Gore v. State, 5406

Decision Date15 May 1981
Docket NumberNo. 5406,5406
Citation627 P.2d 1384
PartiesFred Andrew GORE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Robert B. Denhardt and W. A. Smith, Lander, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and John W. Renneisen, Asst. Atty. Gen., Cheyenne, for appellee.

Before ROSE, C.J., RAPER, THOMAS and ROONEY, JJ., and O'BRIEN, District Judge.

ROSE, Chief Justice.

This case comes to us after a district court jury found the defendant-appellant, Fred Andrew Gore, guilty of manslaughter for the death of his wife, Hazel Ann Gore. The appellant seeks to have the verdict set Because we find that there is ample evidence to support the verdict and because as a matter of law we find the jury instructions cannot be said to be fundamentally defective, we affirm the judgment of the lower court.

aside on the grounds that there was insufficient evidence to support the verdict and that the jury was given an improper instruction that prejudiced the defendant's case.

THE FACTS

Around 11:30 p. m. on November 12, 1979, Hazel Ann Gore was killed by a bullet, fired from a .44 magnum pistol, that passed through her jaw and out the back of her head. She was found at the foot of the couch in the front room of the trailer home in Jeffery City where she lived with the defendant. The defendant, who had called the police, was found crying over the victim's body and, at the time, he was intoxicated.

Neither the physical evidence nor the testimony of the defendant demonstrates conclusively where or how the shooting took place. The defendant's pistol was shown to be the weapon that fired the fatal bullet. The victim's blood was found on the ceiling in the front room, on the bed sheets, on a nightstand in the bedroom, on the bathroom floor, and in various other locations in the trailer. Several hours after the shooting, the defendant told a police officer that Hazel Gore had gone into the bedroom and taken the loaded gun from the nightstand where it was regularly kept. Supposedly, she then brought the gun into the front room where the defendant tried to take it away from her. At this time, the defendant explained, the gun went off. Fred Gore later told another officer that he and the victim were "playing" with the gun in the bedroom and that the victim grabbed the gun which he said he was holding when it discharged. At the trial, the defendant, who admitted to being an alcoholic with frequent loss of memory after drinking heavily, said he could not recall any of the events leading up to the shooting. Expert testimony indicated the gun was from two to five feet away from Hazel Gore when the shot was fired and that she could not have been in control of the gun when it discharged.

The evidence of Fred Gore's intoxication is important to these considerations. The defendant had been drinking continuously all day and had consumed upwards of a quart of whiskey. Two and a half hours after the incident, a breathalizer test revealed the defendant to have a blood-alcohol level of .18 or .19. Assuming a normal rate of dissipation of the alcohol from the blood stream, it was estimated that at the time of the shooting the defendant's blood-alcohol level was .21 or .22. Uncontradicted expert testimony indicated that a man with .21 blood-alcohol level would be unable to handle a loaded gun safely.

Testimony concerning one other incident is of interest to us on this appeal. On September 29, 1979, the day the defendant bought the gun, he was driving with the victim in their pickup truck and test firing the pistol out the window as they drove. The gun misfired and sent a bullet through the window of the truck, severely upsetting Mrs. Gore. The defendant had been drinking prior to this incident also. The episode apparently made a strong impression on Hazel Gore since the defendant remarked that "(s)he hated the damn thing ever since the damn gun went off in the pickup."

SUFFICIENCY OF THE EVIDENCE

As we have frequently noted, the rules of appellate review do not require or allow us to judge whether or not we think the evidence demonstrates the defendant is guilty beyond a reasonable doubt. That task is reserved for the jury. When reviewing an appeal based on the claimed insufficiency of evidence, we will only determine whether the evidence and the reasonable inferences that may be drawn from the evidence are sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt. Nisonger v. State, Wyo., 581 P.2d 1094 (1978).

In the present case, the jury heard the evidence recited above, and more. The jury heard and, presumably, evaluated each

witness as his testimony was given. There is ample evidence in the record for the jury to conclude that the defendant was "playing" with a gun that he knew was loaded while he was in a state of extreme intoxication. The defendant knew of the victim's dislike of the gun. In fact, her fear of the pistol arose from an accidental firing that took place while the defendant had been drinking and "messing" with the gun. The evidence clearly showed the victim died from a bullet from the same gun fired in the presence of the defendant while the gun was beyond the control of the victim. From the cold record we can think of few scenarios that would explain the tragic death of Hazel Gore that do not center on the culpable negligence of Fred Andrew Gore. The evidence is sufficient to support the inference of guilt beyond a reasonable doubt.

THE EAGAN RULE

The appellant argues that the rule from Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (1942), is applicable to the present case and, if followed, requires a reversal. The Eagan Rule is clearly not appropriate in this case. In Eagan we said:

" * * * Where an accused is the sole witness of * * * (the) crime, * * * his testimony cannot be arbitrarily rejected, and if his credibility has not been impeached, and his testimony is not improbable, and is not inconsistent with the facts and circumstances shown, but is reasonably consistent therewith, then his testimony should be accepted. * * *" 128 P.2d at 226.

While the defendant in this case is the only witness to the events, his testimony is inconsistent not only with the circumstantial evidence but also with the various versions of the story he told. Under oath in front of the jury, he admitted he had no recollection of what happened. The appellant suggests that the Eagan Rule dictates that the jury must accept the version of the story he gave while intoxicated several hours after the shooting. At that time, while answering a police officer's questions, he blamed Hazel Gore for grabbing the gun and thereby causing its discharge.

There are two problems with the appellant's theory. First, the Eagan Rule does not apply when the witness' testimony is contradicted not only by circumstantial evidence but also by his own testimony. Leitel v. State, Wyo., 579 P.2d 421 (1978). If it did, this would be tantamount to holding that the jury must accept any story offered by the defendant that would exonerate him. Here, the defendant contradicted the more favorable story within a matter of hours after he gave his initial version. Later, at the trial, he offered no explanation. This is obviously not the proper case for the application of this rule.

The second flaw with the appellant's theory is that he assumes that if the jury accepted the first version of the story, they would necessarily have found him innocent. We do not think that this follows. The defendant merely told the officer that his wife first brought the gun into the front room and that it fired as he attempted to take it away from her. From this, the jury could have concluded that the defendant had been trying to disarm his wife or alternatively that he had been reckless in playing with the pistol. Under the second conclusion, the defendant would still be guilty of manslaughter.

The defendant's repeated use of the terminology "playing with" and "messing with" when referring to the handling of the pistol is enough to cause legitimate doubts as to whether he appreciates the level of care that a reasonable person is required to use when handling a loaded weapon. In spite of frequent experience with guns and a previous accident with the same pistol, the defendant apparently viewed a loaded .44 magnum pistol as a toy that could provide amusement when he was drinking. Such behavior might well be considered negligence per se....

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