Balsley v. State, 83-38

• Decision Date: 02 September 1983
• Docket Number: No. 83-38,83-38
• Citation: 668 P.2d 1324
• Parties: Michael R. BALSLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1324

668 P.2d 1324

Michael R. BALSLEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-38.

Supreme Court of Wyoming.

Sept. 2, 1983.

Michael K. Davis of Redle, Yonkee & Arney, Sheridan, for appellant.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROONEY, C.J., and RAPER, ^* THOMAS, ROSE and BROWN, JJ.

ROSE, Justice.

This appeal asks a single question:

"Is homicide by vehicle under Wyo.Stat. Section 31-5-1117(b) a lesser offense 'necessarily included' ¹ in the crime of aggravated homicide by vehicle under Wyo.Stat. Section 31-5-1117(a)?"

On September 7, 1982, appellant Michael Balsley was charged by information with a violation of § 31-5-1117(a), W.S.1977 in the district court in and for Johnson County, Wyoming. The information reads:

"Comes now Greg L. Goddard, County and Prosecuting Attorney of the County of Johnson and State of Wyoming, and in the name and by the authority of the State of Wyoming informs the Court and gives the Court to understand that Michael R. Balsley, late of the County aforesaid, on the 17th day of July, A.D. 1982, at the County of Johnson in the State of Wyoming did "while driving any vehicle (namely one 1982 Chevrolet Blazer) under the influence of intoxicating liquor or a controlled substance or a combination of both, to a degree which rendered him incapable of safely driving said vehicle cause the death of another person, (namely, SHAWN O. KINSLOW) in violation of Wyoming Statute 31-5-1117(a) (Rep.Ed.1982).

"Contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming."

The information recites the language of the pertinent statute, § 31-5-1117(a), W.S.1977, 1982 Cum.Supp., ² which provides:

"Whoever, while driving any vehicle under the influence of either intoxicating liquor or a controlled substance, or a combination of both, to a degree which renders him incapable of safely driving a vehicle, causes the death of another person shall be guilty of aggravated homicide by vehicle, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not more than twenty (20) years."

The appellant was arraigned before the district court judge on September 22, 1982 who advised him of the charges against him:

"THE COURT: The Information charges that you did on or about the 17th day of July, 1982, County of Johnson, State of Wyoming, while driving a vehicle, namely, one 1982 Chevrolet Blazer, under the influence of intoxicating liquor or a controlled substance or a combination of both, to a degree [which] rendered you incapable of safely driving said vehicle, cause the death of another person, namely, Shawn O. Kinslow, in violation of Wyoming Statute 31-5-1117(a), and that's in the pocket supplements of 1982 in the statutes."

The court then read the aforesaid relevant part of § 31-5-1117(a) to the defendant and the following colloquy ensued:

"THE COURT: Do you understand that this is one of those offenses commonly referred to as a felony for which you could be sentenced to the penitentiary for a period of up to twenty years?

"THE DEFENDANT: Yes, sir.

"THE COURT: The statute also provides for a revocation of license to drive any motor vehicle of any person convicted of that offense. Do you understand this?

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. Any question about the charges against you?

"THE DEFENDANT: No, sir.

* * *

* * *

"THE COURT: All right. How do you answer to the charge, then, Mr. Balsley--are you guilty or not guilty?

"THE DEFENDANT: Not guilty."

The matter proceeded to trial before a 12-person jury on January 10, 1983. On January 12, the parties submitted jury instructions, and for the first time--when the trial was nearly finished--the defendant learned that the State intended to offer instructions by authority of § 31-5-1117(b) under the lesser-included-offense provisions of Rule 32(c), W.R.Cr.P., supra n. 1. Section 31-5-1117(b) provides:

"Whoever, except when the violation of law involves culpable neglect or criminal carelessness, unlawfully and unintentionally, but with a conscious disregard of the safety of others, causes the death of another person while engaged in the violation of any state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic, except those laws or ordinances relating to conduct set forth in subsection (a) of this section, is guilty of homicide by vehicle when the violation is the proximate cause of death and, upon conviction thereof, shall be fined not more than two thousand dollars ($2,000.00) or imprisoned in the county jail for not more than one (1) year, or both."

The court instructed the jury as follows concerning the elements of § 31-5-1117(a):

"INSTRUCTION NO. 7

"The necessary elements of the crime of Aggravated Vehicular Homicide are:

"1. That the offense was committed on or about July 17, 1982;

"2. That the offense was committed in the County of Johnson, State of Wyoming;

"3. That the defendant was driving a vehicle;

"4. That at the time the defendant was driving said vehicle, the defendant was under the influence of intoxicating liquor to a degree which rendered him incapable of safely driving said vehicle which caused the death of another person (namely, Shawn Kinslow)."

In Instructions 8, 9 and 10, the court instructed the jury concerning the availability of what it determined was the lesser offense of homicide by vehicle. Instructions 8 and 9 provide as follows:

"INSTRUCTION NO. 8

"If you are not satisfied beyond a reasonable doubt that the Defendant is guilty of the offense charged, he may, however, be found guilty of any lesser offense, the commission of which is necessarily included in the offense charged, if the evidence is sufficient to establish his guilt of such lesser offense beyond a reasonable doubt.

"The offense of Aggravated Homicide by Vehicle with which the defendant is charged, includes the lesser offense of Homicide by Vehicle."

"INSTRUCTION NO. 9

"The necessary elements of the crime of Homicide by Vehicle are:

"1. That the offense was committed on or about July 17, 1982.

"2. That the offense was committed in the County of Johnson, State of Wyoming.

"3. That the defendant did unlawfully and unintentionally

"4. With a conscious disregard of the safety of others

"5. Cause the death of another person (namely Shawn Kinslow).

"6. While said defendant was engaged in the violation of any ³ state law or ordinance applying to the operation or use of a vehicle or to the regulation of traffic.

"7. The violation of said law or ordinance being the proximate cause of the death."

Instruction No. 10 merely instructed the jury concerning the language of § 31-5-1117(b), as set forth above.

The defendant timely objected to the giving of Instructions Nos. 8, 9 and 10:

"MR. YONKEE: * * *

"The defendant objects to the giving of Instruction Nos. 8, 9 and 10 upon the ground that the crime referred to and defined therein as homicide by vehicle is taken from Section 31-5-1117(b), Wyoming Statutes, and is not an offense included within the offense defined in Section 31-5-1117(a), Wyoming Statutes, which is the statute under which the defendant was complained against, bound over to District Court for trial, and the statute on which the Information in this case is based, and the defendant has not been charged in this case with the crime defined in Section 31-5-1117(b) of Wyoming Statutes."

Defense counsel further objected as follows:

"MR. YONKEE: And the defendant further objects, you know, for the same ground that it's not a lesser included offense on Instruction No. 10, and is apparently an adoption from 31-5-1117(b) and leaves out language. * * *"

Defense counsel objected to Instruction No. 10 when he said:

"MR. YONKEE: I would like to add to our objections that Instruction No. 10 is taken from that statute which is vague, uncertain and indefinite, unconstitutionally invalid. That's it."

The jury returned its verdict on January 13, 1983, finding the defendant guilty of homicide by vehicle (the putative lesser-included offense) and judgment and sentence were entered upon the verdict on January 24, 1983. The defendant was sentenced to serve one year in the Johnson County jail and fined $2,000. From this judgment the defendant has timely appealed.

THE LAW

The appellant describes his argument as follows:

"WYOMING STATUTES SECTION 31-5-1117(b) (Homicide by Vehicle) IS NOT A LESSER OFFENSE 'NECESSARILY INCLUDED' IN WYOMING STATUTE SECTION 31-5-1117(a) (Aggravated Homicide by Vehicle) UNDER WYOMING RULE OF CRIMINAL PROCEDURE 32(c) BECAUSE THE PUTATIVE LESSER OFFENSE CONTAINS ELEMENTS NOT INCLUDED IN THE GREATER. THE INFORMATION IN THIS CASE DOES NOT CHARGE APPELLANT WITH A VIOLATION OF SECTION 31-5-1117(b), AND DOES NOT STATE FACTS SUFFICIENT TO ALLEGE A VIOLATION OF SAID STATUTE."

We agree and will reverse.

A decision in this case rests upon our answering the question which asks whether the offense described in § 31-5-1117(b) is "necessarily included" (see n. 1) in the offense described in § 31-5-1117(a). If it is, then it is a lesser offense for which the defendant could be found guilty even though the information only charged him with violating § 31-5-1117(a). If it is not necessarily included, then it is error to instruct and submit for jury consideration the putative lesser-included offense.

In State v. Selig, Wyo., 635 P.2d 786, 789-790 (1981) we addressed the question having to do with when an alleged lesser offense is "necessarily included" in an offense charged within the meaning of Rule 32(c), W.R.Cr.P. In Selig we quoted with approval United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir.1980), cert. denied 446 U.S. 967, 100 S.Ct. 2947, 64 L.Ed.2d 827 (1980), where that court said:

"This Court has held that a defendant is...