Moore v. State, 02-250.

• Decision Date: 25 November 2003
• Docket Number: No. 02-250.,02-250.
• Citation: 2003 WY 153,80 P.3d 191
• Parties: Timothy Daniel MOORE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

80 P.3d 191

2003 WY 153

Timothy Daniel MOORE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 02-250.

Supreme Court of Wyoming.

November 25, 2003.

Representing Appellant: Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and 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; and Daniel M. Fetsco, Assistant Attorney General. Argument by Mr. Fetsco.

Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and PARK, D.J.

PARK, District Judge.

[¶ 1] The Appellant, Timothy Daniel Moore (Moore), was originally charged with one count of aggravated burglary, two counts of aggravated assault, two counts of aggravated kidnapping, and one count of blackmail. A jury found him guilty of one count of aggravated burglary, two counts of battery, two counts of kidnapping, and one count of blackmail. He was sentenced to 180 days of imprisonment on the battery convictions, concurrent; five to ten years on the aggravated burglary, consecutive to the battery; five to ten years on the kidnappings, concurrent to each other but consecutive to the aggravated burglary; and two to five years on the blackmail, concurrent to the kidnapping convictions but consecutive to the aggravated burglary conviction. In this appeal, Moore presents questions of insufficient evidence, an inconsistent verdict, improperly admitted misconduct and victim impact evidence, and prosecutorial misconduct.

[¶ 2] We affirm.

ISSUES

1. Was there sufficient evidence to support the two kidnapping convictions?

2. Does a conviction of the lesser charge of battery, instead of aggravated assault, result in an inconsistent jury verdict?

3. Did the trial court err in allowing evidence of previous assaults by Moore on one of the victims?

4. Did testimony of one of the witnesses to the events in question constitute impermissible victim impact testimony?

5. Did the fact or manner of the prosecutor's argument regarding the uncharged misconduct evidence constitute prosecutorial misconduct?

FACTS

[¶ 3] Moore and Ms. Terri James (Ms. James) had a fifteen-year relationship and had four children: Jennifer, Janeil, Jesse, and Janitta. The Moore/James relationship was rocky at best. Moore had been abusive and threatening to Ms. James and, at times, Ms. James responded by attacking Moore. In July 2001, Moore's brother, David Brian Moore (Brian), moved to Rawlins to look for work and began to live in the same residence with the parties and their children.

[¶ 4] By September 2001, the Moore/James relationship had deteriorated to the point that Ms. James asked Moore to leave, so he went to Texas with his nephew. During his absence, Ms. James and Brian leased another house and moved, abandoning the trailer where all parties had previously resided. The absent Moore was not informed of the move or of the new address. Moore returned to Rawlins in early October.

[¶ 5] After returning to Rawlins, Moore was able to locate Ms. James and Brian and came to their house on the evening of October 14, 2001. A Mr. Eckstrom accompanied Moore. Eckstrom was charged with similar crimes, but he was acquitted by the same jury that convicted Moore. Moore forced his way into the house, shoved Brian, threatened him, hit him with a handgun, and taped his hands together with duct tape. Moore's 14-year-old daughter, Jennifer, testified that Moore beat Brian for several hours. Moore also took Brian's wallet and gave Eckstrom some money from it. At one point, Brian made an unsuccessful attempt to escape by trying to jump through a window. Moore then threw Brian on a couch and ordered him not to make any further escape attempts.

[¶ 6] Ms. James was gone when Moore entered the house, because she worked nightshifts at the Wyoming State Penitentiary. She returned home from work early the following morning. Moore attacked her as she entered the house, hit her in the face with a handgun, and threatened her and the children. Eventually, Moore tired, the beatings subsided, and everyone retired to rest from the ordeal. During the next three days, Moore, Ms. James, and Brian, together and individually, left the residence. Brian left to renew a job search, to shop, and to feed a dog that had been left at the former residence. Moore emphasizes that Brian was present when a Wyoming State trooper gave Moore a citation for the accident in which he was involved while returning from Texas, and that he gave no sign to the trooper that he was being held against his will. Moore also points out that Ms. James returned to work each evening during the alleged confinement, and that Ms. James, her brother (who was unaware of the situation), and Moore went to the Carbon County Courthouse to obtain a vehicle title.

[¶ 7] Both Brian and Ms. James testified that they did not report the kidnappings because of their fear for the safety of the children and each other. Moore had threatened them, reminding them that he had a gun. Eventually, Ms. James told her brother, who also worked at the prison with her. Her brother insisted that Ms. James report the matter, and he drove her to the Rawlins police station. As a result of this report, various law enforcement officers went to the residence, questioned all participants, and eventually arrested Moore.

DISCUSSION

I. INSUFFICIENT EVIDENCE

[¶ 8] In his first issue, Moore contends that the evidence was insufficient to convict him of kidnapping Ms. James and Brian. He points out that the victims were, at various times, out in the community and therefore not confined; and that in post-trial motions, the prosecutor conceded that the victims were not confined during the entire time frame charged in the Information, viz October 14 through October 17, 2001.

[¶ 9] When reviewing an appeal based on sufficiency of the evidence, we view the evidence, and any reasonable inferences based thereon, in a light most favorable to the State. Allen v. State, 2002 WY 48, ¶ 58, 43 P.3d 551, ¶ 58 (Wyo.2002). In such a review, we do not substitute our judgment for that of the jury; instead, we determine whether reasonable and rational jurors could have found that the essential elements of the crime were proven beyond a reasonable doubt. Id. Moore's contention is that the evidence was insufficient to support a finding that he unlawfully confined the victims within the meaning of Wyo. Stat. Ann. § 6-2-201 (LexisNexis 2003). This statute provides that:

(a) A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:

....

(iii) Inflict bodily injury on or to terrorize the victim or another.

[¶ 10] Kidnapping requires confinement with the intent to inflict bodily injury or terrorize the victim or another. Doud v. State, 845 P.2d 402, 406 (Wyo.1993). Moore's confinement of Brian and Ms. James, with the intent to either inflict bodily injury or to terrorize them, is sufficient for a conviction under the statute. Subsection (a)(iii) uses both "inflict bodily injury" and "terrorize" as the basis for a charge of kidnapping. Moore has not raised any alternative charging problem, so this Court will not discuss it as an issue. Sufficient evidence existed for the jury to find that Moore unlawfully confined the victims within the meaning of Wyo. Stat. Ann. § 6-2-201(a)(iii). There is evidence that Brian was terrorized with beatings and threats while being held against his will. There is also evidence that Ms. James was threatened, ordered to keep quiet or others at the residence would be harmed, not allowed free run of the house, and not allowed to check on her children.

[¶ 11] Moore argues that the verdict is not proper because there is no evidence that the confinement extended for the entire period charged in the Information. Moore provides no support or cogent authority for the proposition that he should have been acquitted because the victims may not have been confined for the entire time from October 14 through October 17. Although this same argument was presented to the trial court, it was as lacking in authority and support then as it is on appeal. We will not consider nonjurisdictional issues unless they have been presented with at least a minimum effort to provide a cogent legal argument. Bailey v. State, 12 P.3d 173, 178 (Wyo.2000).

[¶ 12] Further, this argument is not supported by logic. Moore's contention, were it to prevail, would force a jury to acquit him even if the jury were to find that the victims were confined for most, but not all, of the times alleged in the Information. Under the constitutional requirements and the Wyoming Rules of Criminal Procedure, an information is sufficient if it: 1) contains the elements of the offense charged; 2) fairly informs a defendant of the charge against which he must defend; and 3) enables a defendant to plead an acquittal or conviction in bar of future prosecutions for the same offense. Estrada-Sanchez v. State, 2003 WY 45, ¶ 13, 66 P.3d 703, ¶ 13 (Wyo.2003). The Information in this case alleged that the allegations of kidnapping occurred in the time period of October 14 through October 17. This does not require that the State prove that the confinement was for this entire period, only that the victims were confined during some part of this time. No specific time period is required to satisfy the element of confinement. Doud, 845 P.2d at 406. The record supports the jury's finding that Ms. James and Brian were confined.

II. THE JURY VERDICT WAS INCONSISTENT

[¶ 13] The jury convicted Moore of the charge of aggravated burglary; it acquitted Moore of the charges of aggravated assault, Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2003), but found him guilty of...