KILEY J. CECIL, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff)
Appeal from the District Court of Converse County. The Honorable John C. Brooks, Judge.
For Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
For Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Monica K. Houston, Student Intern. Argument by Ms. Houston.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
BURKE, Chief Justice.
[¶1] Appellant, Kiley J. Cecil, was convicted of aggravated assault and battery, simple assault, and strangulation of a household member. He contends the jury was not properly instructed with respect to the crimes of aggravated assault and battery and simple assault. We affirm in part and reverse in part.
[¶2] Appellant presents two issues, which we restate as follows:
1. Did the district court err in instructing the jury on the elements of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i)?
2. Did the district court err in instructing the jury to consider assault as a lesser included offense of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) ?
[¶3] Appellant and the victim, Michelle DeVault, lived together in Douglas, Wyoming. On the night of April 4, 2014, Appellant arrived home from work and the victim noticed that he had been drinking. Appellant began arguing with the victim and eventually became violent. Appellant grabbed the victim by her hair and pushed her head into a wall. The victim lost consciousness and when she regained awareness, she was lying in a bathtub and Appellant was holding a knife to her throat. At that point, according to the victim, Appellant " stood up and started stomping on my face, on my jaw, and on my chest with his work boots." Appellant then began strangling her. The victim lost consciousness a second time and, when she woke up, Appellant was no longer in the room. The victim left the house, drove to a nearby bar, and then returned to the residence with friends. When she returned, Appellant was outside the house holding a knife. One of the victim's friends swatted the knife from Appellant's hands and punched him, knocking him to the ground. Soon after, the police arrived in response to a call from neighbors regarding a confrontation involving a knife.
[¶4] The State charged Appellant with one count of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i) (LexisNexis 2013) for causing or attempting to cause serious bodily injury, and one count of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii) for threatening to use a drawn deadly weapon. The statute provides, in pertinent part, as follows:
§ 6-2-502. Aggravated assault and battery; penalty.
(a) A person is guilty of aggravated assault and battery if he:
(i) Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
. . .
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another[.]
The State also charged Appellant with one count of strangulation under Wyo. Stat. Ann. § 6-2-509(a)(i).
[¶5] The matter proceeded to a jury trial. After the close of evidence, the jury was instructed as to the applicable law. Those instructions included a recitation of the elements of the crimes charged. The jury was further instructed that " attempt," as used in Wyo. Stat. Ann. § 6-2-502(a)(i), is defined as " an act which was a substantial step towards committing the crime charged in this case," and that " a substantial step means conduct which is strongly corroborative of the firmness of the defendant's intention to complete the commission of the crime." At Appellant's request, the jury was also instructed that " The offense of Attempted Aggravated Assault and Battery for threatened use of a drawn deadly ...