Ellison v. State

• Decision Date: 06 April 2000
• Docket Number: No. 98-89.,98-89.
• Citation: 3 P.3d 845
• Parties: Christopher ELLISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

3 P.3d 845

Christopher ELLISON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-89.

Supreme Court of Wyoming.

April 6, 2000.

Representing Appellant: Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Walter Eggers III, Assistant Public Defender.

Representing Appellee: William U. Hill, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Robin Sessions Cooley, Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Sheri K. Jones, Student Intern.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

In this appeal, the primary complaint of Christopher Ellison (Ellison) addresses an instruction to the jury that he asserts created a mandatory presumption. He was charged with making a terroristic threat in violation of Wyo. Stat. Ann. § 6-2-505 (Lexis 1999),² and the instruction dealt with the intent to cause serious public inconvenience articulated in the statute. Ellison also contends that MY, the female co-owner of the establishment against which the threat was made, should not have been permitted to testify about her purchase of a pistol after the threat was uttered. Our review of the record in light of the pertinent authorities persuades us that the instruction did not create a mandatory presumption, and no error can be found in the giving of the instruction. The admission of the testimony concerning the pistol was discretionary on the part of the trial court, and we fail to discern any abuse of the court's discretion. The Judgment and Sentence entered in the trial court is affirmed.

This statement of the issues is found in the Brief of Appellant, filed on behalf of Ellison:

I. Did the district court improperly relieve the State of its burden to prove each element of the charge when the court instructed the jury that the summoning of police and fire agencies was a "serious public inconvenience"?

II. Should [MY] have been allowed to testify she bought a gun after her argument with appellant?

In the Brief of Appellee, filed by the State of Wyoming, the issues are stated in this way:

I. Did the district court properly instruct the jury that in determining whether a "serious public inconvenience" had been proved, it should consider all the evidence of inconvenience, including inconvenience caused by summoning police and fire agencies?

II. Whether [MY]'s testimony that she purchased a pistol in response to appellant's threats, was relevant to elements of the crime of making terroristic threats.

On May 13, 1996, Ellison, accompanied by his two year old son and an adult companion, went into Frosty's Bar and Lounge in Casper. They seated themselves at a table near the bar. MY, a co-owner of the bar, promptly informed Ellison that he could not bring the child into the bar and he would have to leave. Ellison responded with anger and belligerence, and he threatened to kill MY and burn Frosty's down. Ellison then left Frosty's and obtained a gasoline can from his truck. He threw gasoline on the exterior wall of the bar, and quickly drove away.

A patron of the bar called 911 and reported the incident. The call produced a prompt response from both the police and fire departments. Investigators found a wet spot on the wall and sidewalk that smelled of gasoline. Samples were collected and sent to the State Crime Laboratory, which confirmed that the substance was gasoline. Ellison was arrested by Casper police officers, and on May 14, 1996, an information was filed in Natrona County Court in which he was charged with making a terroristic threat in violation of Wyo. Stat. Ann. § 6-2-505.

On June 6, 1996, after a preliminary examination, Ellison was bound over to the district court for trial. On August 24, 1996, Ellison entered a plea of not guilty at his arraignment, and a jury trial was held on October 21 and 22, 1996. At the trial, over a defense objection that such testimony was irrelevant, MY testified that, in response to Ellison's threats, she had purchased a pistol and had begun to practice firing it. After the evidence was completed, the jury was given Instruction No. 7, which reads:

YOU ARE INSTRUCTED that in determining if a "serious public inconvenience" has been proven in this case, you should consider all of the evidence including evidence of inconvenience to individuals within the building at the time of the alleged threat, as well as the inconvenience caused by the summoning of police or fire agencies.

No objection was made to the giving of Instruction No. 7 to the jury.

The jury returned a guilty verdict against Ellison. On January 6, 1997, he was sentenced to a term of not less than twelve months nor more than thirty months to be served in the Wyoming State Penitentiary. Ellison appeals from the Judgment and Sentence.

In his first claim of error, Ellison argues that Instruction No. 7 contained a mandatory presumption which relieved the State of its obligation of establishing every element of the offense beyond any reasonable doubt. Since Ellison made no objection at trial, W.R.Cr.P. 30, applied literally, would foreclose review. It provides:

No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury is instructed, stating distinctly the matter to which the party objects and the grounds of the objection.

Relief from the failure to object, however, may be found in W.R.Cr.P. 52(b), which says, "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." In the absence of objection at trial, we can consider this claim of error only under our test for plain error. Ortega v. State, 966 P.2d 961, 966 (Wyo.1998).

Our requirements for plain error first were identified in Hampton v. State, 558 P.2d 504, 507 (Wyo.1977). The plain error doctrine was applied with respect to a failure to object to a jury instruction in Sandy v. State, 870 P.2d 352, 358 (Wyo.1994):

Plain error exists when 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him. Porth v. State, 868 P.2d 236, 241 (Wyo. 1994).

It has been consistently applied by this Court with respect to claims of error arising out of jury instructions. Yetter v. State, 987 P.2d 666, 668 (Wyo.1999); Ortega, 966 P.2d at 966; Cook v. State, 929 P.2d 518, 521 (Wyo.1996); Hodges v. State, 904 P.2d 334, 341 (Wyo. 1995).

Ellison attacks Instruction No. 7 by asserting that it incorporated a mandatory presumption to the effect that the summoning of police and fire agencies constituted a serious public inconvenience, and he argues that the State was relieved of its burden of proving that element of the offense by the instruction. Relying upon Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985); Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979); Warren v. State, 835 P.2d 304 (Wyo.1992); and Krucheck v. State, 671 P.2d 1222 (Wyo.1983), Ellison contends that he was denied due process of law under Wyo. Const. art. 1, § 6 and the Fourteenth Amendment to the Constitution of the United States, and further that the requirements of W.R.E. 303 were not satisfied. Ellison omitted from his argument any reference to Harley v. State, 737 P.2d 750 (Wyo.1987).

In Harley, 737 P.2d at 754, we stated:

The concept established in Sandstrom v. Montana, supra, which is explained in Francis v. Franklin, supra, is not novel or unique in Wyoming jurisprudence. In Krucheck v. State Wyo., 671 P.2d 1222 (1983), aff'd. on appeal after remand 702 P.2d 1267 (1985), Sandstrom v. Montana, supra, was relied upon in part by this court in reversing a criminal conviction because the trial judge gave a mandatory inference instruction. In addition to holding that the mandatory inference violated due process, we also pointed out that the court had failed to comply with Rule 303(c), W.R.E.

In Krucheck, considering substantially the same arguments, the court said, in part reiterating principles from an earlier case:

Clearly the Wyoming Rules of Evidence were violated, as was the Fourteenth Amendment. When a jury is authorized to make use of presumptions, it must be informed that it may refuse to use them. As this court has previously said:

" * * * The use of the presumption assists the prosecutor in not having to produce evidence of intention, at least until the presumption is rebutted. But it clearly denies the jury of the opportunity to make up its own minds on the question of intention because there is no probative evidence introduced from which it can base its own finding. In this respect, the presumption instruction is diametrically opposite that of the use of deductions and inferences which the jury may logically and properly draw from facts and circumstances introduced which point toward intention. [Citations.]" Stuebgen v. State, Wyo., 548 P.2d 870, 884-885 (1976).

Krucheck, 671 P.2d at 1225.

In Harley, 737 P.2d at 754, this Court undertook a comprehensive analysis of the invocation of presumptions in criminal cases. We opened that discussion by saying:

Evidentiary presumptions are unconstitutional if they "have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin, supra, 105 S.Ct. at 1970; Sandstrom v. Montana, supra; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Brooks v. State, Wyo., 706 P.2d 664 (1985); Krucheck v. State, supra. Conversely, permissive inferences meet constitutional mandates so long as the connection between the inferred fact and the proven fact is one that reason and common sense justify in the light of the facts in a

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