Appeal from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
KITE, C.J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] Donald Ray Daves was convicted after a jury trial of twelve counts involving the kidnapping and sexual assault of his wife (hereinafter referred to as "the victim"). On appeal, he challenges the district court's response to a jury question requesting a definition of "used a firearm" and claims he was denied his constitutional right to be present when the court provided supplemental instructions to the jury. He also argues that the evidence was insufficient to convict him on four counts of first degree sexual assault because the State did not prove that he gained the victim's submission by threatening her, her boyfriend and himself. We affirm.
[¶2] Mr. Daves has failed to establish the district court committed plain error when it defined "used a firearm" for the jury. We further conclude that, although the district court erred by failing to provide the supplemental instructions to the jury in open court while the defendant was present, the error was not prejudicial. Finally, the record contains sufficient evidence to support the first degree sexual assault convictions because the State demonstrated Mr. Daves threatened the victim and himself with serious bodily injury or death in order to obtain her submission to the sexual assaults.
[¶3] Mr. Daves presents the following issues on appeal:
I. Did the trial court misinstruct the jury on the definition of "use of a firearm"?
II. Was Mr. Daves denied his right to be present during supplemental jury instruction?
III. Was there sufficient evidence to support all the prosecution theories?
The State provides a more detailed statement of the issues:
I. Did the district court's instruction defining what it means to have "used" a firearm while committing a felony violate clearly established Wyoming law, and was it a valid and reasonable interpretation of Wyo. Stat. Ann. § 6-8-101(a)?
II. Did the district court commit reversible error by conferring with counsel and responding to questions presented by the jury during deliberations?
III. Was the evidence sufficient to support appellant's convictions for first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302 (a)(ii)?
[¶4] On April 4, 2009, Mr. Daves and the victim were in the process of getting a divorce. Mr. Daves told the victim that he was going to return some of her jewelry, so she agreed to meet with him. He picked her up at her residence in Laramie because it was storming and the road conditions were poor. They went to a coffee shop, and he returned some of her jewelry. He told her that the rest of her jewelry was buried with his dead parakeet near an access area on the Laramie River. She agreed to accompany him to the access area to retrieve the jewelry.
[¶5] While they were at the access area, Mr. Daves pulled a gun and forced her to perform oral sex on him. He then decided that he would take her to a motel. They went to two different motels because the first one did not have any available rooms. At both places, he hid the gun in his clothing and took the victim into the motel office with him. He told her to "act normal," while they were in the motel offices so that people would not get suspicious. Once they were in the motel room, he put the gun next to him on the bed. He forced her to remove her clothes and have sexual intercourse with him. During that encounter, he put the gun on the table.
[¶6] After the second sexual assault, he again aimed the gun at her. He also told her that "somebody was going to die that night." Mr. Daves sexually assaulted the victim two more times. During the course of the night, he alternately pointed the gun at her and himself, threatening to commit suicide in her presence. He also threatened to kill the victim's boyfriend. At some point he put the gun in its case, but then directed her to get it out of the case and kill him with it. He finally dropped her off at her residence the next morning, after she promised to meet him later at a park. He stated, "Do not deceive me. Do not make me use this gun."
[¶7] As soon as she arrived home, the victim told her parents about the assaults and they summoned the police. When the officers attempted to contact Mr. Daves at the camper trailer where he was residing, he took off in his vehicle. After leading the officers on a chase over the icy back roads outside of Laramie, he eventually surrendered.
[¶8] The State charged Mr. Daves with one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2009), one count of possession of a deadly weapon with unlawful intent in violation of Wyo. Stat. Ann. § 6-8-103 (LexisNexis 2009), four counts of first degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-302(a)(ii) (LexisNexis 2009), five counts of use of a firearm while committing a felony in violation of Wyo. Stat. Ann. § 6-8-101(a) (LexisNexis 2009), and one count of kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii) (LexisNexis 2009). After a jury trial, he was convicted on all twelve charges. The district court sentenced him to serve a lengthy term of incarceration. Mr. Daves appealed.
A. Definition of "Used a Firearm."
[¶9] Mr. Daves was charged with five counts of use of a firearm while committing a felony, in violation of § 6-8-101(a):
(a) A person who uses a firearm while committing a felony shall be imprisoned for not more than ten (10) years in addition to the punishment for the felony. For a second or subsequent conviction under this section a person shall be imprisoned for not more than twenty (20) years in addition to the punishment for the felony.
Count IV was one of the charges under this statutory section. Instruction No. 13 informed the jury:
For Count IV, the elements of the crime of Use of Firearm While Committing a Felony, as ...