Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel; Office of the State Public Defender.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Jeffrey S. Pope, Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] The appellant was charged by Information with three crimes after a sexually charged attack on his sister-in-law. On the morning trial was to begin, the district court allowed the State to amend Count III of the Information in order to clarify that the charge was for aggravated burglary, not simply burglary. A jury convicted the appellant of aggravated burglary along with battery and third-degree sexual assault. The appellant contends the district court improperly permitted amendment of the aggravated burglary charge. We affirm.
[¶ 2] Did the district court abuse its discretion and deprive the appellant of his right to due process of law under the Sixth Amendment to the United States Constitution and Article 1, Section 10 of the Wyoming Constitution by granting the State's motion to amend Count III of the Information before the trial began?
[¶ 3] Because the circumstances surrounding the sexual assault underlying this case are not pertinent to this appeal, we will simply provide a brief summary of the event. On October 29, 2011, the appellant entered his sister-in-law's home while she and her two-year old son were asleep in her bed. The appellant got on top of his sister-in-law (" EM" ) and proceeded to touch her private areas and attempted to take off her shorts and underwear. When her son awoke, EM asked the appellant to take her out to the living room. Once they reached the living room, the appellant threatened EM and her family, at which point EM opened the front door and screamed for help. To silence the screams, the appellant pushed EM to the floor and began choking her. The appellant then forced EM to make a recording on his cell phone to the effect that EM had invited him over and the entire encounter was consensual. EM acquiesced and the appellant then left.
[¶ 4] We now turn to the procedural part of this matter, with which the appellant takes issue. On November 2, 2011, the appellant was charged with three counts by Information in Platte County Circuit Court: (1) aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2013); (2) third-degree sexual assault in violation of Wyo. Stat. § 6-2-304(a)(iii) (LexisNexis 2013); and (3) " aggravated burglary" in violation of Wyo. Stat. Ann. § " 6-3-
301(a)" (LexisNexis 2013). (Emphasis added.) Specifically, Count III of the original Information states:
On or about October 29, 2011, LEOBIGILDO URIOSTEGUI ALABARRAN [sic] did, without authority, enter or remain in an occupied structure, with the intent to commit a felony therein, to-wit; LEOBIGILDO URIOSTEGUI ALABARRAN [sic] did, without authority, enter a residence occupied by [EM] and her child with the intent to commit a sexual assault upon [EM], CONTRARY to the form of the statute W.S. § 6-3-301(a), in such case made and provided and against the peace and dignity of the State of Wyoming— AGGRAVATED BURGLARY— FELONY [Maximum Penalty: Imprisonment not more than 10 years and or a fine of up to $10,000.]
Although Count III of the original Information states " aggravated burglary," it does not cite the correct subsection for aggravated burglary; rather, it cites the subsection for ...