Dennis v. State

302 P.3d 890

Jessy Michael DENNIS, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–12–0190.

Supreme Court of Wyoming.

May 31, 2013.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne M. Martens, Assistant Attorney General. Argument by Ms. Martens.

Before KITE, C.J., HILL, BURKE, J.J., GOLDEN, J., Retired, and WILKING, D.J.

WILKING, District Court Judge.

[¶ 1] A jury convicted Jessy Michael Dennis (Dennis), of aggravated burglary in violation of Wyo. Stat. Ann. § 6–3–301(c)(i) (LexisNexis 2011). Dennis now appeals his conviction. He contends there was insufficient evidence of a corpus delicti and no evidence was presented to contradict the innocent intent expressed in his extrajudicial statements. He also argues the district court erred by declining his proposed specific intent instruction and adopting instructions that did not adequately explain the elements of aggravated burglary. We affirm.

ISSUES

[¶ 2] The State adequately describes the issues presented to the Court:

I. Wyoming law requires independent proof of corpus delicti before an admission can be considered as evidence supporting a conviction. Dennis admitted he entered the victims' unlocked home and took a pistol, which he later returned. The victims testified consistently with that admission—that someone entered their home without permission and removed a pistol. Did this testimony provide sufficient corroboration of Dennis' admissions so that the jury could consider those admissions and so that the jury's guilty verdict was supported by sufficient evidence?

II. The test for jury instructions is whether they “leave no doubt as to the circumstances under which the crime can be found to have been committed.” The district court gave jury instructions about aggravated burglary that closely tracked the applicable statutory language, and Dennis agreed at trial that those instructions correctly stated the law. However, he proposed an additional instruction on the specific intent element of aggravated burglary which the court refused because it was repetitive and confusing. Did the court adequately instruct the jury on the elements of aggravated burglary?

FACTS

A. Evidence at Trial

[¶ 3] On June 28, 2011, the State charged Dennis with aggravated burglary in violation of Wyo. Stat. Ann. § 6–3–301(c)(i). Dennis' trial began on February 6, 2012, and the jury returned a guilty verdict on February 7, 2012. The prosecution presented four witnesses—Janelle Johnson, Brady Johnson, Star Jones,¹ and Deputy Brandi Wagner of the Laramie County Sheriff's Department. Dennis did not testify on his own behalf.

[¶ 4] Janelle and Brady Johnson testified that they met Dennis at church and became friends in 2010. The Johnsons were aware of Dennis' troubled past when they befriended him. During the course of their friendship, the Johnsons invited Dennis to their home several times. Their home was located approximately ten miles outside of Cheyenne, Wyoming. Mr. Johnson also had a construction business with Dennis.

[¶ 5] Star Jones was a mutual friend of Dennis and the Johnsons. Jones testified that on May 26, 2011, Dennis met with her after work at a local restaurant in Cheyenne. Dennis appeared happy at lunch and showed Jones pictures of his baby. He told Jones he knew the Johnsons usually kept their home unlocked, and that he went to their home when he knew Mr. Johnson was out of town and Mrs. Johnson was at work. Once there, he entered the home and removed an item from underneath the Johnsons' bed. After leaving the home, Dennis told Jones he drove his truck “out to the middle of nowhere,” because he was “really distraught,” and he “was just going to take care of it, and that he wouldn't have to deal with it anymore.” During this explanation, Dennis put his hand under his chin, and gestured, stating he “was going to end it all.”

[¶ 6] Dennis told Jones that he changed his mind about “ending it all” and tried to return the item he had taken from the Johnsons' home, but found their house was locked. He asked Jones if she could return the item for him. Jones had never been in the Johnsons' home, so Dennis had to explain where the item should be returned, and he drew a layout of the home for her. Jones refused the request and offered instead to inform the Johnsons that Dennis needed to speak with them so he could settle the matter himself. During the May 26, 2011, conversation with Jones, Dennis never explicitly identified the item he had taken from the Johnsons' home. Jones testified she assumed it was a gun and that Dennis had waited a day or two after taking it before he attempted to return it.

[¶ 7] On the evening of May 27, 2011, Jones and the Johnsons attended a movie together. Afterwards, Jones told the Johnsons that they should contact Dennis, as he needed to speak with them. After Jones and the Johnsons exchanged several text messages, it became clear that Dennis had taken something from under the bed in the Johnsons' home. Jones indicated she did not know what the item was, but knew it belonged under their bed. From this, the Johnsons knew the missing item was likely a pistol, as it was the only item they kept beneath the bed.

[¶ 8] When the Johnsons arrived home, they checked underneath their bed and discovered Mrs. Johnson's Ruger pistol was missing. The pistol was a gift from Mrs. Johnson's father, which she kept underneath her side of the bed for protection. The Johnsons kept the pistol in that location so it could not be seen when the bedroom was entered. The Johnsons had not given anyone, including Dennis, permission to enter their home or to move the pistol.

[¶ 9] The Johnsons reported the matter to the Laramie County Sheriff's Department and continued to search for the pistol. Mr. Johnson eventually found the pistol in his truck. Mr. Johnson testified that he had been out of town and had arranged for Dennis to return a nail gun he had borrowed by leaving it in Mr. Johnson's unlocked truck. The pistol was loaded, in its holster, and under a duster when Mr. Johnson found it. The Johnsons did not place the pistol in Mr. Johnson's truck.

[¶ 10] The sheriff's department investigation did not reveal any signs of forced entry and no items other than the pistol were taken.

[¶ 11] On May 29, 2011, Mr. Johnson saw Dennis at church and confronted him about taking the pistol. Dennis replied that he was not supposed to find out and asked how the Johnsons knew the pistol had been taken. Dennis asserted that he did not actually break in since the home was unlocked. Mr. Johnson testified that the conversation clearly pertained to the pistol and not the nail gun. Later the same day, Dennis left a voicemail on Mr. Johnson's cellular phone asking to meet with him to talk about the incident. Dennis also asked Mr. Johnson to tell the police that the whole thing was about a nail gun and not a pistol because he could get into a lot of trouble.

[¶ 12] Dennis also contacted Jones and insisted she recall the exact words she used to describe the situation to the sheriff's department. During that conversation, he tried to convince Jones that the incident was a misunderstanding and that he had eventually returned the gun. Jones testified she was sure Dennis used the word “gun” and not “nail gun,” and she did not know anything about Dennis borrowing a nail gun.

[¶ 13] At trial, the State relied primarily on witness testimony and photographs of the Johnsons' gun, their house, bedroom, and truck. The State did not present any forensic or expert testimony. At the close of the State's case, Dennis moved the district court for a judgment of acquittal. Dennis argued the State had not presented sufficient evidence of corpus delicti independent from Dennis' extrajudicial statements. The district court denied the motion.

[¶ 14] Dennis did not testify or offer any evidence. Defense counsel gave a brief closing argument. Dennis disagreed with his counsel's closing statement and immediately sought to fire his counsel and proceed pro se. The district court granted leave for Dennis to proceed without counsel, but did not allow Dennis to present new evidence or to address the jury as the evidence had been closed and his counsel had already made a closing argument. The jury convicted Dennis of aggravated burglary.

[¶ 15] Dennis filed pro se motions for acquittal and for a mistrial. The district court held a hearing on both motions and denied them.

[¶ 16] The district court sentenced Dennis to not less than five years, nor more than seven years, of imprisonment, which was suspended in favor of five years of probation. Dennis' term of probation was consecutive to the sentence he received for a federal charge of being a felon in possession of a firearm.

B. Jury Instructions

[¶ 17] Prior to trial, the State and Dennis submitted proposed jury instructions. The instructions were substantially similar. However, they differed with regard to the elements of aggravated burglary. Dennis offered an instruction on specific intent, which the district court refused.

[¶ 18] The refused instruction read:

Aggravated Burglary is a specific intent crime.

Specific Intent means more than general intent to commit the act. To prove a crime which involves specific intent, the prosecution must prove beyond a reasonable doubt:

(1) That the Defendant did the act charged; and

(2) That he did it with the specific intent described in the crime charged. The specific intent must be proved beyond a reasonable doubt.

[¶ 19] The district court held the instruction merely repeated the content of other instructions and was confusing as worded. The district court instructed the jury as to the...