Friday, December 12, 2008

Summary 2008 WY 146

Summary of Decision issued December 12, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Conine v. State

Citation: 2008 WY 146

Docket Number: S-07-0202

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Conine: Tina N. Kerin, Appellate Counsel, Wyoming Public Defender’s Office; Diane E. Courselle, Faculty Director, and Jonah Buckley and Robert Pascoe, Student Interns of the Defender Aid Program.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Brandi L. Monger, Assistant Attorney General.

Facts/Discussion: A jury convicted Conine of aggravated assault and battery. In an altercation with the victim at their boarding house, Conine punched the victim several times, and then hit him with an aluminum frying pan. On appeal, Conine challenges the sufficiency of the evidence to sustain his conviction and asserts reversible error based on alleged instances of prosecutorial misconduct during voir dire and opening statement.

Sufficiency of the Evidence: It’s the jury’s responsibility to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the facts. Conine argued the evidence failed to support the jury’s finding that the frying pan constituted a deadly weapon because it did not cause actual serious bodily injury to the victim. The statutes only require that the victim incurred bodily injury caused by Conine’s use of an object which was reasonably capable of producing death or serious bodily injury. The State was not required to prove nor was the jury required to find that the victim suffered serious bodily injury when Conine hit him with the frying pan. Viewing the evidence as a whole and affording the State every favorable inference, the Court had no trouble concluding the evidence was sufficient for a reasonable jury to find beyond a reasonable doubt the frying pan caused the victim bodily injury.

Prosecutorial Misconduct: Conine complained of prosecutorial misconduct during voir dire. The Court reviewed the prosecutor’s questions and agreed they violated Rule 24(c). The line of highlighted questioning served only to instruct the prospective jurors on the law and place the suggestion in their minds that an object such as a frying pan could be a deadly weapon. In effect, the prosecutor was using voir dire to argue an important aspect of the State’s case. Although improper, the Court decided the questions were not so suggestive as to commit any member of the panel to find a frying pan was a deadly weapon. There was more than sufficient evidence to support a finding that the frying pan was used as a deadly weapon and the jury was repeatedly advised that findings of fact were exclusively within their realm.
During opening statement, the prosecutor remarked that the victim was a “pretty honest man.” The Court noted the remark was a transgression of the clear rule of law that a prosecutor not assert his personal belief or credibility into the case. The statement was isolated and the district court twice instructed the jury concerning its responsibilities to evaluate the credibility of the witnesses, as well as weigh the evidence and resolve factual issues, in determining guilt or innocence.

Holding: The record contains sufficient evidence to support Conine’s conviction for aggravated assault and battery. The prosecutor’s conduct during voir dire and opening statement did not constitute plain error, warranting reversal of Conine’s conviction.


J. Golden delivered the decision.

Link: .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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