Appeal from the District Court of Natrona County. The Honorable Daniel L. Forgey, Judge.
For Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.
[¶1] A jury found Zacharia Lee Johnson guilty of attempted first degree murder, aggravated burglary, conspiracy to commit aggravated burglary and aggravated assault. Mr. Johnson appeals, claiming the district court erred in incorrectly instructing the jury on the meaning of malice and denying his motion for judgment of acquittal on the conspiracy charge. We conclude the jury was improperly instructed but Mr. Johnson was not prejudiced thereby. We, therefore, affirm.
[¶2] The issues for our consideration are:
1. Whether the district court incorrectly instructed the jury on the definition of malice.
2. Whether sufficient evidence was presented to sustain the conspiracy conviction.
[¶3] On March 4, 2013, the Casper Police Department received a 911 call from a man who said he had been stabbed multiple times at his apartment in Casper, Wyoming. When officers arrived at the scene, they found Robert Masterson covered in blood. Emergency personnel transported Mr. Masterson to the Wyoming Medical Center where they found stab wounds to the upper right and left sides of his torso, his neck, his left leg, and his stomach. He had a collapsed lung and perforated stomach as a result of the stab wounds to his torso.
[¶4] Detective John Hatcher interviewed Pamela Nemetz, who lived in the apartment across the hall from Mr. Masterson. She reported that on the evening Mr. Masterson was stabbed, two white males had knocked on her door and asked for " Robert." She said she directed them to Mr. Masterson's apartment, they knocked on his door and he let them in.
[¶5] Police officers obtained a warrant to search both Mr. Masterson's and Ms. Nemetz's apartments. They found a Carhart type coat containing a wallet and a red handkerchief in Ms. Nemetz's apartment. Inside the wallet, they found an identification card for Robert Chad Simmons. Apparently not realizing the items were connected to the stabbing, the officers left the coat and its contents in Ms. Nemetz's apartment. The next day, Ms. Nemetz's son brought the coat, wallet and handkerchief to the police department, thinking they might be connected with the stabbing. Police interviewed Ms. Nemetz a second time and she said the two men had been in her apartment before going to Mr. Masterson's. She provided a description of both of the men and identified the second man, Mr. Simmons, from a photo lineup. She stated he had left the coat in her apartment.
[¶6] On March 6, 2013, police learned that Mr. Simmons had driven his vehicle into the North Platte River near Casper. Fire personnel reported that Mr. Simmons had said he drove into the river in an attempt to " atone for his sins for stabbing a guy the other night." Mr. Simmons told police he knew Ms. Nemetz, had left his coat in her apartment, was in the building where the victim's apartment was located when the stabbing occurred, " the other guy" stabbed the victim in the neck first and then he (Mr. Simmons) stabbed the victim once. Police later interviewed Ms. Nemetz a third time and she identified Mr. Johnson from a photo lineup as the other man who came to her apartment on the night of the stabbing and then went to Mr. Masterson's apartment.
[¶7] On March 11, 2013, police interviewed Mr. Masterson. He identified Mr. Johnson from a photo lineup as the man who stabbed him but was unable to identify Mr. Simmons. Mr. Johnson was subsequently arrested and charged with one count of attempted first degree murder in violation of Wyo. Stat. Ann. § § 6-2-101 (LexisNexis 2015) and 6-1-301 (LexisNexis 2015), one count of aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301, one count of conspiracy to commit aggravated burglary and one count of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502 (LexisNexis 2015). Prior to trial, Mr. Johnson's cellmate informed police Mr. Johnson had told him that he and Mr. Simmons went to the apartment, ambushed Mr. Masterson, stabbed him, and attempted to slash his throat. The cellmate indicated Mr. Johnson had said he and Mr. Simmons intended to kill Mr. Masterson because he was a child molester. The cellmate also indicated Mr. Johnson said Ms. Nemetz owed Mr. Masterson money and he hoped by killing Mr. Masterson he might get in good with her brothers who were part of the Hell's Angels motorcycle gang.
[¶8] After a two and a half day trial, the jury found Mr. Johnson guilty on all counts. The district court sentenced him to a term of life according to law on the attempted first degree murder conviction and terms of eight
to ten years each for the aggravated burglary, conspiracy and aggravated assault convictions. The district court ordered the aggravated burglary sentence to be served concurrently to the life according to law sentence, the conspiracy sentence to be served concurrently to the life according to law and first eight to ten year sentence and the aggravated assault sentence to be served concurrently to the other three sentences. Mr. Johnson timely appealed from the judgment and sentence.
STANDARD OF REVIEW
[¶9] Mr. Johnson asserts the district court erred when it instructed the jury on the definition of malice. He did not object to the instruction, therefore, we review the issue for plain error. Collins v. State, 2015 WY 92, ¶ 10, 354 P.3d 55 (Wyo. 2015) citing Fennell v. State, 2015 WY 67, ¶ 23, 350 P.3d 710, 719 (Wyo. 2015) and Anderson v. State, 2014 WY 74, ¶ 40, 327 P.3d 89, 99 (Wyo. 2014). Plain error exists when: 1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right resulting in material prejudice. Id.
[¶10] Mr. Johnson also contends the district court erred in denying his motion for judgment of acquittal on the conspiracy to commit aggravated burglary conviction, arguing the evidence presented was insufficient to support it. In determining whether there was sufficient trial evidence to sustain a conviction, we apply the following standards:
[W]e examine and accept as true the State's evidence and all reasonable inferences which can be drawn from it. We do not consider conflicting evidence presented by the defendant. We do not substitute our judgment for that of the jury; rather, we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.
Mraz v. State, 2014 WY 73, ¶ 10, 326 P.3d 931, 934-935 (Wyo. 2014), citing Ken v. State, 2011 WY 167, ¶ 19, 267 P.3d 567, 572 (Wyo. 2011).
1. Definition of Malice.
[¶11] Under Wyoming law, the crime of attempted first degree murder is defined as follows:
§ 6-1-301. Attempt; ...
(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A " substantial step" is conduct which is strongly corroborative of the firmness of the person's ...