Thomas v. StateThomas v. State
- Reporters:
- , ,
- Before:
- Taylor
Aрpellant complains she was convicted of a non-existent crime by an improperly empaneled jury. Finding no errоr, we affirm.
One evening in March 1995, a Casper, Wyoming pharmacist received a telephone call from a woman who identified herself as an employee of a Casper dentist and ordered two prescriptions for an individual living at 1326 East 6th Strеet. After hanging up the telephone, the pharmacist realized that the
Around the time the police arrived at the pharmacy, a cab driver appeared, indicating he had beеn directed to retrieve the prescriptions for the person with the cemetery address. The pharmacist prepared an empty bottle with a phony label and deposited it in a pharmacy bag, which the police persuadеd the cab driver to take down to 6th Street, near the cemetery. When Delores Thomas (appellant) and a companion approached the cab on 6th Street, offering to pay for the pharmacy bag and its contents, thе police moved in. Appellant later admitted she had summoned the cab.
Appellant was tried before a jury on one count of conspiring and one count of attempting “to knowingly or intentionally * * * acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge,” in violation of Wyo. Stat. § 35-7-1042 (1997) (proscribing attempts or conspiracies involving controlled substance laws) and Wyo. Stat. § 35-7-1033(a)(iii) (1997) (the object crime, in highlighted quotation above). Given thе protracted wording of the object crime which appellant was charged with conspiring and attempting to effect, appellant’s trial attorney,1 the prosecutor and the district court all embraced the term of “prescriрtion fraud” in order to describe the substantive crime proscribed by Wyo. Stat. § 35-7-1033(a)(iii).
Having been given jury instructions defining attempt and cоnspiracy together with verbatim reiteration of the above-quoted language of Wyo. Stat. § 35-7-1033(a)(iii), both as stated in the charging document and parsed into elemental form, a district court jury returned convictions on both counts. The elemental jury instructions explained to the jury that if the State proved each element of the attempt, appellant should be fоund guilty of “prescription fraud,” and if the State proved each element of the conspiracy, appellant shоuld be found guilty of “con-spirting] with another to commit prescription fraud.” Neither objecting to those jury instructions nor proposing any jury instructions of her own, appellant now argues she was convicted of the “non-existent” crime of “prescription fraud.”
Appellant’s challenge to the use of “prescription fraud” claims she was convicted for crimes with which she had never been charged, through employment of defective jury instructions. Because the charging information was reiterated through Instructions No. 3 and No. 4, while Instruction No. 7 described the elements of attempting to violate Wyo. Stat. § 35-7-1033(a)(iii) and Instruction No. 8 covered the elements of conspiring to violate Wyo. Stat. § 35-7-1033(a)(iii), appellant’s case depends upon disсrediting those jury instructions.
Appellant is ill-situated to claim error on appeal after she failed to interpose any objection at trial, when such an objection would have afforded the district court an opportunity to correct the alleged errors before the jury retired. W.R.Cr.P. 30; State v. Keffer, 860 P.2d 1118, 1136-37 (Wyo.1993). This raises the appellate threshold to plain error. Miller v. State, 904 P.2d 344, 347 (Wyo.1995). Plain error cannot be found absent a record which clearly reflects violation of an unequivocal rule of law to the mаterial prejudice of the appellant. Guerra v. State, 897 P.2d 447, 459 (Wyo.1995) (quoting Lobatos v. State, 875 P.2d 716, 721 (Wyo.1994)).
This record contains jury instructions and a verdict form which demonstrate, unequivоcally, that the jury found, beyond a reasonable doubt, that appellant both conspired and attempted to violаte Wyo. Stat. § 35-7-1033(a)(iii). That appellant’s crimes were labeled as “conspirfing] with another to commit prescription frаud” and “prescription fraud” would be of little moment, even had appellant timely objected. There is no hint that use of the term “prescription fraud” sullied the jury instructions’ repeated articulation of the circumstances under which a conspiracy and an attempt to violate Wyo. Stat. § 35-7-1033(a)(iii) might be found.
The other issue raised in this аppeal concerns the district court’s decision to strike, for cause, a venire person revealed by voir dire to have had a long-standing friendship with appellant. Of course, constitutional entitlements to an impartial jury discard pаrtiality in favor of a defendant quite as quickly as the alternative. Jahnke v. State, 682 P.2d 991, 999-1000 (Wyo.1984). However, when appellant accepted the jury prior to presenting her case, appellant’s earlier objection to the challenge of her friend for cause was insufficient to preserve the issue for appeal, and our inquiry ends there. Munoz v. State, 849 P.2d 1299, 1302 (Wyo.1993).
The jury’s verdict and the judgment and sentence are hereby affirmed in all respects.
Notes
. In his closing, appellant‘s trial counsel referred to the crime of “prescription fraud.”