Bush v. State

Decision Date22 December 1995
Docket NumberNo. 94-43,94-43
Citation908 P.2d 963
PartiesDavid Labon BUSH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Leonard D. Munker, State Public Defender; Gerald M. Gallivan, Director, Defender Aid Program; and Jeffrey M. Hindoien, Student Intern., for Appellant.

Joseph B. Meyer, Attorney General; Sylvia L. Hackl, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Assistant Attorney General, for Appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

TAYLOR, Justice.

Appellant appeals his convictions for burglary and accessory after the fact to escape. Appellant argues the jury instructions were defective and there was insufficient evidence to support the burglary conviction.

We affirm in part and reverse in part.

I. ISSUES

Appellant presents the following issues:

I. Whether the trial court's instructions to the jury regarding Count II of the Information, felony accessory after the fact, were fundamentally defective due to their omission of an essential element of the crime charged?

II. Assuming the felony accessory after the fact instructions adequately articulated the essential elements of the crime charged, whether the instructions were fundamentally defective due to their confusing and misleading nature?

III. Whether sufficient evidence of the "assistance" rendered by appellant to Paul Ring existed to support his conviction for burglary under Count I of the Information?

IV. Whether, under the State's alternative theory, sufficient evidence of appellant's specific intent to commit larceny existed to support his conviction for burglary under Count I of the Information?

Appellee restates the issues:

ISSUE I:

Did the jury instructions correctly and clearly set forth the necessary elements of felony accessory after the fact to escape?

ISSUE II:

Was there sufficient evidence to convict appellant of the crime of burglary?

II. FACTS

On August 12, 1990, Glendol Bush (Glendol) and Paul Ring (Ring) escaped from the Wyoming Honor Conservation Camp in Newcastle, Wyoming and made their way to Casper, Wyoming. Upon arriving in Casper, Glendol telephoned his brother, appellant, David Bush (Bush). Glendol informed Bush that he and Ring had "walked away" from the detention facility and needed a place to rest and attend to an injury Glendol had sustained.

Bush, although he had no authority to do so, took Glendol and Ring to the apartment of an acquaintance, Tina Schantz (Schantz), who was on vacation. Bush told Glendol he could take food from the apartment. Shortly thereafter, Bush departed, admonishing Glendol to lock the door when he and Ring left.

Glendol was ultimately captured and testified against his brother at trial. On September 15, 1993, a jury convicted Bush of burglary in violation of Wyo.Stat. § 6-3-301(a) (1988); felony accessory after the fact to

escape in violation of Wyo.Stat. §§ 6-5-202(a) and (b)(i) and 6-5-206(a)(ii) (1988); misdemeanor accessory after the fact to escape in violation of Wyo.Stat. §§ 6-5-202(a) and (b)(ii)(A) and 6-5-206(a)(ii) (1988); and receiving and concealing stolen goods in violation of Wyo.Stat. § 6-3-403(a)(iii) (1988). In this appeal, Bush challenges the felony accessory conviction and the burglary conviction.

III. DISCUSSION
JURY INSTRUCTIONS

Bush argues that the jury instructions regarding the felony charge of accessory after the fact to escape were defective. He first contends that Jury Instruction No. 15 did not inform the jury that a defendant must have knowledge that he is aiding a felon before he can be convicted of felony accessory after the fact. In the alternative, he argues that the jury instructions as a whole were fundamentally defective due to their confusing and misleading nature.

No objections were lodged against the jury instructions at trial. Therefore, we must review the jury instructions under a plain error analysis. Vigil v. State, 859 P.2d 659, 662 (Wyo.1993). Plain error is established when the record clearly and obviously demonstrates the transgression of an unequivocal rule of law. Id. (quoting Russell v. State, 851 P.2d 1274, 1278 (Wyo.1993)). The transgression must adversely affect a substantial right enjoyed by the defendant. Vigil, 859 P.2d at 662.

Bush was charged as an accessory after the fact under Wyo.Stat. § 6-5-202(a) and (b)(i), which provides, in pertinent part:

(a) A person is an accessory after the fact if, with intent to hinder, delay or prevent the * * * apprehension * * * of another for the commission of a crime, he renders assistance to the person.

(b) An accessory after the fact commits:

(i) A felony * * * if the crime is a felony and the person acting as an accessory is not a relative of the person committing the crime[.]

Jury Instruction No. 14 provided, in pertinent part:

A person is an accessory after the fact if, with intent to hinder, delay or prevent the discovery, detection, apprehension, prosecution, detention, conviction or punishment of another for the commission of a crime, he renders assistance to the person.

An accessory after the fact commits a felony if the crime was a felony and the person acting as an accessory is not a relative of the person committing the crime.

Jury Instruction No. 15 provided, in pertinent part:

YOU ARE INSTRUCTED that the necessary elements of the crime of accessory after the fact to the escape of Paul Ring are:

1. The crime occurred within the County of Natrona on or about the 10th day through the 19th day of August, 1990; and,

2. A felony, namely, Escape from Official Detention was committed by someone other than the Defendant, namely, Paul Ring; and,

3. The defendant did render assistance to the person committing the felony; and,

4. The defendant did intend to hinder, delay or prevent the discovery, detection, apprehension, prosecution, detention, conviction or punishment of the person committing the felony; and,

5. Defendant is not a relative to the person committing the felony.

Bush argues that knowledge, by the defendant, that the principal committed a felony is an essential element of the crime of felony accessory after the fact. He maintains that the omission of that element renders Jury Instruction No. 15 defective. Bush also contends that the jury instructions were fundamentally flawed due to their confusing and misleading nature. Bush argues that the jury instructions were confusing because the instructions did not require proof that he knew Ring's escape was a felony when he rendered assistance. We disagree.

Bush improperly relies on the common law rule. At common law, the defendant had to have knowledge of the underlying felony Wyo.Stat. § 6-5-202(a) abrogated the common law crime of accessory. Under Wyo.Stat. § 6-5-202(a), knowledge of the underlying felony is not required. The statute requires proof, inter alia, that the defendant, with the intent to prevent the apprehension of another for the commission of a crime, rendered assistance to that person. A defendant cannot intend to prevent the apprehension of another, for the commission of a crime, unless the defendant knows a crime has been committed. Knowledge that a crime has been committed is inherent in the intent element of the crime of accessory after the fact. However, one can know a crime has been committed and not know whether that crime was a felony or a misdemeanor.

committed by the principal before the defendant could be convicted as an accessory. State v. Gardner, 112 N.M. 280, 814 P.2d 458, 461 (N.M.App.), cert. denied, 112 N.M. 235, 814 P.2d 103 (1991); 1 Charles E. Torcia, Wharton's Criminal Law § 33 (15th ed. 1993). This rule is inapplicable because common law crimes and the elements of those crimes have been abolished in Wyoming. Wyo.Stat. § 6-1-102 (1988).

Thus, the classification of the crime of accessory after the fact as either a felony or a misdemeanor is dependent on the identity of the participants and the category of the offense committed by the criminal. See Wyo.Stat. § 6-5-202(b)(i) and (ii). In other words, "[t]he statutory classification of the crime committed by the principal [felony or misdemeanor] is only relevant in determining the degree of the accessory charge * * *." People v. Young, 192 Colo. 65, 555 P.2d 1160, 1162 (1976).

Bush violated Wyo.Stat. § 6-5-202(a) when he assisted Ring, with the intention of preventing Ring's apprehension. Since Ring was a non-relative who had committed a felony, the accessory charge was classified as a felony. Wyo.Stat. § 6-5-202(b)(i). We hold that knowledge of whether the underlying crime is a felony is not an element of the crime of felony accessory after the fact. People v. Barreras, 44 Colo.App. 402, 618 P.2d 704, 706 (1980), aff'd., 636 P.2d 686 (Colo.1981) (interpreting a similar statute).

The proper rule of law was applied by the district court when it instructed the jury. We find no reversible error.

BURGLARY CONVICTION

Bush argues that there is insufficient evidence to prove that he entered Schantz's apartment with the intent to commit a larceny. In reviewing the sufficiency of the evidence in a criminal case, we must determine whether a rational jury could have found, beyond a reasonable doubt, that the prosecution proved the essential elements of the crime. Porth v. State, 868 P.2d 236, 243 (Wyo.1994). The evidence will be viewed in the light most favorable to the state. Id. The verdict must " 'be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.' " Cloman v. State, 574 P.2d 410, 412 (Wyo.1978) (quoting Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957), overruled on other grounds sub nom. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)).

Burglary is a specific intent crime and requires proof of an unauthorized entry into a building with...

To continue reading

Request your trial
31 cases
  • Yellowbear v. State
    • United States
    • Wyoming Supreme Court
    • 14 Enero 2008
    .... . . (Emphasis added.) We have recognized this principle many times. See Mares v. State, 939 P.2d 724, 727 (Wyo.1997); Bush v. State, 908 P.2d 963, 965-66 (Wyo.1995); and Keser v. State, 706 P.2d 263, 269 (Wyo.1985). Consequently, the important question is not what may have constituted a c......
  • Anderson v. State
    • United States
    • Wyoming Supreme Court
    • 11 Junio 2014
    ...or attempted transfer from one person to another of a controlled substance” implicated the “principles espoused in Bush v. State, 908 P.2d 963 (Wyo.1995) and its progeny [including Tanner ].” We explained that, unlike the alternative elements instructions in Tanner and Bush, the challenged ......
  • Brown v. State
    • United States
    • Wyoming Supreme Court
    • 19 Agosto 2014
    ...argued that the instruction defining “deliver” presented an alternative instruction, analogous to “the principles espoused in Bush v. State, 908 P.2d 963 (Wyo.1995)” and its progeny, including Tanner.Id. at ¶ 24, 127 P.3d at 799. We rejected Miller's argument, finding that the instruction o......
  • Hulsy v. State
    • United States
    • Wyoming Supreme Court
    • 19 Junio 2009
    ...to equate this situation with what occurred in Tanner v. State, 2002 WY 170, ¶¶ 10-15, 57 P.3d 1242, 1245-46 (Wyo. 2002); Bush v. State, 908 P.2d 963, 966-68 (Wyo.1995); and Fife v. State, 676 P.2d 565, 568-69 (Wyo.1984). Each of those cases involved a crime containing alternative elements.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT