Ogden v. State

• Decision Date: 08 November 2001
• Citation: 34 P.3d 271,2001 WY 109
• Parties: Troy OGDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

34 P.3d 271

2001 WY 109

Troy OGDEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 00-4.

Supreme Court of Wyoming.

November 8, 2001.

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna Domonkos, Appellate Counsel; Diane Courselle, Director, Wyoming Defender Aid Program; and Caroline Aeed, Barbara Swatt, and Melinda Godwin, Student Interns. Argument by Ms. Godwin.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Elana Sears, Student Intern. Argument by Ms. Sears.

Before LEHMAN, C.J., and GOLDEN, HILL and KITE, JJ.

LEHMAN, Chief Justice.

[¶ 1] Appellant Troy Ogden appeals from the judgment and sentence that was entered after a jury found him guilty of aggravated assault.

[¶ 2] We affirm.

ISSUES

[I.] Did [the] trial court commit fundamental [error] when it allowed the jury to infer that the defendant's driving act, alone, could demonstrate intent to cause bodily injury to another person, when Mr. Ogden was charged only with attempting to cause bodily injury with a deadly weapon?

[II.] Did the trial court err when it permitted the prosecution to elicit opinions from the State's witnesses about Mr. Ogden's intent to commit aggravated assault and about other witnesses' credibility?

FACTS

[¶ 3] Ogden and his girlfriend were driving south on a street in Casper, on the afternoon of November 25, 1998, when they happened upon the victim who was walking north on the east side of the street. The victim and Ogden's girlfriend had been romantically involved but had broken up and, after several unpleasant encounters, had a mutual order of protection put in place. Not surprisingly, the burgeoning relationship between Ogden and his girlfriend had also created tension between Ogden and the victim.

[¶ 4] Testimony conflicts as to whether or not the victim threw a rock at Ogden's car and/or made an obscene hand gesture towards him; but, for whatever reason, Ogden turned his car around and drove up behind the victim, stopping his car partly on the sidewalk. Ogden exited his car, and the two traded comments while engaging in some shoving and chest butting.

[¶ 5] Ogden got back into his car. Again accounts differ as to why, but the car lunged toward the victim. To avoid being hit by the car, the victim "jumped straight up in the air and landed right on the hood" of the car. As the victim got off of the car, he called across the street to some teenaged boys who had been skateboarding to find out whether any of them had witnessed what had just happened. Ogden drove away, but the victim and the boys proceeded to a nearby telephone where they called the police.

[¶ 6] Ogden was arrested and charged with simple assault and aggravated assault with a deadly weapon. The State later dismissed the simple assault charge, but Ogden went to trial on the aggravated assault charge. The jury found Ogden guilty of the offense, and the trial court sentenced him to serve a term in the Wyoming State Penitentiary of no less than four nor more than six years. The prison sentence was suspended on the condition that Ogden successfully complete three years of supervised probation. Ogden appeals his conviction to this court.

DISCUSSION

A. Jury Instruction

[¶ 7] In Ogden's first claim of error, he asserts that the trial court committed fundamental error by giving Instruction 14, which informed the jury that it could infer intent to cause bodily injury if it found Ogden knowingly drove his vehicle directly at the victim. He also complains that Instruction 14 conflicted with Instruction 10, which confused and misled the jury. The State replies that the instructions were neither contradictory nor confusing and that prior precedent allows the jury to infer intent under these circumstances.

[¶ 8] We analyze jury instructions as a whole and do not single out individual instructions or parts thereof. Vigil v. State, 859 P.2d 659, 663 (Wyo.1993). We give trial courts great latitude in instructing juries and "will not find reversible error in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial." Harris v. State, 933 P.2d 1114, 1126 (Wyo.1997).

[¶ 9] Ogden did not object to the challenged instruction at trial. We, therefore, review Ogden's claim under our three-part plain error standard:

First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him.

CB v. State, 749 P.2d 267, 268-69 (Wyo.1988); see also Pearson v. State, 12 P.3d 686, 690 (Wyo.2000).

[¶ 10] The first prong of the plain error standard is met because Instruction 14 is clearly spelled out in the record. That instruction read:

If you find that the Defendant knowingly drove his vehicle directly at another person, you may infer from that action that the Defendant intended to cause bodily injury to that person.

You are to consider this with all other evidence in determining whether the Defendant intended to cause bodily injury to another person.

[¶ 11] We next analyze whether a clear and unequivocal rule of law was violated in a clear and obvious way. Ogden claims that allowing the jury to infer intent if it found Ogden knowingly drove his car at the victim undermines the crime's specific intent element. Relying on Fuller v. State, 568 P.2d 900, 904 (Wyo.1977), Ogden argues that a presumption that a defendant intended the natural and probable consequences of his actions cannot be used to prove specific intent. The State agrees that presumptions cannot be used to prove the specific intent element of a crime, but contends that this instruction did not include a presumption, insisting that the portion of the instruction Ogden challenges is a permissive inference.

[¶ 12] Ogden is correct that this court has held that an instruction cannot include a "presumption that the defendant intended the natural and probable consequences of his act ... to prove a specific, unaccomplished intent to injure the person of another." Fuller, 568 P.2d at 904. We do, however, allow juries to be instructed on reasonable inferences they may make regarding the intent of the defendant even when dealing with specific intent crimes. Schiefer v. State, 774 P.2d 133, 135 (Wyo. 1989).

[¶ 13] The United States Supreme Court has defined the relevant inquiry:

The court must determine whether the challenged portion of the instruction creates a mandatory presumption or merely a permissive inference. A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. ... [Mandatory presumptions] violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense.... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved.... A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury.

Francis v. Franklin, 471 U.S. 307, 314, 105 S.Ct. 1965, 1971, 85 L.Ed.2d 344 (1985) (citations and footnotes omitted).

[¶ 14] Barron's Law Dictionary 231 (2nd. ed.1984) defines the term inference in the following way:

INFERENCE a deduction from the facts given, which is usually less than certain but which may be sufficient to support a finding of fact; "a process of reasoning by which a fact or proposition sought to be established ... is deducted as a logical consequence from other facts, or a state of facts, already proved or admitted.... It has also been defined as `a deduction of an ultimate fact from other proved facts, which proved facts, by virtue of the common experience of man, will support but not compel such deductions.'" 186 A.2d 632, 633. Compare presumption.

Barron's Law Dictionary 359-60 (2nd. ed.1984) defines the term presumption as:

PRESUMPTION a rule of law which requires the assumption of a fact from another fact or set of facts. The term "presumption" indicates that certain weight is accorded by law to a given evidentiary fact, which weight is heavy enough to require the production of further evidence to overcome the assumption thereby established. It thus constitutes a rule of evidence which has the effect of shifting either the burden of proof or the burden of producing evidence. Compare inference.

[¶ 15] Ogden makes a leap in logic when he equates a presumption with a permissive inference. Our rule against using presumptions to prove specific intent does not translate into a rule against instructing juries about reasonable, permissible inferences that they may draw from the facts proved during the trial. "The mind of an alleged offender may be read from his acts, his conduct, his words and the reasonable inferences which may be drawn from the circumstances of the case. To hold otherwise would create an impossible burden in a case requiring a finding of specific intent." Schiefer, 774 P.2d at 135.

[¶ 16] Furthermore, Ogden's theory of the case focused on his assertion that he had accidentally or mistakenly driven toward the victim. The jury instructions covered this theory and informed the jurors that if they found that Ogden had mistakenly or accidentally driven toward the victim,...