Weidt v. State, 01-84.

• Decision Date: 17 May 2002
• Docket Number: No. 01-84.,01-84.
• Citation: 46 P.3d 846,2002 WY 74
• Parties: Shirley WEIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

46 P.3d 846

2002 WY 74

Shirley WEIDT, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 01-84.

Supreme Court of Wyoming.

May 17, 2002.

Ken Koski, State Public Defender; Donna Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender, Representing Appellant. Argument by Ms. Yoder.

Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, and Robin Sessions Cooley, Senior Assistant Attorneys General, Representing Appellee. Argument by Ms. Cooley.

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

HILL, Justice.

[¶ 1] Shirley Ann Weidt (Weidt) appeals a conviction for interference with custody alleging that she was denied a fair trial because of a variance between the offense charged in the Information and the instructions given to the jury. Weidt also challenges the sufficiency of the evidence to support the conviction and the competency of her trial attorney's representation. We find no error in any of the claims raised, and we affirm Weidt's conviction.

ISSUES

[¶ 2] Weidt presents three issues for consideration:

Issue I

Was the fact that Appellant was charged with a crime other than the one of which she was found guilty and for which she was sentenced reversible error?

Issue II

Was there sufficient evidence adduced to support Appellant's conviction for violation of W.S. § 6-2-204(a)(ii)(d)(ii), the sole statutory section with which Appellant was charged?

Issue III

Did Appellant's trial counsel fail to adequately represent Appellant?

The State agrees with Weidt's statement of the issues but presents them using slightly different language:

I. Whether Appellant was properly convicted by a jury of the offense alleged in the Information?

II. Whether the evidence was sufficient to support Appellant's conviction of interference with custody?

III. Whether Appellant was denied effective assistance of counsel at trial?

FACTS

[¶ 3] Weidt is the mother of a young daughter. The father of the girl, John Sherard (Sherard), is the primary custodial parent. Pursuant to a court order issued on March 22, 2000, Weidt was prohibited from having any unsupervised visitations with her daughter. In spite of the court order, Sherard allowed the girl to have an unsupervised visit. On June 25 or 26,¹ 2000, Sherard observed Weidt's van parked outside of her friend's house in Sheridan. The girl wanted to see her mother, so Sherard agreed to drop her off with the caveat that he would pick her up in a couple of hours. Sherard watched his daughter walk up to the house and then left when he saw Weidt. Later, Sherard returned only to find Weidt's van gone. Sherard located the van at Weidt's rural residence, but he did not approach the house because he believed that there was a court order preventing him from entering the property.² Using his cell phone, Sherard attempted to contact Weidt. Despite the fact that he could see that the lights and television were on, no one answered the phone.

[¶ 4] Sherard continued to search for his daughter on his own, but he also contacted the Sheriff's office, which began to look for Weidt and the girl after being provided with a copy of the district court's custody order. Several days later, Sherard received a phone call from Weidt, who informed him that he "wasn't going to ever see [their daughter] again, that [Weidt] was going to hide her out in the prairie dog fields; and [that Sherard] would never see her again."

[¶ 5] The police located the girl on July 12 and arrested Weidt. After a one-day jury trial, a verdict of guilty to one count of interference with custody was returned. Additional facts will be developed in our discussion below of the issues raised on appeal by Weidt.

DISCUSSION

1. Variance between Information and Jury Instruction

[¶ 6] In order to address this issue, we begin by setting forth the context in which it appears. Weidt was charged with interference with custody, which provides, in its entirety:

§ 6-2-204. Interference with custody; presumption of knowledge of child's age; affirmative defenses; penalties.

(a) A person is guilty of interference with custody if, having no privilege to do so, he knowingly:

(i) Takes or entices a minor from the custody of the minor's parent, guardian or other lawful custodian; or

(ii) Fails or refuses to return a minor to the person entitled to custody.

(b) Proof that the child was under the age of majority gives rise to an inference that the person knew the child's age.

(c) It is an affirmative defense to a prosecution under this section that:

(i) The action was necessary to preserve the child from an immediate danger to his welfare; or

(ii) The child was not less than fourteen (14) years old and the child was taken away or was not returned:

(A) At his own instigation; and

(B) Without intent to commit a criminal offense with or against the child.

(d) Interference with custody is a felony punishable by imprisonment for not more than five (5) years if:

(i) The defendant is not a parent or person in equivalent relation to the child; or

(ii) The defendant knowingly conceals and harbors the child or refuses to reveal the location of the child to the parent, guardian or lawful custodian.

(e) Interference with custody which is not punishable under subsection (d) of this section is a felony punishable by imprisonment for not more than one (1) year and one (1) day.

Wyo. Stat. Ann. § 6-2-204 (LexisNexis 2001). The Information charging Weidt with interference with custody provided:

Comes now Dianna D. Bennett, Deputy County and Prosecuting Attorney of the County of Sheridan and State of Wyoming, and in the name and by the authority of the State of Wyoming informs the Court and gives the Court to understand that SHIRLEY ANN WEIDT, late of the county aforesaid, on or about June 27, 2000, at the County of Sheridan, in the State of Wyoming, did unlawfully having no privilege to do so, knowingly fail or refuse to return a minor to the person entitled to custody, to-wit: in that the said SHIRLEY ANN WEIDT, having no privilege to do so, knowingly failed to return a minor child to the person entitled to custody, John B. Sherard, the minor child's father and furthermore, SHIRLEY ANN WEIDT refuses to reveal the location of the child to Mr. Sherard;

In violation of W.S. § 6-2-204(a)(ii)(d)(ii)

"INTERFERENCE WITH CUSTODY"

Pursuant then to the Information, Weidt was charged with, having no privilege to do so, failing or refusing to return the minor child, her daughter, to the person entitled to have custody, Sherard, and knowingly concealing, harboring or refusing to reveal the location of the girl to Sherard. Inexplicably, the jury instruction proffered by the State, however, omitted the language from subsection (d) relating to "knowingly concealing, harboring or refusing to reveal the location of [their daughter] to Sherard:"

INSTRUCTION NO. 3

The elements of the crime of Interference with Custody as charged in this case are

1. On or about the 25th or 26th of June, 2000

2. In the County of Sheridan, and State of Wyoming

3. The Defendant, Shirley Ann Weidt

4. Having no privilege to do so

5. Failed or refused to return a minor,³..., to the person entitled to custody of the minor.

If 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.

If, on the other hand, you find from your consideration of all of the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the Defendant not guilty.

The jury returned a verdict of guilty predicated on Instruction Number 3. Defense counsel brought the discrepancy between the Information and the jury instruction to the district court's attention at sentencing. The district court resolved the issue by imposing the penalty under subsection (e):

The Court is going to rule that although the State had an opportunity to charge this Defendant under the five-year felony portion of 6-2-204 after the case was bound over from Circuit Court, it elected to present an element instruction for the smaller, one-year felony under Subsection (a) when the case was presented to the jury for deliberation. Therefore, the Court is going to enter a conviction against the Defendant for having violated 6-2-204(a)(ii).

The penalty section that applies to a violation of that statute is found under Subsection (e)....

The Court observes that had either side requested an element instruction that would have included the concealing and harboring language of Subsection (d) the Court would have granted that instruction.

The district court proceeded to sentence Weidt under subsection (e).

[¶ 7] On appeal, Weidt claims that there was a prejudicial variance between the Information and the jury instruction. Weidt contends that she was, in effect, never tried on the charge that was filed against her. She argues that her counsel entered trial with the expectation that he would be able to offer an affirmative defense to the element charged under subsection (d) that Weidt "knowingly conceal[ed] and harbor[ed] the child or refuse[d] to reveal the location of the child to the parent[.]" Wyo. Stat. Ann. § 6-2-204. Weidt insists that she was prejudiced because she could have been acquitted of the charge of interference with custody based upon her defense to that element.

[¶ 8] Weidt did not offer an objection to the proposed instruction. Therefore, a plain error analysis applies. Taylor v. State, 2001 WY 13, ¶ 16, 17 P.3d 715, ¶ 16 (Wyo.2001). Plain error exists if it can be demonstrated that the record clearly shows an error that has transgressed a clear and unequivocal rule of law and has adversely affected a substantial right of the defendant. Id.

[¶ 9] "A variance between the information and the jury instruction does not automatically result in reversible error." State v. Williams, 18 S.W.3d 461, 469 (...