                IN THE SUPREME COURT, STATE OF WYOMING

                                             2015 WY 158

                                                                 OCTOBER TERM, A.D. 2015

                                                                          December 29, 2015


KILEY J. CECIL,

Appellant
(Defendant),

v.                                                                      S-15-0105

THE STATE OF WYOMING,

Appellee
(Plaintiff).


                      Appeal from the District Court of Converse County
                           The Honorable John C. Brooks, Judge

Representing 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.

Representing 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.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
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.

                                         ISSUES

[¶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)?

                                         FACTS

[¶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.


                                            1
                  (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).1

[¶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


1
    Wyo. Stat. Ann. § 6-2-509 provides as follows:

                  § 6-2-509. Strangulation of a household member; penalty.

                  (a) A person is guilty of strangulation of a household member if he
                  intentionally and knowingly or recklessly causes or attempts to cause
                  bodily injury to a household member by impeding the normal breathing
                  or circulation of blood by:

                          (i) Applying pressure on the throat or neck of the household
                          member; or

                          (ii) Blocking the nose and mouth of the household member.

                  (b) Strangulation of a household member is a felony punishable by
                  imprisonment for not more than five (5) years.




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use of a drawn deadly weapon, with which the defendant is charged, also includes the
lesser offense of Assault.” Neither party objected to the instructions.

[¶6] The jury found Appellant guilty of aggravated assault and battery under Wyo. Stat.
Ann. § 6-2-502(a)(i). On the verdict form, the jury noted its determination that Appellant
attempted to cause serious bodily injury intentionally and knowingly. 2 The jury
concluded that Appellant was not guilty of threatening to use a drawn deadly weapon
under Wyo. Stat. Ann. § 6-2-502(a)(iii) but concluded that Appellant was guilty of the
“lesser included offense” of simple assault. The jury also found Appellant guilty of
strangulation of a household member under Wyo. Stat. Ann. § 6-2-509(a)(i).3

[¶7] The district court sentenced Appellant to six to eight years for the aggravated
assault conviction, six months for the assault conviction, and four to five years for the
strangulation conviction. The court ordered the sentences to be served concurrently.
This appeal followed.

                                               DISCUSSION

          Aggravated Assault and Battery

[¶8] In his first issue, Appellant contends the district court erred in instructing the jury
on the elements of aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(i).


2
    The verdict form provides as follows:

                                            Subparts 1a, 1b, and 1c

                   1a.)    Was such attempted aggravated assault and battery done
                   intentionally?

                           YES     X                        NO

                   1b.)   Was such attempted aggravated assault and battery done
                   knowingly?

                           YES     X                        NO

                   1c.)    Was such attempted aggravated assault and battery done
                   recklessly under circumstances which showed an extreme indifference to
                   human life?

                           YES                              NO      X
3
    Appellant does not challenge his strangulation conviction in this appeal.




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The elements of the crime were set forth in Instruction No. 15:

                   The elements of the crime of Attempted Aggravated
             Assault and Battery, as charged in Count I of this case are:

                    1. On or about the 4th day of April, 2014
                    2. In the County of Converse Wyoming
                    3. The Defendant, Kiley J. Cecil
                    4. Intentionally OR Knowingly OR Recklessly under
                       circumstances which showed an extreme
                       indifference to human life
                    5. Attempted to cause serious bodily injury, to
                       Michelle Devault.

The jury was provided with a definition of “attempt” in Instruction No. 27:

                    “Attempt” is defined as an act which was a substantial
             step towards committing the crime charged in this case.

                    As used in this Instruction, a substantial step means
             conduct which is strongly corroborative of the firmness of the
             defendant’s intention to complete the commission of the
             crime.

[¶9] According to Appellant, the instructions should have stated that “attempt”
requires, in addition to a substantial step towards the commission of the crime, an “intent
to commit the crime” of aggravated assault and battery. Appellant relies on the language
of Wyo. Stat. Ann. § 6-1-301, Wyoming’s general attempt statute. That statute provides
as follows:

             § 6-1-301. Attempt; renunciation of criminal intention.

             (a) A person is guilty of an attempt to commit a crime if:

                    (i) With the intent to commit the crime, he does any
                    act which is a substantial step towards commission of
                    the crime. A “substantial step” is conduct which is
                    strongly corroborative of the firmness of the person’s
                    intention to complete the commission of the crime[.]

Based on this statute, Appellant claims that “attempt[ing] to cause serious bodily injury”
under Wyo. Stat. Ann. § 6-2-502(a)(i) is a specific intent crime requiring proof that the
defendant intended to commit the crime set forth in the statute.


                                            4
[¶10] Appellant did not object to the instructions at trial. As a result, we review for
plain error. Miller v. State, 2015 WY 68, ¶ 6, 350 P.3d 264, 265 (Wyo. 2015). To
establish plain error, the appellant must prove (1) the record clearly reflects the alleged
error; (2) the existence of a clear and unequivocal rule of law and that there was a clear
and obvious transgression of that rule of law; and (3) the error adversely affected a
substantial right resulting in material prejudice to him. Rathbun v. State, 2011 WY 116, ¶
28, 257 P.3d 29, 38 (Wyo. 2011). To establish material prejudice, an appellant “must
show a reasonable probability that [he] would have received a more favorable verdict in
the absence of the error.” Pendleton v. State, 2008 WY 36, ¶ 11, 180 P.3d 212, 216
(Wyo. 2008). Appellant has met the first prong of the plain error test because the
incident alleged as error is clearly reflected in the jury instructions contained in the
record. We are unable to conclude, however, that Appellant has established a
transgression of a clear and unequivocal rule of law.

[¶11] We have previously addressed the elements of Wyoming’s aggravated assault and
battery statute in Schafer v. State, 2008 WY 149, 197 P.3d 1247 (Wyo. 2008), involving
a threat to use a drawn deadly weapon under Wyo. Stat. Ann. § 6-2-502(a)(iii). In that
case, the defendant was convicted under Wyoming’s general attempt statute, as applied
through Wyoming’s aggravated assault and battery statute. On appeal, the defendant
argued that “it is not possible to attempt to make an actual threat of physical injury while
employing a deadly weapon – rather, until the threat is actually made, there is no crime.”
Id., ¶ 8, 197 P.3d at 1249. We agreed. We began our analysis by noting that specific
statutes prevail over more general statutes:

                     The ultimate question in this appeal is whether the
              Wyoming Legislature intended attempted aggravated assault
              to be a criminal offense. The answer to the question, in this
              Court’s estimation, is that the Legislature did not so intend.
              The general attempt statute, Wyo. Stat. Ann. § 6-1-301
              (LexisNexis 2007), is applicable to all crimes unless the
              specific criminal statute, in this case the aggravated assault
              and battery statute, also relates to attempts. This Court has
              generally described the reach of the general attempt statute as
              follows:

                     [T]he general attempt statute is operative when applied
                     to statutes where the legislature has not already
                     spoken; and where the legislature has enacted a special
                     statute making the attempt a crime, the special statute
                     will prevail. This construction gives effect to both
                     statutes and a policy that ambiguity concerning the
                     application of criminal statutes should be resolved in


                                             5
                     favor of lenity.

Schafer, ¶ 12, 197 P.3d at 1250. Ultimately, we concluded that the legislature did not
intend for Wyo. Stat. Ann. § 6-1-301 to apply to the aggravated assault and battery
statute:

              The intent of the Wyoming Legislature is manifest in its
              inclusion of “attempt” in subsection (a)(ii) and the omission
              of “attempt” from subsection (a)(iii). Given this specific
              language, we conclude the Wyoming Legislature did not
              intend for the general attempt statute to be applicable to the
              specific aggravated assault and battery statute. This is the
              only construction that can give effect to all the provisions of
              the statute, and ensure the manifest legislative intent is carried
              out. By overlaying the general attempt statute on the
              aggravated assault and battery statute, this Court would
              judicially establish a crime that the Wyoming Legislature
              never intended. See generally In re James M., 9 Cal. 3d 517,
              108 Cal. Rptr. 89, 510 P.2d 33 (Cal. 1973); Steven James
              Malamuth, Comment, A Final Assault on Attempted Assaults,
              14 Santa Clara Lawyer 96 (1973).

Schafer, ¶ 15, 197 P.3d at 1250-51. Accordingly, we reversed the appellant’s conviction
for attempted aggravated assault and battery. Id., ¶ 19, 197 P.3d at 1251.

[¶12] Following our decision in Schafer, the legislature changed the language of Wyo.
Stat. Ann. § 6-2-502(a)(i) from “causes serious bodily injury” to “causes or attempts to
cause serious bodily injury.” As a result of this amendment, the legislature has
specifically made an attempt to cause serious bodily injury a crime under Wyo. Stat. Ann.
§ 6-2-502(a)(i). This amendment renders the general attempt statute, Wyo. Stat. Ann. §
6-1-301 (LexisNexis 2007), inapplicable to the specific crime charged in this case.
Schafer, ¶ 12, 197 P.3d at 1250.

[¶13] Although the general attempt statute is inapplicable here, it appears that the jury
instruction defining attempt was derived from that statute. Appellant contends that the
jury instruction was incomplete because it failed to instruct the jury that an attempt must
include the “intent to commit the crime” as set forth in Wyo. Stat. Ann. § 6-1-301. We
disagree.

[¶14] District courts have substantial latitude to tailor jury instructions to the facts of the
case. Adekale v. State, 2015 WY 30, ¶ 37, 344 P.3d 761, 770 (Wyo. 2015). “A
trial court does not abuse its discretion by referring the jury to instructions that, when
viewed as a whole and in the context of the entire trial, fairly and adequately cover the


                                              6
issues.” Budder v. State, 2010 WY 123, ¶ 7, 238 P.3d 575, 577 (Wyo. 2010). As long as
the instructions correctly state the law and cover the relevant issues, there is no reversible
error. Adekale, ¶ 37, 344 P.3d at 770. We have previously recognized that “[a] court
need not give an instruction defining a term unless it has a technical legal meaning so
different from its ordinary meaning that the jury, without further explanation, would
misunderstand its import in relation to the factual circumstances.” Butz v. State, 2007
WY 152, ¶ 19, 167 P.3d 650, 655 (Wyo. 2007). Because the technical legal meaning of
“attempt” as set forth in Wyo. Stat. Ann. § 6-1-301 is not applicable to Wyo. Stat. Ann. §
6-2-502(a)(i), it was not necessary for the court to give an instruction defining the term.
Nonetheless, the instruction provided by the court was not inconsistent with the ordinary
meaning of the word “attempt,” which is “to make an effort to do, accomplish”
something. Webster’s Third New International Dictionary 140 (2002). In accordance
with the elements of the crime as set forth by the legislature, the jury was instructed that
the crime of aggravated assault and battery requires an intentional, knowing, or reckless
attempt to cause serious bodily injury. As part of its verdict in this case, the jury
determined that Appellant intentionally and knowingly attempted to cause serious bodily
injury. The jury instructions fairly and adequately covered the relevant issues and
correctly stated the law. Accordingly, we find no transgression of a clear and
unequivocal rule of law. Appellant has failed to establish plain error.

       Simple Assault

[¶15] In his second issue, Appellant contends the jury was improperly instructed that
simple assault, as set forth in Wyo. Stat. Ann. § 6-2-501(a), is a lesser included offense of
aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii). He claims that
his right to due process of law was violated as a result of the instructional error.
Appellant also contends the instruction violated his right to be free from double jeopardy
because “there is a serious likelihood of jury confusion as to the act which might have
constituted the alleged lesser offense.”

[¶16] The State concedes that assault is not a lesser included offense of aggravated
assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii). It claims, however, that
Appellant waived his right to appeal this issue under the doctrine of invited error because
Appellant requested the jury instruction at issue. The State also asserts that the error was
not prejudicial because “Simple assault is still a lesser crime than aggravated assault and
battery, and defense counsel’s strategy of having the jury convict Cecil of a less serious
offense was successful.” The State does not respond to Appellant’s argument that the
instruction violated his double jeopardy rights.

[¶17] The determination of whether an offense is a lesser included offense of a charged
crime is a question of law that we review de novo. State v. Keffer, 860 P.2d 1118, 1137
(Wyo. 1993). We agree with the parties that assault is not a lesser included offense of
aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii). We apply the test


                                              7
set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed.
306 (1932): “The applicable rule is that where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not.” Stating the test another way, a crime is a lesser included
offense “if its elements are a subset” of the elements of the greater offense. Bowlsby v.
State, 2013 WY 72, ¶ 9, 302 P.3d 913, 916 (Wyo. 2013).

[¶18] Appellant was convicted of simple assault under Wyo. Stat. Ann. § 6-2-501, which
provides as follows:

              § 6-2-501. Simple assault; battery; penalties.

              (a) A person is guilty of simple assault if, having the present
              ability to do so, he unlawfully attempts to cause bodily injury
              to another.

The jury was instructed that assault is a lesser included offense of aggravated assault and
battery under Wyo. Stat. Ann. § 6-2-502(a)(iii), which states:

              § 6-2-502. Aggravated assault and battery; penalty.

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

                     ...

                     (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 elements of a crime — the facts requiring proof under the Blockburger test — are
derived from the statute defining that crime. Bowlsby, ¶ 10, 302 P.3d at 917. As is
plainly apparent from the language of the statutes, assault does not require a threat to use
a drawn deadly weapon and aggravated assault and battery does not require an attempt to
cause bodily injury to another. Accordingly, assault is not a lesser included offense of
aggravated assault and battery under Wyo. Stat. Ann. § 6-2-502(a)(iii).

[¶19] We turn, then, to the question of whether Appellant is prohibited from raising this
issue under the doctrine of invited error. We have stated that “As applied to jury
instructions, the invited error doctrine provides that use of an instruction proposed by the
appellant may not be grounds for reversal unless such was ‘necessarily prejudicial.’”
Butcher v. State, 2005 WY 146, ¶ 29, 123 P.3d 543, 552 (Wyo. 2005). In the present


                                             8
case, Appellant was found guilty of attempt to cause serious bodily injury, under Wyo.
Stat. Ann. § 6-2-502(a)(i), and attempt to cause bodily injury, as defined in Wyo. Stat.
Ann. § 6-2-501. However, the jury apparently rejected the State’s claim that Appellant
had threatened to use a drawn deadly weapon under Wyo. Stat. Ann. § 6-2-502(a)(iii).
As we have previously noted, the double jeopardy clause prohibits multiple punishments
for the same offense. Based on the record before us, it is not possible to conclude that the
jury based its simple assault verdict on actions different than those that contributed to the
aggravated assault verdict. Additionally, the Wyoming Constitution prohibits a person
from being convicted of a crime not charged. Craney v. State, 798 P.2d 1202, 1206
(Wyo. 1990) (citing Wyo. Const. art. 1, § 10). A defendant is materially prejudiced when
there is no notice of the charges to be defended against. Craney, 798 P.2d at 1206. In
this case, Appellant was charged with aggravated assault and battery under Wyo. Stat.
Ann. § 6-2-502(a)(iii) but was convicted of the uncharged crime of simple assault.
Accordingly, we find that the instruction was necessarily prejudicial to Appellant. As a
result, we reverse Appellant’s simple assault conviction.

                                      CONCLUSION

[¶20] Appellant’s conviction and sentence for aggravated assault and battery under
Wyo. Stat. Ann. § 6-2-502(a)(i) is affirmed. We reverse Appellant’s assault conviction
and remand to the district court for entry of an order vacating that conviction and
sentence.




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