Summary 2008 WY 78

Summary of Decision issued July 14, 2008

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Case Name: Cohen v. State

Citation: 2008 WY 78

Docket Number: S-07-0082

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant (Defendant): Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; Donna D. Domonkos, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Paul S. Rehurek, Senior Assistant Attorney General

Date of Decision: July 14, 2008

Issues: Whether there was sufficient evidence to prove Appellant attempted to commit first degree homicide when there was no evidence of a substantial step towards committing first degree homicide. Whether there was sufficient evidence to prove Appellant committed aggravated assault as charged by the State since there was no evidence of a substantial step towards committing aggravated assault. Whether the district court erred when it denied Appellant's motion to suppress evidence seized after an illegal stop.

Holdings: When reviewing sufficiency of the evidence claims, any applicable inferences that may be reasonably drawn from it, are viewed in the light most favorable to the State. It is the jury's responsibility to resolve conflicts in the testimony, weigh the evidence and draw reasonable inferences from the facts. It is presumed that the jury resolved any conflict in the evidence in favor of the State. On appeal, the court will not reweigh the evidence or reexamine the credibility of the witnesses. It will only determine whether a quorum of reasonable and rational individuals could have found the essential elements of the crime proven beyond a reasonable doubt.

Whether a defendant has engaged in a substantial step toward the commission of a crime is a question of fact. Each case, therefore, must be analyzed within the context of its individual facts and circumstances. Since the jury is the ultimate finder of fact, the task in this case is to determine whether a "quorum of reasonable and rational individuals could have found" conduct constituting a substantial step. Among the evidence considered by the jury in this case was the fact that Appellant was resisting arrest, having already injured one officer, and leading officers on a high speed automobile chase. When finally cornered, he gave false information. Appellant refused to obey an instruction to keep his hands in plain sight and, instead, moved his left hand behind his back to retrieve a loaded and ready-to-fire handgun. Even after an officer pulled his weapon and told Appellant to stop, Appellant continued to pull the weapon out from his waistband and bring it forward, with his hand firmly on the grip. The only reason Appellant could not complete his intended action of shooting the officer was because of the officer's prudent actions in grabbing Appellant and dislodging the weapon from his grasp. This evidence is sufficient for a reasonable jury to find that Appellant engaged in substantial conduct strongly corroborative of his intention to murder the officer.

If the facts and circumstances surrounding Appellant's drawing of a loaded gun are sufficient to sustain his conviction for the attempted murder, they are likewise sufficient to sustain his conviction for attempting to cause bodily injury to the officer.

In his motion to suppress in the district court, Appellant invoked both the Fourth Amendment to the United States Constitution and Article 1, Section 4 of the Wyoming Constitution as grounds for suppressing the evidence. On appeal, Appellant bases his challenge to the legality of the stop exclusively on Fourth Amendment principles. Although he references the Wyoming Constitution, he does not provide an independent state constitutional analysis. The failure to present a proper argument supporting "'adequate and independent state grounds' . . . prevents the court, as a matter of policy, from considering other than the federal constitutional principles at issue.

A law enforcement officer may stop and temporarily detain a citizen if the officer has an objectively reasonable suspicion that the person has committed or may be committing a crime.

In order to establish the reasonable suspicion necessary to justify an investigatory stop, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences [drawn] from those facts, reasonably warrant that intrusion. Reasonable suspicion, like probable cause, is dependant upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the 'totality of the circumstances -- the whole picture, that must be taken into account when evaluating whether there is reasonable suspicion. A review of the record in this case, shows that the officer possessed reasonable suspicion justifying the investigatory stop of the SUV. The record discloses the following facts: (1) the officer had been following the events over his police radio and knew there was a warrant out for Appellant's arrest; (2) Appellant was reported to be on foot in the area where the grid search was being conducted; (3) the radio reports indicated the direction towards a particular street Appellant was traveling after abandoning his car; (4) the officer saw a man cross the named street in the direction Appellant was known to be traveling about twenty minutes after Appellant abandoned the car; (5) the male suspect was sighted just a block away from the car; (6) the officer saw the suspect coming out from between two houses, not exiting a residence or other structure; (7) the officer knew from experience that this neighborhood normally had very little pedestrian traffic; (8) the officer was somewhat familiar with Appellant's physical appearance from his participation in a drug investigation involving Appellant a few months earlier; (9) the suspect was the "right size and shape" of Appellant, although his clothing was a little different from the description transmitted earlier over the radio for Appellant; (10) the suspect matched the physical description of Appellant contained in a flier posted at the police station; and (11) the officer observed the suspect enter the passenger door of a waiting vehicle. Under the circumstances, the officer was acting on more than a simple "hunch" when he stopped the vehicle. The totality of these factors, along with rationale inferences, supports a reasonable suspicion that Appellant, the person police were searching for, was a passenger in the stopped vehicle. Although there was a discrepancy in the clothing description, this discrepancy is insufficient to defeat the existence of reasonable suspicion in light of the other factors present in this case. The investigatory stop of the was constitutionally permissible under the circumstances.

There is sufficient evidence in the record to support Appellant's convictions for attempted first degree murder and aggravated assault and battery. Reasonable suspicion existed justifying the investigatory stop of the vehicle in which Appellant was a passenger.

Affirmed.

J. Golden delivered the opinion for the court.