Jennings v. State

• Decision Date: 05 March 1991
• Docket Number: No. 90-58,90-58
• Citation: 806 P.2d 1299
• Parties: Tomi E. JENNINGS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1299

806 P.2d 1299

Tomi E. JENNINGS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-58.

Supreme Court of Wyoming.

March 5, 1991.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender; and Donald K. Slaughter, Legal Intern, for appellant.

Tomi E. Jennings, pro se.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Paul Rehurek, Sr. Asst. Attys. Gen., and Kaylin D. Kluge, Asst. Atty. Gen., for appellee.

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

THOMAS, Justice.

The most significant issue presented in this case is whether sufficient evidence was presented to the jury to sustain the conviction of Tomi E. Jennings (Jennings) on three charges of the commission of burglary in violation of § 6-3-301(a), W.S.1977 (June 1988 Repl.). ¹ More specifically, it is Jennings' contention that there was not adequate evidence to permit the jury to reasonably find that his actions demonstrated an "intent to commit larceny or a felony" as required by the statute, and he also challenges the sufficiency of the evidence to establish identity. Collateral issues are presented that relate to the propriety of receiving into evidence, in the state's case in chief, testimony concerning Jennings' actions following his arrest; the refusal by the trial court of a proffered jury instruction by Jennings; cumulative error; the absence of a complete record of the preliminary hearing; and the failure to include representatives of the black race in the jury venire. As a final matter, an issue is presented with respect to credit for presentence incarceration against Jennings' minimum and maximum sentence. We affirm the judgment and sentence of the trial court except for the failure to afford Jennings credit for presentence incarceration. We remand for entry of a judgment and sentence granting him 154 days credit against the minimum and maximum sentence for presentence incarceration.

In the Brief of Appellant, filed by counsel, the issues are stated as follows:

"1. Whether the evidence of Appellant's actions upon arrest was relevant.

"2. Whether the trial court properly refused Appellant's proposed jury instruction on the presumption of innocence.

"3. Whether there was sufficient evidence to support a conviction.

"4. Whether Appellant's convictions should be reversed pursuant to the doctrine of cumulative error.

"5. Whether Appellant should receive credit for time served to be applied to the maximum and minimum terms for all of his convictions."

The State of Wyoming accepts these issues as stated, but it does contend that the phrasing of the third issue by Jennings is unartful since it does not specify which of the three convictions he is challenging on the basis of insufficient evidence. The State also rephrases the issue relating to presentence incarceration in this way:

"Whether based on this record it is unclear if appellant should receive credit for presentence incarceration?"

In addition to the brief filed on his behalf by counsel, Jennings was given permission to file a brief pro se, and he raises the following issues in that brief:

"1. Was it wrong for the Laramie County Court not to have a full record of the appellant's preliminary hearing.

"2. Was it wrong for the trial court to have an all caucasian jury to select from, [when] dealing with a Negro defendant."

The State, in responding to the pro se brief, asserts this additional question:

"Whether this court should consider appellant's issues not supported by cogent argument or pertinent authority?"

On the evening of August 18, 1989, Jennings and his girl friend went out to a bar, and from there they went to a party at a private residence. They left that party in the early morning hours of August 19, 1989, intending to return to their home in the girl friend's car. Jennings was drunk and, during the journey, he and his girl friend argued. She stopped the vehicle and told Jennings that either he was getting out or she was. Jennings said he would not leave the car, and his girl friend took the keys and began walking down the road. She had not gone very far before she heard her car window shatter behind her, but she did not turn back. Instead, she walked on to a friend's house.

In the vicinity of the point where the girl friend abandoned her car, the victims, a husband and wife, were sleeping in their home. At about 4:00 a.m., the wife was awakened by some noises. The living room light, which had been off, came on. She got out of bed, walked into her kitchen, and saw a black man standing in the living room. He did not speak to her, and he simply walked out the front door.

The wife was able to ascertain, from bloodstains and other marks of entry, that the person she had seen had entered their home through the spare bedroom window and walked past the bedroom door of the room in which she and her husband were sleeping, through the kitchen, and then into the living room. The person had touched the telephone in the living room, but she verified that nothing was missing from the house.

Two vehicles, both belonging to the victims, were parked outside the house, a 1978 Ford Mustang and a 1987 Ford Tempo. A deputy sheriff, who was summoned to the scene, observed blood on the exterior and interior of both vehicles. A set of keys that belonged to a friend of the wife was missing from a box beneath the emergency brake of the Ford Tempo. Those keys later were recovered from the locker at the detention facility in which Jennings' property was kept and, after they had been identified by the wife, they were returned to her.

In the meantime, law enforcement officers had located the car that had been abandoned by Jennings' girl friend. They found identification belonging to her inside the car, and they called her on the telephone. The girl friend told the officers that Jennings had been with her and that she thought he might be hurt because she had heard her car window break. The officers conducted a search of the area, and they located a person who matched the description given them by both the girl friend and the wife. That person turned out to be Jennings, who was placed under arrest.

Because of his apparent injuries, the arresting officers proposed to take Jennings to the hospital so that his hand could be treated. One of those arresting officers testified at trial about Jennings' behavior following his arrest. This testimony was received, after objection by the defense, and the officer stated that Jennings became "violent and belligerent" and that he was swearing and kicking the cage when he was placed in the patrol car. The officer also testified that, when they transported Jennings to the hospital, he again became violent, kicking the officers, swearing, and yelling. The officers then decided that Jennings should be removed from the hospital because they felt he might pose a danger to the staff.

At the conclusion of the trial, the jury found Jennings guilty of burglarizing the victims' home and both of their cars. A guilty verdict was returned on each of the three counts of the information. Jennings was sentenced to not less than five nor more than ten years on each of the three counts of burglary, with the provision that those sentences be served concurrently. As of the time of the sentencing, Jennings had been in jail from August 19, 1989 through January 19, 1990, a total of 154 days.

Jennings' main claim in this appeal is that the evidence was not sufficient to support the several convictions for burglary. In Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989), another burglary case, we articulated the standard of review with respect to the sufficiency of the evidence to sustain a 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."

We apply that standard to the evidence in this case.

In contending that the evidence is not sufficient to sustain his convictions, Jennings principally focuses on the element of specific intent. A crime requiring specific intent differs from a crime involving only a general intent. With respect to a crime that requires only a general intent, it is sufficient to demonstrate that the defendant undertook the prohibited conduct voluntarily, and his purpose in pursuing that conduct is not an element of the crime. Crozier v. State, 723 P.2d 42 (Wyo.1986); Felske v. State, 706 P.2d 257 (Wyo.1985); Armijo v. State, 678 P.2d 864 (Wyo.1984). Conviction with respect to a crime involving an element of "specific intent," however, requires the state to prove that the defendant intended to commit some further act, or achieve some additional purpose, beyond the prohibited conduct itself. When specific intent is an element of the crime, it must be established, like every other element, beyond a reasonable doubt. Crozier; Dean v. State, 668 P.2d 639 (Wyo.1983). See Longfellow v. State, 803 P.2d 848 (Wyo.1990).

Both at common law and under the Wyoming statutory definition, burglary is a crime requiring specific intent. The specific intent encompassed in the Wyoming statute defining the crime of burglary is that the accused must have entered or remained within a structure, without authority, and "with the intent to commit a larceny or felony therein." Section 6-3-301(a), W.S.1977 (June 1988 Repl.). It is as essential for the state to prove the intent to steal or commit another felony beyond a reasonable doubt as it is to prove the breaking and entering itself. Mirich v. State, 593 P.2d 590 (Wyo.1979).

In arguing the insufficiency of the evidence, Jennings points to facts in the record that he contends serve to demonstrate the absence of any intent to steal or commit another felony....