Kessel v. State
| Jurisdiction | Wyoming,United States |
| Parties | Yvonne Patrice KESSEL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Citation | 539 P.3d 406 |
| Decision Date | 11 December 2023 |
| Court | Wyoming Supreme Court |
| Docket Number | S-23-0059 |
Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; Ingrid G. Bent, Student Intern. Argument by Ms. Bent.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
[¶1] Yvonne Patrice Kessel was involved in a fatal car accident that killed Cruz Cane Paulsen. A jury convicted Ms. Kessel of one count of aggravated vehicular homicide. She contends the district court erred by denying her proposed jury instruction, which she claims was a theory of defense instruction whose denial would constitute error per se. She further asserts even if the instruction was not a theory of defense instruction, the district court abused its discretion by failing to give it. We conclude Ms. Kessel's proposed jury instruction was not a proper theory of defense instruction, and the district court did not abuse its discretion in denying the proposed instruction. We affirm.
[¶2] Ms. Kessel raises one issue comprised of two parts on appeal, which we rephrase:
[¶3] Around 4:00 p.m. on Sunday, November 7, 2021, Yvonne Patrice Kessel drove her minivan to the nearby Albertsons. To reach the store, Ms. Kessel made a left turn. She entered the turn lane, and as she initiated the left turn, 25-year-old Cruz Cane Paulsen was approaching on his motorcycle in the opposite direction. A private dashcam shows Ms. Kessel did not stop before turning. She cut the turn short, crossed over the double yellow lines of the road, and Mr. Paulsen hit the passenger side of Ms. Kessel's minivan.
[¶4] Ms. Kessel pulled her minivan into a nearby parking lot, left her vehicle, and approached Mr. Paulsen, who was lying on the pavement, unconscious and bleeding severely from his head. A bystander told Ms. Kessel to go sit in her car and wait for police officers to arrive.
[¶5] Ms. Kessel returned to her minivan, located a Bacardi rum bottle, and drank until only a "small remnant" of alcohol remained. Law enforcement later found it tucked under the front passenger seat of the minivan. Ms. Kessel exited her minivan after police officers and medical first responders had arrived on the scene of the accident. She walked away from the scene and down the hill to a liquor store. While in the liquor store, she did not ask for assistance, nor did she use a phone to call for help. Instead, she bought a bottle of vodka, sat outside Albertsons, and drank a sip.
[¶6] A bystander who witnessed the accident saw Ms. Kessel walk out of the liquor store. When the bystander approached Ms. Kessel, she noticed Ms. Kessel was holding a bag with alcohol in it. The bystander told her she needed to speak with the officers, and Ms. Kessel said the officers were going to think she had been drinking and started crying. The bystander escorted her to Officer Brownell at the accident scene.
[¶7] Officer Brownell conducted five field-sobriety tests, and Ms. Kessel showed numerous signs of impairment. Officer Brownell placed Ms. Kessel under arrest. Ms. Kessel consented to a blood draw, which indicated her blood alcohol concentration was 0.211, nearly two and a half times the legal limit. Ms. Kessel claimed she did not drink any alcohol before the accident and typically drank alcohol in response to trauma. She later admitted she drank alcohol earlier in the day with her husband.
[¶8] Mr. Paulsen died from the head injuries he sustained in the accident, and the State charged Ms. Kessel with one count of aggravated vehicular homicide in violation of Wyo. Stat. Ann. § 6-2-106(b)(i)(ii). Mr. Paulsen had a blood alcohol concentration of 0.17 and tetrahydrocannabinol in his system at the time of his death. The defense's main argument at trial was Mr. Paulsen—through his speeding; intoxication; lack of proper license, safety gear, and poor tire tread—was the proximate cause of his death, not Ms. Kessel.
[¶9] The jury returned a unanimous verdict of guilty for one count of aggravated vehicular homicide. The court sentenced Ms. Kessel to a prison term of thirteen-and-a-half to sixteen years, with credit for time served. Ms. Kessel timely appealed.
[¶10] The State argues we should not consider Ms. Kessel's theory of defense argument because she did not offer her proposed instruction below as a theory of defense. We disagree.
[¶11] This Court will "not consider an issue raised for the first time on appeal." Borja v. State , 2023 WY 12, ¶ 24, 523 P.3d 1212, 1218 (Wyo. 2023) (citing Rogers v. State , 2021 WY 123, ¶ 14, 498 P.3d 66, 70 (Wyo. 2021) ). "This rule holds true ‘whether it be legal theories or issues never formally raised in the pleadings nor argued to the trial court.’ " Davis v. State , 2018 WY 40, ¶ 32, 415 P.3d 666, 678 (Wyo. 2018) (quoting Crofts v. State ex rel. Dep't of Game & Fish , 2016 WY 4, ¶ 19, 367 P.3d 619, 624 (Wyo. 2016) ). "Parties are bound by the theories they advance below because it is ‘not appropriate for this Court to reverse a district court ruling on grounds that were never presented to it.’ " Rogers , 2021 WY 123, ¶ 14, 498 P.3d at 70 (quoting Miller v. Beyer , 2014 WY 84, ¶ 34, 329 P.3d 956, 967 (Wyo. 2014) ).
[¶12] Although Ms. Kessel did not refer to her proposed instruction as a theory of defense when she offered it below, the district court apparently understood it to be her theory. In rejecting the instruction, the court stated: "I don't see how the existing instruction would preclude the defense from arguing its theory of defense as to proximate cause." Even though Ms. Kessel did not identify her proposed instruction as a theory of defense, the district court recognized those grounds, and we will address the threshold question of whether her proposed instruction asserted a proper theory of defense.
[¶13] "A defendant has a due process right to a theory of defense instruction." Harnetty v. State , 2019 WY 21, ¶ 27, 435 P.3d 368, 374 (Wyo. 2019) (citing Bouwkamp v. State , 833 P.2d 486, 490 (Wyo. 1992) ). Thus, "[a]n erroneous refusal of a theory of defense instruction is ‘reversible error per se.’ " Black v. State , 2020 WY 65, ¶ 22, 464 P.3d 574, 579 (Wyo. 2020) (quoting Swartz v. State , 971 P.2d 137, 139 (Wyo. 1998) ). "We review a district court's rejection of a proposed theory of defense instruction de novo." Harnetty , 2019 WY 21, ¶ 27, 435 P.3d at 374 (citing McEuen v. State , 2017 WY 15, ¶ 22, 388 P.3d 779, 784 (Wyo. 2017) ).
[¶14] Ms. Kessel argues her proposed jury instruction would have instructed the jury it could specifically take into consideration the victim's actions when deciding the proximate cause of her charged crime. Her proposed instruction stated: "The actions and conditions of the deceased may be considered by the Jury in deciding the question of whether the defendant's actions were the proximate cause of the deceased's death." The district court rejected the instruction. Ms. Kessel argues the court erred because the instruction asserted a proper theory of defense. We disagree.
[¶15] "The law in Wyoming is well settled with respect to instructing a jury on a defendant's theory of the case." Nelson v. State , 2010 WY 159, ¶ 14, 245 P.3d 282, 285 (Wyo. 2010). Id. at ¶ 14, 245 P.3d at 286 (citing Bouwkamp , 833 P.2d at 490 ).
[¶16] "It is established law in this Court and the United States Supreme Court that the State is required to prove every element of a criminal offense beyond a reasonable doubt[.]" Hernandez v. State , 2007 WY 105, ¶ 11, 162 P.3d 472, 476 (Wyo. 2007) (citing Krucheck v. State , 671 P.2d 1222, 1224 (Wyo. 1983) ; Sandstrom v. Montana , 442 U.S. 510, 512, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) ). Because the burden is on the State to prove every element of the crime charged, this Court does not recognize a "failure of proof" defense, or a "claim of innocence," as a proper theory of defense. Dennis v. State , 2013 WY 67, ¶ 39, 302 P.3d 890, 898 (Wyo. 2013) (); Chavez-Becerra v. State , 924 P.2d 63, 67 (Wyo. 1996) (); see also Wyo. Criminal Pattern Jury Instruction 8.01 (2022) ("A claim of innocence based on a failure of the evidence to prove the crime charged does not require a theory of the defense instruction.").
[¶17] For a jury to convict Ms. Kessel of aggravated vehicular homicide, the State had to prove the element of proximate cause; that Ms. Kessel's conduct was the proximate cause of Mr. Paulsen's death. Ms. Kessel denied her actions caused Mr. Paulsen's death and claimed instead that his actions were the proximate cause of...
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