Cotney v. State

• Decision Date: 01 February 2022
• Docket Number: S-21-0111
• Citation: 2022 WY 17
• Parties: PHILLIP D. COTNEY, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

2022 WY 17

PHILLIP D. COTNEY, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0111

Supreme Court of Wyoming

February 1, 2022

Appeal from the District Court of Crook County The Honorable Stuart S. Healy III, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel. Argument by Ms. Cooper.

Representing Appellee:

Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Catherine M. Mercer, Assistant Attorney General. Argument by Ms. Mercer.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

KAUTZ, Justice.

[¶1] Phillip D. Cotney was convicted by a jury of aggravated assault and battery and misdemeanor interference with a peace officer. He claims there was insufficient evidence at trial to support his aggravated assault and battery conviction and he was denied his right to a speedy trial under Rule 48 of the Wyoming Rules of Criminal Procedure (W.R.Cr.P.) and the United States and Wyoming Constitutions. We affirm.

ISSUES

[¶2] Mr. Cotney raises two issues, which we restate as follows:

1. Was there sufficient evidence at trial to support Mr Cotney's aggravated assault and battery conviction for threatening to use a drawn deadly weapon on another person

2. Was Mr. Cotney denied his right to a speedy trial?

FACTS

[¶3] On July 24, 2019, Officer Welchie Patterson of the Sundance Police Department saw Mr. Cotney sitting at a picnic table outside a local bar. Officer Patterson knew there was an active warrant for Mr. Cotney's arrest for failure to pay child support. After confirming the existence of the warrant with dispatch, Officer Patterson approached Mr. Cotney and told him there was an active warrant for his arrest and he was going to arrest him. Mr. Cotney became angry, jumped up from the picnic table, drew a knife out of his right rear pants pocket, pulled the blade out, and said he was not going back to jail. He advanced toward Officer Patterson with the knife before retreating into the street. Officer Patterson drew his gun and requested backup officers using the police radio attached to his person.

[¶4] While waiting for backup officers to arrive, Officer Patterson kept his gun pointed at Mr. Cotney and made multiple demands for Mr. Cotney to drop the knife. Mr. Cotney refused. Holding the knife in his right hand down by his side, he repeatedly told Officer Patterson he was not going back to jail. When the first backup officer arrived on scene, Mr. Cotney was still holding the knife down by his side and refusing to obey Officer Patterson's commands to drop it. Eventually, Officer Patterson told Mr. Cotney that if he put the knife away, he would put his gun away. After Mr. Cotney closed the blade and put the knife back in his right rear pants pocket, Officer Patterson re-holstered his gun. Soon thereafter, a second backup officer arrived. Mr. Cotney told that officer to "back off" and moved his hand toward his right rear pants pocket. Officer Patterson ordered him not to remove the knife from his pocket. The officers arrested Mr. Cotney and recovered the knife from his pocket.

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[¶5] Two days later, on July 26, 2019, the State charged Mr. Cotney with aggravated assault and battery, felony interference with a peace officer, and misdemeanor interference with a police officer. Although a preliminary hearing was originally scheduled for August 5, 2019, Mr. Cotney moved to continue the hearing and ultimately waived his right to a preliminary hearing. As a result, the criminal case was not bound over to the district court until August 26, 2019. In the meantime, in a separate case, the district court found Mr. Cotney in civil contempt of court for failure to pay child support and ordered him to be held in the Crook County Detention Center until he paid $8, 216.60 in back child support.

[¶6] On September 16, 2019, Mr. Cotney was arraigned in the criminal matter and pled not guilty to all three charges. The district court scheduled a pretrial conference for December 10, 2019.

[¶7] On December 9, 2019, Mr. Cotney filed a motion to stay the proceedings to undergo a competency evaluation. See Wyo. Stat. Ann. § 7-11-303 (LexisNexis 2021). The district court granted the motion the same day. On January 27, 2020, the Wyoming State Hospital filed its forensic evaluation finding Mr. Cotney competent to proceed to trial. On February 6, 2020, the court held a status conference concerning the forensic evaluation. Mr. Cotney and the State did not object to the Wyoming State Hospital's competency finding, and neither party requested a second competency evaluation. The court found Mr. Cotney competent and lifted the stay. It held a pretrial conference and scheduled Mr. Cotney's trial for March 24, 2020.

[¶8] Subsequently, the district court continued the trial twice due to the COVID-19 pandemic, first from March 24, 2020, to June 1, 2020, and then from June 1, 2020, to August 27, 2020. A two-day jury trial was held on August 27 and 28, 2020. The jury found Mr. Cotney not guilty of felony interference with a peace officer but guilty of aggravated assault and battery and misdemeanor interference with a peace officer. The district court sentenced him to a total term of 4-7 years imprisonment. Mr. Cotney timely appealed.

DISCUSSION

A. Sufficiency of the Evidence

[¶9] Our standard of review for sufficiency of the evidence arguments is well-established:

"This Court examines the evidence in the light most favorable to the State. We accept all evidence favorable to the State as true and give the State's evidence every favorable inference which can reasonably and fairly be drawn from it. We also

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disregard any evidence favorable to the appellant that conflicts with the State's evidence."

Birch v. State, 2018 WY 73, ¶ 25, 421 P.3d 528, 536 (Wyo. 2018) (quoting Jordin v. State, 2018 WY 64, ¶ 8, 419 P.3d 527, 530 (Wyo. 2018), and Thompson v. State, 2018 WY 3, ¶ 14, 408 P.3d 756, 761 (Wyo. 2018)). In applying this standard,

"We do not consider 'whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but [instead] whether or not the evidence could reasonably support such a finding by the factfinder.' Hill v. State, 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo. 2016) (citing Levengood v. State, 2014 WY 138, ¶ 12, 336 P.3d 1201, 1203 (Wyo. 2014)). 'We will not reweigh the evidence nor will we re-examine the credibility of the witnesses.' Hill, . . . ¶ 12, 371 P.3d at 558 (citation omitted). We review the sufficiency of the evidence 'from this perspective because we defer to the jury as the fact-finder and assume [it] believed only the evidence adverse to the defendant since [it] found the defendant guilty beyond a reasonable doubt.' Oldman [v. State], 2015 WY 121, ¶ 5, 359 P.3d [964, ] 966 [(Wyo. 2015)]."

Mraz v. State, 2016 WY 85, ¶ 19, 378 P.3d 280, 286 (Wyo. 2016) (quoting Bean v. State, 2016 WY 48, ¶ 45, 373 P.3d 372, 387 (Wyo. 2016)).

[¶10] Mr. Cotney was convicted of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) (Lexis Nexis 2021), which states: "A person is guilty of aggravated assault and battery if he . . . [t]hreatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another[.]" The "threatens to use" element of § 6-2-502(a)(iii) "requires proof of an actual threat of physical injury during the act of employing a deadly weapon." Johnston v. State, 747 P.2d 1132, 1134 (Wyo. 1987). "[T]he mere presence of a weapon in hand is insufficient to satisfy the 'threatens to use' element." Hill, ¶ 15, 371 P.3d at 559 (citing Johnston, 747 P.2d at 1134, and Gunderson v. State, 925 P.2d 1300, 1304 (Wyo. 1996)). "'A threat [under § 6-2-502(a)(iii)] is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts.'" Hill, ¶ 15, 371 P.3d at 559 (quoting Johnston, 747 P.2d at 1135). See also, Thompson, ¶ 16, 408 P.3d at 761.

[¶11] Mr. Cotney argues the trial evidence was insufficient to show he threatened to use a drawn deadly weapon on another person. He admits he was holding a drawn deadly weapon (the knife) but claims he did not threaten the officers with it because he made no

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verbal threats or threatening physical gestures toward the officers. Rather, he backed away from Officer Patterson and held the knife down by his side.

[¶12] Viewing the evidence in the light most favorable to the State, there was sufficient evidence by which the jury could reasonably find Mr. Cotney threatened to use a drawn deadly weapon on Officer Patterson. Officer Patterson testified that when he approached Mr. Cotney and told him he was going to arrest him, Mr. Cotney became angry, jumped up from his seat, drew a knife out of his pocket, pulled the blade out, and said he was not going back to jail. He also testified Mr. Cotney advanced toward him with the knife prior to retreating into the street. Once in the street, Officer Patterson made repeated demands for Mr. Cotney to drop the knife. Mr. Cotney refused, holding the knife down by his side and telling Officer Patterson numerous times that he was not going back to jail. Officer Patterson captured his interaction with Mr. Cotney in the street with his body camera.^[1] The State played a video of the encounter for the jury at the trial. The video shows a visibly angry Mr. Cotney holding the knife down by his side, refusing to heed Officer Patterson's commands to drop the knife, and telling Officer Patterson numerous times he was not going back to jail. At trial, Mr. Cotney admitted he did...