               IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 85

                                                         APRIL TERM, A.D. 2015

                                                                   June 16, 2015


TIMOTHY S. NICKELS,

Appellant
(Defendant),

v.                                                   S-14-0245

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Goshen County
                          The Honorable Keith G. Kautz, Judge

Representing Appellant:
      Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate
      Counsel. Argument by Mr. Morgan.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney
      General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.


Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.

[¶1] Timothy S. Nickels was convicted by a jury of strangulation of a household
member. He claims the district court erred by refusing to instruct the jury on the lesser
included offense of battery. We conclude the district court properly refused the lesser
included offense instruction because there was no evidence to support it.

[¶2]   We affirm.

                                           ISSUE

[¶3]   Mr. Nickels states the issue on appeal as:

              Did the district court err when it refused to give appellant’s
              requested lesser included offense instruction?

The State presents a similar issue, although it is phrased in more detail.

                                          FACTS

[¶4] Mr. Nickels and the victim, Diana Evans, were involved in a long-term romantic
relationship. Earlier in their relationship, they had hitchhiked to truck stops in various
states, where Mr. Nickels earned money by polishing wheels and tanks on semi-trucks.
Although the victim decided in 2003 to move to Torrington, Wyoming to live near her
mother, she and Mr. Nickels continued their relationship and he would occasionally stay
with her.

[¶5] On October 21, 2013, Mr. Nickels was staying with the victim in Torrington.
They drank beer throughout the afternoon and Mr. Nickels became “aggravated” because
he believed he had not been paid fairly for some work he had done for an acquaintance.
Mr. Nickels was planning to leave the next day, and the victim decided to quit drinking
that evening so she could drive him out of town. They went to bed and he asked if they
were going to make love, to which she responded, “No.”

[¶6] Mr. Nickels climbed on top of the victim with a leg on either side of her, put both
hands on her neck, and pressed so hard she could not breathe. She thought she passed out
and he let go. After she took a few breaths, he began to press on her neck again. Mr.
Nickels let go the second time, said he was leaving and demanded that she give him some
money. After she complied, Mr. Nickels left the house.

[¶7] The victim made sure the doors were locked and called a friend, who advised her
to contact law enforcement. She called 911 and Sergeant Matthew Davis of the

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Torrington Police Department responded. At first, the victim would not answer the door
because she did not know who was knocking and was afraid Mr. Nickels had returned.
After Sgt. Davis identified himself, she let him in. He interviewed her and took
photographs of her neck. Emergency medical technicians were summoned to the house,
but she refused to be transported to the hospital.

[¶8] The State charged Mr. Nickels with one count of strangulation of a household
member in violation of Wyo. Stat. Ann. § 6-2-509 (a)(i) and (b) (LexisNexis 2013), and
he pleaded not guilty. The matter went to trial before a jury on March 24, 2014. The
district court refused Mr. Nickels’ request for a lesser included offense instruction,
concluding there was no evidence to support giving such an instruction. The jury
returned a guilty verdict, and Mr. Nickels appealed after the district court sentenced him.

                               STANDARD OF REVIEW

[¶9] Mr. Nickels objected to the district court’s failure to give the lesser included
offense instructions. We, therefore, review his claim that the district court erred de novo.
Silva v. State, 2012 WY 37, ¶ 23, 271 P.3d 443, 450 (Wyo. 2012).

                                      DISCUSSION

[¶10] Mr. Nickels was convicted of strangulation of a household member, which is a
felony under § 6-2-509:

              (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.

              (c) For purposes of this section, “household member” means
              as defined in W.S. 35-21-102(a)(iv)(A) through (D), (G) and
              (H).



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The district court narrowed the elements of the crime in the instruction given at trial:

                1. On or about October 21, 2013;
                2. In Goshen County, Wyoming;
                3. The Defendant, Timothy S. Nickels;
                4. Did intentionally and knowingly;
                5. Cause bodily injury to [the victim], a household member;
                6. By impeding her normal breathing;
                7. By applying pressure on [the] throat or neck of [the
                   victim].
[¶11] Mr. Nickels argues the district court committed reversible error by failing to
instruct the jury on the lesser included offenses of battery, under Wyo. Stat. Ann. § 6-2-
501(b) (LexisNexis 2013),1 and domestic battery, under Wyo. Stat. Ann. § 6-2-511
(LexisNexis 2014). Mr. Nickels’ appellate argument on § 6-2-511 is misplaced because
that statute did not go into effect until July 1, 2014. He committed his crime in 2013 and
the trial was held in March 2014. At that time, domestic violence was addressed by § 6-
2-501(e) and (f), which provided enhanced penalties for repeat convictions of crimes
against household members.

[¶12] Consequently, the question for our determination is whether the district court
should have instructed the jury on the offense of battery as set out in § 6-2-501(b):

                (b) A person is guilty of battery if he intentionally, knowingly
                or recklessly causes bodily injury to another person by use of
                physical force.


Under subsection (d) of the statute, battery is a misdemeanor.



1
 At trial, the defense also requested a lesser included offense instruction on unlawful contact, under § 6-
2-501(g):
         (g) A person is guilty of unlawful contact if he:
                  (i) Touches another person in a rude, insolent or angry manner without
         intentionally using sufficient physical force to cause bodily injury to another; or
                  (ii) Recklessly causes bodily injury to another person.
Mr. Nickels does not, however, argue on appeal that the district court erred by refusing to instruct the jury
on that offense.
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[¶13] Our precedent on lesser included offense instructions is long and complicated. We
attempted to put to rest various problems with the governing law in State v. Keffer, 860
P.2d 1118 (Wyo. 1993). One of the issues addressed in that case was how to determine
whether a crime is actually a lesser included offense. In making that determination,
W.R.Cr.P. 31(c) governs:

                (c) Conviction of Lesser Offense. – The defendant may be
                found guilty of an offense necessarily included in the offense
                charged or of an attempt to commit either the offense charged
                or an offense necessarily included therein if the attempt is an
                offense.

Based upon the “necessarily included” language of Rule 31(c), applicable federal
precedent and earlier Wyoming case law, we concluded the statutory elements or
“Blockburger test”2 should be used to determine whether a statute sets out a lesser
included offense. Keffer, 860 P.2d at 1133-34. The general Blockburger test states:

                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.

Silva, ¶ 24, n.4, 271 P.3d at 451, n.4, quoting Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932). The test is used in various contexts to
protect a criminal defendant’s right to be free from double jeopardy. Keffer, 860 P.2d at
1131; United States Const. Amend. V; Wyo. Const. art. 1, § 11.

[¶14] When applied to a request for a lesser included offense instruction, the statutory
elements test directs:

                one offense is not ‘necessarily included’ in another unless the
                elements of the lesser offense are a subset of the elements of
                the charged offense. Where the lesser offense requires an
                element not required for the greater offense, no instruction is
                to be given under [Wyoming Rule 31(c)].

Keffer, 860 P.2d at 1134, quoting Schmuck v. United States, 489 U.S. 705, 716, 109 S. Ct.
1443, 1450, 103 L. Ed. 2d 734 (1989). See also Dean v. State, 2003 WY 128, ¶¶ 14–19,
77 P.3d 692, 697–99 (Wyo. 2003). This portion of the analysis involves only a

2
 The Blockburger test is named after the seminal case of Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932).
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comparison of the elements of the statutes with no reference whatsoever to the evidence
produced at trial. Keffer, 860 P.2d at 1130.

[¶15] If the court determines the lesser included offense meets the statutory elements
test, it then must analyze whether the evidence supports giving a lesser included offense
instruction. Keffer provided a comprehensive analysis of the options for addressing the
sufficiency of the evidence to support a lesser included offense issue. At issue was a
five-part test from United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir. 1980), that
this Court had been using to determine whether a lesser included offense instruction
should be given. Under the Chapman test, a lesser included offense instruction was
warranted if the following requirements were satisfied:

              (1) a proper request is made; (2) the elements of the lesser
              offense are identical to part of the elements of the greater
              offense; (3) there is some evidence that would justify
              conviction of the lesser offense; (4) the proof on the element
              or elements differentiating the two crimes is sufficiently in
              dispute so that the jury may consistently find the defendant
              innocent of the greater and guilty of the lesser-included
              offense, and (5) there is mutuality, i.e., a charge may be
              demanded by either the United States or the defense.

Keffer, 860 P.2d at 1124-25, quoting Chapman, 615 F.2d at 1299. The third and fourth
elements of the Chapman test addressed the trial evidence.

[¶16] We decided in Keffer, 860 P.2d at 1134-36, that the Chapman test encouraged the
trial court to delve too far into evidentiary issues which should be answered by the jury.
We, therefore, adopted a less structured analysis to determine if the evidence supports a
lesser included offense instruction. Under the Keffer test, the quantum of evidence
required to give a lesser included offense instruction is minimal and a requested
instruction should be given “if there are in dispute factual issues that would permit a jury
rationally to find the defendant guilty of the lesser offense and acquit the defendant of the
greater.” Id. at 1136.

[¶17] In truth, the differences between the two tests are slight. Given the similarities, it
is not surprising that this Court has continued in some circumstances to use the more
structured Chapman analysis. Dean, ¶ 18, 77 P.3d at 698, and cases collected therein;
Snow v. State, 2012 WY 18, ¶ 15, 270 P.3d 656, 661 (Wyo. 2012) (using five-part test);
Silva, ¶ 24, 271 P.3d at 451 (using Keffer test). Dean recognized the apparent ambiguity
in our precedent but did not further address the issue. Instead, we employed the
consistent rule that “a lesser-included offense instruction is not to be given in the absence
of some minimal evidentiary support.” Dean, ¶ 19, 77 P.3d at 699. Stated another way, a
“lesser included offense instruction should be given where there is some evidence to

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support it and the jury rationally could acquit on [the greater offense] and convict on [the
lesser offense].” Id., ¶ 34, 77 P.3d at 702.

[¶18] With these legal principles in mind, we turn to the particulars of this case, starting
with the statutory elements test. The parties seem to agree that the elements of battery in
§ 6-2-501(b) are a subset of the elements of strangulation of a household member in § 6-
2-509. To prove the crime of battery, the prosecution must establish the defendant (1)
intentionally, knowingly or recklessly; (2) caused bodily injury; (3) to another person; (4)
by use of physical force. Section 6-2-501(b). The crime of strangulation of a household
member, as charged in this case, requires proof that the defendant (1) intentionally and
knowingly; (2) caused bodily injury; (3) to the victim, who was a household member; (4)
by impeding her normal breathing; (5) by applying pressure to her throat or neck.
Section 6-2-509. The crimes of battery and strangulation of a household member share
the same mental element and require bodily injury by some type of physical force.
Strangulation also requires proof that the victim was a household member and the
defendant caused bodily injury by impeding the victim’s normal breathing with the
specific physical force of pressure to the throat or neck. The elements of the lesser crime
(battery) are, therefore, a subset of the greater crime (strangulation).

[¶19] The next question, and the one at issue in this case, is whether the trial evidence
supported instructing the jury on the crime of battery. Mr. Nickels argues the record
contains the requisite “minimal” evidence the jury could have relied upon to rationally
acquit him of strangulation while convicting him of battery. He claims the evidence
could be interpreted as showing the victim exaggerated his actions and, although he
caused her bodily injury, he did not impede her normal breathing by pressing on her
throat or neck. In support of his argument that he did not impede her breathing, Mr.
Nickels asserts the victim sustained only slight injuries. Mr. Nickels directs us to
testimony about Sgt. Davis’ report in which he observed “very slight redness” and “very
slight swelling” on her neck. Sgt. Davis expanded upon the observations in his report
when he testified at trial. He stated the redness and swelling on the victim’s neck was
visible to the eye and, although it was not as thick as a finger, it was “more than you
would have gotten should you have snagged a necklace or pulled a collar too tight.”

[¶20] The photographs admitted into evidence at the trial showed red marks on the
victim’s neck on the day of the incident. Sgt. Davis stated that he could see “raised
swelling around the perimeter of the neck. Right above the collar bone there was a big
discoloration, redness that went pretty much from ear to ear.” He also noticed that her
voice was “very, very raspy,” she was having difficulty speaking and swallowing and
was obviously in pain.

[¶21] The problem with Mr. Nickels’ argument is that the nature of the resulting injury
does not differentiate between strangulation and battery. Both crimes required proof of
“bodily injury,” which was defined for the jury as “physical pain” in accordance with the

                                             6
applicable definition in Wyo. Stat. Ann. § 6-1-104(a)(i) (LexisNexis 2013). The victim
testified she was in pain and Sgt. Davis observed that she was in pain.

[¶22] The elements that set strangulation apart from battery are the impediment of
normal breathing by the application of pressure to the neck or throat. The victim testified
she could not breathe because Mr. Nickels pressed on her neck and throat with both
hands two different times. She stated that she may have passed out during the first
strangulation incident because she was unable to breathe. There was no evidence that
Mr. Nickels physically attacked the victim in a different manner than by applying
pressure to her neck or throat or that the pressure was sufficient to cause her pain but was
not sufficient to impede her breathing. If the jury had chosen not to believe the victim, it
would have acquitted Mr. Nickels of strangulation.

[¶23] Mr. Nickels also argues the testimony of another inmate in the county jail supports
his argument that the jury could have rationally acquitted him of strangulation but
convicted him of battery. The inmate testified that he and Mr. Nickels had talked about
the crime while they were both in the jail. He said Mr. Nickels told him that he had
grabbed his girlfriend by the throat and choked her. The inmate testified that Mr. Nickels
said he did not choke her “as hard as he could” because he did not want to accidentally
kill her. He only wanted to “make his message clear” and the message was that he was
not “playing around.”

[¶24] The inmate’s testimony does not support the lesser included instruction. In fact, it
confirms that Mr. Nickels impeded the victim’s normal breathing by applying pressure to
her throat. Mr. Nickels told the inmate he had grabbed the victim by the throat and
choked her. “Choke” is defined as “to make normal breathing difficult or impossible by
compressing the throat with strong external pressure.” Webster’s Third New Int’l
Dictionary 396 (2002). The fact that he did not choke the victim as hard as he could
because he did not want to kill her did not change the fact that he applied pressure to her
throat to impede her breathing in accordance with the statutory definition of
strangulation.

[¶25] The district court rejected defense counsel’s request for the lesser included offense
instruction at the jury instruction conference after the close of evidence. It stated:

              If this was not strangulation, it didn’t happen. There’s no
              evidence of any lesser kind of physical contact than the hands
              around the throat, so there’s no evidence upon which the jury
              could find those lesser includeds.

The district court’s statement was a correct recitation of the principle that a lesser
included offense “jury instruction should not be given . . . where the facts and the defense
are such that the defendant, if guilty at all, is guilty of the greater offense.” Dean, ¶ 34,

                                             7
77 P.3d at 702. On the evidence presented in this case, it would not have been rational
for the jury to determine that Mr. Nickels committed battery upon the victim but he did
not strangle her.

[¶26] Finally, Mr. Nickels argues the lesser included instruction should have been given
because there was a factual dispute about whether he and the victim were household
members. Section 6-2-509(c) states: “[f]or purposes of this section, ‘household member’
means as defined in W.S. 35-21-102(a)(iv)(A) through (D), (G) and (H).” The jury
instructions in Mr. Nickels’ case tracked the statutory definitions of household member
set out in Wyo. Stat. Ann. § 35-21-102(a)(iv)(B), (D) and (H) (LexisNexis 2013), by
including: “persons living with each other as if married;” “persons formerly living with
each other as if married;” or “persons who are in, or have been in, a dating relationship.”
The evidence in this case established that, at the very least, Mr. Nickels and the victim
were involved in a dating relationship. There was absolutely no evidentiary basis for the
jury to determine the victim was not a “household member,” and thereby rationally acquit
him of strangulation but convict him of battery.

[¶27] Affirmed.




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