Summary 2007 WY 45

Summary of Decision issued March 15, 2007

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Case Name: Kelly v. State

Citation: 2007 WY 45

Docket Number: 06-37

Appeal from the District Court of Campbell County, the Honorable John Perry, Judge

Representing Appellant (Defendant): Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dana J. Lent, Assistant Attorney General.

Issue: Whether sufficient evidence was presented to show Appellant caused serious bodily injury as required for an aggravated assault conviction.

Facts/Discussion: Appellant was convicted by a jury of aggravated assault and batter in violation of Wyo. Stat. Ann. § 6-2-502(a)(i). On appeal, he claims the evidence was insufficient to show that he caused “serious bodily injury” as required by the statute. He also claims prosecutorial misconduct occurred during the State’s closing argument.
Standard of Review: When reviewing the sufficiency of the evidence, the Court accepts as true the State’s evidence and affords it those inferences which may be reasonably and fairly drawn from it. The Court’s duty is to determine whether a quorum of reasonable and rational individuals would or could have come to the same result as the jury actually did.
Appellant claims the State’s evidence was insufficient to show he caused serious bodily injury to the victim. He asserted the evidence presented did not create a substantial risk of death or cause severe disfigurement or loss or impairment of any bodily member or organ. The State argued the evidence was sufficient showing that Appellant beat the victim with his fists and hit him on the head with an iron stove grate, causing profuse bleeding and permanent scarring. The State cited State v. Woodward and Lucero v. State. Unfortunately, the current statute specifically identifies the sort of bodily injury a defendant must cause in order to be convicted of aggravated assault under § 6-2-502(a)(i). The injury must: (1) create a substantial risk of death; (2) cause miscarriage; (3) cause severe disfigurement; or (4) cause protracted loss or impairment of the function of any bodily member or organ. The Court has specifically considered whether injuries constituted serious bodily injury within the meaning of the statutes in two cases: O’Brien v. State and Cazier v. State. The Court held that under those particular facts, rare and remarkable injuries which required surgery or resulted in inpatient hospitalization and scarring constituted serious bodily injuries. Although the victim was left with a scar, there was no testimony that the injuries were life threatening or that they required inpatient hospitalization or surgery. The Court concluded the evidence did not support a verdict finding Appellant caused serious bodily injury as the term is defined in the statute. Under Wyoming’s statutory language the focus of the inquiry is the nature of the injuries inflicted. The Court discussed their holding as in accord with results reached in other jurisdictions sharing the same or substantially similar statutory language. They discussed State v. Pheng, Fleming v. State, State v. Flores, Commonwealth v. Lewis, Moore v. State and State v. Kane.
To support a conviction for aggravated assault, nearly all the cases require injuries significantly more serious than those of the victim in the instant case.

Holding: Given the express language contained in the statute, the Court held the evidence was not sufficient to support the conviction for aggravated assault. The Court stated their holding on the issue made it unnecessary to address the claim of prosecutorial misconduct. The district court instructed the jury on the offense of battery as a lesser-included offense of aggravated assault. The evidence presented at trial was sufficient to support a jury verdict finding Appellant guilty of battery. Therefore, the Court set aside the aggravated assault conviction, ordered entry of a battery conviction and remanded to district court for re-sentencing on the battery conviction.

Reversed as to the aggravated assault conviction, entry of a battery conviction ordered and remanded to district court for sentencing on the battery conviction.

J. Kite delivered the decision.

Link: http://tinyurl.com/3dc6yl .