Jordin v. State

• Decision Date: 12 June 2018
• Docket Number: S-17-0228
• Citation: 419 P.3d 527
• Parties: Phillip Timothy JORDIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

419 P.3d 527

Phillip Timothy JORDIN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-17-0228

Supreme Court of Wyoming.

June 12, 2018

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Tina N. Olson^* , Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Allison L. Kvien, Assistant Attorney General.

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

KAUTZ, Justice.

[¶ 1] Phillip Timothy Jordin was convicted by a jury of conspiracy to commit aggravated burglary, conspiracy to commit aggravated robbery, conspiracy to commit aggravated assault and battery, and conspiracy to commit theft. Mr. Jordin appeals three of his convictions, arguing the State failed to present sufficient evidence at trial. We affirm.

ISSUE

[¶ 2] Mr. Jordin raises one issue in this appeal:

There is insufficient evidence to support the convictions of conspiracy to commit aggravated burglary, aggravated robbery, and aggravated assault [and battery].

FACTS

[¶ 3] In the early hours of June 25, 2016, Mr. Jordin and his friend, Adam Reed, decided to burglarize the Sinclair Golf Course. To carry out this plan, the two drove to the golf course in Mr. Jordin's car, arriving at approximately 3:15 a.m. Mr. Reed kicked in the back door of the clubhouse and began removing items from the pro shop. He entered the pro shop three times, grabbing any items he could including cash registers, golf clubs, alcohol, and potato chips. Mr. Jordin remained in his car, acting as a lookout.

[¶ 4] The golf course's manager, Brian Creager, who lived in a home on the golf course, saw the taillights of Mr. Jordin's vehicle entering the property. Mr. Creager drove to the clubhouse and encountered Mr. Jordin and Mr. Reed looking under the raised hood of Mr. Jordin's car. Mr. Creager rolled down his window and asked the men if there was a problem. The men said they were having car troubles and were checking the antifreeze and oil. Mr. Creager then went to the clubhouse, entering through the pro shop. After a few minutes, Mr. Creager left the clubhouse, locked the door, and went to the office building. He observed Mr. Jordin and Mr. Reed still working on the car. Mr. Creager was in the office for a short time and then returned to the pro shop. While in the pro shop the second time, Mr. Creager noticed the cash register and his computer were missing. He went into the kitchen and observed the cooler door was open, the door frame into the building was broken, and the door was open.

[¶ 5] Mr. Creager then confronted Mr. Jordin and Mr. Reed at their car, telling them he needed to look inside the vehicle. At this point, Mr. Reed shined a military grade flashlight in strobe mode into Mr. Creager's face. Mr. Creager saw Mr. Jordin quickly moving towards him. He grabbed the flashlight from Mr. Reed and struck Mr. Jordin in the head with it. Mr. Jordin staggered away from Mr. Creager as his head was bleeding and his glasses fell from his face. Mr. Creager saw Mr. Reed reach through an open window into the car and attempt to start it using a screwdriver. Mr. Creager looked away for a moment to find something to use to disable the vehicle, and when he looked back he could no longer see Mr. Reed. Mr. Creager then heard someone say, "He split my head open," followed by, "Shoot him, shoot him." Seconds later, someone fired a gun and Mr. Creager observed a muzzle flash.

[¶ 6] Mr. Creager ran into the clubhouse and called 911. During the call, he noticed the men leaving in their car, and he decided to pursue them. He chased the men and forced them off the road, resulting in both Mr. Jordin's and Mr. Creager's vehicles rolling over. Mr. Creager got out of his vehicle and saw Mr. Reed begin to run away. He yelled at Mr. Reed to stop or he would kill him and Mr. Reed responded, "You already killed my friend," and continued to run away. Not seeing or hearing Mr. Jordin, Mr. Creager began to walk back towards the golf course until he was met by a law enforcement officer. Mr. Jordin was arrested two days later.

[¶ 7] The State charged Mr. Jordin with conspiracy to commit aggravated burglary, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) (LexisNexis 2017) and 6–3–301(a) and (c)(i) (LexisNexis 2017); conspiracy to commit aggravated assault and battery, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–2–502(a)(ii) or (iii) (LexisNexis 2017); conspiracy to commit theft, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–3–402(a) and (c)(i) (LexisNexis 2017); conspiracy to commit wrongful taking or disposing of property, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–3–403(a)(i) (LexisNexis 2017); and conspiracy to commit aggravated robbery, in violation of Wyo. Stat. Ann. §§ 6–1–303(a) and 6–2–401(a)(ii), (c)(ii), and (d) (LexisNexis 2017).¹ The case proceeded to trial, and at the close of the evidence, the State dismissed the charge of conspiracy to commit wrongful taking and disposing of property. The jury found Mr. Jordin guilty of the remaining four charges. Mr. Jordin filed a timely notice of appeal.

STANDARD OF REVIEW

[¶ 8] When reviewing a claim regarding the sufficiency of the evidence, we use the following well-established standard of review:

[T]his 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 disregard any evidence favorable to the appellant that conflicts with the State's evidence.

Thompson v. State , 2018 WY 3, ¶ 14, 408 P.3d 756, 761 (Wyo. 2018) (quoting Harnden v. State , 2016 WY 92, ¶ 5, 378 P.3d 611, 612–13 (Wyo. 2016) ). When considering the evidence,

[w]e 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). "We will not reweigh the evidence nor will we re-examine the credibility of the witnesses." Hill , 2016 WY 27, ¶ 12, 371 P.3d at 558. We review the sufficiency of the evidence "from this perspective because we defer to the jury as the fact-finder and assume they believed only the evidence adverse to the defendant since they found the defendant guilty beyond a reasonable doubt." Oldman [v. State ], 2015 WY 121, ¶ 5, 359 P.3d [964,] 966 [ (Wyo. 2015) ].

Thompson , ¶ 14, 408 P.3d at 760 (quoting Mraz v. State , 2016 WY 85, ¶ 19, 378 P.3d 280, 286 (Wyo. 2016) ).

DISCUSSION

[¶ 9] Mr. Jordin's convictions for conspiracy to commit aggravated burglary, conspiracy to commit aggravated robbery, and conspiracy to commit aggravated assault and battery all required the State to prove that Mr. Jordin and Mr. Reed agreed to use a deadly weapon during the commission of their crimes. Mr. Jordin argues the State failed to carry its burden of proof of this element. A close look at his argument, however, demonstrates that his challenge to the sufficiency of the State's evidence at trial is two-fold. His primary focus is on the fact that the State presented three different theories about what was used as a deadly weapon during the confrontation—the army grade flashlight, the gun, and a baseball bat that was found in the area where Mr. Jordin parked his vehicle at the golf course. Mr. Jordin argues that because the State did not choose which of the "deadly weapons" it was relying on for each of the charges, our precedent in Tanner v. State , 2002 WY 170, 57 P.3d 1242 (Wyo. 2002), requires the State prove beyond a reasonable doubt that Mr. Jordin and Mr. Reed conspired to use all three weapons during the burglary and confrontation with Mr. Creager. This leads to the second part of Mr. Jordin's argument, which is the State failed to prove Mr. Jordin and Mr. Reed agreed to use any weapon at all. We will consider each of these issues in turn.

Applicability of Tanner v. State

[¶ 10] At trial, the State argued that the flashlight, the gun, or the baseball bat would satisfy the "deadly weapon" element found in each of the charged crimes. Mr. Jordin argues that, because the State did not choose only one of those theories at trial, the State must point to facts in the record that show beyond a reasonable doubt Mr. Jordin conspired with Mr. Reed to use each of the weapons. In support of this argument, Mr. Jordin relies on our decision in Tanner .

[¶ 11] In Tanner , this Court reaffirmed the requirement that, if a crime contains alternative elements and the jury is instructed regarding both alternatives because the State does not elect a single alternative as the basis for the charge, this Court must find sufficient evidence of each alternative element to uphold the conviction on appeal. Id ., ¶ 13, 57 P.3d at 1246 ; see also Bush v. State , 908 P.2d 963, 967 (Wyo. 1995) ; Fife v. State , 676 P.2d 565, 568 (Wyo. 1984). In Tanner and Bush , the defendants were charged with burglary, and in both instances the jury was informed that the burglary statute required the State to prove the defendant entered the dwelling with the intent to commit a felony or the crime of larceny. Tanner , ¶ 9, 57 P.3d at 1245 ; Bush , 908 P.2d at 966. Because the Court was left to speculate on which of the alternative elements the jury unanimously relied upon, the State had to prove sufficient evidence of both. This rule applies even in situations where the evidence presented and the State's arguments regarding the theory of the crime support only one of the alternative elements. Tanner , ¶ 14, 57 P.3d at 1247.

[¶ 12] Since Tanner , this Court has made it clear this rule is limited to situations where the jury is presented with alternative elements . In Miller v. State , 2006 WY...