Appeal from the District Court of Natrona County The Honorable David B. Park, Judge S-10-0233
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] After two episodes of domestic violence against his ex-wife, Kerry Garnica was charged with two counts of unlawfully touching a household member for a third or subsequent time in the past ten years, in violation of Wyo. Stat. Ann. § 6-2-501 (b) and (f)(ii) (LexisNexis 2007). After a jury trial, the jury found Garnica guilty of both counts. Before sentencing, however, the court allowed the State to amend its Information by correcting the statutory citation. The court sentenced Garnica under the enhanced sentencing provisions.
[¶2] We affirm Garnica's conviction, but reverse his sentence and remand for resentencing.
[¶3] Garnica raises two issues before this Court:
1. The trial court committed reversible error by allowing amendment of the Information after the jury had entered into deliberations, withdrawing a jury instruction from the jury and replacing it with a new instruction, despite the objection of [Garnica].
2. The trial court imposed an illegal sentence and thereby committed reversible error.
[¶4] Because the domestic violence episodes that precipitated this case are not entirely germane to the appeal, we will only briefly detail the two episodes. On February 14, 2009, Garnica and his then wife began to argue in their home. The argument escalated, and Garnica began to hit his wife in the head. In turn, she struck Garnica with a television remote. He then spat on her numerous times. Several months later, on July 16, 2009, an argument erupted in the parking lot of the Casper Walgreen's store. Garnica followed his wife to the store, and they began arguing at the store's entrance. Garnica pushed and slapped his wife before he drove away.
[¶5] We turn to the procedural side of this case, with which Garnica takes issue on appeal. On July 28, 2009, Garnica was charged by Information in Natrona County Circuit Court with two counts of unlawfully touching a household member for a third or subsequent time in the past ten years, in violation of the battery statute. Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2007). That same day, the court issued a warrant for Garnica's arrest. Garnica was apprehended on October 27, 2009, whereafter he waived his preliminary hearing and was bound over to district court. On February 5, 2010, Garnica pleaded not guilty to both counts.
[¶6] Garnica was tried by jury on April 12-14, 2010. After the case was submitted to the jury for deliberation, the jury posed a question to the district court: "Is spitting considered unlawful touch under the contents of Wyoming Statutes .?" The court's answer to this question is irrelevant on appeal but, while considering that question, the court noticed that the State's Information was inaccurate.
[¶7] Specifically, the court noticed that the Information's second count charged Garnica with unlawful touching pursuant to Wyo. Stat. Ann. § 6-2-501(b) (LexisNexis 2007) and used language from that subsection as it existed prior to the July 1, 2009, statutory amendments. However, the second incident of abuse to which that count related occurred 15 days after the amendment to the battery statute became effective. The revised subsection (b) no longer included the unlawful touching language, as a means of committing a battery. That language now exists under subsection (g). See Wyo. Stat. Ann. § 6-2-501(b) and (g)(i) (LexisNexis 2009); 2009 Wyo. Sess. Laws, 379-380, 583. Thus, the State should have cited to § 6-2-501(g)(i) for the second count of unlawful touching.
[¶8] The jury was released due to the quandary facing the court, and the next morning the court heard argument on the matter before the jury reconvened. After the arguments were presented, the court allowed the State to amend its Information by changing the subsection lettering. Additionally, Jury Instruction 8a replaced Instruction 8. The new instruction cited the appropriate statutory subsection, and the court noted the new instruction in open court before the jury.
[¶9] The jury resumed deliberations and found Garnica guilty of twice unlawfully touching his wife, a household member, in a rude, insolent, or angry manner. These were Garnica's third and fourth domestic violence convictions in the last ten years, with the first two occurring in 2003 and 2004. Accordingly, the two counts relating to this case were enhanced to felonies pursuant to § 6-2-501(f)(ii), and on June ...