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Hill v. State

Supreme Court of Wyoming

March 2, 2016

DEREK EARL HILL, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff)

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          Appeal from the District Court of Park County. The Honorable Steven R. Cranfill, Judge.

         Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

         Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

         Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          OPINION

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          FOX, Justice.

          [¶1] A jury found Derek Earl Hill guilty of five counts of reckless endangering, three counts of aggravated assault, and one count of eluding police. He appeals his conviction claiming there was insufficient evidence of aggravated assault, the district court abused its discretion when it admitted evidence of law enforcement officers' reactions to a fired shot, and there was prosecutorial misconduct during closing arguments. We affirm.

         ISSUES

          [¶2] 1. Was the evidence presented at trial sufficient to prove Mr. Hill threatened to use the weapon he was carrying?

         2. Did the district court abuse its discretion when it permitted evidence of law enforcement officers' reactions to the fired shot?

         3. Did the district court abuse its discretion when it denied Mr. Hill's motion for mistrial based upon prosecutorial misconduct?

         4. Did the prosecutor's comments during closing misstate the law, or constitute improper vouching?

         FACTS

          [¶3] Lelon Tucker, his wife Nichelle Tucker, and their three children (ages four, two, and six months) went to the Red Lakes area near Cody to practice shooting early in the evening. The couple left the children in their Avalanche with the windows rolled down while they shot at targets that they had set against a berm. After they had been there a while, Mr. Tucker noticed a car (occupied by Mr. Hill) sitting on the hill about 500 yards away. The Tuckers had finished shooting and taken their two older children out of their Avalanche to go to the bathroom. They were preparing to leave when Mr. Tucker noticed that Mr. Hill's car had moved to within 100 yards of them. Mr. Tucker was not comfortable with the situation, so he and his wife quickly loaded the children into the Avalanche and began to drive home.

          [¶4] Shortly thereafter, Mr. Hill's car got " up on [the] rear end of [the Tuckers'] vehicle," near the bumper, and began revving its engine. Mr. Tucker pulled over twice to allow Mr. Hill to drive around him, but both times Mr. Hill pulled over and stopped behind Mr. Tucker's truck. After he pulled over a third time, Mr. Tucker backed up. Mr. Hill backed up as well. Mr. Tucker began driving again and pulled over one last time; Mr. Hill stopped about fifty yards behind him. Mr. Tucker then turned his truck around and headed toward Mr. Hill's car.

          [¶5] Both Mr. Tucker and his wife testified that as they got closer, they noticed a rifle on the dash of the car, facing out the windshield, pointed directly at them, and that Mr. Hill peeled away from them. Mr. Tucker testified that he then instructed his wife to call 911, turned his vehicle around, and began to follow Mr. Hill's car. He testified that Mr. Hill slid his car sideways so that the driver's side was facing toward the Tuckers' truck, and he decided to " punch it," driving directly through the space in front of Mr. Hill's car. According to Mr. Tucker, Mr. Hill followed the Tuckers at a close distance, but eventually dropped back as they approached Cody.

          [¶6] Cody police officers Scott Burlingame and Eric Wright (who was in training at the time) responded to the 911 call. The officers were in the vehicle together when they located Mr. Hill's car. As the officers approached Mr. Hill's car, they observed it make turns without signaling and run through two stop signs. Officer Burlingame turned on his overhead lights and siren and Mr. Hill sped away from the officers, reaching a speed of 90 miles per hour in a 30 mile-per-hour zone. They pursued Mr. Hill as he headed back toward the Red Lake area over a rutted gravel road. Officers Burlingame and Wright were joined by Park County Sheriff Deputy JJ Schwindt, who pulled in behind their vehicle, and the chase headed out of the Cody city limits. Because of the rough road, Mr. Hill's car started to bottom out, began leaking fluid, and eventually came to a stop. By this time, the sun had gone down and it was getting dark.

          [¶7] After Mr. Hill's car stopped, the Cody officers stopped their vehicle, and Deputy Schwindt pulled a little behind them.

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Officer Burlingame had his overhead light bar, headlights, and spotlight on. Mr. Hill got out of his car, holding an assault rifle. The law enforcement officers ordered him to " [s]how us your hands" and " [g]et on the ground," but Mr. Hill took off running. About ten seconds later, a shot was fired. Officer Burlingame told Officer Wright and Deputy Schwindt to " take cover." He turned his lights and spotlight off and advised other units that were approaching to turn their lights off as well. Approximately two minutes later, three more shots were fired in the distance.

          [¶8] Mr. Hill testified that as he took off running, he " ended up tripping and sliding, discharging the first" shot; that he did not fire at the officers; and that when that shot discharged, the barrel was pointed toward the ground.

          [¶9] Both Officers Burlingame and Wright testified that when the first shot was fired, they did not see any muzzle flash from the rifle. Officer Burlingame testified he did not see any dirt fly up after the first shot. Deputy Schwindt testified that he saw Mr. Hill " turn[] slightly back towards our direction," and " saw a muzzle flash come from the end of the rifle" when the first shot was fired, but did not see any dirt fly up. No bullets or spent casings were recovered from the scene. Mr. Hill was apprehended the next day.

          [¶10] A jury convicted Mr. Hill of five counts of reckless endangering, three counts of aggravated assault, and one count of eluding police. Mr. Hill timely perfected this appeal. Additional facts, testimony, and argument will be set forth below, as necessary.

         DISCUSSION

         I. Was the evidence presented at trial sufficient to prove Mr. Hill threatened to use the weapon he was carrying?

          [¶11] Mr. Hill was convicted of three counts of aggravated assault, one count for each law enforcement officer who was on the scene when the shots were fired. He argues that the State presented insufficient evidence to establish beyond a reasonable doubt that he threatened to use a drawn deadly weapon because it did not prove that he made an actual threat. Mr. Hill maintains that because he was running away from the police officers, made no verbal threats as he ran, and the rifle was not pointed toward the officers, he never made an " actual threat" as required for aggravated assault.

          [¶12] Our standard of review of sufficiency of the evidence claims is well established.

[W]e review that evidence with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. We will not reweigh the evidence nor will we re-examine the credibility of the witnesses.

Levengood v. State, 2014 WY 138, ¶ 11, 336 P.3d 1201, 1203 (Wyo. 2014) (quoting Brown v. State, 2014 WY 104, ¶ 8, 332 P.3d 1168, 1171-72 (Wyo. 2014)).

          [¶13] We recently explained that in applying this standard,

[W]e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. In other words, we do not consider whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but [instead] whether or not the evidence could reasonably support such a finding by the factfinder.

Id. at ¶ 12, 336 P.3d at 1203(internal citations and quotation marks omitted); see also Oldman v. State, 2015 WY 121, ¶ 5, 359 P.3d 964, 966-67 (Wyo. 2015).

          [¶14] Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2015) states:

(a) A person is guilty of aggravated assault and battery if he:
. . . .
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another[.]

          [¶15] We have defined the phrase " threatens to use" as requiring " proof of an

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actual threat of physical injury during the act of employing a deadly weapon." Johnston v. State, 747 P.2d 1132, 1134 (Wyo. 1987). We explained that the mere presence of a weapon in hand is insufficient to satisfy the " threatens to use" element. Id. ; see also Gunderson v. State, 925 P.2d 1300, 1304 (Wyo. 1996). In Johnston, we also approved of the trial court's instruction to the jury defining a " threat" :

A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case, you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment.

747 P.2d at 1135.

          [¶16] In Cox v. State, 829 P.2d 1183, 1185 (Wyo. 1992), an intoxicated defendant approached a police officer, brandishing a hunting knife. In upholding his conviction for aggravated assault, we held that " [a]s a general intent crime, aggravated assault requires only that intent which may be inferred from doing the act which constitutes the offense charged; i.e. slashing back and forth with the hunting knife." Id. at 1186.

          [¶17] Mr. Hill insists that because he made no verbal threats to the officers and because the evidence does not conclusively prove the rifle was pointed in the direction of the officers when it was shot, he could not have threatened to use the rifle against the officers as he ran away. We disagree. The lack of a verbal threat does not necessarily defeat a charge of aggravated assault. A threat to use a drawn deadly weapon may be proven solely by a defendant's actions or may be proven by words, or a combination of words and actions. Johnston, 747 P.2d at 1133 (threat " may be expressed by words or acts, or a combination of words and acts" ). Further, the notion that the rifle may not have been pointed in the direction of the officers at the time it was fired does not mean that a jury could not properly infer that the shot was an expression of an intention to inflict pain, injury, or punishment. See Hart v. State, 2003 WY 12, ¶ ¶ 6, 10, 62 P.3d 566, 569-70 (Wyo. 2003) (holding handgun in the air for victim to see was sufficient to constitute a threat).

          [¶18] We have previously found sufficient evidence to uphold a conviction for aggravated assault where no one saw the defendant with a weapon and where there was no evidence that he had the weapon in his immediate possession. In Ewing v. State, 2007 WY 78, ¶ 4, 157 P.3d 943, 944 (Wyo. 2007), the defendant had retreated to his shed, and when officers arrived on the scene and attempted to open the doors, he yelled, " Any [m.... f....] that comes in that door is going to get shot, then I'll shoot myself in the head." At that point, the officers withdrew and the confrontation ultimately ended when officers fired pepper spray into the shed, forcing the defendant out. Id. at ¶ 4, 157 P.3d at 944-45. There was testimony that there had been a rifle on the floor of the shed two days before the incident, and when the officers entered the shed, they found the rifle in the open. Id. at ¶ 15, 157 P.3d at 947. We held that " those facts, combined with [the defendant's] statement that he was going to shoot the officers, allowed for the reasonable inference . . . that the rifle was 'drawn'" and supported the jury's conclusion that the defendant had committed an aggravated assault. Id. at ¶ 16, 157 P.3d at 947.

          [¶19] We have also found sufficient evidence where the weapon was not pointed toward the victim. In Hart v. State, 2003 WY 12, 62 P.3d 566 (Wyo. 2003), the defendant, angered by a breakup with his ex-wife, went to the front door of her parents' home, and ordered her father to let him in. Id. at ¶ 6, 62 P.3d at 569. After her father told him to go home and cool off, the defendant responded by pulling a gun out of the back of his pants. Id. He held the gun up, pointing it toward the sky directly in front of a window, so that her father could see. Id. When it became apparent he would not be allowed to enter the home, the defendant walked toward his pickup truck, stopped, shot four rounds into his ex-wife's pickup truck, and then drove off. Id. On Hart's appeal for insufficient evidence, we affirmed, holding that " given Hart's demands and his display

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of a deadly weapon to the man resisting his demands, we are satisfied that a jury could rationally conclude that Hart made an actual threat to use a drawn deadly weapon [on his ex-wife's father]." Id. at ¶ 10, 62 P.3d at 569-70.

          [¶20] Similarly, in this case, viewing the evidence in the light most favorable to the State, we find sufficient evidence for the jury to have rationally concluded that Mr. Hill threatened to use his rifle on the three officers. When the officers began pursuing Mr. Hill's vehicle, he ran two stop signs, he proceeded to speed away from the officers reaching a speed of 90 miles per hour, and when his vehicle stopped, he fled on foot with his AK-74 rifle in hand, despite orders from the law enforcement officers to show them his hands and get on the ground. He turned slightly back toward the officers and fired a single shot. He continued to run away from the officers and, about two minutes later, fired three more shots. Given that the law enforcement officers had been in pursuit of Mr. Hill, and Mr. Hill's response, which included defying their orders and carrying a deadly weapon and firing it as he ran away from them, we are convinced that a jury could rationally conclude that Mr. Hill made an actual threat to use a drawn deadly weapon on the officers.

         II. Did the district court abuse its discretion when it permitted evidence of law enforcement officers' reactions to the fired shot?

          [¶21] Mr. Hill challenges the district court's decision to allow testimony of the officers on the scene regarding their reactions once the first shot had been fired. Defense counsel filed a pre-trial motion in limine seeking to exclude evidence of what counsel characterized as " victim impact" testimony. Counsel argued that the State should be precluded from " discussing or inquiring about subjective fear of the officers as it is not relevant to the existence of an actual threat of physical injury" and is " highly prejudicial and designed to prejudice the fact finder." The district court denied the motion, and defense counsel renewed his objection to the testimony at trial.

          [¶22] Because Mr. Hill raised objections during trial, we review the trial court's evidentiary rulings for an abuse of discretion:

Evidentiary rulings are within the sound discretion of the trial court and include determinations of the adequacy of foundation and relevancy, competency, materiality, and remoteness of the evidence. This Court will generally accede to the trial court's determination of the admissibility of evidence unless that court clearly abused its discretion.
Brock v. State, 2012 WY 13, ¶ 23, 272 P.3d 933, 939-40 (Wyo. 2012) (quoting Edwards v. State, 2007 WY 146, ¶ 7, 167 P.3d 636, 637 (Wyo. 2007)). " The ultimate issue that we decide in determining whether there has been an abuse of discretion is whether or not the court could have reasonably concluded as it did." Edwards v. State, 973 P.2d 41, 45 (Wyo. 1999) (quoting State v. McDermott, 962 P.2d 136, 138 (Wyo. 1998)).

Lawrence v. State, 2015 WY 97, ¶ 10, 354 P.3d 77, 80 (Wyo. 2015). " Upon a finding of abuse of discretion, we must then determine whether the error was prejudicial. 'Error is prejudicial if there is a reasonable possibility that the verdict might have been more favorable to the defendant if the error had not been made.'" Toth v. State, 2015 WY 86A, ¶ 29, 353 P.3d 696, 705-06 (Wyo. 2015) (citation omitted).

          [¶23] There were three officers on the scene at the time the shots were fired: Cody police officers Scott Burlingame and Eric Wright, and Deputy JJ Schwindt from the Park County Sheriff's Office. At trial, all three law enforcement officers testified regarding the events transpiring immediately after Mr. Hill exited his vehicle.[1]

          [¶24] Officer Burlingame testified:

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Q. [State's counsel]: Approximately how long from the time that Mr. Hill exited the car ...

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