Brown v. State

• Citation: 332 P.3d 1168
• Decision Date: 19 August 2014
• Docket Number: No. S–13–0269.,S–13–0269.
• Parties: Kiyon L. BROWN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

332 P.3d 1168

Kiyon L. BROWN, Appellant (Defendant),

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

No. S–13–0269.

Supreme Court of Wyoming.

Aug. 19, 2014.

Representing Appellant: Office of the State Public Defender: 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: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, KITE,^*DAVIS, and FOX, JJ.

FOX, Justice.

[¶ 1] A jury convicted Appellant Kiyon L. Brown of aggravated battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(i) (LexisNexis 2013), arising from an altercation with his girlfriend and his girlfriend's sister. Mr. Brown appeals his conviction, claiming that the evidence failed to establish that the victim suffered serious bodily injury, that the jury was given inadequate instructions on the theory of self-defense, and that he was denied due process of law due to prosecutorial misconduct during the trial. We affirm.

ISSUES

[¶ 2] 1. Was there sufficient evidence to establish that the victim suffered serious bodily injury?

2. Was the jury adequately instructed on the theory of self-defense?

3. Did the prosecutor's attempt to elicit sympathy for the victim constitute prosecutorial misconduct that denied Mr. Brown due process of law?

FACTS

[¶ 3] Kiyon L. Brown lived in Casper, Wyoming, where he shared an apartment with his girlfriend, Jeannie Jacobsen, and her daughter. Ms. Jacobsen's mother passed away, and the family had a wake for her on January 25, 2013. As a result, numerous family members, including Ms. Jacobsen's sister, Kimberlin Otto, came to stay with Ms. Jacobsen and Mr. Brown.

[¶ 4] Tensions rose between Ms. Jacobsen and Mr. Brown throughout the day of the wake, but came to a head that night and early the next morning. After the wake, Ms. Jacobsen contacted Mr. Brown to obtain his key to the apartment, having forgotten her own. When Ms. Jacobsen went to retrieve the key from Mr. Brown, she informed him that she did not want him to return to their shared apartment that night. After settling family members in at the apartment, Ms. Jacobsen then went to a local bar with family and friends. Mr. Brown later returned to the apartment where Ms. Otto and a number of children had remained. Later that night or in the early hours of the next morning, Ms. Jacobsen returned to the apartment. Mr. Brown confronted her at the door and the two moved into the kitchen. The testimony begins to diverge at this point. Mr. Brown alleges that Ms. Jacobsen punched him in the chest with his key. Ms. Jacobsen, however, testified that she did not, at any time, hit Mr. Brown, and that he grabbed her by the throat while confronting her in the kitchen. Ms. Jacobsen's daughter awoke, and frightened by the scene in the kitchen, woke Ms. Otto. Ms. Otto rose from bed and went to the kitchen telling the parties to stop fighting as there were children present. Ms. Jacobsen and Mr. Brown then separated.

[¶ 5] Mr. Brown returned to the bedroom while Ms. Jacobsen lay down with her daughter in the living room. Mr. Brown rose from bed and again began to quarrel with Ms. Jacobsen, demanding that she return his key. Ms. Jacobsen went into the bathroom where she placed the key in her bra. Mr. Brown followed Ms. Jacobsen into the bathroom where Mr. Brown claims he attempted to reach for the key. Ms. Otto testified, however, that she saw Mr. Brown's hand closed in a fist appearing as though he was about to strike Ms. Jacobsen. Entering the bathroom, Ms. Otto jumped on Mr. Brown to prevent him from hitting Ms. Jacobsen, pulling him to the floor. Arising, Mr. Brown began to hit Ms. Otto. He then turned to Ms. Jacobsen, who had fallen in the bathtub during the melee, and struck her, breaking her jaw in two places.

[¶ 6] Mr. Brown was charged with one count of aggravated battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(i) as a result of his blow to Ms. Jacobsen. He was also charged with one count of misdemeanor battery in violation of Wyo. Stat. Ann. § 6–2–501(b), (d) (LexisNexis 2013) ¹ for striking Ms. Otto.

[¶ 7] A jury convicted Mr. Brown of aggravated battery in violation of Wyo. Stat. Ann. § 6–2–502(a)(i) and acquitted Mr. Brown on the charge of misdemeanor battery (of the sister) in violation of § 6–2–501(b), (d). Mr. Brown then filed a motion for a new trial which the district court denied. Mr. Brown's timely appeal followed.

DISCUSSION

I. Was there sufficient evidence establishing that the victim suffered serious bodily injury?

[¶ 8] When reviewing a claim of insufficient evidence,

we review that evidence with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. We will not reweighthe evidence nor will we re-examine the credibility of the witnesses.

Mendoza v. State, 2007 WY 26, ¶ 3, 151 P.3d 1112, 1113 (Wyo.2007) (quoting Perritt v. State, 2005 WY 121, ¶ 9, 120 P.3d 181, 186 (Wyo.2005)).

[¶ 9] Wyo. Stat. Ann. § 6–2–502(a)(i) states, “A person is guilty of aggravated assault and battery if he: ... Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” “Serious bodily injury” is defined as a “bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Wyo. Stat. Ann. § 6–1–104(a)(x) (LexisNexis 2013). Mr. Brown argues that the jury was required to unanimously agree on which theory of “serious bodily injury” it relied upon to convict him, and because the jury failed to specify which alternative it relied upon, the State was required to prove each theory separately. As the State failed to establish each of the separate theories of “serious bodily injury,” Mr. Brown argues that the verdict must be set aside in accordance with Tanner v. State, 2002 WY 170, ¶ 8, 57 P.3d 1242, 1244 (Wyo.2002).

[¶ 10] Mr. Brown misapprehends the meaning of Tanner. In Tanner, the jury was instructed that in order to judge Tanner guilty of burglary, the jury had to find, among other elements, that Tanner acted with “intent to commit larceny or a felony therein.” Tanner, 2002 WY 170, ¶ 9, 57 P.3d at 1245. The jury then entered a general verdict convicting Tanner, but failing to specify which grounds, intent to commit larceny or intent to commit a felony, it relied upon to come to its decision. Id. at ¶ 13, 57 P.3d at 1246. We found that because the alternative theories were elements of the crime, the prosecution had the burden to prove, beyond a reasonable doubt, both that Tanner intended to commit larceny and that he intended to commit a felony when a general verdict was returned. Id. at ¶ 11, 57 P.3d at 1245. The prosecution only presented evidence that Tanner intended to commit larceny, failing to prove that Tanner intended to commit a felony as well. Id. at ¶ 16, 57 P.3d at 1247. As a result, we reversed Tanner's conviction.

[¶ 11] In Miller v. State, 2006 WY 17, 127 P.3d 793 (Wyo.2006), we distinguished Tanner. In that case, the jury was instructed that to find Miller guilty, it had to determine that Miller “delivered methamphetamine to another individual.” Miller, 2006 WY 17, ¶ 23, 127 P.3d at 799. The district court then went on to instruct the jury on the definition of “deliver,” which means, “actual, constructive, or attempted transfer from one person to another of a controlled substance.” Id. Miller argued that the instruction defining “deliver” presented an alternative instruction, analogous to “the principles espoused in Bush v. State, 908 P.2d 963 (Wyo.1995)” and its progeny, including Tanner.Id. at ¶ 24, 127 P.3d at 799. We rejected Miller's argument, finding that the instruction only served to define the term “deliver” and did not effectively charge an alternative ground for conviction, as was the case in Bush and Tanner.Id. at ¶ 26, 127 P.3d at 800; see also Anderson v. State, 2014 WY 74, ¶¶ 35–37, 327 P.3d 89, 99 (Wyo.2014).

[¶ 12] In this case, as in Miller, Mr. Brown challenges alternatives in a definition, as opposed to alternative elements. The district court instructed the jury that to find Mr. Brown guilty, it was required to determine that the prosecution had proven, beyond a reasonable doubt, that:

1. On or about the 26th day of January, 2013;

2. In Natrona County, Wyoming;

3. The Defendant, Kiyon L. Brown;

4. Intentionally or knowingly;

5. Caused serious bodily injury to another person, Jeannie Jacobsen, or attempted to cause serious bodily injury to another person, Jeannie Jacobsen.[[²The district court went on to define “serious bodily injury” as “bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ.” As in Miller, the elements instruction “did not contain alternative elements upon which [Mr. Brown's] convictions could be based.” Miller, 2006 WY 17, ¶ 26, 127 P.3d at 800. The instruction addressing “serious bodily injury” only served to define one of the terms included in the elements, nothing more. As a result, Tanner is inapplicable to the instructions given in this case.

[¶ 13] Review of the record demonstrates that the State provided extensive evidence establishing that Mr. Brown caused Ms. Jacobsen serious bodily injury as defined by statute. Ms. Jacobsen suffered a broken jaw, and in previous cases, we have upheld the determinations of juries that a broken jaw constitutes serious bodily...