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.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
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.
Mr. Kite presents two issues on appeal, which he states as
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
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
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
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.
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.
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
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.
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.
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
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
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