Appeal from the District Court of Laramie County. The Honorable Peter G. Arnold, Judge.
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; TinaN. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens..
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.
[¶1] Appellant James Andersen challenges his conviction of felony child abuse for physically injuring his daughter in violation of Wyo. Stat. Ann. § 6-2-503(b)(i) (LexisNexis 2013). He argues that the district court failed to properly instruct the jury on the elements of the crime, and that the evidence was not sufficient to prove the offense beyond a reasonable doubt. We agree that the jury was not properly instructed on the elements of felony child abuse, and that the error created confusion with regard to the necessary elements of the crime and the burden of proof, resulting in material prejudice. The evidence presented at trial was, however, sufficient to support Appellant's conviction. We therefore reverse and remand for a new trial.
[¶2] 1. Did plain error occur because the district court's instruction on the elements of felony child abuse omitted language indicating that " physical injury" excludes " reasonable corporal punishment" ?
2. Was the evidence sufficient to permit the jury to find Appellant guilty beyond a reasonable doubt of physically abusing his daughter in violation of § 6-2-503(b)(i)?
[¶3] The events resulting in Appellant's conviction for physically abusing his fifteen-year-old daughter R.A. occurred on March 30, 2012. That afternoon, Appellant confronted R.A. about her report card, and the two had a heated conversation about her poor grades. Appellant began yelling at his
daughter, but she ignored him. Ostensibly to get her attention, he hit her in the rib cage with an open hand. R.A. testified that the blow was not hard or really painful, but that it did cause a small bruise. R.A. indicated in a written statement for law enforcement that her father also slapped her in the face at some point during the argument. The slap did not leave a bruise, but it left a " little red mark" on the left side of her face and she " had a little blood" in her nose. However, R.A. testified at trial that the slap " wasn't hard" and she could not remember why her nose bled.
[¶4] During the course of this confrontation, R A .'s younger brother and Appellant's son, D.A., arrived home from school. D.A. observed R.A. get " smacked" in the ribs by their father. Appellant then directed his attention and anger towards D. A. because of his poor grades. We will not describe Appellant's conduct toward D.A. because the jury found him not guilty of abusing his son.
[¶5] After these disturbing events, Appellant and the two children went to a neighbor's house to help with yard and landscaping work. They returned home in the early evening, at which point Appellant fell asleep.
[¶6] Later that evening Mrs. Andersen came home, Appellant awoke, and the two began to argue about what had taken place earlier between him, R.A., and D.A. As they argued, R.A. became fearful that " something bad was going to happen," called the police, put the phone on the ground, and fled to a neighbor's house. Crying and frightened, R.A. told the neighbor that her parents were arguing, which led the neighbor to call the police as well. Law enforcement arrived soon thereafter, investigated the scene, spoke with all involved, had R.A. and D.A. make written statements, and photographed the children's injuries.
[¶7] Appellant was arrested and charged with two counts of felony child abuse in violation of Wyo. Stat. Ann. § 6-2-503(b)(i), as well one count of assault of a household member in violation of Wyo. Stat. Ann. § 6-2-501(b)(e). The two counts of child abuse were based on the alleged injuries inflicted on each of the children. The domestic battery charge, which was later dismissed on the State's motion, related to the argument between Appellant and his wife.
[¶8] After a three-day trial, the jury found Appellant guilty of abusing R.A., but acquitted him of abusing D.A. The district court sentenced Appellant to a term of four to five years incarceration, which it suspended in favor of five years of probation. Appellant timely perfected this appeal. Additional testimony and argument from Appellant's trial will be set forth infra as necessary.
[¶9] Appellant contends that the district court failed to properly instruct the jury as to the elements of felony child abuse under Wyo. Stat. Ann. § ...