Doud v. State, 92-107

• Decision Date: 22 January 1993
• Docket Number: No. 92-107,92-107
• Citation: 845 P.2d 402
• Parties: Troy DOUD, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 402

845 P.2d 402

Troy DOUD, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 92-107.

Supreme Court of Wyoming.

Jan. 22, 1993.

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Defender Aid Program, Mike Matthews, Student Intern for the Defender Aid Program, and Thomas A. Thompson, Student Director of the Defender Aid Program, for appellant.

Joseph B. Meyer, Atty. Gen., Sylvia Lee Hackl, Deputy Atty. Gen., Barbara L. Boyer, Sr. Asst. Atty. Gen., Michael Pauling, Sr. Asst. Atty. Gen., Theodore E. Lauer, Director of the Prosecution Assistance Program, and C. Allan Perkins, Student Intern for the Prosecution Assistance Program, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT and GOLDEN, JJ.

MACY, Chief Justice.

Appellant Troy Doud appeals from his convictions for kidnapping in violation of Wyo.Stat. § 6-2-201(a)(iii) (1988) and for battery in violation of Wyo.Stat. § 6-2-501(b) (1988).

We affirm.

Appellant presents the following issues for our consideration:

I. Whether there was insufficient evidence to support a finding that the Appellant unlawfully confined the victim within the appropriate meaning of Wyo.Stat. § 6-2-201(a)(iii)?

II. Whether there was insufficient evidence to support a finding of the Appellant[ ]'s intent to inflict injury or terrorize?

III. Even if the Court finds that Appellant could have been convicted under Wyo.Stat. § 6-2-201, whether the conviction must be remanded in light of the undisputed evidence showing the presence of the mitigating factors that would require a resentencing?

When reviewing the sufficiency of the evidence for a criminal conviction:

"[T]his court must determine whether, after viewing the evidence and appropriate inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proven beyond a reasonable doubt."

Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). After we have properly resolved conflicts in the evidence in favor of the prosecution, the record reveals:

Appellant and the victim were married for six years. During that time, they had a daughter. In March 1991, the victim sought a divorce and moved out of the marital home. Appellant retained primary custody of their daughter while the victim had custody of her on every other weekend. According to their custody arrangement, the victim was to keep her daughter over the weekend of April 13th and 14th. On Friday, April 12th, the victim called Appellant to tell him that the roads were closed due to a blizzard and that she would be unable to pick up their daughter. On Saturday, she attempted to contact Appellant twice but succeeded in reaching only his answering machine. The victim spent Saturday night with Roy Underwood, the man with whom she had recently become romantically involved. Finally, on Sunday morning, she successfully contacted Appellant. He told her to pick up their daughter because he wanted to leave for California on a business trip. After talking to Appellant, the victim borrowed a truck from Mr. Underwood's friend and went to pick up her daughter at Appellant's house.

Appellant was distraught because he suspected that the victim spent the night with Mr. Underwood. He positioned himself along the route between the Underwood house and his house to verify whether in fact the victim was coming from Mr. Underwood's house. When the victim drove past Appellant's position, he pulled out behind her and followed her to his house. As she pulled into his driveway, Appellant cut in front of her, forcing her to stop. Appellant got out of his vehicle and began verbally abusing the victim. A physical altercation ensued inside the victim's truck in which Appellant struck her with his fist. The victim attempted to get out on the passenger's side, but Appellant ran around and pushed her back into the truck. In the course of their struggle, Appellant dropped a 9 mm Beretta hand gun he had been carrying. When the victim saw the gun, she stopped fighting.

At this point, Appellant told the victim to drive, which she refused to do. Appellant got into the pickup on the driver's side, placed the gun on the dashboard, and started driving toward town. As they were driving, Appellant informed the victim for the first time that their daughter was not at his house but was at his parents' house. Appellant drove by his parents' house twice but never stopped to pick up their daughter. While he was driving, Appellant told the victim that, if he could not have her, nobody could and that she could either come back to him or die. The victim informed Appellant at one point that they needed to stop for gas. Appellant responded: " 'Well, I guess we'll just drive until we run out of gas, and then I'll kill you and I'll kill myself.' " Appellant's threats continued throughout the time he was driving.

Appellant eventually drove back to his house. Appellant's hired hand, Richard Errington, was in the yard when they arrived. The victim started screaming to Mr. Errington that she needed help and that Appellant had a gun. She ran toward Mr. Errington, but Appellant caught up with her and started dragging her toward the house. Mr. Errington told Appellant not to hurt her or he would be in trouble. Mr. Errington explained during the trial that he did not do anything more than verbally warn Appellant because he worked for Appellant and was reluctant to interfere. Once in the house, the victim succeeded in getting the gun away from Appellant, and she threw it out of the house and onto the deck. Appellant retrieved the gun and brought it inside.

Appellant's mood became increasingly unpredictable while he kept the victim in the house. At one point, he made the victim remove her clothes so that he could ascertain whether she had had sex with Mr. Underwood. Later, Appellant gave the gun to the victim and told her that the only way she could leave him would be if she were to shoot him. When she refused to shoot him, he took the gun from her, sat on her chest, held the cocked gun to her head, and asked "how it felt to be dead." The victim thought that she was going to die. Appellant then pointed the gun at himself and threatened to kill himself.

During the course of this ordeal, Kelly Wardell, the individual who was supposed to go to California with Appellant, stopped by to see if Appellant was still planning to make the trip. Appellant made the victim wait in the bathroom while he talked to Mr. Wardell. Rather than inviting Mr. Wardell inside the house to talk, Appellant told him through the bedroom window that he could not make the trip to California because he was having an argument with "his wife." The victim tried to escape through the bathroom window while Appellant was talking to Mr. Wardell; however, Appellant pulled her away before she could get through the window.

Appellant eventually started to calm down and laid the gun on the kitchen table. The victim saw this as an opportunity to escape. She picked up the gun and told Appellant that she was leaving. She was near the door when Appellant went after her, telling her that she was a "dead bitch." Appellant was trying to take the gun away from the victim when she shot him in the leg. The victim later told two police officers that she shot Appellant in the leg because she did not know how else to stop him. Appellant was charged with kidnapping in violation of § 6-2-201(a)(iii) and aggravated assault and battery in violation of Wyo.Stat. § 6-2-502(a)(iii) (1988). The jury was also instructed on the lesser offenses of felonious restraint and false imprisonment as well as reckless endangering and simple assault and battery. The jury found Appellant guilty of kidnapping and simple battery.

Appellant's first contention on appeal is that the evidence was insufficient to support a finding that he unlawfully confined the victim within the meaning of Wyo.Stat. § 6-2-201 (1988). Section 6-2-201(a) provides:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:

(i) Hold for ransom or reward, or as a shield or hostage;

(ii) Facilitate the commission of a felony; or

(iii) Inflict bodily injury on or to terrorize the victim or another.

Appellant begins his insufficiency-of-the-evidence claim by arguing that this Court should read additional language from the Model Penal Code into our kidnapping statute. To be guilty of kidnapping under the Model Penal Code, a defendant must "unlawfully confine[ ] another for a substantial period in a place of isolation." MODEL PENAL CODE § 212.1 (emphasis added). Our statute establishes no durational requirement for the period of confinement. ¹

Appellant contends that, if the Court were to adopt the additional language found in the Model Penal Code, § 6-2-201 could properly be applied only in instances of severe criminal conduct. When drafting the Model Penal Code, the authors' intent was to restrict the drastic sanctions for kidnapping to only those instances of misbehavior which warrant such punishment. Id. at 220. One of the ways the Model Penal Code distinguished between kidnapping and trivial restraints or restraints incidental to other crimes was by requiring the confinement to be for a substantial period of time. Id. at 229. Appellant points out that this Court has previously found the Model Penal Code's purpose to be persuasive when interpreting our kidnapping statute. Keene v. State, 812 P.2d 147, 150-51 (Wyo.1991). Thus, to be consistent with the Model Penal Code's purpose of punishing for only severe crimes, we should read the "substantial period" language into § 6-2-201. According to Appellant, our failure to read the additional language into the statute...