Daves v. State

• Decision Date: 14 March 2011
• Docket Number: No. S–10–0135.,S–10–0135.
• Citation: 249 P.3d 250,2011 WY 47
• Parties: Donald Ray DAVES, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

249 P.3d 250

2011 WY 47

Donald Ray DAVES, Appellant (Defendant),

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

No. S–10–0135.

Supreme Court of Wyoming.

March 14, 2011.

Representing Appellant: Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin Daraie, Assistant Attorney General. Argument by Mr. Daraie.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.KITE, Chief Justice.

[¶ 1] Donald Ray Daves was convicted after a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter referred to as “the victim”). On appeal, he challenges the district court's response to a jury question requesting a definition of “used a firearm” and claims he was denied his constitutional right to be present when the court provided supplemental instructions to the jury. He also argues that the evidence was insufficient to convict him on four counts of first degree sexual assault because the State did not prove that he gained the victim's submission by threatening her, her boyfriend and himself. We affirm.

[¶ 2] Mr. Daves has failed to establish the district court committed plain error when it defined “used a firearm” for the jury. We further conclude that, although the district court erred by failing to provide the supplemental instructions to the jury in open court while the defendant was present, the error was not prejudicial. Finally, the record contains sufficient evidence to support the first degree sexual assault convictions because the State demonstrated Mr. Daves threatened the victim and himself with serious bodily injury or death in order to obtain her submission to the sexual assaults.

ISSUES

[¶ 3] Mr. Daves presents the following issues on appeal:

I. Did the trial court misinstruct the jury on the definition of “use of a firearm”?

II. Was Mr. Daves denied his right to be present during supplemental jury instruction?

III. Was there sufficient evidence to support all the prosecution theories?

The State provides a more detailed statement of the issues:

I. Did the district court's instruction defining what it means to have “used” a firearm while committing a felony violate clearly established Wyoming law, and was it a valid and reasonable interpretation of Wyo. Stat. Ann. § 6–8–101(a)?

II. Did the district court commit reversible error by conferring with counsel and responding to questions presented by the jury during deliberations?

III. Was the evidence sufficient to support appellant's convictions for first degree sexual assault in violation of Wyo. Stat. Ann. § 6–2–302(a)(ii)?

FACTS

[¶ 4] On April 4, 2009, Mr. Daves and the victim were in the process of getting a divorce. Mr. Daves told the victim that he was going to return some of her jewelry, so she agreed to meet with him. He picked her up at her residence in Laramie because it was storming and the road conditions were poor. They went to a coffee shop, and he returned some of her jewelry. He told her that the rest of her jewelry was buried with his dead parakeet near an access area on the Laramie River. She agreed to accompany him to the access area to retrieve the jewelry.

[¶ 5] While they were at the access area, Mr. Daves pulled a gun and forced her to perform oral sex on him. He then decided that he would take her to a motel. They went to two different motels because the first one did not have any available rooms. At both places, he hid the gun in his clothing and took the victim into the motel office with him. He told her to “act normal,” while they were in the motel offices so that people would not get suspicious. Once they were in the motel room, he put the gun next to him on the bed. He forced her to remove her clothes and have sexual intercourse with him. During that encounter, he put the gun on the table.

[¶ 6] After the second sexual assault, he again aimed the gun at her. He also told her that “somebody was going to die that night.” Mr. Daves sexually assaulted the victim two more times. During the course of the night, he alternately pointed the gun at her and himself, threatening to commit suicide in her presence. He also threatened to kill the victim's boyfriend. At some point he put the gun in its case, but then directed her to get it out of the case and kill him with it. He finally dropped her off at her residence the next morning, after she promised to meet him later at a park. He stated, “Do not deceive me. Do not make me use this gun.”

[¶ 7] As soon as she arrived home, the victim told her parents about the assaults and they summoned the police. When the officers attempted to contact Mr. Daves at the camper trailer where he was residing, he took off in his vehicle. After leading the officers on a chase over the icy back roads outside of Laramie, he eventually surrendered.

[¶ 8] The State charged Mr. Daves with one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(iii) (LexisNexis 2009), one count of possession of a deadly weapon with unlawful intent in violation of Wyo. Stat. Ann. § 6–8–103 (LexisNexis 2009), four counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6–2–302(a)(ii) (LexisNexis 2009), five counts of use of a firearm while committing a felony in violation of Wyo. Stat. Ann. § 6–8–101(a) (LexisNexis 2009), and one count of kidnapping in violation of Wyo. Stat. Ann. § 6–2–201(a)(ii) (LexisNexis 2009). After a jury trial, he was convicted on all twelve charges. The district court sentenced him to serve a lengthy term of incarceration. Mr. Daves appealed.

DISCUSSION

A. Definition of “Used a Firearm.”

[¶ 9] Mr. Daves was charged with five counts of use of a firearm while committing a felony, in violation of § 6–8–101(a):

(a) A person who uses a firearm while committing a felony shall be imprisoned for not more than ten (10) years in addition to the punishment for the felony. For a second or subsequent conviction under this section a person shall be imprisoned for not more than twenty (20) years in addition to the punishment for the felony.

Count IV was one of the charges under this statutory section. Instruction No. 13 informed the jury:

For Count IV, the elements of the crime of Use of Firearm While Committing a Felony, as charged in this case are:

1. On or about the 4th or 5th day of April 2009;

2. In Albany County, Wyoming;

3. The Defendant, DONALD RAY DAVES;

4. Used a Firearm;

5. While committing the felony of Sexual Assault in the First Degree....

[¶ 10] During deliberations, the jury sent the following question to the district court judge: “[W]e have a definition of ‘threatened to use a firearm [.]’ ¹ [W]e would like the definition of ‘[u]sed a firearm’ as referred to in instruction # 13 on [Count] 4.” The district court judge called in counsel, without the defendant, and told them about the jury's question and the research his assistant had done on the definition of “use of a firearm.” The research had uncovered an ALR article on the definition of “use” of a firearm under 18 U.S.C. § 924(c)(1), which criminalized carrying or using a firearm while committing a violent crime or drug trafficking. F. Dougherty, What Constitutes “Use” of a Firearm for Purposes of 18 U.S.C.A., § 924(c)(1), Providing Penalty for Use of Firearm During Drug Trafficking Crime or Crime of Violence, 125 A.L.R. Fed. 545 (1995).

[¶ 11] At first, defense counsel stated that he did not believe the jury needed to be instructed on the definition because “this is not technical legal language.” He stated that he thought they should be instructed to “use their common understanding of the word.” The district court judge decided to instruct the jury in writing, as follows:

LADIES AND GE[N]TLEMEN:

As a general proposition, a firearm is “used” if [it] is available to facilitate the underlying offense, and it is not required that the weapon be actually brandished or fired. One method in which a firearm may be used is to protect the underlying criminal enterprise. Further, a firearm can be used as a device to embolden or lend courage to the actor, or as a device to intimidate the alleged victim.

The written instruction was consistent with the ALR article, and defense counsel did not object.

[¶ 12] On appeal, Mr. Daves maintains that the district court erred by instructing the jury in accordance with the ALR article because a later United States Supreme Court decision, Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), superseded by statute, rejected parts of the definition set out in the article. ² Because defense counsel did not object to the instruction, we apply our plain error standard of review. “In order to demonstrate plain error, he ‘must show a clear and unequivocal rule of law was violated, the violation clearly appears in the record, and it denied him a substantial right to his material prejudice.’ ” Dougherty v. State, 2010 WY 127, ¶ 24, 239 P.3d 1176, 1183 (Wyo.2010), quoting Creecy v. State, 2009 WY 89, ¶ 17, 210 P.3d 1089, 1093 (Wyo.2009). In addition, we always apply the following standards to claims of errors in jury instructions:

When reviewing questions involving jury instructions, we afford the trial court significant deference. Jury “[i]nstructions must be considered as a whole, and individual instructions, or parts of them, should not be singled out and considered in isolation.” We confine our review to a “search for prejudicial error.” “[A]s long as the instructions correctly state the law and the entire charge covers the relevant issue, reversible error will not be found.”Id. (citations omitted).

[¶ 13] The alleged error is clearly shown in the record as the transcript includes a reading of the jury question and the supplemental instruction by ...