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Birch v. State

Supreme Court of Wyoming

July 3, 2018

DON BIRCH, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Sublette County The Honorable Marvin L. Tyler, Judge.

          Representing Appellant: Lauretta Y. Welch, Pinedale, Wyoming.

          Representing Appellee: Peter K. Michael, Wyoming Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Samuel L. Williams, Assistant Attorney General. Argument by Mr. Williams.

          Before DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.

          KAUTZ, JUSTICE.

         [¶1] A jury convicted Don Birch of aggravated assault and battery and breach of peace. Mr. Birch argues his convictions should be reversed because the district court failed to properly instruct the jury, the court erroneously allowed the State to present evidence of uncharged misconduct, and there was insufficient evidence to support his aggravated assault and battery conviction. We affirm.

         ISSUES

         [¶2] Mr. Birch raises three issues in this appeal:

I. Whether the district court erred when it failed to instruct the jury on Wyoming law regarding "actual threat."
II. Whether the district court erred in allowing the presentation of 404(b) evidence.
III. Whether the State presented sufficient evidence to support an aggravated assault and battery conviction.

         FACTS

         [¶3] Mr. Birch and his wife, Esther, were neighbors with Gordon and Cheri Johnson in a rural subdivision in Merna, Wyoming. The neighbors were friendly with one another until 2010, when they had a dispute over the property line of their parcels. They have not spoken civilly to one another since that time.

         [¶4] On November 1, 2016, Mr. Birch visited his friend and neighbor, Howard Leeper. Mr. Birch told Mr. Leeper he wanted to shoot Mr. Johnson in the leg because he believed Mr. Johnson had sabotaged some of his equipment. This statement was consistent with other statements Mr. Birch had made to Mr. Leeper in the prior ten days.

         [¶5] During the night of November 2, 2016, Mr. Johnson was awakened by gunfire. He opened a window in his home and could see and hear Mr. Birch yelling Mr. and Mrs. Johnson's names and firing his gun. Mr. Birch also yelled, "Come over here, I'm going to kill you." The next morning, Mr. Johnson reported Mr. Birch's conduct to the Sublette County Sheriff's Department. Deputy Zack Semmons responded to the Johnson home, and after speaking with Mr. Johnson, spoke with Mr. Birch. Mr. Birch told Deputy Semmons that he "fucking hates" Mr. Johnson and that Mr. Birch was an expert marksman when he was in the Army. He also freely admitted he shot his gun thirty times while yelling obscenities at the Johnsons the evening before. Mr. Birch showed Deputy Semmons where he was shooting his gun, and from that location Deputy Semmons could clearly see the Johnson property.

         [¶6] On November 7, 2016, the Johnsons met with Sheriff K.C. Lehr to discuss concerns the Johnsons had about their welfare and property due to Mr. Birch's actions. Sheriff Lehr explained how to obtain a protection order and also advised them to continue to report and attempt to record any similar behavior by Mr. Birch in the future.

         [¶7] Later in the evening of November 7th, the Johnsons arrived at the home of their neighbors, Pete and Melanie Peterson, for dinner. Shortly after arriving at the Peterson home, Mr. Johnson received a text message from another neighbor, who informed Mr. Johnson that Mr. Birch was shooting his gun near Mr. Johnson's home again. Mr. Johnson and Mr. Peterson made the approximately ten-minute drive to the Johnson property to assess the situation. When the men arrived, they could see Mr. Birch outside shooting his gun while screaming vulgarities about the Johnsons. They listened to Mr. Birch for twenty to thirty minutes and then Mr. Birch got into his truck and left. The two returned to the Peterson home and Mr. Johnson reported the incident to the Sublette County Sheriff's Department.

         [¶8] The Johnsons returned to their home at approximately 7:30 p.m., and shortly thereafter Mr. Birch again began to shoot his gun while screaming at the Johnsons. Mr. Birch yelled at the Johnsons using their first names and copious amounts of profanity and vile name-calling, saying things such as, "I'm gonna fuckin' shoot your ass, you fuckin' piece of shit[, ]" and "I'm gonna fuckin' kill you, you fuckin' piece of shit. Whoo. Call the cops. Are you scared, Gordon? Are you scared, motherfucker? Are you scared, fucker? You should be, you fuckin' piece of shit." The Johnsons could see Mr. Birch during his tirade. The couple turned off the lights in their home and used Mr. Johnson's cellphone to audio record Mr. Birch's behavior. Mr. Birch continued shooting his gun and yelling until approximately midnight. The next day, Mr. Johnson contacted the sheriff's department again about the incident and provided the cell phone recordings. On November 17, 2016, Mr. Birch was arrested and charged, based upon the November 7th conduct, with aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii) (LexisNexis 2016), and breach of peace, in violation of Wyo. Stat. Ann. § 6-6-102(a) (LexisNexis 2016).

         [¶9] The case proceeded to trial, and a jury convicted Mr. Birch of both charged counts. The district court sentenced Mr. Birch to three to five years imprisonment for the aggravated assault and battery conviction, but suspended that sentence in favor of five years of probation. The court sentenced Mr. Birch to a concurrent 180 days in jail for the breach of peace conviction, but suspended that sentence in favor of six months of probation. Mr. Birch filed a timely notice of appeal. Other facts will be discussed as necessary below.

         DISCUSSION

         Jury Instructions

         [¶10] The district court gave the jury the following instruction regarding the ...


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