State v. Herrera-Brito, HERRERA-BRIT

• Court: Court of Appeals of Idaho
• Writing for the Court: PERRY; LANSING, C.J., and SCHWARTZMAN
• Citation: 131 Idaho 383,957 P.2d 1099
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Urbanoefendant-Appellant.
• Decision Date: 02 April 1998
• Docket Number: HERRERA-BRIT,No. 23206,D

Page 1099

957 P.2d 1099 131 Idaho 383 STATE of Idaho, Plaintiff-Respondent,
v.
Urbano HERRERA-BRITO, Defendant-Appellant. No. 23206. Court of Appeals of Idaho. April 2, 1998.
Rehearing Denied June 9, 1998.

Page 1100

John M. Adams, Kootenai County Chief Public Defender; J. Bradford Chapman, Deputy Public Defender, argued, Coeur d'Alene, for appellant.

Alan G. Lance, Attorney General; Kevin J. Wladyka, Deputy Attorney General, Boise, argued, for respondent.

PERRY, Judge.

Urbano Herrera-Brito appeals from his judgment of conviction and sentence for attempted second degree murder, I.C. §§ 18-4001, 4002, 4003, and the sentence enhancement imposed for the use of a firearm during the commission of the crime, I.C. § 19-2520. We vacate the judgment of conviction and remand to the district court.

I.

FACTS AND PROCEDURE

Around midnight on April 4, 1995, Herrera-Brito sat in a bar in Coeur d'Alene drinking cranberry juice and reading the paper. Martin Nunez entered the bar, saw Herrera-Brito and hit him without warning or provocation. Herrera-Brito did not fight back. Nunez continued to beat Herrera-

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Brito as the altercation moved outside. Eventually, Herrera-Brito was knocked unconscious on the concrete in front of the bar. Witnesses told Nunez to leave, so he walked to a saloon one block down the street and around the corner from the bar. Herrera-Brito was unconscious when Nunez left the scene.

Herrera-Brito regained consciousness. A waitress and a bar patron asked him if he was alright and if he would go inside. Herrera-Brito responded that he was alright and was going home.

Nunez left the saloon about five minutes after he entered because it was closing. He walked to his van, which was parked in an alley, and sat in the driver's seat. Nunez then exited the vehicle and decided to walk home either because the van did not start or because his headlights did not work. As Nunez approached the front of his van, he saw a man standing twenty feet from him. The man pointed a pistol at Nunez and fired three times. One bullet struck Nunez, went through his chest and then struck him in the arm. Nunez took cover in the van, at which time the shots stopped and the man left the scene. Minutes later, Nunez approached a nearby house and requested help. The police and an ambulance arrived shortly thereafter.

When the police arrived, Nunez stated that he was shot by a black man. Nunez told the police at the hospital that the man who shot him was the same black man that he fought with earlier that night, but he did not know the man's name. Two days later Nunez identified Herrera-Brito, out of six photographs, as the person who shot him.

Herrera-Brito was charged with attempted first degree murder and use of a firearm during the commission of the crime. A jury found Herrera-Brito guilty of attempted second degree murder and use of a deadly weapon during the commission of the crime. The district court entered a judgment of conviction and sentenced Herrera-Brito to a unified fifteen-year sentence, with five years fixed. Herrera-Brito timely appealed.

II.

DISCUSSION

Herrera-Brito raises five issues on appeal. However, because we are vacating the district court's judgment of conviction and remanding for a new trial, we need only address three issues. We will determine whether there was sufficient evidence to support the jury's verdict, whether the district court correctly interpreted and applied the firearm enhancement statute and whether the district court properly instructed the jury on the elements of attempted murder in the second degree.

A. Sufficiency of the Evidence

We must first address whether there was sufficient evidence presented at his trial for the jury to find Herrera-Brito guilty. If not, Herrera-Brito is entitled to an acquittal and should not be faced with a retrial on the charge. Herrera-Brito argues that the testimony was insufficient to support a jury's finding that he was the person who shot Nunez. Herrera-Brito further contends that the testimony failed to show he intended to kill Nunez.

Appellate review of the sufficiency of the evidence is limited in scope. A judgment of conviction, entered upon a jury verdict, will not be overturned on appeal where there is substantial evidence upon which a reasonable trier of fact could have found that the prosecution sustained its burden of proving the essential elements of a crime beyond a reasonable doubt. State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.App.1991); State v. Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct.App.1985). We will not substitute our view for that of the jury as to the credibility of the witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; Decker, 108 Idaho at 684, 701 P.2d at 304. Moreover, we will consider the evidence in the light most favorable to the prosecution. Knutson, 121 Idaho at 104, 822 P.2d at 1001; Decker, 108 Idaho at 684, 701 P.2d at 304.

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Nunez testified at trial that he saw Herrera-Brito point the gun and shoot at him. Eyewitness testimony is substantial competent evidence upon which a jury can rely. It is in the province of the jury to determine the credibility of witnesses. Knutson, 121 Idaho at 104, 822 P.2d at 1001. Thus, the jury verdict withstands Herrera-Brito's challenge.

Herrera-Brito also claims there was insufficient evidence to prove he had the specific intent to kill....