This decision has been designated as "Supreme Court of Vermont Appeals Disposed of Without Published Opinion or Memorandum Decision." table in the Atlantic Reporter.
Appeal from: Superior Court, Benn. Crim. Division. DOCKET NO. 1262-11-12 Bncr. Trial Judge: Cortland Corsones.
Reiber, C. J., Skoglund, and Robinson, JJ.
In the above-entitled cause, the Clerk will enter:
Defendant appeals from a judgment of conviction, based on a jury verdict, of reckless endangerment, in violation of 13 V.S.A. § 1025, and taking game by shooting from a motor vehicle, in violation of 10 V.S.A. § 4705(a). He contends: (1) the evidence was insufficient to support the conviction of reckless endangerment; and (2) the trial court erroneously denied a motion to continue the trial for the purpose of allowing defendant to procure the attendance of a defense witness. We affirm.
The record evidence may be briefly summarized. Additional material facts will be set forth in the discussion which follows. A witness testified that, on the morning of November 24, 2012, he was driving his pick-up truck south on South Stream Road in the Town of Bennington when he observed a maroon-colored SUV stopped on the road in the opposite lane, facing north. The witness slowed to about ten to fifteen miles per hour as he approached the stopped vehicle, and was about ten yards away when he heard a gunshot. He quickly stopped and observed the passenger in the SUV pull the barrel of a rifle back inside the vehicle. The barrel was pointing west, across the road in front of the witness. The witness then observed the driver and the passenger exit the SUV; the driver ran across the road toward a field, and the passenger ejected a shell from a rifle. The witness asked the passenger what he was doing, and was told to " get the f__ out of here." The witness identified defendant as the man holding the rifle.
Two residents of a house located on South Stream Road also testified. The daughter of the owners stated that, on the morning in question, she heard " an incredibly loud gunshot," looked out the window, and saw a light-colored truck coming to a stop and a maroon SUV in the opposite lane. She then observed two individuals in hunting clothes exit the vehicle and run across the road. Her father testified that he also heard a loud shot, went outside, and observed two individuals in hunting clothes, one of whom was carrying a rifle. He started to yell at them, and the man carrying the rifle said he was " sorry." He identified the man carrying the rifle as defendant.
A warden for the Fish and Wildlife Department testified that he responded to two complaints about shots fired that morning. The warden drove to the area, parked near the location in question, and observed an SUV drive by with a deer in the rear of the vehicle. After the vehicle was stopped by another officer, the warden questioned one of the occupants, whom he identified as defendant. Defendant told the warden that he had shot deer but gave several different versions of the circumstances of the shooting, claiming that it occurred while he was either sitting or running through the woods.
Defendant testified in his own behalf. He stated that he and Terry Young, whom he considered a stepbrother, were driving in the SUV when Young saw a deer and pulled over. Defendant claimed that he then exited the vehicle with his rifle, ran across the road, and shot the deer when it froze. He acknowledged telling the warden several different versions of the shooting, which he attributed to a concern that he had shot too close to a residence.
As noted, a jury convicted defendant on charges of reckless endangerment and taking a deer by shooting from a motor vehicle. The trial court denied a subsequent motion for judgment of acquittal or new trial. This appeal followed.
Defendant contends the evidence was insufficient to support the conviction for reckless endangerment. We review de novo a motion for judgment of acquittal. State v. Vuley, 2013 VT 9, ¶ 30, 193 Vt. 622, 70 A.3d 940. The standard of review for the denial of such a motion " is whether the evidence, when viewed in the light most favorable to the State and excluding any modifying evidence, fairly and reasonably tends to convince a reasonable trier of fact that the defendant is guilty beyond a reasonable doubt." State v. Turner, 2003 VT 73, ¶ 7, 175 Vt. 595, 830 A.2d 122 (quotation omitted) (mem.).
We conclude that the evidence here was sufficient to support the judgment of conviction. The statute in question proscribes " recklessly engag[ing] in conduct which places or may place another person in danger of death or serious bodily injury." 13 V.S.A. § 1025. Defendant argues that he did not place anyone in actual danger, relying on out-of-state cases holding that merely firing a pistol in the air or in the general direction of a roadway does not constitute reckless endangerment. The evidence here, however, does not show that the danger to the driver of the other vehicle was remote or abstract. Defendant fired a rifle from inside his vehicle across a roadway while the other driver was slowly approaching from the opposite direction, was yards away, and was about to cross the line of fire. This was sufficient to reasonably support a judgment by a reasonable trier of fact that defendant was guilty beyond a reasonable doubt of recklessly placing another in danger of death or serious injury.
Defendant also contends the trial court erred in denying a continuance motion. The record discloses that, on June 17, 2013, the day before trial, defendant filed an emergency motion to continue the trial, asserting that Terry Young, the driver of the maroon SUV, was an " essential fact witness; " that defense counsel had attempted to contact Young on June 14, 2013, after learning on June 11 that trial was scheduled for June 18; that Young did not answer his phone; and that ...