Tanner v. State
| Decision Date | 20 November 2002 |
| Docket Number | No. 01-53.,01-53. |
| Parties | Ronald Arbie TANNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Kenneth M. Koski, State Public Defender, and Donna D. Domonkos, Appellate Counsel, Representing Appellant. Argument by Ms. Domonkos.
Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore Lauer, Director, Prosecution Assistance Program; and Hugh J. Linnehan, Student Intern, Representing Appellee. Argument by Mr. Linnehan.
Before HILL, C.J., and GOLDEN, LEHMAN,1 KITE, and VOIGT, JJ.
[¶ 1] Appellant Ronald A. Tanner (Tanner) seeks reversal of his conviction for one count of burglary arising from his entry into a Casper bar, through an unlocked door, during business hours. Having determined that the record discloses insufficient evidence to support the conviction as instructed to the jury: we reverse the conviction, vacate the judgment and sentence entered by the district court, and remand with instruction that a judgment of acquittal be entered.
[¶ 2] Tanner presents the following issues for review:
[¶ 3] Tanner was convicted of one count of burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) (LexisNexis 2001) following a two-day jury trial in Natrona County. The evidence adduced at trial indicated that on Friday, July 14, 2000, he and two female companions went to the Sandbar Lounge located at 100 N. Ash Street in Casper intending to buy some drinks. At approximately 10:30 p.m., Tanner, his girlfriend Char Lee Brown, and Kathy Davis, parked in the parking area by the Sandbar's drive up window, but soon discovered that the glass doors facing First Street were locked. However, when the trio proceeded to the Ash Street entrance, they found the wooden door unlocked and entered the lounge. Tanner and Brown were new to Casper; but Davis testified at trial that, on the other occasion that she had been to the Sandbar Lounge, she had found the same conditions: the glass door was locked, the wooden door was unlocked, the lights were dim, and the bar was open for business.
[¶ 4] Upon entry, Davis and Brown went directly to the ladies restroom while Tanner approached the bar. While the women were in the restroom, Tanner called in, "come on, there's no one here, let's go."2 Before leaving the Sandbar, Tanner urged the women to take several bottles of beer and a bottle of bourbon that had been placed beside the door.3 He also asked Davis what she drank, and then went behind the bar. Davis and Brown left the establishment with the liquor and were immediately confronted by the Sandbar's manager, Roger Hessler. He and his girlfriend, Michelle Bouzis, had returned to the Sandbar Lounge after being alerted by another customer to the unlocked door.
[¶ 5] Brown and Davis unsuccessfully attempted to flee from Hessler, who subsequently flagged down Officer Eulberg. Meanwhile, Bouzis entered the tavern through the glass doors and confronted Tanner behind the bar near the register. Upon asking what he was doing there, Tanner replied he was "waiting for somebody to get him a drink." When Bouzis expressed skepticism at this statement, Tanner responded, "I just want to leave, I don't want any hassles." Instead, he and Bouzis went outside to join Hessler, Brown, and Davis in being questioned by Officer Eulberg. Tanner was subsequently arrested for burglary.
[¶ 6] Following Tanner's conviction for burglary, the district court entered its judgment and sentence on March 2, 2001, sentencing Tanner to a prison term of eighteen to eighty-four months. This timely appeal followed.
[¶ 7] Tanner asserts three claims of error on appeal. Finding the first to be dispositive, we will confine our discussion to the issue of whether there was sufficient evidence to support, beyond a reasonable doubt, his conviction for burglary in violation of Wyo. Stat. Ann. § 6-3-301.4 We review this claim under our usual standard:
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. Jennings v. State, 806 P.2d 1299, 1302 (Wyo.1991) (quoting Munson v. State, 770 P.2d 1093, 1095 (Wyo.1989)). 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. Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996). We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. Id. (citing Wetherelt v. State, 864 P.2d 449, 452 (Wyo.1993)). "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." Id. (citing Hodges v. State, 904 P.2d 334, 339 (Wyo. 1995)).
Williams v. State, 986 P.2d 855, 857 (Wyo. 1999).
[¶ 8] In asserting his claim that the evidence adduced at trial was insufficient to support his conviction, Tanner directs our attention to the Amended Information, the jury instructions, and the general verdict form signed by the presiding juror. He contends the information and the jury instructions failed to particularize which portions of the burglary statute the State was relying upon for conviction. He cites to the line of cases, including Bush v. State, 908 P.2d 963, 966 (Wyo.1995), which addresses jury instruction in the alternative and holds that a "verdict must be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected." (Citations omitted.) We agree that those cases are controlling on the subject and generally accept Tanner's analysis of the issue.
[¶ 9] The Amended Information, filed July 21, 2000, charged that:
Ronald Arbie Tanner III, late of the County aforesaid, on or about the 14th day of July, 2000, in the County of Natrona, in the State of Wyoming, did unlawfully, and without authority, enter or remain in a building, occupied structure, or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein, in violation of W.S.1977, as amended, § 6-3-301(a) and (b) contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Wyoming.
As is obvious, the Amended Information was couched in the language of the statute itself with no indication of which of the foregoing circumstances was in fact being charged. Next, we review the jury instructions, including jury instructions numbers 4 and 6. Number 4 reads exactly the same as the Amended Information. Instruction number 6 provided in pertinent part that:
(Emphasis added.) Lastly, we note that the jury returned its guilty verdict on the general verdict form.
[¶ 10] Turning to the law, the rule Tanner relies on has been summarized by a Wyoming commentator in this fashion:
Whenever a jury is permitted to return a general verdict of guilty to a charge which contains alternatives, either one of which will suffice, it is possible that all the jury will not have found the same alternative. If all members of the jury have not agreed to find at least one of the alternatives necessary to convict, a unanimous verdict has not been returned.
Lauer, Barbara L., Jury Agreement and the General Verdict in Criminal Cases, XIX Land & Water L.Rev. 207 (1984). Early support for this proposition can also be found in the case of State v. Tobin, 31 Wyo. 355, 226 P. 681, 685 (Wyo.1924).
[¶ 11] More direct support is found in a number of modern cases. Beginning with Cloman v. State, 574 P.2d 410, 412 (Wyo. 1978) (citing Yates v. United States, 354 U.S. 298, 312, 77 S.Ct. 1064, 1073, 1 L.Ed.2d 1356 (1957)) this court has expressly recognized the rule set out above. In Fife v. State, 676 P.2d 565 (Wyo.1984), we applied the proposition to a burglary case and reversed the defendant's conviction for aggravated burglary when the jury had been instructed in the alternative and we could not determine whether its general verdict was based upon the intent to steal or the intent to commit assault with a deadly weapon. This court wrote:
If both theories of intent submitted to the jury were sufficiently supported by the evidence, we could uphold the general verdict on the aggravated burglary charge. However, there was insufficient evidence as a matter of law to support the intent to assault element. We cannot uphold a general jury verdict when one of the alternate theories upon which the jury could have relied is in error. If one of the alternate theories submitted to the jury is unsupported by substantial evidence, the general verdict must be set aside unless the court can ascertain that the verdict was founded upon a theory supported by substantial evidence. State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (197...
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