Nesius v. State

• Decision Date: 20 December 2019
• Docket Number: S-19-0069
• Parties: Christopher Mark NESIUS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

454 P.3d 927

Christopher Mark NESIUS, Appellant (Defendant),

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

S-19-0069

Supreme Court of Wyoming.

December 20, 2019

Representing Appellant: Office of the Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant Appellate Counsel. Argument by Ms. Wilson.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Darrell D. Jackson, Faculty Director, Prosecution Assistance Program; Mackenzie Morrison, Student Director. Argument by Ms. Morrison.

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

BOOMGAARDEN, Justice.

[¶1] A jury convicted Christopher Mark Nesius of two felonies and three misdemeanors after he led law enforcement officers on a high-speed pursuit that ended when he struck and seriously injured a motorcyclist on I-90 near Sundance, Wyoming. On appeal, Mr. Nesius challenges the sufficiency of the evidence to support his conviction for driving under the influence (DUI) causing serious bodily injury under Wyoming Statute § 31-5-233(b)(iii)(B). He argues that his sentence for fleeing or attempting to elude police officers under Wyoming Statute § 31-5-225(a) is illegal because it exceeds the statutory maximum. And he contends that the district court's written sentence failed to conform to its oral pronouncement with respect to credit for time served. We affirm Mr. Nesius' conviction for DUI causing serious bodily injury, but remand for issuance of a corrected sentencing order.

ISSUES

[¶2] Mr. Nesius raises two issues on appeal, which we rephrase:

I. Was the evidence sufficient for the jury to convict Mr. Nesius of DUI causing serious bodily injury under Wyoming Statute § 31-5-233(b)(iii)(B) ?

II. Is Mr. Nesius' 211-day sentence on Count V, fleeing or attempting to elude police officers under Wyoming Statute § 31-5-225(a), illegal because it exceeds the statutory maximum, and did the district court's written sentence fail to conform to its oral pronouncement with respect to credit for time served?

FACTS

[¶3] Given the issues on appeal, we address the facts in the context of the trial proceedings. On July 10, 2017, the State charged Mr. Nesius with six crimes: aggravated assault and battery (Count I); DUI causing serious bodily injury, second offense (Count II); reckless endangering (Count III); interference with a peace officer (Count IV); fleeing or attempting to elude police officers (Count V); and driving with a cancelled, suspended, or revoked license, second offense (Count VI).

[¶4] In October 2018, the district court held a two-day trial on these charges. The State presented the testimony of the law enforcement officers who were involved in the pursuit, a paramedic, two scientific witnesses, and the motorcyclist. The State's first witness, Wyoming State Park Ranger Brad Purcell, outlined how the incident began at Keyhole State Park on July 8, 2017. The driver of a maroon Ford truck, later identified as Mr. Nesius, passed Ranger Purcell at a high rate of speed. Ranger Purcell determined that Mr. Nesius was driving 63 miles per hour in a 30-mile-an-hour zone. He activated the emergency lights on his vehicle and pursued the truck. Ranger Purcell observed Mr. Nesius drive "really close to the fee booth" and then proceed to McKean Road. Mr. Nesius stopped at the intersection of Pine Ridge Road due to cross-traffic and Ranger Purcell exited his vehicle to conduct a traffic stop, at which time Mr. Nesius spontaneously put both of his hands out of the truck window. As Ranger Purcell approached, Mr. Nesius' hands disappeared back into the truck and he sped off, leaving a "rooster tail full of gravel and dust" in his wake.

[¶5] Ranger Purcell returned to his vehicle and pursued Mr. Nesius south on Pine Ridge Road, where he observed Mr. Nesius cross a cattle guard at a high rate of speed and temporarily lose back-end traction before proceeding to another intersection where—in a now familiar ruse—Mr. Nesius stopped his truck in the middle of the road and spontaneously put his hands out the window. As Ranger Purcell began to open his door, Mr. Nesius sped off again. Mr. Nesius proceeded onto I-90 east towards Sundance, and additional officers joined the pursuit.

[¶6] Wyoming Highway Patrol Trooper Jared Williams, Crook County Sheriff Jeff Hodge, and Crook County Sheriff's Deputy Jason Robinson each testified about their involvement in the highway pursuit. Their testimony reflected that Mr. Nesius did not maintain a single lane. Sheriff Hodge testified that Mr. Nesius "cross[ed] over the fog line" numerous times, "cross[ed] over the centerline," drove "a little ways down through the centerline," and "passed a vehicle on the right shoulder of the road." Mr. Nesius was "pretty consistent, ... just swerving over the centerline, fog line." Trooper Williams added that Mr. Nesius did not fail to maintain a lane just once, he did so "for a few miles." The officers also testified that Mr. Nesius did not maintain one speed on the highway. Sheriff Hodge stated that Mr. Nesius drove "73, 74, 100, 103, back down to 80-some miles an hour," and characterized his speed as "pretty sporadic." Deputy Robinson noted that Mr. Nesius' "vehicle speeds fluctuated from in the low 70s to in excess of a hundred miles an hour."

[¶7] The State's evidence reflected that officers unsuccessfully attempted to stop Mr. Nesius with spike strips. The pursuit continued until Mr. Nesius clipped the back end of a motorcycle with the front of his truck, causing both his truck and the motorcycle to lose control and leave the highway. It appeared to Sheriff Hodge that Mr. Nesius "was trying to pass the motorcycle and just was not able to successfully negotiate that pass." While some officers attended to the motorcyclist and called for emergency assistance, Trooper Williams and Sheriff Hodge approached the truck to arrest Mr. Nesius.

[¶8] When Trooper Williams and Sheriff Hodge initially contacted Mr. Nesius, he asked them questions such as "[W]hat happened?" "Am I dead?" and "Am I alive?" On cross-examination about those questions, Sheriff Hodge agreed with defense counsel that he had observed accidents before and those were "fairly standard kind of questions people ask when you pull them out of a car." They were not unusual. When asked whether those were questions "that someone would ask who's aware of their surroundings," Sheriff Hodge responded, "[s]omewhat, or unaware of their surroundings." When asked to "modify" his answer, Sheriff Hodge clarified his testimony: "I mean, if you're asking for my judgment on what I've seen in the past, then I have dealt with people who have be[en] under highly influence of drugs that thought they were dead. Normally -- on a normal basis, normal person is not going to ask you if they're dead."

[¶9] Mr. Nesius refused to exit his truck when officers ordered him to do so. As a result, Sheriff Hodge and Trooper Williams had to "drag him out ... and wrestle with him on the ground" to handcuff him. Sheriff Hodge characterized Mr. Nesius as being "[a]bnormally strong." Trooper Williams added that Mr. Nesius pulled away from them, screamed, and fought with them while they tried to gain control of his hands. After they handcuffed him, Mr. Nesius refused to provide his name. Consequently, Trooper Williams searched Mr. Nesius' truck for identification and found a glass pipe in the overhead console. A paramedic collected Mr. Nesius' blood at the scene.

[¶10] A forensic chemist from the Wyoming State Crime Laboratory testified that she identified the presence of methamphetamine on the glass pipe. Michael Cornell, a forensic toxicologist for the chemical testing program at the Wyoming Department of Health, testified that Mr. Nesius' blood test results confirmed "the presence of amphetamine

at 14.7 nanograms per milliliter [of blood], and ... methamphetamine at 75.2 nanograms per milliliter." He also testified about general matters related to methamphetamine use. He thus explained that the effects of methamphetamine "usually last four to eight hours but sometimes up to 12 hours," depending on the dose. He informed the jury that methamphetamine typically results in "a feeling of euphoria and excitation, [and] increased ... heart rate, blood pressure[.]" He explained that it results in "a high feeling"—"sometimes you'll have a feeling of not necessarily invincibility but just, you know, a strong, like, personality and potentially even almost to the point of aggressiveness just to where you feel like you can take on the world." He relayed that methamphetamine can typically be detected in the blood "anywhere from short duration, you know, immediately if it might -- in IV type of use, typically, to 24 to 48 hours."

[¶11] At the close of evidence, the district court granted Mr. Nesius' motion for judgment of acquittal on Count VI, driving with a cancelled, suspended, or revoked license. The jury convicted him of the remaining five counts.

[¶12] At sentencing, the district court determined that Mr. Nesius was entitled to 211 days of credit for time served and then sentenced him to concurrent sentences of 211 days, with credit for time served, on each misdemeanor. Turning to the felony counts, the court sentenced him to five to eight years on Count I. Addressing Count II and the relationship between the various counts and credit for time served, the court stated:

As to the sentence for the DUI with serious bodily injury, the sentence will be not less than 12 nor more than 15 years to run consecutive to the aggravated assault. The two felony charges are going to run concurrent to the misdemeanors. So there will be credit for 211 days.

The district court's subsequent written sentencing order did not mention credit for time served on either felony. Mr. Nesius timely appealed.

DISCUSSION

I. The evidence was sufficient for the jury...