from the District Court of Sublette County The Honorable
Marvin L. Tyler, Judge.
Representing Appellant: Lauretta Y. Welch, Pinedale, Wyoming.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General; Samuel
L. Williams, Assistant Attorney General. Argument by Mr.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
A jury convicted Don Birch of aggravated assault and battery
and breach of peace. Mr. Birch argues his convictions should
be reversed because the district court failed to properly
instruct the jury, the court erroneously allowed the State to
present evidence of uncharged misconduct, and there was
insufficient evidence to support his aggravated assault and
battery conviction. We affirm.
Mr. Birch raises three issues in this appeal:
I. Whether the district court erred when it failed to
instruct the jury on Wyoming law regarding "actual
II. Whether the district court erred in allowing the
presentation of 404(b) evidence.
III. Whether the State presented sufficient evidence to
support an aggravated assault and battery conviction.
Mr. Birch and his wife, Esther, were neighbors with Gordon
and Cheri Johnson in a rural subdivision in Merna, Wyoming.
The neighbors were friendly with one another until 2010, when
they had a dispute over the property line of their parcels.
They have not spoken civilly to one another since that time.
On November 1, 2016, Mr. Birch visited his friend and
neighbor, Howard Leeper. Mr. Birch told Mr. Leeper he wanted
to shoot Mr. Johnson in the leg because he believed Mr.
Johnson had sabotaged some of his equipment. This statement
was consistent with other statements Mr. Birch had made to
Mr. Leeper in the prior ten days.
During the night of November 2, 2016, Mr. Johnson was
awakened by gunfire. He opened a window in his home and could
see and hear Mr. Birch yelling Mr. and Mrs. Johnson's
names and firing his gun. Mr. Birch also yelled, "Come
over here, I'm going to kill you." The next morning,
Mr. Johnson reported Mr. Birch's conduct to the Sublette
County Sheriff's Department. Deputy Zack Semmons
responded to the Johnson home, and after speaking with Mr.
Johnson, spoke with Mr. Birch. Mr. Birch told Deputy Semmons
that he "fucking hates" Mr. Johnson and that Mr.
Birch was an expert marksman when he was in the Army. He also
freely admitted he shot his gun thirty times while yelling
obscenities at the Johnsons the evening before. Mr. Birch
showed Deputy Semmons where he was shooting his gun, and from
that location Deputy Semmons could clearly see the Johnson
On November 7, 2016, the Johnsons met with Sheriff K.C. Lehr
to discuss concerns the Johnsons had about their welfare and
property due to Mr. Birch's actions. Sheriff Lehr
explained how to obtain a protection order and also advised
them to continue to report and attempt to record any similar
behavior by Mr. Birch in the future.
Later in the evening of November 7th, the Johnsons arrived at
the home of their neighbors, Pete and Melanie Peterson, for
dinner. Shortly after arriving at the Peterson home, Mr.
Johnson received a text message from another neighbor, who
informed Mr. Johnson that Mr. Birch was shooting his gun near
Mr. Johnson's home again. Mr. Johnson and Mr. Peterson
made the approximately ten-minute drive to the Johnson
property to assess the situation. When the men arrived, they
could see Mr. Birch outside shooting his gun while screaming
vulgarities about the Johnsons. They listened to Mr. Birch
for twenty to thirty minutes and then Mr. Birch got into his
truck and left. The two returned to the Peterson home and Mr.
Johnson reported the incident to the Sublette County
The Johnsons returned to their home at approximately 7:30
p.m., and shortly thereafter Mr. Birch again began to shoot
his gun while screaming at the Johnsons. Mr. Birch yelled at
the Johnsons using their first names and copious amounts of
profanity and vile name-calling, saying things such as,
"I'm gonna fuckin' shoot your ass, you
fuckin' piece of shit[, ]" and "I'm gonna
fuckin' kill you, you fuckin' piece of shit. Whoo.
Call the cops. Are you scared, Gordon? Are you scared,
motherfucker? Are you scared, fucker? You should be, you
fuckin' piece of shit." The Johnsons could see Mr.
Birch during his tirade. The couple turned off the lights in
their home and used Mr. Johnson's cellphone to audio
record Mr. Birch's behavior. Mr. Birch continued shooting
his gun and yelling until approximately midnight. The next
day, Mr. Johnson contacted the sheriff's department again
about the incident and provided the cell phone recordings. On
November 17, 2016, Mr. Birch was arrested and charged, based
upon the November 7th conduct, with aggravated assault and
battery, in violation of Wyo. Stat. Ann. §
6-2-502(a)(iii) (LexisNexis 2016), and breach of peace, in
violation of Wyo. Stat. Ann. § 6-6-102(a) (LexisNexis
The case proceeded to trial, and a jury convicted Mr. Birch
of both charged counts. The district court sentenced Mr.
Birch to three to five years imprisonment for the aggravated
assault and battery conviction, but suspended that sentence
in favor of five years of probation. The court sentenced Mr.
Birch to a concurrent 180 days in jail for the breach of
peace conviction, but suspended that sentence in favor of six
months of probation. Mr. Birch filed a timely notice of
appeal. Other facts will be discussed as necessary below.
The district court gave the jury the following instruction
regarding the ...