issues brief following: lists “I. THE PRIOR BAD ACTS EVI- ADMITTED DENCE AGAINST CO-DE- FENDANT CAREY WAS IMPROPER- LY ADMITTED AND WAS PREJU- APPELLANT DICIAL TO SEELEY. THE HERMAN “II. CASES OF CAR- EY KENT AND TERRY SEELEY WERE IMPERMISSIBLY JOINED FOR TRIAL.

“HI. THE TRIAL COURT ERRED IN GRANTING APPELLANT SEE- NOT Monteith, Boynton A. & Mon- Robert A LEY MISTRIAL AND/OR SEVER- teith, Casper, appellant. for ANCE. “IV. THE COURT’S FAILURE TO Gen., McClintock, Atty. Gerald A. A.G. THE JURY TO PROPERLY INSTRUCT

Stack, Gen., Atty. W. Ren- Deputy John THE BAD ‘COMPARTMENTALIZE’ Gen., neisen, Margaret Atty. Asst. and Sr. ACTS AND OTHER TESTIMONY CON- Gen., White, Atty. appellee. M. Asst. for CAREY CERNING CO-DEFENDANT ROSE,* APPEL- THOMAS, C.J., IRREPARABLY PREJUDICED and Before CARDINE, LANT SEELEY. ROONEY,** BROWN and JJ. IN “V. THE TRIAL COURT ERRED

THOMAS, Justice. Chief TO OFFER INSTRUC- ITS REFUSAL INCLUDED OF- TION AS TO LESSER re- primary issues which are to be FENSES. appeal, is taken from a solved this THE IMPOSED “VI. SENTENCE conviction of sexual assault EX- 6-4-302, W.S.1977, APPELLANT SEELEY WAS UPON as defined CESSIVE, AN ABUSE CONSTITUTES necessity for severance of relate AND IS OF JUDICIAL DISCRETION case of a co-defend- case from trial with the CRUEL AND UNUSUAL PUNISH- the cases were consolidated ant after THE AMEND- MENT UNDER SIXTH trial; sufficiency of the evidence to MENT TO THE UNITED STATES CON- conviction; appellant’s and sustain the STITUTION. offered the trial court refusal of APPELLANT WAS lesser-included of- “VII. SEELEY on asserted instructions LAW BE- which in DENIED DUE PROCESS OF are other issues fenses. There ** Retired November 1985. Retired November 1985. pickup. buying CAUSE OF THE INEFFECTIVE AS- friend’s gas, After IN SISTANCE OF TRIAL COUNSEL they get pickup were unable to started THE MATTER. pushed pickup and then parking apart- “VIII. THE lot of the friend’s EVIDENCE WAS INSUF- apartment, FICIENT FOR A friend REASONABLE JU- ment. The went into her ROR TO FIND APPELLANT SEELEY came short while back outside OF THE AS GUILTY CRIME falling boy after out with her CHARGED A BEYOND REASONABLE friend. DOUBT.” people The four rode then around for a response, the State of re- period Seeley’s pickup, short of time in way:

states reorders the issues in this apartment. returned to the friend’s Both THE

“I. WAS SUFFI- EVIDENCE inside, the victim and the friend went CIENT FOR CONVICTION? Carey waiting Seeley’s pick- *4 up parking “II. APPELLANT in the DOES HAVE lot. victim testified 404(b), STANDING TO RAISE A stay overnight RULE that she intended to with friend, WYOMING OF IS- RULES EVIDENCE her but she did not feel comfortable SUE? there because the situation between her boy Seeing “HI. DID friend and the friend’s friend. MISJOINDER OCCUR? Seeley Carey parking lot, and in the she “IV. IF DID MISJOINDER NOT OC- give to them decided ask to her a ride CUR, to IS ABUSE OF DISCRETION THE her house living. sister’s where she was STANDARD OF REVIEW? “V. DID TRIAL ABUSE ITS COURT Seeley Carey agreed and to her a IN DISCRETION DENYING MOTION home, journey, Seeley during ride FOR SEVERANCE AND/OR MIS- did not follow her as instructions to the TRIAL? Instead, they park route. drove to a trailer DID TRIAL “VI. COURT ABUSE ITS Seeley where had mobile a home. The IN DISCRETION NOT GIVING LESS- that, although victim testified she was re- ER INCLUDED OFFENSE INSTRUC- so, voluntarily accompa- luctant to do she TIONS? home, nied the men the mobile two inside DID “VII. TRIAL ABUSE ITS COURT inside, they gone after she and had ob- AP- DISCRETION IN SENTENCING locking Carey served the door. When she PELLANT TO TEN TO TWELVE doing, replied him he asked what was (12) YEARS? they going some were have fun. WAS APPELLANT DENIED “VIII. subsequently The victim testified that EFFECTIVE ASSISTANCE OF COUN- through the exercise of violence and force SEL?” Carey perpetrated upon a sexual Those in the her. facts detailed com- begin The material with the victim facts panion Carey case of and a friend hers met whom she at her P.2d The victim testified that place employment encountering Seeley being sexually Carey, after assaulted Carey Casper. in and Herman at club Seeley into in the came the room mobile During hours, the next several these four home, trousers, inquired if lowered and danced, people beverages, drank alcoholic some too. She said he could have fun in Seeley’s pickup rode another similar Seeley then had intercourse with in, sexual go nightclub they where did not and Carey. her some assistance from See- with returned to the club where the and ley testified that he did sexual her friend had first encountered the two victim, claiming that he During contact with they their travels men. had personal buy whiskey had a aversion to sexual stopped liquor at store closed, who they mix. in intercourse with white female had and When the club left in separate intercourse with a their vehicles with the victim and been involved victim, Carey going gas According her friend obtain for the man. black time, place, Dycus had sexual her a then intercourse with occasion. After men second time. that the two did P.2d Dobbins v. to her sister’s take her home. Wyo., 483 P.2d 255 Rule 11(b) joinder justifies the of offenses which facts will as nec- Additional be discussed character, are of similar such as narcotic essary disposing of the several issues time, closely place related in sales man- trial, appeal. Seeley raised in this At both State, supra, ner. Dobbins Carey were convicted of sexual assault Rivera, 258, quoting United States 6-4- the first violation of § (2nd Cir.1965). F.2d The record 302(a)(i), 6-2- (superseded W.S.1977 by Seeley objection this case discloses no (June Replacement)).1 W.S.1977 the consolidation of his case for trial with charged separate infor- They had been Carey’s, objected, but even if he had mations, but the cases were consolidated pursuant joinder proper initial Rules Seeley’s appeal is taken from a for trial. 11(b) and W.R.Cr.P. The fact committing him to judgment and sentence charged were Penitentiary for riot years. separate ten nor more than twelve convicted of two crimes does not less than foreclose consolidation in an instance such four error are all Seeley’s first claims of essentially this in which the crimes con- acts the evidence bad related to single stitute a transaction or involve a co-defendant, Carey. Ad- of his related series of acts. dressing chronological context those that the proceedings, first hold insists, however, if that even con *5 Seeley’s Carey’s joinder of case with initial proper, prej solidation was there did occur 12, improper. trial was not Rule case for grant in refusing udicial error to him a W.R.Cr.P., provides that: mistrial or a severance of his case for trial * * * may “The court * * * order informations prior the evidence the bad acts when on offenses, together to tried if the be part Carey at the the was offered trial. * ** defendants could have and the instance, Seeley request did not this * * ” joined single in a been information. Carey’s when evidence of severance offered, acts was but he did prior bad ask 11(b), provided Rule Joinder is for under in for a mistrial. Precedent in W.R.Cr.P., language: following in the prejudicial joinder is which discussed con * * * charged may be “Two defendants sists of cases have involved motions * * they if same information of the to sever. on the defendant Os alleged participated 471, have in the same State, to P.2d trowski v. 665 484 transaction, same series act or or in the State, State, (1983); supra; v. v. Lee Tabor transactions, constituting an of acts or (1980); Wyo., 616 P.2d 1282 Linn v. * * * ” or offenses. 1270, 1273, cert. denied 411 959, 983, 2277, 93 S.Ct. 36 L.Ed.2d U.S. reh. Joinder, 11(b), pursuant to Rule 2780, 944, 412 U.S. 93 denied S.Ct. 37 W.R.Cr.P., pur and therefore consolidation (1973); 405 L.Ed.2d Dobbins v. su 12, W.R.Cr.P., proper is suant to Rule P.2d at courts pra, 483 259. Other have defend those instances which the two if a does not held that defendant make a trans participated ants act or same sever, right to motion waives action, or in the of acts or same series See, e.g., Longoria, v. severance. v. 653 P.2d transactions. Lee 7, (1979). (1982). Ariz.App. 1179 A series has been 123 596 P.2d 1388 of acts Appeals for defined as those a close connection United States Court of W.S.1977, 6-4-302(a)(i), "(i)- provided as The actor of the 1. Section causes submission victim reasonably application, follows: actual cal- victim, cause culated to submission "(a) Any penetration who actor inflicts sexual "* * or forcible or sexual intrusion on a victim commits confinement: assault in the if:

237 Eighth properly Circuit has held that a waiver of a consolidated for trial was neces- separate may sary. if demand trials found It is from clear this record that the pretrial did not jury defendant renew a mo not have confused two de- could prosecu any tion to sever the close of the way fendants or in concluded that See- ley tion’s at the all case or close of evidence. had been involved in prior bad acts. Brim, (8th United v. 630 F.2d 1307 On States cross-examination of Phoenix vic- Cir.1980), 966, tim, Seeley’s attorney cert. denied 452 U.S. caused 3121, S.Ct. L.Ed.2d 980 make quite clear her know, she did not nor had she ever had According Wright, Federal Practice with, Seeley. contact only Her com- Procedure, 213, p. “a § plaint against of Carey. conduct object defendant who did not to trial to- respect With the Wyoming incident in gether complain court cannot district Gillette, the equally evidence was clear that notes, on appeal.” The same text also how- perpetrator in that instance was a black ever, case in a that “the law is not satisfac- man. Seeley white, jury and the could tory concerning state whether a motion for difficulty have had no in distinguishing the joinder required relief prejudicial from Furthermore, two. in closing argument whether the court should act its own counsel Carey for both noted Wright, motion.” Practice Federal any prior Carey acts of could not be 221, Procedure, p. 769 See Linn attributed obviously and that See- States, Sims United ley could merely not be convicted on the Ill, U.S.App.D.C. 405 F.2d 1381 of his basis association with his co-defend- States, 362 U.S. United Schaffer ant. denied, reh. 4 L.Ed.2d S.Ct. acts, U.S. Carey’s 80 S.Ct. L.Ed.2d evidence bad like the “ * * * (1960). Seely complain did about the supra, evidence Lee being Carey unfairness of easily ‘compartmentalized’ tried could be by the Carey’s prior jury” view of the prejudice bad no to Seeley therefore acts. While can damaging not decided whether a be discerned. The effect of trial judge duty would have a to sever evidence as not consti does *6 13, pursuant trial of prejudice, cases to Rule W.R. tute because is not enti Cr.P., severance, a simply absent motion tled to severance because evi have said “on against motion for severance the dence a co-defendant is more dam State, present aging. burden is the movant supra; to facts Lee v. United States Jackson, 517, demonstrating prejudice will v. F.2d result 549 40 A.L.R.Fed. 907 (8th joint State, Cir.1977), 968, from a v. trial.” Dobbins su- denied cert. 431 U.S. 97 State, pra; supra. 2928, (1977). Tabor v. S.Ct. L.Ed.2d 53 1064 Since prejudice record does demonstrate prejudice Seeley points which The to Seeley arising to out of the evidence of is to testimony this instance the effect acts, Carey’s though even a clear bad mo co-defendant, Carey, perpetrat that his had made, tion for severance had been trial ed a sexual on a female victim in assault justified refusing court would been have Arizona, Phoenix, grabbed and had grant to motion. say such a While we will ground thrown to young a female later, more significant about this Gillette, Wyoming. propriety of admit Seeley’s position at trial he was that knew ting against Carey this evidence has been intercourse between vic disposed of in our decision Carey v. tim, engaged any but that he had not (1986). State, Wyo., activity with the victim. standing challenge does not have against Carey. admission Turning Seeley’s complaint of evidence In then to stead, he demonstrate that the about must admis the failure the court instruct prejudicial jury “compartmentalize” sion of that evidence was so the evi him that a severance the cases otherwise dence of the acts and other bad

238 the evidence that en when it is clear from Carey, co-defendant we note concerning the requested guilty either of the instruction was the defendant that no such trial, record indicates that charged guilty. Stamper in fact the offense or not v. such emphasizing 82, (1983); fearful State, counsel was 92 Wyo., 662 P.2d State cautionary Certainly instruc- testimony. (1981), citing Wyo., 635 P.2d 786 Selig, v. prejudice to a defendant tions to avoid Chapman, 615 F.2d 1294 v. United States State, supra; Linn approved. Lee v. been Cir.1980), 967, (10th cert. denied 446 U.S. State, State, supra. supra; v. v. Tabor 2947, (1980); 64 L.Ed.2d 827 100 S.Ct. an inde- trial court of imposition on a State, 1150, Wyo., v. 580 P.2d 1152 Jones cautionary duty give pendent, continuing State, (1978); Wyo., Richmond v. 554 P.2d any request by a de- instructions without 1232 reh. denied 558 P.2d 509 would, however, deprive defend- fendant (1977); v. Oldham respect to whether ant of choice with (1975); Gonzales, Wyo. State v. given. As limiting should be instruction (1933); 52, 23 P.2d 354 Ross v. may prefer case, well this the defendant 299, 303, P. Wyo. 93 P. reh. denied 94 emphasized not be that the evidence fairly The evidence must raise In an instance giving instruction. of such question guilt of the lesser-included this, prejudice has been in which no such as supra; Keeble v. Selig, offense. State record, no we find on the demonstrated States, 412 U.S. 93 S.Ct. United limiting in- give error in the failure (1973); 36 L.Ed.2d Oldham struction. supra. of instruc- his claims Pursuing further error, Seeley that the trial contends tional Furthermore, in order for an of refused to several improperly court fense to constitute a lesser-included of of- on lesser-included offered instructions fense, every of the lesser offense element that instructions position fenses. It is greater, that is one must be included in the assault in given on sexual should have been greater commit the offense without cannot in the degree, sexual assault the second necessarily committing the lesser of assault, as- attempted sexual degree, third 668 P.2d Balsley fense. assault, simple which battery and sault and Selig, Evan offenses are all lesser-included contends Wyo., 546 P.2d son v. within the crime of instance, the statute to sexual argues that the degree. further He degree under giving in this case warrants provides: Seeley was convicted in- lesser-included-offense each of these “(a) pen- who inflicts sexual Any actor structions. or sexual intrusion on a victim etration *7 testi again We note a sexual assault commits that he had no sexual fied in this case degree if: course, the victim. Of involvement with “(i) of the The actor causes submission contrary testimony was to See- the victim’s application, through the actual victim physical evidence ley’s, and of some reasonably to cause submis- calculated corroborated laboratory test evidence victim, of the of force or sion Succinctly, it testimony. the victim’s ” * * * confinement; 6-4- forcible § of guilty he was not Seeley’s position that 302(a)(i), (superseded by 6- W.S.1977 § If the choice any criminal conduct. 2-302, (June Replace- W.S.1977 is that of before it jury on the evidence ment)). guilty, charged or not guilty of the offense statutory language comparison A is not instruction a lesser-included-offense in assault the second proscribing sexual hold that a lesser-in required. Our cases in the third de- degree and sexual assault giv need not be instruction cluded-offense gree2 committing the manner of Under forms of sexual assault stat- degree utes, in assault the second and sexual battery assault and with intent degree in the only assault third is dif- rape awas lesser-included rape. offense of statutory language, ferentiated under the Martinez v. obviously those offenses can com- be (1973). The upon court there relied Rule or mitted acts conduct different from W.R.Cr.P., 32(c), which specifically ap- proscribed by forbidding the statute proves attempt instructions as well as in degree. sexual assault the first For lesser-included-offense instructions. An in- example, in sexual assault the second de- attempt struction on as a lesser-included (§ 6-4-303(a)(i)) gree can be committed offense still in is included 9.503 of the § necessarily applying physical without (Crimi- Jury Pattern Instructions required by or forcible confinement as nal). this, Conceding all under the test 6-4-302(a)(i). Because of this differenti- § from Chapman, supra, United States v. in the statutory language ation and the adopted supra, in v. Selig, State the ele- offense, committing means of every ments attempted sexual assault are dif- element of the claimed of- lesser-included ferent from those sexual assault in the fenses of sexual assault in the second de- degree requirement first because in gree degree and sexual assault the third specific in attempt intent statute. necessarily encompassed is not within the Sexual gen- ais greater commission offense of sexu- crime, eral intent and if lesser degree, al assault in the first and the less- has greater elements not included in the er-included offense instructions re- offense, no lesser-included offense instruc- quired. supra. re- Selig, With tion is Balsley warranted. spect to the claimed lesser-included offense Stamper supra. in degree, of sexual assault the third Seeley also asserts that an instruction note also this case given should respect have been with justified penetration conclusion or simple battery assault and assault and un- nothing an instruction to “sex- theory der the that these are lesser-includ- appropriate. ual contact” would not be ed offenses of the crime of sexual assault. proposed an instruction 6-4-501, W.S.1977, Section defines the of- attempted sexual assault. This offense of assault as follows: fense 6-4-314, W.S.1977, proscribed by § “Whoever, ability present following language: so, unlawfully attempts do to commit a perpetrates “Whoever an assault or as- another, injury person on the violent battery upon anyone sault and in- guilty of an assault and shall be fined in to commit a tent sexual assault exceeding fifty the sum not dollars shall, degree, upon first or second convic- ($50.00).” tion, imprisoned penitentiary 6-4-502, W.S.1977, year than nor Section not less one more than defines assault (5) years.” battery five language: 2. proscribing reads: stances "Any assault in the second sexual intrusion on a victim commits sexual tim ance "(ii) first pertinent portion by any The actor causes submission of degree: by actor who inflicts sexual ^[******] not sexual assault victim of constituting means that would ordinary degree sexual assault 6-4-303, W.S.1977, the second *8 if, resolution; penetration prevent under circum- the degree, in resist- vic- the *" contact under Section first or second “Any not (iv) 63.2(a)(1) [§ the 6-4-303(a)(i) ] or W.S. constituting actor third 6-4-304, who degree." in the third 6-63.3(a)(i) sexual assault in either the W.S.1977, subjects (vii) circumstances (iv) commits sexual assault ] under circumstances [§ degree, 6-4-302(a)(i) of W.S. proscribes to sexual provides: (vii) 6- ] “Whoever, rude, angry you your “If find from consideration of in a insolent or another, manner, is evidence these ele- unlawfully all the that touches beyond a battery, proved and ments has not assault and been guilty of an doubt, you should find not one hundred reasonable then fined more than shall be as- ($100.00), may guilty added the Defendant not of sexual to which be dollars county jail degree. not ex- in the first sault imprisonment the ceeding hand, six months.” “If, you find from on the other the evidence your consideration of all lesser-included light our rule that a In each of elements has been that these only given instruction need doubt, beyond then proved a reasonable that the determines the trial court when guilty you should find Defendant the giv- the the jury before warrants evidence degree.” assault first sexual the instruction, proffered ing such an battery and to assault instruction The victim testified of force and violence inappropriate. Amin clearly was that Carey. testified She P.2d 1021 Amin v. Seeley came the room where she then into theory The trial Wyo., were, 694 P.2d Carey dropped pants his and no contact with Seeley was that he had fun too. This asked if he could have some circumstances, Under those the victim. Carey language the same attributed to battery, and no could be assault there part. on his prior to violent assault any assault. testimony would foreclose attempted The victim said she to avoid See- that of testimony of victim was The ley leg her while See- held assault, those circum- and under sexual accomplished intercourse with ley sexual refusing to error in there was no stances her. which was proffered instruction by The standard we review version of consistent either sufficiency estab- of the evidence is well by these witnesses. facts testified Wyoming. at the evi- lished in We look case argues further light pros- in a favorable to the dence most support evidence was not sufficient ecution, a ration- inquire and then whether guilt of finding of sexual fact al trier of could conclude Seeley tes- degree. We reiterate that first guilty reasonable beyond is defendant trial that he did not touch tified at Broom v. doubt. argues any way. appeal, he victim in On accepting the victim’s that even Seeley’s argument is that no that he used there was evidence support this ver insufficient to instruc- achieving penetration as the sexual guilty does not dict of because the evidence That by requires. the court given tion actually applied establish that himself reads follows: instruction accomplishing force in any physical necessary that the “You are instructed this court rec intercourse. earlier cases elements of sexual assault principle effect that forc ognized a to the degree are: proof rape can be without ible established within the Coun- “1. crime occurred and that the victim of violence Natrona, Wyoming, on ty of State of always the assault. need resist 1982; 10th, September the date of about gravamen lack of the sexual degree consent to pen- inflicted sexual “2. The Defendant can be penetration or intrusion which victim]; etration on by [the resistance. Morris v. shown See (1982). Our Wyo., 644 P.2d 171 n. 3 caused submission “3. The Defendant proposition applica- recognized cases also through the actual victim] [the does not a victim reason- that lack resistance tion of force which was inter necessarily demonstrate consensual ably calculated cause submission not re Resistance a victim is course. [the victim]. *9 — (1) futile, quired U.S. —, 187, when resistance would be 106 S.Ct. 88 L.Ed.2d 155 (2) superior (1985); victim “overcome State, Spilman Wyo., v. 633 P.2d strength,” or “paralyzed by victim is 183, (1981); Wyo., Hoskovek v. State, Wyo., fear.” v. Gonzales 516 P.2d 1366, (1981). 629 P.2d As we noted in 592, (1973), quoting Smith, People State, supra, Munden v. this standard re 879, 88, (1965); 32 Ill.2d 203 N.E.2d cently Supreme has been mandated Tryon State, Wyo., (1977). 567 P.2d 290 Court of the United States. Strickland v. case, In this latter we said at Washington, 466 U.S. 104 S.Ct. age, “a victim need not more than do her — U.S. —, 80 L.Ed.2d reh. denied facts, strength, surrounding all attend 104 S.Ct. 82 L.Ed.2d 864 In ing circumstances make reasonable for that case the Supreme Court of the United opposition.” her to do to manifest See First, States announced dual test. there Evans v. 655 P.2d 1214 applied must be scrutiny a differential to deficiency The claimed “reasonably determine affective assist of the victim in respect this instance with ance” “range competence,” within the of brings of simply to use her within and second there must be an affirmative theory prior of those cases that resist- showing prejudice. opinion of of the futile, already ance would be she had been Court cautioned that these not mechan by superior strength, overcome and she rules, ical and the failure to show either paralyzed by was fear. Under such cir- performance deficient preju sufficient cumstances, lesser of force will dice defeat the claim of ineffective perpetrator justi- is sufficient to assistance of counsel. fy the conviction. In instance Seeley Our review of the record this case did not need to use more force than persuades us that trial counsel not was necessary was under the circumstances. It unprepared, performed skillful cross-exami- necessary was not he further abuse nation, strategic and made sound decisions. by striking the victim her. The force in strategy, though unsuccessful, Trial even body her arranging pen- so that the sexual can profes- still be the result of reasonable etration could be achieved was sufficient judgment. sional Strickland v. Wash- under these circumstances. From the evi- supra. ington, The record demonstrates person dence a reasonable could conclude request limiting tactical not Seeley did decisions exert some additional force. instruction, jurors past were entitled to believe that the not to delve into the sexu- victim, all required empha- victim had done that was of al behavior and not to manifest her of lack consent sexual in- subsequent size the victim’s behavior. tercourse with did that he ac- preju- Counsel did call attention asserted complish charged by the offense the actual dice to the admission of evidence of application force which was rea- Carey, bad acts and the failure sonably calculated to cause submission of specific to make a motion for severance the victim. The evidence sufficient was in an unreasonable instance support the verdict under the instruction which the court would have been re- given. which was quired grant it. An allegation that a order, argues discovery particu- failure to obtain a should be larly prosecutor’s open-file afforded a new trial because ineffective view of policy, assistance counsel his trial in this does not demonstrate ineffective as- determining case. whether a defendant sistance counsel.

in a criminal case had effective assistance To succeed a claim inef counsel, adopted this court has the stan counsel, appellant fective assistance

dard reasonableness. Munden presumption competen must overcome a P.2d 621 State ex rel. Court, cy. Spilman Hopkinson v. Hoskovek v. District Teton Coun “Seemingly ty, supra. cert. denied this would in- *10 242 injury which stitute an error of law and does not exceed showing of some a

elude a have attorney’s conduct would the circum reasonable the bounds of reason under State, supra, Therefore, v. 633 Spilman avoided.” is to be stances. sentence re record in this case P.2d at 185. The approved appeal. ren which was that the assistance flects judgment The sentence dis- by Seeley’s counsel was that which dered failed trict court is affirmed. has compe by reasonably a

would be rendered error in demonstrate the trial his circum attorney the facts and tent under case. State, Spilman See v. stances of the case. State, Wyo., P.2d Hopkinson v. 632 supra; CARDINE, Justice, concurring. (1981), 102 denied 455 U.S. cert. 79 (1982); 463 L.Ed.2d Hosko S.Ct. appellant Seeley objected Had to or re- State, State, Wyo., Adger v. vek v. joinder any way his sisted case (1978); v. Johnson trial, of Herman for I (1977); v. Ash join Rose in I would Justice his dissent. As (1976), denied 560 P.2d 221 reh. however, record, Seeley agreed read denied 434 U.S. P.2d 369 cert. joint position is not trial and now a (1977); L.Ed.2d 106 Gal 98 S.Ct. error. claim State, Wyo., 503 P.2d 1192 v. braith Lastly, deal with the conten we ROSE, Justice, dissenting. sen Seeley received an excessive tion that majority holding I find inconceivable the mini legislatively The mandated tence. that the in this case fails to demon- record sentence for a violation mum and maximum appellant Seeley prejudice arising strate 6-4-302, W.S.1977, is in 6-4- found § out of admission evidence of co-de- W.S.1977, follows: prior This Carey’s fendant bad acts. evi- person “A convicted * * absolutely had no dence connection See- punished shall as follows: be against ley, could have been introduced “(i) in the first de- For sexual assault trial, in separate posed him a the sub- five imprisonment for not less than gree, risk of conviction stantial because (50) fifty years.” nor more than history one association with less than Seeley was sentenced to serve not Therefore, wrongdoing. admission of years twelve ten nor more than Carey’s prior preju- offenses co-defendant Penitentiary. This sen Wyoming trial, right to appellant’s diced a fair statutory parameters, tence is within the court the accused should awarded will set aside a sentence on and we separate trials. sentencing an abuse review absent Eighth Appeals Court of ad Circuit afforded to trial court. Ven discretion this issue v. En dressed United States Wyo., 676 P.2d 573 tling v. (8th Cir.1981). gleman, 648 F.2d In P.2d 1090 Wright v. case, jointly tried two defendants were find an discre We will not abuse of engaging in a scheme to defraud insur trial court exceeded the tion unless the companies life by insuring the of an ance the circumstances. of reason under bounds killing prose individual and then him. State, supra; Wright Ventling presented evidence that one of the cution State, supra. In Mar supra; Martinez participated had in an identical defendants State, supra, equated that con tinez years scheme earlier. The Court of No error of with an error law. clusion Appeals reversed other defendant’s when lawful sentence is law can found conviction, instance, holding that admission of was sen imposed. his co-defendant’s imprisonment to a term of toward tenced trial, right fair prejudiced his the scale mandated the lower end of required. not con severance was legislature. a sentence does Such reasoning applies The same in the case at degree fense from first sexual assault. is, bar. The State required should be to make That second sexual assault ex- *11 against Seeley pressly its case only without resort occurs “under circumstances constituting of the fact his association with one who sexual assault the first degree.” previously rape. had been tried for held in ground Seeley’s

A for of We Jahnke v. second reversal (1984), that one conviction is the of trial statute is not failure the court prevented from merely inclusion another jury instruct on the lesser included because the lesser crime contains terms degree offense second sexual assault. negate which serve to some element of the Contrary majority holding, the statu- greater question offense. The before us tory degree definition of second sexual as- manslaughter Jahnke was whether consti- sault, case, applicable in the instant consti- tutes a lesser included offense of first de- necessarily tutes a lesser offense included gree manslaughter, murder since unlike degree the offense first sexual as- murder, requires the commission of a homi- sault, holdings under our Balsley “upon passion.” We cide a sudden heat 668 P.2d 1324 “upon heat of phrase, held sudden Selig, Wyo., State v. proposed lesser offense is assault in included offense if to examine the elements of first and second convicted, provides: the charged, Section 302(a)(i),W.S.1977, degree second degree if: etration commits a sexual assault on a victim commits sexual assault in the “Any actor who inflicts sexual intrusion “(a) Any the victim prevent nary forcible reasonably calculated to cause submis- sion of the victim through “(ii) The actor causes submission of “(i) The actor causes Selig, deciding constituting ^[*] degree: sexual 6-2-303, W.S.1977, resolution; degree or an actor who inflicts sexual confinement; resistance greater ^[*] sexual intrusion this second offense constitutes assault by any victim, if, question, under which sfc the actual every offense. * * * ” under degree: since, means submission physical sfs a victim of ordi- his conviction. * * * ” element of the defines sexual circumstances under Section application, included in ^[*] necessary a victim force Balsley would tion, lesser 6-2- pen- was passion,” does not amount facts force tion on second submission of the absence phrase in since the court refused to assault). Thus, would who inflicts sexual intrusion and sault greater hanced requirements physical sion of defined sault under ordinary flicts sexual intrusion and causes submis- By focusing element, but, instead, emphasizes the en- Appellant Seeley requested an instruc- In similar manslaughter case case—of first support (first degree prevent of the malice crimes, the victim resolution” appellant element necessarily Balsley bar does on statutory fashion, degree resistance it becomes clear that one second giving is entitled to reversal of sexual first degree the actor’s (second “by necessary murder. true — in contest. The trial simply included within the not create a distinct sexual assault. The the differentiating offense at issue in of such instruction degree degree proffered to a elements assault) sexual assault. degree describes supra. true a victim of means that application causes sexual as- sexual as- force in physical element instruc- also in- out, majority statutory As the point

definition second sexual language differentiating of-

contains