Reilly v. State, 01-149.

• Decision Date: 17 October 2002
• Docket Number: No. 01-149.,01-149.
• Citation: 2002 WY 156,55 P.3d 1259
• Parties: Velma REILLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

55 P.3d 1259

2002 WY 156

Velma REILLY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-149.

Supreme Court of Wyoming.

October 17, 2002.

Mary B. Guthrie, Cheyenne, Wyoming, Representing Appellant.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Cheyenne, Wyoming, Representing Appellee.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In December 2000, a jury found appellant, Velma Reilly, guilty of conspiracy to commit robbery in violation of Wyo. Stat. Ann. §§ 6-1-303(a) and 6-2-401(a) (LexisNexis 2001), kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(d) (LexisNexis 2001), aggravated robbery in violation of Wyo. Stat. Ann. § 6-2-401(c) (LexisNexis 2001), and attempted second-degree murder in violation of Wyo. Stat. Ann. §§ 6-1-301(a) and 6-2-104 (LexisNexis 2001). The district court sentenced appellant to prison terms of three to six years for conspiracy to commit robbery, twenty to fifty years for kidnapping, and ten to fifteen years for aggravated robbery, to run concurrently, and thirty to fifty years for attempted second-degree murder, to run consecutively to the other three sentences. Appellant appeals her conspiracy to commit robbery conviction, arguing that the evidence was insufficient to establish a conspiracy and that the district court failed properly to instruct the jury regarding the elements of that offense. She appeals her attempted second-degree murder conviction, asserting that attempted second-degree murder is a "logical impossibility." Appellant does not appeal her aggravated robbery or kidnapping convictions. We affirm appellant's attempted second-degree murder conviction, but reverse and remand for a new trial on the conspiracy to commit robbery charge.

ISSUES

[¶ 2] The appellant states the issues as follows:

[I.] Whether [appellant] was properly convicted of attempted second degree murder.

[II.] Whether failure to set out the elements of conspiracy to commit robbery in an instruction invalidates [appellant]'s conviction.

[III.] Whether sufficient evidence was introduced at trial to prove beyond a reasonable doubt all of the elements of the crime of conspiracy to commit robbery.

The State of Wyoming, as appellee, phrases the issues in substantially the same manner.

FACTS

[¶ 3] Appellant and her victim were acquaintances who lived in the same trailer park, had limited social contact, and at one point were co-workers. On July 10, 2000, the victim told appellant she was going to a local grocery store to purchase groceries and a $272.00 money order to satisfy the income tax balance on some radio contest winnings. According to the victim, appellant called and stated "come and pick me up, and I'll go with you." At about 11:30 p.m. that evening, the victim took her vehicle to appellant's residence. Appellant asked if her "friend," a thirteen-year-old male, could accompany them, to which the victim replied in the affirmative. The victim testified that she had two separate envelopes in her purse, one containing $49.00 for groceries and the other $272.00 for the money order.

[¶ 4] Upon reaching the grocery store parking lot, appellant grabbed the victim by the neck, pulled her to the center of the vehicle, pinned her arms, and ordered the male juvenile to "[g]et in the front and drive ...." Appellant pulled a gun, pointed it at the victim's head, and told the victim to cooperate "because I can shoot you." At some point on rural Horse Creek Road, appellant directed the male juvenile to pull over, and told the victim to give appellant the "money." The victim gave appellant the envelope containing $49.00, and appellant angrily stated "Well, is this it?" The victim replied that it was, and appellant pulled the victim from the vehicle and told her to "lay face down on the ground." Appellant shot at the victim several times, the victim recalling "one bullet just zing[ed] right past my head." A detective testified that appellant admitted to aiming the gun at the victim's head and firing it four or five times. According to the victim, appellant then stated "Damn you, Randy [appellant's boyfriend at the time]. You put blanks in this, and ... I'll kill you, too." Appellant yelled at the male juvenile to "get a tire iron," with which appellant repeatedly beat the victim on the back of the head.

[¶ 5] Appellant and the male juvenile left in the victim's vehicle, leaving the victim alongside the road. A passerby eventually found the victim and transported her to the emergency room. The victim suffered multiple injuries consistent with blunt force trauma, including internal bleeding around her brain and ear, scalp, ear, face, hand and arm lacerations, bruises, and fractured fingers and hands. Appellant was ultimately charged with conspiracy to commit robbery, kidnapping, aggravated robbery, and attempted first-degree murder.

DISCUSSION

ATTEMPTED SECOND-DEGREE MURDER

[¶ 6] Appellant contends that the elements of an attempt and second-degree murder are mutually exclusive and/or logically impossible, because an attempt requires that one act with a specific intent, while second-degree murder only requires that one act with a general intent. In support of this argument, appellant cites to cases from other jurisdictions, among them an attempted second-degree murder case in which the North Carolina Supreme Court concluded that, it is "logically impossible" for "a person to specifically intend to commit a form of murder which does not have, as an element, specific intent to kill" and that "attempted murder" is therefore "logically possible only where specific intent to kill is a necessary element of the underlying offense." State v. Coble, 351 N.C. 448, 527 S.E.2d 45, 48 (2000). Appellant asks this Court to adopt a similar approach. Her argument presents an issue of law that we review de novo. Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001)

.

[¶ 7] Wyo. Stat. Ann. § 6-1-301 states, in pertinent part:

(a) A person is guilty of an attempt to commit a crime if:

(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime[.]

According to Wyo. Stat. Ann. § 6-2-104, "[w]hoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree...."

[¶ 8] Appellant's claimed "logical impossibility" arises from the "intent" elements of these respective statutes. In the past, crimes have commonly been categorized by whether they require a "specific intent" or a "general intent." For many years, Wyoming had several pattern jury instructions defining and explaining the two terms, and yet, the differences between the concepts were not always readily discernible.

Realizing that the distinction between a specific intent crime and a general intent crime is apparently troublesome, we can perhaps clarify it by stating it in a somewhat different way. When the statute sets out the offense with only a description of the particular unlawful act, without reference to intent to do a further act or achieve a future consequence, the trial judge asks the jury whether the defendant intended to do the outlawed act. Such intention is general intent. When the statutory definition of the crime refers to an intent to do some further act or attain some additional consequence, the offense is considered to be a specific intent crime and then that question must be asked of the jury.

Dorador v. State, 573 P.2d 839, 843 (Wyo. 1978). Following that logic, an "attempt" is a "specific intent" crime in that the attempt statute requires that one act with the intent to commit the object crime. On the other hand, we have held that second-degree murder is a general intent crime, because it requires proof only that the act was done voluntarily or deliberately, not that there was a specific intent to kill. Bouwkamp v. State, 833 P.2d 486, 493 (Wyo.1992); Ramos v. State, 806 P.2d 822, 830 (Wyo.1991).

[¶ 9] We have acknowledged a trend in the law to dispense with the pattern jury instructions² defining and explaining intent due to their "vagueness and general failure to enlighten juries." Compton v. State, 931 P.2d 936, 941 (Wyo.1997). Instead, juries should be instructed as to the appropriate intent that is an element of the particular crime; "it is more important that the jury understand what exactly they [are required] to determine." Id. This is consonant with our recent holding that "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." Mueller v. State, 2001 WY 134, ¶ 9, 36 P.3d 1151, 1155 (Wyo. 2001). The point is that attempting formally to distinguish between specific intent and general intent, beyond the substantive elements of the crime, may not be the surest way to define the nature of the intent that must be proven.

[¶ 10] Our precedent reveals that Wyoming is not a jurisdiction that finds it "logically impossible" to attempt a general intent crime. In several opinions, we have affirmed attempted second-degree murder convictions. See, e.g., Bilderback v. State, 13 P.3d 249 (Wyo.2000)

; Gabriel v. State, 925 P.2d 234 (Wyo.1996); and Dichard v. State, 844 P.2d 484 (Wyo.1992). We have also previously recognized the crime of attempted voluntary manslaughter. Warren v. State, 809 P.2d 788 (Wyo.1991). Wyo. Stat. Ann. § 6-2-105(a) (LexisNexis 2001) provides, in pertinent part:

A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:

(i) Voluntarily,

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