Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Voigt, Chief Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
VOIGT, C.J., delivers the opinion of the Court; BURKE, J., files a dissenting opinion.
[¶1] This is an appeal from a felony stalking conviction. That conviction is just one part of the complicated factual and procedural posture of this case. Finding plain error in the district court's response to questions from the jury, we reverse and remand for further proceedings.
[¶2] 1. Did the district court commit plain error in failing to dismiss the stalking charge based upon the appellant's constitutional double jeopardy right?
2. Did the district court commit plain error in declining to instruct the jury on the appellant's proposed lesser-included offense instruction?
3. Did the district court commit plain error in responding to questions submitted by the jury?
4. Did the district court commit plain error by failing to allow the appellant to allocute before being sentenced?
5. Did the district court abuse its discretion or err as a matter of law in ordering the appellant to pay restitution?
[¶3] The word ―tortured‖ might be an inadequate adjective to describe the factual and procedural history of this case. It all started soon after the appellant and the victim began dating in 2005. Their rather tumultuous and intermittent relationship led to an incident on May 26, 2006, during which the victim's vehicle and her date's vehicle were both ―keyed,‖ with the damages estimated at $3,000.00 per vehicle. This damage was discovered soon after the appellant had accosted the couple and treated them to a torrent of insults, obscenities, and general verbal abuse.
[¶4] On June 6, 2006, the victim obtained a protection order against the appellant. One month later, the appellant was charged with two counts of felony property destruction based upon the ―keying‖ incident. One of the conditions of bond in that case was that the appellant have no contact with the victim. As frequently happens in situations such as this one, the existence of the protection order and the bond conditions had little effect upon the conduct of the victim and the appellant, who continued their less-than-peaceful coexistence. Over the ensuing months, several incidents of emotional conflict, verbal combat, and physical confrontation took place, some of which incidents required law enforcement intervention.
[¶5] On November 24, 2006, the appellant was charged with one count of felony stalking, in violation of Wyo. Stat. Ann. § 6-2-506(e)(iii) (LexisNexis 2009).*fn1 The gravamen of the allegation is found in the fourth paragraph of the Information:
4. [On or between the 1st day of November, 2006 and the 24th day of November, 2006] [d]id unlawfully with intent to harass another person, engage in a course of conduct reasonably likely to harass that person and did so in violation of any condition of probation, parole or bail, to wit: did unlawfully with intent to harass [the victim], engage in a course of conduct reasonably likely to harass [the victim] and did so in violation of any condition of probation, parole, or bail, in violation of W.S. § 6-2-506(e)(iii), 2003 Lexis[Nexis], and against the peace and dignity of the State of Wyoming.
[¶6] On February 2, 2007, the stalking Information was amended to add as a second count violation of the protection order, in violation of Wyo. Stat. Ann. § 6-4-404 (LexisNexis 2003).*fn2 This amendment took place in district court, rather than in circuit court. There is no probable cause affidavit attached to the Amended Information, there is in the record no motion to amend, there is no order allowing amendment, there is no indication of a hearing on the matter, there is no indication whether the appellant consented or objected to the amendment, and the Amended Information, itself, contains almost no facts to identify the crime alleged. The only hint is that the crime allegedly occurred on August 23, 2006. At arraignment, defense counsel waived reading of the charges and the appellant pled not guilty to both counts, so we must assume that, at the time, the appellant and his attorney knew what the alleged crime was.*fn3
[¶7] The Amended Information was then amended on July 6, 2007, this time to change the dates of the allegation in the stalking count to encompass the period from October 26, 2006 through November 24, 2006. As with the first amendment, there is no motion to amend, no order allowing amendment, no probable cause affidavit, no indication of a hearing, and no indication of the appellant's consent, even though this amendment took place after the appellant was bound over to district court and after he was arraigned.
[¶8] The stalking charge and the protection order violation charge, but not the separately alleged property destruction charges, were presented to a jury on July 9-10, 2007. The appellant was found guilty of violating the protection order, based upon the victim's testimony that, on August 23, 2006, the appellant had grabbed the steering wheel of her truck and had attempted to put his foot on the gas pedal while the victim was driving, all in the midst of a heated argument during which her thumb and the truck's carpeting were burned by his cigarette, ―[h]e sent pop flying everywhere,‖ and he took and destroyed her cell phone.*fn4 The jury was unable to reach a verdict on the stalking charge, and a mistrial was declared as to that count. On some date not reflected in the record, the appellant was sentenced to 90 days in jail for the protection order violation, and he served that sentence.
[¶9] On October 9, 2007, the State filed a motion to join the retrial of the stalking charge with the trial on the two counts of felony property destruction that had been separately filed back on July 17, 2006. We will quote the reasoning set forth in the State's motion because it is relevant to some of the issues presented in this appeal:
The charge of stalking requires the State to show an ongoing course of conduct by the Defendant intended to harass another person. In the cases at bar the Defendant allegedly vandalized the victim's vehicle as well as the vehicle of her friend in May of 2006, which resulted in two counts of felony property destruction being filed against the Defendant. During the following months the Defendant continued with this course of conduct by violating an order of protection, an offense for which he was convicted at trial, followed the victim, text messaged members of her family, and came into her house through the doggy-door at approximately 2:00 a.m. As a result the charge of stalking was filed against the Defendant.
[¶10] Although there is no order in the record, we presume the motion for joinder was granted because the cases proceeded jointly thereafter. On December 4, 2007, the State filed yet another amended information, this time alleging that the appellant had committed the crime of stalking between the dates of May 27, 2006 through November 24, 2006. On December 7, 2007, a ―4th Amended Information‖ changed the alleged dates to July 14, 2006 through November 24, 2006.*fn5 These dates-July 14 through November 24-were the dates set forth in the elements instruction when the case went to jury trial on December 10-12, 2007.
[¶11] In its case-in-chief during the second trial, the State presented evidence generally of a course of conduct over many months where the appellant threatened, verbally abused, accosted, followed, surveilled, and intimidated the victim. Most such events were not identified by date, time, or place. Specific identified incidents included the following: (1) the May 26, 2006 property damage incident; (2) an August 13, 2006 harassing telephone call; (3) the August 23, 2006 driving incident for which the appellant had been convicted of violating the protection order; (4) a November 12, 2006 harassing telephone call; and (5) the November 24, 2006 incident where the appellant broke into the victim's house through the doggy door.
[¶12] The jury returned its verdict on December 12, 2007, finding the appellant guilty of stalking, but not guilty of the two property destruction charges. A presentence investigation was ordered, and on April 18, 2008, the appellant was sentenced to imprisonment for a period of six to ten years, with credit for time served. This appeal followed.
Did the district court commit plain error in failing to dismiss the stalking charge based upon the appellant's constitutional double jeopardy right?
[¶13] There was no double jeopardy motion or objection below. We do not generally consider issues not raised below. Belden v. State, 2003 WY 89, ¶ 55, 73 P.3d 1041, 1090 (Wyo. 2003). We have previously held, however, that the issue of double jeopardy is jurisdictional because it involves the power of the State to bring the appellant into court, and it may, therefore, be raised at any time. Taylor v. State, 2003 WY 97, ¶ 11, 74 P.3d 1236, 1239 (Wyo. 2003); Kitzke v. State, 2002 WY 147, ¶ 8, 55 P.3d 696, 699 (Wyo. 2002). In these circumstances, we apply the plain error standard of review. Lafond v. State, 2004 WY 51, ¶ 56, 89 P.3d 324, 340-41 (Wyo. 2004). ―Even when constitutional error is alleged, each criterion must be satisfied or a claim for review under the plain-error doctrine will fail.‖ Miller v. State, 904 P.2d 344, 348 (Wyo. 1995). To establish plain error, the appellant must prove (1) the record clearly reflects the alleged error; (2) the existence of a clear and unequivocal rule of law; (3) a clear and obvious transgression of that rule of law; and (4) the error adversely affected a substantial right resulting in material prejudice to him. Sanchez v. State, 2006 WY 12, ¶ 19, 126 P.3d 897, 904 (Wyo. 2006).*fn6
[¶14] The appellant contends that his right to protection against double jeopardy was violated when he was convicted and punished for the August 23, 2006 protection order violation, and then was convicted and punished for stalking based on a course of conduct that included the same incident. For plain error purposes, the record leaves little doubt that the factual part of this analysis is correct. As set forth above, the State clearly relied upon the August 23, 2006 incident as evidence to support the stalking charge. See supra ¶¶ 6-12.
[¶15] The appellant's legal arguments are not, however, as simply stated as the above synopsis. First, quoting Daniel v. State, 2008 WY 87, ¶ 8, 189 P.3d 859, 862 (Wyo. 2008), he contends that the double jeopardy clause prohibits the prosecution of a person for a greater offense after he has been convicted of a lesser-included offense. See Ohio v. Johnson, 467 U.S. 493, 501, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425 (1984); and Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Next, relying upon Edge v. Commonwealth, 883 N.E.2d 928, 930-32 (Mass. 2008), he argues that violation of a protection order is a lesser-included offense of felony stalking. Finally, while nominally paying homage to the statutory elements test found in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.2d 306 (1932), he asks this Court to go beyond that test in analyzing both the lesser-included offense issue and the double jeopardy issue, and to consider the underlying facts and evidence used to prove the separate offenses. In this regard, he cites Bilderback v. State, 13 P.3d 249, 254-55 (Wyo. 2000), where this Court held that the separate crimes of attempted second-degree murder and using a firearm to commit a felony merged for sentencing purposes where the appellant ―did not commit any other act which could have constituted attempted second-degree murder other than using the firearm.‖ Finally, he argues that ...