Gabbert v. State, 05-34.
| Decision Date | 31 August 2006 |
| Docket Number | No. 05-34.,05-34. |
| Citation | 2006 WY 108,141 P.3d 690 |
| Parties | Doyle Eugene GABBERT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Senior Assistant Appellate Counsel. Argument by Ms. Kerin.
Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehurek Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.
Before VOIGT, C.J., and GOLDEN, HILL,* KITE, BURKE, JJ.
[¶ 1] Doyle Gabbert was convicted following a jury trial of one count of aggravated robbery, two counts of aggravated assault, four counts of kidnapping, one count of conspiracy to deliver a controlled substance, one count of delivery of a controlled substance and one count of using a firearm during the commission of felonies (kidnapping). On appeal, Gabbert asks this Court to review whether the district court committed reversible error in instructing the jury on the kidnapping charges and admitting testimony concerning his arrest, whether sufficient evidence was presented to support his convictions on two counts of kidnapping, and whether he was deprived of a fair trial because of prosecutorial misconduct. We reverse the kidnapping convictions because of erroneous jury instructions. Finding no other error, we affirm the convictions on all remaining counts.
[¶ 2] Gabbert offers the following issues for our review:
I. Did fundamental error occur in instructing the jury?
II. Was there insufficient evidence to convict [Gabbert] of two counts of kidnapping (as to the two children)?
III. Did prosecutorial misconduct occur during [Gabbert's] trial, warranting reversal?
IV. Did the trial court err in admitting irrelevant testimony regarding the arrest of [Gabbert]?
V. Did cumulative error occur, warranting reversal?
[¶ 3] On November 9, 2003, Gabbert fronted fifteen grams of methamphetamine to Michael Hershberger (Hershberger) and Serenity Thomas (Thomas), two of the victims in this case. The two had agreed to leave Douglas, Wyoming, to sell the drugs for Gabbert and pay him $1,500.00 from the proceeds. Instead of selling the drugs as agreed, Hershberger and Thomas used some of the methamphetamine and gave some away, returning to Douglas with only a few grams. Anticipating they would incur Gabbert's wrath for using the drugs, they told Gabbert upon their return on November 10 that they were pulled over by police and had thrown the drugs out the car window. Gabbert initially accepted their story, although he expressed concern about the lost proceeds.
[¶ 4] The next day, November 11, Hershberger sold some of the remaining methamphetamine to a friend he had in common with Gabbert. Later that night, Gabbert went to the apartment shared by Hershberger, Thomas and Thomas' two young daughters,1 ages 2 and 7, demanding money or the return of the drugs. Gabbert pointed a gun at Hershberger's head, then to Thomas' head, and told them he was going to kill them and Thomas' daughters if he did not get his $1,500.00 or his drugs. Gabbert then took approximately $200.00 from Hershberger's wallet, which was all the money they possessed. Not satisfied with the amount recovered, Gabbert again threatened to kill them and the girls if he did not get the rest of his money.
[¶ 5] Around 3:00 a.m., Hershberger called his grandmother and asked for money.2 She declined to give him any money. A few minutes later, Gabbert and Hershberger left the apartment. As they were walking through the apartment complex, Hershberger saw an opportunity to escape and took off running. He eventually hid in a house a short distance from the apartment complex where he remained until police arrived in the morning.
[¶ 6] Gabbert angrily returned to the apartment.3 Gabbert informed Thomas that Hershberger ran away and that it was now on her shoulders to get him his money. Gabbert demanded his money and threatened to kill her and her daughters if she tried to get away or failed to come up with the money. After a period of time, Gabbert directed Thomas to use a nearby pay phone to call someone who could give her the money to pay him, and forced her to leave the children with him until she returned. He again told her that if she did not come up with the money, he would kill her and the girls.
[¶ 7] Thomas left the apartment and called her mother, who lived in Newcastle, Wyoming, and told her what was happening. They agreed that Thomas would call back in an hour to find out if her mother could get the money. Gabbert later refused to let Thomas leave the apartment to make the follow-up call. Thomas' mother ultimately contacted the police in Newcastle and reported what her daughter had told her.
[¶ 8] When the girls woke up in the morning, Thomas informed Gabbert that she and the girls had to go to court. Gabbert agreed Thomas and her oldest daughter could leave the apartment for that purpose, but they had to return. Everett VanMeter, Thomas' cousin's husband, unexpectedly arrived to give them a ride to court. Thomas and her two daughters eventually left the apartment with VanMeter and were contacted by law enforcement officers at the scene. Police later arrested Gabbert inside the apartment and recovered a loaded 9mm handgun that had been hidden inside a heating vent. The handgun matched the description given by Thomas and Hershberger of the gun Gabbert used to threaten them and Thomas' children.
[¶ 9] The State charged Gabbert with one count of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(i) (LexisNexis 2005), one count of aggravated robbery in violation of Wyo. Stat. Ann. § 6-2-401(a)(ii) and (c)(ii) (LexisNexis 2005), two counts of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2005), four counts of kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii) and (d) (LexisNexis 2005), two counts of delivery of a controlled substance (methamphetamine) in violation of Wyo. Stat. Ann. § 35-7-1031(a)(i) (LexisNexis 2005), one count of conspiracy to deliver a controlled substance (methamphetamine) in violation of Wyo. Stat. Ann. § 35-7-1042 (LexisNexis 2005), and one count of using a firearm during the commission of felonies in violation of Wyo. Stat. Ann. § 6-8-101 (LexisNexis 2005). After a four-day trial, a jury acquitted Gabbert on the sexual assault charge and one of the delivery charges but found him guilty on the other charges. The district court sentenced Gabbert to prison terms of fifteen to twenty years on the aggravated robbery, kidnapping and conspiracy convictions and five to ten years on the aggravated assault convictions, to run concurrently, and fifteen to twenty years for the delivery conviction, to run consecutively to the other sentences.4 This appeal followed.
[¶ 10] Gabbert first contends the jury instructions pertaining to the kidnapping charges were fatally defective because they did not correctly state the law. Specifically, Gabbert complains that the instructions did not properly set forth the elements of kidnapping because they referenced the crime of "larceny" instead of "felony larceny" and did not define the crime of felony larceny. He claims that the alleged erroneous instructions, when viewed as a whole, misled the jury as to the circumstances under which he could have been convicted on the four counts of kidnapping.
[¶ 11] Gabbert did not object to the challenged instructions at trial and therefore, our only avenue of review is under the doctrine of plain error,5 which demands: (1) the record be clear as to the incident alleged as error; (2) Gabbert demonstrate the existence of a clear and unequivocal rule of law which was violated in clear and obvious, not merely arguable, way; and (3) Gabbert prove the error adversely affected a substantial right resulting in material prejudice to him. Sanchez v. State, 2006 WY 12, ¶ 19, 126 P.3d 897, 904 (Wyo.2006); Reilly v. State, 2002 WY 156, ¶ 15, 55 P.3d 1259, 1264-65 (Wyo.2002). The plain error criteria apply even when constitutional error is alleged, and unless each criterion is satisfied, a claim for review under the plain-error doctrine will fail. Miller v. State, 904 P.2d 344, 348 (Wyo. 1995). The failure to properly instruct on an element of a crime can constitute plain error. Reilly, ¶ 16, 55 P.3d at 1265. In Reilly, we reiterated:
Jury instructions are designed to inform the jury about the applicable law so that the jury may apply that law to its own findings with respect to the material facts. Given this purpose, the test whether the jury has been instructed on the necessary elements of the crime charged is whether the instruction leaves no doubt as to under what circumstances the crime can be found to have been committed. A failure to give any instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, requiring reversal of the defendant's conviction.
Reilly, ¶ 16, 55 P.3d at 1265 (quoting Miller, 904 P.2d at 348) (emphasis in original) (quotation marks and internal citations omitted). We analyze jury instructions as a whole and do not single out individual instructions or parts thereof. Ogden v. State, 2001 WY 109, ¶ 8, 34 P.3d 271, 274 (Wyo.2001). We afford trial courts great latitude in instructing juries and will not find reversible error as long as the jury instructions correctly state the law, and the instructions as a whole sufficiently cover the issues which were presented at the trial. Id.; Harris v. State, 933 P.2d 1114, 1126 (Wyo.1997).
[¶ 12] In this case, the district court instructed the jury in pertinent part as follows on the elements of kidnapping:6
The elements of the crime of Kidnapping,...
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