Virgilio v. State

• Decision Date: 04 June 1992
• Docket Number: No. 90-209,90-209
• Citation: 834 P.2d 1125
• Parties: Vernon VIRGILIO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1125

834 P.2d 1125

Vernon VIRGILIO, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-209.

Supreme Court of Wyoming.

June 4, 1992.

Leonard D. Munker, State Public Defender; Gerald M. Gallivan, Defender Aid Program; and Timothy F. Marion, Student Intern Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Karen A. Byrne, Senior Asst. Atty. Gen., Jennifer Gimbel, Senior Asst. Atty. Gen., Theodore E. Lauer, Director, Prosecution Assistance Program, and Wilhelm F. Bierman, Student Intern, for appellee. Argument presented by Jennifer Gimbel.

for appellant. Argument presented by Leonard D. Marion.

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

CARDINE, Justice.

Vernon Virgilio appeals his convictions for aiding and abetting the delivery of a controlled substance and conspiracy to deliver a controlled substance.

We affirm.

Virgilio brings the following issues:

ISSUE I

Whether the appellant was convicted contrary to law where the prosecutor presented an improper basis of criminal liability and the court's instructions were ambiguous and could have been interpreted by the jury to mean that mere knowledge of the criminal act was sufficient for a conviction?

ISSUE II

Whether the appellant was improperly denied instructions on his theory of the case, i.e., mere presence with knowledge was insufficient to convict?

ISSUE III

Whether the trial court erred in overruling appellant's objection to the admissability of testimony relating to appellant's prior bad acts?

In July 1989, agents from the Wyoming Department of Criminal Investigation (DCI) were investigating the sale of LSD in the Casper area. Using an informant, the DCI agents arranged a purchase of the drug from Brooke Snyder through James Bryan. In the afternoon of July 17, Bryan purchased 50 "hits" of LSD for the agents from Snyder. The agents told Bryan they wished to purchase more and arranged to meet him later that day at a convenience store parking lot.

At the store parking lot, Bryan was sitting in the passenger seat of appellant Virgilio's vehicle. The agents followed the vehicle to an apartment where Bryan introduced Virgilio to the agents. In Virgilio's presence, Bryan and the agents discussed purchasing LSD. Virgilio offered to drive Bryan to where the LSD was available because he said he wanted to get some LSD for himself.

One of the agents told Virgilio not to drive very fast so the agent could follow him. They also arranged to meet at a car wash if the agents lost Virgilio and Bryan. After meeting at the car wash, Virgilio and Bryan left to arrange for the purchase. They returned to report to the agent that Brooke Snyder would sell 26 "hits" of LSD for $3.50 each. That would have totalled $91.00, but Virgilio suggested the agents give them $90.00 to keep things simple. The money was handed to the appellant, Virgilio, who handed it to Bryan. Virgilio told the agents to stay at the car wash until he and Bryan returned.

Concerned that Virgilio and Bryan might drive off with the money or with the drugs after using their money to purchase them, the agents drove to an area near Brooke Snyder's residence to observe the transaction. Virgilio and Bryan left the residence and saw the agents. Virgilio told the agents that it was not safe where they were and to meet at the car wash. The drugs were delivered to the agents at the car wash.

Virgilio was charged with delivery of a controlled substance and conspiracy to deliver a controlled substance, pursuant to W.S. 35-7-1014(d)(xii), 35-7-1031 and 35-7-1042, on September 6, 1989. He was found guilty of aiding and abetting the delivery of a controlled substance and conspiracy to deliver a controlled substance on May 9, 1990. He was subsequently sentenced to four to six years in the penitentiary.

In his first issue, appellant contends that a combination of the State's closing argument and the jury instructions concerning the law relating to an aiding and abetting conviction resulted in error. We find no error in the argument, the instructions, or a combination of the two.

To determine the propriety of a closing argument, we examine it in its entirety. Hopkinson v. State, 632 P.2d 79, 166 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982). The purpose of closing argument is to allow counsel to offer ways of viewing the significance of the evidence. Wheeler v. State, 691 P.2d 599, 605 (Wyo.1984). The scope of permissible argument by counsel to the jury is within the discretion of the trial court and will not be disturbed absent a clear or patent abuse of discretion. Mayer v. State, 618 P.2d 127, 132 (Wyo.1980). The court should allow a wide latitude of comment on the evidence. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 561 (1956).

To convict a person of aiding and abetting the commission of a substantive offense, it must be proven that the crime in question was committed by someone and that the person charged as an aider and abettor associated himself with and participated in the accomplishment and success of the criminal venture. Tompkins v. State, 705 P.2d 836, 840 (Wyo.1985), cert. denied, 475 U.S. 1052, 106 S.Ct. 1277, 89 L.Ed.2d 585 (1986). Appellant does not contest that the substantive crime was committed. Instead, he contends that the State's closing ignored the other elements necessary for an aiding and abetting conviction.

Appellant focuses on statements made by the State concerning appellant's knowledge of the drug transaction that transpired. He contends that the closing argument focused on knowledge instead of criminal intent. Reading the State's argument, however, in its entirety, we find the State's argument did not rely on whether appellant knew that a drug transaction was transpiring. Throughout the State's argument are references to actions appellant took to further the drug transaction. The argument details the conversations between the DCI agents, Bryan and appellant, appellant's driving Bryan to get the drugs, and appellant's calculating the sale price of the LSD. We find the State's argument was not as characterized by appellant. The argument was proper comment upon the evidence.

Appellant dovetails his argument concerning the State's closing by contending that the argument caused jurors to misunderstand their instructions. He argues that the instructions do not define "criminal intent," and the State's argument suggests that knowledge is equal to criminal intent. We have already discussed and rejected the contention that the State's argument was misleading. Furthermore, the instructions do define "criminal intent." Instruction 7, which is based on Wyoming Pattern Jury Instruction--Criminal 3.203, states:

To be an accessory before the fact, a person must intend that his acts or words secure the commission of the crime. Merely assenting to or assisting in the commission of the felony without knowledge that a crime is going to be committed, or that the defendant's actions are going to aid in the commission of the felony, is not criminal. [Emphasis added]

The instruction defines concisely "criminal intent." See United States v. Smith, 838 F.2d 436, 441 (10th Cir.1988), cert. denied, 490 U.S. 1036, 109 S.Ct. 1935, 104 L.Ed.2d 407 (1989) and Black's Law Dictionary 336 (5th Ed.1979). We find no error in the instructions by themselves or in combination with the State's closing argument.

In his second issue, appellant contends that the court erroneously refused the following two instructions:

DEFENDANT INSTRUCTION "D"

Evidence, though demonstrating Defendant's proximity to an illegal substance and to a person who did have control over the illegal substance, is insufficient to sustain a conviction where it did not establish any type of working relationship between the parties regarding the illegal substance, but merely an association.

DEFENDANT INSTRUCTION "C"

Mere proximity to an illegal substance, mere presence on the property where the illegal substance is located or mere association, without more, with the person who does have control of the illegal substance or the property on which it is found is insufficient to convict the Defendant.

The trial court has a duty to give defendant's instruction presenting his theory of defense if the instruction is supported by competent evidence. Stapleman v. State, 680 P.2d 73, 75 (Wyo.1984). However, the court may refuse an instruction which is argumentative or unduly emphasizes one aspect of the law. Prime v. State, 767 P.2d 149, 154 (Wyo.1989). A court may refuse an instruction if the concept is covered by other instructions. Griffin v. State, 749 P.2d 246, 256 (Wyo.1988).

Both of defendant's offered instructions concerned the effect and proximity to the alleged substance as affecting the type of relationship between an accessory and the principal. They both were more argument than law and unduly emphasized the effect of proximity to an illegal substance or to the principal as sufficient to convict an accessory to a crime. The law was adequately covered in other instructions including Instruction 4, which stated:

The necessary elements of the crime of accessory before the fact to the felony charge are:

1. The crime occurred within the County of Natrona on or about the date of July 17, 1989; and

2. Delivery of a controlled substance was committed by someone as a principal; and

3. The Defendant did aid and abet in the commission of that offense or did counsel, hire, command or procure the commission thereof, the elements of which are set forth in another instruction.

If you find from your consideration of all of the evidence that each of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

If, on the other hand, you find from your consideration of all of the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty[;]

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