Kovach v. State

• Decision Date: 19 April 2013
• Docket Number: No. S–12–0150.,S–12–0150.
• Citation: 299 P.3d 97
• Parties: Travis J. KOVACH, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

299 P.3d 97

Travis J. KOVACH, Appellant (Defendant),

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

No. S–12–0150.

Supreme Court of Wyoming.

April 19, 2013.

Representing Appellant: Gerard R. Bosch, Law Offices of Jerry Bosch, Wilson, WY; and Tim Newcomb, Laramie, WY. Argument by Mr. Newcomb.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; and Jeffrey Pope, Assistant Attorney General. Argument by Mr. Pope.

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

HILL, Justice.

[¶ 1] Travis Kovach was a passenger in a vehicle traveling on a narrow backcountry road. As the vehicle in which Kovach was traveling passed another oncoming vehicle, the two vehicles clipped each other. Kovach pursued the other vehicle, and after catching up with it, he assaulted the vehicle's seventy-three-year-old driver and sixty-seven-year-old passenger. Kovach then forced the two men back to his hunting camp, where he again assaulted them.

[¶ 2] A jury found Kovach guilty of numerous charges, including false imprisonment, felonious restraint and aggravated assault and battery. On appeal, Kovach contends the prosecutor suppressed exculpatory evidence in violation of his state and federal due process rights. He also challenges the district court's order requiring him to disclose witness statements and its imposition of sanctions related to that order; alleges misconduct in the prosecutor's failure to correct false or misleading testimony; alleges the district court relied on impermissible information in sentencing; and alleges the district court erred in sua sponte issuing an amended judgment correcting the fine imposed against Kovach. We affirm.

ISSUES

[¶ 3] Kovach presents eight issues on appeal, which we consolidate and restate as follows:

1. Did the prosecutor suppress exculpatory evidence in violation of Kovach's federal and state due process rights?

2. Did the district court abuse its discretion and violate Kovach's federal and state constitutional rights when it ordered him to disclose witness statements and then limited his cross-examination of two prosecution witnesses as a sanction for failure to comply with that order?

3. Did the prosecutor commit plain error in violation of Kovach's due process rights by failing to correct the testimony of two witnesses?

4. Did the district court commit plain error in its sentencing of Kovach by relying on uncharged misconduct evidence and by sua sponte issuing an amended judgment correcting the fine imposed against Kovach?

FACTUAL BACKGROUND

[¶ 4] On October 15, 2010, Travis Kovach was hunting and camping in the LaBarge Creek/Little Fall Creek area. Kovach was thirty-three years old, approximately six-feet, one-inch tall, and weighed about two hundred pounds. His hunting and camping party also included, among others, MW, Isaac Zimmerman, David Huber, and Dan Frear. A few hundred yards away from the Kovach campsite was another campsite, this one occupied by two brothers, Jess Ribelin, age seventy-three, and Richard Ribelin, age sixty-seven. The Ribelins were from Kansas and had eight others in their party, including Jess Ribelin's grown sons and a friend.

[¶ 5] Late in the afternoon on October 15th, Kovach and Zimmerman borrowed MW's vehicle, an Escalade, to drive to LaBarge to pick up Kovach's son. Kovach asked Zimmerman to drive, which Zimmerman explained as follows:

Q. Now I'm going to take you back to the camp early in the day about 3:00. Had you been drinking that day?

A. Yes, I had.

Q. How much?

A. I had a couple beers in the morning and a shot of whiskey.

Q. So maybe three beverages?

A. Correct.

Q. And are you the one who got the keys from [MW]?

A. I don't recall, I don't know.

Q. Do you recall going into her tent and getting the keys or do you recall that that was Mr. Kovach?

A. I don't recall how I wound up with the keys at all.

Q. Okay. Do you recall why you were driving that day instead of Mr. Kovach?

A. He asked me to drive because we were going to go pick up his son I believe.

Q. And do you recall why he asked you to drive?

A. He had been drinking and he didn't feel like he needed to be driving with his son.

Q. It was because he wasn't sober; is that correct?

A. Correct.

[¶ 6] At the same time Zimmerman and Kovach were driving on LaBarge Creek Road headed into town, Jess and Richard Ribelin were on LaBarge Creek Road returning to camp after a supply run into town. The two vehicles met, and as they passed on the narrow road, they clipped each other. The collision damaged the side mirror on the Escalade in which Zimmerman and Kovach were traveling, and it left a four to six-inch black mark on the rear wheel well of the Dodge Ram dually truck in which the Ribelins were traveling. Both Ribelins testified that, as the vehicles passed each other, they heard a noise that sounded like a rock bouncing up and hitting the fender and that they did not realize that the vehicles had made contact. Shortly after the collision, Zimmerman and Kovach turned around and drove after the Ribelins. When they caught up to the Ribelins, Zimmerman and Kovach flashed their lights and honked their horn, and the Ribelins pulled over.

[¶ 7] What happened next is in dispute. Jess Ribelin testified that he pulled his vehicle over when he saw the Escalade behind him flashing its lights and honking its horn, and that after both vehicles were stopped, he saw Kovach jump out of the Escalade. He testified that through his open window he could hear Kovach swearing at him and that he was concerned that Kovach might attack him because of the way he got out of his vehicle, the way he was swearing, and because earlier in the day, he had met Kovach and Kovach had said he was going to kick some hunters' asses for using his friend's normal campsite. Jess Ribelin further testified:

I told my brother, I said, “I better get out and see what they want” and so I got out of the truck. I have a little trouble getting out because I just had an operation on my knee so it wasn't as workable as it should have been, and when I stepped out he was still raising all kinds of cane so I grabbed the fencing pliers I had there that would help protect me if he was going to attack me.

[¶ 8] Jess Ribelin and Richard Ribelin testified that Kovach attacked and injured first Jess and then Richard when Richard intervened to help Jess. The Ribelin brothers testified that during the course of the attack, Kovach broke out both side mirrors on the Ribelin vehicle, drew a large caliber pistol, fired a shot at the ground with the pistol, threatened both men with the gun, and struck Richard Ribelin in the face with the gun. Both men also testified that Kovach used the threat of the firearm to force Jess Ribelin into the passenger seat of the Ribelin vehicle and to force Richard Ribelin into the passenger seat of the Escalade. The brothers testified that with Kovach driving the Ribelin vehicle and Isaac Zimmerman driving the Escalade, the four drove to Kovach's campsite. Jess Ribelin testified that once they were at the camp, Kovach struck him in the ribs with the fencing pliers and knocked him to the ground. Richard Ribelin testified that Kovach struck him in the head with his elbow, knocking him to the ground.

[¶ 9] Kovach did not testify, but he gave statements to law enforcement, and those recorded statements were presented to the jury. In those statements, Kovach denied that he had consumed any alcohol before the incident with the Ribelins. He reported that once he caught up with the Ribelin vehicle, he wanted only to confront the Ribelins about the damage done to the Escalade. He stated that when he approached the Ribelin vehicle, Jess Ribelin attacked him with a pair of fencing pliers, and that after that attack, any injuries he caused to either Jess Ribelin or his brother Richard were in self defense.

[¶ 10] Kovach admitted that he used the fencing pliers to break out a mirror on the Ribelin vehicle. He also admitted that he was carrying a .44 Magnum revolver and that he drew his firearm, but he denied pointing the firearm at anyone, threatening anyone with the firearm, or discharging the firearm. Kovach admitted to taking the Ribelins back to his hunting camp after injuring them, but he stated that his only reason for doing so was to have them apologize to MW for the damage done to her vehicle. He denied that he hit, shoved or injured either of the Ribelins after bringing them back to his camp.

[¶ 11] Isaac Zimmerman was called as a defense witness and confirmed much of Kovach's version of events. He testified that during the initial altercation on the road, Kovach acted in self defense because Jess Ribelin swung the fencing pliers at him. He denied that Kovach pointed his gun at anyone or fired the weapon. As to the events at the campsite, Zimmerman testified that he saw Kovach knock the Ribelins to the ground, with no provocation by the Ribelins, but he denied seeing Kovach hit Jess with the pliers or elbow Richard in the head.

[¶ 12] MW was called as prosecution witness. She testified as to what occurred at the hunting camp and stated that she saw Kovach knock the Ribelins to the ground. She denied seeing Kovach hit Jess with the pliers or elbow Richard in the head, but she agreed that the Ribelins had done nothing to provoke Kovach's attack at the campsite. MW intervened to stop Kovach's assault and assist the Ribelin brothers, and she directed other men in the camp to restrain Kovach and take him to a camper. MW and her husband then helped the Ribelins to the Escalade, and MW drove the men back to their own camp, with her husband following in the Ribelin vehicle. Back at the Ribelin camp, MW, a nurse, attended to the injured men and determined that they should be taken into town for medical treatment. She then drove the two men to a clinic, contacting law enforcement on the way to report the incident.

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