Nixon v. State, 98-200.

• Decision Date: 22 December 1999
• Docket Number: No. 98-200.,98-200.
• Citation: 994 P.2d 324
• Parties: Todd L. NIXON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

994 P.2d 324

Todd L. NIXON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 98-200.

Supreme Court of Wyoming.

December 22, 1999.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, John Ketscher, Student Intern, and Michael C. Mace, Student Director, of the Wyoming Defender Aid Program. Argument by Messrs. Ketscher and Mace.

Representing Appellee: Gay Woodhouse, State Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Kimberly A. Baker, Senior Assistant Attorney General; Theodore E. Lauer, Director, and Jeff Oven and David Smith, Student Interns, of the Prosecution Assistance Program. Argument by Mr. Oven.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

GOLDEN, Justice.

Todd Nixon appeals his conviction, judgment and sentence for felony assault on a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b) (LEXIS 1999). Nixon claims his constitutional right to an impartial jury was violated when the trial court failed to transfer his trial to another county after negative pretrial publicity tainted the jury pool. He also argues the evidence was insufficient to prove his guilt beyond a reasonable doubt. Nixon's sentence included an order to pay restitution to the Wyoming Workers' Compensation Division (Division), which he claims violates Wyoming law because the Division is an insurer with a right of subrogation and, therefore, lies outside the definition of "victim" as contemplated by the victim restitution statutes, Wyo. Stat. Ann. §§ 7-9-101 et seq. (LEXIS 1999).

The trial court denied Nixon's motion to transfer venue only after voir dire was completed and a jury empaneled. The trial court is in the best position to determine whether potential jurors are biased, and we will not disturb its denial of a motion to transfer venue absent an abuse of discretion. We perceive no such abuse here. Based on the evidence it heard, a rational jury could find Nixon guilty of felony assault on a peace officer. Because the Division is not an "insurer," the trial court's restitution order was appropriate. Therefore, we affirm the conviction, judgment and sentence.

ISSUES

Appellant Todd Nixon presents three issues for our review:

I. Did the trial court deny Todd Nixon's constitutional right to a fair jury trial by denying Mr. Nixon's motion to transfer proceedings to a new venue, even though inflammatory pretrial publicity in the local community had prejudiced the public against Mr. Nixon?

II. Was there sufficient evidence to convict Todd Nixon of felony assault on a peace officer, in violation of Wyoming Statute § 6-5-204(b), when Mr. Nixon lacked intent to harm anyone while attempting to hug his mother, and when the alleged victim himself testified that he was not struck by Mr. Nixon?

III. Did the trial court err when it awarded restitution to the state worker's compensation division for payments made to Deputy Urman when insurers ordinarily are not eligible "victims" for purposes of the restitution statute?

Appellee State of Wyoming presents this statement of the issues:

I. Did the district court err in denying Appellant's motion to transfer the proceedings to a different county?

II. Was the evidence sufficient to permit the jury to find Appellant guilty of felony assault upon a peace officer in violation of Wyo. Stat. § 6-5-204(b)?

III. Did the district court err in ordering that Appellant pay $95 to the worker's compensation division as restitution for medical expenses paid for injuries to the victim?

FACTS

In a separate matter, Nixon pleaded guilty to charges of first degree murder and aggravated assault for the death of his three-year-old stepdaughter and was sentenced for that crime on October 10, 1997. After he was sentenced, an altercation broke out in the courtroom between Nixon and the peace officers who were to escort him out of the room. One officer, Deputy Urman, sustained strained muscles and tendons in his shoulder and carpet burns to his right wrist. As a result of this incident, Nixon was charged with felony assault on a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b) (LEXIS 1999).

Before the trial on the assault charge, Nixon filed a W.R.Cr.P. Rule 21(a) motion to transfer the proceedings, alleging overwhelming pretrial publicity in Campbell County would make it impossible to receive a fair trial there. An appendix to the motion contained copies of twelve local newspaper articles covering the murder and the assault on a peace officer charges and a copy of that portion of the transcript of Nixon's change of plea hearing containing the trial judge's concern about whether it would have been possible to seat a fair jury in Campbell County in the murder case.

The trial court denied Nixon's venue motion, stating it could not assume a prejudiced jury pool from newspaper accounts, but agreed to revisit the issue at the time of jury selection, "depending on the responses we get." At the close of voir dire, Nixon objected to the entire jury panel, claiming he could not have a fair trial in the community because of "overwhelming sentiment" against him. The trial court disagreed, and the trial proceeded.

The jury found Nixon guilty of assault on a peace officer. The trial court sentenced Nixon to a term of four to five years in prison and ordered him to pay $95 in restitution to the Division for Deputy Urman's medical bills. Nixon filed a timely notice of appeal.

DISCUSSION

Venue

It is well settled law in Wyoming that we review challenges of change of venue decisions for an abuse of discretion. Sides v. State, 963 P.2d 227, 231 (Wyo. 1998). We will not interfere with a trial court's decision concerning venue unless it acted in a manner exceeding the bounds of reason under the circumstances. Id. The party moving for the change of venue "has the burden of showing `prejudice so great that a fair trial cannot be obtained' and he must show `actual prejudice in the minds of the jurors.'" Id. (quoting Murry v. State, 713 P.2d 202, 208 (Wyo. 1986).

Wyoming Law

Criminal defendants in Wyoming have a constitutional right to a trial by an impartial jury. See Wyo. Const., art. 1, § 10. Wyoming's constitutional provision grants the right to trial "by an impartial jury of the county or district in which the offense is alleged to have been committed." Wyo. Const. art. 1, § 10. The legislative provision mirroring the constitution requires "[e]very criminal case shall be tried in the county in which the indictment or offense charged is found, except as otherwise provided by law." Wyo. Stat. Ann. § 1-7-102(a) (LEXIS 1999). Trial proceedings are transferred to another county "only if the court is satisfied that there exists within the county where the prosecution is pending so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial in that county." W.R.Cr.P. 21(a).

This Court has adopted a two-part test for determining whether a change of venue should be granted after voir dire because of pre-trial publicity:

First, the nature and extent of the publicity must be considered; second, the difficulty or ease in selecting a jury must be considered along with the amount of prejudice which actually appears during voir dire examination.

Sides, 963 P.2d at 231 (quoting Murry, 713 P.2d at 208).

Regarding the first prong of the test, Nixon provided the district court with twelve newspaper articles from the local paper and a comment from the judge in the murder case concerning how difficult it would have been to find a jury, especially if it was a death penalty case. Contrary to Nixon's allegations, we do not find the coverage "sensational," "inflammatory," or "grossly prejudicial." The large majority of the reporting was based on factual information from papers filed with the court and concerned procedural aspects of the murder case. See Amin v. State, 811 P.2d 255, 258 (Wyo.1991). The twelve articles spanned a six-month time period. The last article was dated December 7, 1997, and his trial was not until April of 1998. See id. (timing of news reports is persuasive in decision to uphold denial of a change in venue motion). Upon review of the articles, we agree that the district court could not assume the jury panel was prejudiced based on the newspaper accounts. Neither the nature nor the extent of the news coverage justify overturning the trial court's decision to deny the motions for change of venue. Id.

In denying the motion for change of venue, the district court properly suggested the venue question could be revisited at the time of jury selection. In Murray v. State, 671 P.2d 320 (Wyo.1983), we held it is appropriate to delay a change of venue decision until the effect of the pretrial publicity can be determined at voir dire. Id. at 327.

Even where a juror may have formed or expressed an opinion as to the defendant's guilt from having read or heard news coverage, that juror may hear the case if the juror states, and the court is reasonably satisfied, that the juror can lay aside his opinion and render a verdict based only on the evidence presented in court. Wyo. Stat. § 7-11-106 (1997).

Sides, 963 P.2d at 231.

Of the fifty-eight potential jurors in the jury pool, twelve indicated they had formed an opinion of Nixon before the trial. These people were interviewed individually by the trial court and counsel. Nixon challenged five of those jurors for cause, and the trial court allowed all but two of his challenges. Those two potential jurors were removed from the jury panel by peremptory challenges, one by the defendant and one by the State. Jurors not excused for cause convinced the trial court they were able to distinguish between the earlier crime and the case before them. Many had not heard anything about this particular case, and the trial court determined they were able to...