Appeal
from the District Court of Natrona County The Honorable
Daniel L. Forgey, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; Eric M. Alden, Senior Assistant Public
Defender. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
Caitlin F. Young, Assistant Attorney General. Argument by Ms.
Young.
Before
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
DAVIS,
Justice.
[¶1]
Zechariah Jones was convicted and sentenced consecutively for
attempted second-degree murder and aggravated assault and
battery. On appeal he raises two constitutional questions
relating to those sentences. We affirm.
ISSUES
[¶2]
We restate the issues as follows:
1. Is cumulative punishment for attempted second-degree
murder and aggravated assault and battery, as defined under
Wyo. Stat. Ann. § 6-2-502(a)(ii), [1] barred by that
aspect of the double jeopardy clauses of the state and
federal constitutions which protects against multiple
punishments for a single offense?
2. If those crimes share the same elements, does that fact
render them unconstitutionally vague?
FACTS
[¶3]
During the summer of 2014, Zachary Albrecht attempted to get
his significant other[2] to spice up their love life by having sex
with another man. Using her Facebook account, he contacted
Jones and tried to persuade him to visit her when he was not
home. Thereafter, the woman and Jones communicated regularly
via Facebook, but she repeatedly told him she had no interest
in a sexual liaison.
[¶4]
On August 24, 2014, Albrecht came home to find his
significant other extremely upset and speaking with Jones on
her cell phone. Jones told her Albrecht was pursuing a tryst
with a woman who lived in another town, and sent her what he
claimed were texts to that effect from the other woman. The
two argued briefly about those accusations until Albrecht
took the phone from her to confront Jones. Their conversation
became heated, and Albrecht told Jones he would "kick
his ass" if they ever ran into one another. Sometime
after 4:00 p.m., Albrecht took his significant other's
phone and drove off, leaving her at home with her children.
The two men had agreed to meet at Riverview Park on the north
side of Casper to fight.
[¶5]
At approximately 6:00, Jones arrived at the park in a blue
Ford Taurus borrowed from a female friend. Albrecht also
arrived and walked toward Jones, who by this time had exited
his vehicle and stood by the door with his hands in his
pockets. According to Albrecht and two witnesses who were
nearby, the men exchanged words, Jones extended his arm
toward Albrecht, and they heard a "pop" as Jones
shot him in the upper left portion of the abdomen with a
small 22 caliber semi-automatic pistol. Jones then drove off.
The two witnesses did not see anyone with him in the blue
Taurus.
[¶6]
Both witnesses called 911 and later gave a physical
description of Jones, as well as the license plate number on
the Taurus. Albrecht identified him by name. The male witness
showed investigators where Jones had been standing when he
fired the pistol, and they found a spent .22 shell casing
nearby.
[¶7]
That evening, a surgeon discovered that the bullet had
penetrated a portion of Albrecht's liver and stomach and
lodged under the skin on the left side of his back. He was
hospitalized for several days before being released, and he
eventually had to return on September 10, 2014, for a second
surgery to remove fluid accumulations, treat infections, and
address other complications from the bullet's passage
through his upper abdomen and lower chest.
[¶8]
Casper police apprehended Jones late in the afternoon of
August 25, 2014, and the following day he was charged with
attempted second-degree murder and aggravated assault and
battery. The Information also charged that Jones had three
prior felony convictions, and thus qualified as an habitual
criminal under Wyo. Stat. Ann. § 6-10-201 as to both
counts.[3] The weapon used in the shooting was never
recovered.
[¶9]
Following a four-day trial in mid-April of 2015, a jury found
Jones guilty of both charged crimes.[4] The district court sentenced
him to a prison term of forty to fifty years for the
attempted murder, and to a term of fifteen to fifty years for
the aggravated assault and battery.[5] He timely perfected this
appeal.
DISCUSSION
Double
Jeopardy
[¶10]
Jones argues that sentencing him for both attempted murder
and assault and battery violates the double jeopardy clauses
of the state and federal constitutions, and in particular,
the bar against punishing a defendant more than once for
what, in effect, is a single offense set out in two
statutes.[6] Whether the separate provisions describe
the "same offense" is a question of legislative
intent which ...