Messer v. State, 03-231.

• Decision Date: 25 August 2004
• Docket Number: No. 03-231.,03-231.
• Citation: 2004 WY 98,96 P.3d 12
• Parties: John Anthony MESSER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

96 P.3d 12

2004 WY 98

John Anthony MESSER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 03-231.

Supreme Court of Wyoming.

August 25, 2004.

Representing Appellant: Ken Koski, State Public Defender, PDP; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender. Argument by Ms. Yoder.

Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

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

KITE, Justice.

[¶ 1] John Messer was convicted by a jury of felony domestic violence in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2003). Mr. Messer appeals his conviction, claiming the district court lacked subject matter jurisdiction, he was denied due process because he was not given adequate notice of the prior convictions upon which the State was relying to obtain a sentence enhancement, and the jury was not properly instructed, which allowed it to convict on insufficient evidence. We find no error and affirm.

ISSUES

[¶ 2] Mr. Messer raises the following issues:

I. Whether the district court had subject matter jurisdiction to hear the merits of this case.

II. Whether the defendant was improperly accorded notice of all aspects of the specific offense or denied due process when the State obtained sentencing enhancement upon convictions other than those identified in the charging document and at the preliminary hearing.

III. Whether the jury was improperly instructed on the charge in question and the evidence was sufficient to sustain appellant's conviction.

[¶ 3] The State rephrases the same issues.

FACTS

[¶ 4] Mr. Messer was arrested on August 31, 2002, for assault and battery against a household member in violation of § 6-2-501(b). The charging documents alleged that if convicted of the charged offense, this would be Mr. Messer's third such offense against a household member. The affidavit supporting the criminal complaint also alleged this was possibly Mr. Messer's third family violence offense. Although the affidavit indicated documentation of his criminal history was attached, no such documentation appears in the record. The circuit court conducted a preliminary hearing on November 21, 2002, at which time it made notations in the record to the effect that Mr. Messer had prior convictions in California in 1996, Iowa in 1994 and Wyoming in 2002. The circuit court bound Mr. Messer over to district court on felony charges pursuant to § 6-2-501(b) and (f)(ii).

[¶ 5] On February 19, 2003, Mr. Messer filed a motion in district court requesting that his case be remanded to circuit court. Mr. Messer claimed the statute under which he was charged required proof of two prior convictions of assault and battery upon a household member. He asserted he had not been provided with any documentation demonstrating that the 2002 conviction met the requirements for making the current charge a third time family violence conviction and a felony. Specifically, he asserted that because the judgment and sentence on the 2002 reckless endangerment conviction did not reference the Family Violence Protection Act, the State failed to establish that he committed a felony over which the district court had subject matter jurisdiction. Under these circumstances, Mr. Messer contended he should be back in circuit court facing a misdemeanor charge.

[¶ 6] The district court conducted a hearing on the motion on February 20, 2003. In its ruling from the bench denying Mr. Messer's motion, the district court concluded the circuit court bound the case over after finding there was probable cause to do so. The district court also concluded the judgment and sentence from the 2002 conviction for reckless endangerment under Wyo. Stat. Ann. § 6-2-504(a) (LexisNexis 2003) counted as one of the three offenses supporting a felony charge and sentence enhancement because it was one of the offenses specifically mentioned in § 6-2-501(f)(ii). The district court concluded Mr. Messer was entitled to notice of the precise convictions upon which the State relied in seeking enhancement and that the 2002 judgment and sentence provided that notice. The district court also concluded the State still had the burden of proving beyond a reasonable doubt at the enhanced penalty proceeding that the prior convictions existed and applied to this case. The district court denied Mr. Messer's motion without prejudice to reassert it in the enhanced sentencing proceeding.

[¶ 7] The case proceeded to trial and Mr. Messer was convicted. He was sentenced to 18 to 24 months in the Wyoming State Penitentiary. The sentence was suspended and he was required to serve six months in the Natrona County Detention Center, complete 24 months of supervised probation and successfully complete the felony program at Community Alternatives of Casper.

STANDARD OF REVIEW

[¶ 8] Questions of subject matter jurisdiction are matters of law which we review de novo. Routh v. State ex rel. Wyoming Workers' Compensation Div., 952 P.2d 1108, 1114 (Wyo.1998); Nyberg v. State Military Department, 2003 WY 43, ¶ 8, 65 P.3d 1241, ¶ 8 (Wyo.2003). Constitutional questions and questions concerning the accuracy of jury instructions are likewise matters of law subject to de novo review. Joyner v. State, 2002 WY 174, ¶ 7, 58 P.3d 331, ¶ 7 (Wyo.2002); Paugh v. State, 9 P.3d 973, 975 (Wyo.2000).

[¶ 9] When reviewing jury instructions, we consider the following:

Jury instructions should inform the jurors concerning the applicable law so that they can apply that law to their findings with respect to the material facts, instructions should be written with the particular facts and legal theories of each case in mind and often differ from case to case since any one of several instructional options may be legally correct, a failure to give an instruction on an essential element of a criminal offense is fundamental error, as is a confusing or misleading instruction, and the test of whether a jury has been properly instructed on the necessary elements of a crime is whether the instructions leave no doubt as to the circumstances under which the crime can be found to have been committed.

AMG v. State (In re CG), 2003 WY 166, ¶ 4, 81 P.3d 208, ¶ 4 (Wyo.2003) (citation omitted). We also

must determine whether the instructions, taken as a whole, adequately advise the jury of the applicable law. Proper instructions should be clear declarations of the pertinent law. The ruling of a trial court on an instruction will not constitute reversible error unless there is a showing of prejudice, which connotes a demonstration by the complaining party that the instruction misled or confused the jury with respect to the applicable principles of law.

Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, ¶ 12, 58 P.3d 322, ¶ 12 (Wyo.2002). Our standard for reviewing the sufficiency of the evidence is as follows:

When reviewing a sufficiency of the evidence claim in a criminal case, we must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury, . . . our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.

Urbigkit v. State, 2003 WY 57, ¶ 44, 67 P.3d 1207, ¶ 44 (Wyo.2003).

DISCUSSION

1. Subject matter jurisdiction

[¶ 10] Mr. Messer asserts the district court did not have subject matter jurisdiction because the initial charge was for violation of § 6-2-501(b), the misdemeanor offense of battery, over which the circuit court, not the district court, had jurisdiction. He contends that § 6-2-501(f)(ii) requires proof of two or more previous convictions of similar charges within the preceding ten years as a condition precedent to the district court's assumption of jurisdiction of the case. He claims the State did not meet its burden of proving the previous convictions by a preponderance of the evidence at the preliminary hearing.

[¶ 11] The State argues the evidence of prior convictions presented at the preliminary hearing was sufficient for the circuit court to bind Mr. Messer over to district court. Citing Wilson v. State, 655 P.2d 1246, 1251 (Wyo.1982), the State asserts it was not required to prove its case for enhanced sentencing at the preliminary hearing but only to present such proof as would "cause a person of ordinary prudence to conscientiously entertain a reasonable belief that a public offense has been committed in which the accused participated." That it ultimately relied upon different family violence crimes for sentencing enhancement than those alleged at the preliminary hearing, the State contends, did not deprive the district court of subject matter jurisdiction.

[¶ 12] Mr. Messer was charged with violating the following provisions of § 6-2-501:

(b) A person is guilty of battery if he unlawfully touches another in a rude, insolent or angry manner or intentionally, knowingly or recklessly causes bodily injury to another.

...

(f) A household member as defined by W.S. XX-XX-XXX who commits a second or subsequent battery against any other household member shall be punished as follows:

...

(ii) A person convicted upon a plea of guilty or no contest or found guilty of a third or subsequent offense under this subsection against any other household member, after having been convicted upon a plea ofguilty orno contestor found guiltyof a violation of W.S.

...