               IN THE SUPREME COURT, STATE OF WYOMING

                                        2013 WY 84

                                                         APRIL TERM, A.D. 2013

                                                                  July 11, 2013

MORRIS EUGENE GRIMES,

Appellant
(Defendant),

v.                                                   S-12-0229

THE STATE OF WYOMING,

Appellee
(Plaintiff).

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

Representing Appellant:
      Diane Lozano, State Public Defender, PDP; Tina N. Olson, Chief Appellate
      Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr.
      Morgan.

Representing Appellee:
      Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
      Darrell D. Jackson, Faculty Director, PAP; Emily N. Thomas, Student Director,
      PAP. Argument by Ms. Thomas.

Before KITE, C.J., HILL, VOIGT, BURKE, and DAVIS, JJ.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Morris Eugene Grimes was convicted after a jury trial of felony interference with
a peace officer. On appeal, he claims the evidence that the officer was injured by his
actions was insufficient to support the conviction. We conclude the evidence, viewed in
accordance with our standard of review, supports the jury’s decision. Consequently, we
affirm.

                                          ISSUE

[¶2]   Mr. Grimes presents the following issue on appeal.

              I.     Whether there was sufficient evidence to support,
                     beyond a reasonable doubt, a conviction for
                     interference with a police officer in violation of Wyo.
                     Stat. Ann. § 6-5-204(b)?

The State presents essentially the same issue.

                                         FACTS

[¶3] On February 26, 2012, Mr. Grimes and his mother were guests at the Smart
Choice Inn in Gillette, Wyoming. The motel also acted as a bus stop and tickets could be
purchased from the motel staff. Gillette police officers Owen Kimberling and Chad
Trebby responded to a call from motel staff about a disturbance involving Mr. Grimes.
He was arguing with his mother and a motel staff member over bus transportation.

[¶4] The officers persuaded Mr. Grimes to go to his room, but he returned to the lobby
a short time later and began shouting profanity. When he ignored the officers’
commands to quiet down, they arrested him for breach of the peace and handcuffed his
hands behind his back. Mr. Grimes kicked the front doors of the motel as the officers
were escorting him to Officer Trebby’s patrol vehicle, so they made him walk backward
the rest of the way.

[¶5] Mr. Grimes refused to put his legs inside the vehicle and ignored the officers’
warning that he would be “tased” if he did not comply. Officer Kimberling energized his
taser on Mr. Grimes’ leg, and he put his legs into the vehicle. The officers closed the
door and continued to talk outside. Mr. Grimes manipulated his handcuffed hands by
moving them from behind his back to his front, broke the overhead light and began
pushing on the door and window with his feet, so the officers decided to remove him
from the vehicle.



                                             1
[¶6] Officer Kimberling prepared the taser, and Officer Trebby opened the door. Mr.
Grimes immediately kicked Officer Kimberling in the chest causing him to fall backward
onto the asphalt pavement. As he was falling, Officer Kimberling tased Mr. Grimes. The
officers were eventually able to restrain Mr. Grimes after employing the taser several
more times. Although Officer Kimberling initially stated that he was not hurt, he
developed back pain shortly after the incident and went to the emergency room.

[¶7] The State charged Mr. Grimes with felony interference with a peace officer. 1 At
trial, Mr. Grimes’ primary defense was the officers were not lawfully performing their
duties because they used excessive force. The jury returned a guilty verdict, and Mr.
Grimes filed post-trial motions for a judgment of acquittal or new trial, which the district
court denied. After he was sentenced, Mr. Grimes filed a timely appeal to this Court.

                                      STANDARD OF REVIEW

[¶8] In reviewing a claim that the trial evidence was insufficient to support a jury
verdict,

                   we examine and accept as true the State’s evidence and all
                   reasonable inferences which can be drawn from it. We do not
                   consider conflicting evidence presented by the defendant. We do
                   not substitute our judgment for that of the jury; rather, we
                   determine whether a jury could have reasonably concluded each
                   of the elements of the crime was proven beyond a reasonable
                   doubt. This standard applies whether the supporting evidence is
                   direct or circumstantial.

               Anderson v. State, 2009 WY 119, ¶ 6, 216 P.3d 1143, 1145
               (Wyo. 2009), quoting Martin v. State, 2007 WY 2, ¶ 32, 149
               P.3d 707, 715 (Wyo. 2007).

Dawes v. State, 2010 WY 113, ¶ 17, 236 P.3d 303, 307 (Wyo. 2010).

                                          DISCUSSION

[¶9] Felony interference with a peace officer is prohibited by Wyo. Stat. Ann. § 6-5-
204(b) (LexisNexis 2011):




1
 Mr. Grimes was also charged with felony destruction of property in violation of Wyo. Stat. Ann. § 6-3-
201(a)(b)(iii) (LexisNexis 2011), but that charge was apparently dismissed because the value of the
property destroyed was less than $1,000.


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                     (b) A person who intentionally and knowingly causes
              or attempts to cause bodily injury to a peace officer engaged
              in the lawful performance of his official duties is guilty of a
              felony punishable by imprisonment for not more than ten (10)
              years.

Mr. Grimes claims the State failed to prove that he caused bodily injury to Officer
Kimberling. He asserts the causation evidence was insufficient because the officer
initially said he was unhurt and, although he later complained of back pain and sought
medical treatment, there was no medical evidence to explain why there was a delay in the
onset of pain. According to Mr. Grimes, there could have been an intervening cause of
Officer Kimberling’s back pain, such as slipping on the icy pavement or struggling with
Mr. Grimes on the ground.

[¶10] In Allen v. State, 2002 WY 48, ¶ 42, 43 P.3d 551, 565-66 (Wyo. 2002), this Court
stated that the state must prove the defendant’s wrongful conduct was the proximate
cause of the injury. Although Allen involved an aggravated vehicular homicide charge,
the analysis is apt with regard to the interference with a peace officer charge. “To be the
‘proximate cause,’ the . . . injury must be the natural and probable consequence of the
defendant’s wrongful conduct; a ‘substantial factor’ in bringing about the injuries or
death.” Id., citing Bloomquist v. State, 914 P.2d 812, 820 (Wyo. 1996), which quoted
Glazier v. State, 843 P.2d 1200, 1204 (Wyo. 1992) and McClellan v. Tottenhoff, 666 P.2d
408, 414 (Wyo. 1983).

[¶11] As we stated earlier, our standard of review requires that we view the evidence in
the light most favorable to the State and give it the benefit of all reasonable inferences. A
permissible inference is defined as:

              An inference is a process of reasoning by which a fact or
              proposition is deduced fairly and logically from other facts
              proven or admitted. An inference is truly evidence. The
              weight to which it is entitled depends upon the facts and
              circumstances of each case * * *.

Seeley v. State, 959 P.2d 170, 176 (Wyo. 1999), quoting Story v. State, 721 P.2d 1020,
1025 (Wyo. 1986), cert. denied, 479 U.S. 962, 107 S. Ct. 459, 93 L. Ed. 2d 405 (1986).
In applying this definition, “[t]here must be some connection between the proven fact and
the inference drawn from it.” Mora v. State, 984 P.2d 477, 481 (Wyo. 1999). Thus, a
jury’s inferences cannot be based upon mere speculation or conjecture. Anderson v.
State, 2009 WY 119, ¶ 14, 216 P.3d 1143, 1147 (Wyo. 2009). In addition, we defer to
the jury’s determinations on the credibility of the witnesses and the weight of the
evidence. Id., ¶ 13, 216 P.3d at 1146-47.



                                             3
[¶12] Applying these principles to the present case, Officer Kimberling testified that he
and Officer Trebby decided to remove Mr. Grimes from the patrol car because he was
acting up and they were concerned about his safety. He had broken the overhead light in
the patrol car and was pushing on the door and window with his feet. When the officers
opened the door, Mr. Grimes immediately kicked Officer Kimberling in the chest with
both feet causing him to fall on his back onto the asphalt. The officers struggled with Mr.
Grimes until he was finally restrained.

[¶13] Although Officer Kimberling initially denied he was hurt, he testified that he
began to feel pain in his lower back and right side while preparing his reports a short time
later. Video and audio recordings from the officers’ patrol vehicles corroborate his
testimony. Officer Kimberling testified that he went to the emergency room and took
two or three days off work as a result of the incident. At the time of the trial, Officer
Kimberling stated that he continued to have occasional pain in his back. He also
testified:

                    Q.     Now, I noticed that there were a number of
              comments that you made regarding whether or not you
              thought you’d been hurt?

                     A.     Yes.

                    Q.     Could you tell right off the bat -- after you get
              Mr. Grimes handcuffed and placed in the car the second time,
              could you tell at that point if [you] were suffering from any
              pain?

                      A.      No. The only thing that I knew, and I believe
              you can hear it in the audio, was I had blood somewhere and
              it ended up being I had blood all over me, but initially I was
              out of breath, and, of course, my adrenaline was through the
              roof . . . and there was no pain initially.

                     Q.     And I take it that later that changed?

                     A.     Yes.

                     Q.     And in what manner did it change?

                     A.    I started having some pain, I would imagine
              probably from sitting in my vehicle until the drive to the
              detention center. Once I got out, that’s when I started having
              some pain.


                                             4
                       I’ve had pain before, you know, and I didn’t really
                think nothing (sic) of it. After being at the detention facility
                for so long and then going back to the office is when I sat
                down and we were watching the videos and started reports,
                that’s when I really started having bad pain.

[¶14] The jury is charged with weighing the evidence and determining the credibility of
the witnesses. Drawing reasonable inferences from the evidence and assuming the jury
found Officer Kimberling to be credible, there was sufficient evidence that his injury was
“the natural and probable consequence” of Mr. Grimes’ wrongful conduct, and Mr.
Grimes’ action was a “substantial factor” in bringing about Officer Kimberling’s injury.
Allen, ¶ 42, 43 P.3d at 565-66. Officer Kimberling’s testimony allows the reasonable
inference that his back was injured when he was kicked to the ground by Mr. Grimes. In
fact, there is no evidence of any other potential cause of Officer Kimberling’s back pain,
and Mr. Grimes’ suggestion that the officer was injured by slipping or later in the
altercation2 is conjecture and speculation.

[¶15] Mr. Grimes also argues that the lack of medical evidence undermines the State’s
case. Pursuant to § 6-5-204(b), a person is guilty of the offense if he causes “bodily
injury” to the peace officer. Bodily injury is statutorily defined as “physical pain, illness
or any impairment of physical condition.” Wyo. Stat. Ann. § 6-1-104(a)(i) (LexisNexis
2011). We have stated that the “statute does not specify particular gradations of physical
pain, illness or impairment.” Mascarenas v. State, 2003 WY 124, ¶ 15, 76 P.3d 1258,
1265 (Wyo. 2003). Like in other cases, Officer Kimberling’s testimony that he suffered
pain was sufficient to establish the bodily injury element of felony interference with a
peace officer. See, e.g., King v. State, 2002 WY 27, ¶ 5, 40 P.3d 700, 702 (Wyo. 2002)
(officers testified the defendant’s punches caused them pain); Mascarenas, ¶ 15, 76 P.3d
at 1265 (bodily injury occurred when the defendant kneed the officer in the groin,
causing him “severe discomfort”); Mueller v. State, 2001 WY 134, ¶¶ 6, 15, 23, 36 P.3d
1151, 1155, 1157, 1159 (Wyo. 2001) (evidence was sufficient to establish felony
interference with two peace officers when they described having a headache and sore jaw
after the altercation even though they may have denied being “hurt”). Although the
State’s case may have been stronger if it had presented medical evidence to explain the
nature of Officer Kimberling’s injury and the delay in the onset of his pain, the evidence

2
  Even if the injury occurred during the ensuing struggle, the evidence still may have been sufficient to
support the conviction. In Hulsy v. State, 2009 WY 81, ¶¶ 5-6, 209 P.3d 901, 902-03 (Wyo. 2009), the
appellant injured a deputy sheriff by either kicking him or violently thrashing about. We held that under
either scenario, the elements of felony interference with a peace officer were satisfied. Id., ¶ 10, 209 P.3d
at 905. We do not, however, need to address whether Officer Kimberling was injured in the struggle
rather than by the kick because the evidence is sufficient to support the inference that the officer was
injured when Mr. Grimes kicked him to the ground.



                                                     5
was sufficient to support the reasonable inference that his back was injured when he fell
to the ground after being kicked by Mr. Grimes.

[¶16] Mr. Grimes directs us to two cases from other jurisdictions which he believes
support his position that the causation element was not satisfied in his case—
Commonwealth v. Moyer, 648 A.2d 442 (Pa. Super. Ct. 1994) and People v. Kent, 444
N.E.2d 570 (Ill. Ct. App. 1982). Neither of these cases is apposite. In Moyer, 648 A.2d
at 450-52, the defendant was charged with a number of crimes including involuntary
manslaughter for hitting the victim, who was driving a jet ski, with his boat. The
Pennsylvania Superior Court ruled there was insufficient evidence that the defendant’s
wrongful conduct (driving a motorcraft too fast or while intoxicated) caused the victim’s
death. Witnesses testified the defendant could not have avoided the crash because the
victim suddenly swerved into his path, and the prosecution did not offer any evidence of
reaction times to establish otherwise.

[¶17] In Kent, 444 N.E.2d at 572-76, the defendant was charged with murder of her
infant daughter after she admitted feeding the baby beer mixed with water. The evidence
established that the medical examiner had not performed tests during the autopsy to
establish, beyond a reasonable doubt, the cause of the infant’s death was ingestion of
alcohol. In addition, there was evidence that other conditions, such as Reyes Syndrome,
malnutrition and Sudden Infant Death Syndrome, could have led to the same autopsy
findings. The Illinois court of appeals, therefore, reversed the defendant’s conviction.

[¶18] In both Moyer and Kent, the evidence supported the conclusion that the
defendant’s actions were not the cause of the injury or death. Here, by contrast, there is
no evidence of any cause of Officer Kimberling’s back injury other than being kicked to
the ground by Mr. Grimes. The jury, which was charged with the task of determining the
credibility of the witnesses and weighing the evidence, could have reasonably concluded
the State proved beyond a reasonable doubt that Officer Kimberling was injured when
Mr. Grimes kicked him. We will not interfere with its decision.

[¶19] Affirmed.




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