Appeal from the District Court of Natrona County. The Honorable W. Thomas Sullins, Judge.
The opinion of the court was delivered by: Hill, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
HILL, J., delivered the opinion of the Court.
VOIGT, C.J., filed a separate opinion concurring in part; dissenting in part.
[¶1] A Natrona County jury found James Edward Schafer (hereinafter "Schafer") guilty on seven of eight counts, which included various assault charges and multiple drug charges. We reverse Schafer's conviction for attempted aggravated assault and battery but affirm his other convictions.
[¶2] Schafer presents three issues for review:
I. The trial court erred in impermissibly applying Wyoming's General Attempt Statute to W.S. § 6-2-502(a)(iii) which resulted in a misapplication of W.S. § 6-2-502(a)(iii).
II. There was insufficient evidence to support [Schafer]'s conviction for attempted aggravated assault and battery of Deputy Cline.
III. The trial court abused its discretion by denying a motion for new trial based on numerous instances of prosecutorial misconduct.
The State rephrases the issues as follows:
I. The trial court did not err in applying Wyoming's General Attempt Statute, Wyo. Stat. Ann. § 6-1-301, to aggravated assault and battery, Wyo. Stat. Ann. § 6-2-502(a)(iii).
II. Sufficient evidence was presented at trial to support [Schafer]'s conviction for attempted aggravated assault and battery.
III. The trial court did not abuse its discretion by denying [Schafer]'s motion for a new trial.
[¶3] On January 20, 2006, Deputy Tim Rostad of the Natrona County Sheriff's Department was patrolling a highway near Mills, Wyoming, when he noticed a red pickup with a burnt-out headlight. Based upon Deputy Rostad's observation of the missing headlight, he activated his overhead lights in an attempt to pull over the pickup.
[¶4] Rather than stopping, Schafer, the driver of the red pickup, accelerated and continued into Mills despite being followed by multiple sheriff's vehicles with their sirens and lights activated. After one of the sheriff's deputies attempted to block Schafer's vehicle with his own, Schafer evaded the deputy and drove his vehicle into a field, where he vacated the truck and began to run. After seeing that Schafer had a handgun, Deputy Rinker ordered Schafer to stop and show his hands. Deputy Cline also saw Schafer's gun, and accordingly ordered him to "stop and drop the weapon." Deputy Cline caught up to Schafer and activated his Taser, whereupon Schafer immediately fell to the ground. Schafer was immediately placed in custody. A few inches away, the deputies found the handgun.
[¶5] Upon the subsequent execution of a search warrant on Schafer's truck by Special Agent Aaron Shatto of the Wyoming Division of Criminal Investigation, two boxes of liquid and crystal methamphetamine were found, as well as a scale, baggies, and other drug-related items.
[¶6] After a jury trial, Schafer was convicted of: Count I, attempted aggravated assault and battery; Count Two, reckless endangering; Count Four, fleeing or attempting to elude a police officer; Count Five, knowingly or intentionally possessing a controlled substance, methamphetamine in a powder or crystalline form; Count Six, possession with intent to deliver a controlled substance, methamphetamine; Count Seven, possession of a deadly weapon with unlawful intent; and Count Eight, knowingly or intentionally possessing a controlled substance, methamphetamine.
[¶7] At sentencing, the trial court merged Counts Two and Seven into Count One, and Counts Five and Eight into Count Six. On Count Four, Schafer was sentenced to 90 days in the Natrona County Detention Center, with credit for 90 days served. On Count One, Schafer was sentenced to the Wyoming State Penitentiary (WSP) for seven to nine years, with credit for time served of 379 days. On Count Six, ...