                IN THE SUPREME COURT, STATE OF WYOMING

                                             2013 WY 58

                                                                    APRIL TERM, A.D. 2013


                                                                             May 10, 2013


DANIEL B. WALKER,

Appellant
(Defendant),

v.                                                                  No. S-12-0195

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                      Appeal from the District Court of Campbell County
                           The Honorable Dan R. Price, II, Judge

Representing Appellant:
      Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Kirk A.
      Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General;
      Meri V. Geringer, Senior Assistant Attorney General; Theodore R. Racines, Senior
      Assistant Attorney General. Argument by Ms. Geringer.



Before KITE, C.J., HILL, BURKE, DAVIS, JJ., and GOLDEN, J., Retired.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.

[¶1] Appellant, Daniel Walker, challenges his conviction for felony stalking, in
violation of Wyo. Stat. Ann. § 6-2-506(e)(iv). He contends that the amended information
did not allege facts sufficient to constitute the offense of felony stalking and did not
adequately inform him of the charges against him. Appellant also claims that the jury
was not properly instructed with respect to the intent element of the crime, resulting in
plain error. We find no error in the district court’s decision permitting the State to amend
the information and also conclude that Appellant was adequately informed of the charges.
We agree, however, with Appellant’s contention that the jury was not properly instructed
regarding the elements of the crime. As a result, we reverse and remand for a new trial.

                                         ISSUES

[¶2] Appellant presents the following issues:

              1. Did the trial court abuse its discretion when it allowed the
                 State to amend the felony information?

              2. Was Mr. Walker denied his constitutional right to
                 adequate notice of the charge he must defend against, as
                 provided for under the federal and the Wyoming
                 Constitutions, and the Wyoming Rules of Criminal
                 Procedure?

              3. Did plain error result when the trial court provided a
                 confusing and misleading jury instruction which
                 combined two of the elements of stalking and instructed
                 the jury that both of those elements were met upon the
                 State establishing a combination of certain actions by
                 Mr. Walker?

The State phrases the issues in a substantially similar manner.

                                         FACTS

[¶3] Appellant and the victim, Angelia Leair, married in 1989 and separated in
September, 2006. The marriage produced two children. In July, 2006, while Appellant
and Ms. Leair were still married, Ms. Leair went to a bar with a friend without telling
Appellant. When she returned home, Appellant confronted her about some checks she
had written that night. Appellant became angry and hit her with a checkbook. He then
retrieved a rifle from the gun cabinet in their bedroom and threatened to commit suicide.



                                             1
Ms. Leair called the police and Appellant was arrested. Criminal charges were later filed
against Appellant, but Ms. Leair apparently chose not to cooperate with the prosecution
and the State eventually dismissed the charges.

[¶4] At Ms. Leair’s request, Appellant moved out of their home in September, 2006. A
few weeks later, Ms. Leair obtained a protection order against Appellant, which remained
in effect until January, 2007. The order stated that Ms. Leair had been the victim of an
act of domestic abuse as defined by Wyo. Stat. Ann. § 35-21-102(a)(iii) and provided that
Appellant “shall not initiate contact with [Ms. Leair] anywhere either directly or
indirectly.” (Emphasis omitted.) In February, 2007, after the protection order expired,
Appellant had regular contact with Ms. Leair at her place of employment on his delivery
route for the United Parcel Service. During one such interaction on February 15, 2007,
Appellant became angry with Ms. Leair and called her employer to report that she had
been having an affair with her boss, an allegation that Ms. Leair denied. Appellant’s
conduct caused a significant delay in Ms. Leair’s advancement from temporary to
permanent employment.

[¶5] Two months after that incident, in April, 2007, Appellant followed Ms. Leair in
his vehicle after she picked up their son from a friend’s house. Appellant overtook
Ms. Leair on the highway and “slammed on his brakes” in front of her. Ms. Leair drove
around Appellant and proceeded to the Sheriff’s Department to report the incident.
Appellant was subsequently charged with reckless driving. After pleading guilty, he
received a sentence of thirty days in jail, which was suspended in favor of six months of
unsupervised probation, to be served from April, 2008 to October, 2008. As a condition
of probation, Appellant was ordered to have no contact with Ms. Leair. Additionally, due
to Appellant’s conduct, Ms. Leair obtained a second protection order, which remained in
effect until October, 2007. That protection order was later extended to April, 2008 on
Ms. Leair’s motion.

[¶6] In May, 2007, while the second protection order was still in effect, Appellant
entered Ms. Leair’s home when she was not there and prayed over her bed. Four days
later, Appellant left a voicemail on Ms. Leair’s phone. As a result of these incidents,
Appellant was charged with, and pled guilty to, two counts of violation of a protection
order. Appellant was again sentenced to thirty days in jail, but that sentence was also
suspended in lieu of six months of unsupervised probation.

[¶7] While Appellant was on probation for his reckless driving conviction, he violated
the conditions of his probation by sending a text message to Ms. Leair stating that he was
praying for her and asking her to “ask Jesus into your heart.” During March, April, and
May, 2009, Appellant repeatedly sent Ms. Leair text messages stating that he was praying
for her and asking for her forgiveness. Ms. Leair responded to some of these messages
by asking Appellant to stop praying for her, to stop harassing her, and to leave her alone.



                                            2
[¶8] In July, 2009, shortly after Ms. Leair was remarried, she and her new husband
encountered Appellant at a Wal-Mart store. Appellant confronted Ms. Leair about an
issue relating to the custody of their children and then began to yell at Mr. Leair, asking
him how it felt to steal his family and telling him that “he wasn’t a real man.” Ms. Leair
did not report the incident at the time, but testified at trial that she was “really scared” and
felt like she could not go anywhere that she might run into Appellant. Several months
later, Ms. Leair received a text message from Appellant asking for financial support.
After Ms. Leair responded by asking Appellant to stop harassing her and to leave her
alone, Appellant sent a message stating that “In the name of [J]esus [I] rebuke you.”

[¶9] In October, 2009, Ms. Leair and her husband again encountered Appellant at Wal-
Mart. As she and her husband were leaving the store, Ms. Leair saw Appellant driving
his vehicle toward them. He began honking his horn and yelling out of his window at
Ms. Leair and her husband. As a result of this incident, Ms. Leair obtained an “Ex parte
Stalking Order of Protection” on November 6, which remained in effect “until further
order of the court.” Appellant violated this order on November 29 by calling Ms. Leair’s
phone and leaving a voicemail. Ms. Leair reported the incident to the police, and
Appellant was arrested and charged with a violation of the order. Appellant was released
from custody on February 25, 2010, on the condition that he would have “no contact,
direct or indirect” with Ms. Leair.

[¶10] In December, 2009, Ms. Leair obtained a “Stalking Order of Protection” against
Appellant. The order stated that “After hearing the testimony of the parties and their
witnesses, the Court finds that the Respondent’s conduct constitutes stalking as defined
by W.S. § 6-2-506(b) and that an Order of Protection should be entered.” The order
provided that Appellant “shall not personally, or through any other person or means,
contact, harass, stalk, threaten, intimidate, or otherwise interfere with . . . Angelia Leair
or David Leair.” The order remained in effect until December, 2010.

[¶11] Three months later, in March, 2010, Ms. Leair and her daughter were at Wal-Mart
shopping for a cell phone. According to Ms. Leair’s testimony, Appellant approached
them from behind and said “[W]ow, you must be making a lot of money these days.”
Appellant was standing approximately four feet away from Ms. Leair when he made this
comment. Ms. Leair immediately left the store with her daughter and reported the
incident to the police.

[¶12] Following the incident on March 20, the State charged Appellant with felony
stalking under Wyo. Stat. Ann. § 6-2-506(b)(e)(iv) (LexisNexis 2009). The information
alleged that “on or about March 20, 2010,” Appellant, “with the intent to harass another
person, engaged in a course of conduct reasonably likely to harass that person and the
defendant committed the offense in violation of a permanent order of protection.” After a



                                               3
jury trial, Appellant was found guilty of felony stalking. On appeal to this Court,
however, we overturned Appellant’s conviction because of error in the jury instructions.
Walker v. State, 2012 WY 1, ¶ 13, 267 P.3d 1107, 1112 (Wyo. 2012).

[¶13] After the case was remanded to the district court, the State filed a motion to amend
the felony information to specify a range of dates within which Appellant’s course of
conduct was alleged to have occurred. The district court granted the motion. As
amended, the information alleged that Appellant,

             on or between July 9, 2006 through March 20, 2010, in
             Campbell County, Wyoming, did with the intent to harass
             another person, [Angelia] Leair, engage[] in a course of
             conduct reasonably likely to harass that person and the
             defendant[’s] conduct was in violation of a permanent order
             of protection issued in Campbell County Circuit Court on
             December 18, 2009 which expired on December 20, 2010 (ST
             2009-0050) said offense being Stalking in violation of
             Wyoming Statute § 6-2-506(b)(e)(iv)[.]

(Emphasis in original.)

[¶14] Approximately one month later, the State moved to amend the information for a
second time. The second amended information provided that Appellant,

             on or between July 9, 2006 through March 20, 2010, in
             Campbell County, Wyoming, did with the intent to harass
             another person, [Angelia] Leair, engage[] in a course of
             conduct reasonably likely to harass that person and the
             defendant’s conduct was in violation of a temporary, or
             permanent order of protection, or conditions of probation or
             bond, issued in Campbell County Circuit Court as outlined in
             the affidavit of probable cause said offense being Stalking in
             violation of Wyoming Statute § 6-2-506(b)(e)(iii) and (iv)[.]

Appellant objected to the State’s motion, claiming that the State “should have requested
the amendments it is now seeking at the Arraignment and by failing to do so has waived
[its] right to seek additional amendments.” On the same day, however, Appellant filed a
motion for a bill of particulars with respect to the first amended felony information. In
that motion, Appellant claimed that the first amended information “fails to describe what
conduct of the Defendant that is alleged to have violated the statutes under which he has
been charged.” The State responded to Appellant’s motion by identifying the dates of the
specific acts comprising the alleged “course of conduct” and the dates of the various



                                            4
protection orders entered against Appellant. The State noted that all of the facts
contained in its response had been included in the amended affidavit of probable cause
accompanying the first amended information and had been testified to at the original trial.

[¶15] At a pretrial hearing held on April 11, 2012, the district court addressed the State’s
motion for a second amended felony information and Appellant’s motion for a bill of
particulars. After determining that amending the information would not cause prejudice
to Appellant, the district court granted the State’s motion. With respect to Appellant’s
motion for a bill of particulars, Appellant’s counsel acknowledged at the pretrial hearing
that the State’s response “essentially takes care of what would be included in a Bill of
Particulars.” The district court agreed, stating that “with the [State’s] response[,] the
Motion for [a] Bill of Particulars is essentially moot and the purpose [of] allowing a
defendant to know what the charges are and be in a position to defend has been
adequately responded to by the State[.]”

[¶16] The matter proceeded to trial for a second time, and a jury again found Appellant
guilty of felony stalking. Appellant timely filed this appeal. Additional facts will be set
forth as necessary in the discussion below.

                                      DISCUSSION

Amendment to Felony Information

[¶17] As noted above, this is the second time this case has been before this Court. In
order to place the State’s amendment to the felony information in context, we discuss the
decision in Walker I in more detail here. In Walker I, we noted that the only incident of
harassment identified in the charging documents was Appellant’s encounter with the
victim on March 20, 2010:

                     The Felony Information merely stated that the
              appellant violated the felony stalking statute due to an
              incident on March 20, 2010. The Affidavit of Probable Cause
              elaborated only slightly – the Wal-Mart incident of March 20
              is detailed, but no information is given regarding additional
              incidents of harassment on the part of the appellant directed at
              his ex-wife. The only indication provided to the appellant that
              this charge stemmed from a course of conduct of harassment,
              rather than solely the March 20 incident, was that a
              permanent order of protection had been in place at the time of
              this incident. No information was provided, however, as to
              any prior acts of harassment by the appellant.




                                             5
Id., ¶ 8, 267 P.3d at 1110-11. Rather than identifying the alleged incidents of harassment
in the charging documents, the State sought to establish a “course of conduct” by
introducing Appellant’s prior acts of harassment as uncharged misconduct under W.R.E.
404(b). We explained that this approach effectively reduced the State’s burden of proof
and eliminated one of the necessary elements of the crime:

                     The first mention of any details regarding a course of
             conduct of harassment appears in the State’s Notice of Intent
             to Introduce W.R.E. 404(b) Evidence. Rule 404(b), however,
             governs evidence of “other crimes, wrongs, or acts,” often
             referred to as uncharged misconduct. In the instant case, as in
             all stalking cases, the course of conduct is the criminal act at
             issue; it is not uncharged misconduct. The March 20 incident
             was just one part of the alleged course of conduct that should
             have been charged, and the alleged course of conduct had to
             be proved beyond a reasonable doubt. Instead, the district
             court conducted a Gleason hearing and admitted the prior
             incidents as uncharged misconduct evidence. Then, at trial,
             the district court repeatedly instructed the jury, verbally and
             in writing, that these acts need only be proved by a
             preponderance of the evidence.

Id., ¶ 9, 267 P.3d at 1111 (emphasis in original). We further noted that the confusion as
to the elements of the crime was echoed in a remark by defense counsel during closing
arguments. Defense counsel stated that “I have lost count of how many times this jury
was instructed that all of those incidents in 2006, 2007, 2008, 2009 were only for a
limited purpose. They can be used by you for the purpose of establishing course of
conduct, only. One piece of all the elements that the State has to prove. This case is
about March 20, 2010.” Id., ¶ 12, 267 P.3d at 1111-12 (emphasis in original). We
concluded that

             Actually, this case was about the other acts as much as it was
             about the act of March 20. It was not enough for the State to
             prove beyond a reasonable doubt that the appellant harassed
             his ex-wife on March 20; the State had to prove beyond a
             reasonable doubt that the appellant engaged in a course of
             conduct of harassment. The jury was not properly instructed
             in that regard and this failure was prejudicial to the appellant.

Id., ¶ 12, 267 P.3d at 1112. Consequently, we reversed Appellant’s conviction and
remanded to the district court for a new trial. On remand, the State amended the
defective information to specify a range of dates within which Appellant’s course of



                                            6
conduct was alleged to have occurred. As discussed in further detail below, the State also
submitted an amended affidavit of probable cause identifying the dates of Appellant’s
harassing conduct and the nature of those incidents. Against this history of the case, we
proceed to address Appellant’s first issue.

[¶18] Appellant claims the district court abused its discretion in allowing the State to
amend the felony information because the amended information did not allege facts
which, if proven, constituted the crime of felony stalking. Appellant presents the issue as
one of statutory interpretation.         He contends that the felony stalking statute
unambiguously requires a “course of conduct” to be initiated subsequent to the entry of a
court order prohibiting harassment of the victim. Based on this interpretation of the
statute, Appellant contends that the amended information was defective because the State
alleged only one incident of harassment, on March 20, 2010, that violated the protection
order entered in December, 2009. Appellant states that he “committed one single act”
and that “a single act does not constitute the required pattern of conduct composed of a
series of acts” necessary to a felony stalking conviction.

[¶19] The State responds that “The entire course of conduct comprising the crime of
stalking need not violate a single protective order to be a felony.” It contends that “There
is no question that for almost four years, [Appellant] intentionally engaged in a pattern of
conduct, or series of acts, that had the purpose and effect of harassing Ms. Leair.” The
State claims that Appellant’s interpretation of the felony stalking statute would “wipe the
slate clean with each new protection order” because “a defendant would not face a felony
conviction unless he repeatedly violates the same order.”

[¶20] We review a district court’s decision to allow the State to amend an information
for abuse of discretion:

              Wyoming Rule of Criminal Procedure 3(e) grants discretion
              to a trial judge in deciding whether or not a motion brought
              by the State to amend the information just prior to trial should
              be granted. Consequently, we review the trial court’s decision
              by applying our abuse of discretion standard. In deciding
              whether or not the trial court abused its discretion, this court
              must “determine whether the trial court could reasonably
              conclude as it did and whether any facet of its ruling was
              arbitrary or capricious.”

Mowery v. State, 2011 WY 38, ¶ 9, 247 P.3d 866, 868 (Wyo. 2011) (quoting Wilkening v.
State, 2005 WY 127, ¶ 23, 120 P.3d 680, 687 (Wyo. 2005)).

[¶21] Appellant’s charge of abuse of discretion is based on the claim that a felony



                                             7
stalking conviction under Wyo. Stat. Ann. § 6-2-506(e)(iii) or (iv) requires each act of
harassment in a series of acts comprising a “course of conduct” to be committed
subsequent to the issuance of a court order prohibiting contact with the victim. To this
claim, we apply our usual rules of statutory interpretation. Our paramount consideration
is the legislature’s intent as reflected in the plain and ordinary meaning of the words used
in the statute. Initially, we determine whether the statute is clear or ambiguous.

              A statute is clear and unambiguous if its wording is such that
              reasonable persons are able to agree on its meaning with
              consistency and predictability. Conversely, a statute is
              ambiguous if it is found to be vague or uncertain and subject
              to varying interpretations. If we determine that a statute is
              clear and unambiguous, we give effect to the plain language
              of the statute.

Spreeman v. State, 2012 WY 88, ¶ 10, 278 P.3d 1159, 1162 (Wyo. 2012).

[¶22] We have previously noted that “Legislative history with respect to the specific
reasons for the language employed in Wyo. Stat. § 6-2-506 is not available.” Garton v.
State, 910 P.2d 1348, 1355 (Wyo. 1996). However, other courts have recognized that the
general intent of stalking statutes is to interrupt the potential for escalated violence
against the victim. See, e.g., Commonwealth v. Urrutia, 653 A.2d 706, 708 (Pa. Super.
Ct. 1995) (“Stalking often is a precursor to increased violence and even homicide. Law
enforcement officials view stalking as an early warning of future violence against the
victim. In an effort to protect victims, the legislature sought to provide early intervention
and possible deterrence.”); State v. Lindell, 828 N.W.2d 1, 9 (Iowa 2013) (“Undoubtedly,
it was the intent of the legislature to prevent [the] type of long-term stalking that serves to
frighten the victim and threatens to escalate as the stalker’s obsession grows.”).
Wyoming’s stalking statute pursues the goal of deterrence, in part, by providing increased
penalties for persons who commit the offense of stalking while subject to an order of
protection. Wyo. Stat. Ann. § 6-2-506, which sets forth the crimes of misdemeanor and
felony stalking, provides in relevant part as follows:

              § 6-2-506. Stalking; penalty.

              ...

              (b) Unless otherwise provided by law, a person commits the
              crime of stalking if, with intent to harass another person,
              the person engages in a course of conduct reasonably likely
              to harass that person, including but not limited to any
              combination of the following:



                                              8
      (i) Communicating, anonymously or otherwise, or
      causing a communication with another person by
      verbal, electronic, mechanical, telegraphic, telephonic
      or written means in a manner that harasses;

      (ii) Following a person, other than within the residence
      of the defendant;

      (iii) Placing a person under surveillance by remaining
      present outside his or her school, place of employment,
      vehicle, other place occupied by the person, or
      residence other than the residence of the defendant; or

      (iv) Otherwise engaging in a course of conduct that
      harasses another person.

...

(e) A person convicted of stalking under subsection (b) of
this section is guilty of felony stalking punishable by
imprisonment for not more than ten (10) years, if:

      (i) The act or acts leading to the conviction occurred
      within five (5) years of a prior conviction under this
      subsection, or under subsection (b) of this section, or
      under a substantially similar law of another
      jurisdiction;

      (ii) The defendant caused serious bodily harm to the
      victim or another person in conjunction with
      committing the offense of stalking;

      (iii) The defendant committed the offense of stalking
      in violation of any condition of probation, parole or
      bail; or

      (iv) The defendant committed the offense of stalking
      in violation of a temporary or permanent order of
      protection issued pursuant to W.S. 7-3-508 or 7-3-509,
      or pursuant to a substantially similar law of another
      jurisdiction.



                             9
(Emphasis added.) As defined by the statute, a “course of conduct” means “a pattern of
conduct composed of a series of acts over any period of time evidencing a continuity of
purpose.” Wyo. Stat. Ann. § 6-2-506(a)(i).

[¶23] We agree with Appellant that the statute is clear and unambiguous. However,
contrary to Appellant’s suggestion, we find no indication in the plain language of the
statute that the offense of felony stalking under Section 506(e)(iii) or (iv) requires that all
acts comprising a “course of conduct” must occur subsequent to the entry of an order
prohibiting contact with the victim. The statute provides no chronological limitation with
respect to the necessary course of conduct. Rather, the statute provides that a course of
conduct is “a series of acts over any period of time evidencing a continuity of purpose.”
Wyo. Stat. Ann. § 6-2-506(a)(i) (emphasis added). In Garton, 910 P.2d 1348, addressing
a challenge to Section 506(e)(iii) on the grounds that it was unconstitutionally vague, this
Court stated that use of the word “any” evidenced the legislature’s intent to give the
statute a “broad and comprehensive grasp.”

                      The language of Wyo. Stat. § 6-2-506(e)(iii) . . . is
              clear and unambiguous in its provision that the offense is a
              felony when “[t]he defendant committed the offense of
              stalking in violation of any condition of probation, parole or
              bail.” In addressing the meaning of the word “any” in McKay
              v. Equitable Life Assurance Soc’y of the United States, 421
              P.2d 166, 169 (Wyo. 1966), we said, “[t]he common and
              ordinary understanding of the word is that it means all or
              every.” We also said, “[n]ecessarily it gives to the language
              employed a broad and comprehensive grasp.” McKay, 421
              P.2d at 169. The clear language of the statute conveys the
              legislative intent to give Wyo. Stat. § 6-2-506(e)(iii) a broad
              and comprehensive grasp.

Id. at 1353. Similarly, the definition of a “course of conduct,” which focuses on a
“continuity of purpose” demonstrated by a series of acts occurring over “any period of
time,” evidences the legislature’s intent to give broad reach to the statute. If the
legislature had intended to limit the offense of felony stalking as suggested by Appellant,
it could easily have done so. However, the language employed by the legislature contains
no time restrictions with respect to the course of conduct requirement. Accordingly, we
find no basis to conclude that all of the acts comprising the “course of conduct” must be
commenced after the issuance of a court order prohibiting harassment of the victim.

[¶24] The “course of conduct” necessary for a felony stalking conviction under Wyo.
Stat. Ann. § 6-2-506(e)(iii) or (iv) may encompass acts of harassment occurring prior to



                                              10
the issuance of an order proscribing contact with the victim. Under our interpretation of
the statute, the State was not required to demonstrate violations of multiple protection
orders in order to establish the course of conduct. However, Appellant’s separate
violations of the protection orders issued in this case, as well as his violation of the
conditions of his probation, nonetheless constituted acts of harassment relevant in
establishing a course of conduct occurring in violation of the December, 2009 protection
order. The district court did not abuse its discretion in allowing the State to amend the
felony information to include incidents of harassment occurring prior to entry of that
order.

Notice of Charges

[¶25] In his second issue, Appellant asserts that the information did not adequately
advise him of the charges against him because “As explained in the previous issue, the
charging document does not contain the correct elements of the crime.” Appellant
complains that he “was made to defend against any and all contact with his current, and
then later ex-wife, whether said contact was in violation of a protection order or not,
which had occurred between 2006 and 2010.” He asserts that there was insufficient
information to advise him of the charge against him because “most of the contact the
State identified [] to show the ‘course of conduct’ did not occur during the existence of a
protection or restraining order.”

[¶26] We employ a de novo standard of review to the issue of whether a defendant has
received adequate notice of the charges against him.

             An accused has a constitutional right to notice of the charges
             against him to allow him a fair opportunity to defend against
             the charges. United States Constitution, Sixth Amendment;
             Wyo. Const. art. 1 § 10. See also, W.R.Cr.P. 3; Derksen v.
             State, 845 P.2d 1383, 1388-89 (Wyo. 1993). Because the
             right to notice of criminal charges is of constitutional
             magnitude and the determination on the adequacy of the
             notice is a question of law, we review the issue de novo. See,
             e.g., Pena v. State, 2004 WY 115, ¶ 7, 98 P.3d 857, 862
             (Wyo. 2004).

Counts v. State, 2012 WY 70, ¶ 39, 277 P.3d 94, 106 (Wyo. 2012) (quoting Heywood v.
State, 2009 WY 70, ¶ 4, 208 P.3d 71, 72 (Wyo. 2009)).

[¶27] We have stated that an information is constitutionally sufficient “if it 1) contains
the elements of the offense charged; 2) fairly informs a defendant of the charge against
which he must defend; and 3) enables a defendant to plead an acquittal or conviction in



                                            11
bar of future prosecutions for the same offense.” Hulsy v. State, 2009 WY 81, ¶ 9, 209
P.3d 901, 904 (Wyo. 2009) (quoting Estrada-Sanchez v. State, 2003 WY 45, ¶ 13, 66
P.3d 703, 708 (Wyo. 2003)). A detailed affidavit attached to the information may
provide some of these facts. Spagner v. State, 2009 WY 12, ¶ 10, 200 P.3d 793, 799
(Wyo. 2009).

[¶28] We find no merit in Appellant’s claim that he was not sufficiently advised of the
charges against him. The amended affidavit of probable cause contained a detailed
account of the incidents of harassment, the dates on which those incidents occurred, and
the various protection orders and conditions of probation in effect at the time of those
incidents. This information was again provided to Appellant in the State’s response to
Appellant’s motion for a bill of particulars. At the hearing on Appellant’s motion,
Appellant’s counsel acknowledged that the State’s response “essentially takes care of
what would be included in a Bill of Particulars.” Further, to the extent that Appellant
relies on the assertion that the information did not contain the correct elements of the
crime of felony stalking, we have already rejected that argument in our discussion of
Appellant’s first issue. Finally, we find no merit in Appellant’s claim that the
information was inadequate because it alleged incidents of harassment that occurred
outside the existence of a protection order or condition of probation. All of the incidents
alleged in the affidavit of probable cause, and re-asserted in the State’s response to
Appellant’s motion for a bill of particulars, were used to establish the “course of
conduct” necessary for a stalking conviction. Appellant suffered no prejudice as a result
of the fact that he was required to defend against all of the alleged incidents of
harassment, regardless of whether the individual incidents violated a protection order or
condition of probation. We conclude that Appellant was adequately advised of the
charges against him.

Jury Instructions

[¶29] In his final issue, Appellant contends that the jury instructions contained a
confusing, misleading, and inaccurate statement of the law. More specifically, he claims
that Jury Instruction No. 10 improperly joined the “intent to harass” and “course of
conduct” elements of the offense. Because Appellant did not object at trial, we review
for plain error. Walker, ¶ 6, 267 P.3d at 1110. 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
which materially prejudiced him. Id. An error in the jury instructions results in prejudice
when “the instruction ‘confused or misled the jury with respect to the proper principles of
law.’” Id. (quoting Black v. State, 2002 WY 72, ¶ 6, 46 P.3d 298, 300 (Wyo. 2002)).

[¶30] The State concedes that the first prong of the plain error analysis is satisfied as a
result of the fact that Jury Instruction No. 10 is part of the record. However, the State



                                            12
claims that the instructions did not violate a clear and unequivocal rule of law. The State
contends that Jury Instruction No. 10, when read in conjunction with Jury Instruction No.
5, which set forth the elements of the crime, as well as Instructions No. 7, 8, and 9, which
defined the terms “intent,” “harass,” and “course of conduct,” respectively, adequately
informed the jury that it was required to find an “intent to harass” separately from a
course of conduct. Further, the State claims that “Even if Instruction #10 was poorly
worded,” Appellant cannot establish prejudice because the State discussed the individual
elements of the crime during closing arguments, and because the evidence of Appellant’s
guilt was “overwhelming.”

[¶31] As we noted in Walker I, the purpose of jury instructions is to “provide the jury
with a foundational legal understanding to enable a reasoned application of the facts to
the law.” Walker I, ¶ 10, 267 P.3d at 1111 (citing Miller v. State, 904 P.2d 344, 348
(Wyo. 1995)). Accordingly, in order to support a reliable verdict, “It is crucial that the
trial court ‘correctly state the law and adequately cover the relevant issues.’” Id. (quoting
Olsen v. State, 2003 WY 46, ¶ 134, 67 P.3d 536, 585 (Wyo. 2003)). Ultimately, the test
of adequate jury instructions is “‘whether the instructions leave no doubt as to the
circumstances under which the crime can be found to have been committed.’” Burnett v.
State, 2011 WY 169, ¶ 14, 267 P.3d 1083, 1087 (Wyo. 2011) (quoting Bloomfield v.
State, 2010 WY 97, ¶ 15, 234 P.3d 366, 373 (Wyo. 2010)). With these principles in
mind, we turn to the relevant instructions in this case.

[¶32] In Instruction No. 5, the jury was advised of the necessary elements of the crime:

              Instruction No. 5

              The necessary elements of the crime, Stalking, as charged in
              this case, are:

                 1. On or between July 9, 2006 through March 20, 2010;

                 2. In Campbell County, Wyoming;

                 3. The defendant, Daniel Brian Walker;

                 4. With the intent to harass Angelia Leair;

                 5. Engaged in a course of conduct reasonably likely to
                    harass Angelia Leair;

                 6. The Defendant, Daniel Brian Walker, committed the
                    acts set forth in paragraphs 4 and 5 in violation of a



                                             13
                        temporary or permanent order of protection or
                        conditions of probation or bond.1

Instructions No. 7, 8, and 9 then defined the terms “intent,” “harass,” and “course of
conduct,” as used in the elements instruction:

                Instruction No. 7

                       The intent with which an act was done is a condition of
                the mind that is seldom, if ever, capable of direct and positive
                proof. Because we have no power to directly observe the
                condition of a person’s mind, the best we can do is infer it
                from the evidence introduced.

                       The jury may consider the circumstances surrounding
                the act, the doing of the act itself, the manner in which it was
                done and the means used.

                Instruction No. 8

                       “Harass” means to engage in a course of conduct,
                including but not limited to verbal threats, written threats,
                lewd or obscene statements or images, vandalism or
                nonconsensual physical contact, directed at a specific person
                or the family of a specific person, which the defendant knew
                or should have known would cause a reasonable person to
                suffer substantial emotional distress, and which does in fact
                seriously alarm the person toward whom it is directed.

                Instruction No. 9

                      “Course of conduct” means a pattern of conduct
                consisting of a series of acts over any period of time which
                demonstrates a continuity of purpose.

Finally, Jury Instruction No. 10 provided that an “intent to harass” was established by a


1
 As noted in our discussion of Appellant’s first issue, the State was not required to prove that all acts of
harassment occurred in violation of a protection order or condition of probation or bond in order to
establish the course of conduct element of felony stalking.




                                                    14
showing of a combination of the enumerated examples of harassing conduct:

             A course of conduct reasonably likely to harass another
             person, with the intent to harass that person, includes but is
             not limited to any combination of the following:

                   1. Communicating, anonymously or otherwise, or
                      causing a communication with another person by
                      verbal, electronic, mechanical, telegraphic, telephonic
                      or written means in a manner that harasses;

                   2. Following a person, other than within the residence of
                      the Defendant;

                   3. Placing a person under surveillance by remaining
                      present outside his or her school, place of employment,
                      vehicle, other place occupied by the person, or
                      residence other than the residence of the Defendant; or

                   4. Otherwise engaging in a course of conduct that
                      harasses that person.

(Emphasis added.) In contrast to Jury Instruction No. 10, the relevant portion of Wyo.
Stat. Ann. § 6-2-506(b) provides

             (b) Unless otherwise provided by law, a person commits the
             crime of stalking if, with intent to harass another person, the
             person engages in a course of conduct reasonably likely to
             harass that person, including but not limited to any
             combination of the following:

             ...

(Emphasis added.)

[¶33] We agree with Appellant that Jury Instruction No. 10 improperly incorporated the
intent element of stalking into the examples of harassment demonstrating a course of
conduct. The jury instruction wrongly states that intent is established when a course of
conduct includes the enumerated examples of harassment. In other words, Wyo. Stat.
Ann. § 6-2-506(b) requires the jury to find that Appellant engaged in a course of conduct,
which may include the enumerated acts, with an intent to harass. In contrast, the
instruction allowed the jury to find Appellant acted with intent to harass because he did



                                             15
the listed acts. This effectively created the potential for the jury to find Appellant guilty
of stalking without independently finding that he intended to harass the victim.
Accordingly, we are unable to conclude that the jury instructions “correctly state the law
and adequately cover the relevant issues.” As in Walker I, ¶ 11, 267 P.3d at 1111,
“looking at the instructions as a whole, we cannot help but find that the jury must have
been confused with regard to the necessary elements of the crime of stalking.”

[¶34] Finally, we find that the error in the jury instructions caused prejudice to
Appellant. The State acknowledges that “the defense’s theory of the case was that
Walker did not have the requisite intent to harass, and closing arguments centered around
whether the State had met its burden of proving intent.” Indeed, with respect to the
incident that occurred at Wal-Mart on March 20, 2010, Appellant testified at trial that he
was shopping for electronics equipment and had “no idea” that he was near Ms. Leair.
He stated “I was looking at the back of her head. I had no idea that was my ex-wife.” In
light of Appellant’s testimony supporting the claim that he did not have the requisite
intent to harass Ms. Leair, we do not agree that the evidence of Appellant’s guilt was
“overwhelming,” as suggested by the State. More fundamentally, however, considering
the fact that Jury Instruction No. 10 effectively relieved the State of the obligation to
prove that Appellant acted with intent, we are unable to conclude that the jury
instructions left “no doubt as to the circumstances under which the crime can be found to
have been committed.” Burnett, ¶ 14, 267 P.3d at 1087. Rather, we conclude that the
instructions likely “confused or misled the jury with respect to the proper principles of
law.” Walker, ¶ 6, 267 P.3d at 1110. Accordingly, we find that Appellant was materially
prejudiced and that Appellant has established plain error.

[¶35] Reversed and remanded for further proceedings consistent with this opinion.




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