Appeal from the District Court of Natrona County. The Honorable Catherine E. Wilking, Judge.
Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
BURKE, Chief Justice.
[¶1] Appellant, Thomas Lee Miller, challenges his conviction of second-degree murder on the grounds that the jury was not properly instructed on the element of malice under our recent decision in Wilkerson v. State, 2014 WY 136, 336 P.3d 1188 (Wyo. 2014), which was issued after Appellant's conviction. Because we find Appellant was not prejudiced by the jury instruction defining the element of malice, we will affirm his conviction.
[¶2] Appellant presents the following issue:
Did the district court err when it gave a jury instruction contrary to Wilkerson v. State, 2014 WY 136, 336 P.3d 1188 (Wyo. 2014)?
The State phrases the issue as follows:
In Wilkerson v. State, this Court reversed a second-degree murder conviction after it determined that the Wyoming Pattern Jury Instruction defining malice does not properly instruct the jury on that element. The district court provided the jury at Thomas Miller's trial with the same pattern
jury instruction; however, his trial occurred before Wilkerson was published. Did the district court commit plain error when it ...