Appeal from the District Court of Washakie County, The Honorable Robert E. Skar, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Appellant, David Gentilini, challenges his conviction of attempted first degree murder in violation of Wyo. Stat. Ann. §§ 6-2-101(a) and 6-1-301 (LexisNexis 2007). He contends the district court erred when it denied his motion for a judgment of acquittal. He also asserts that the jury instruction specifying the elements of attempted first degree murder was erroneous. We find no error and affirm.
[¶2] Mr. Gentilini presents two issues:
1. Did the district court err in denying Mr. Gentilini's motion for judgment of acquittal on the charge of attempted first degree murder?
2. Did the district court commit plain error in instructing the jury on the elements of attempted first degree murder?
[¶3] David Gentilini and his girlfriend had a loud argument at her Worland apartment building. Mr. Ellsworth, a carpenter working in the building, intervened and asked them to stop. Mr. Gentilini and Mr. Ellsworth had a brief but heated dispute. The apartment manager persuaded Mr. Gentilini to leave without further incident.
[¶4] The next day, Mr. Ellsworth resumed his work at the apartment complex. That afternoon, he went to his truck to retrieve some tools and saw Mr. Gentilini in the parking lot. Mr. Gentilini began shouting and asked Mr. Ellsworth if he wanted to fight. Concerned for his safety, Mr. Ellsworth grabbed a hammer holder and put it in his back pocket.*fn1 The two continued to exchange words. Mr. Gentilini lunged at Mr. Ellsworth who responded by punching Mr. Gentilini several times and hitting him with the hammer holder. Mr. Gentilini then got in his car and said "I'll just run you over." He drove his car toward Mr. Ellsworth twice. Both times Mr. Ellsworth was able to evade contact. Mr. Gentilini then told Mr. Ellsworth he would go get his gun and drove away.
[¶5] Mr. Ellsworth contacted law enforcement. After arriving on the scene, the police and Mr. Ellsworth discussed the incident in the apartment complex parking lot. During this discussion, Mr. Ellsworth identified Mr. Gentilini's car driving on an adjacent street. The vehicle stopped abruptly, turned around, and headed in the opposite direction. The officers pursued and stopped the vehicle. They discovered Mr. Gentilini in the car and a loaded semi-automatic.22 caliber rifle on the floorboard.
[¶6] Mr. Gentilini was arrested. During processing, he told the booking officer: "I lost it, I went home, got my gun, and came back to kill him." He was charged with aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) and attempted first degree murder in violation of Wyo. Stat. Ann. §§ 6-2-101(a) and 6-1-301. A jury found Mr. Gentilini guilty of both crimes. He challenges only his conviction of attempted first degree murder.
Motion for Judgment of Acquittal
[¶7] In his first issue, Mr. Gentilini contends the district court erred in denying his motion for judgment of acquittal on the charge of attempted first degree murder. Motions for judgment of acquittal are governed by W.R.Cr.P. 29, which provides, in pertinent part:
(a) At close of evidence.-Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the state is not granted, the defendant may offer evidence without having reserved the right.
When reviewing for sufficiency of the evidence in the context of a motion for judgment of acquittal, we examine and accept as true the State's evidence, together with all reasonable inferences. Mattern v. State, 2007 WY 24, ¶ 28, 151 P.3d 1116, 1128 (Wyo. 2007). "A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime." Butcher v. State, 2005 WY 146, ¶ 11, 123 P.3d 543, 548 (Wyo. 2005).
[¶8] In his motion for judgment of acquittal, made at the close of the State's case in chief, Mr. Gentilini contended that the State had not presented sufficient evidence of a "substantial step" as required by Wyo. Stat. Ann. § 6-1-301, which provides:
(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A "substantial step" is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime[.]
Mr. Gentilini maintains that the evidence at that stage of the proceeding was insufficient to prove he engaged in conduct "strongly corroborative" of his intent to complete the crime of first degree murder.*fn2 First degree murder is defined by Wyo. Stat. Ann. § 6-2-101(a), which provides: "Whoever purposely and with premeditated malice... kills any human being is guilty of murder in the first degree."
[¶9] Mr. Gentilini seeks support for his position from other cases where this Court has found sufficient evidence of a "substantial step." He contends the evidence in this case is not as strong as in those cases. To some extent he is correct. In Reilly v. State, 2002 WY 156, 55 P.3d 1259 (Wyo. 2002), the defendant shot at the victim several times. In Guy v. State, 2008 WY 56, 184 P.3d 687 (Wyo. 2008), the victim was stabbed. In Cohen v. State, 2008 WY 78, 191 P.3d 956 (Wyo. 2008), the defendant, in the presence of an officer, pulled a gun from the waistband of his pants.
[¶10] These cases, however, are of limited value to the inquiry we must undertake here. The question of whether a defendant has engaged in a substantial step toward the commission of a crime is intensively fact specific. Cohen, ¶ 18, 191 P.3d at 960. "The authorities agree that it is impossible to formulate a general rule or definition of what constitutes an attempt (to murder), which may be applied as a test in all cases." Jeffrey F. Ghent, Annotation, What Constitutes Attempted Murder, 54 A.L.R.3d 612, § 2(a) (1973). We must determine the sufficiency of the evidence of a substantial step based on the individual facts and circumstances presented in this case.
[¶11] We have described a substantial step as an act in furtherance of the intent to commit a crime "which, as it is most commonly put, goes beyond mere preparation." Compton v. State, 931 P.2d 936, 940 (Wyo. 1997).
The "substantial step" necessary for a conviction of an attempt to commit a crime must be behavior of such a nature that a reasonable observer viewing it in context would conclude beyond a reasonable doubt that it was undertaken ...