Blakeman v. State

• Decision Date: 15 November 2004
• Docket Number: No. 03-89.,03-89.
• Citation: 2004 WY 139,100 P.3d 1229
• Parties: Brandon Dean BLAKEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

100 P.3d 1229

2004 WY 139

Brandon Dean BLAKEMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-89.

Supreme Court of Wyoming.

November 15, 2004.

Representing Appellant: Ken Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel. Argument by Mr. Roden.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, PAP; and Sarah A. Rodrigues, Student Intern. Argument by Ms. Rodrigues.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Brandon Blakeman appeals from the sentence imposed by the district court after a jury found him guilty of soliciting or knowingly encouraging a person under the age of sixteen to engage in illicit sexual penetration or sexual intrusion. He claims his conviction should be reversed because there was not sufficient evidence presented at the trial to support the jury's verdict, the jury was incorrectly instructed on the definition of "solicit," the statute he was convicted under was unconstitutional, and he received ineffective assistance of counsel. We find no error warranting reversal in this case and, consequently, affirm Mr. Blakeman's conviction.

ISSUES

[¶ 2] Mr. Blakeman articulates several issues on appeal:

ISSUE I

I. Whether there was insufficient evidence to convict appellant due to the fact that the state did not prove every essential element of the crime for which appellant was charged.

II. Whether the trial court committed fundamental error by failing to adequately instruct the jury on the legal definition of an essential element of the crime for which appellant was charged violating appellant's due process rights to a fair trial.

III. Whether Wyoming Statute § 14-3-104 violates due process guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 6, of the Wyoming Constitution because the statute is vague and generally fails to provide fair notice to citizens of their potential liability. The statute is also vague as applied in Mr. Blakeman's case.

IV. Whether appellant received effective assistance of trial counsel.

[¶ 3] The State phrases the issues as follows:

I. Was the evidence sufficient to permit the jury to find appellant guilty of the crime of soliciting or encouraging a child under 16 to engage in illicit sexual penetration or intrusion?

II. Did the district court commit fundamental error in instructing the jury on the definition of "solicit[?"]

III. Is Wyoming Statute § 14-3-104 violative of due process because it is unduly vague or fails to provide fair notice of the prohibited conduct?

IV. Was appellant denied effective assistance of trial counsel?

FACTS

[¶ 4] In the summer of 2002, David Johnson lived in Gillette with his wife, their four-year old son, and his two stepdaughters — twelve-year old EG and thirteen-year old AG. Mr. Johnson became acquainted with Mr. Blakeman in July 2002, when they worked together on a drilling rig. Mr. Blakeman frequented the Johnson home, occasionally asking Mr. Johnson to transport him to various locations in Gillette in Mr. Johnson's vehicle. After working two weeks on the drilling rig, Mr. Blakeman was laid off. He subsequently secured employment at a restaurant. AG agreed to baby-sit Mr. Blakeman's infant son while he worked at the restaurant.

[¶ 5] On July 27, 2002, Mr. Blakeman was at the Johnson home on and off throughout the day. At one point Mr. Blakeman asked Mr. Johnson for a ride to a friend's home. Mr. Johnson said that he could not give Mr. Blakeman a ride at that time because he needed to find AG and her twelve-year old friend LN, who were out "running around with their friends." Mr. Johnson told Mr. Blakeman that he could use AG's bicycle for transportation.

[¶ 6] Later that evening, Mr. Blakeman called the Johnson home and spoke with twelve-year old EG. During their conversation, Mr. Blakeman told EG that he was trying to contact AG. He then questioned EG about AG's sexual history. Mr. Blakeman asked EG if she thought AG would have sex with him in exchange for money and what EG thought AG would do if he showed her his genitals. Mr. Blakeman then requested that EG tell AG to meet him at the restaurant where he worked so he could give AG the money he owed her for babysitting. AG and LN returned to the Johnson home a short time later, and EG relayed Mr. Blakeman's message to AG. AG and LN started to walk toward the restaurant, but about halfway there they encountered Mr. Blakeman, who suggested that they "go somewhere where the cops can't see us." They decided to go behind a nearby grocery store.

[¶ 7] Mr. Blakeman and the two girls sat down behind the store and talked. The conversation turned to sexual matters, and Mr. Blakeman asked them if they knew what a penis looked like. The girls did not answer his question, and he continued by saying, "So you wouldn't know what it would look like if I shoved it in your face?" AG then stated, "We're 12 or 13 years old. We don't need this." Despite AG's protestations, Mr. Blakeman continued with this line of inquiry. He asked the girls if they would ever consider having sex with a guy like him. LN responded, "No, because you're too old."

[¶ 8] LN mentioned to AG that her back hurt, and Mr. Blakeman offered to give her a back rub. LN lay down on the ground, and Mr. Blakeman rubbed her back. During the backrub, which lasted approximately thirty minutes, Mr. Blakeman pushed up LN's shirt and attempted to unhook her bra. He continued to ask the girls whether they would consider engaging in various sexual activities with him. Finally, AG said, "You're freaking me out. Come on [LN]. Let's go." Mr. Blakeman stated that LN "wants to stay here with me." Initially LN said that she would leave with AG, so AG moved to a bench in front of the grocery store to wait for LN. When LN did not join her, AG went home and told Mr. Johnson about the incident. He searched the area and discovered Mr. Blakeman and LN lying together behind the grocery store. Mr. Johnson confronted Mr. Blakeman and told him to stay away from his home and his family.

[¶ 9] A few days later, Mr. Johnson saw Mr. Blakeman near his home and again confronted him. Someone reported the altercation to the police. Mr. Johnson explained to the officer that he was upset with Mr. Blakeman over his conduct on the night of July 27. The State investigated the incident and charged Mr. Blakeman with one count of soliciting or knowingly encouraging a person under the age of sixteen (LN) to engage in illicit sexual penetration or sexual intrusion, in violation of Wyo. Stat. Ann. § 14-3-104 (LexisNexis 2003).

[¶ 10] After a two-day trial, the jury returned a verdict finding Mr. Blakeman guilty of soliciting a child under the age of sixteen to engage in illicit sexual intrusion and, in the alternative, finding him guilty of knowingly encouraging a child under the age of sixteen to engage in illicit sexual intrusion. The district court entered a judgment on the jury verdict and sentenced Mr. Blakeman to serve a sentence of two to five years incarceration. Mr. Blakeman filed a timely notice of appeal.

DISCUSSION

1. Sufficiency of the Evidence

[¶ 11] Mr. Blakeman tenders a three-fold challenge to the sufficiency of the trial evidence. He maintains that the State did not prove beyond a reasonable doubt that: (1) he knew LN was under the age of sixteen; (2) he knowingly encouraged LN to engage in sexual intrusion; or (3) he solicited LN to engage in sexual intrusion. In reviewing a claim that the trial evidence was insufficient to support a jury verdict, we apply the following standard of review:

[W]e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). "We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did." Id.

Williams v. State, 986 P.2d 855, 857 (Wyo.1999) (some citations omitted). See also, Simmons v. State, 2003 WY 84, ¶ 28, 72 P.3d 803, ¶ 28 (Wyo.2003).

[¶ 12] Mr. Blakeman was convicted of violating § 14-3-104. That statute states, in pertinent part:

[A]nyone who solicits ... or knowingly encourages anyone under the age of sixteen (16) years to engage in illicit sexual penetration or sexual intrusion as defined in W.S. 6-2-301 is guilty of a felony, and upon conviction shall be imprisoned for a term not more than five (5) years.

The district court instructed the jury as follows:

The elements of the crime of soliciting or encouraging a child to engage in illicit sexual intrusion, as charged in this case are:

1. On or about the 28th day of July, 2002;

2. In Campbell County, Wyoming;

3. The defendant, Brandon Dean Blakeman;

4. Knowing [LN] to be under the age of sixteen years;

5.

a. Solicited or

b. knowingly encouraged

6. [LN], a child under the age of sixteen years, to engage in illicit sexual intrusion.

If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

[¶ 13] Mr. Blakeman claims that there was insufficient evidence for...