Compton v. State, 95-57

Decision Date07 January 1997
Docket NumberNo. 95-57,95-57
Citation931 P.2d 936
PartiesRaymond A. COMPTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Michael N. "Nick" Deegan, Gillette, for appellant.

William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Sr. Assistant Attorney General, for appellee.

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

GOLDEN, Justice.

Appellant Raymond A. Compton appeals his conviction for attempted first-degree sexual assault following a jury trial on grounds the jury was improperly instructed and he contends his trial counsel provided him with ineffective assistance of counsel by failing to object to the jury instructions given.

We affirm.

ISSUES

Compton identifies the following issues:

1. Whether or not the trial court committed plain error in failing to instruct the jury on the law of attempt, the elements of the crime attempted and the elements of attempt as charged.

2. Whether or not the trial court committed plain error in failing to instruct the jury on "specific intent".

3. Whether or not the trial court committed plain error in failing to define "substantial step" for the jury.

4. Whether or not the trial court committed plain error in instructing the jury that it could find the defendant guilty if the presumption of innocence was "overcome by the evidence" rather than instructing the jury that "proof beyond a reasonable doubt" on each element was required to overcome the presumption.

5. Whether or not the trial court committed plain error in failing to instruct the jury on attempted sexual assault in the fourth degree as a lesser included offense of attempted sexual assault in the first degree.

6. Whether or not defense counsel rendered ineffective assistance of counsel in failing to object to the instructional errors and omissions recited in # 1 through # 5 above.

The State rephrases the issues as:

I. Whether the district court properly instructed the jury with respect to the charge of attempted first degree sexual assault?

II. Whether the district court properly instructed the jury on the state's burden of proof and the standard of proof applicable to criminal cases?

III. Whether the district court's failure to sua sponte offer a lesser included offense instruction on attempted fourth degree sexual assault amounted to plain error?

IV. Whether appellant's trial counsel was ineffective in failing to object to the instructional errors and omissions alleged in appellant's first five enumerated appellate arguments?

FACTS

Around 3:00 a.m., Saturday, March 19, 1994, the victim was awakened by a partially undressed assailant attempting to penetrate her with his partially erect penis. Unsuccessful, the intruder left the house. The victim recognized him as Compton and reported the attack to sheriff's deputies, who arrested Compton at his house. Compton was overheard telling his girlfriend that the arrest concerned the "[the victim's last name] lady" and, as he was transported to jail, he volunteered that the victim was "coming on to him." Compton stood trial for burglary and attempted first degree sexual assault. His defense was consent, contending that the victim had invited him to her home and initiated the sexual activity. The district court rejected the proposed jury instructions submitted by the State and Compton and proposed its own jury instructions. The defense did not object to the court's jury instructions. A jury acquitted him on the burglary charge but convicted him of attempted first degree sexual assault. This appeal followed.

DISCUSSION
Standard of Review

No objections were lodged against the jury instructions at trial and plain error analysis applies. Miller v. State, 904 P.2d 344, 347 (Wyo.1995). To demonstrate plain error, Compton must show that the record clearly shows an error that transgressed a clear and unequivocal rule of law which adversely affected a substantial right. Id. at 348.

Jury Instructions on the Crime of Attempt

The jury convicted Compton of one count of attempted first degree sexual assault. The crime of first degree sexual assault is defined in the statute as:

(a) Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if:

* * *

(iii) The victim is physically helpless, and the actor knows or reasonably should know that the victim is physically helpless and that the victim has not consented....

WYO.STAT. § 6-2-302(a)(iii) (1988).

The crime of attempt is described in the statutes as:

(a) A person is guilty of an attempt to commit a crime if:

(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime....

WYO.STAT. § 6-1-301(a)(i) (1988).

The jury instructions given by the court on the charge of attempted first degree sexual assault in this case were:

Instruction No. 5

The necessary elements of the crime of attempted sexual assault in the first degree are:

1. The acts occurred within the County of Crook in the State of Wyoming on or about March 19, 1994; and

2. Raymond Compton attempted to inflict sexual intrusion on [the victim]; and

3. With the intent to commit sexual intrusion on [the victim], Raymond Compton, did an act which was a substantial step towards the infliction of sexual intrusion on her; and

4. At the time [the victim] was physically helpless and Raymond Compton knew, or should reasonably have known, that she was physically helpless and had not consented....

* * * *

Instruction No. 6

"Sexual penetration" means sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.

Instruction No. 7

"Physically helpless" means unconscious, asleep or otherwise physically unable to communicate unwillingness to act.

Instruction No. 8

The defendant contends that [the victim] consented to sexual contact. The defense of consent involves two separate elements:

1. [The victim] voluntarily consented to sexual contact by word or conduct; and

2. [The victim] had the present ability to consent or the defendant could not reasonably have known that she lacked the present ability to consent.

The State must prove beyond a reasonable doubt that [the victim] did not consent to intercourse with the defendant.

Compton contends that it was error to combine the elements of the first degree sexual assault and attempt into one jury instruction instead of separately setting out the elements of the two crimes in two different instructions and he contends that it was error for part three of Instruction No. 5 to state "with the intent to inflict sexual intrusion," claiming it should have stated "with the specific intent to commit first degree sexual assault."

Jury instructions should inform the jury about the applicable law so that the jury may apply that law to its own findings with respect to the material facts. Miller, 904 P.2d at 348. Jury instructions are to be written with the particular facts and theories of each case in mind and may differ from case to case since any one of several instructions may be legally correct. Id. A failure to give any instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, requiring reversal of the defendant's conviction. Id. The test whether the jury has been instructed on the necessary elements of the crime charged is whether the instruction leaves no doubt as to under what circumstances the crime can be found to have been committed. Id.

In this case, Instruction No. 5 was based upon evidence that Compton partially undressed, climbed into bed with a sleeping victim, and attempted to force penetration. The essential elements of first degree sexual assault for these facts are an intent to inflict sexual intrusion with a physically helpless victim. Instruction No. 5 stated those elements. Wyoming does not require particular words be used to properly instruct on the specific intent element of the crime of attempt. The crime of attempt consists of:

(1) an intent to do an act or to bring about certain consequences which would in law amount to a crime; and

(2) an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation.... The primary purpose in punishing attempts is not to deter the commission of completed crimes, but rather to subject to corrective action those individuals who have sufficiently manifested their dangerousness.

People v. Frysig, 628 P.2d 1004, 1007 (Colo.1981) (citing W. La Fave and A. Scott, Jr., Handbook on Criminal Law, § 59 at 423 (1972)). The Colorado Supreme Court recognized that when the court stated that an "intent to commit the underlying offense is an essential element of criminal attempt," it used that language as convenient shorthand for "the intent to perform acts which, if completed, would constitute the underlying offense." Id. at 1007 n. 4. Noting that "it is the intent to do certain proscribed acts or to bring about a certain proscribed result, rather than an intent to engage in criminality, which is required," the court explained this intent is required because it is this purpose to cause harmful consequences by performing those acts necessary to accomplish a completed crime which forms an important part of the rationale for making attempt criminally punishable. Id. at 1007-08.

The facts and the charges of this case did not require the court to identify this intent as "specific" or restate the name of the crime, but required the court to adequately instruct the jury that it should determine whether Compton was guilty of attempt because his purpose was to cause harmful consequences. The instruction adequately accomplished this requirement. Frysig, 628 P.2d at 1008; see Dorador v. State, 573 P.2d 839, 843 (Wyo.1978...

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