CONCHO — Justin Scott Wiest, 42 of Concho has been in the Apache County Jail on $550,000 in bonds, accused of two counts of attempted murder in one file, and an aggravated assault in another. On Nov. 3, his newly-retained lawyer and Wiest appeared for a preliminary hearing in the case, to counter the state’s implied allegation that there is probable cause to even bring the charges in light of the presence of “justification” evidence in Wiest’s favor. Justification is what Arizona calls self defense.
It might be noted that in such a defense, the accused might not deny acting in a certain way, but urges that his actions were justified under the law. In the first file, testimony at the hearing said that Wiest on May 2, shot a shotgun off in the presence of, but not at, a trespasser, as the defense characterized the alleged victim.
Regarding the two attempted murder charges, testimony said that in September, Wiest allegedly fired five shots at a vehicle containing two adults, a mother and son, the driver of which, Wiest claims, had tried to run him over and was turning the car around to try it again. Wiest is presumed by law to be innocent.
Wiest (pronounced WEEST) is a married father of three children who live along County Road 8601 in Apache County and was gainfully employed as a herdsman at a hog production facility in Snowflake and Holbrook. The property is described as a “ranch” which belongs to Wiest’s wife’s family, and for the last two-and-one-half years, Wiest has been living and running cattle on the ranch, about 25-50 head, he said. There was no cattle there in May or September, because of some family dispute which was described alternately as involving a will or a receivership.
The May incident
In May 2, Wiest and a companion were apparently out tending to the ranch when they came across a man in a truck driving along County Road 8500. That road runs beside the boundary of the ranch.The man had a dog, which was loose, and Wiest testified that the animal had been running on ranch property. Wiest told the man that dogs were not allowed on the ranch because there had been a number of incidences of dogs attacking cattle. An argument ensued and during the exchange, Wiest reportedly fired off a shotgun.
Testimony from the responding ASCO sergeant and Wiest himself indicate that the gun was not pointed at the man, even though the man told deputies that he saw a “wad” fly past him. A wad is material placed in between the gun powder and pellet shot in a typical round used in shotguns; the wad in this case was not found or recovered by ASCO. Wiest’s companion (who was at the hearing but did not testify) had confirmed to the deputy during the interview in May that the shotgun was pointed away from the man when Wiest discharged it.
Wiest was not arrested then, but he was later charged with aggravated assault for placing the man in reasonable apprehension of serious physical injury or death, a Class 3 Felony, and disorderly conduct with a weapon, a Class 6 Felony. The county attorney’s office filed the complaint with the court, the court set a date and sent a summons with the date on it to Wiest by mail, but the ranch house Wiest lived in didn’t have a mailbox, and the mail was returned. Because Wiest didn’t show for the court date (which Wiest says he didn’t know about) a warrant issued requiring a $50,000 bond, and he was charged with a brand new crime of failure to appear.
The September incident
Testimony abut the September case established that due to recent weather, CR 8500 had become impassible. However, a road of sorts which during the hearing was called the “two track road” veers off CR 8500 and leads to certain residences. Wiest claims that the road runs through the ranch property and Wiest has maintained a barbed wire fence horizontally across it with a “cowboy gate” which allows authorized users of the road to pass through the fence. There is an easement testified about, somewhere in the mix that apparently allows residents to access their homes, but the easement doesn’t appear to be on the ranch property and in any event was impassible as well, according to testimony.
That’s when a mother and adult son in a small red or maroon car were trying to get to their home which they usually accessed by CR 8500 and/or the easement. On that September afternoon, they used the two track road which Wiest claims is for ranch use only. The travelers came across the fence and the gate. According to Wiest, the fence had been rolled back at least four times recently and he was tending to it when he came across the small red car. He explained to the driver (the son) and the passenger (the mom) that the road was not for public use, that they were on private property and were not allowed to be there. Wiest testified that he believed that they had damaged the fence; the gate was laying flat on the ground. The driver was out of the car during this exchange.
The driver is alleged to have said something like, “Well, I have to do what I have to do,” and was going to pass through the opening, anyway. At that point, Wiest strode 20 feet from the fence to his vehicle and retrieved a .22 caliber rifle. That’s when the passenger got out of the car, shouting “no guns, no guns!” and approached Wiest. She told the responding ACSO deputy (who had been on the job for eight weeks) and/or his supervisor, that she grabbed the rifle, made Wiest “trip,” and the gun discharged one round. The sequence of all that isn’t clear, but in the encounter, Wiest lost a necklace which the ACSO couldn’t find, but which Wiest’s wife later did, in the dirt.
When Wiest produced the rifle, the driver got back in the car, yelled at mother to do that same and began to drive. Wiest testified that the driver tried to run him over. At this point, the facts get murky. The bullet holes in the car are at its rear, trunk and back window, which implies the car was driving away from Wiest, unless of course, the car was in reverse. Wiest testified that the driver was trying to run over Wiest again, and was turning around to do that.
The ACSO deputy testified that three rounds hit the trunk, one hit the driver’s side “C” pillar (the structure which supports the car’s roof, the rear-most one) and the back window was shattered. It seems the car got through the fence after all; Whist testified that it hit a “T-bar” he was putting up and red paint transfer was found on the fence.
When it was over, everybody called the cops; Wiest, driver and passenger. The ACSO responded and arrested Wiest, not for anything to do with the car shooting, but on the $50,000 warrant that issued after the summons for the May incident was mailed to an address that “doesn’t exist” in the words of defense counsel. For the September incident, Wiest was eventually charged with six counts including two counts of attempted murder. He was assigned a court appointed attorney but then retained private counsel who demanded the preliminary hearing.
It’s well known that in a criminal case the state has to prove the charges beyond a reasonable doubt. However, if the justification defense is raised, and it has been in this case, the state then has to prove that not only did the defendant act in an illegal manner, but that he or she was not acting in self defense, and they have to prove that last part beyond a reasonable doubt.
At the preliminary hearing stage, the court must decide if the state has established “probable cause” for the charges, a burden way lower than beyond a reasonable doubt. In this case once the justification defense was raised, the court probably focused on whether the state produced some probable cause to believe that Wiest did not act in self-defense. Presiding Judge Michael Latham found for the state on both files and noted that it is up to a jury to decide if Wiest was justified in shooting off a shotgun in May under defense of property laws, and whether Wiest was justified in shooting the red car in defense of his person, in September.
Finally, the court heard arguments about lowering the bond amounts. The court kept the $50,000 bond on the May incident but lowered to $250,000 the bond on the September incident. It had been $500,000. Both bonds don’t have to be cash; they can be a pledge of property, “secured” bonds, stated the judge.
The next stage of the case is the arraignment and that has not yet been scheduled.