Appeal from the District Court of Campbell County The Honorable Michael N. Deegan, Judge
The opinion of the court was delivered by: Voigt, 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] The appellant, Daniel Brian Walker, was convicted of felony stalking as a result of an encounter with his ex-wife in violation of a permanent order of protection. Conviction for stalking requires proof beyond a reasonable doubt that the defendant "engage[d] in a course of conduct reasonably likely to harass." Wyo. Stat. Ann. § 6-2-506(b) (LexisNexis 2011). At trial, the jury was given conflicting and misleading instructions with regard to the State's burden of proof as to the elements of the crime. On the one hand, the elements instruction correctly indicated that each element of the crime of stalking, including a course of conduct, must be proven beyond a reasonable doubt for conviction. On the other hand, the district court admitted the incidents comprising the course of conduct as W.R.E. 404(b) uncharged misconduct evidence, rather than as evidence of the charged crime, and instructed the jury that to consider such incidents, the acts must be established by a preponderance of the evidence. For that reason we will reverse and remand for a new trial.
[¶2] Did plain error result when the trial court instructed the jury that evidence of acts comprising a course of conduct of harassment admitted as W.R.E. 404(b) uncharged misconduct need only be proved by a preponderance of the evidence where a course of conduct of harassment is an element of the charged offense?
[¶3] The appellant's ex-wife was shopping at Wal-Mart with her daughter on March 20, 2010. The ex-wife was talking to a sales clerk at the electronics counter when her daughter noticed the appellant approaching. The two then heard the appellant say something to the effect of, "Wow, you must be making a lot of money these days." He stood approximately four feet away from his ex-wife when he made this comment. Mother and daughter quickly left the store. As a result of this encounter, the appellant was charged with felony stalking in violation of Wyo. Stat. Ann. § 6-2-506(b)(e)(iv). The Felony Information simply stated that the appellant, "with the intent to harass another person, engaged in a course of conduct reasonably likely to harass that person and the defendant committed the offense in violation of a permanent order of protection." The content of the Affidavit of Probable Cause is limited to a description of the events at Wal-Mart on March 20 as well as the investigating officer's interaction with the appellant at the appellant's home the following day.
[¶4] Prior to trial, the State filed a Notice of Intent to Introduce W.R.E. 404(b) Evidence. The district court conducted a Gleason hearing to determine the admissibility of the fourteen items of purported W.R.E. 404(b) uncharged misconduct evidence proffered by the State in its notice.*fn1 Generally, this evidence consisted of incidents of alleged harassment by the appellant directed at his ex-wife over the previous four years. The State argued that the purpose for introducing this evidence was to establish "intent, motive, knowledge, course of conduct, absence of mistake or accident." The State emphasized that it was most concerned with course of conduct as a purpose.*fn2 The district court ruled that all fourteen occurrences would be admitted pursuant to W.R.E. 404(b). At trial, as requested by the appellant, the district court verbally gave the following instruction to the jury seven times upon the introduction of the items admitted under W.R.E. 404(b):
You may not use this similar acts evidence to decide whether the defendant carried out the acts involved in the crime charged in this case. In order to consider the similar acts evidence at all, you must first unanimously find beyond a reasonable doubt based on the rest of the evidence introduced that the defendant carried out the acts involved in the crime charged in this case.
If you make that finding then you may consider the similar acts evidence to decide intent, absence of mistake or accident, motive, knowledge or course of conduct. Similar acts evidence must be proven by a preponderance of the evidence. That is you must find that the evidence is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt.
(Emphasis added.) Jury Instruction No. 20 included this language as well and detailed the events of the fourteen prior "similar acts" evidence. The jury was also instructed as follows:
The necessary elements of the crime of Stalking, as charged ...