Apodaca v. State, 89-198
| Decision Date | 30 August 1990 |
| Docket Number | No. 89-198,89-198 |
| Citation | 796 P.2d 806 |
| Parties | Vincent APODACA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Leonard D. Munker, State Public Defender, and Stephen Michael Kissinger (argued), for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Sr. Asst. Atty. Gen. (argued), for appellee.
Before CARDINE, C.J. * , and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
Vincent Apodaca was convicted of attempted sexual assault under W.S. 6-1-301 and 6-2-302(a)(i) for an attack upon his 65-year-old neighbor. Apodaca claims the evidence showed he abandoned and renounced his effort. He challenges the denial of his motion for acquittal based upon the alleged abandonment.
We affirm.
On Christmas Eve of 1988, AM, a 65-year-old widow, was resting on her couch in her Cheyenne home after lunch when her door bell rang. Apodaca, her neighbor, was at the door. AM invited him to enter and offered him a beer. Apodaca declined the beer and stated he had come to the house "because I am going to have you." Apodaca grabbed AM, dragged her into the bedroom, and threw her onto the bed. The dragging caused bruises to her arms. As he pulled down her pants, one side at a time, AM resisted by pulling the other side of her pants back up. AM resisted the attack as soon as it started. Her resistance culminated when AM kneed Apodaca between the legs and hit him in the face as he attempted to unbuckle his pants. At that point, Apodaca stopped his aggression. He said he was sorry and pleaded with AM not to call the police. AM told Apodaca she would not call the police in order to get him to leave her house. She contacted the police after he left. Apodaca was arrested driving on a street in Cheyenne shortly thereafter.
Apodaca was charged with attempted sexual assault. His case was tried to a jury on May 30 through June 1, 1989. At the close of the State's evidence, Apodaca moved for judgment of acquittal, pursuant to W.R.Cr.P. 30, based on lack of intrusion and renunciation of the crime. The court denied the motion. It found the evidence indicated that Apodaca had made a substantial step toward commission of the crime and an issue of fact existed as to whether the renunciation was voluntary. Apodaca's defense was that the crime never actually happened. He relied upon the direct and cross-examination of the victim for evidence of his abandonment and renunciation of the attempt. At the close of the evidence, his renewed motion for acquittal was again denied by the court. The court included an instruction on abandonment and renunciation when the case went to the jury. The jury found Apodaca guilty of attempted sexual assault. The court sentenced Apodaca to eight to 25 years in the state penitentiary.
When reviewing a denial of a motion for judgment of acquittal, we accept as true the evidence of the prosecution, together with all logical and reasonable inferences to be drawn therefrom, leaving out entirely the evidence of the defendant in conflict. Washington v. State, 751 P.2d 384, 386 (Wyo.1988).
(citations omitted) Leppek v. State, 636 P.2d 1117, 1119 (Wyo.1981).
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