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O'Brien v. State4/24/2002
Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge
[ ] In this appeal, we primarily consider the instruction a jury should receive when considering whether the elements of aggravated assault and battery are met. Appellant David Wayne O'Brien contends that the trial court improperly defined the term "recklessly under circumstances manifesting extreme indifference to the value of human life." We agree that this language requires that the State prove that a defendant's conduct exhibited more than recklessness, but we determine that sufficient evidence supported O'Brien's conviction on one count of aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(i). On this issue and others presented by O'Brien, we find no reversible error and affirm his conviction.
ISSUES
[ ] The parties agree that the following issues are presented for our review:
I. Whether plain error occurred when the jury was erroneously instructed regarding the recklessly under circumstances manifesting extreme indifference to the value of human life component of aggravated assault and battery?
II. Whether there was insufficient evidence to convict O'Brien of aggravated assault under W.S. § 6-2-502(a)(i)?
III. Whether Nurse Krininger's testimony eliciting statements made by Mr. Foster was improper hearsay under W.R.E. 803(4)?
IV. Whether prosecutorial misconduct occurred during the State's closing argument and in the State's case in chief?
FACTS
[ ] On the evening of August 21, 1999, twenty-two year old Jordan Foster reported to two friends that, as he drove around in Gillette, Wyoming, he had been "bothered" by some people in a red Ford Probe. Foster was "cruising," or driving around town, which is an activity many young people in Gillette engage in to meet with friends and visit. Later, Foster was a passenger in a pickup truck driven by his friend, Chris Weber, age 18. Weber's girlfriend, Amanda Jameson, age 17, was also a passenger. The three drove around Gillette and soon encountered the red Ford Probe, which was driven by Shawn Lewis, age 20, with Shelly Lane, age 16, occupying the front seat passenger side, and O'Brien seated in the back. This party was also cruising. O'Brien is Lewis' uncle and is 30 years old. As the two vehicles drove next to each other, the Probe's occupants began calling out insults to the occupants of the pickup truck. The Probe parked in a bank parking lot, and Foster and his friends also pulled into the lot and parked. Weber testified that Foster's demeanor was curious and not angry.
[ ] O'Brien, however, emerged from the Probe's back seat appearing angry and stating that he hated cowboys. Weber testified that O'Brien had a bigger build and appeared much older. Foster got out of the pickup truck and walked over to O'Brien to see if there was a problem. O'Brien placed a beer that he had been drinking on the hood of the pickup truck and asked if Foster was scared of him. After Foster asked if he should be, O'Brien punched Foster near the left eye knocking him to the ground. Foster reported that he had been knocked unconscious, and eyewitnesses testified that he did not fight back. Falling on him, O'Brien hit Foster in the head "pretty quick and hard" and about ten or eleven times. O'Brien then stood up, jumped up and down and said, "I am the greatest," repeatedly.
[ ] Lane apologized to Jameson, and all three Probe occupants returned to it and left. Weber and Jameson placed Foster in their pickup truck and drove him to the Campbell County Memorial Hospital emergency room in Gillette. An emergency room nurse, Patty Krinin
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