Snow v. State

CONCLUSION reviewing ap- the record After district court say cannot

peal, we denying appel-

abused its discretion vacate, pursuant filed motion to

lant’s provide appellant failed to 60. The

W.R.C.P properly appeal adequate for us

a record on district court’s exercise

to evaluate the Furthermore, many appel-

discretion. arguments appeal were related

lant’s motion of a second W.R.C.P. 60

to the denial Accordingly, we af- appealed.

that was not

firm.

2009 WY 117 SNOW, Appellant (Defendant), L.

Daniel Wyoming,

The STATE of (Plaintiff).

Appellee

No. S-08-0222. Wyoming.

Supreme Court

Sept.

5. Did the district court abuse its disere- ordering or err as a matter of tion law pay restitution?

FACTS might The 3] word “tortured” an [¶ be Lozano, Appellant: Representing Diane inadequate adjective to describe the factual Defender; Appellate Tina Kerin State Public procedural history and of this case. It all Argument by Ms. Kerin. Counsel. appellant started soon after the and the vic- began dating tim in 2005. rather Their tumul- Representing Appellee: Bruce A. Salz- relationship tuous and intermittent led an to General; burg, Wyoming Attorney Terry L. 26, 2006, May during incident on which the General; Armitage, Deputy Attorney D. Mi- victim’s and her vehicle vehicle date’s were Pauling, Attorney chael Senior Assistant “keyed,” damages both with the estimated General; Pojman, M. Senior Leda Assistant $3,000.00per damage vehicle. This was dis- Attorney Poj- Argument General. Ms. appellant soon covered after the had accosted man. couple the treated to a and them torrent of insults, obscenities, general and verbal abuse. VOIGT, C.J., GOLDEN, Before and HILL, KITE, BURKE, and JJ. [¶ 4] On June the victim obtained against appellant. the

VOIGT, Chief Justice. later, appellant month charged One felony two of property with counts destruc- felony appeal 1] This is [¶ upon “keying” tion based incident. One stalking just conviction. That conviction is of bond in that of conditions case was part complicated pro- factual one and appellant that the contact with the posture Finding plain of case. cedural frequently happens victim. As in situations ques- error the district court’s one, protec- such as this existence jury, from the tions we reverse and remand tion order and the bond conditions had little proceedings. for further upon effect the conduct of victim and the appellant, who continued their less-than- ISSUES peaceful ensuing coexistencе. Over months, several incidents of emotional con- Did the 2] 1. district court commit [¶ flict, combat, physical verbal and confronta- failing plain to dismiss the place, tion took some of re- which incidents charge upon appellant’s based constitu- quired law enforcement intervention. jeopardy right? tional double On November the appel- [¶ 5] plain 2. the district court commit er- Did charged felony lant was with count of one in declining ror on the instruct stalking, in Wyo. § violation of Ann. 6- appellant’s proposed lesser-included offense 506(e)(iii)(LexisNexis 2009).1 grava- 2— instruction? allegation men of the found fourth plain 3. the district er- Did court commit paragraph of the Information: responding ror submitted day 4. or [On between 1st Novem- jury? ber, November, 24th day 2006 and the unlawfully [d]id 4. Did the district court commit er- with intent to 2006] harass person, failing engage ror to allow the to allo- another in a course of con- being likely reasonably per- eute bеfore duct harass sentenced? Stalking referring 1. of a is misdemeanor unless committed when conditions any ways Wyo. particular custody. of a number of listed in defendant’s release from See Black’s 6-2-506(e), (9th ed.2009). Dictionary § Stat. Ann. which includes “in vio- Law In the case, any bail[.]” lation condition ... The words instant elements instruction stalk- ing, given “bail” "bond” trials have somewhat different at both used words “bail (bond).” meanings, interchangeably hut are often used any stalking charge protec- so in violation of condition

son and did bail, parole to wit: did probation, charge, sepa- tion order violation but not the harass unlawfully rately [the with intent to vic- alleged property charges, destruction tim], engage 9-10, in a course of conduct reason- July to a on ably and did so likely [the victim] to harass guilty violating was found probation, condition of violation of order, based the victim’s bail, parole, or in violation of W.S. 6-2- testimony August ap- 506(e)(iii), Lexis[Nexis], against рellant grabbed steering had wheel of Wyo- peace dignity of the State of attempted put her truck and had his foot ming. gas pedal driving, on the while the victim was argument during all in the midst of a heated February Infor- On carpeting which her thumb and the truck’s to add as a second mation was amended order, cigarette, his protection pop “[h]e in burned sent count violation of the (Lex- everywhere,” flying § and he Wyo. Ann. 6-4-404 took and de- violation of 2003).2 place stroyed phone.4 This amendment took her cell was un- isNexis court, in in stalking district rather than circuit court. able to reach a verdict on the probable affidavit charge, There is no cause attached and a mistrial declared was as to Information, in to the Amended there is the count. On some date not in reflected amend, record, record no motion to there is no order appellant was sentenced to 90 amendment, allowing there is no indication of days jail violation, in for the order matter, hearing on the there is no indica- and he served that sentence. appellant tion whether the consented or ob- 9, 2007, [¶ 9] On October the State filed a amendment, jected to the and the Amended join stalking motion to the retrial of the Information, itself, contains almost no facts charge with the trial on the two counts of identify alleged. the crime hint felony property destruction that had been allegedly is that the crime occurred on Au- separately July filed back on 2006. We gust arraignment, 2006. At defense quote reasoning will set forth reading charges counsel waived State’s motion because it is relevant to some counts, appellant pled guilty to both presented appeal: of the issues time, at so we must assume appellant attorney knew what his charge stalking requires the State alleged crime was.3 ongoing show course of conduct

[¶ The Amended Information was then 7] the Defendant intended to harass another July 6, change person. amended on this time to In the cases at bar the Defendant allegation stalking the dates of the allegedly vandalized the victim’s vehicle as encompass period count to May October well as the vehicle of her friend in through November 2006. As resulted two counts of felo- amendment, ny with the first property being against there is no motion destruction filed amendment, amend, allowing no order During following the Defendant. affidavit, probable cause no indication of a months the Defendant continued with this hearing, appellant’s and no violating indication course of conduct an order of consent, though protection, even this amendment took an offense for which he was trial, place appellant victim, after the was bound over to convicted at followed the text arraigned. district court and messaged family, after he was members of her (LexisNexis 2003) 3(e) 2.Wyo. requirements Stat. Ann. ‍​​‌‌‌​​​​​‌​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌​​‌​‌​‌​‌​​‌‌‌‌‍6-4-404 3. W.R.Cr.P. sets forth the for pertinent part reads in as follows: the amendment of an information. If those re- case, quirements were met in this such is not (a) Any person willfully pro- who violates a reflected in the record. foreign protection tection order or valid order 35-21-109(a), guilty as defined in W.S. of a testimony punishable 4. While the victim at by imprisonment misdemeanor trial, (6) months, prosecutor emphasized closing argu- not more than six a fine of not fifty more than seven hundred dollars ment that the violated the ($750.00); by having or both. contact with the victim. ordered, April investigation was and on through doggy- fence house into her came a result was sentenced to im- 2:00 a.m. As approximately door years, stalking against period filed for a of six to ten charge prisonment was appeal This with credit for time served. Defendant. followed. rec- Although there is no order joinder ord, presume the motion jointly proceeded the cases

granted because DISCUSSION the State On December thereafter. commit Bid the district court information, this yet amended filed another failing to dismiss the appellant had commit- alleging that the time charge appellant’s based con- dates between the ted the crime right? jeopardy double stitutional through November May “4th Infor- Amended On December jeop There was no double July alleged dates to changed mation” objection ardy motion or below. We do not through November 2006.5 These generally consider issues not raised below. through 24—were July 14 November dates— Belden v. in the elements instruc- the dates set forth (Wyo.2003). previously We have went to trial on tion when the case however, held, jeop that the issue of double 10-12,2007. December ardy jurisdictional is because it’ involves the during case-in-chief the sec- its [¶ 11] power bring appellant the into State trial, gen- the State evidence therefore, ond court, may, and it be raised at many ¶ erally a course of conduct over 11, State, 97, Taylor time. v. 2003 WY 74 threatened, appellant ver- months where the State, 1236, (Wyo.2003); Kitzke v. P.3d 1239 followed, surveilled, abused, accosted, bally ¶ 8, 147, 696, (Wyo. 55 P.3d 699 2002 WY intimidated the victim. Most such and 2002). circumstances, apply In these date, time, identified events not v. plain error standard of review. Lafond incidents place. Specific identified included ¶ 324, State, 51, 56, P.3d 340-41 2004 WY 89 (1) 26, May following: property 2006 (Wyo.2004). error “Even when constitutional (2) 13, incident; August damage 2006 alleged, be satisfied or each criterion must (3) 23, call; August harassing telephone plain-error claim review under the doc a driving appellant 2006 incident State, 344, trine will fail.” Miller v. 904 P.2d violating protection convicted of had been error, plain (Wyo.1995). To establish 348 (4) 12, order; harassing a November 2006 (1) clearly prove must the record appellant (5) call; telephone and thе November (2) error; the existence alleged reflects the appellant broke into 2006 incident where the (3) law; a unequivocal of a clear and rule of through doggy house door. the victim’s transgression of that rule clear and obvious law; adversely and the error affected a verdict on The returned its right resulting preju in material 12, 2007, substantial finding appellant December State, him. Sanchez v. 2006 WY stalking, guilty of the two dice to guilty of but ¶ 19, 126 (Wyo.2006).6 charges. presen- A P.3d 904 property destruction seemingly jurisdictional, waived. totally perplexed by and therefore cannot be .We are these ¶97, Taylor, Compare 74 P.3d at unchallenged 2003 WY amendments information. 1239; Kitzke, 8-9, ¶¶ stalking at peep appellant, 2002 WY 55 P.3d a from the Without 699; State, covering period, allegation 24-day and Davila v. 831 P.2d 205-06 went from State, covering (Wyo.1992), Taylor covering 29-day period, with v. 612 P.2d a 181- State, (Wyo.1980) covering 123-day period. and 483 P.2d day period, The 861 519, Hutchins 3(e) (Wyo.1971). question only has procedures protections de- and of W.R.Cr.P. especially tangentially case the state- been raised observance than mand more differing of review standards a course of conduct- forms the basis of ment where jeopardy protec- parties. allegations. Because double bring power state’s tions "involve the court,” case treat jurisprudence into we will that our is not defendant 6. We must confess jurisdictional, considering jeopardy and will ad- entirely double as consistent in objection though jeopardy allegation there was no be- is non- dress it even whether a double Kitzke, 147, 8, waived, 2002 WY 55 P.3d jurisdictional, or is low. See and therefore can be using Finally, argues contends that the firearm.” he that against jeopar right prosecution double permissible his one for a dy offense, violated when he was convicted and continuing acquittal and that or con August punished for the viction for an that offense consists of a series violation, then was convicted extending period of acts over a of time bars punished for based on a course of prosecution during period for other acts conduct included the same incident. Snow, 274, 285, of time. See In re U.S. purposes, For the record leaves 556, 561, (1887); S.Ct. 30 L.Ed. 658 part analy that the factual little doubt of this Robinson, Commonwealth v. 126 Mass. above, sis is correct. As set forth the State (1878). clearly August relied 2006 inci begins analysis [¶ 16] The State support dent as evidence to by noting holding Meyers this issue our ¶¶ supra charge. See 6-12. State, 163, 8, WY appellant’s legal arguments [¶ 15] (Wyo.2005), jeopardy protec that the double not, however, simply are as the stated Wyo tions of the U.S. Constitution and the First, synopsis. quoting above Daniel ming meaning Constitution “have the same 87, ¶ 8, 2008 WY 189 P.3d Next, application.” and are coextensive in (Wyo.2008), he contends the double agrees the State with the jeopardy prohibits prosecution clause aof 87, ¶ 8, Daniel v. person greater for a offense after he has (Wyo.2008), holds that the double convicted of a been lesser-included offense. jeopardy prohibits prosecution clause Johnson, See Ohio v. 467 U.S. greater a defendant for a offense after that (1984); S.Ct. 81 L.Ed.2d 425 defendant has been convicted of a lesser-in Ohio, Brown v. 432 U.S. 97 S.Ct. Applying statutory cluded offense. ele (1977). Next, 53 L.Ed.2d 187 relying upon States, Blockburger ments test of v. United Commonwealth, 74, Edge v. 451 Mass. 883 299, 304, 180, 182, 284 U.S. 52 S.Ct. 76 L.Ed. 928, (2008), argues N.E.2d 930-32 he that (1932), however, 306 the State concludes that protection a violation of ais lesser- violating the crime of a order is felony stalking. Finally, included offense of clearly not a lesser-included offense of the nominally paying while homage to the statu felony crime of stalking. Finally, the State tory in Blockburger elements test found contends that the jeopardy double doctrine is States, 299, 304, United 284 U.S. 52 S.Ct. not violated in this case because the two 180, 182, (1932), 76 L.Ed. 306 he asks this charges originally together, tried go beyond Court to that in analyzing test stalking charge the retrial of the both the lesser-included offense issue and the by necessitated deadlock on that issue, jeopardy double and to consider the 163, 10, Meyers, issue. See 124 underlying prove facts and evidence used to P.3d at 714. separate regard, offenses. In this he cites Bilderback v. 13 254-55

(Wyo.2000), [¶ 17] We note first that the where this Court State held separate is correct in attempted crimes of its assertion that the December second-degree felony using stalking murder and a 2007 retrial firearm to commit a was not a “subse felony merged quent sentencing purposes proceeding,” but was a continuation of any proceeding. just recently where the “did ‍​​‌‌‌​​​​​‌​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌​​‌​‌​‌​‌​​‌‌‌‌‍the earlier not commit As re Court, other act which could Supreme have constituted at stated the United States tempted second-degree murder than other “the failure of the to reach a verdict ... 699; Commonwealth, regard, helpful see also Martin 170 it would be to address the (Ky.2005); forfeiture, S.W.3d 377 United States v. issue as one of rather than one of

Broce, 563, 568-76, 488 U.S. waiver, 109 S.Ct. 762- object where it out arises of a failure to (1989); York, 102 L.Ed.2d 927 Menna v. New below, entry guilty rather than out of the of a 61, 62, 423 U.S. 96 S.Ct. 46 L.Ed.2d Olano, plea. See United States v. 507 U.S. (1975); Blackledge v. Perry, 417 U.S. 30- 730-38, 1770, 1775-80, 113 S.Ct. 123 L.Ed.2d 2098, 2103-04, 94 S.Ct. 40 L.Ed.2d 628 (1993). (1974). study. The issue deserves further

5H jeopardy.” (Wyo.1998). Stalking is a course-of- which terminates not an event is — harassment, U.S. -, -, States, the defi eonduct crime based Yeager v. United acts, includes nition of which several 174 L.Ed.2d 129 S.Ct. States, Surely, battery. vandalism and Richardson v. United such as (quoting legislature did not for a stalker to be S.Ct. intend U.S. (1984)). does punishment trial immune from for his or her crim The second L.Ed.2d twice; ground in that he jeopardy inal course of conduct on the put the defendant not stead, being punished of a simply follows the declaration has been was also or she not, jeopar underlying initial continuation of the criminal act that mistrial — —, test, statutory a Yeager, U.S. at S.Ct. under the elements lesser- dy. ¶ 10, 2366; Meyers, 2005 WY included offense. see also (retrial hung jury does 124 P.3d at after accept argument, If Daker’s we were jeopardy). What not violate double impossible be for the then it would State question is the of whether us with leaves repeat stalking prosecute offenders of reason could there as, having the evidence statute once used viola initially charged been with both conduct, a to demonstrate course of felony stalk protection order and tion of the using would be State forever barred whether, once the ing, and again in establishing that evidence a subse- both, the crimes convicted of appellant was is, quent stalking violation. As sentencing. If dou purposes of merged for nature, crime, very a cumulative Dak- ease, it had jeopardy was violated ble interpretation jeopardy of double er’s multiple punish in the sense of to havе been purpose of the would eviscerate stalk- ments, subse than the sense of rather statute, ing leaving would-be stalkers free prosecutions. quent begin stalking their with a clean victim following stalking conviction. We slate correct is also State legislature cannot believe the intended crime of violation of result. such § Ann. 6-4- Wyo. Stat. order as defined Ga.App. Daker v. 548 S.E.2d offense 404 is not lesser-included (2001). It seem that this would by Wyo. crime of defined apply the conviction rationale would whether 2—506(b).7 Ann. The elements 6— stalking-type incident of conduct for the first of the ele simply are a subset former itself, stalking, was for another was for or State, the latter. ments of See Javorina crime, pro- as assault violation of a such or ¶35, 5, (Wyo. 180 P.3d 2008 WY tection order. State, 2008); Heywood v. 2007 WY ¶ that the (Wyo.2007). The conclude that the fact [¶ 19] 170 P.3d We punished violating protec- a charge entitled to both crimes for state was Meyers, prohibit bеing jury. a tion order did not his also to have both to ¶ fact felony despite 714. Fur punished stalking, WY 124 P.3d at thermore, upon continuing fact course the conduct “the that a charges part of the engendered cre order violation was based became of conduct several felony which the con- impediment multiple convictions conduct ates State, underlying based. Rouse v. viction was The thesis and sentences.” verbal, electronic, mechanical, by person § Wyo. Ann. 6-4- is set forth at fn. er 7. 6-2-506(b) telegraphic, telephonic a means in pro- or written Wyo. § supra at 508. Stat. Ann. harasses; manner that vides as follows: (ii) Following person, within a other than law, (b) per- provided by a otherwise Unless defendant; residence of the if, with commits the crime of son (iii) Placing person surveillance under person person, school, to harass another intent remaining present her outside his or reasonably vehicle, engages in а course of conduct employment, place place other oc- person, including likely but not person, harass that cupied other than or residence defendant; following: any limited combination the residence of or (iv) (i)Communicating, anonymously engaging of con- or other- Otherwise in a course wise, person. causing harasses another with anoth- duct that communication prohib- (Wyo.2005); State, similar cases does not Bilderback and Muniz v. 783 P.2d punishments (Wyo.1989); State, it where the of- multiple Sybert first being punished (Wyo.1986).10 fense one of a series P.2d The test for plain that constitute the second acts offense.8 error was set out earlier herein and will repeated. supra

not be See 13. Suffice say that the district plain court did not Did the court commit violate district declining rule of law in declining give lesser- to instruct on the included appellant’s proposed offense instruction. The elements lesser-included entry the crime of criminal simply are not offense instruction? a subset of the felony stalking. elements of trial, Near the end of the second We continue to statutory follow the elements the district court asked counsel if either of Blockburger, so, test long and so as we do objected proposed jury them to the instruc- rougher we need not dive into the waters replied negative. tions. Both Defense where conduct and evidence become issues counsel then asked the court to instruct the is, evaluating not, what and what is a lesser- entry that criminal is a lesser-included included offense. stalking, doggy offense of based on the door objected, relying incident.9 The State plain Did the district court

Blockburger. commit agreed The district court with responding State, error in commenting simply that “[i]t’s jury? submitted may offense that have been committed course of this course of conduct. sep- That’s deliberations, During sent unchargеd, arate and so” judge a note asking following questions:

[¶ 21] The record contains no copy instruction, of a written and no indica Question: tion that a written instruction was offered. you Whether or not can tell us—does Furthermore, object defense counsel did not stalking charge stem from the viola- when the give district court declined to tions of the orders or from ac- Thus, instruction. the issue has not been ‍​​‌‌‌​​​​​‌​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌​​‌​‌​‌​‌​​‌‌‌‌‍her, following tions of etc. preserved appeal except insofar as error can shown. be Landsiedel v. actually When was Daniel Snow cited for Buffalo LLC, Props., stalking charge? raised, 8.Indirectly fully developed Wyo. 6-3-302(a) (LexisNexis but not Stat. Ann. appeal, is the of whether 2009) cases such as provides as follows: Bilderback; (Wyo. Owen v. 902 P.2d 190 (a) if, person guilty A 1995); entry and Rivera v. (Wyo. 840 P.2d 1992), authority, Rouse; knowingly without he enters a are consistent build- with cases such as structure, Keffer, ing, (Wyo.1993); occupied State v. cargo por- 860 P.2d 1118 vehicle State, Duffy (Wyo.1990), trailer, v. 789 P.2d 821 and in tion of a separately truck or aor se- Dixon, particular, with United v. States 509 U.S. occupied portion cured or of those enclosures. 688, 2849, (1993). 113 S.Ct. 125 L.Ed.2d 556 The sentencing merger is whether State, 53, 10. Both sides cite Thomas v. 2003 WY should be limited to instances where the crimes ¶¶ 10-15, 1199, (Wyo.2003), 67 P.3d 1202-03 for greater are and lesser-included offenses. See proposition that the de novo standard of Shank, Super. v. Commonwealth 2005 Pa. applies party review where a has offered an 883 A.2d 670 and Commonwealth v. denied, instruction that has been whether or not Gatling, (2002); 570 Pa. 807 A.2d 899 party objects that to the denial. It is true that in Steele, compare but Or.App. State v. 33 separate Thomas we concluded that three discus- (1978). P.2d See also Bruce A. Antkow sions between the court and counsel was suffi- iak, Picking Up the Pieces the Gordian Knot: time, preserve cient to the issue. Id. At the same Merger Methodology, Towards a Sensible 41 New preference presentation pro- noted the for (2007); Eng. Poulin, L.Rev. 259 Anne Bowen posеd writing preference instructions in and the Jeopardy Multiple Double Punishment: Cut objecting for Knot, to the denial of an offered instruc- ting the Gordian 77 U. Colo. L.Rev. 595 case, (2006); Pamenter, tion. Id. In the instant there is Kathryn little dis- A. United States Supreme plain v. Dixon: tinction between de novo review Court error Returns to the Tra Jeopardy ditional Standard review ques- Double because the Clause lesser-included offense for Analysis, (1994). Notre Dame L.Rev. 575 purely legal tion here is a one. counsel, jury instruc- holding that this Court reviews agreement of 23] With [¶ under an of discretion standard. tions abuse as follows: responded to court State, Next, Leyva v. cites the State NO_ INSTRUCTION ¶ 9, (Wyo.2005),as 106 P.3d WY analysis due to the lack requiring plain error stalking, the instruc- charge of Finally, objection below. the State of an indicate, of conduct” alleges a “course tions State, 76, ¶34, quotes Martin v. 2007 WY stated, July 14 to November over the time where, (Wyo.2007), in a P.3d pro- following: violation of objеct to a limit- involving the failure to case order, other telephone calls and tection instruction, “Furthermore, ing we said: together alleges, all state incidents —the party prohibits invited error doctrine of conduct” that the “course of amount to appeal that was in- occur, raising error on constitutes, they you if believe did Then, party’s actions.” own duced stalking. Keep in charge of the offense any authority, the State citation to without protective that the violation of mind appropriate it for the dis- contends that was you charge in this case and not a order is extent, clarify for the what facts trict court if only it to the consider should stalking. alleged to have constituted you that the conduct any, that decide interesting conclusion is that The State’s may protective violated the which Appellant has failed to meet his “[b]ecause all the other inci- together with standard, рlain error burden under the required combine to constitute dents cannot be said to have abused district court Remember that course of conduct. responding when to the its discretion beyond a prove state carries the burden questions.” did that these incidents reasonable doubt they to the do amount occur and that agree says We Martin to constitute required of conduct course says says. it But Martin the State what in given stalking under the definitions on, say paragraph, goes the same Mr. was cited When Snow instructions. grounds for reversal unless “there will be no your not material for (em prejudicial.” Id. the instruction deliberations. added). Leyva, Similarly, 2005 WY phasis original). (Emphasis that, 22, 9, 106 we held where support of its contention 24] [¶ instruction, object to an fails to defendant court committed reversible the district error, which, plain our review is for way responded it by the course, prejudice. involves a search jury’s questions, cites United has not Even where a defendant (10th Duran, F.3d States actually the offend objected, but has offered Cir.1998) 2008 WY and Proffit instruction, error doctrine ing the invited ¶ 44, (Wyo.2008), for the 193 P.3d instruction is for review where the allows duty the court’s to clear proposition that Bromley “necessarily prejudicial.” the instructions or up jury confusion about (Wyo. appellant then concedes applicable law. The 2007). cases reflect the confluence These below, object given his failure to 30(a), part which states W.R.Cr.P. error. review should be Court’s may assign any portion party as error “[n]o Substantively, appellant argues that the charge or omission therefrom unless jury’s questions constituted response to the jury is party objects thereto before judge itemized because the prejudicial error instructed, stating distinctly the matter to of the evidence jury portions those for the grounds of party objects and the which the judge support cоuld believed 52(b), which objection[,]” and W.R.Cr.P. stalking charge. affecting “[p]lain errors or defects states that although rights may be noticed presents substantial response, the State In [¶ 25] First, of the brought to the attention they were of review. separate three standards long State, this rule for a We have followed 2005 court.” Luedtke v. WY the State cites State, See, ¶ v. 775 P.2d e.g., Justice (Wyo.2005),for its time. 117 1232 P.3d State, (Wyo.1989); sanctity jury’s Cutbirth v. [¶ 29] The of the role as (Wyo.1983); always and Britton v. P.2d fact-finder has been honored in this State, (Wyo.1982). State, Taylor 643 P.2d State. v. 612 P.2d 854- (Wyo.1980), recognized significance analysis begins Plain error [¶ 27] Blackstone, right by quoting of the 3 W. question with the of whether the record Commentaries, 379 as follows: clearly alleged error. reflects Somewhat “Upon by jury these accounts the trial hesitantly, question we answer that been, be, ever has and I trust ever will because, affirmative. We hesitate while glory looked English as the of the piece paper there in is оf the exhibits folder ... law privi- [I]t the most transcendent appears jury question, to be the it bears lege any subject enjoy, can or wish no identification other than trial 12- “Snow for, that he cannot be affected in either his signature 12-07.” It bears no and no indica property, liberty, person, by his or his but tion having jury by of been received from the the unanimous consent of twelve of his judge. jury question, But looks like a neighbours equals....” such, parties treated it as so we published just In a case a month after will, too. in There is also the record a Taylor, we signifi- reiterated our view of the transcript of in a brief discussion chambers jury cance of the trial: where the court and counsel discussed the guarantee The aim of the receipt question right court’s jury, from the by jury preserve trial is to proposed response. the substance of Neither the sub right by jury distinguished trial question stance of the nor the substance of from mere procedure, matters of form or Finally, are mentioned. al particularly though concept to retain the original response appears that is- no record, by sues of law are to be parties agree where resolved the court that a copy and issues of fact appellant’s by attached to are to be determined brief as an jury copy appropriate exhibit under response.11 by is a instructions the court.... The essential elements of a [¶ 28] The second by jury trial impartial are that there be unequivocal whether a clear and rule of law jurors, unanimously who decide the facts in Here, exists relation to the issue at hand. controversy under the judge. direction of a is, indeed, that rule of law unequiv clear and Worland, Lapp City v. 612 P.2d ocal: criminal defendants are entitled to a (internal omitted). (Wyo.1980) citations trial with the as the sole fact-finder. Const, Const, It is within this context that VI; Wyo. U.S. amend. art. we must decide whether the (“The district court in right by of trial shall remain judice the case usurped sub fact-finding cases”); 23(a) inviolate W.R.Cr.P. jury by role of the identifying (“Cases for it the required be tried shall be evidence that the State contended amounted ”); State, Garay so tried ... 2007 WY to the course of underlying ¶ conduct the stalk 2,165 99,100 (Wyo.2007) P.3d (jury as fact- ing charge. parties have not directed us evidence); finder resolves conflicts specifically cases point, but we State, Leyo 2005 WY 116 P.3d believe following excerpts from the con (Wyo.2005) 1116-17 (Supreme Court curring opinion Judge of Circuit Tatel preserve must fact-finder); role as Ayeni, United States v. 374 F.3d Ogden (D.C.Cir.2004), provide guid useful (Wyo.2001) (jury’s function to re ance: issues); solve factual Walston v. (role (Wyo.1998) goes as fact- saying “It without that few institu- evidence); finder to evaluate 47 Am.Jur.2d tions are as venerable as that of trial Jury §§ 15-16 (province jury, Founding enshrined at the in the Bill fact). determine controverted issues of Rights and hallowed an enormous рrocedural Wyo. Were the likely dictates of that this information would be available in (LexisNexis 2009) followed, §Ann. 1-11-209 it is the record. (D.C.Cir.1970); Belton v. English American law see also body of (D.C.Cir. States, judges ... not to invade United F.2d commands 1967) (“[T]he principle jury judgment by people.” Sta that the should of province permitted F.2d to find the facts is a corner- Corp., Allied Stores be cey v. (D.C.Cir.1985).... jurisprudence_”). stone of our Under- role, importance

scoring the of that this banc, court, sitting en has declared that sys- of our bedrock characteristics Two “[a]ny judge undue intrusion the trial by jury, system Supreme of trial a tem province jury into this exclusive of the is labeled to the has “fundamental Court magnitude.” error of the first United justice,” scheme of Duncan v. American Thomas, 1177, 1181 States v. 449 F.2d Louisiana, 145, 149, 391 U.S. 88 S.Ct. (en (D.C.Cir.1971) banc). (1968), 20 L.Ed.2d are course, jury ... jury occur in seclusion Of one told deliberations find, jury jury’s but the role as factfin- serves as the sole finder facts to that the characteristic, being cаn be invaded com- Regarding the first der without fact. jury usurped.... sanctity pletely is “the delibera- not system ... a basic of our tions tenet legal questions, ... Juries’ which are justice,” States United usually prompt supplemental what instruc (2d Schwarz, Cir.2002), 283 F.3d but tions, fundamentally differ from their fac great protect that go lengths courts to ju tual for an reason: obvious sanctity.... serve as law.” ries do not the “triers of

They expected are to divine the law for way jury they expected No less fundamental than seclusion themselves are Rather, judge, the trial the facts. trial principle is the find —not counsel, ‍​​‌‌‌​​​​​‌​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌​​‌​‌​‌​‌​​‌‌‌‌‍provides attorneys not the as the aided with judge and —serves See, proper legal e.g., Kelly Supreme trier of fact. As the Court has standard. Carolina, South U.S. said: (2002) (“A 726, 733, 151 L.Ed.2d 670 S.Ct. course, primary ... in a trial the Of judge’s duty is give trial instructions jurors. fact Their finders of are the law....”). explain In sufficient overriding responsibility to stand be- is “[wjhen deed, explicit a makes potentially the accused a arbi- tween [legal] judge a clear difficulties trial should trary that is or abusive Government away accuracy.” with Bol them concrete For command criminal sanction. States, lenbach v. United 326 U.S. reason, judge prohibited trial 612-13, 66 S.Ct. 90 L.Ed. 350 entering a conviction judgment from (1946). directing to come forward verdict, regardless how with such contrast, By jury’s questions where a overwhelmingly may point the evidence matter, factual relate to a substantive judge in that direction. The trial (whether by reply judge or the attor thereby attempting to over- barred neys) interfering jury’s ex risks with the jurors’ inde- ride or interfere with the responsibility resolving factual clusive contrary judgment in a manner pendent reason, For this cir questions. several interests of the accused. upheld that re cuits have district courts Co., juries’ Supply questions. factual States v. Martin Linen fused answer United case, 572-73, example, In one the district court 430 U.S. 97 S.Ct. omitted). (1977) (citations jurors ques who factual 51 L.Ed.2d 642 told submitted “[mjembers tions, impor- jury: emphasized has also The Court This court Indeed, your questions. It is for fact-finder. cannot answer tance as emphasized you interpret fact finders the evi opinions repeatedly “our dence, weigh fact- it and it without role as evaluate our conviction Please jurisprudence.” ... central directions from the Court. finder is to our further Comer, proceed your United 421 F.2d with deliberations.” United States (1st Aubin, proceed circumspectly responding must in v. 961 F.2d States (inter court) Cir.1992) jury.”). (quoting inquiries the to the district omitted). quotation Sustaining marks nal Because we so revere fact-find- the actions, the First Cir the district court’s ing jury Wyo- the in role of America’s and jury questions explained “[t]he that cuit system, ming’s legal we are anxious de- among sought to resolve a conflict the right protect fend and with utmost care testimony been; had jurors as to what the case, In prin- the instant the attention. a conflict must be resolvеd the such just require recognize ciples enunciated us to Id.; of fact.” see also States trier United response court’s the the district first (8th Blumberg, 961 v. F.2d Cir. jury question response ques- was not a ato 1992) (finding no where abuse discretion Rather, tion of law. the directed court, a factual having the received district particular jury jury the the evidence that question “[Relieving from the should, could, at least consider. The re- prov further instruction would invade the because, sponse using too far the oft- went finder, as the fact ince ultimate repeated phrase, province “invaded the jurors they the ... told should answer the deliberate, jury.” begins the Once a by examining question themselves the guided by are its deliberations the evidence evidence”). warned trial Courts have also court, in presented open arguments the against usurping judges fact- counsel, legal presented instructions carry finding they role even as out their If presented the court. the State has up jury’s legal to clear obligation diffi fashion, argued in such a evidence or has instance, explaining For after culties. fashion, such a as to leave to what doubt as importance answering jury’s legal crime, prove meant to evidence is what it is questions, the Fourth cautioned Circuit appropriate not the court to correct that “‘the court must be careful not to deficiency. jury’s province fact invade as finder.’ Heywood This case is nothing like a distinction Such is consistent with our belief court fundamental that it is the (Wyo.2007), where we because reversed provides legal yardstick and the provide the district court failed to a substan- that measures the evidence.” United jury question. to a tive answer Ellis, (4th States F.3d there did not ask what evidence should be Cir.1997) (quoting Blumberg, 961 F.2d at regard charged, considered to each crime (citation 790) omitted); see also United which but asked crime it wаs to deliberate Nunez, (6th States F.2d upon 25,170 each under count. Id. at Cir.1989) (“Questions deliberating from a Heywood legal at 1234. The failure in awas jury present a dilemma for trial court. one; inadequate. the verdict form was court must be careful not to invade case, given the instant instructions jury’s province as fact-finder. Never t form appropriate. the verdict It should heless, the court ques must respond left that.12 been issues.”); concerning important legal tions Walker, States v. United 575 F.2d prong [¶ 34] The final (9th Cir.1978) (“Because J.) (Kennedy, test is the determination of may partner enlist the court as its prejudiced whether the fact-finding process, judge in the trial prejudice, error. establish “To parties analyzed legis- may give testimony have not for us as recollection to the (Lex- Wyo. intent of points dispute, lative Stat. Ann. 1-11-209 presence of or 2009), provides isNexis parties follows: after notice or their counsel. added). deliberation, (Emphasis jurors We are not inclined con- After have retired for initiative, statute disagreement strue this on our own and we there is a them between as to if any part testimony, they to do so do not need to answer the or if desire to any part legislative arising as to this case. be informed of the law Whatever the case, been, they may request may have to con- intent it cannot con- the officer have been trary principles duct them to the court where information to the constitutional outlined given. matter of law shall be The court above.

517 failure the court’s to dismiss the probability she district a reasonable must show charge. The retrial after mistrial verdict received a more favorable would have subsequent jeopardy, the v. did not invoke and of error.” Pendleton the absence ¶ 212, punished twice for the State, appellant 180 216 was not P.3d 2008 WY that, offense, as of to show inasmuch the crime viola- (Wyo.2008). hаve also said same We not a must “circum tion order is lesser- appellant an of prejudice, show stalking. the of unfairness offense of crime manifest inherent included stances which Neither, reason, the the injustice which offends the same did district or conduct and State, plain refusing in- play.” fair Teniente court commit public sense of ¶ (Wyo. jury entry is a P.3d struct the that criminal lesser- 2007 WY State, 2007); Orona-Rangal The stalking. 2002 included offense of district see also ¶ error, however, 1085 (Wyo.2002). by plain court committed 53 P.3d WY cases, particular preju toward guiding In other have characterized the evidence “so deliberations. For that during dice as conduct which undermined reason, judgment functioning process and must be proper of the adversarial sentence reversed, having case remanded to the dis- trial cannot be relied on State, just proceedings. trict for further produced a result.” Duke v. court ¶ Wyo.2004) WY appeal Resolution of [¶ 37] Washington, 466 (quoting Strickland v. U.S. makes the fourth and fifth manner stated 686, 104 L.Ed.2d 674 S.Ct. moot, and we therefore decline to ad- issues (1984)); Page v. 2003 WY see also them. The same is true of the second dress ¶ (Wyo.2003). In oth P.3d jury question part of the issue. words, focusing solely on an outcome de er insufficient; the Court must termination BURKE, Justice, dissenting. pro look at “whether the result also respectfully I The [¶ dissent. district 38] fundamentally ceeding unfair or unrelia was correctly provided court a substantive re- ¶ 35, ble.” Allen sponse by as mandated (Wyo.2002). Perhaps ulti P.3d Heywood, our decision 1227. the appellant mate is whether was response That substantive did not “invade Teniente, right a fair trial. denied his jury.” of province There was no 165, 12, 169 WY P.3d at 521. plain error and the conviction should be af- cannot find the district We [¶35] firmed. court’s error this case to be harmless. error, In order to establish right The had a constitutional appellant must of a demonstrate violation solely faсts of case determined unequivocal clear rule law. The rule jury. into court’s intrusion governs of law that this case was announced role denied the defendant that fundamental Heywood. That rule law applied protection. support Two circumstances this was not violated here. First, already one had conclusion. failed to convict the Heywood, In [¶ this Court reversed 40] Second, this based same evidence. the defendant’s convictions on three counts question that indicated degree second sexual assault because the up unsure of what facts made the course of provide court a substantive district did necessary appellant guilty find the conduct jury question. Heywood, ato stalking. probabili There is reasonable question: ty judge’s inappropriate without the three Are the counts— evidentiary guidance, jury would not 1. In the shed? have reached verdict it did. toys? 2. sex Use removing splinter? 3. When

CONCLUSION Id., 18,170 provid- court appellant’s right P.3d at constitutional response: against jeopardy was not violated ed this double insufficient; The Court is unable to further instruct on are jury questions rely your revealing this. You must recollection of confusion or a lack of under- argument standing the evidence and should be consider answered. the Instructions. ¶¶ Id., 26, 27, 28, 29, 170 P.3d at 1234-35 (footnote omitted). ¶ Id., 19, 170 P.3d at 1232. We found that inadequate Hey- answer and reversed Mr. opinion [¶ 41] We concluded the with this explained: wood’s conviction. We statement: “Reversible error ... occurred ‍​​‌‌‌​​​​​‌​​​​​​‌‌‌​‌​‌‌‌​‌‌​​‌‌​​‌​‌​‌​‌​​‌‌‌‌‍jury adequately The must be instructed to when district court ... provide failed apply jury allow it to the law to the with a substantive response facts. to its

question concerning offenses, charged be- question cause the reflected obvious and un- jury was, question, This if that is what it derstandable confusion as to apply how to facially jury’s reflects the confusion. In- ¶ Id., 33, the law to the facts.” 170 P.3d at struction No. 3 informed the that 1236. separate count is a charge, “[e]ach and the proof own, as to each must stand on its holding so When our in Heywood is you separately applied must consider and deter- to this case it is difficult to find a mine what the evidence violation of a unequivocal shows as to each clear and rule of easy jury question count.” It is law. “facially to surmise The as the reflects the jury began jury’s deliberations, holding Heywood it had no confusion.” Our in idea (or requires such, allegation question what the I that a count count II be answered. III) was, Heywood, or In count we did not therefore asked discuss the subtle judge may that guidance. judge’s distinctions exist questions answer-'T between you”-was questions can’t tell law and inadequate. Wyo. of fact or indicate that (Lexis- §§ may Ann. those distinctions significant, 1-11-209 and 7-11-204 be as the 2007) majority opinion clearly Nexis now permit judge say holds. We did fur- not that questions ther to instruct the after must be deliberations answered sub- begun stantively only if question whеn a question answer.to the arises as to law, “response is a a evidence or the law.” To the numerous contrary, years cases over we unequivocally “jury we have stated that addressed questions See, revealing the exercise of that discretion. confusion or e.g., a lack of Carlson, understanding Id., Carlson v. should be answered.” 214-15 ¶ 29, (Wyo.1995); CH, 170 P.3d at. Heywood, In re 1235. P.2d (Wyo.1989); explicitly judge Johnston v. stated that a permitted is P.2d jury questions (Wyo.1987); answer “as to the Hoskins v. evidence or Id., 27,170 the law.” (Wyo.1976). P.3d at 1235. Beyond power ques- answer such judge [¶ If the trial permitted 43] was not duty tions is the questions: to answer such provide response substantive to the A number of courts have held that if the question, one wonders what would have been original incomplete instructions are or if appropriate response. Clearly, ques- jury, or jurors, the individual tion should ignored. not have been The dis- express confusion or lack of understanding response trict court’s jury quеstion of a significant applicable law, element of it Heywood appears to type response be the duty is the court’s give additional in- majority stating is should have been structions. The refusal of a request provided here: “The Court is unable to fur- for an may instruction constitute reversible ther instruct on rely your this. You must (2007). error. 75A Am.Jur.2d Trial recollection of the argument evidence and foregoing principles Id., of law can 19,170 be and consider the Instructions.” present summarized for purposes course, as fol- problem, P.3d at 1232. The (1) (who lows: instructions that leave doubt as judge, this trial coincidentally was the to the circumstances under which judge trial who was in Heywood) reversed insufficient; crime was committed are judges other trial forced to deal on a instructions that confuse or mislead the jury questions, time-sensitive basis with rejected response The role of the is different from specifically that we judge. purposе function and Your case we reach in this result Heyivood. job facts. That is exclu- to determine the squared with our decision cannot be simply sively jury. that of I will intention- meaningful provides Heywood and ally prerogatives as fact upon your intrude will confront- judges to trial who be guidance So, I any time finders. if at make com- jury. future with ed or indi- regarding ment the facts otherwise Certainly, provides if a trial court 44] [¶ cate, directly indirectly, might I how response question, to a substantive view the facts it will be unintentional province cannot invade may disregard my you totally acts or com- not do response provided here did jury. The ments. response only “other mentioned

that. The nothing I find in the record the instruction specific types conduct: and two incidents” judge usurped indicate that the trial “telephone order” “violation function of the or that Mr. Snow was trial court It was reasonable calls.” any by response prejudiced mаnner violation of to reference empha- question, response, should be jury question response, in its because sized, agreed that was Mr. Snow. I also specific item. made reference conclusion, Mr. Snow has failed limited harm in the district court’s no see to demonstrate that the district court violat- “telephone “Tele- calls.” reference unequivocal a clear and rule of law ed were phonic” communications referenced response providing a substantive Most the other instructions. one of clearly question. response Such a however, throughout the court significantly, unequivocally required our decision made it clear that it was the instruction Heywood. substantive did if function of determine province jury, Mr. invade the occurred. district incidents had those prejudice. has failed to establish Snow jurors of bur- reminded the the State’s court There was error. in- proof and referenced other den of There applicable to the case. structions given instructions specifically advised the Instruction

case. as fact finder. It stated

jury of their role part:

pertinent

Case Details

Case Name: Snow v. State

Court Name: Wyoming Supreme Court

Date Published: Sep 23, 2009

Citation: 216 P.3d 505

Docket Number: S-08-0222

Court Abbreviation: Wyo.