Hill v. State, S–15–0133.

CourtUnited States State Supreme Court of Wyoming
Citation371 P.3d 553,2016 WY 27
Docket NumberNo. S–15–0133.,S–15–0133.
PartiesDerek Earl HILL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date02 March 2016

371 P.3d 553
2016 WY 27

Derek Earl HILL, Appellant (Defendant)
v.
The STATE of Wyoming, Appellee (Plaintiff).

No. S–15–0133.

Supreme Court of Wyoming.

March 2, 2016.


371 P.3d 556

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

371 P.3d 557

FOX, Justice.

¶ 1] A jury found Derek Earl Hill guilty of five counts of reckless endangering, three counts of aggravated assault, and one count of eluding police. He appeals his conviction claiming there was insufficient evidence of aggravated assault, the district court abused its discretion when it admitted evidence of law enforcement officers' reactions to a fired shot, and there was prosecutorial misconduct during closing arguments. We affirm.

ISSUES

[¶ 2] 1. Was the evidence presented at trial sufficient to prove Mr. Hill threatened to use the weapon he was carrying?

2. Did the district court abuse its discretion when it permitted evidence of law enforcement officers' reactions to the fired shot?

3. Did the district court abuse its discretion when it denied Mr. Hill's motion for mistrial based upon prosecutorial misconduct?

4. Did the prosecutor's comments during closing misstate the law, or constitute improper vouching?

FACTS

[¶ 3] Lelon Tucker, his wife Nichelle Tucker, and their three children (ages four, two, and six months) went to the Red Lakes area near Cody to practice shooting early in the evening. The couple left the children in their Avalanche with the windows rolled down while they shot at targets that they had set against a berm. After they had been there a while, Mr. Tucker noticed a car (occupied by Mr. Hill) sitting on the hill about 500 yards away. The Tuckers had finished shooting and taken their two older children out of their Avalanche to go to the bathroom. They were preparing to leave when Mr. Tucker noticed that Mr. Hill's car had moved to within 100 yards of them. Mr. Tucker was not comfortable with the situation, so he and his wife quickly loaded the children into the Avalanche and began to drive home.

[¶ 4] Shortly thereafter, Mr. Hill's car got “up on [the] rear end of [the Tuckers'] vehicle,” near the bumper, and began revving its engine. Mr. Tucker pulled over twice to allow Mr. Hill to drive around him, but both times Mr. Hill pulled over and stopped behind Mr. Tucker's truck. After he pulled over a third time, Mr. Tucker backed up. Mr. Hill backed up as well. Mr. Tucker began driving again and pulled over one last time; Mr. Hill stopped about fifty yards behind him. Mr. Tucker then turned his truck around and headed toward Mr. Hill's car.

[¶ 5] Both Mr. Tucker and his wife testified that as they got closer, they noticed a rifle on the dash of the car, facing out the windshield, pointed directly at them, and that Mr. Hill peeled away from them. Mr. Tucker testified that he then instructed his wife to call 911, turned his vehicle around, and began to follow Mr. Hill's car. He testified that Mr. Hill slid his car sideways so that the driver's side was facing toward the Tuckers' truck, and he decided to “punch it,” driving directly through the space in front of Mr. Hill's car. According to Mr. Tucker, Mr. Hill followed the Tuckers at a close distance, but eventually dropped back as they approached Cody.

[¶ 6] Cody police officers Scott Burlingame and Eric Wright (who was in training at the time) responded to the 911 call. The officers were in the vehicle together when they located Mr. Hill's car. As the officers approached Mr. Hill's car, they observed it make turns without signaling and run through two stop signs. Officer Burlingame turned on his overhead lights and siren and Mr. Hill sped away from the officers, reaching a speed of 90 miles per hour in a 30 mile-per-hour zone. They pursued Mr. Hill as he headed back toward the Red Lake area over a rutted gravel road. Officers Burlingame and Wright were joined by Park County Sheriff Deputy JJ Schwindt, who pulled in behind their vehicle, and the chase headed out of the Cody city limits. Because of the rough road, Mr. Hill's car started to bottom out, began leaking fluid, and eventually came to a stop. By this time, the sun had gone down and it was getting dark.

[¶ 7] After Mr. Hill's car stopped, the Cody officers stopped their vehicle, and Deputy Schwindt pulled a little behind them.

[371 P.3d 558

Officer Burlingame had his overhead light bar, headlights, and spotlight on. Mr. Hill got out of his car, holding an assault rifle. The law enforcement officers ordered him to “[s]how us your hands” and “[g]et on the ground,” but Mr. Hill took off running. About ten seconds later, a shot was fired. Officer Burlingame told Officer Wright and Deputy Schwindt to “take cover.” He turned his lights and spotlight off and advised other units that were approaching to turn their lights off as well. Approximately two minutes later, three more shots were fired in the distance.

¶ 8] Mr. Hill testified that as he took off running, he “ended up tripping and sliding, discharging the first” shot; that he did not fire at the officers; and that when that shot discharged, the barrel was pointed toward the ground.

[¶ 9] Both Officers Burlingame and Wright testified that when the first shot was fired, they did not see any muzzle flash from the rifle. Officer Burlingame testified he did not see any dirt fly up after the first shot. Deputy Schwindt testified that he saw Mr. Hill “turn[ ] slightly back towards our direction,” and “saw a muzzle flash come from the end of the rifle” when the first shot was fired, but did not see any dirt fly up. No bullets or spent casings were recovered from the scene. Mr. Hill was apprehended the next day.

[¶ 10] A jury convicted Mr. Hill of five counts of reckless endangering, three counts of aggravated assault, and one count of eluding police. Mr. Hill timely perfected this appeal. Additional facts, testimony, and argument will be set forth below, as necessary.

DISCUSSION

I. Was the evidence presented at trial sufficient to prove Mr. Hill threatened to use the weapon he was carrying?

[¶ 11] Mr. Hill was convicted of three counts of aggravated assault, one count for each law enforcement officer who was on the scene when the shots were fired. He argues that the State presented insufficient evidence to establish beyond a reasonable doubt that he threatened to use a drawn deadly weapon because it did not prove that he made an actual threat. Mr. Hill maintains that because he was running away from the police officers, made no verbal threats as he ran, and the rifle was not pointed toward the officers, he never made an “actual threat” as required for aggravated assault.

[¶ 12] Our standard of review of sufficiency of the evidence claims is well established.

[W]e 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 reweigh the evidence nor will we re-examine the credibility of the witnesses.

Levengood v. State, 2014 WY 138, ¶ 11, 336 P.3d 1201, 1203 (Wyo.2014) (quoting Brown v. State, 2014 WY 104, ¶ 8, 332 P.3d 1168, 1171–72 (Wyo.2014) ).

[¶ 13] We recently explained that in applying this standard,

[W]e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. In other words, 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.

Id. at ¶ 12, 336 P.3d at 1203 (internal citations and quotation marks omitted); see also Oldman v. State, 2015 WY 121, ¶ 5, 359 P.3d 964, 966–67 (Wyo.2015).

[¶ 14] Wyo. Stat. Ann. § 6–2–502(a)(iii) (LexisNexis 2015) states:

(a) A person is guilty of aggravated assault and battery if he:

....

(iii) Threatens 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[.]

[¶ 15] We have defined the phrase “threatens to use” as requiring “proof of an

[371 P.3d 559

actual threat of physical injury during the act of employing a deadly weapon.” Johnston v. State, 747 P.2d 1132, 1134 (Wyo.1987). We explained that the mere presence of a weapon in hand is insufficient to satisfy the “threatens to use” element. Id.; see also Gunderson v. State, 925 P.2d 1300, 1304 (Wyo.1996). In Johnston, we also approved of the trial court's instruction to the jury defining a “threat”:

A threat 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. Considering all of the circumstances of the case, you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.

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