Summary 2009 WY 81

Summary of Decision issued June 19, 2009

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

Case Name: Hulsy v. State

Citation: 2009 WY 81

Docket Number: S-08-0257

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Hulsy: Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan. Senior Assistant Appellate Counsel.

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

Facts/Discussion: Hulsy was convicted by a jury of felony interference with a peace officer. Hulsy was engaged in a violent verbal and physical confrontation with an employee at a bar in Jackson. He was eventually subdued and restrained by bar employees and his roommate until Teton County Sheriffs arrived. The Sheriffs had to force him to walk out of the bar. The roommate and the Sheriffs reported that as they were headed down some stairs Hulsy either kicked one of the deputies or lunged forward carrying himself and one of the Sheriffs along with him injuring the Sheriff.
In the prosecutor’s opening and closing statements, he commented that the Sheriff fell down the steps and was injured regardless of whether Hulsy kicked him or lunged forward and dragged him down the stairs with him. The Court noted that it has described the constitutional and procedural principles underlying notice and variance issues in Gonzales v. State, Vernier v. State and Capshaw v. State. It expanded on the principles in the decision in Spagner noting that a variance occurs when the evidence presented at trial proves facts different from those alleged in the information and that a variance is not fatal unless the appellant could not have anticipated from the indictment what evidence would be admitted at trial. The Court found there was sufficient evidence in the trial transcript whereby the jury could have found either version of the events credible and reasonably could have determined beyond a reasonable doubt that the appellant intentionally and knowingly injured the deputy.
A careful review of the record revealed that the State did not shift its theory of prosecution, rather the State took advantage of Hulsy’s defense (that he thrashed and lunged in such a fashion as to knock the Sheriff down the stairs as opposed to kicking him) and pointed out that the net result was the same – the evidence proved the elements of the crime.

Conclusion: Under applicable constitutional and procedural standards, Hulsy was adequately advised of the charge against him and there was sufficient evidence to support the verdict which was not the product of improper alternative charging.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/np5dog .

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