TIMOTHY S. NICKELS, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)
Appeal from the District Court of Goshen County. The Honorable Keith G. Kautz, Judge.
For Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Attorney General. Argument by Mr. Morgan.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶1] Timothy S. Nickels was convicted by a jury of strangulation of a household member. He claims the district court erred by refusing to instruct the jury on the lesser included offense of battery. We conclude the
district court properly refused the lesser included offense instruction because there was no evidence to support it.
[¶2] We affirm.
[¶3] Mr. Nickels states the issue on appeal as:
Did the district court err when it refused to give appellant's requested lesser included offense instruction?
The State presents a similar issue, although it is phrased in more detail.
[¶4] Mr. Nickels and the victim, Diana Evans, were involved in a long-term romantic relationship. Earlier in their relationship, they had hitchhiked to truck stops in various states, where Mr. Nickels earned money by polishing wheels and tanks on semi-trucks. Although the victim decided in 2003 to move to Torrington, Wyoming to live near her mother, she and Mr. Nickels continued their relationship and he would occasionally stay with her.
[¶5] On October 21, 2013, Mr. Nickels was staying with the victim in Torrington. They drank beer throughout the afternoon and Mr. Nickels became " aggravated" because he believed he had not been paid fairly for some work he had done for an acquaintance. Mr. Nickels was planning to leave the next day, and the victim decided to quit drinking that evening so she could drive him out of town. They went to bed and he asked if they were going to make love, to which she responded, " No."
[¶6] Mr. Nickels climbed on top of the victim with a leg on either side of her, put both hands on her neck, and pressed so hard she could not breathe. She thought she passed out and he let go. After she took a few breaths, he began to press on her neck again. Mr. Nickels let go the second time, said he was leaving and demanded that she give him some money. After she complied, Mr. Nickels left the house.
[¶7] The victim made sure the doors were locked and called a friend, who advised her to contact law enforcement. She called 911 and Sergeant Matthew Davis of the Torrington Police Department responded. At first, the victim would not answer the door because she did not know who was knocking and was afraid Mr. Nickels had returned. After Sgt. Davis identified himself, she let him in. He interviewed her and took photographs of her neck. Emergency medical technicians were summoned to the house, but she refused to be transported to the hospital.
[¶8] The State charged Mr. Nickels with one count of strangulation of a household member in violation of Wyo. Stat. Ann. § 6-2-509 (a)(i) and (b) (LexisNexis 2013), and he pleaded not guilty. The matter went to trial before a jury on March 24, 2014. The district court refused Mr. Nickels' request for a lesser included offense instruction, concluding there was no evidence to support giving such an instruction. The ...