Amrein v. State , 1992 Wyo. LEXIS 108 ( 1992 )

GOLDEN, Justice.

In a jury trial presided over by a nonlaw-yer justice of the peace, petitioner Terrence Amrein was convicted of eight counts of cruelty to animals. Sentenced to serve eight consecutive jail terms of six months each and ordered to pay eight fines of $750 each, the petitioner appealed to the district court. That court affirmed. Petitioner then filed with this court his petition for a writ of certiorari seeking a review of issues concerning right to counsel, double jeopardy, and lack of jurisdiction. This court issued its order granting the petition for the purpose of considering three issues:

1. Was appellant denied his right to counsel because the presiding judge was a nonlawyer justice of the peace?

2. Was appellant’s right against double jeopardy violated when he was convicted and sentenced on multiple counts of cruelty to animals which resulted from a single continuous criminal act or transaction?

3. Did the justice of the peace lack jurisdiction to impose eight (8) consecutive six (6) month jail terms and eight (8) consecutive $750.00 fines?

We consider these issues in the context of the following factual background. Following the sheriffs investigation of allegations that forty horses and forty-five cows in the petitioner’s custody had been deprived of food, water, and shelter, the deputy county and prosecuting attorney of Sublette County filed an information against petitioner in the justice of the peace court charging him with forty-four counts of cruelty to animals in violation of Wyo.Stat. § 6-3-203(b) (June 1988).

After the prosecution amended the information several times, petitioner went to trial before a jury on nine counts. Common to all the counts in the amended information was the prosecutor’s averment that on April 1, 1989, Amrein had unnecessarily failed to provide each animal with proper food. Of the nine counts, six referred to horses and three to cows. A nonlawyer justice of the peace presided over the trial. Petitioner was represented by appointed counsel. The jury found petitioner guilty of eight of the nine counts. The justice of the peace sentenced petitioner to serve six months in jail and ordered him to pay a fine of $750 on each of the eight counts, the jail sentences to run consecutively. Consequently, petitioner faces four years in jail and a fine totaling $6,000. The jurisdiction of the justice of the peace court in criminal cases is defined:

Justice of the peace courts have jurisdiction in all criminal cases amounting to misdemeanor [misdemeanors] for which the punishment prescribed by law does not exceed imprisonment for more than six (6) months and a fine of not more than seven hundred fifty dollars ($750.00). Jurisdiction shall also include those criminal cases in which the defendant is placed on probation for a period exceeding the maximum six (6) months imprisonment sentence under Wyo.Stat. 31-5-233(d).

Wyo.Stat. § 5-4-116 (Supp.1991).

We hold that petitioner was not denied his right to counsel because a nonlawyer justice of the peace presided over the petitioner’s jury trial. We hold, however, that petitioner’s right against double jeopardy was violated when he was convicted and sentenced on multiple counts of cruelty to animals that resulted from a single continuous criminal transaction. Accordingly, we reverse all but one of the convictions, sentences and fines, and affirm the petitioner’s conviction, sentence, and fine on one count of cruelty to animals. In light of this disposition, we do not address the question whether the justice of the peace court lacked jurisdiction to impose eight consecutive jail terms and fines in this case.

DISCUSSION

1. Right to counsel.

Petitioner states in his brief, “the principal thrust of petitioner’s argument is that a jury trial before a lay justice of the peace is per se violative of due process, and more specifically the right to counsel * * Petitioner seems to be claiming that, considering the complications of a jury trial and evidentiary problems, the right to counsel, as guaranteed under both the sixth amendment, U.S. Const, and Wyo. Const, art. 1, § 10, requires “a judge trained to understand legal arguments.”

In Canaday v. State, 687 P.2d 897 (Wyo.1984), we held that an accused's due process rights were not violated by a trial presided over by a nonlawyer justice of the peace. Canaday differs from petitioner’s specific claim here in that we did not decide that an accused’s lawyer cannot function effectively before a nonlawyer judge. We agree with the state’s assessment here that the reasoning that underlies Canaday supports the conclusion in the instant case that the performance of an accused’s lawyer is not per se impaired when a nonlawyer judge presides over the accused’s misdemeanor trial.

Although petitioner rhetorically asserts that his trial was “a disorderly, if not lawless, free-for-all with little regard for (or consistency in application of) the rules of evidence * * he eschews the assignment of specific trial errors for the purpose of establishing reversible error. Despite the petitioner’s rhetoric, he fails to present evidence, legal authority, or cogent argument to support his claim that lay judges are so inherently unable to communicate with lawyers that an accused is denied effective assistance of counsel when a non-lawyer judge presides over an accused’s trial. We note that the petitioner’s concern about a nonlawyer justice of the peace’s training is not well-founded in Wyoming. In this state a justice of the peace must attend a training school after election or appointment to office and must continue to attend such training while in office. We reject petitioner’s assignment of error on this point.

2. Double jeopardy.

In Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977), this court recognized that although the double jeopardy clauses found in Wyo. Const. art. 1, § 11, and in the fifth amendment, U.S. Const, “are dissimilar in language, they have the same meaning and are coextensive in application.” That being so, we shall apply our state’s double jeopardy clause to answer the second issue presented. This clause provides an accused three protections. It protects the accused who has been acquitted against a second prosecution for the same offense; it protects the accused who has been convicted against a second prosecution for the same offense; and it protects the accused against multiple punishments of the same offense. Birr v. State, 744 P.2d 1117, 1119, (Wyo.1987), cert. denied, 496 U.S. 940, 110 S.Ct. 3224, 110 L.Ed.2d 671 (1990). In this case we are concerned with the third protection, and the issue is whether petitioner was convicted and punished on multiple counts of cruelty to animals which resulted from a single criminal transaction.

Since consecutive sentences and multiple fines were imposed at a single trial, petitioner correctly points out that “the role of the [double jeopardy clause] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.” Birr, 744 P.2d at 1119 (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977)). Thus, the problem is one of determining the legislative intent underlying § 6 — 3—203(b), proscribing cruelty to animals. We recognized in Vigil that statutory construction and legislative intent will control the determination whether, when there are multiple victims from a single act or course of conduct, there is only one crime or as many crimes as there are victims. Vigil, 563 P.2d at 1352-53. In Vigil we noted a difference in crimes against persons in contrast to crimes against property. We said, “As a general proposition, with few exceptions, in crimes against the person, when contrasted with crimes against property, there are as many offenses as individuals affected.” Id. at 1352.

Applicable general principles of statutory construction include: if the language is clear and unambiguous, we must abide by the plain meaning of the statute; if a statute is ambiguous, we may resort to general principles of construction; an ambiguous statute is one whose meaning is uncertain and susceptible of more than one meaning; and in a criminal statute, an ambiguity should be resolved in favor of lenity. Story v. State, 755 P.2d 228, 231 (Wyo.1988). See also, Capwell v. State, 686 P.2d 1148 1152-53 (Wyo.1984).

With the above and foregoing propositions and principles in mind, we turn to the language of the criminal statute in question:

A person commits cruelty to animals if he has the charge and custody of any animal and unnecessarily fails to provide it with the proper food, drink or protection from the weather, or cruelly abandons the animal.

Wyo.Stat. § 6-3-203(b) (emphasis added).

The state emphasizes the legislature’s use of the singular noun and pronoun in the provision, i.e., “any animal,” “it,” and “the animal.” Further, the state traces the humanitarian effort in the late stages of the last century which contributed to the enactment of cruelty to animal statutes. Claiming that this humanitarian impulse is concerned with the pain and suffering which each mistreated animal must endure, the state argues that the legislative intent was to protect individual animals, which individually feel pain and suffering.

On the other hand, petitioner maintains the statutory provision is susceptible to an interpretation that the “unit of prosecution” is determined by the accused’s conduct of failing to provide it or them proper food, drink or protection from weather. In support of this view, petitioner points to the legislature’s use of the plural “animals” in the opening clause and the modifier “any” when referring to “animal.” Relying on the apparent ambiguity of the statutory provision, petitioner invokes the rule of lenity and asks us to decide in his favor on this point.

Apart from considering the competing contentions of the prosecution and the petitioner, we have also considered this court’s double jeopardy discussion in Jerskey v. State, 546 P.2d 173, 183-87 (Wyo.1976). In the course of that opinion the court discussed the concept of merger of separate criminal offenses. Id. at 186. We noted that separate charges could be brought in the same complaint under the theory that both are of the same character or are based on the same transaction constituting part of a common scheme or plan. Id. at 186-87. In Jerskey, which involved possession with intent to deliver marijuana, we found only one transaction, not different transactions which would support multiple convictions. We held:

There was but one transaction — one common scheme or plan — and, because one offense was merged with another, the convictions may not be stacked because the result would be to have twice placed the defendant in jeopardy in that he would have received multiple punishment for the same offense at one trial.

It was therefore prejudicial error for the court to enter judgment and sentence for more than one of the alleged crimes.

Id. at 187.

In the instant case, the amended information charged Amrein with cruelty to nine animals on April 1, 1989, by failing unnecessarily to provide them with food. Considering the ambiguity of the statutory provision, as petitioner points out, and the prosecutor’s identification of one transaction in.the information, as well as the rule of lenity which comes into play when ambiguities exist, we are constrained in this close case to hold that Amrein’s cruelty to animals on April 1, 1989, constituted but one offense. We further hold that the convictions may not be stacked because the result would be to have placed Amrein in jeopardy multiple times in that he would have received multiple punishments for the same offense.

We hold it was prejudicial error for the trial court to enter judgment and sentence for more than one conviction of cruelty to animals. We vacate all but one of Am-rein’s convictions and enter judgment and sentence on that one conviction of cruelty to animals with the punishment to be six months in jail and a fine of $750. As our resolution of this issue disposes of the case, we need not address the third issue presented in this court’s order granting the petition.

URBIGKIT, J., filed an opinion, concurring in part and dissenting in part.

THOMAS, J., filed a dissenting opinion.