Dean v. State

• Decision Date: 09 December 2014
• Docket Number: No. S–14–0094.,S–14–0094.
• Citation: 339 P.3d 509,2014 WY 158
• Parties: Trent Breon DEAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

339 P.3d 509

2014 WY 158

Trent Breon DEAN, Appellant (Defendant)

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

No. S–14–0094.

Supreme Court of Wyoming.

Dec. 9, 2014.

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, A. Walker Steinhage, Student Director, Kelly Owen, Student Intern, Prosecution Assistance Program. Argument by Ms. Owen.

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

Opinion

KITE, Justice.

[¶ 1] A jury found Trent Breon Dean guilty of felony stalking, for stalking his victim in violation of a protection order. He appeals his conviction and sentence, claiming the district court improperly instructed the jury concerning the elements of the crime of stalking and the State did not present sufficient evidence to establish that he acted with the requisite intent. We affirm.

ISSUES

[¶ 2] The issues for our determination are:

1. Whether sufficient evidence was presented to establish that Mr. Dean intended to harass the victim.

2. Whether the jury was properly instructed concerning the elements of the crime of stalking.

FACTS

[¶ 3] The Laramie County Attorney's Office charged Mr. Dean by information on August 8, 2012, with stalking his estranged wife in violation of a protection order issued July 27, 2012, pursuant to Wyo. Stat. Ann. §§ 7–3–508 and 7–3–509 (LexisNexis 2013). The affidavit of probable cause attached to the information stated that Mr. and Mrs. Dean were married but separated pending resolution of divorce proceedings filed by Mrs. Dean. It further stated that Mr. Dean had been previously convicted and sentenced to prison for felony domestic violence against Mrs. Dean and she feared further violence as a result of having filed for divorce. The affidavit stated that in a conversation with Mr. Dean on July 26, 2012, Mrs. Dean told Mr. Dean that his behavior made her fearful and she felt like he was a “ticking time bomb.” After this conversation, Mr. Dean went to his wife's office and left a clock and two notes on her desk. Based on this event and Mr. Dean's past behavior, Mrs. Dean's supervisors called security and the building where she worked was locked down. During the lock down, Mr. Dean made repeated telephone calls to Mrs. Dean's office.

[¶ 4] Later, someone tried to break into Mrs. Dean's home and she called the police. The police found evidence that someone had tried to enter the home by removing a fan placed in an open window. Mrs. Dean subsequently applied for and, after a court hearing, obtained a protection order pursuant to §§ 7–3–508 and 7–3–509 prohibiting Mr. Dean from contacting her. The order was entered on July 27, 2012. Despite the protection order, Mr. Dean continued to call and send text messages to Mrs. Dean. On July 31, 2012, police arrested Mr. Dean for violating the protection order. He continued to make telephone calls to Mrs. Dean from the detention center where he was being held, making fifty-six calls in seven days.

[¶ 5] The statute Mr. Dean was charged with violating provides in relevant part as follows:

§ 6–2–506. Stalking; penalty.

(a) As used in this section:

(i) “Course of conduct” means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose;

(ii) “Harass” means to engage in a course of conduct, including but not limited to verbal threats, written threats, lewd or obscene statements or images, vandalism or nonconsensual physical contact, directed at a specific person or the family of a specific person, which the defendant knew or should have known would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed.

(b) Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following:

(i) Communicating, anonymously or otherwise, or causing a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses;

(ii) Following a person, other than within the residence of the defendant;

(iii) Placing a person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant; or

(iv) Otherwise engaging in a course of conduct that harasses another person.

....

(e) A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:

....

(iv) The defendant committed the offense of stalking in violation of a temporary or permanent order of protection issued pursuant to W.S. 7–3–508 or 7–3–509, or pursuant to a substantially similar law of another jurisdiction.

[¶ 6] At trial,¹ the instructions the district court gave the jury included the following:

Instruction No. 9

The elements of the crime of Stalking, as charged in this case are:

1. On or about the 30th day of July, 2012 through the 7th day of August, 2012,

2. In Laramie County, Wyoming

3. [Mr.] Dean

4. With the intent to harass [Mrs.] Dean

5. While engaged in a course of conduct reasonably likely to harass [Mrs.] Dean

6. [Mr. Dean] committed the acts set forth in paragraphs 4 and 5 in violation of a stalking protection order.

Instruction No. 10

As used in Instruction No. 9, “course of conduct” means a pattern of conduct consisting of a series of acts over any period of time which demonstrates a continuity of purpose.

Instruction No. 11

As used in Instruction No. 9, “harass” means to engage in a course of conduct, including but not limited to verbal threats, written threats, vandalism or nonconsensual physical contact, directed at a specific person or the family of a specific person, which the defendant knew or should have known would cause a reasonable person to suffer substantial emotional distress, and which does in fact seriously alarm the person toward whom it is directed.

Instruction No. 12

As used in Instruction No. 9, “order of protection” means a temporary or permanent order issued by a Court ordering a person to refrain from acts of stalking involving another person or persons.

[¶ 7] The jury found Mr. Dean guilty of felony stalking. The district court sentenced him to a term of incarceration of nine to ten years. Mr. Dean timely appealed his conviction and sentence.

DISCUSSION

1. Sufficiency of the Evidence

[¶ 8] We begin our discussion by considering the sufficiency of the evidence because a finding that the evidence was insufficient to support the conviction would require remand to the district court for entry of an acquittal. Mraz v. State, 2014 WY 73, ¶ 10, 326 P.3d 931, 934–35 (Wyo.2014), citing Ken v. State, 2011 WY 167, ¶ 17, 267 P.3d 567, 572 (Wyo.2011). Our review is governed by the following standards:

[W]e examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.

Mraz, citing Ken ¶ 19, 267 P.3d at 572.

[¶ 9] As set out in paragraph 5 above, in order to sustain a conviction for the crime of felony stalking under § 6–2–506 the State had to prove beyond a reasonable doubt that Mr. Dean, with the intent to harass Mrs. Dean, engaged in a course of conduct reasonably likely to harass her in violation of the protection order. Mr. Dean contends the State failed to prove beyond a reasonable doubt that he acted with the intent to harass. Rather, he argues, the evidence showed only that he acted with the intent to show his wife that he loved her and wanted to save his marriage. The State responds that sufficient circumstantial evidence was presented from which the jury could infer that Mr. Dean intended to harass Mrs. Dean within the meaning of the statute.

[¶ 10] Section 6–2–506(b) requires a specific intent to harass. Luplow v. State, 897 P.2d 463, 468 (Wyo.1995). That is, it requires proof that a defendant, with the intent to harass, engaged in a course of conduct reasonably likely to harass. Specific intent to cause the particular harm may be proven by reasonable inferences from the character of the conduct and surrounding circumstances. Leavitt v. State, 2011 WY 11, ¶ 10, 245 P.3d 831, 833 (Wyo.2011).

[¶ 11] Under § 6–2–506(e)(iv), the “course of conduct” necessary for a felony stalking conviction may encompass acts of harassment occurring prior to the issuance of an order proscribing contact with the victim. Walker v. State, 2013 WY 58, ¶ 24, 302 P.3d 182, 189 (Wyo.2013) (Walker II ). The evidence presented by the State, accepted as true for the purpose of determining its sufficiency, showed that in July of 2012, prior to issuance of the protective order, Mr. and Mrs. Dean were living apart and Mrs. Dean had filed for divorce. On July 20, 2012, Mrs. Dean allowed Mr. Dean to stay at her house so they could take the children to the Cheyenne Frontier Days parade the next day.

Mr. Dean had been drinking heavily and fell asleep in her bed. Because he was drunk, rolling around the bed and snoring, Mrs. Dean lay down on the couch in the front room. Mr. Dean woke up in the middle of the night and was angry with her for not being in bed with him. He accused her of being with another man in the front room and began looking under the couch and in the kitchen cabinets. Mrs....