Polston v. State

• Decision Date: 15 June 1984
• Docket Number: No. 83-148,83-148
• Citation: 685 P.2d 1
• Parties: Russell M. POLSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1

685 P.2d 1

Russell M. POLSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 83-148.

Supreme Court of Wyoming.

June 15, 1984.

Rehearing Denied July 5, 1984.

Leonard D. Munker, State Public Defender; Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program; Gerald M. Gallivan, Director, Wyoming Defender Aid Program; and Gerald P. Luckhaupt, Student Intern, for appellant; oral argument presented by Gerald P. Luckhaupt.

A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., for appellee; oral argument presented by Margaret M. White.

Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

CARDINE, Justice.

Russell Polston appeals his conviction of mayhem pursuant to § 6-4-601, W.S.1977 ¹ and his sentence to the Wyoming State Penitentiary for a term of not less than three nor more than ten years with the last three months thereof required to be served at the Wyoming State Hospital in the alcohol and drug abuse program.

We will modify the sentence and affirm the judgment as modified.

I

The first issue we consider is, as stated by appellant:

"The evidence was insufficient to support appellant's conviction for mayhem. Thus the trial court erred in not granting appellant's motions for judgment of acquittal as the evidence was not sufficient to establish that appellant had the requisite 'malicious intent to disfigure' * * * "

In ruling upon a motion for judgment of acquittal, which is addressed to questions of sufficiency of evidence, we adhere to our long-established rule that if, viewing the evidence presented in a light most favorable to the prosecution, leaving out of consideration any evidence in conflict therewith, and drawing all possible, reasonable inferences therefrom, there exists substantial evidence which would support a conviction, the question is for the jury; and if it returns a conviction, its verdict, at least with respect to sufficiency of evidence, must be affirmed. Murray v. State, Wyo., 671 P.2d 320 (1983).

" '* * * Stated another way--it is not whether the evidence establishes guilt beyond a reasonable doubt for us, but rather whether it is sufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt to be drawn by the jury when the evidence is viewed in the light most favorable to the State. * * *' " Grabill v. State, Wyo., 621 P.2d 802, 803 (1980).

The evening of December 18, 1982, Russell Polston, appellant, and his girl friend Virginia "Ginger" Olson attended a party at the home of a friend. Appellant was drinking heavily and, in his words, became "very drunk." When Ginger was in the bathroom, a man opened the door. Appellant became angry, "ticked off," and said something to Ginger about it. She left the party with a girl friend, going to a nightclub in Newcastle, Wyoming.

A short time later, appellant left the party and appeared at the nightclub, walking around, asking about and looking for Ginger. He found her dancing with another man, grabbed her by the arm, was angry, pulled her away and was talking to her as they left the dance floor. The man who had been dancing with Ginger was walking behind them when suddenly appellant turned around, punched him alongside the head, and then took another swing that missed as the man's glasses fell off. Ginger left the nightclub with a girl friend, upset and crying.

A short time passed, and appellant soon was involved in an argument with another patron of the nightclub. Someone stepped between them to "break it up," and appellant jumped on him. There was a fight. Appellant was drunk, stumbling, was kicked in the head, and apparently knocked unconscious. In a short time appellant was conscious and then was put out the back door of the nightclub.

A Miss Cox walked with appellant from the back to the front of the nightclub parking area. She decided that, because of his drinking, he should not operate a vehicle and that she would drive him home. They walked to his pickup. Appellant entered the passenger side of the pickup and sat on the seat. Virginia Olson had walked up near the rear of the pickup. Suddenly appellant yelled "Ginger," jumped out of the pickup, ran to the rear of it, where in a "split second" he was on top of Ginger (Miss Olson), his body at an angle, his head over hers. Miss Olson cried out or yelled. According to Miss Cox, appellant had bitten off Miss Olson's nose at that time. Some people across the street heard Miss Olson yell. They ran over to the scene of this incident, grabbed appellant but could not pull him off her. One of the men hit him alongside of the head, and he went limp. They then pulled him off, and he was helped into his truck. Miss Cox, in driving him home, noted that he spit something out, but thought it was blood. It was two-thirds of Miss Olson's nose he spit out on the floor of the truck.

The next morning, while driving his pickup, appellant was arrested by a deputy sheriff. The deputy found Virginia Olson's nose on the floor of the pickup. He put the nose in a vial of cracked ice and sent it to the hospital in South Dakota, to which Miss Olson had been admitted. The nose could not be reattached. A photograph of the nose was received into evidence.

Mayhem, a specific intent crime, requires for conviction a "malicious intent to maim or disfigure," § 6-4-601, supra. We have long held that,

" 'When a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had. * * *' " Bryant v. State, 7 Wyo. 311, 318, 56 P. 596, 597 (1899).

Specific intent being a state of mind ordinarily must be proved by circumstantial evidence. 21 Am.Jur.2d Criminal Law § 130. With respect to the proof required, we said:

"* * * it was unnecessary to prove the specific intent by direct, positive, and independent evidence; but, as the court remarked, by quoting from one of its own earlier decisions, 'The jury may draw the inference, as they draw all other inferences, from any facts in evidence which to their minds fairly prove its existence,' * * *." Id., 56 P. at 597.

Miss Olson, who was married to appellant at the time of trial, testified that what occurred was an accident. However, she admitted on cross-examination that she had not claimed the incident was an accident when she testified at the preliminary hearing. Appellant, testifying in his own behalf, admitted that he was "ticked off" over the bathroom incident earlier in the evening. Other witnesses testified that appellant was angry when he grabbed Miss Olson's arm, stopped her from dancing, and forced her off the dance floor. Whatever he said to her at that time, she was upset and crying as she left the nightclub. Appellant was then involved in a second fight from which one could reasonably infer he might be further angered. Next, while seated in his pickup, he noticed Miss Olson standing near the rear of the pickup. Miss Cox, who was present, testified that appellant yelled "Ginger" and was "out of the pickup in a split second." "He was running around the end of the pickup where Ginger was at." "And he had her on the ground, was doing the damage, or whatever--I mean he was on top of her." "After Ginger yelled and after that they came over, some people came over and pulled Russ off and some people helped Ginger up off the ground." A doctor testified to the considerable force required in biting to break the skin and to the difficulty involved in biting off the nose.

From this evidence the jury could reasonably infer that appellant was angry the entire evening. He expressed his anger over Miss Olson being in the bathroom when the bathroom door was opened; he was in two fights involving physical violence; he forcibly stopped Miss Olson from dancing with another man and took her crying off the dance floor. His being ejected from the nightclub through the back door was a culmination of all that had occurred; and when he saw Miss Olson, who in his mind was the cause of all his anger, the physical violence, he yelled at her, grabbed her and put her down on the ground and bit off two-thirds of her nose with the deliberate intention of maiming or disfiguring her. The jury found this a more reasonable inference than that the occurrence was accidental. That was the function of the jury, and we will not retry the case on appeal. There was evidence from which the jury could find "malicious intent to maim or disfigure," and substantial evidence supporting the conviction.

II

Appellant raises a second issue, stating:

"The trial court erred by refusing to instruct the jury as to automatism or unconsciousness, which theory was offered in defendant's Instruction A and so prejudiced the defendant thereby as to be a denial of * * * due process * * *."

The defense of unconsciousness and the defense of insanity are not the same, Carter v. State, Okla.Cr.App., 376 P.2d 351 (1962), although both involve an abnormal mental condition. They differ in statutory and other definition, the rules governing pleas and proof, and their treatment by the courts. The statute ² providing the defense of not guilty by reason of "insanity" was repealed by the legislature with the adoption of § 7-11-305(a), W.S.1977 ³ which substituted therefor the defense of not guilty by reason of "mental illness or deficiency."

Mental deficiency is defined as, among other things:

"* * * [A] defect attributable to * * * brain damage * * *." Section 7-11-301(a)(iii), W.S.1977.

If the abnormal mental condition raised as a defense is a "mental illness or deficiency," then defendant may not introduce evidence to establish this defense without first entering a plea of "not guilty by reason of mental illness or deficiency." Upon entry of this plea, § 7-11-303, W.S.1977, ⁴ provides for a court...