Birch v. State, S-17-0289

• Citation: 421 P.3d 528
• Decision Date: 03 July 2018
• Docket Number: S-17-0289
• Parties: Don BIRCH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

421 P.3d 528

Don BIRCH, Appellant (Defendant),

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

S-17-0289

Supreme Court of Wyoming.

July 3, 2018

Representing Appellant: Lauretta Y. Welch, Pinedale, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Samuel L. Williams, Assistant Attorney General. Argument by Mr. Williams.

Before DAVIS, C.J., and BURKE^* , FOX, KAUTZ, and BOOMGAARDEN, JJ.

KAUTZ, Justice.

[¶1] A jury convicted Don Birch of aggravated assault and battery and breach of peace. Mr. Birch argues his convictions should be reversed because the district court failed to properly instruct the jury, the court erroneously allowed the State to present evidence of uncharged misconduct, and there was insufficient evidence to support his aggravated assault and battery conviction. We affirm.

ISSUES

[¶2] Mr. Birch raises three issues in this appeal:

I. Whether the district court erred when it failed to instruct the jury on Wyoming law regarding "actual threat."

II. Whether the district court erred in allowing the presentation of 404(b) evidence.

III. Whether the State presented sufficient evidence to support an aggravated assault and battery conviction.

FACTS

[¶3] Mr. Birch and his wife, Esther, were neighbors with Gordon and Cheri Johnson in a rural subdivision in Merna, Wyoming. The neighbors were friendly with one another until 2010, when they had a dispute over the property line of their parcels. They have not spoken civilly to one another since that time.

[¶4] On November 1, 2016, Mr. Birch visited his friend and neighbor, Howard Leeper. Mr. Birch told Mr. Leeper he wanted to shoot Mr. Johnson in the leg because he believed Mr. Johnson had sabotaged some of his equipment. This statement was consistent with other statements Mr. Birch had made to Mr. Leeper in the prior ten days.

[¶5] During the night of November 2, 2016, Mr. Johnson was awakened by gunfire. He opened a window in his home and could see and hear Mr. Birch yelling Mr. and Mrs. Johnson’s names and firing his gun. Mr. Birch also yelled, "Come over here, I’m going to kill you." The next morning, Mr. Johnson reported Mr. Birch’s conduct to the Sublette County Sheriff’s Department. Deputy Zack Semmons responded to the Johnson home, and after speaking with Mr. Johnson, spoke with Mr. Birch. Mr. Birch told Deputy Semmons that he "fucking hates" Mr. Johnson and that Mr. Birch was an expert marksman when he was in the Army. He also freely admitted he shot his gun thirty times while yelling obscenities at the Johnsons the evening before. Mr. Birch showed Deputy Semmons where he was shooting his gun, and from that location Deputy Semmons could clearly see the Johnson property.

[¶6] On November 7, 2016, the Johnsons met with Sheriff K.C. Lehr to discuss concerns the Johnsons had about their welfare and property due to Mr. Birch’s actions. Sheriff Lehr explained how to obtain a protection order and also advised them to continue to report and attempt to record any similar behavior by Mr. Birch in the future.

[¶7] Later in the evening of November 7th, the Johnsons arrived at the home of their neighbors, Pete and Melanie Peterson, for dinner. Shortly after arriving at the Peterson home, Mr. Johnson received a text message from another neighbor, who informed Mr. Johnson that Mr. Birch was shooting his gun near Mr. Johnson’s home again. Mr. Johnson and Mr. Peterson made the approximately ten-minute drive to the Johnson property to assess the situation. When the men arrived, they could see Mr. Birch outside shooting his gun while screaming vulgarities about the Johnsons. They listened to Mr. Birch for twenty to thirty minutes and then Mr. Birch got into his truck and left. The two returned to the Peterson home and Mr. Johnson reported the incident to the Sublette County Sheriff’s Department.

[¶8] The Johnsons returned to their home at approximately 7:30 p.m., and shortly thereafter Mr. Birch again began to shoot his gun while screaming at the Johnsons. Mr. Birch yelled at the Johnsons using their first names and copious amounts of profanity and vile name-calling, saying things such as, "I’m gonna fuckin’ shoot your ass, you fuckin’ piece of shit[,]" and "I’m gonna fuckin’ kill you, you fuckin’ piece of shit. Whoo. Call the cops. Are you scared, Gordon? Are you scared, motherfucker? Are you scared, fucker? You should be, you fuckin’ piece of shit." The Johnsons could see Mr. Birch during his tirade. The couple turned off the lights in their home and used Mr. Johnson’s cellphone to audio record Mr. Birch’s behavior. Mr. Birch continued shooting his gun and yelling until approximately midnight. The next day, Mr. Johnson contacted the sheriff’s department again about the incident and provided the cell phone recordings. On November 17, 2016, Mr. Birch was arrested and charged, based upon the November 7th conduct, with aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2016), and breach of peace, in violation of Wyo. Stat. Ann. § 6-6-102(a) (LexisNexis 2016).

[¶9] The case proceeded to trial, and a jury convicted Mr. Birch of both charged counts. The district court sentenced Mr. Birch to three to five years imprisonment for the aggravated assault and battery conviction, but suspended that sentence in favor of five years of probation. The court sentenced Mr. Birch to a concurrent 180 days in jail for the breach of peace conviction, but suspended that sentence in favor of six months of probation. Mr. Birch filed a timely notice of appeal. Other facts will be discussed as necessary below.

DISCUSSION

Jury Instructions

[¶10] The district court gave the jury the following instruction regarding the elements of aggravated assault and battery:

INSTRUCTION NO. 16

The elements of the crime of Aggravated Assault and Battery—Threat to Use Drawn Deadly Weapon, as charged in Count I of the Criminal Information in this case, are:

1. On or about November 7, 2016

2. in Sublette County, Wyoming

3. the Defendant, Don Birch

4. threatened to use a drawn deadly weapon on Gordon Johnson,

5. when the same was not reasonably necessary in defense of Defendant’s person, property or abode or to prevent serious bodily injury to another.

If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

[¶11] Mr. Birch requested the district court also give the following instruction to further define "threatens to use":

"Threatens to use" means more than mere presence of a weapon. The phrase "threatens to use" requires proof beyond a reasonable doubt of an actual threat of physical injury during the act of employing a deadly weapon.

A threat is an expression of an intention to inflict pain, injury, or punishment. A threat may be expressed by words or acts or a combination of words and acts. Considering all of the circumstances of the case, you must decide whether the defendant’s words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.

The district court declined to give the proposed instruction, concluding it would cause confusion regarding the required intent. Instead, the court opted to give the pattern jury instruction defining "threatens to use":

INSTRUCTION NO. 17

"Threatens to use" means more than mere presence of a weapon. The phrase "threatens to use" requires proof beyond a reasonable doubt of an actual threat of physical injury during the act of employing a deadly weapon.

A threat may be expressed by words or acts or a combination of words and acts.

[¶12] Mr. Birch argues the district court erred in not giving the jury his proposed instruction because without it the jury was not fully informed of the definition of an essential element of the crime. Specifically, the proposed instruction would have given further clarity of the "actual threat" necessary to convict Mr. Birch. We review a district court’s decision regarding jury instructions for an abuse of discretion. Dougherty v. State , 2016 WY 62, ¶ 10, 373 P.3d 427, 431 (Wyo. 2016). The district courts are afforded "substantial latitude to tailor jury instructions to the facts of the case." Adekale v. State , 2015 WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015). So long as the jury instructions correctly state the law and adequately cover the issues presented in the trial, reversible error will not be found. Dougherty , ¶ 11, 373 P.3d at 431 (quoting Brown v. State , 2015 WY 4, ¶ 40, 340 P.3d 1020, 1031 (Wyo. 2015) ).

[¶13] Mr. Birch properly points out that this Court has stated the element of "threatens to use" requires "proof of an actual threat of physical injury during the act of employing a deadly weapon." Hill v. State , 2016 WY 27, ¶ 15, 371 P.3d 553, 558-59 (Wyo. 2016) (quoting Johnston v. State , 747 P.2d 1132, 1134 (Wyo. 1987) ). He argues his proposed instruction gives further specific definition to the term and the instruction was previously approved by this Court in Johnston . He is correct that we determined the district court in Johnston did not err when it provided the jury with the instruction proposed by Mr. Birch. Johnston , 747 P.2d at 1135. However, the circumstances in which the instruction was given in Johnston are different from those here. In Johnston , the instruction was given only after the jury expressed confusion during its deliberations about the meaning of "threatens to use." Id . at 1133. Further, the definition given in Johnston was simply the dictionary definition of the word "threat." Id . at 1135 ; see also, The American Heritage Dictionary of the English Language 1340 (New Collegiate Ed. 1978). Whil...