Virgilio v. State

H25 VIRGILIO, Appellant Vernon

(Defendant), Wyoming,

The STATE of (Plaintiff).

Appellee

No. 90-209.

Supreme Wyoming. Court of

June Munker, Public Defend-

Leonard D. State Gallivan, er; Aid Pro- M. Defender Gerald Marion, In- gram; Timothy F. Student lot, Bryan sit- parking was At the store Argument presented tern, appellant. for appellant passenger seat of Vir- ting in the Marion. by Leonard D. agents The followed gilio’s vehicle. Gen., Sylvia L. Meyer, Atty. Joseph B. Bryan intro- apartment where to an vehicle Gen., Byrne, A. Hackl, Atty. Karen Deputy agents. Virgilio’s In Virgilio to the duced Gimbel, Gen., Jennifer Atty. Asst. Senior Bryan agents and the discussed presence, Lauer, Gen., E. Atty. Theodore Asst. Senior Virgilio offered to drive purchasing LSD. Program, Director, Assistance Prosecution the LSD was available Bryan to where Intern, Bierman, Student F. and Wilhelm get to some he said he wanted because presented Jen- Argument appellee. for for himself. LSD nifer Gimbel. Virgilio agents told not to One THOMAS, URBIGKIT, C.J., and Before agent follow very could fast so drive GOLDEN, CARDINE, JJ. and MACY at a car arranged to meet They him. also Bryan. Virgilio agents if the lost wash CARDINE, Justice. wash, Virgilio and car meeting at the After appeals his convictions Virgilio Vernon purchase. arrange for the Bryan left to delivery of a abetting aiding and agent that report to the They returned to conspiracy to de- controlled substance “hits” of LSD Snyder sell 26 Brooke would substance. a controlled liver totalled would have each. That for $3.50 affirm. We agents $91.00, Virgilio suggested the following issues: brings the Virgilio simple. keep things them to give $90.00 I appellant, ISSUE to the money handed The was Virgilio Bryan. handed it to appellant Virgilio, was convicted who Whether car wash prosecutor agents stay to at the where the told the contrary to law Bryan of criminal returned. improper basis until he and presented were the court’s instructions liability and Bryan might Virgilio and Concerned been inter- ambiguous and could have drugs money or with drive off with that mere jury to mean preted them, money purchase using after their suffi- the criminal act was knowledge of near Brooke to an area agents drove for a conviction? cient the transac- Snyder’s residence to observe II ISSUE the residence Virgilio Bryan left tion. improperly appellant Whether Virgilio told the agents. saw the his on denied instructions they safe where it was not agents that case, i.e., The at the car wash. and to meet were to convict? was insufficient agents at the drugs were delivered III ISSUE car wash. erred in over- trial court Whether delivery aof charged with Virgilio was objection to the admis- ruling appellant’s conspiracy to de- controlled substance appel- testimony relating to sability of substance, pursuant a controlled liver prior bad acts? lant’s 35-7-1014(d)(xii), 35-7- 35-7-1031 W.S. Wyoming agents from the July In found He was September 1989. on Investigation Department of Criminal delivery abetting the aiding and guilty of (DCI) investigating the sale LSD were conspiracy to controlled substance of a informant, the Using an Casper area. 9,May deliver a controlled substance purchase of the arranged a agents DCI sentenced subsequently He was through James Snyder drug from Brooke penitentiary. in the years six four to July Bryan Bryan. In the afternoon issue, contends appellant first his agents of LSD for the 50 “hits” purchased closing State’s that a combination Bryan they agents told Snyder. con instructions argument and arranged to purchase more and wished aiding and relating to an cerning the law day at a convenience him later that meet We error. resulted conviction parking lot. store argument, argument by ap- in the the instruc- was not as find no error characterized tions, pellant. argument of the two. proper combination com- upon ment the evidence. propriety To determine the Appellant argument dovetails con- en closing argument, we examine it its cerning the closing by contending State’s 79, State, P.2d tirety. Hopkinson v. 632 argument jurors the caused that to misun- denied, 922, (Wyo.1981),cert. 455 U.S. 166 argues derstand their instructions. He 1280, (1982). 71 The 102 L.Ed.2d 463 S.Ct. that the instructions do “crimi- not define closing to allow purpose argument is intent,” and the argument sug- nal State’s signif ways viewing offer the counsel to gests knowledge equal is State, that to criminal of the icance evidence. Wheeler already 599, intent. We have discussed and re- scope (Wyo.1984). 691 P.2d The argu- contention argument by jected the that the State’s permissible counsel misleading. Furthermore, of the trial ment was jury is within discretion a and will not absent do define court be disturbed instructions “criminal intent.” Mayer 7, patent clear or abuse of discretion. Wyoming Instruction which on based 127, (Wyo.1980). P.2d 3.203, Jury Pattern Instruction—Criminal The court should a wide latitude of allow states: Spears, comment on the evidence. State accessory fact, beTo an before the a 82, 551, Wyo. P.2d person must intend that his acts or words secure the of the commission aiding a person To convict Merely assenting assisting crime. to or abetting the a commission of substantive felony in the commission without offense, proven it must be that the crime knowledge going that a to crime question by was committed someone committed, or that ac- the defendant’s person charged that the as an aider and going aid tions are in the commission partici abettor associated himself with felony, [Emphasis of the criminal. accomplishment

pated in the and success of added] Tompkins the criminal venture. cert, denied, 840 (Wyo.1985), 705 P.2d concisely The instruction defines “criminal 89 L.Ed.2d 475 U.S. S.Ct. Smith, 838 intent.” See United States v. (1986). Appellant does not contest that cert, (10th denied, Cir.1988), F.2d In the substantive crime was committed. 104 L.Ed.2d stead, closing he contends the State’s Dictionary 336 and Black’s Law necessary ignored the other elements (5th Ed.1979). We no error in the find an conviction. by instructions themselves or combina- Appellant focuses on statements made argument. closing with the State's tion concerning appellant’s knowl- the State issue, appellant con In his second edge drug tran- of the transaction erroneously the court refused tends that argu- spired. closing He contends that the following two instructions: ment on instead of focused argu- Reading criminal intent. the State’s

ment, however, entirety, its we find “D” DEFENDANT INSTRUCTION argument rely on whether State’s did not Evidence, demonstrating De- though appellant drug knew that a transaction proximity illegal sub- fendant’s argu- transpiring. Throughout the State's person did have and to who stance appellant ment are references to actions substance, illegal is in- control over drug took to further the transaction. where it to sustain conviction sufficient argument details be- the conversations working type of did not establish agents, Bryan appel- tween DCI regard- relationship lant, parties between the appellant’s Bryan get driving substance, merely an ing illegal drugs, appellant’s calculating the sale price of the LSD. the State’s association. We find If, hand, you on other INSTRUCTION “C” find

DEFENDANT your consideration all substance, illegal proximity Mere to an that each of these elements has been property on the where doubt, proved beyond a reasonable then asso- located or mere illegal substance is guilty[;] you should find defendant more, person ciation, with the without illegal sub- does have control who which Instruction stated: it is property or the which stance A aids abets commis- Defen- to convict the found is insufficient knowingly of a if he and with sion dant. aids, promotes, criminal intent encour- give duty ages, instigates or the commission act trial court has presenting adviceQ] his theo defendant’s instruction supported ry of defense the instruction 7, supra. These instruc- and Instruction v. by competent Stapleman evidence. the argument appellant left for tions room State, How (Wyo.1984). 680 P.2d present jury sought to the to could ever, may refuse an instruction the court in and in- present his two offered refused unduly empha argumentative or which is err The court did not in re- structions. v. aspect the law. Prime sizes one of fusing the offered instructions. two State, A (Wyo.1989). 767 P.2d appellant objects In final issue his if the con may court refuse an instruction by Casper police testimony to a officer cept by instructions. is covered other Grif agent prior in concerning drug a DCI State, (Wyo.1988). v. P.2d fin agent DCI testified that in volvement. The Both offered instructions of defendant’s purchased marijuana appel from proximity concerned effect police Casper The officer testified lant. alleged affecting type of substance as purchased marijuana appel from that he accessory relationship between an objec in The court overruled lant 1985. They argument principal. both were more testimony. tions unduly emphasized the effect than law and 404(b) states: W.R.E. or to proximity illegal of to an substance crimes, wrongs, of other or Evidence principal as sufficient convict prove the char- acts not admissible The ade- accessory to a crime. law was in of order to show that he acter a quately covered in other instructions conformity may, therewith. It acted cluding Instruction which stated: however, pur- for other be admissible necessary crime of elements motive, proof opportu- poses, such as felony accessory fact to the before the intent, preparation, plan, nity, knowl- charge are: edge, identity, or of mistake or absence 1. The crime occurred within accident. or the date County of Natrona on about 17, 1989; July admissibility principal test of Delivery 404(b) of a controlled substance not Rule is whether or it tends under princi- by someone as a prove was committed directly through or inference to or pal; and consequential such as intent disprove a fact State, 621 P.2d knowledge. v. did aid and abet or Grabill

3. The Defendant (Wyo.1980). Appellant’s did defense or the commission of offense hire, counsel, until procure the case that he did know command was thereof, drug transaction was commission elements it too late set in another instruc- he learned what progress which are forth that after requi formed the transpiring tion. he never guilty of necessary for him to be site intent your find consideration you If offense. al One that each of these all of the evidence in show proved beyond lowable means elements has not been of a defendant’s present is to doubt, you find tent reasonable then should drug transactions. in other guilty. involvement defendant not Rubio-Estrada, presentation provided by v. 857 F.2d United States the defendant? (1st Cir.1988); United If States of defense looks weak in fact Wixom, (8th Cir.1976). F.2d finding by appellate court, exercise it appellant’s knowledge As and intent were by should look weak in review the antici- case, at issue in this the evidence was pated State, intelligent jury. Dice v. properly admitted. (Wyo.1992); State, P.2d 879 Mclnturff (Wyo.1991); State, 808 P.2d 190 Oien v. Affirmed. (Wyo.1990). 797 P.2d 544 Ramos v. Cf. State, (Wyo.1991) 806 P.2d 822 URBIGKIT, and Thom Justice, dissenting. Chief (Wyo.1990). 792 P.2d 192 inextricably our recent deci- Almost structure and decision with failure of the sions, appear pervasively two results con- trial court to instruct the on the theo- frequently applied: sidered and bad acts case, ry of the appeal defendant’s this 404(b) justified evidence under W.R.E. presents the almost identical issue found in within the circumstance of the case Bouwkamp (Wyo. 833 P.2d 486 application present- some and the evidence 1992). ed the defense seems somehow insuffi- justify cient to of the defense Furthermore, it concept has been the litigatively instruction for the accused to entirely this court to almost swallow the jury his or her case the for submit admissibility sugar- of bad acts evidence acquittal. analysis coated the uniform that there is always exception generally an to the stated This decision confines results in both a non-admissibility appropriate justify rule rather stark circumstance. This court re- the introduction of extraneous information jects theory of defense instruction and jury to be used for the in a determination accepts then introduction of the bad acts present guilt. My sense of fairness and by justification of the defendant’s propriety mathematically standard of theory of for defense which an instruction quadrupled theory first where a reasonable theory jury to outline the for the was then of defense instruction is denied and then rejected. The bad acts are admissible to bad acts evidence is introduced as if the theory offset a of defense which cannot be 404(b) given. instruction would be W.R.E. jury. in instructions described appear nearly every evidence seems to just right Somehow that does not seem appeal.1 me. legion nearly any The case law concept, my persuasion

In first it is theory jurisdiction that a of defense in- intelligence jury we demean the given supported by should theory denial of a of defense instruction. struction be include appellate finding If we make our own fact credible evidence which can testimony evidentiary justifica- solely to ascertain that the of the defendant. minimal, Oien, why P.2d has con- tion is so then are we so 797 544.2 This court permitting jury sistently principled stated the rule in concerned about to re- both alistically determine the case based on the and constitutional terms that the defen- sive, See, State, example, (Wyo.1989); Pearson v. 811 P.2d 772 P.2d Dorador v. 1. for 543 J., Urbigkit, dissenting; State, (Wyo.1991), (Wyo.1989); 704 Eather- Schwenke v. 768 P.2d 1049 State, (Wyo.1991), Urbigkit, State, ton v. 810 P.2d 93 (Wyo.1989); and Brown v. 768 P.2d 1031 J., 822; Ramos, Longfellow dissenting; 806 P.2d J., State, Urbigkit, (Wyo.1987), 736 P.2d 1110 State, State, (Wyo.1990); Pena v. 803 P.2d 848 however, dissenting. Compare, where evidence State, (Wyo.1990); Gale v. 792 P.2d 1352 regarding "bad adverse to the state's witnesses J., Urbigkit, dissenting; (Wyo.1990), P.2d 570 State, Johnson v. acts” was not admissible: State, (Wyo.1990); Tennant v. P.2d Mil- J., dissenting, (Wyo.1991), Urbigkit, P.2d 1282 State, (Wyo.1989); ler v. State, P.2d 209 Martin v. J., Ramos, Urbigkit, 806 P.2d dissent- State, (Wyo.1989); 780 P.2d 1354 Gem ing. J., (Wyo.1989), Urbigkit, dissent- 780 P.2d 972 State, (Wyo.1989); ing; King v. 780 P.2d 943 cases, theory sequential defense For list of a State, (Wyo.1989); Pena v. P.2d 316 Garcia Bouwkamp, see 833 P.2d 486. State, (Wyo.1989); 777 P.2d 1091 Justice v. v. State, (Wyo.1989); Campbell v. 775 P.2d 1002 testimony. dant, produced by guilty an for provide opportunity in order to trial defense, theory his previous is entitled to verdict was of his proper a decided because However, the history defense instruction. drugs of involvement with as consistent in recent results are almost proper stating of a instruction his denial theory of the denial of a appeals where theory Virgilio of defense. Whether was justified by ex- instruction is now defense guilty, guilty realistically somewhat a for that denial tended effort to find basis nocent, and, he did not receive fair trial either the of defense instruction consequently, I dissent. factually sustained or inadvis- Obviously, presented, from the evidence Thom, P.2d ably phrased usage. target in Virgilio, principal who was not a 192; State, (Wyo. 773 P.2d 139 Smith v. investigation, was found to be “stand- State, 1989); (Wyo. Miller v. P.2d drug ing around” down when deal went 1988); (Wyo. Best 736 P.2d 739 proper question suitably instructed 1987); P.2d 579 Noetzelmann have should been whether committed Dice, 825 379.3 (Wyo.1986). P.2d Cf conjunction persons with those trial I will continue to dissent until the investigation whose had about actions bench, this enforce trial counsel and court been directed and who were then found principle that defendant a fundamental illegal during involved in the be conduct granted opportunity to have should be investigative process. Since his guilt upon rejection of assess of defense of non-involvement instruction perspective why acquittal defendant’s was denied and the instructions which were justified. dogmat- I will not so could be confusing given ambiguous, were the continuum of bad acts evidence ic about principal element of conviction became inevitably universal- introduced almost conduct, rep- bad asserted acts undesirable tribunal, ly approved by except to con- this and that he utation the fact was available to raise small voice from a more tinue a participant he to have been a —whether 400-year history system of our of law than or was not. was guilt determined on facts of that should be rumor, upon incident not based the and Starting in principle with the established reputation prejudice or conviction ex- law, except in American when unobserved defendant’s asserted bad tracted law, adjustments Wyoming some recent history reputation. and acts properly a is entitled a that defendant to phrased defense theory of instruction This is a a commit- case where crime was support is some to theo- there evidence principal with the actor in commission ted Dice, 379; ry, 825 P.2d Stevenson v. Unit- being appellant, than someone other this States, However, ed S.Ct. Virgilio. appellant this Vernon (1896), rule arrests, L.Ed. 980 we then come to the drug got netted in the whether recognized in Factually actually, equally a multitude of cases guilty or innocent. and crime, presence” jus- that “mere is insufficient to Virgilio was innocent either fact, prop- tify accessory principal before enough close to be action or, abetting, aiding conviction. erly responsible for resolved, fact, in I principal unquestionable in he could have been a With those rules justification involving delivery of controlled in this to find fac- the crime search case case, difficulty tually procedurally cre- this sustain convic- substance. theory improvidence Essentially, of instructions tion. there was a clean ated past history, his is that defense denied and the clou- overlay and the instruction per- dy process actually well- used jury did not decide case within instructional usage using guilt mitting presentation of rules of law evidence of defined Oien, recent cases L.Ed. 980 Oien, A list of cases is included In addition to Dice recognized rule was where consistent extended 797 P.2d at 546 n. and an Ramos, Mclnturff, clude 808 P.2d 190 and listing provided in the Bouw- discussion law P.2d 822. See the basic in Stevenson kamp dissent. States, 839, 40 U.S. United

tlSI argument illegal iñ final was that “he was there substance located or mere asso- guilty.” key so he must have been ciation, more, person without with the prosecution Virgilio was “Mr. Mr. who does have control illegal sub- Bryan present,” both as stated [were] property stance or the on which it is closing argument by prosecutor. Unit- found is insufficient to convict the defen- (6th Bryant, ed 461 F.2d States dant. Cir.1972). Virgilio, It was the stated defense of Defendant Instruction “D” although jury, denied for submission to the Evidence, though demonstrating defen- deal, instigate that he did not had no proximity dant’s to an illegal substance deal, part promoting received no and to a who did have control benefit from the deal and was not a func- illegal substance, over the is insufficient tioning participant to make the deal occur. to sustain a conviction where it did not Why then was he denied the well-estab- lished, any type working establish generally theory relation- used of defense ship parties between the surely regarding instruction? It cannot at this stage illegal substance, parade having merely with the of references an associa- been made in our cases to the constituent tion. right theory constitutional that a of de- No mere given, instruction was just fense instruction is not available. It is although it is the universal rule of law any theory as obvious that he denied applicable to these kinds of cases. The stating litigative of defense instruction majority’s justification apparent- for denial concept. sug- It sometimes seems and is ly “unduly emphasized is that it the effect gested majority opinion in this * * proximity Maj. op. at 1128. theory totally of defense instruction is mis- That is what a of defense instruc- The affirmative understood. of de- posi- tion is intended to do. It states the simply fense instruction is not the same as litigant compare tion of the for the general instruction that the state has the requirements for conviction with the duty prove the elements of the offense Pinkney contention innocence. See

beyond majority a reasonable doubt. The States, (5th United 380 F.2d Cir. accessory recites the elements of the be- cert, 908, 1967), denied, 390 U.S. S.Ct. charge, aiding fore the fact the elements of (1968). 19 L.Ed.2d 876 abetting and and then states: “These in- argument ap- structions left room for the presence The rule a mere is not vacuous pellant present jury sought could concept; principle it defines a basic of crim- present in his and refused two offered guilt requiring knowledgeable action— inal instructions. The court did not err in re- activity assisting planning preparing in fusing Maj. the two offered instructions.” perpetration. 21 Am.Jur.2d for the Crimi- op. Something at in under- 1128. missed nal Law 166 It is within the § standing something was missed in the of intent and action for the mere criteria jury consequently given. instructions Sim- presence additional rule to determine when plistically, majority what the has said is proof lacking guilt that cannot be found. Virgilio that was not entitled to a of of The United States Tenth Circuit Court defense instruction of kind. For a Zimmerman, in Appeals United States v. comparison, proper- see how the trial court (10th Cir.1991) had occasion 943 F.2d Dice, in ly jury instructed the 825 P.2d 379 analyze the rule comprehensively both regarding theory of defense. charg- in principle of instruction a case

Virgilio presence firm ing lawyers asked as his mere in a law hiding bankruptcy complicity structions: in assets. have an additional feature The case did Defendant Instruction “C” instruc- jury asked for further where the guilt substance, regarding standing around con- tions proximity illegal to an Mere Appeals, of Tenth Circuit Court property on the where the cerns. The unnumbered in sim- finding failure dur- The cases are almost in error in to reinstruct status, seg- but a selected ilar decisional deliberations, ing stated: see also States lem. See Bollenbach inescapable 405-06 such an victed Cir.1965). 1203, States, 797-98 Bratton v. United correct to act. rely on argues be no conviction United The cannot or the Restatement does not eral ethical that such a Colorado sees a crime legal It is well established that Ethics, government some conduct. government law, way duty to jury on an v.] duty (10th Cir.1934). [90 402 F.2d legal legal States, the evidence United Thus, ^[607] instruction, conviction actively participate certainly pointed up law, 18 U.S.C. § bootstrapped Kline, 922 F.2d substance L.Ed. (10th that the should have been instructed of basis. consequences general duty exists under improper at either Uniform C.R.S. without good being committed has there States 350 F.2d 612-13, seeks to 350] Cir.1974); is incorrect (Second) of Contracts States, 73 F.2d faith under jury may have con- “[t]he stop that the without instruction § [v. was the observer [(1946)]. King v. United v. Commercial 18-8-115, or fed- basis.” into a The based Munz, United questions (10th duty it or do, no Moreover, ^[610] conclusion a Michaud in government jury could a legal possibility in there Cir.1968); the crime on an in- report it. the Code 504 F.2d lawyer’s [United States], ^[402] Absent at stating facts. prob- (10th from Code duty who 613; who can no as at v. States Jahnke Fifth Circuit Court ed Nissen v. United Cir.1978) said: other S.Ct. non-guilt the United States Id. at 402. That definition was cited with requiring action and intent and delivery remains 1984) sory isdictions. Learned ing ment ently applied definitions text underlying principle conceptually derived sociated towards carry himself with the used—even the ipate all demand that he verdict was reversed Proof that a defendant was F.2d 401 arrangements bring about, from make where the jurisdictions were in 654 P.2d 1232 v. many in it as nearly as Hand in Longoria, citation from mere with a implication it. of presented by The approval an it succeed. foundational accommodating in (2nd Cir.1938), in identical opinion most opinion 93 L.Ed. general rule that something 692 P.2d Supreme is demonstrative of the States, 336 most United States criminal, has since been consist- venture, presence. in (Wyo.1982) state and Appeals some sort associate enunciated that colorless, F.2d this situation of also purposive of seek restated text concept All Court in or that defen- that he wishes that he which in remanded, Circuit citations appeal, 422, listed. by U.S. consequent federal the words adopted by Peoni merely as- Haight his action “abet”— attitude United Nye Peoni, where partic- Judge (Wyo. acces- quot- vary- drug guilt was (5th jur- in & faith” in the from the court. Contracts] It is ^[******] difficult substitutes for an Restatement to see how the [(Second) instruction “good pra. criminal venture. a conviction for tinez, dant not, To be [555 without present F.2d 1269 upheld, more, sufficient at the scene of a aiding and United the (5th Cir.1977)], conviction States to v. Mar- sustain must su- a equally tell us at 1214. The case should on that the “defendant Id. based evidence be venture, (Sec- duty like a from the Restatement the criminal was associated with ond) Contracts, duty something he wished participated the lack of in it as sought bring about, in- his actions presence subject requiring a to mere v. it United States jury they not con- to make succeed.” to the so will struction Martinez, An- States v. supra, United improper basis. vict on

H33 (5th Cir.1973). provide To in order to the for 474 F.2d 770 basis thony, association, guilt. there must evidence prove be “shared that the defendant

to establish inquiry proper The second instruction principal.” of the in the criminal intent provide relevant standards for decision Smith, v. 546 F.2d 1275 United States jury. decisively the That rule is also Cir.1977). (5th prove participation, To provided by extraordinary jurist, another to establish that there must be evidence Frankfurter, Justice for American law engaged in the defendant some affirma- States, when Bollenbach v. United is, conduct; that there must be evi- tive 607, 612, 402,. U.S. 66 S.Ct. 90 L.Ed. dence that defendant committed an overt established; (1946) designed to aid in the success of the act Discharge jury’s responsibility for negative acqui- venture. Proof of mere drawing appropriate conclusions from suffice. escence will not United States testimony depended discharge the Martinez, supra; United States judge’s responsibility give jury Smith, supra. required guidance by a lucid state- legal ment of the relevant criteria. appeal Logical consideration this re- garding the denied of defense Nissen, Nye As restated in & S.Ct. at requested by Virgilio struction invokes again Justice Frankfurter in dissent two-stage progression. Aschliman said, “only jury properly has when been (Ind.1992). State, 589 N.E.2d 1160 instructed as to the relevant standards to inquiry is the rule of first is what correct applied does a basis exist regarding and the sec- law determining for whether evidence suffi- aspect ond then is how will that rule be support presented cient to the verdict was jury. In rec- properly communicated to it.” pervasive ognition first of the law principles, complex nor These two neither right of an of defense accused controversial, proper principle establish instruction, questions pro- neither of these provide give of law and an instruction to kind of vide a controversial status for its verdict determina- a basis justification scope of this case to within styles tion.4 different of restate- Several majority properly sustain the decision. Judge expla- Hand ment or recitation of required concept, predating clear nation in Peoni of the standard In first even Peoni, guilt for are found within the federal by Judge recitation Hand States, courts, uniformly following the each Peo- homicide case of Hicks v. United “To aid and ni/Nye Nissen theme. abet 150 U.S. 37 L.Ed. & intent to commit the questions of mere one must share included both offense, participate as in some man- improper instruction. In that as well presence and case, required ner to assist its commission.” United improper instruction (10th Smith, 838 F.2d charge on a murder conviction reversal States cert, Cir.1988), denied, abetting. The aiding and United States 1935, 104 L.Ed.2d 407 See recognized specific af- S.Ct. Supreme Court Fischel, 686 F.2d encouragement also States v. requirement firmative United Cir.1982).5 (5th of the offense or assistance commission States, King 402 interesting v. United that few of the mere 943 F.2d 1204 It is to note 4. Cir.1968) perpetra- (10th presence/active participation in the consider the which F.2d 289 jury instructions. Most rever- tion cases discuss than the suffi- adequacy instruction rather of come on insuffi- sals or considered reversals ciency evidence. of the guilt. ciency to sustain Obvious- of the evidence cases, ly, these that is a difficult burden within "Moreover, exculpatory flight state- and false 5. has appeal an adverse verdict on already because to a standing not lead convic- alone will ments "any when the evidence” been rendered independent Unit- evidence.” other tion absent See, normally applied. for to sustain is test example, 187, (9th Abraham, 191 617 F.2d ed Cir.), v. States sufficiency Longoria, 569 cases: cert, 3027, 929, 100 S.Ct. 447 U.S. denied Smith, 422; States v. 546 F.2d 1275 F.2d United (1980). 1123 65 L.Ed.2d Zimmerman, and, (5th Cir.1977); conversely, 1134 (citing Hicks, 442, F.2d 150 proximity in 522 at 682 U.S.

When characterized 14 144 and variant additional authori- S.Ct. presence, the rule is stated: ties). many times that This court has held guilty abetting To be of persons involved with other association crime, willfully the defendant must asso- enterprise in a is not sufficient criminal with the criminal ciate himself venture in a con- prove knowing participation * * * through and seek to make it succeed crime “[PJroximity to the spiracy. * * * part. some action his balance,” tip the does not suffice to prove government must more than mere presence at the even “actual scene presence the crime at the scene of even not sufficient.” crime is coupled knowledge that with Littrell, 574 F.2d 828, v. 833 United States being committed. v. Cir.1978) United States (5th (quoting Esparsen, 1461, v. United States 930 F.2d Caro, (5th Cir.1978)). 411, F.2d 418 569 — cert, denied, (10th Cir.1991), 1470 U.S. at Proof of mere association 882, -, (1992). 112 L.Ed.2d S.Ct. 116 786 a mere raising of the crime the scene McMahon, also v. See United States 562 charged is suspicion guilt of the offense (10th Cir.1977). Rephrased, F.2d 1192 Wright, States v. sufficient. United being “mere that a crime is v. Cir.1971); Lucero (10th 450 F.2d 992 committed, coupled presence at even with States, 311 (10th Cir.1962), 457 United F.2d scene, ordinarily evi- is not sufficient cert, sub nom. Maestas v. United denied upon which to a conviction of dence base 883, States, 372 U.S. 936, 9 83 S.Ct. crime.” United States in the participation is not 767 Presence alone L.Ed.2d (9th Cir.1982) Shapiro, 669 F.2d 593, v. 595 requisite “slight sufficient to constitute Nissen, (citing Nye & 766). See 69 S.Ct. participation or knowl- evidence” of willful Johnson, v. F.Supp. also Stevens 881 Weaver, States v. edge. 594 F.2d United (E.D.N.C.1983). Sitting in the truck when (9th Cir.1979). a case Weaver drug was also deal consummated drug very similar involving delivery with Weaver, not sufficient 594 F.2d are factual that with which we situation similarly in the context The rule is stated

presented appeal. in this proof the affirmative burden of which Carter, United States court of- “aiding 666, (D.C.Cir.1975) recog- first 522 F.2d is to that the defendant ‘willful- fense show applica- nized fundamental nature and way positive ly associated himself in some Winship, re tion of the 397 U.S. showing by that the criminal venture with L.Ed.2d something enterprise joined has as (1970) standard: by seeking to bring about and he wishes to moral “It critical that the force action on his make it succeed some ” law not diluted a standard common Zamora, States United part.’ people that in doubt proof leaves Cir.1986) (10th (quoting F.2d are whether innocent men condemned. Taylor, cert, States 612 F.2d United society important in our It free is also denied, (10th Cir.), going his or- every individual about 1092,100 (1980)). L.Ed.2d S.Ct. confidence that dinary affairs have Nissen as fur- Nye & The case references government adjudge guilty cannot him States See also United authority. ther convincing a a criminal offense without Cir.1973). (5th A Anthony, F.2d 770 guilt utmost proper factfinder of his concept rule drug case the same within certainty.” United States v. Jack- required reversal (5th Cir.1976). son, Similar- 526 F.2d 1236 crite- fundamental application After case, although drug recognized ly in a well law, court recited of criminal then ria sufficiency affirmed on the conviction was standing rule: “It is estab- around evidence, it stated: of the lished, however, mere presence conviction, Thus, the evi- is not to sustain this crime an accused at scene Carter, reasonable inferences there- guilt.” dence and to establish sufficient

H35 (1974)(involving that defendant knew L.Ed.2d 772 from must show a trial to the reversed). occur- court where that a narcotics distribution was one conviction was ring, himself that he associated with The structure of California law which is act, participated in it a de- that he with generally illustrative of state court deci- accomplished, sire that it be and that similarly sions is informative. first in- designed committed some overt act stance, right we find the make it a success. Defendant must have defense instruction: * * * purpose shared the criminal intent or and operative principle simply accomplishment assisted in the of that that a defendant is entitled to an instruc- purpose. any supported tion on defense which is * * * Martinez, 1269, United States v. 555 F.2d by substantial evidence and that in (5th Cir.1977). Weaver, 1272 1272 594 F.2d determining whether such evidence ex- similar, except the conviction was re- ists, weigh the trial court must not sufficiency and the of the evidence versed witnesses, credibility of nor focus on the was :: n sustained. That court quoted Nye evidence, fact there is a conflict in the Nissen, Peoni, quoted which and then & must but resolve doubts as to the stated: credibility sufficiency and of the evidence

Although present Weaver was at the favor of the defendant. scene, presence mere does not make one Wu, 614, People Cal.App.3d v. 235 286 Cal. * * * an aider and abetter. Aside from 868, (1991). Rptr. 878 Within this initial this, showing there was no that Weaver perspective, the courts of California first perpetrators assisted the of the crime. comprehensively aiding addressed the showing Nor was there a that Weaver and, requirement instructional prin- shared in the criminal intent of the specifically, aiding whether it was or abet- * * cipals *. ting: Weaver, 594 F.2d at 1275. suggest appropriate We that an instruc- tion should inform that a critically important concept is not aids and abets the commission of a crime just lawyers jurists know what she, acting (1) when he or with knowl- be, may the law also that the fact- edge purpose of the unlawful Camacho, finding jury, United v. States cert, perpetrator, purpose the intent or 464, (9th Cir.), 528 n. F.2d 5 committing, encouraging, or facilitat- 995, 2208, denied, 425 U.S. 96 S.Ct. offense, (3) by ing the commission of the (1976), properly L.Ed.2d instructed to aids, encourages promotes, act or advice acquittal the standard for an or understand instigates, the commission of the or guilty Specifically, verdict. such a well crime. phrased instruction is illustrated United Stanchich, 1294, 550 F.2d

States v. Beeman, People 35 Cal.3d 199 Cal. (2nd Cir.1977): 68-69, P.2d Rptr. synthesized “The of a defendant This instruction is considered committed, being supported by more extensive recitation where a even and knowledge by monumentally in the extend- coupled with the defen- from Beeman committed, Pitts, being People Cal.App.3d dant that a crime is or ed case of (1990), Cal.Rptr. it negative acquiescence by the mere a de- where others, quoted: in the criminal conduct of is stated and fendant * * * knowledge, guilty even is not suffi- Beeman, People sets forth aiding abetting. cient to establish imposition liability requirements for An aider and abettor must have some abetting: upon venture.” interest the criminal authority sound weight of “[T]he Sacks, require proof that an aider and 620 F.2d law See also United States v. Cir.1980) knowledge of the (10th act with and United States abettor cert, (5th Cir.1973), perpetrator Horton, purpose 488 F.2d 374 denied, purpose either of with an intent

1136 McComas, 428, State v.

committing, encouraging or of or facili- 85 Mont. P. 278 993, (1929). of, presence More than tating commission the offense. 995 mere [Ci- necessary at scene of the a crime tations.] ex responsibility. criminal State establish of the offense “When definition McKinnon, rel. 120, Murphy v. 171 Mont. includes the intent to do some act or Accord State v. Nor- (1976). 556 P.2d 906 beyond consequences achieve some dahl, 513, (1984). 208 Mont. 679 P.2d 241 reus of [citation], actus crime Illinois Current law states that “[m]ere spe- aider and abettor must share the presence does not one render accountable By perpetrator. cific intent of the statute; proof under the there must be of mean that ‘share’ we neither the aider the required intent and that defendant aid- prepared and must to com- abettor be ed, attempted or to aid abetted another mit her the offense his or own act People v. perpetration of the crime.” so, perpetrator should the fail to do Evans, 77, 622, I11.2d 87 57 Ill.Dec. 429 nor the aider abettor must that 520, (1981). N.E.2d 522 intent test is seek to share the fruits of the crime. People promote an action to facilitate. Rather, an aider and abet- [Citation.] Mason, v. 787, 211 Ill.App.3d 156 Ill.Dec. perpetrator’s specif- tor will ‘share’ the 166, (1991), 570 N.E.2d 642 which followed ic intent when he or she knows the full Winship, Evans In re and cited the perpetrator’s extent of 358, People 90 S.Ct. 1068. See also v. gives purpose encourage- aid or Hammond, 125, 214 Ill.App.3d Ill.Dec. 157 purpose ment with the intent or 907, (1991) 573 N.E.2d 325 which reversed facilitating perpetrator’s commis- inappropriate instruction is not an sion the crime. {Peo- [Citations.]” totally in- dissimilar from the erroneous Beeman, ple supra, v. p. 35 Cal.3d at given struction this case. 560, 60, 1318.) Cal.Rptr. P.2d 199 674 general principle presence mere T, 230 Cal.App.3d Accord Matter Jose at scene of a without does more 1455, Cal.Rptr. (1991), although 282 75 party not an make accused the crime presence in evidence showed more than State, recognized Beggs v. 568 So.2d providing participation evidence of willful v. Hudson (Ala.Cr.App.1990) earlier in conviction affirmed. The Cali- State, 372, (1947), Ala. 31 So.2d 774 People Crop, Supreme fornia Court in vicinity presence where in the of a moon- 1, Cal.Rptr. 592, Cal.3d 710 P.2d 392 shine still not sufficient to warrant Beeman instruction (1985) approved Radke v. Accord conviction. 52 Ala. and reversed murder conviction App. 397, (1973), 293 So.2d 312 affd given. case not volved when 290, (1974); Ala. 293 So.2d 314 Wilson principle A like has existed within Mon- (1990); 319 Md. 573 A.2d 831 period: tana law for an extended Costa, Com. 407 Mass. 552 N.E.2d Whitehead, (1990); Com. v. 379 Mass. time a crime is Mere at the People (1980); 400 N.E.2d committed, interfering, does without Christopher, A.D.2d 557 N.Y.S.2d party not make one a to a crime unless (which also addressed communi- duty by his interference was a reason ty purpose). him, position held or unless some designed himby noninterference was case follows the Montana Nebraska law encouragement pro- as rule operated and statement that “evidence of tection; acquiescence, presence, nor does the mere conceal- or silence is enough to sustain the State’s ment of crime is burden proving guilty aiding and about to be committed constitute such a defendant [of Ryan, 233 Neb. (1 State v. abetting].” accomplice Wharton’s cert, de- 341), 316 and 444 N.W.2d Criminal Law (1989), [11th Ed.] — nied, -, reprehensible no how such con- U.S. matter * * similarly That rule is may duct L.Ed.2d 176 *.

IIST State, ture, in guaranteed stated Mares 801 S.W.2d as a constituent of opportunity defend. (Tex.App.1990) and to James Tex.Crim. S.W.2d equally 2. It is well established as a principle of law uniformly applied that proper in this instruction We have case a at the alone scene of the crime denied, improper given an instruction and a without evidence to demonstrate involve- ignored: principle ment is insufficient to justify conviction of charge jury The trial court must the abetting. defense, the defendant’s sole even with- The defendant’s 3. and trial evidence request, out a written if is some there * * * strategy in this case was directed to a support charge. evidence to the that fit specifically defense those within Having presented some evidence on his principles. two defense, sole was entitled to the ** Upon appropriate instruction *. request, the trial court refused in this give theory case to Tarvestad v. 409 S.E.2d 261 Ga. of defense instruction. (1991). Here, quoted in as the case, 5. That decision justified can as a Georgia the “as a whole be instructions only matter of law in this if case one of the fairly present [Virgilio’s failed to following applies, none are actual- of which presence] jury.” defense to at 515. the Id. ly or used in justification considered for the presence non-guilt—principle The mere — illogical presented: and inconsistent result very simply universally just is a settled (a) for some law, reason it is determined accepted except perhaps rule now of that the defendant is to the not entitled Wyoming. in instruction; theory perhaps of defense I could reword the instruction into some- situation, theory within the factual of phraseology, what better but that was not defense would constitute a defense the decision made the trial court nor fact; here. appears now affirmed What here to (b) justi- evidence was presented no Virgilio, have for been determined is that fy though that defense this case even reason, some unstated not entitled to a the rule is well established that evi- theory of defense assert this instruction to justify theory defense dence absolutely principle determined of law. supported by the sole sufficiently can be stated, Simply and it cannot said other- be testimony provided evidence wise, Virgilio theory of de- denied his defendant, here; or which it was justification fense instruction. There is no defendant, (c) duty having and, the denial denial can- overtly, that theory of appropriately furnish an stated not be said to be harmless error. instruction, may foreclosed defense theory By virtue of number of the argu- from use because instruction I am lead to problems, defense instruction although mentatively phrased in tex- try justified to establish some basis for this accurate, specific it is tually fact (and departure from fundamental this case. events of civil) legal principles consequently de- something syllogism and There is about the really this means in termine what court factors, actual- conjectural three never repetition that a of defense instruc- discussed, circular ly which demonstrate given denies its tion should be and then denying reasoning result achieved appropriateness. and some of This case any right the ac- process or real due suggest kind our other recent cases of like actually cused to defend. syllogism: does supposition There is another which accepted 1.It in the law only in com- develop as a mutation found is, theory of de- defendant is entitled to his as Wyoming cases which ments some here, again suggested fense instruction there is that the un- support right appropriately This theory. adduced to defense instruction right has a in na- the defendant ingredient, constitutional available because is a basic prior phraseol- present argument closing. That tation and misconduct. The reason, given in suggestion ogy va- of the instructions which were lacks constitutional prece- lidity any support conjunction overlay in case law with the use of the evidence, Bouwkamp, reputation 833 P.2d 486. dent. See Ur- evil character- bad C.J., bigkit, dissenting. proper theory State v. Wel- and the denial of the izations Cf. ler, (Fla.1991) provide 590 So.2d 923 and Frasier of defense instruction combined to (S.C.1991). essentially guilty S.E.2d a court-directed verdict. case, question Without of fact in this example An acts evidence is bad Yirgilio’s strategy evidence and trial was testimony in the at trial of a witness found principles directed to a defense that utilized prove Virgi- purpose was not to whose proposed re- of law enunciated his guilty prior lio had been of a controlled He jected instruction. wanted the offense, but rather to illuminate substance just general principle of law that know prior history prove the details to use there, he could not be because witness, present guilt. special The inves- he had convicted on that basis alone. Since Wyoming tigator for the Division of Crimi- acceptable it fit an defense and within Investigation, nal testified the 1987 about facts, concept rejec- the trial court’s in full detail as if it occurrence were only majority’s tion and this decision can presently presented criminal offense for de- (a) justified theory if of defense another guilt.6 obviously of He termination equivalent instruction of substance was appropriately primed prosecutorial awith (b) given, sup- or there was no evidence to evidentiary harpoon. Langley v. port the instruction. (Okl.Cr.1991). He added to 813 P.2d 526 evidence of the crime for which the 1987 disagreement I could understand with was achieved further evidence of conviction concept justify affirming con- here to uncharged burglary offense of proposed viction that instructions were thievery of the controlled substance Virgilio proper unartful and that waived a had another individual. The witness no instruction to which he otherwise would knowledge present- of event which was by present a have been entitled failure to ly the trial court as a circumstance proper Consequently, instruction. we before present charge. witness phrase appel- could this case in terms for Another separately testify late confirmation as an ineffectiveness of was called to about 1985 essence, agree, involving marijuana. In counsel resolution. I would not events disposi- prior it make crimes were retried in detail with would rational sense. two evidentiary harpoons provide per- tion that is made does not. added to present guilt. prior suasion of Proof of a The case as for defense on structured conspiracy providing by was achieved evi- participation but not is then fur- previously dence of crimes committed and proof guilt ther removed from for con- appropriate had for which sentences been following viction denial of the entered and served. by application defense instruction of bad reputation relating problems conduct and in this case denied prior history Virgilio. usage of defense instruction and the criminal This 404(b) prosecutorial usage principal is the of W.R.E. of bad acts evidence as evi- are, guilt by Virgilio, parade dirty approach presently dence of as claimed wash authenticated, preclusively achieving inadequacy more exacerbated con- even repu- given to by dominating viction evidence of bad of the instructions that were de- name, your investigation you They Q. As a result of do Rickie Hendricks. entered house, Virgilio marijuana know where Mr. and Mr. Howell ob- knew that Rickie had in that marijuana? pound quarter tained that house and had stolen a marijuana out of that house. A. Yes. Q. As a result of actions was Mr. Q. those Where was that? delivery burglarized Virgilio they convicted of of a controlled A. On that same date had occupied a house that was owned or at least substance? Rick, Yes, by a I will have to think of the last A. he was.

H39 charged knowingly offense. sion of a crime he. and with fine the elements of brief, aids, appellate Virgilio states: promotes, intent encour- ages, instigates the commission act Specifically, jury instruction number * * * (emphasis added). ambiguous. It or advice” Rea- particularly seven jurors provides: interpret sonable could the mean- ing fact, differently. of criminal intent Some accessory before the To be an might reasonably guilty believe that person must intend that his acts or meant, of a is what is when in fact words secure the commission assenting required. Merely crime. or assist- evil motive without ing in the commission part of The last Instruction Ten going crime is to be knowledge that a however, provides, necessary, “[i]t committed, or that prove beyond a reasonable doubt that a defendant’s going actions are to aid in the com- pur- defendant was aware the common felony, mission is not crimi- pose willing participant added). (emphasis nal. added). conspiracy.[”] (emphasis * * * * * * Wyo- This instruction follows the “willing participant” terminol- ming Jury Pattern Instructions with re- ogy again ambiguous and fails to abetting. Far from spect to jury actually form the that what is re- informative, being the instruction is con- quired by law is the defendant must already fusing if not inaccurate. As willing participant have and have been mentioned, acqui- mere finding guilty. criminal intent before him activity in the criminal does not escence apprise jury In an effort to of what liability rise to the level of criminal con- activity, is not criminal the defense sub- templated instruction in the law. Yet the presence” mitted two “mere instructions assent, implies that mere without knowl- purpose making the distinction for the By applying simple edge, is not criminal. knowledge” and “crimi- between “mere logic, jury deductive could have be- State], supra Haight nal intent”. [v. assent, knowledge, lieved that mere with (Wyo.1982) P.2d at 1238 ]. [654 1232] [ clearly indeed criminal. This is inaccu- Both of these instructions were denied rate and inconsistent with the law. * * * having by the trial court. Not intent, motive, evil is re- Criminal instructions, jury of these benefit quired, merely knowledge not Mr. very well have determined could seven, activity. Instruction criminal Vi[r]gilio’s guilt he witnessed or because law, interpretation of the be an accurate activity criminal undertaken observed something like this: should have read of his crimi- Bryan, Mr. and not because assent, knowledge, even with is not intent, requires. the law nal which In a law review comment dis- criminal. sum, Yirgilio’s argument on Mr. very problem, the author cussing this appeal goes to the minimum standard following instruction: recommended the requires The law which to convict. you “Even if find that the defendant was activity, only knowledge of criminal practically certain that his conduct would jury intent. The specific also charged, you may the crime facilitate below, prose- influenced the case not, alone, infer that he from that fact “knowledge theory, cou- alone” cution’s committed, intended that instructions, pled vague may you consider but it is a fact which presence” “mere benefit of without the the defendant’s attempting to determine instructions, arrived at the could have Comment, Jury Instruc- intention.” by basing their collective they did result Cases, Aiding Abetting tions in Virgilio’s of Mr. decision on 1968, 68 Col.L.Rev. intent. knowledge rather than Furthermore, important legal several original.) (Emphasis in the instruc- left undefined terms were was not guilt in the case (6) reads, The evidence of number six tions. Instruction may well the result exactly fanciful and abets the commis- aids “[a] clearly appropri- if the have been identical had been defense instruction

ate correlated had been

given, if that defense given, and to be proper instructions to convict acts evidence

less reliance on bad are, of these required. None

had been

however, procedurally portrayed facts nei- Virgilio was record. appellate

in this right his constitutional given access to

ther he offered due nor was properly defend application of determined

process by proper done to se- law in what was

principles of his conviction.

cure I dissent.

Consequently, UNDERKOFLER, D.

Ronald (Plaintiff),

Appellant UNDERKOFLER,

Guadalupe Victoria (Defendant).

Appellee 92-28.

No. Wyoming.

Supreme Court

July

Case Details

Case Name: Virgilio v. State

Court Name: Wyoming Supreme Court

Date Published: Jun 4, 1992

Citation: 834 P.2d 1125

Docket Number: 90-209

Court Abbreviation: Wyo.