2014 Opinion No. 64S
This decision is not final until exception of the 21 day petition for rehearing period. Pursuant to rule 118 of the Idaho Appellate Rules.
Appeal from the District Court of the First Judicial District, State of Idaho, Bonner County. Hon. Steven C. Verby, District Judge.
Judgment of conviction and sentence for two counts of aggravated assault, affirmed.
Sara B. Thomas, State Appellate Public Defender; Sally J. Cooley, Deputy Appellate Public Defender, Boise, for appellant. Sally J. Cooley argued.
Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent. Jessica M. Lorello argued.
LANSING, Judge. Chief Judge GUTIERREZ and Judge MELANSON CONCUR.
SUBSTITUTE OPINION THE COURT'S PRIOR OPINION DATED AUGUST 15, 2014 IS HEREBY WITHDRAWN
Richard Allen Larson was charged with two counts of aggravated assault for threatening
his ex-girlfriend with a firearm and threatening or attempting to shoot her new boyfriend. The case proceeded to trial and the jury found Larson guilty on both counts. On appeal, Larson argues that the district court erred by overruling his objection that a testifying officer was not qualified to give opinion testimony concerning the direction a bullet had traveled. He also contends that the court erred by allowing the prosecutor to make inaccurate statements during closing argument concerning the intent requisite for commission of assault.
Lora Adams moved to Idaho and briefly dated Larson, her neighbor. After the relationship soured and Adams attempted to avoid contact, Larson was upset and made repeated efforts to convince Adams to continue dating him. Adams later began dating another man, John Bilsky. It is undisputed that Larson and Adams had an altercation, that Bilsky arrived shortly thereafter, and that Bilsky and Larson both discharged their firearms. The parties sharply dispute the details of the occurrence, but Larson was charged with two counts of aggravated assault, Idaho Code § § 18-901, 18-905.
At Larson's trial, Adams and Bilsky testified as follows. They said that Larson was chronically abusive toward Adams, having repeatedly verbally and physically threatened her, and that Larson's violent behavior escalated on the day in question. In order for Adams to reach her home, she had to travel over a private road, a portion of which passed through Larson's property. Larson had placed two cables across the road at points on his property, using them as makeshift gates. Because of Larson's threatening behavior, Adams began notifying Bilsky when she was heading home and would be passing over Larson's land.
On the afternoon in question, Adams called Bilsky to tell him she was nearly home. When Adams came upon the first cable gate, she saw Larson in the vicinity and she relayed that information to Bilsky. Adams got out of her SUV to move the cable so that she could pass. Larson approached her angrily and drunkenly, shouted obscenities, and physically prevented her from getting back into her SUV. Adams tried to get away, but Larson slammed her hand in the vehicle door. Adams responded by kicking Larson. Larson then punched Adams and threw her to the ground, straddled her, and placed his gun on her face, saying, " I'm going to kill you and I want you to be more afraid than you've ever been in your life." Keeping one hand on his gun, Larson choked Adams with his other hand until Bilsky arrived.
When Adams did not arrive at home quickly, Bilsky became worried. He grabbed his revolver and walked from Adams' home toward the first gate. As he approached and walked around to the passenger side of Adams' vehicle, he saw Larson. Larson pointed his gun at Bilsky and took a position at the rear of Adams' SUV. From that position, Larson told Bilsky to leave and threatened to kill him. Bilsky took a position at the front driver's side of the SUV and moved back and away from the vehicle, keeping the vehicle between himself and Larson. Thereafter, Larson, standing at the rear driver's side of the vehicle, fired several shots at Bilsky, but did not hit him. Bilsky returned fire. After Bilsky's second shot, Larson lowered his weapon. Bilsky and Adams fled in the SUV, afraid that Larson would reload and continue firing. In support of Adams' testimony, the State submitted pictures of her injuries. Those photographs depict redness circling the front of Adams' neck, over her trachea; red marks on both sides of Adams' face with two parallel scratches on the left side of her face; redness on Adams' torso; and a cut on Adams' hand.
Larson's testimony sharply contradicted the testimony of Adams and Bilsky. Larson said that he went to speak to Adams because she had repeatedly removed the surveyor's tape placed on the cable gates to increase visibility and refused to close the cable gates after passing through them, leaving the cables in the snow bank. When Adams arrived at the gate, he respectfully asked her to close the gate after passing through. Adams responded by apologizing for her interference with the gate. As Adams went back to her
SUV, Larson tripped and fell into the vehicle's door, trapping Adams' hand between the door and the body of the vehicle and injuring her. Larson immediately apologized, but Adams attacked Larson, trying to knee him in the groin. Larson defended himself by pushing her into the snow. While Larson and Adams fought, Bilsky arrived at the area. Larson did not see him arrive, but heard him ask Adams if she was alright. Before Larson could turn around and face Bilsky, Bilsky shot Larson. Larson drew and repeatedly discharged his firearm until he was out of bullets. He testified that he " emptied [his] weapon just instinctually" because he had been shot and that he did not point his weapon at either Bilsky or Adams. ...