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Thompson v. State

Supreme Court of Wyoming

January 17, 2018

TAMANI T'ANGELIS THOMPSON, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal 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 Ms. Harper.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, JUSTICE.

         [¶1] 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.

         [¶2] 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 underlying felonies.

         [¶3] We affirm.


         [¶4] 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 injury?
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?

         The State articulates the same issues, although in more detail.


         [¶5] 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.

         [¶6] 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 whiskey.

         [¶7] 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 herself.

         [¶8] 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."

         [¶9] 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.

         [¶10] 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.

         [¶11] 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.

         [¶12] 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.


         I. Sufficiency of the Evidence of Aggravated Assault and Battery

         [¶13] 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.[1]

         [¶14] 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).

         A. Threatening to Use a Drawn Deadly Weapon

         [¶15] 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:

         (a) A person is guilty of aggravated assault and battery if

. . . .

         [¶16] 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.'" Id.

         [¶17] 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 ...

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