Conine v. State

• Decision Date: 12 December 2008
• Docket Number: No. S-07-0202.,S-07-0202.
• Citation: 2008 WY 146,197 P.3d 156
• Parties: David Roy CONINE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

197 P.3d 156

2008 WY 146

David Roy CONINE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0202.

Supreme Court of Wyoming.

December 12, 2008.

Representing Appellant: Tina N. Kerin, Appellate Counsel, Wyoming Public Defender's Office; Diane E. Courselle, Faculty Director, and Jonah Buckley and Robert Pascoe, Student Interns, of the Defender Aid Program. Argument by Mr. Pascoe.

Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Brandi L. Monger, Assistant Attorney General. Argument by Ms. Monger.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] A jury convicted Appellant David Roy Conine of aggravated assault and battery. On appeal, Conine challenges the sufficiency of the evidence to sustain his conviction and asserts reversible error based on alleged instances of prosecutorial misconduct during voir dire and opening statement. We affirm.

ISSUES

[¶ 2] Conine presents the following issues:

I. Was the evidence legally insufficient to support a conviction for aggravated assault when, in the manner used, the allegedly deadly weapon—a frying pan—caused only minor injuries?

II. Did the prosecutor during voir dire improperly precondition the jury to conclude that the frying pan was a deadly weapon?

III. Did the prosecutor improperly vouch for the credibility of the alleged victim when he told the jury that Jerry Cox seems to be "a pretty honest man"?

FACTS

[¶ 3] In October 2006, Conine and the victim, Jerry Cox, resided at the Lazy U Bunkhouse, a boarding house with individual bedrooms and shared common areas for cooking and socializing. On the evening of October 10, Cox was in the kitchen area preparing his dinner when Conine approached him and started a verbal altercation regarding an incident that had occurred several days earlier. Cox tried to ignore Conine, but Conine continued to become more aggressive. Cox eventually turned away from Conine in an attempt to halt the exchange. When he turned back around, Conine punched him several times about the head and face and then hit him with an aluminum frying pan on the left side of his face, his right jaw, and the top of his head. As a result of Conine's actions, Cox lost a tooth and suffered significant pain, bruising and swelling to his face and head.

[¶ 4] The State charged Conine with aggravated assault and battery, alleging that Conine knowingly caused bodily injury to Cox with a deadly weapon; to wit, the frying pan. Following a one-day trial, during which both Conine and Cox testified and provided differing accounts of the events surrounding the altercation and Cox's resulting injuries, the jury found Conine guilty on the charged offense.¹ The district court subsequently sentenced Conine to a term of imprisonment of three to eight years. This appeal followed.

DISCUSSION

A. Sufficiency of the Evidence

[¶ 5] Conine questions the sufficiency of the evidence to sustain his conviction. When reviewing a sufficiency of the evidence claim, we analyze the evidence, and any applicable inferences that may be reasonably drawn from it, in the light most favorable to the State. Dettloff v. State, 2007 WY 29, ¶ 22, 152 P.3d 376, 383 (Wyo.2007); Grissom v. State, 2005 WY 132, ¶ 24, 121 P.3d 127, 136 (Wyo.2005). We have consistently held that it is the jury's responsibility to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. Sotolongo-Garcia v. State, 2002 WY 185, ¶ 11, 60 P.3d 687, 689 (Wyo. 2002). We will not substitute our judgment for that of the jury but will only determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Grissom, ¶ 24, 121 P.3d at 136; Pacheco v. State, 2004 WY 160, ¶ 6, 102 P.3d 887, 889 (Wyo.2004); Sotolongo-Garcia, ¶ 11, 60 P.3d at 689; Lane v. State, 12 P.3d 1057, 1063 (Wyo.2000).

[¶ 6] Conine was convicted of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(ii) (LexisNexis 2007), which states in pertinent part: "A person is guilty of aggravated assault and battery if he ... knowingly causes bodily injury to another with a deadly weapon." At trial, and in accordance with the statute, the district court instructed the jury that it should not convict Conine unless it found, beyond a reasonable doubt, that he caused bodily injury to Cox with a deadly weapon:

The necessary elements of the crime of Aggravated Assault and Battery, as charged in the Information, are:

1. On or about the 10th day of October, 2006;

2. In Campbell County, Wyoming;

3. The Defendant, David Roy Conine;

4. Knowingly caused;

5. Bodily injury to another person, Jerry Cox;

6. With a deadly weapon.

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.

The district court instructed the jury on these statutory definitions of the elements of the offense:²

"Bodily injury" means physical pain, illness or any impairment of physical condition.

"Deadly weapon" means but is not limited to a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury.

"Serious bodily injury" means 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.

[¶ 7] In attacking the sufficiency of the evidence, Conine first argues the evidence failed to support the jury's finding that the frying pan used to assault Cox constituted a deadly weapon. Conine asserts that the jury could not properly have viewed the frying pan as a deadly weapon because Cox suffered only minor injuries. According to Conine, the frying pan could only have been deemed a deadly weapon if, in the manner it was used, it actually caused serious bodily injury to Cox.

[¶ 8] The problem with Conine's argument is that the statutes governing his conviction do not require that the weapon used on Cox in fact cause serious bodily injury; they only require that Cox incurred bodily injury caused by Conine's use of an object which, in the manner it was used, was reasonably capable of producing death or serious bodily injury. The State was not required to prove, nor was the jury required to find, that Cox suffered serious bodily injury when Conine hit him with the frying pan. To convict Conine, the jury only needed to find from the State's evidence that Conine caused bodily injury to Cox by attacking him with an object that might reasonably cause serious bodily injury or death.

[¶ 9] Conine also argues that, even if deemed a deadly weapon, there was no evidence from which the jury could rationally conclude that the frying pan, rather than his fists, caused Cox's bodily injuries. Conine's argument simply ignores the testimony and evidence presented at trial. Cox specifically remembered receiving three distinct blows from the frying pan: the first to the left side of his face with what felt like the bottom of the pan; the second to the top of his head with the inside of the pan; and the third to his right jaw with what felt like the edge of the pan. According to Cox, the blow to his jaw was in the area just below where he lost the tooth. Cox also testified that he felt pain in his face and head, particularly the jaw and scalp areas from those blows, and continued to have pain for approximately two weeks, along with difficulty chewing. In addition, a police officer and paramedic responding to the Bunkhouse testified, without objection, that Cox reported being struck multiple times in the face with the frying pan. They testified Cox had quite a bit of facial swelling and redness to the sclera of his eye, which was consistent with the reported blows received from the frying pan. The frying pan, which was admitted at trial, showed extensive damage—it was extremely bent and deformed. Finally, Conine admitted striking Cox once with the frying pan on the head.

[¶ 10] Viewing the evidence as a whole, and affording the State every favorable inference which may be fairly and reasonably drawn from it, we have no trouble concluding the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt the frying pan caused Cox bodily injury. We likewise have no trouble concluding the evidence was sufficient to permit a rational jury to find beyond a reasonable doubt the frying pan was a deadly weapon. Applying common sense and experience, the jury could have rationally determined the frying pan, when used as Conine did to beat Cox about the head and face, was reasonably capable of causing serious bodily injury or death. In sum, we find ample evidence to support Conine's conviction for aggravated assault and battery.

B. Prosecutorial Misconduct

[¶ 11] Conine alleges instances of prosecutorial misconduct during voir dire and opening statement, which he claims warrant reversal of his conviction. Conine did not object at the trial to the alleged instances of misconduct and, therefore, our review is limited to the plain error doctrine, which requires: (1) the record clearly reflect the incident alleged as error; (2) Conine demonstrate the error transgressed an unequivocal rule of law in a clear and obvious, not merely arguable, way; and (3) Conine demonstrate the error adversely affected a substantial right resulting in material prejudice to him. Callen v. State, 2008 WY 107, ¶ 20, 192 P.3d 137, 145 (Wyo.20...