Evenson v. State

• Decision Date: 05 March 2008
• Docket Number: No. S-07-0163.,S-07-0163.
• Citation: 177 P.3d 819,2008 WY 24
• Parties: James Michael EVENSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

177 P.3d 819

2008 WY 24

James Michael EVENSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. S-07-0163.

Supreme Court of Wyoming.

March 5, 2008.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel; Kirk Allan Morgan, Assistant Appellate Counsel. Argument by. Mr. Morgan.

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

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

BURKE, Justice.

[¶1] A jury found James Michael Evenson guilty of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (Lexis-Nexis 2007).¹ Due to prior felony convictions, he was sentenced under the habitual criminal statute, Wyo. Stat. Ann. § 6-10-201,² to life imprisonment. He appeals his conviction. We will affirm.

ISSUES

[¶ 2] Mr. Evenson states his two issues as follows:

1. Whether the prosecutor committed prosecutorial misconduct when he elicited opinion testimony, argued facts not in evidence, misstated the law, and argued community protection.

2. Whether the trial court abused its discretion in admitting Dr. Bruno's testimony as to the nature, extent, and cause of Mr. Montoya's injuries, as such testimony was not relevant under W.R.E. 401 and 402, and such testimony was unfairly prejudicial, confusing, and misleading to the jury under W.R.E. 403.

FACTS

[¶ 3] On the night of May 9, 2006, Jason Quinn, Michael Montoya, and two other members of the Wyoming Cavalry arena football team went to a bar in Casper, Wyoming. Shortly after they arrived, an altercation erupted between two other groups of men at the bar. The football players decided to leave. Leaving through the back door, Mr. Quinn bumped into another man, and they exchanged words. Outside, the situation became more heated, and the two began arguing and shoving. Others joined in, and the brawl escalated into what Mr. Quinn called "a riot of mayhem."

[¶4] The man Mr. Quinn bumped into was an acquaintance of Mr. Evenson. Perhaps in an effort to protect his acquaintance, Mr. Evenson rushed at Mr. Quinn and slashed him with a boxeutter, leaving a severe cut across his chest. Mr. Quinn punched Mr. Evenson and knocked him to the ground. At this point, several people were running around, fighting, yelling, and calling names. An unidentified person threw a beer bottle at Mr. Quinn, and someone else tried to cut him with a broken bottle. While Mr. Quinn was distracted, Mr. Evenson arose from where he had fallen, and attacked Mr. Quinn again, this time inflicting a severe cut on his side.

[¶ 5] About a half block away, Mr. Quinn's teammate, Mr. Montoya, was separately involved in the melee. He suffered cuts to the back of his neck and on his wrist. Mr. Montoya's attacker was never identified, although Mr. Montoya confirmed that it was not Mr. Evenson. Eventually the fight broke up, and Mr. Quinn and Mr. Montoya went to the hospital, where both were treated in the emergency room. The emergency room physician described Mr. Quinn's injuries as deep, "slice type" wounds that, due to their location, were potentially life-threatening.

[¶ 6] Mr. Evenson did not go to the hospital, although there is evidence that he suffered severe injuries to his mouth. He went instead with some friends to the home of an acquaintance. A few days later, after police started interviewing employees and patrons of the bar where the fight occurred, Mr. Evenson left for Texas. He was arrested in Texas and returned to Casper, where he faced two counts of aggravated assault. One count was dismissed by the prosecution, and Mr. Evenson was tried on the remaining count. At trial, Mr. Evenson did not deny that he had assaulted Mr. Quinn and cut his chest and side. Mr. Evenson asserted, however, that he had acted in self-defense. There was disputed evidence that Mr. Quinn had been holding a weapon, perhaps brass knuckles, when he hit Mr. Evenson. The record further indicates that Mr. Quinn was 6' 2" tall and weighed approximately 225 pounds, while Mr. Evenson was about 5' 8" tall and weighed around 160 pounds. The jury apparently rejected the claim of self-defense and Mr. Evenson was convicted. He appeals.

DISCUSSION

Prosecutorial misconduct

[¶ 7] Mr. Evenson claims four instances of prosecutorial misconduct. He claims that the prosecutor elicited an improper opinion of guilt from a police officer, argued facts not in evidence, misstated the law of self-defense, and made improper community protection arguments. Because no objections were made to these incidents at trial, we review for plain error, requiring Mr. Evenson to demonstrate that: "1) the record is clear about the incident alleged as error; 2) there was a transgression of a clear and unequivocal rule of law; and 3) the party claiming the error was denied a substantial right which materially prejudiced him." Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.2007). We will reverse if there is a reasonable probability that the verdict would have been more favorable to the appellant if the error had not occurred. Id. We review each instance separately, but recognize that allegations of prosecutorial misconduct are evaluated within the context of the entire record and the argument as a whole. Sanderson v. State, 2007 WY 127, ¶ 37, 165 P.3d 83, 93 (Wyo.2007).

Opinion of guilt

[¶ 8] Mr. Evenson first cites the prosecution's direct examination of a police officer who had investigated the bar fight.

Q: After you spoke to Mr. Sage, what did you do?

A: Once we were able to determine exactly who the individual was that was responsible for the assault, we tried to locate that individual who would be Mr. Evenson, and we also at that point attempted to contact the players from the Cavalry and set up interviews with them.

Mr. Evenson claims that this amounted to an opinion that he was guilty. Opinions of guilt are improper, and inadmissible as evidence. Stephens v. State, 774 P.2d 60, 67 (Wyo.1989), overruled on other grounds by Large v. State, 2008 WY 22, ¶ 30, 177 P.3d 807, 816, 2008 WL 518061 (Wyo.2008).

[¶ 9] Mr. Evenson further asserts that the opinion of guilt was elicited by the prosecutor. Citing McClelland v. State, 2007 WY 57, ¶ 30, 155 P.3d 1013, 1023 (Wyo.2007), he argues that this was error per se, requiring a reversal of his conviction even without a showing of prejudice. However, if the prosecutor's question is read literally—"what did you do?"—it asked the witness what he did, not what his opinion was. We therefore disagree with Mr. Evenson that the prosecutor elicited opinion testimony. Further, we recently confirmed that an opinion of guilt, whether elicited by the prosecutor or not, must still be prejudicial before it justifies reversal. Large, 2008 WY 22, ¶ 30, 177 P.3d at 816.

[¶ 10] We also reject Mr. Evenson's claim that the testimony amounted to an opinion of guilt. Being "responsible for the assault" is not the equivalent of being "guilty of aggravated assault." The police officer's testimony described the course of his investigation and how he became aware of Mr. Evenson's involvement in the fight. It did not assert that the officer believed Mr. Evenson was guilty of the crime charged. The officer's testimony here was fundamentally different from testimony we have held to be improper in other cases. Compare Whiteplume v. State, 841 P.2d 1332, 1338 (Wyo.1992) (officer testified that he "listened to her story and made a determination that she had been raped"); Stephens, 774 P.2d at 62, 65-66 (three forensic experts testified that they thought the victim had been sexually abused, and two testified that they believed the defendant did it).

[¶ 11] Moreover, even if the testimony had been improperly admitted, it was not prejudicial when evaluated in the context of this case. Mr. Evenson never disputed that he had been involved in the fight, or that he was the person who attacked and cut Mr. Quinn. The officer's identification of Mr. Evenson was therefore harmless. Mr. Evenson asserted that he acted in self-defense, and as the State points out, "The obvious nature or quality of the plea of self-defense is that of justification, or excuse for an otherwise unlawful homicide or assault and battery." Mewes v. State, 517 P.2d 487, 488-89 (Wyo.1973). The basis of Mr. Evenson's self-defense argument was that his actions were justified or excused. The officer's testimony contained no opinion about whether Mr. Evenson acted in self-defense, or whether his actions were justified or excused on that basis. Mr. Evenson has not demonstrated that the testimony was admitted in transgression of a clear and unequivocal rule of law, or that it denied him a substantial right to his material prejudice. We find no plain error.

Facts not in evidence

[¶ 12] Next, Mr. Evenson challenges a statement made by the prosecutor in his closing argument. Evidence at trial indicated that Mr. Evenson had been hit in the face by Mr. Quinn. Mr. Evenson was knocked to the ground, and his mouth was severely injured. Two witnesses testified that they had seen some metal object, perhaps brass knuckles, in Mr. Quinn's hand when he hit Mr. Evenson. Other witnesses, including Mr. Quinn, denied that he was carrying brass knuckles or any other metal object. Commenting on the conflicting evidence, the prosecutor said:

I don't know how many of you ladies and gentlemen have ever had the opportunity to see or even hold a pair of brass knuckles, but for those of you who have or for those of you who haven't, I'm sure you can use your common sense and determine that if Jason Quinn had a pair of brass knuckles on his hands when he struck the defendant, Michael Evenson, there is no way that the defendant would have gotten back up that day. In fact,...