Dean v. State

Decision Date10 October 2003
Docket NumberNo. 02-176.,02-176.
Citation77 P.3d 692,2003 WY 128
PartiesDale William DEAN, Sr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Kenneth M. Koski, Public Defender; Donna D. Domonkos; Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Assistant Attorney General.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] Appellant was convicted of one count of kidnapping, one count of first-degree sexual assault, and two counts of third-degree sexual assault. This appeal raises issues of the failure to give lesser-included offense instructions, sufficiency of the evidence, and speedy trial. Finding no error, we affirm.

ISSUES

1. Did the trial court err in refusing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping?

2. Did the trial court err in refusing to instruct the jury that sexual battery is a lesser-included offense of both first-degree and third-degree sexual assault?

3. Was the evidence sufficient to convict appellant of each charge?

4. Was appellant denied his right to a speedy trial pursuant to W.R.Cr.P. 48 when the trial was not held within 120 days after the date of arraignment?

FACTS

[¶ 2] On July 21, 2001, Dale W. Dean, Sr. (appellant) abducted M.R. (the victim) at gunpoint as she walked along a street in Gillette. Appellant placed the victim in handcuffs and forced her, face down, into his van. Thereafter and throughout the ordeal, the victim was in fear for her life.

[¶ 3] Appellant drove west out of Campbell County into Johnson County on Interstate 90. At one point, in an attempt to determine where she was being taken, the victim told appellant she needed to go to the bathroom. Appellant pulled off to the side of the highway and removed the handcuffs from the victim. He got out of the van with her, tucking the gun into the back of his pants. He stood near the van watching her, and then ordered her into the front seat. Appellant placed the gun by the driver's seat, placed the handcuffs on the gearshift, locked the doors, and started driving again.

[¶ 4] About twelve or thirteen miles outside of Buffalo, in Johnson County, appellant pulled into a truck pull-out area. Hoping to get help from someone in the parking area, the victim asked to go for a walk. Appellant let her out of the van, but followed her as she walked, again with the gun tucked into the back of his pants. They both then returned to the van. The victim asked if she could go to the bathroom again. Appellant let her out, but again watched her from outside the van, with the gun in his waistband. As the victim returned to the passenger seat, appellant got into the van's middle seat and ordered the victim to join him. When she did not comply, he threatened to use the gun and handcuffs. In fear for her life, the victim then complied.

[¶ 5] While appellant and the victim sat in the middle seat, some cars drove past the parking area. Each time a car went by, appellant picked up the gun, which "made a clicking noise." Appellant then ordered the victim to get in the back seat. She obeyed and he followed, taking the gun with him. He took off his shirt and ordered the victim to do the same. When she did not comply, he took her shirt off. He told her she had "nice breasts" and said, "God, I want to fuck you." He touched and put his mouth on her breasts. He removed her shorts and underpants, made her lie down on the back seat, and then performed oral sex on her and put his fingers inside her vagina. He then pulled his pants down and told her to "jack him off." Appellant had the victim sit up and he placed her hand on his penis. When he could not reach a climax, he forced her to perform oral sex on him. Still unable to obtain a climax, he pulled a bottle of lubricant from a bag and had the victim masturbate him until he climaxed. He used his tee-shirt to clean himself off and gave the tee-shirt to the victim to do the same.

[¶ 6] Appellant pulled up his pants and returned to the driver's seat, taking the gun with him. The victim remained in the back seat, where she put her clothes back on. She then got into the front seat at appellant's command. Appellant then indicated that he wanted to get something for breakfast, started the van, and headed into Buffalo.

[¶ 7] In another attempt to get help, the victim once again asked to be allowed to go to the bathroom. Appellant pulled up to a convenience store, but he followed her inside, taking the gun with him, so she could not ask for help. She used the restroom and returned to the van with appellant. They drove to another convenience store, where appellant parked the van so he could see the victim while he went inside and talked to the cashier. The victim did not run because appellant was watching her and she was afraid he would kill her. [¶ 8] After appellant returned to the van, they next drove to a restaurant. Appellant allowed the victim to go in first and, while he was still outside, she immediately approached a waitress and asked her to call the police because appellant had taken her from Gillette. Appellant and the victim were sitting at a table when the police arrived. As the officers approached the table, the victim quickly arose and grabbed one officer's arm, telling him appellant had taken her from Gillette. One officer then spoke with the victim while another spoke with appellant. Appellant admitted having sex with the victim, but claimed it was consensual.

[¶ 9] The victim was very upset while she spoke with the officer. She told the officer she had been handcuffed, and he noticed a red mark on one of her wrists. After obtaining consent from appellant to search the van, the officers found a silver pellet pistol that looked like a Colt .45 under the driver's seat and handcuffs on the gearshift. Appellant was arrested.

[¶ 10] A criminal information was filed on July 23, 2001, charging appellant with kidnapping, first-degree sexual assault, and two counts of third-degree sexual assault. Appellant waived his right to a preliminary hearing on August 3, 2001, and he was bound over to district court for trial. On August 21, 2001, he filed a demand for speedy trial. He was arraigned on September 11, 2001, at which time the district court entered appellant's not guilty pleas and set the matter for trial on February 19, 2002. The trial was held as scheduled. The jury returned verdicts of guilty on all four counts.

DISCUSSION

Did the trial court err in refusing to instruct the jury that false imprisonment is a lesser-included offense of kidnapping?

[¶ 11] Appellant asked the trial court to instruct the jury that false imprisonment is a lesser-included offense of kidnapping. The rule concerning the giving of a lesser-included offense instruction was developed at common law to assist the prosecution where it was unable to prove some element of the charged crime, but the defendant also has a right to the benefits of the rule because it allows the jury an option between the drastic alternatives of conviction of the greater offense and acquittal. Keller v. State, 771 P.2d 379, 383 (Wyo.1989); State v. Selig, 635 P.2d 786, 790 (Wyo.1981). Where a lesser-included offense instruction has been proffered and an objection has been lodged to its rejection, the refusal to give the instruction is subject to de novo review in this Court. Houghton v. State, 6 P.3d 643, 646 (Wyo.2000) (citing Paramo v. State, 896 P.2d 1342, 1344 (Wyo.1995)). The failure to give a lesser-included offense instruction when such is appropriate is reversible error. Houghton, 6 P.3d at 646.

[¶ 12] W.R.Cr.P. 31(c) provides that a "defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense." A lesser-included offense has been described as one that is necessarily established by proof of the greater offense, or, stated differently, it is such that the greater offense cannot be committed without also committing the lesser offense. Evanson v. State, 546 P.2d 412, 416 (Wyo.1976), rev'd on other grounds by Brown v. State, 590 P.2d 1312 (Wyo.1979). Alternatively, a lesser-included offense has been characterized as occurring when all of the elements within the claimed lesser offense are found in the greater offense. Balsley v. State, 668 P.2d 1324, 1328 (Wyo.1983). The question of the existence of a lesser-included offense is a question of law subject to de novo review in this Court. Sindelar v. State, 932 P.2d 730, 732 (Wyo.1997).

[¶ 13] We have said that a lesser-included offense instruction should be given where the following criteria have been met:

"With specific regard for lesser-included offense instructions, we recently held that a trial court must first determine if all the elements of the lesser offense are included within the greater. If that is the case and there is some evidence that would rationally permit the jury to find the accused guilty of the lesser and not the greater offense, the instruction should be given. Sanders v. State, 7 P.3d 891, 894 (Wyo.2000).... The test is more fully expressed in this five-step analytic process: (1) a proper request for the instruction is made; (2) the elements of the lesser-included offense are identical to part of the elements of the greater offense; (3) there is some evidence that would justify conviction of the lesser-included offense; (4) the proof on the element or elements differentiating the two crimes is sufficiently in dispute that the jury may consistently find the defendant innocent of the greater and guilty of the lesser-included offense; and (5) mutuality exists such that the
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