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Jackson v. State

Supreme Court of Wyoming

July 30, 2019

DUANE LESTER JACKSON, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel. Argument by Mr. Westling.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Benjamin Fischer, Assistant Attorney General. Argument by Mr. Fischer.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          GRAY, JUSTICE

         [¶1] Appellant Duane Lester Jackson was charged with three counts of first-degree sexual abuse of a minor. The jury convicted Mr. Jackson on Counts I and III. It acquitted him on Count II. The district court granted a judgment of acquittal on Count III. Mr. Jackson appeals his conviction on Count I claiming reversible error because the jury instructions contained identical elements for Counts I and II with nothing to differentiate one count from the other. The verdict form also failed to distinguish between Counts I and II. We term these contentions the "Description Issue." Mr. Jackson also argues the evidence was insufficient to convict him of first-degree sexual abuse. Finally, he alleges his trial counsel was ineffective. We conclude Mr. Jackson waived review of the Description Issue claims under the invited error doctrine, the evidence adduced at trial was sufficient to convict Mr. Jackson on Count I, and Mr. Jackson's counsel was not ineffective. We affirm.


         [¶2] We rephrase the issues:

I. Did Mr. Jackson waive his right to appeal the jury instructions and verdict form under the invited error doctrine?
II. Was the evidence sufficient to convict Mr. Jackson of first-degree sexual abuse beyond a reasonable doubt on Count I?
III. Was Mr. Jackson denied a fair trial because of ineffective assistance of counsel?


         [¶3] A.D., a seven-year-old girl, resided in a two-bed motel room in Cheyenne, Wyoming, with her mother, sister and Mr. Jackson. A.D. confided in her grandmother that Mr. Jackson had sexually abused her more than once. Her grandparents reported these allegations to law enforcement, and an investigation was opened. The State charged Mr. Jackson with three felony counts of First-Degree Sexual Abuse of a Minor in violation of Wyo. Stat. Ann. § 6-2-314(a)(i) and (c). The Information described the three counts identically, without distinguishing facts. At trial, however, A.D. testified to three separate incidents of sexual intrusion: the first occurred on the bed; the second took place in the bathroom; and the third was digital penetration as opposed to sexual intercourse.

         [¶4] At the close of the State's evidence, the district court commented on distinguishing the occurrences:

THE COURT: . . . [E]ven if you take the victim's evidence sort of situationally, there is an incident on the bed, incident in the bathroom, that's two, but in what period of time and when? Those are very troubling, but, of course, the Wyoming Supreme Court has not put that burden on the State, and if it occurred one, two or more times in an identifiable time period, and here, you know, it seems identifiable, you know, I can't cut it out for that reason, I guess.

         The parties initially agreed to the jury instructions at the jury instruction conference. However, Mr. Jackson's counsel objected to the verdict form, arguing that under Heywood v. State, 2007 WY 149, 170 P.3d 1227 (Wyo. 2007) (abrogated on alternate grounds by Granzer v. State, 2008 WY 118, 193 P.3d 266 (Wyo. 2008)), the verdict form was unacceptably vague:

[DEFENSE COUNSEL]: . . . [W]e're running into the similar issue that they had in Heywood v. State, where how is the jury going to tell what the conduct was that he's actually being convicted of? There is no indication of what his conduct was in the verdict form that they would find him guilty of, which leads to confusion as to what he was actually convicted of. So I think that needs to be spelled out, what the allegation is, or what conduct actually constitutes the crime so that we know what they think happened.

         Counsel explained, "I don't know what . . . the allegations actually are," and then suggested that the vague descriptions of the underlying counts "need[ed] to be addressed in this verdict form."

         [¶5] The district court expressed concern that adding additional language to the verdict form might "supply[] an allegation" that the State did not raise, but directed the parties to revise the verdict form and present amendments to the district court for consideration the next day. Before the jury instruction conference ended, the State proposed a different remedy-amending the jury instructions to include more detail as to the time and place of each count rather than changing the verdict form. Defense counsel renewed its objection, again citing Heywood, arguing additional specificity was needed in the verdict form:

[DEFENSE COUNSEL]: . . . My recollection of Heywood was they wanted that in the verdict form, and the reasoning there was they didn't want to be amending the Information, but I'm not sure putting it in the instructions would really be amending the Information, so I guess if I could hold off on my argument there and I'll do some more research.

         The district court again directed the parties to come to agreed upon language, "either in the verdict form or in the elements instruction," by the start of trial the next day. If the parties could not agree whether the defining language should be inserted in the jury instructions or in the verdict form, the district court instructed them to send separate versions "of the elements or verdict or whatever," and stated it would rule on competing versions at the start of the third day of trial.

         [¶6] The parties were not able to agree on revised instructions, and each submitted separate jury instructions to the district court.[1] Neither submitted an alternate verdict form. The State then informed the court it agreed with the Defendant's jury instructions. The district court noted the defense counsel's proffered instructions "say the same thing [as the State's proposed instructions] but don't identify a location . . . ." The verdict form was not discussed further.

         [¶7] The district court sentenced Mr. Jackson to a term of not less than twenty-five years in prison on ...

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