Bowlsby v. State

• Citation: 302 P.3d 913
• Decision Date: 12 June 2013
• Docket Number: No. S–12–0078.,S–12–0078.
• Parties: Daniel Ray BOWLSBY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

302 P.3d 913

Daniel Ray BOWLSBY, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0078.

Supreme Court of Wyoming.

June 12, 2013.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Joshua Eames, Student Intern. Argument by Mr. Eames.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Pursuant to a plea agreement, Daniel Ray Bowlsby pled guilty to one count of sexual abuse of a minor in the first degree and one count of incest. Both charges were based on the same incident involving his stepdaughter. In accordance with the plea agreement, the State dismissed seven additional charges pending against Mr. Bowlsby. On appeal, Mr. Bowlsby contends that incest is a lesser included offense of sexual abuse of a minor in the first degree, and, under principles of double jeopardy, claims that it was improper to convict him of both crimes. He asserts that his conviction and sentence for the crime of incest should be vacated. We conclude that the crime of incest is a lesser included offense of the crime of first degree sexual abuse of a minor as charged in this case. Accordingly, we will reverse Mr. Bowlsby's conviction and sentence for the crime of incest and remand for further proceedings.

ISSUE

[¶ 2] The dispositive issue presented by Mr. Bowlsby is whether his constitutional right not to be placed in double jeopardy was violated when, based on the same act with the same victim, he was convicted of both incest and sexual abuse of a minor in the first degree.

FACTS

[¶ 3] Mr. Bowlsby was charged with nine crimes relating to alleged sexual contacts with his two stepdaughters. Prior to trial, Mr. Bowlsby and the State entered into a plea agreement. Mr. Bowlsby agreed to plead guilty to one count of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6–2–314(a)(ii) (LexisNexis 2007), and one count of incest in violation of Wyo. Stat. Ann. § 6–4–402(a)(iii). The prosecution agreed to dismiss the remaining charges. The State also agreed that it would recommend that the sentences on the two counts be concurrent, and that the sentence would not exceed forty years. When he entered his guilty pleas, Mr. Bowlsby admitted that he had engaged in sexual intercourse with his seventeen-year-old stepdaughter. The prosecution made it clear that both charges stemmed from this single event, and were “based on the same factual basis.”

[¶ 4] The district court accepted the guilty pleas and dismissed the other counts. Mr. Bowlsby was sentenced to a term of thirty-five to forty years imprisonment on the count of sexual abuse of a minor in the first degree, and to a term of thirteen to fifteen years on the count of incest, with the two terms to be served concurrently. Mr. Bowlsby subsequently filed a timely appeal.

DISCUSSION

[¶ 5] As a preliminary matter, we note that Mr. Bowlsby entered unconditional guilty pleas to both charges. A guilty plea waives all non-jurisdictional defenses. Sword v. State, 746 P.2d 423, 425 (Wyo.1987). Jurisdictional defenses are not waived, however, and we have previously recognized that double jeopardy is a jurisdictional defense. Davila v. State, 831 P.2d 204, 205–06 (Wyo.1992).¹ Mr. Bowlsby's guilty plea did not waive his double jeopardy claim, and does not preclude our review. See Haynes v. State, 2012 WY 151, ¶ 12, 288 P.3d 1225, 1228 (Wyo.2012); Thomas v. Kerby, 44 F.3d 884, 888 (10th Cir.1995).

[¶ 6] We also note that Mr. Bowlsby failed to present his double jeopardy claim to the district court. We will therefore review for plain error.

“Even when constitutional error is alleged, each criterion must be satisfied or a claim for review under the plain-error doctrine will fail.” Miller v. State, 904 P.2d 344, 348 (Wyo.1995). To establish plain error, the appellant must prove (1) the record clearly reflects the alleged error; (2) the existence of a clear and unequivocal rule of law; (3) a clear and obvious transgression of that rule of law; and (4) the error adversely affected a substantial right resulting in material prejudice to him. Sanchez v. State, 2006 WY 12, ¶ 19, 126 P.3d 897, 904 (Wyo.2006).

Snow v. State, 2009 WY 117, ¶ 13, 216 P.3d 505, 509 (Wyo.2009).

[¶ 7] In this case, the record clearly reflects the alleged error. There is also no dispute that an improper conviction and sentence satisfies the prejudice prong of the plain error test.² We must determine if there has been a violation of a clear and unequivocal rule of law.

[¶ 8] The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The parallel provision of the Wyoming Constitution, Article 1, Section 11, provides that no person shall “be twice put in jeopardy for the same offense.” We have held that the state and federal provisions are equivalent. James v. State, 2012 WY 35, ¶ 9, 271 P.3d 1016, 1018 (Wyo.2012); Daniel v. State, 2008 WY 87, ¶ 8, 189 P.3d 859, 862 (Wyo.2008). “We have repeatedly stated that the double jeopardy clause provides three protections: ‘[I]t prohibits a second prosecution for the same offense after an acquittal; a second prosecution for the same offense after a conviction; and multiple punishments for the same offense.’ ” Owen v. State, 902 P.2d 190, 192 (Wyo.1995), quoting Rivera v. State, 840 P.2d 933, 942 (Wyo.1992). Because the double jeopardy clause prohibits multiple punishments for the same offense, a person may not be punished for both a greater offense and a lesser included offense based on the same incident. Daniel, ¶ 8, 189 P.3d at 862, citing Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984) and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).

[¶ 9] The parties agree that, to determine whether incest is a lesser included offense of sexual abuse of a minor in the first degree, the test to be applied is set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932): “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” We adopted this test years ago, State v. Keffer, 860 P.2d 1118, 1131 (Wyo.1993), and have relied upon it many times since, most recently in Silva v. State, 2012 WY 37, ¶ 24 n. 4, 271 P.3d 443, 451 n. 4 (Wyo.2012). Stating the test another way, a crime is a lesser included offense “if its elements are a subset” of the elements of the greater offense. Heywood v. State, 2007 WY 149, ¶ 10, 170 P.3d 1227, 1230 (Wyo.2007); Dean v. State, 2003 WY 128, ¶ 14, 77 P.3d 692, 697 (Wyo.2003). According to the State, “The same-elements test ... is the ‘clear and unequivocal rule of law’ that Bowlsby must show was transgressed if he is to establish plain error.” We agree with that proposition.³

[¶ 10] The elements of a crime—the facts requiring proof under the Blockburger test—are derived from the statute defining that crime. Mr. Bowlsby was convicted of incest in violation of Wyo. Stat. Ann. § 6–4–402, which provides as follows:

(a) A person is guilty of incest if he knowingly commits sexual intrusion, as defined by W.S. 6–2–301(a)(vii), or sexual contact, as defined by W.S. 6–2–301(a)(vi), with an ancestor or descendant or a brother or sister of the whole or half blood. The relationships referred to herein include relationships of:

...

(iii) Stepparent and stepchild.

(Emphasis added.) Mr. Bowlsby was also convicted of sexual abuse of a minor in the first degree in violation of Wyo. Stat. Ann. § 6–2–314(a)(ii), which provides as follows:

(a) An actor commits the crime of sexual abuse of a minor in the first degree if: ...

(ii) Being eighteen (18) years of age or older, the actor inflicts sexual intrusion on a victim who is less than eighteen (18) years of age, and the actor is the victim's legal guardian or an individual specified in W.S. 6–4–402.

(Emphasis added.) The statute referred to in Wyo. Stat. Ann. § 6–2–314(a)(ii) is the same incest statute that Mr. Bowlsby was convicted of violating.

[¶ 11] The specific issue we must address is whether “knowledge of the family relationship” is an element of both of the crimes set forth above. Mr. Bowlsby contends that incest is a lesser included offense of the crime of first degree sexual abuse of a minor under Wyo. Stat. Ann. § 6–2–314(a)(ii). He claims that the crime of first degree sexual abuse of a minor contains all of the elements that are necessary to the crime of incest, including the defendant's knowledge of the familial relationship between the defendant and the victim. Relying solely on 21 Am.Jur.2d Criminal Law § 117 (2013), which provides that “Mens rea is generally an essential element of any criminal offense, and exceptions to this rule normally occur only where the legislature clearly determines otherwise,” he asserts that knowledge of the familial relationship “is required under both statutes by the general requirement of scienter ... implicit in all criminal laws under the concept of mens rea unless clearly excluded by the legislature.” ⁴ (Emphasis in original.)

[¶ 12] The State agrees that knowledge of the familial relationship is an element of incest, citing several authorities for the proposition that “the courts of numerous other states with similar incest statutes have recognized that knowledge of the familial relationship is an essential element of the crime of incest.” It contends, however, that knowledge of the family relationship is not an element of the...