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Kite v. State

Supreme Court of Wyoming

August 21, 2018

CORTNEY ALAN KITE, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Converse County The Honorable F. Scott Peasley, Judge

          Representing Appellant: Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Jonathan W. Foreman, Senior Assistant Public Defender. Argument by Mr. Foreman.

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

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

          DAVIS, CHIEF JUSTICE.

         [¶1] Cortney Alan Kite was convicted of aggravated assault and other misdemeanor offenses after he led law enforcement on a high-speed chase on I-25, crossed the median, and drove against oncoming traffic. Mr. Kite appeals his aggravated assault conviction, claiming the district court erred in instructing the jury and that the evidence was insufficient to support his conviction. We affirm.

         ISSUES

         [¶2] Mr. Kite presents two issues on appeal, which he states as follows:

I. The district court erred by instructing the jury that [Mr. Kite] could be convicted of attempting to cause serious bodily injury under any three distinct and separate mental states: recklessness, general intent, or specific intent.
II. The district court erred by not granting [Mr. Kite's] motions for judgment of acquittal on the basis that [the State] never proved that [Mr. Kite] attempted to injure other motorists.

         FACTS

         [¶3] Viewing the evidence in the light most favorable to the State and resolving any evidentiary conflicts in its favor, see Dockter v. State, 2017 WY 63, ¶ 3, 396 P.3d 405, 406 (Wyo. 2017), the pertinent facts established at trial are as follows. On October 24, 2016, at 4:51 p.m., Wyoming Highway Patrol Trooper Gabriel Walz was on patrol, driving north on I-25 near Glenrock, Wyoming. He observed a silver Pontiac Grand Prix with Iowa plates (which turned out to be driven by Mr. Kite) pass a semi-truck without signaling and drift over the fog line close to the median. He followed the vehicle for a short distance and then initiated a traffic stop.

         [¶4] Trooper Walz approached the vehicle on the passenger side, introduced himself, and requested Mr. Kite's driver's license, registration, and proof of insurance. Mr. Kite responded, "Nope," peeled out, and headed north at a high rate of speed. Trooper Walz returned to his vehicle, radioed dispatch concerning the situation, and then pursued Mr. Kite, driving at speeds of up to 140 m.p.h. to catch up to him.

         [¶5] About a mile and a half from where Trooper Walz had stopped him, Mr. Kite crossed the median, entered the southbound lanes of I-25, and proceeded to drive north against the southbound traffic. He initially entered the southbound passing lane, but then moved into the driving lane, forcing a white passenger car and three semi-trucks to the shoulder. Mr. Kite then moved from the driving lane to the passing lane, forcing a black passenger car from the passing lane into the median. Approximately fifty-four seconds after entering the southbound lane, Mr. Kite again crossed the median and continued northbound in the northbound lane.

         [¶6] The chase continued at high rates of speed northbound on I-25, and then onto a secondary road known as Deer Creek Road. At about milepost 2 on Deer Creek Road, Mr. Kite left the road and drove into a field. He stopped when his vehicle hit a center pivot rut and was disabled. The two passengers, Mr. Kite's wife and a hitchhiker they had picked up, stayed with the vehicle. Mr. Kite fled on foot and was eventually intercepted by two Converse County sheriff's deputies, who arrested him.

         [¶7] The State charged Mr. Kite with one count of aggravated assault and battery on two alternative bases: Wyo. Stat. Ann. § 6-2-502(a)(i) ("attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life") and Wyo. Stat. Ann. § 6-2-502(a)(ii) ("[a]ttempts to cause . . . bodily injury to another with a deadly weapon"). The State also charged Mr. Kite with one count of misdemeanor driving under the influence, one count of misdemeanor possession of marijuana, one count of misdemeanor fleeing or attempting to elude police officers, and one count of misdemeanor reckless endangerment.

         [¶8] Before trial, Mr. Kite moved to strike the words "knowingly, or recklessly" and the phrase "under circumstances manifesting extreme indifference to the value of human life" from the aggravated assault and battery charge, arguing that such mental states were not consistent with the specific intent required to support a charge of attempt to cause serious bodily injury. The district court denied the motion, explaining:

The State does not have to prove the Defendant had the specific intent to cause serious bodily injury in order to prove their case under Count I. According to the statute, the State must show the Defendant attempted to cause serious bodily injury to another either (1) intentionally, (2) knowingly, or (3) recklessly under circumstances manifesting extreme indifference to the value of human life.

         [¶9] The State dismissed the possession of marijuana charge before trial, and a two-day jury trial was held on the remaining four charges on May 9-10, 2017. After the State rested, Mr. Kite moved for a directed verdict on the aggravated assault and battery and DUI counts. The district court denied the motion, and all four counts were submitted to the jury.

         [¶10] The jury found Mr. Kite guilty of aggravated assault and battery, fleeing or attempting to elude police officers, and reckless endangerment, and acquitted him on the DUI charge. With respect to the aggravated assault and battery charge, the jury completed the relevant portions of the verdict form as follows:

         COUNT 1:

1. We the jury, duly empanelled and sworn to try the above entitled cause, do find that as to the crime of Aggravated Assault and Battery, the Defendant, Cortney Alan Kite, is
___ Not Guilty
___X ___ Guilty
If you answered "Not Guilty" to Question 1, proceed to Question 2.
If you answered "Guilty," answer the following subparts to Question.
a) Was such aggravated assault an intentional attempt to cause serious bodily injury?
___X ___ Yes ____ No
b) Was such aggravated assault a knowing attempt to cause serious bodily injury?
___X___ Yes ___ No
c) Was such aggravated assault an attempt to cause serious bodily injury that was done recklessly under circumstances showing extreme indifference to the value of human life?
___X___ Yes ___No
d) Was such aggravated assault an attempt to cause bodily injury to another with a deadly weapon?
___X Yes ___ No

         [¶11] On May 19, 2017, Mr. Kite filed a motion for judgment of acquittal on the aggravated assault and battery count, arguing that the evidence was insufficient to establish that he intended to cause serious bodily injury when he drove against traffic on I-25. On May 31, 2017, the district court denied the motion. It again ruled that specific intent to cause injury was not required by the governing statute, but it ...


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