Rathbun v. State

• Decision Date: 08 August 2011
• Docket Number: No. S–10–0245.,S–10–0245.
• Citation: 257 P.3d 29,2011 WY 116
• Parties: Warren Wayne RATHBUN, Appellant (Defendant),v.The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

257 P.3d 29

2011 WY 116

Warren Wayne RATHBUN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–10–0245.

Supreme Court of Wyoming.

Aug. 8, 2011.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel. Argument by Ms. Olson.Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Assistant Attorney General. Argument by Mr. Daraie.Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.VOIGT, Justice.

[¶ 1] The appellant was convicted of attempted kidnapping and sentenced to life in prison. He appeals the denial of two pre-trial motions to dismiss, and raises two issues concerning sentencing. Finding no error, we affirm.

ISSUES

[¶ 2] 1. Was the appellant's prosecution for attempted kidnapping barred by the doctrine of double jeopardy due to his earlier guilty plea to battery?

2. Was the State barred by the doctrine of res judicata from refiling the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause?

3. Did the district court apply the proper penalty range in imposing sentence?

4. Did the district court's determination of the penalty range in imposing sentence violate the appellant's right to trial by jury?

FACTS

[¶ 3] On August 3, 2009, the appellant accosted a woman near her car in the State of Wyoming employee parking garage, and struck her on the head. He was charged with attempted kidnapping, a felony, and battery, a misdemeanor. After a preliminary hearing in circuit court, the attempted kidnapping charge was dismissed without prejudice. Although the reason for the dismissal does not appear in the court order, questions and comments of the circuit court judge during the preliminary hearing indicated a concern that the State had failed to prove probable cause as to all the elements of the charged crime.

[¶ 4] After the felony was dismissed, the misdemeanor battery case proceeded in circuit court. The appellant pled guilty and was sentenced to 180 days in jail. Subsequently, the appellant was charged anew with attempted kidnapping, and a second preliminary hearing took place, before a different circuit court judge. This time, the appellant was bound over to district court for trial, where he was convicted and sentenced as noted above.

DISCUSSION

Was the appellant's prosecution for attempted kidnapping barred by the doctrine of double jeopardy due to his earlier guilty plea to battery?

[¶ 5] “This Court reviews de novo the question of whether a defendant's constitutional protection against double jeopardy has been violated.” Daniel v. State, 2008 WY 87, ¶ 7, 189 P.3d 859, 862 (Wyo.2008). In that review, we consider the protections provided by the Fifth Amendment to the United States Constitution and by article 1, section 11 of the Wyoming Constitution to be equivalent. Id. at ¶ 8, at 862. Of particular relevance to the present discussion is the precept that the “double jeopardy clause prohibits prosecution of a defendant for a greater offense when he has been previously convicted of the lesser included offense.” Id.

[¶ 6] The constitutional principle, on its face, is simple: no person may be placed in jeopardy more than once for the same criminal offense. The word “jeopardy” refers to “the risk of conviction and punishment.” Black's Law Dictionary 912 (9th ed. 2009). This simplicity, however, has been illusory; see, e.g., Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); and Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Federal double jeopardy law appears to have been settled in United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993), with the Supreme Court's holding that “[i]n both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the ‘same-elements' test, the double jeopardy bar applies.” The inquiry under the same-elements test is “whether each offense contains an element not contained in the other; if not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Id. Like the United States Supreme Court, this Court recognizes and follows the same-elements test. See, e.g., Granzer v. State, 2010 WY 130, ¶ 13, 239 P.3d 640, 645 (Wyo.2010); Snow v. State, 2009 WY 117, ¶ 16, 216 P.3d 505, 510 (Wyo.2009); and Najera v. State, 2009 WY 105, ¶ 11, 214 P.3d 990, 994 (Wyo.2009).

[¶ 7] The two offenses at issue in the present case are misdemeanor battery, in violation of Wyo. Stat. Ann. § 6–2–501(b) (LexisNexis 2011) and attempted kidnapping, a felony, in violation of Wyo. Stat. Ann. §§ 6–1–301(a) and 6–2–201(a)(iii) and (d) (LexisNexis 2011). The statutory elements of battery, as charged in this case, are:

1. On or about August 3, 2009.

2. In Laramie County, Wyoming.

3. The appellant.

4. Intentionally.

5. Caused bodily injury to the victim.

6. By use of physical force.

On the other hand, the statutory elements of attempted kidnapping, as charged in this case, are:

1. On or about August 3, 2009.

2. In Laramie County, Wyoming.

3. The appellant.

4. With the intent to commit the crime of kidnapping.

5. Did an act which is a substantial step towards commission of the crime of kidnapping.

[¶ 8] It is clear that each of these statutes contains an element not contained in the other. Battery requires both the use of physical force and resultant bodily injury, neither of which element is contained in the crime of attempted kidnapping. Attempted kidnapping requires the intent to commit the crime of kidnapping, and a substantial step toward commission of that crime—which substantial step logically may or may not involve physical force or bodily injury—neither of which element is contained in the crime of battery. In cases such as this, where two crimes each contain elements not contained in the other, there is no preclusive effect, and the subsequent prosecution does not violate double jeopardy. Dixon, 509 U.S. at 704–09, 113 S.Ct. at 2860–63; Ohio v. Johnson, 467 U.S. at 501–02, 104 S.Ct. at 2542; State v. King, 2002 WY 93, ¶¶ 18–20, 48 P.3d 396, 404–05 (Wyo.2002).

Was the State barred by the doctrine of res judicata from re-filing the attempted kidnapping charge and seeking a second preliminary hearing after that charge was dismissed following a preliminary hearing where the circuit court judge found a lack of probable cause?

[¶ 9] “The application of the doctrine of res judicata is a question of law that we review de novo.” Osborn v. Kilts, 2006 WY 142, ¶ 6, 145 P.3d 1264, 1266 (Wyo.2006); see also Willis v. Davis, 2010 WY 149, ¶ 10, 243 P.3d 568, 570 (Wyo.2010). Before we address the issue as it has been presented in this case, we believe it may be helpful to state some general rules about res judicata and its juridical cousin, collateral estoppel.

Res judicata and collateral estoppel are related but distinct concepts. Res judicata bars the relitigation of previously litigated claims or causes of action . Slavens v. Board of County Commissioners, 854 P.2d 683, 686 (Wyo.1993). Four factors are examined to determine whether the doctrine of res judicata applies: (1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Id. Collateral estoppel bars relitigation of previously litigated issues and involves an analysis of four similar factors: (1) whether the issue decided in the prior adjudication was identical with the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Id.

Eklund v. PRI Envtl., Inc., 2001 WY 55, ¶ 15, 25 P.3d 511, 517 (Wyo.2001) (emphasis in original). A “claim” is “[t]he aggregate of operative facts giving rise to a right enforceable by a court[.]” Black's Law Dictionary 281 (9th ed. 2009). An “issue,” on the other hand, is “[a] point in dispute between two or more parties ... [that] may take the form of a separate and discrete question of law or fact, or a combination of both.” Id. at 907.

[¶ 10] The two doctrines— res judicata and collateral estoppel—are not always distinguished or readily distinguishable. That confusion is exacerbated in the present case because, not only is there an element of collateral estoppel intertwined with the concept of double jeopardy just discussed, but some of the cases cited by the parties in regard to this issue were actually determined not on the basis of res judicata or collateral estoppel, but upon the basis of constitutional due process, or upon the existence of a rule of criminal procedure, or upon particular state law governing preliminary hearings. We will do our best to unmuddy those waters.

[¶ 11] First, we will discuss a few of the United States Supreme Court cases in which the doctrine of collateral estoppel has arisen in a case primarily involving double jeopardy. In Ashe v. Swenson, the appellant was charged with six counts of armed robbery for allegedly robbing six participants in a poker game, with each count to be tried separately, seriatim. The first jury found the appellant not guilty, with the only issue in dispute being the identity of the appellant as one of the robbers. The ...