Appeal from the District Court of Sweetwater County The Honorable Jere A. Ryckman, Judge
The opinion of the court was delivered by: Tyler, D.J.
Before KITE, C.J., and GOLDEN, HILL, and BURKE, JJ., and TYLER, D.J.
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] Appellant, Lawrence Floyd Silva, seeks to overturn his felony convictions for Aggravated Burglary, in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(ii) (LexisNexis 2011), and Attempt to Commit Kidnapping, in violation of Wyo. Stat. Ann. § 6-1-301(a)(i) and Wyo. Stat. Ann. § 6-2-201(a)(iii) (LexisNexis 2011). Appellant contends that the district court erred by preventing him from introducing certain evidence of the victim's prior conduct in his defense to the Attempt to Commit Kidnapping charge. Appellant also claims that the district court wrongfully refused his request to instruct on a lesser-included misdemeanor offense of Attempted False Imprisonment, under Wyo. Stat. Ann. § 6-1-301(a)(i) and Wyo. Stat. Ann. § 6-2-203(a) (LexisNexis 2011), to the felony charge of Attempt to Commit Kidnapping. We find no error and will affirm the convictions.
[¶2] Appellant presents his issues as follows:
I. Did the trial court err in precluding relevant evidence of the victim's prior conduct, prohibiting Appellant from fully presenting his defense?
II. Did the court improperly refuse to instruct on the lesser included offense of false imprisonment?
The State characterizes the issues as follows:
I. Did the district court properly exclude evidence of the victim's previous sexual conduct because it was irrelevant to Appellant's defense?
II. Did the district court properly decline to instruct the jury on the offense of false imprisonment as a lesser-included offense of kidnapping?
[¶3] In the early morning hours of June 19, 2010, Appellant embarked upon his single-minded mission to remove his estranged fiancee from the Rock Springs apartment where she was staying with friends, and to "drag" her to his home so that they could "settle" the discord in their relationship. As he walked the several miles across the city toward the apartment, Appellant outlined his plan and his progress in a torrent of scurrilous voice and text messages sent to his intended's cellular telephone.
[¶4] Upon his arrival at the apartment, Appellant began to pound loudly on the front door, awakening his former girlfriend from her sleep on a recliner in the living room. She approached a window near the door and implored Appellant to leave immediately -- otherwise, she would call the police. Ignoring her plea to leave, Appellant commenced yelling his insistence that she "come home" with him.
[¶5] Alarmed at Appellant's unrelenting exhortations, his erstwhile companion snatched a nearby telephone and dialed 911 to summon help. Appellant then broke through the window screen and came "flying through the window" into the apartment in pursuit of his objective. The victim dropped the telephone and ran screaming into one of the bedrooms where she knelt down in terror while covering her face with her arms. Almost immediately, Appellant began slapping and pulling the victim's arms to pry her away from her position of protection. When these aggressions failed to overpower her resistance, Appellant seized the victim's hair and, while intoning his demand that she "come home," he began dragging her, literally kicking and screaming, down the hall toward the front of the apartment.
[¶6] Amid the ordeal, through the open window earlier breached by Appellant, the shouting voice of a neighbor offered his assistance to the victim and urged Appellant to immediately let loose of the victim and leave the apartment. The victim responded by pleading for the neighbor's assistance. Contemporaneously, Appellant remonstrated the neighbor's intervention by yelling that he should "mind his own business" and that Appellant was "just trying to get his wife home," all-the-while plodding toward the living room at the front of the apartment, pulling the victim by her hair. The locked front door frustrated the neighbor's immediate attempted rescue of the victim.
[¶7] When Appellant reached the living room with his victim in tow, he released her and unlocked the front door to accost the interloping neighbor. As Appellant exited through the door, the victim quickly shut and locked it behind him, and retreated into the apartment. The victim listened as Appellant confronted and grabbed the neighbor. The neighbor repelled Appellant's attack and retaliated by punching and head-butting Appellant into dazed submission. Battered and disoriented, Appellant staggered away from the apartment complex only later to be apprehended by police where he was formally arrested, taken to the hospital for treatment, and jailed.
[¶8] As to the district court's preclusion of certain evidence regarding the victim's past conduct, discovery and pretrial motion proceedings unveiled Appellant's strategy to defeat the charges against him by showing at trial that he lacked any specific intent to remove the victim so that he could "inflict bodily injury on or to terrorize" her. Appellant planned to demonstrate that his true intent at the time of the incident was actually to protect the victim from vulnerabilities to her safety caused by her habitual alcohol consumption by merely taking her to his home. To articulate to the jury his real intent at the time, Appellant proposed to present detailed evidence of the victim's past conduct, particularly related to her frequent use of alcohol, including the following: the victim was an alcoholic; the victim often drank until she passed-out; she had once been assaulted after falling into unconsciousness from alcohol consumption; she had previously been photographed in the nude while asleep under the effects of alcohol; she had a tendency to become promiscuous with strangers when she was under the influence of intoxicants; she had previously been an exotic dancer; she had been arrested for incidents associated with her intoxication; and, she had been convicted of some misdemeanor alcohol-related offenses. Most of the information concerning the victim's supposed sexual conduct before, and during, the tenure of the couple's romantic relationship was learned from investigations conducted after Appellant committed the acts resulting in the charges being levied against him. Despite the fact that he was admittedly ignorant of the victim's putative extraneous sexual behavior prior to the date that the events transpired, Appellant nevertheless wanted to provide such evidence to the jury.
[¶9] The State filed a motion in limine aimed at preempting Appellant's reliance on many of these anticipated proofs. Appellant's trial attorney responded, mainly citing W.R.E. 404(a) as justifying introduction and admissibility of this key evidence. The State's trial counsel objected to admission of this evidence relying upon W.R.E. 405, 608, and 609, and based upon an analogy to Wyoming's rape shield statute, Wyo. Stat. Ann. § 6-2-312 (LexisNexis 2011) (applicable only in sexual assault cases). The district court held a series of pretrial hearings on the pending motion.
[¶10] After completing the hearings and listening to the arguments of counsel, the district court ruled that evidence of the victim's drinking habits and alcohol-related arrests was germane to Appellant's defense. The district court found that evidence of the victim's misdemeanor convictions for alcohol-related violations was inadmissible under W.R.E. 609. The district court held that evidence regarding the victim's sexual conduct while she was intoxicated or evidence that she was once sexually assaulted while she was passed-out was inadmissible since such evidence was not relevant, was unrelated to the victim's reputation for truthfulness or untruthfulness, and was generally viewed as an impermissible overt attack upon her character which was not at issue in the case. Appellant's ostensible lack of knowledge of the victim's sexual conduct prior to the time of the incident proved significant to the district court in making its ruling -- especially as to how Appellant intended to get any specific knowledge of the victim's sexual propensities when she becomes intoxicated into evidence in the event that he did not testify at trial. Nonetheless, the district court invited Appellant's trial counsel to make an offer of proof outside the hearing of the jury at an appropriate time during trial in the event that Appellant wanted to re-address presentation of evidence concerning the victim's sexual past.
[¶11] At trial, the district court gave Appellant's trial counsel considerable latitude in examining the victim and other witnesses concerning the prior conduct of the victim at various times when she was intoxicated. This included a ruling after a bench conference that Appellant's counsel could solicit testimony and evidence pertaining to some photographs which were taken of the nude victim at a time that she was passed-out from the effects of alcohol consumption. Moreover, Appellant testified at length regarding his relationship with the victim and issues related to her drinking. Although the district court remained steadfast in its pretrial prohibition of evidence of the victim's sexual conduct while intoxicated or evidence that she was sexually assaulted while passed-out by sustaining the State's objections at trial, Appellant never asked to make an offer of proof outside the hearing of the jury to preserve for the record any proposed evidence concerning the victim's sexual past in accordance with W.R.E. 103.
[¶12] The second issue on appeal spurs examination of the district court's refusal of Appellant's proffered lesser-included offense instruction. Appellant requested proposed jury instructions setting forth his contention that the jury should consider, in the alternative, Attempted False Imprisonment and False Imprisonment as lesser-included misdemeanor offenses to Attempt to Commit Kidnapping and Kidnapping, respectively. At the jury instruction conference, Appellant's trial counsel objected to the district court's refusal to give the lesser-included offense instructions. The attorney for the State argued, and the district court agreed, that Attempted False Imprisonment is not a lesser-included offense to Attempt to Commit Kidnapping where, as was specifically charged in the instant case, Appellant's purported criminal conduct involved an attempted removal -- not confinement -- of the victim.
[¶13] Ultimately, the jury found Appellant guilty of Aggravated Burglary and Attempt to Commit Kidnapping. The district court sentenced Appellant to imprisonment for twelve to fifteen years on each count to be served concurrent, but consecutive to an imprisonment sentence in an unrelated case.
Standard of Review -- Evidentiary Rulings
[¶14] The standard guiding our review of a district court's evidentiary rulings in a criminal case is well-known:
Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion. We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. In the absence of an abuse of discretion, we will not disturb the trial court's determination. The burden is on the defendant to establish such an abuse.
Edwards v. State, 2007 WY 146, ¶ 7, 167 P.3d 636, 637 (Wyo. 2007) (citations omitted); see Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 36 (Wyo. 2010). Even if an evidentiary determination error is found to have occurred, Appellant carries ...