State v. Larson
| Decision Date | 03 November 2014 |
| Docket Number | No. 40091.,40091. |
| Citation | 344 P.3d 910,158 Idaho 130 |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, v. Richard Allen LARSON. |
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
SUBSTITUTE OPINION
THE COURT'S PRIOR OPINION DATED AUGUST 15, 2014 IS HEREBY WITHDRAWN
Richard Allen Larson was charged with two counts of aggravated assault for threatening his ex-girlfriend with a firearm and threatening or attempting to shoot her new boyfriend. The case proceeded to trial and the jury found Larson guilty on both counts. On appeal, Larson argues that the district court erred by overruling his objection that a testifying officer was not qualified to give opinion testimony concerning the direction a bullet had traveled. He also contends that the court erred by allowing the prosecutor to make inaccurate statements during closing argument concerning the intent requisite for commission of assault.
Lora Adams moved to Idaho and briefly dated Larson, her neighbor. After the relationship soured and Adams attempted to avoid contact, Larson was upset and made repeated efforts to convince Adams to continue dating him. Adams later began dating another man, John Bilsky. It is undisputed that Larson and Adams had an altercation, that Bilsky arrived shortly thereafter, and that Bilsky and Larson both discharged their firearms. The parties sharply dispute the details of the occurrence, but Larson was charged with two counts of aggravated assault, Idaho Code §§ 18–901, 18–905.
At Larson's trial, Adams and Bilsky testified as follows. They said that Larson was chronically abusive toward Adams, having repeatedly verbally and physically threatened her, and that Larson's violent behavior escalated on the day in question. In order for Adams to reach her home, she had to travel over a private road, a portion of which passed through Larson's property. Larson had placed two cables across the road at points on his property, using them as makeshift gates. Because of Larson's threatening behavior, Adams began notifying Bilsky when she was heading home and would be passing over Larson's land.
On the afternoon in question, Adams called Bilsky to tell him she was nearly home. When Adams came upon the first cable gate, she saw Larson in the vicinity and she relayed that information to Bilsky. Adams got out of her SUV to move the cable so that she could pass. Larson approached her angrily and drunkenly, shouted obscenities, and physically prevented her from getting back into her SUV. Adams tried to get away, but Larson slammed her hand in the vehicle door. Adams responded by kicking Larson. Larson then punched Adams and threw her to the ground, straddled her, and placed his gun on her face, saying, "I'm going to kill you and I want you to be more afraid than you've ever been in your life." Keeping one hand on his gun, Larson choked Adams with his other hand until Bilsky arrived.
When Adams did not arrive at home quickly, Bilsky became worried. He grabbed his revolver and walked from Adams' home toward the first gate. As he approached and walked around to the passenger side of Adams' vehicle, he saw Larson. Larson pointed his gun at Bilsky and took a position at the rear of Adams' SUV. From that position, Larson told Bilsky to leave and threatened to kill him. Bilsky took a position at the front driver's side of the SUV and moved back and away from the vehicle, keeping the vehicle between himself and Larson. Thereafter, Larson, standing at the rear driver's side of the vehicle, fired several shots at Bilsky, but did not hit him. Bilsky returned fire. After Bilsky's second shot, Larson lowered his weapon. Bilsky and Adams fled in the SUV, afraid that Larson would reload and continue firing. In support of Adams' testimony, the State submitted pictures of her injuries. Those photographs depict redness circling the front of Adams' neck, over her trachea; red marks on both sides of Adams' face with two parallel scratches on the left side of her face; redness on Adams' torso; and a cut on Adams' hand.
Larson's testimony sharply contradicted the testimony of Adams and Bilsky. Larson said that he went to speak to Adams because she had repeatedly removed the surveyor's tape placed on the cable gates to increase visibility and refused to close the cable gates after passing through them, leaving the cables in the snow bank. When Adams arrived at the gate, he respectfully asked her to close the gate after passing through. Adams responded by apologizing for her interference with the gate. As Adams went back to her SUV, Larson tripped and fell into the vehicle's door, trapping Adams' hand between the door and the body of the vehicle and injuring her. Larson immediately apologized, but Adams attacked Larson, trying to knee him in the groin. Larson defended himself by pushing her into the snow. While Larson and Adams fought, Bilsky arrived at the area. Larson did not see him arrive, but heard him ask Adams if she was alright. Before Larson could turn around and face Bilsky, Bilsky shot Larson. Larson drew and repeatedly discharged his firearm until he was out of bullets. He testified that he "emptied [his] weapon just instinctually" because he had been shot and that he did not point his weapon at either Bilsky or Adams. After Bilsky and Adams fled, neighbors who had heard the shots called 911 for help and provided first aid. Larson was taken to the hospital for treatment of his gunshot wound.
Investigating police officers collected both Larson's Ruger .44 Magnum Red Hawk and Bilsky's Taurus .357. When seized, Bilsky's weapon contained two spent shell casings and five unspent bullets. Larson's weapon had been emptied by a neighbor who removed the empty shell casings at the scene while providing first aid to Larson. Officers found six spent .44 Magnum shell casings consistent with Larson's six-chamber firearm.
Larson was charged with two counts of aggravated assault, one count alleging that he threatened Adams with a firearm and one count alleging that he threatened Bilsky or attempted to injure him with a firearm, all in violation of I.C. §§ 18–901, 18–905. At a jury trial, Larson was found guilty on both counts. Larson appeals from the judgment of conviction, asserting error at his trial in the admission of testimony and in allowing improper closing argument by the prosecutor.
During trial, the court permitted jurors to submit questions. After each witness testified, the court reviewed the questions with counsel and with the witness. After an officer testified regarding his investigation, including his observation of damage to Adams' SUV, a juror submitted a question asking whether the officer knew which direction a bullet traveled when it passed through the driver's side mirror of the SUV. Outside of the presence of the jury, the officer indicated that he did not know which direction the bullet traveled, and the court did not ask the question of that witness.
Later, the State called another investigating officer. In response to a question by the prosecutor, he testified that the bullet passed through the mirror from in front of the vehicle toward the rear of the vehicle. Larson objected as to foundation, and the court sustained the objection. In response, the State attempted to lay foundation. The officer testified that he had "very general" training regarding ballistics, bullet travel, and investigations relating to bullets. That training and experience consisted of carrying a firearm virtually every day for twenty years, testing or practicing using his firearm to remain qualified for his duties, "some schooling in shootings," participation in fifty to one hundred investigations that required determination as to which direction a bullet entered and exited an object, and helping his "underlings at the sheriff's department" work their cases. He also related his history of observing items that had been shot during his career and that he had stated, "[g]enerally, when a bullet enters an object, the entrance hole is the size or diameter of the bullet" and the exit hole is "a bigger hole." He explained that a bullet usually "mushrooms" when traveling through a medium such that its diameter when exiting a medium is wider than its diameter when entering a medium. He explained that the hole in the front of the driver's side mirror, the painted fiberglass portion, had a smaller hole than the back portion of the mirror, the mirrored side. Over several objections, the court permitted the officer to testify that he had concluded that the bullet traveled from the front of the vehicle toward the rear of the vehicle.
Idaho Rule of Evidence 702 governs the admission of expert testimony and states:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
State v. Glass, 146 Idaho 77, 82, 190 P.3d 896, 901 (Ct.App.2008) (internal citations omitted); see also Idaho Dep't of Health & Welfare v. Doe, 149 Idaho 474, 477, 235 P.3d 1195, 1198 (2010) ...
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