[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
from the District Court of Park County. The Honorable Steven
R. Cranfill, Judge.
Appellant: Office of the State Public Defender: Diane M.
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel. Argument by Ms. Olson.
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.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
[¶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.
[¶2] 1. Was the evidence presented at trial
sufficient to prove Mr. Hill threatened to use the weapon he
the district court abuse its discretion when it permitted
evidence of law enforcement officers' reactions to the
the district court abuse its discretion when it denied Mr.
Hill's motion for mistrial based upon prosecutorial
the prosecutor's comments during closing misstate the
law, or constitute improper vouching?
[¶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
[¶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
[¶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
[¶7] After Mr. Hill's car stopped, the
Cody officers stopped their vehicle, and Deputy Schwindt
pulled a little behind them.
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.
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
[¶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
[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
. . . .
(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
[¶15] We have defined the phrase "
threatens to use" as requiring " proof of an
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 "
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
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.
Did the district court abuse its discretion when it permitted
evidence of law enforcement officers' reactions to the
[¶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
[¶24] Officer Burlingame testified:
Q. [State's counsel]: Approximately how long from the
time that Mr. Hill exited the car ...