from the District Court of Natrona County The Honorable
Catherine E. Wilking, Judge
Representing Appellan Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson [*] , Chief Appellate
Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Ms. Olson.
Representing Appellee Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
Caitlin F. Harper, Assistant Attorney General. Argument by
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted Tamani T'Angelis Thompson of three
counts of aggravated assault and battery and one count of
domestic battery (third offense) for an attack upon his
girlfriend (hereinafter referred to as "the
victim"). It acquitted him of one count of aggravated
assault and battery. Mr. Thompson admitted his criminal
record made him a habitual criminal. Consequently, the
district court sentenced him to enhanced penalties under the
habitual criminal statute.
On appeal, Mr. Thompson claims there was insufficient
evidence to support his aggravated assault and battery
convictions. As to two of the counts, he asserts the evidence
did not support the jury's conclusion that he threatened
the victim with a drawn deadly weapon. With regard to the
other aggravated assault and battery count, Mr. Thompson
claims there was insufficient evidence that the victim
suffered a serious bodily injury. Mr. Thompson also maintains
the district court committed reversible error when it allowed
the jury to hear testimony from a domestic violence expert
and evidence that the victim had been abused in prior
relationships. Finally, he claims the district court imposed
illegal sentences because the two felony convictions used for
the habitual criminal enhancement were not separately brought
and tried, or, in the alternative, that his counsel was
ineffective for allowing Mr. Thompson to stipulate to the
Mr. Thompson raises the following issues on appeal, which we
re-order to consider the issues regarding his convictions
before considering the legality of his sentences:
I. Was there insufficient evidence to support [Mr.
Thompson's] two convictions of aggravated assault [and
battery] - threatening with a drawn deadly weapon?
II. Was there insufficient evidence that [the victim]
suffered a "protracted" loss to support conviction
on Count 4, aggravated assault and battery - serious bodily
III. Did reversible error occur when the testimony of a
"domestic violence" expert was allowed and when
irrelevant evidence of the alleged victim's . . . past
history was elicited and argued?
IV. Has [Mr. Thompson] received an illegal sentence?
Alternatively, was [Mr. Thompson's] trial counsel
ineffective when he allowed [Mr. Thompson] to stipulate to
the habitual criminal enhancement, when [Mr. Thompson's]
two previous convictions were not separately tried?
State articulates the same issues, although in more detail.
Mr. Thompson and the victim lived together in Casper,
Wyoming, for several months. In February 2016, Mr. Thompson
began seeing an ex-girlfriend, and the victim kicked him out
of the home. Mr. Thompson and the victim later reconciled,
but he frequently stayed elsewhere. During this same period,
Mr. Thompson introduced the victim to his friend who was
living at Community Alternatives of Casper (CAC). The friend
stayed at the victim's house on a "weekend
pass" from CAC, and they had sex.
On the evening of May 4, 2016, Mr. Thompson was at the house
when the victim got home from work. She had had a bad day and
asked Mr. Thompson to go buy her beer and some
"Fireball" whiskey. He bought her a twenty-ounce
bottle of beer and the whisky. They drank throughout the
evening, and Mr. Thompson went out and bought the victim
another bottle of beer, more beer for himself, and more
The victim and Mr. Thompson went to bed, and the victim
awakened to being hit in the face and cursed at by Mr.
Thompson. He looked at her phone and asked if she was
"f***ing somebody." He continued to punch her in
the face and head, and she put her hands up to protect
At some point during the assault, the victim offered Mr.
Thompson the remainder of the beer in the bottle she had
placed beside the bed earlier. He grabbed the beer bottle and
said he was going to "smash" it over her head if
she did not tell him the truth about having sex with his
friend. She admitted that she "did it."
Although Mr. Thompson did not raise the beer bottle like he
was going to hit the victim with it and he set the bottle
down without breaking it, he continued to assault her. She
tried to leave the bedroom, but he pushed her back down on
the bed. The victim said that he kicked or stomped her with
his shoes. He then grabbed a clay art piece (sculpture) her
daughter had made and said he was going to kill her or
"smash [her] face in." She begged him not to hit
her, and he set the clay art piece down.
The victim was eventually able to retreat to the bathroom,
but Mr. Thompson followed her and again punched her in the
face and called her names. Mr. Thompson left the house, but
threatened to come back and hurt or kill her if she called
the police. Nevertheless, the victim called the police and
sought help from her daughter who was asleep elsewhere in the
house. The victim was transported by ambulance to the
hospital emergency room. The police officers recorded many
injuries to the victim's head, face, hands, arms, and
sides. The victim saw her primary care physician a few days
later and complained of difficulty hearing out of her left
ear. A specialist subsequently diagnosed her as having a
ruptured or perforated ear drum.
The State charged Mr. Thompson with five felony counts.
Counts One and Two alleged Mr. Thompson committed aggravated
assault and battery by threatening to use drawn deadly
weapons (beer bottle and clay art piece) on the victim. Count
Three alleged he committed aggravated assault and battery by
causing bodily injury to the victim with a deadly weapon (his
shoes). Count Four alleged Mr. Thompson committed aggravated
assault and battery by causing serious bodily injury to the
victim. Count Five alleged Mr. Thompson battered a household
member (third offense). As to each aggravated assault and
battery charge, the State also alleged that Mr. Thompson was
a habitual criminal because the charge was a violent felony
and he had previously been convicted of felonies on two or
more charges separately brought and tried.
The case was tried to a jury in October 2016, and the jury
convicted Mr. Thompson of all counts except Count Three. Mr.
Thompson admitted that he previously had been convicted of
two felonies separately brought and tried and the district
court adjudged him a habitual criminal. The court sentenced
him to prison terms of eighteen to twenty years on each of
the aggravated assault and battery convictions and three to
five years on the domestic battery conviction, with all the
sentences to run concurrently. Mr. Thompson filed a timely
notice of appeal.
Sufficiency of the Evidence of Aggravated Assault and
Mr. Thompson was convicted of two counts of aggravated
assault and battery for threatening to use a drawn deadly
weapon upon the victim and one count of aggravated assault
and battery for causing serious bodily injury to the victim.
He moved, under W.R.Cr.P. 29, for judgments of acquittal on
all three counts after the State rested, and again after the
trial. The district court denied the motions.
Mr. Thompson claims the evidence was insufficient to support
the jury's verdicts. In reviewing his challenges to the
sufficiency of the evidence,
[w]e do not consider "whether or not the evidence was
sufficient to establish guilt beyond a reasonable doubt, but
[instead] whether or not the evidence could reasonably
support such a finding by the factfinder." Hill v.
State, 2016 WY 27, ¶ 13, 371 P.3d 553, 558 (Wyo.
2016). "We will not reweigh the evidence nor will we
re-examine the credibility of the witnesses."
Hill, 2016 WY 27, ¶ 12, 371 P.3d at 558. We
review the sufficiency of the evidence "from this
perspective because we defer to the jury as the fact-finder
and assume they believed only the evidence adverse to the
defendant since they found the defendant guilty beyond a
reasonable doubt." Oldman [v. State],
2015 WY 121, ¶ 5, 359 P.3d [964, ] 966 [(Wyo. 2015)].
Mraz v. State, 2016 WY 85, ¶ 19, 378 P.3d 280,
286 (Wyo. 2016) (quoting Bean v. State, 2016 WY 48,
¶ 45, 373 P.3d 372, 387 (Wyo. 2016)) (some citations
omitted). See also, Blevins v. State, 2017
WY 43, ¶ 7, 393 P.3d 1249, 1251 (Wyo. 2017).
[T]his Court examines the evidence in the light most
favorable to the State. We accept all evidence favorable to
the State as true and give the State's evidence every
favorable inference which can reasonably and fairly be drawn
from it. We also disregard any evidence favorable to the
appellant that conflicts with the State's evidence.
Harnden v. State, 2016 WY 92, ¶ 5, 378 P.3d
611, 612-13 (Wyo. 2016) (quoting Pena v. State, 2015
WY 149, ¶ 16, 361 P.3d 862, 866 (Wyo. 2015)).
Worley v. State, 2017 WY 3, ¶ 17, 386 P.3d 765,
771 (Wyo. 2017) (some citations omitted).
Threatening to Use a Drawn Deadly Weapon
Mr. Thompson was convicted of two counts under Wyo. Stat.
Ann. § 6-2-502(a)(iii) (LexisNexis 2017) for threatening
the victim with a beer bottle and a clay art piece. He claims
the State did not present sufficient evidence that he
actually threatened her with the objects. Section 6-2-502
states in relevant part:
person is guilty of aggravated assault and battery if
. . . .
The "threatens to use" element in §
6-2-502(a)(iii) requires "proof of an actual threat of
physical injury during the act of employing a deadly
weapon." Johnston v. State, 747 P.2d 1132, 1134
(Wyo. 1987). See also, Hill, ¶ 15, 371
P.3d at 558-59; Levengood v. State, 2014 WY 138,
¶ 15, 336 P.3d 1201, 1204 (Wyo. 2014). The "mere
presence" of a weapon is not sufficient to satisfy the
"threatens to use" element of the crime.
Hill, ¶ 15, 371 P.3d at 559 (citing
Gunderson v. State, 925 P.2d 1300, 1304 (Wyo.
1996)). A threat under § 6-2-502(a)(iii) is
"'an expression of an intention to inflict pain,
injury, or punishment. It may be expressed by words or acts,
or a combination of words and acts.'" Hill,
¶ 15, 371 P.3d at 559 (quoting Johnston, 747
P.2d at 1135). The jury may consider "'all of the
circumstances of the case [in deciding] whether the
defendant's words and acts amounted to an express or
implied statement of his intention to use a drawn deadly
weapon to inflict pain, injury, or punishment.'"
The victim testified that she awoke to Mr. Thompson punching
her. He had her phone and was upset because he had seen
something on it indicating that she had sex with his friend.
He asked her if she was "f***ing" someone and she
responded by asking him who he was talking about. Mr.
Thompson continued to punch the victim, and she attempted to
shield her face with her hands. She testified:
I was still saying I didn't know what he was talking
about. I needed him to tell me what he was talking about.
And, at that point, I looked over on my ledge, and -
'cause the beer that I didn't finish - I asked him if
he wanted it, and he said he would drink it. . . .
He grabbed the bottle and he said, I will smash this over
your head if you just don't - if you don't ...