United States v. Wyrick

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 4, 2005
• Docket: 05-40012
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT November 4, 2005

Charles R. Fulbruge III Clerk No. 05-40012 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICHARD WYRICK,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Texas (4:03-CR-194-ALL)

Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

Richard Wyrick appeals his conviction of deprivation of rights

under color of law, in violation of 18 U.S.C. § 242. Claiming the

evidence was insufficient to show that he acted “willfully”, he

challenges the testimony of the two eyewitnesses.

Wyrick moved for judgment of acquittal at the close of the

Government’s case and at the close of his case. Following the

Government’s presenting rebuttal testimony, however, Wyrick did not

renew his motion for judgment of acquittal at the close of all

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. evidence. Nor did he do so in a post-judgment motion.

Consequently, we review his conviction to determine only whether it

resulted in a manifest miscarriage of justice. See United States

v. Green, 293 F.3d 886, 895 (5th Cir.), cert. denied, 537 U.S. 965

(2002) (holding where defendant failed to renew his motion for

judgment of acquittal at the close of all evidence, review is for

a manifest miscarriage of justice, which is found if the record is

devoid of evidence pointing to guilt); cf. United States v. Bell,

623 F.2d 1132, 1134 n.2 (5th Cir. 1980).

The record supports a finding that, while on duty as a police

officer, Wyrick unnecessarily punched James Murray in the face

because Wyrick was angry. Thus, the record is not devoid of

evidence Wyrick acted in open defiance or in reckless disregard of

Murray’s right to be free from the use of excessive force. See

United States v. Brugman, 364 F.3d 613, 616 (5th Cir.), cert.

denied, 125 S. Ct. 212 (2004); United States v. Avants, 367 F.3d

433, 449 (5th Cir. 2004). Wyrick’s challenges to the eyewitness

testimony go to the weight afforded that testimony and the

credibility of those witnesses. These matters are “solely within

the province of the jury”, and its determination will not be

reversed on appeal. See United States v. Sanchez, 961 F.2d 1169,

1173 (5th Cir.), cert. denied, 506 U.S. 918 (1992).

AFFIRMED