Hankinson v. State, 01-124.

Citation47 P.3d 623,2002 WY 86
Decision Date06 June 2002
Docket NumberNo. 01-124.,01-124.
PartiesAnthony Dustin HANKINSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

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

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling and Robin Sessions Cooley, Senior Assistant Attorneys General, Representing Appellee.

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

HILL, Justice.

[¶ 1] Appellant, Anthony Hankinson (Hankinson), was convicted of conspiracy1 to commit aggravated assault and battery.2 He submits this appeal contending that there is not sufficient evidence to sustain the conviction. We will affirm.

ISSUE

[¶ 2] The only issue presented for our review is whether or not sufficient evidence is present to sustain Hankinson's conviction, although it is couched in terms of possible abuse of discretion by the district court in denying his motion for judgment of acquittal,3 which was made after all evidence had been received, including Hankinson's testimony.

FACTS

[¶ 3] Our recitation of the facts pertinent to the resolution of the issue raised in this appeal need only be very brief. Hankinson and Lester Poague got drunk on July 25, 2000. They decided to go to the business owned by Daryl Coast (Coast) and give him a beating, because of grievances against Coast, real or imagined, the details of which are not pertinent to this appeal and which Hankinson was unable to articulate in a manner that made much sense. After drinking most of the day, Hankinson and Poague went to Coast's place of business and broke in the door. Once inside, they looked for Coast because they wanted to "kick his ass." Because Coast was a much bigger man than Poague, Poague had armed himself with an axe handle from Hankinson's pickup truck. According to both Hankinson and Poague, Hankinson's main purpose in being there was to make sure his brother did not enter into the fight on Coast's side. Hankinson's brother was a good friend of Coast's. However, Coast was not at his business, so the two vandals scattered business papers and about two or three hundred pennies from a cash box onto the counter and the floor, poured fingernail polish on a credit card machine, and Hankinson defecated on the floor. As the two were leaving, Hankinson took a coffee can, which was used as an ashtray for the business (and the can apparently contained a few of the pennies which were strewn about the business), and threw it into the back of his pickup truck, along with the empty bottle of fingernail polish. Hankinson took those two items because he thought his fingerprints might be on them.

[¶ 4] Hankinson subsequently was charged with burglary4 with intent to commit aggravated assault and battery on the person of Coast, burglary with intent to commit larceny, based on the removal of the coffee can and some of the pennies, as well as the conspiracy charge described above. [¶ 5] The jury found Hankinson not guilty on the two burglary charges, but guilty of the conspiracy charge.

STANDARD OF REVIEW

[¶ 6] The benchmark for review of sufficiency of the evidence claims is whether the evidence, when viewed in the light most favorable to the State, is such as to permit a reasonable trier of fact to find guilt beyond a reasonable doubt. Statezny v. State, 2001 WY 22, ¶ 15, 18 P.3d 641, ¶ 15 (Wyo.2001). Moreover, we will not substitute our judgment for that of the jury. Rather, we determine whether a quorum of reasonable and rational individuals would, or even could, have found the essential elements of the crime were proven beyond a reasonable doubt. Saiz v. State, 2001 WY 76, ¶ 17, 30 P.3d 21, ¶ 17 (Wyo.2001).

DISCUSSION

[¶ 7] The central thrust of Hankinson's appeal is that he was too drunk to have formed the specific intent to conspire with Poague in the first place and, to the extent they discussed a "plan" to beat up Coast using the axe handle, it did not rise to the level of a conspiracy, as that word is viewed in the context of the criminal law. Conspiracy is defined as follows in Black's Law Dictionary 305 (7th ed.1999):

Conspiracy, n. An agreement by two or more persons to commit an unlawful act; a combination for an unlawful purpose. In criminal law, conspiracy is a separate offense from the crime that is the object of the conspiracy ....
....
"[Conspiracy is an] elastic, sprawling and pervasive offense, ... so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always `predominantly mental in composition' because it consists primarily of a meeting of minds and an intent." Krulewitch v. United States, 336 U.S. 440, 445-48, 69 S.Ct. 716, 719-20, 93 L.Ed. 790 (1949) (Jackson, J., concurring).

[¶ 8] In Jasch v. State, 563 P.2d 1327, 1332 (Wyo.1977), we defined a conspiracy as an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts are performed to further the unlawful design. Also see Phillips v. State, 835 P.2d 1062, 1067-68 (Wyo.1992)

. Conspiracy is a specific intent crime and is commonly defined as an agreement between two or more persons to commit an unlawful act. Under widely adopted statutory concepts, a conspiracy is completed when an agreement has been made and some overt act is performed in furtherance of the conspiracy. The agreement that must be shown to support a conviction of a conspiracy to commit a crime is not the same as the "meeting of the minds" demanded for a contract. A mere tacit understanding will suffice, and there need not be any written statement or even a speaking of words, which expressly communicates agreement. Wehr v. State, 841 P.2d 104, 109-10 (Wyo.1992); Rands v. State, 818 P.2d 44, 46 (Wyo.1991); Bigelow v. State, 768 P.2d 558, 562 (Wyo. 1989); also see Burk v. State, 848 P.2d 225, 234-35 (Wyo.1993). Wyoming has adopted the unilateral theory of conspiracy and, thus, a person who believes he is conspiring with another to commit a crime is a danger to the public regardless of whether the other person, in fact, has agreed to commit the crime. Miller v. State, 955 P.2d 892, 897-98 (Wyo. 1998). The jury was properly instructed with respect to conspiracy:

In determining whether a conspiracy existed, the jury should consider the acts and declarations of all the alleged participants. However, in determining whether a particular defendant was a member of the conspiracy, if any existed, the jury should consider only his acts and statements. He cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that he was one of its members.
While conspiring involves an agreement to violate the law, it is not necessary that the persons charged met together and entered into an express or formal agreement, or that they stated in words or writing what the scheme was or how it was to be effected. It is sufficient to show that they came to a mutual understanding to commit the crime.
If it is established beyond a reasonable doubt that a conspiracy existed and that the Defendant was one of its members, then the acts and declarations of any other member of such conspiracy in or out of such Defendant's presence, done in furtherance of the objects of the conspiracy, and during its existence, may be considered as evidence against such Defendant. When persons enter into an agreement to commit a crime, they become agents for one another.
When two individuals are associated throughout an entire criminal enterprise, it is not necessary to prove that each of them did that which was necessary to establish each element of an offense; it is sufficient to show that they were associated together in doing that which comprises each element of the offense.

[¶ 9] The trial court also properly instructed the jury on the law pertaining to the circumstances under which a person charged with a specific intent crime may defend on the basis of voluntary intoxication. Wyo. Stat. Ann. § 6-1-202 (LexisNexis 2001),5 W.P.J.I.Cr. 8.18 (1996); Brett v. State, 961 P.2d 385, 391-92 (Wyo.1998); and see Dice v. State, 825 P.2d 379, 382-83 (Wyo.1992)

; and R.W. Gascoyne, Annotation, Modern Status of the Rules as to Voluntary Intoxication as Defense to Criminal Charge, 8 A.L.R.3d 1236, esp. § 4 (1966 and Supp.2001). The instruction given was this:

Evidence has been introduced tending to show that the Defendant was suffering from self-induced intoxication.
Self-induced intoxication is a defense to the crimes charged if the Defendant was intoxicated to such a degree that he was unable to formulate the intention to commit the crimes, or to form an agreement to commit these crimes.
Intoxication is self-induced if it is caused by substances which the Defendant knows or ought to know have the tendency to cause intoxication and which he knowingly and voluntarily introduced into his body. The fact that the Defendant was dependent upon the intoxicating substance is not relevant in determining whether his intoxication was self-induced.
Accordingly, if you find that the Defendant, at the time of the crimes charged, was suffering from self-induced intoxication to such a degree that there is a reasonable doubt in your minds whether the Defendant possessed the mental ability to form the intention to commit the crimes charges, then you should find the Defendant not guilty.

[¶ 10] Whether or not Hankinson was so drunk that he could not form the requisite specific intent, and whether Hankinson actually engaged in a conspiracy to commit the crime of aggravated assault and battery on Coast, were questions for the jury. There was evidence that suggested that Hankinson was...

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