Oien v. State, 89-203

• Decision Date: 17 August 1990
• Docket Number: No. 89-203,89-203
• Parties: Randall Lee OIEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 544

797 P.2d 544

Randall Lee OIEN, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).

No. 89-203.

Supreme Court of Wyoming.

Aug. 17, 1990.

Leonard D. Munker, State Public Defender, Gerald M. Gallivan, Wyoming Defender Aid Program, David M. Williams, Student Intern, WDAP, and Nicholas H. Carter, Student Intern, WDAP, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Mary B. Guthrie, Sr. Asst. Atty. Gen., for appellee.

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

URBIGKIT, Chief Justice.

Randall Lee Oien (Oien) appeals his felony conviction of escape from official detention ¹ and misdemeanor conviction of interference with a peace officer. ² We reverse both convictions and remand for retrial.

Oien argues successfully for the reversal of his felony conviction of escape from official detention by addressing whether the trial judge committed reversible error when he refused to give a theory of the defense jury instruction. The requested instruction was intended to inform the jury that intention without seizure cannot constitute an arrest. We consider whether the instruction was needed to encompass Oien's theory of the case for defense to the charge of escape from detention because an arrest was a necessary element to that charge under the factual circumstances. The requested instruction made visible the narrow distance between the definitions of resisting arrest and escape from detention following arrest. It is the thin line between his conviction of a misdemeanor or a felony as arguably embracing about the same general conduct.

Oien also successfully argues for the reversal of his misdemeanor conviction of interference with a peace officer. This issue requires us to consider whether the trial court abused its discretion by allowing the prosecutor to introduce into evidence the judgment and sentence of Oien's guilty plea for breach of the peace relating to prior events at the residence where he lived with his girlfriend.

We reverse and remand.

I. ISSUES

Oien's appeal questions:

I. Whether the evidence was insufficient as a matter of law to support a conviction of escape from official detention where at most the evidence shows a confrontation and a struggle during an unsuccessful attempt to arrest, followed by flight.

II. If the court should find a sufficiency of the evidence to convict appellant under W.S. Sec. 6-5-201, whether the court below still committed prejudicial error in failing to instruct the jury after a request that "a person cannot be said to be under arrest when merely an intention or attempt to take, seize, or detain him occurs, resulting in no seizure or control over the person."

III. Whether the conviction for interference with a police officer can stand where the evidence shows that the officer was not engaged in the lawful performance of his duties because a.) there was no probable cause for the arrest of the appellant for breach of peace; and b.) the officer was actually attempting to illegally seize the appellant's house keys.

IV. Whether the court below erred in permitting the prosecution to inquire of the defendant about his guilty plea to breach of the peace, and compounded the error by admitting the judgment and sentence following that plea, when the plea concerned behavior at the defendant's home and the prosecution's theory was that the breach of the peace occurred later at the Poison Spider Mini Mart.

V. Whether the court below erred in excluding the recording or transcript of the prior guilty plea proceeding in that the jury was misled as to its significance and the defendant was deprived of the opportunity to explain.

Our affirmative answers to Oien's second and fourth issues are dispositive. The error identified in the second issue violated due process ³ and requires reversal of the felony conviction of escape from official detention. See Phillips v. State, 760 P.2d 388, 391 (Wyo.1988); Best v. State, 736 P.2d 739, 744 (Wyo.1987); Goodman v. State, 573 P.2d 400 (Wyo.1977); and Blakely v. State, 474 P.2d 127 (Wyo.1970). "The right to an instruction * * * rests upon the conditions precedent * * * [that] the offered instruction [is] sufficient to inform the court of the defendant's theory and there [is] competent evidence in the record to support the theory." Goodman, 573 P.2d at 408 (emphasis in original). The "error lay in withholding an instruction pertinent to the issues involved * * *." Blakely, 474 P.2d at 129. Wyoming's Due Process Clause requires the trial court to present the defendant's theory of the case or defense affirmatively to the jury by way of instruction--whether by a requested instruction or one similar to it. ⁴ Id. The error identified in the fourth issue constituted an abuse of discretion on the part of the trial judge and requires reversal of the misdemeanor conviction for interference with a peace officer.

II. FACTS

Officer Dale (Dale) of the Mills Police Department responded to a call from Larry Nicholson (Nick). Nick called the Mills police because of a domestic disturbance involving Oien where Nick lived with his mother Bonnie Johnson (Johnson) and Oien. Once Dale was inside the mobile home, Johnson requested that he ensure Oien leave. Dale indicates Oien's temper was quite active when Dale arrived but that Oien did agree to leave. As Oien and Dale prepared to leave, Johnson indicated she needed her house keys and that Oien had them. Oien handed Dale a set of keys which Dale then gave to Johnson before offering to drive Oien where he needed to go. Johnson told Dale that her house keys were not among those keys Dale had handed her. Oien left the mobile home at this point and Dale watched him head toward Poison Spider Road. Dale got into his cruiser and quickly pulled along side and again offered to drive Oien. This time Oien accepted.

Pulling up to the Poison Spider Mini Mart, Dale again requested that Oien give up his house keys. According to Dale, Oien exited the vehicle with a litany of expletives trailing behind and by the time Dale got out of the cruiser, Oien was yelling. Oien indicates he did not yell expletives to Dale, but that he definitely informed Dale he was keeping his own keys. In any event, Dale and Oien were apparently eyeball to eyeball when Dale stepped back and told Oien he was under arrest for disturbing the peace. Oien fled toward the Oregon Trail Bar parking lot. Dale followed in his cruiser to the parking lot where he says he attempted to restrain Oien. That attempted restraint occasioned a scuffle which was quickly joined by Deputy Moore of the Natrona County Sheriff's Department. Dale reported he lost his grip on Oien just before Oien struck him hard in the testicles and fled as Dale dropped to his knees.

Oien was brought to trial for a felony charge of escape from official detention and a felony charge of interference with a peace officer by causing bodily injury.

The trial court judge refused this jury instruction requested by Oien.

You are instructed that, in Wyoming, an arrest is effectuated when there is the taking, seizing, or detaining of the person of another by touching or putting hands on him, or by an act which indicates an intention to take him into custody and which subjects him to the actual control and will of the person making the arrest, or by the consent of the person to be arrested. Such arrest must also be made under real or pretended legal authority and result in the actual or constructive seizure or detention of the person ar[r]ested or his voluntary submission into custody. A person cannot be said to be under arrest when merely an intention or attempt to take, seize, or detain him occurs, resulting in no seizure or control over the person.

(Emphasis added.)

Instead the trial court judge gave the following instruction:

You are instructed that an arrest is the taking, seizing, or detaining of the person of another, (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested.

To effect an arrest, there must be actual or constructive seizure or detention of the person arrested, or his voluntary submission to custody, and the restraint must be under real or pretended legal authority.

(Emphasis added.)

Oien's counsel specifically objected and articulated the grounds to that objection. Oien was convicted of the felony of escape from official detention and was convicted of a lesser included misdemeanor interference with a peace officer charge ⁵ instead of the felony interference charge. ⁶ This appeal followed.

III. STANDARDS OF REVIEW

A. Appeal from a Refused Jury Instruction

Our standard of review of an appeal from a refused jury instruction contains two prongs of inquiry. Thom v. State, 792 P.2d 192 (Wyo.1990). The purpose to these two lines of questioning is to ascertain whether the defendant is protected by due process guarantees to the accused during an appeal. The first general question looks to see if the defendant is entitled to the requested theory of the case or defense jury instruction--assuming competent evidence was developed during trial to underpin that request. The second general question looks to see if the defendant actually developed competent evidence during the trial to underpin that request. The first prong is made up of an array of questions while the second prong is usually made up of one question. See Thom, 792 P.2d 192; Thomas v. State, 784 P.2d 237 (Wyo.1989); Keller v. State, 771 P.2d 379 (Wyo.1989); Phillips, 760 P.2d 388; Griffin v. State, 749 P.2d 246 (Wyo.1988); and Best, 736 P.2d 739.

A trial court violates Wyoming's constitutional due process guarantee when it fails to give to the jury the defendant's theory of the case or defense instruction if that theory properly articulates Wyoming law,...