Appeal from the District Court of Campbell County The Honorable Dan R. Price, II, Judge
The opinion of the court was delivered by: Burke, Justice.
Before KITE, C.J., HILL, BURKE, DAVIS, JJ., and GOLDEN, J., Retired.
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] Appellant, Daniel Walker, challenges his conviction for felony stalking, in violation of Wyo. Stat. Ann. § 6-2-506(e)(iv). He contends that the amended information did not allege facts sufficient to constitute the offense of felony stalking and did not adequately inform him of the charges against him. Appellant also claims that the jury was not properly instructed with respect to the intent element of the crime, resulting in plain error. We find no error in the district court's decision permitting the State to amend the information and also conclude that Appellant was adequately informed of the charges. We agree, however, with Appellant's contention that the jury was not properly instructed regarding the elements of the crime. As a result, we reverse and remand for a new trial.
[¶2] Appellant presents the following issues:
1. Did the trial court abuse its discretion when it allowed the State to amend the felony information?
2. Was Mr. Walker denied his constitutional right to adequate notice of the charge he must defend against, as provided for under the federal and the Wyoming Constitutions, and the Wyoming Rules of Criminal Procedure?
3. Did plain error result when the trial court provided a confusing and misleading jury instruction which combined two of the elements of stalking and instructed the jury that both of those elements were met upon the State establishing a combination of certain actions by Mr. Walker?
The State phrases the issues in a substantially similar manner.
[¶3] Appellant and the victim, Angelia Leair, married in 1989 and separated in September, 2006. The marriage produced two children. In July, 2006, while Appellant and Ms. Leair were still married, Ms. Leair went to a bar with a friend without telling Appellant. When she returned home, Appellant confronted her about some checks she had written that night. Appellant became angry and hit her with a checkbook. He then retrieved a rifle from the gun cabinet in their bedroom and threatened to commit suicide.
Ms. Leair called the police and Appellant was arrested. Criminal charges were later filed against Appellant, but Ms. Leair apparently chose not to cooperate with the prosecution and the State eventually dismissed the charges.
[¶4] At Ms. Leair's request, Appellant moved out of their home in September, 2006. A few weeks later, Ms. Leair obtained a protection order against Appellant, which remained in effect until January, 2007. The order stated that Ms. Leair had been the victim of an act of domestic abuse as defined by Wyo. Stat. Ann. § 35-21-102(a)(iii) and provided that Appellant "shall not initiate contact with [Ms. Leair] anywhere either directly or indirectly." (Emphasis omitted.) In February, 2007, after the protection order expired, Appellant had regular contact with Ms. Leair at her place of employment on his delivery route for the United Parcel Service. During one such interaction on February 15, 2007, Appellant became angry with Ms. Leair and called her employer to report that she had been having an affair with her boss, an allegation that Ms. Leair denied. Appellant's conduct caused a significant delay in Ms. Leair's advancement from temporary to permanent employment.
[¶5] Two months after that incident, in April, 2007, Appellant followed Ms. Leair in his vehicle after she picked up their son from a friend's house. Appellant overtook Ms. Leair on the highway and "slammed on his brakes" in front of her. Ms. Leair drove around Appellant and proceeded to the Sheriff's Department to report the incident. Appellant was subsequently charged with reckless driving. After pleading guilty, he received a sentence of thirty days in jail, which was suspended in favor of six months of unsupervised probation, to be served from April, 2008 to October, 2008. As a condition of probation, Appellant was ordered to have no contact with Ms. Leair. Additionally, due to Appellant's conduct, Ms. Leair obtained a second protection order, which remained in effect until October, 2007. That protection order was later extended to April, 2008 on Ms. Leair's motion.
[¶6] In May, 2007, while the second protection order was still in effect, Appellant entered Ms. Leair's home when she was not there and prayed over her bed. Four days later, Appellant left a voicemail on Ms. Leair's phone. As a result of these incidents, Appellant was charged with, and pled guilty to, two counts of violation of a protection order. Appellant was again sentenced to thirty days in jail, but that sentence was also suspended in lieu of six months of unsupervised probation.
[¶7] While Appellant was on probation for his reckless driving conviction, he violated the conditions of his probation by sending a text message to Ms. Leair stating that he was praying for her and asking her to "ask Jesus into your heart." During March, April, and May, 2009, Appellant repeatedly sent Ms. Leair text messages stating that he was praying for her and asking for her forgiveness. Ms. Leair responded to some of these messages by asking Appellant to stop praying for her, to stop harassing her, and to leave her alone.
[¶8] In July, 2009, shortly after Ms. Leair was remarried, she and her new husband encountered Appellant at a Wal-Mart store. Appellant confronted Ms. Leair about an issue relating to the custody of their children and then began to yell at Mr. Leair, asking him how it felt to steal his family and telling him that "he wasn't a real man." Ms. Leair did not report the incident at the time, but testified at trial that she was "really scared" and felt like she could not go anywhere that she might run into Appellant. Several months later, Ms. Leair received a text message from Appellant asking for financial support. After Ms. Leair responded by asking Appellant to stop harassing her and to leave her alone, Appellant sent a message stating that "In the name of [J]esus [I] rebuke you."
[¶9] In October, 2009, Ms. Leair and her husband again encountered Appellant at Wal-Mart. As she and her husband were leaving the store, Ms. Leair saw Appellant driving his vehicle toward them. He began honking his horn and yelling out of his window at Ms. Leair and her husband. As a result of this incident, Ms. Leair obtained an "Ex parte Stalking Order of Protection" on November 6, which remained in effect "until further order of the court." Appellant violated this order on November 29 by calling Ms. Leair's phone and leaving a voicemail. Ms. Leair reported the incident to the police, and Appellant was arrested and charged with a violation of the order. Appellant was released from custody on February 25, 2010, on the condition that he would have "no contact, direct or indirect" with Ms. Leair.
[¶10] In December, 2009, Ms. Leair obtained a "Stalking Order of Protection" against Appellant. The order stated that "After hearing the testimony of the parties and their witnesses, the Court finds that the Respondent's conduct constitutes stalking as defined by W.S. § 6-2-506(b) and that an Order of Protection should be entered." The order provided that Appellant "shall not personally, or through any other person or means, contact, harass, stalk, threaten, intimidate, or otherwise interfere with . . . Angelia Leair or David Leair." The order remained in effect until December, 2010.
[¶11] Three months later, in March, 2010, Ms. Leair and her daughter were at Wal-Mart shopping for a cell phone. According to Ms. Leair's testimony, Appellant approached them from behind and said "[W]ow, you must be making a lot of money these days." Appellant was standing approximately four feet away from Ms. Leair when he made this comment. Ms. Leair immediately left the store with her daughter and reported the incident to the police.
[¶12] Following the incident on March 20, the State charged Appellant with felony stalking under Wyo. Stat. Ann. § 6-2-506(b)(e)(iv) (LexisNexis 2009). The information alleged that "on or about March 20, 2010," 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." After a jury trial, Appellant was found guilty of felony stalking. On appeal to this Court, however, we overturned Appellant's conviction because of error in the jury instructions. Walker v. State, 2012 WY 1, ¶ 13, 267 P.3d 1107, 1112 (Wyo. 2012).
[¶13] After the case was remanded to the district court, the State filed a motion to amend the felony information to specify a range of dates within which Appellant's course of conduct was alleged to have occurred. The district court granted the motion. As amended, the information alleged that Appellant,
on or between July 9, 2006 through March 20, 2010, in Campbell County, Wyoming, did with the intent to harass another person, [Angelia] Leair, engage in a course of conduct reasonably likely to harass that person and the defendant['s] conduct was in violation of a permanent order of protection issued in Campbell County Circuit Court on December 18, 2009 which expired on December 20, 2010 (ST 2009-0050) said offense being Stalking in violation of Wyoming Statute § 6-2-506(b)(e)(iv)[.]
[¶14] Approximately one month later, the State moved to amend the information for a second time. The second amended information provided that Appellant,
on or between July 9, 2006 through March 20, 2010, in Campbell County, Wyoming, did with the intent to harass another person, [Angelia] Leair, engage in a course of conduct reasonably likely to harass that person and the defendant's conduct was in violation of a temporary, or permanent order of protection, or conditions of probation or bond, issued in Campbell County Circuit Court as outlined in the affidavit of probable cause said offense being Stalking in violation of Wyoming Statute § 6-2-506(b)(e)(iii) and (iv)[.]
Appellant objected to the State's motion, claiming that the State "should have requested the amendments it is now seeking at the Arraignment and by failing to do so has waived [its] right to seek additional amendments." On the same day, however, Appellant filed a motion for a bill of particulars with respect to the first amended felony information. In that motion, Appellant claimed that the first amended information "fails to describe what conduct of the Defendant that is alleged to have violated the statutes under which he has been charged." The State responded to Appellant's motion by identifying the dates of the specific acts comprising the alleged "course of conduct" and the dates of the various protection orders entered against Appellant. The State noted that all of the facts contained in its response had been included in the amended affidavit of probable cause accompanying the first amended information and had been testified to at the original trial.
[¶15] At a pretrial hearing held on April 11, 2012, the district court addressed the State's motion for a second amended felony information and Appellant's motion for a bill of particulars. After determining that amending the information would not cause prejudice to Appellant, the district court granted the State's motion. With respect to Appellant's motion for a bill of particulars, Appellant's counsel acknowledged at the pretrial hearing that the State's response "essentially takes care of what would be included in a Bill of Particulars." The district court agreed, stating that "with the [State's] response[,] the Motion for [a] Bill of Particulars is essentially moot and the purpose [of] allowing a defendant to know what the charges are and be in a position to defend has been adequately responded to by the State[.]"
[¶16] The matter proceeded to trial for a second time, and a jury again found Appellant guilty of felony stalking. Appellant timely filed this appeal. Additional facts will be ...