Appeal from the District Court of Campbell County. The Honorable John R. Perry, Judge.
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett,[*] Assistant Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] A jury found Gregory Michael Hawes guilty of stalking and kidnapping his estranged wife. On appeal, Mr. Hawes contends that there was insufficient evidence to demonstrate that he engaged in a course of conduct necessary to support a stalking conviction; that he should be resentenced on the kidnapping conviction with mitigation for his voluntary release of the victim; and that the jury was incorrectly instructed on the charge of felonious restraint, a lesser included offense to the crime of kidnapping. We reverse the stalking conviction, and affirm on the other two issues.
[¶2] 1. Was there sufficient evidence of a course of conduct to support the verdict of stalking?
2. Was there sufficient evidence for the jury to conclude that Mr. Hawes did not voluntarily release his kidnapping victim and was thus not entitled to sentence mitigation?
3. Was the jury properly instructed on the lesser included charge of felonious restraint?
[¶3] Mr. Hawes' estranged wife, Donna Hawes, opened her back door on the morning of January 26, 2013, to let her dog in. Instead of her dog, she found Mr. Hawes, who yanked the door from her hand, forced himself into the residence, and pushed her against the freezer with his arm against her throat. Mr. Hawes prevented her from leaving and forced her into the bedroom, where he tied her hands and feet to the bed and gagged her by putting a sock in her mouth.
[¶4] Mr. Hawes told Mrs. Hawes that he would either hang himself and make her watch, or he would kill her and then hang himself. He left the room and returned with a stepladder and some wine. Using an exercise weight, he punched two holes in the ceiling. He then took a bottle of Xanax from the medicine cabinet and washed down a number of the pills with some wine. Mr. Hawes then took the sock out of Mrs. Hawes' mouth so that she could tell him where the television remote was. Now able to speak, Mrs. Hawes asked him how he would feel if someone did this to his mother or one of his daughters, and then Mr. Hawes cut the restraints from her hands with a pair of scissors. She took the scissors, cut her feet free, grabbed her keys, and ran from the home.
[¶5] When asked if Mr. Hawes allowed her to go, Mrs. Hawes responded: " He was right behind me. I -- I just tried to go as fast as I could to get away." Mrs. Hawes decided against trying to drive away in her truck because the windows were iced up and " he was right behind me." Instead, she ran across the pasture toward her neighbor's house, with Mr. Hawes in pursuit. Although he caught up to her a couple of times, Mrs. Hawes got away. She was helped by an English Mastiff puppy who thought they were playing, causing both Mr. and Mrs. Hawes to fall and allowing Mrs. Hawes to wriggle out of the coat Mr. Hawes had hold of and run away. Mrs. Hawes made it to her neighbor's yard and at that point Mr. Hawes abandoned his pursuit. The neighbor let her in, the police arrived, and Mrs. Hawes was taken to the hospital for treatment of her cuts and bruises.
[¶6] On the day before, January 25, Mrs. Hawes was following a white pickup truck on her way to work, and when it turned down a dirt road, she recognized that the truck was being driven by Mr. Hawes. Mrs. Hawes was approximately five miles from her home and approximately one mile from the turn to Mr. Hawes' home when she noticed his truck. When Mr. Hawes first accosted her on the morning of the 26th, Mrs. Hawes asked if that was him the day before, and " [h]e told me he was watching me; that he was -- he was -- that was his truck."
[¶7] At trial, at the close of the State's evidence, Mr. Hawes moved for a judgment of acquittal, arguing that driving down the road in front of Mrs. Hawes on January 25 was not sufficient to constitute a course of conduct to support the stalking charge. The district court denied the motion, and the jury found Mr. Hawes guilty of felony stalking in violation of Wyo. Stat. Ann. § 6-2-506(b) and (e)(iii) (LexisNexis 2013), and kidnapping in violation of Wyo. Stat. Ann. § 6-2-201(a)(ii), (a)(iii), and (d) (LexisNexis 2013). Mr. Hawes filed a motion for new trial, which the district court denied. He was sentenced to five to nine ...