               IN THE SUPREME COURT, STATE OF WYOMING

                                       2014 WY 138

                                                         OCTOBER TERM, A.D. 2014

                                                                 November 4, 2014

KENNETH RAY LEVENGOOD,

Appellant
(Defendant),

v.                                                   S-14-0078

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Laramie County
                     The Honorable Thomas T.C. Campbell, Judge

Representing Appellant:
      Donald A. Cole, Cole & Cole, Cheyenne, Wyoming.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F.
      Young, Assistant Attorney General.

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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] Kenneth Levengood was convicted of aggravated assault and battery under Wyo.
Stat. Ann. § 6-2-502(a)(iii) for threatening to use a drawn deadly weapon on his ex-
girlfriend. On appeal, Mr. Levengood contends there was insufficient evidence that he
threatened to use the weapon. We affirm.

                                              ISSUE

[¶2] Was the evidence presented at trial sufficient to prove Mr. Levengood threatened
to use the knife he was carrying?

                                              FACTS

[¶3] On the morning of January 9, 2013, as twelve-year-old A.L. got ready for school,
her father, Mr. Levengood, opened her bedroom door with an eighteen-inch kitchen knife
in his hand and told her to go back to sleep. Realizing he was drunk and “acting strange,”
A.L. followed her father into the hallway and told him to go to the kitchen and stay there.
Mr. Levengood did not respond, but clenched his jaw, and with knife still in hand walked
to the kitchen.

[¶4] A.L. “had never seen him act like that before,” and, scared that he would hurt her,
his ex-girlfriend, or himself, she entered the bedroom Mr. Levengood shared with his ex-
girlfriend, Aundrea Thompson,1 to tell her what was going on. Ms. Thompson told A.L.
to lock the bedroom door and then she tried calling two members of Mr. Levengood’s
family. Mr. Levengood rattled the doorknob while asking to be let in, to which Ms.
Thompson responded, “No.” Mr. Levengood forced the bedroom door open and entered,
holding the knife down at his side. Ms. Thompson told him to leave, and he complied.
A.L. locked the bedroom door once again.

[¶5] Unable to reach Mr. Levengood’s relatives, Ms. Thompson called 911. A.L.
testified that while Ms. Thompson was talking to the 911 dispatcher, “[D]ad came again
to the door, and it sounded like he was kind of like knocking, kind of like pounding on
it.”

[¶6] Officer Michael Sutton, a crime scene technician with the Cheyenne Police
Department who arrived shortly thereafter, estimated the bedroom door contained eight to
eleven independent marks “consistent with knife marks that I’ve seen on other cases.”
Towards the top of the door, and down to the center, “was a very long and sort of

1
  Testimony at trial indicated that Ms. Thompson and Mr. Levengood had recently ended their
relationship. Ms. Thompson would remain in the house until the end of the month, at which time she was
going to move to Laramie, Wyoming, to begin school.


                                                  1
pyramid-shaped . . . or triangular-shaped slash mark which appeared to be done with
some sharp object.” At several other locations, Officer Sutton reported “smaller holes
that looked like something was poked into the door, very skinny, which I would attribute
to what I’ve seen with knife wounds[.]” In one location there was an entry hole followed
by a four-to-five inch slash that appeared to have been created by a knife pushed into the
door and then forced down through the door using “significant force.” Officer Sutton
also observed an “unusual” large dent and pry marks on the top of the doorknob, as well
as “jab” marks in the door jamb, appearing as though “something had been stuck into the
door, and then it appeared as someone pried down on the doorknob, like someone was
trying to damage the doorknob.” At trial, commenting on the marks, Officer Sutton
testified:

                      You know, typically when I see marks like this in a
              door, this is from a very violent situation. It’s not the first
              time I’ve seen marks like this. I’ve seen marks like this in
              walls. I’ve seen marks like this in doors. I’ve seen marks
              like this in people. And every time I’ve seen marks like this
              it was a very violent situation.

[¶7]   A.L. further testified:

              And then he was able to get the door open again. And I think
              he could tell that Andrea [sic] was on the phone with the
              police, and so he put the knife -- he walked over into the
              room and he put the knife on the stand, on the TV stand, and
              he walked out.

[¶8] The police arrived soon after, and as Ms. Thompson and A.L. left the bedroom,
A.L. noticed marks on the bedroom door and walls of the hallway outside the bedroom.

[¶9] When Officer Sutton went down the hallway leading to the bedroom, he observed
fresh slash marks on the hallway walls. Regarding these marks, Officer Sutton testified,
“You know, in my training and experience, when you see slash marks like this . . . these
are typically of a violent situation. It indicates to me that someone’s very upset, and has
made these marks in anger.”

[¶10] Mr. Levengood was arrested and charged with one count of aggravated assault and
battery for threatening to use a drawn deadly weapon against Ms. Thompson. Wyo. Stat.
Ann. § 6-2-502(a)(iii) (LexisNexis 2013). Following a bench trial, the district court
found Mr. Levengood guilty. He was sentenced to serve four to five years in prison,
suspended in favor of three years supervised probation. Mr. Levengood timely filed this
appeal.



                                            2
                                STANDARD OF REVIEW
[¶11] Mr. Levengood contends the State presented insufficient evidence to establish
beyond a reasonable doubt that he threatened to use a drawn deadly weapon. Our
standard for reviewing the sufficiency of evidence is well established.

              [W]e review that evidence with the assumption that the
              evidence of the prevailing party is true, disregard the
              evidence favoring the unsuccessful party, and give the
              prevailing party the benefit of every favorable inference that
              we may reasonably draw from the evidence. We will not
              reweigh the evidence nor will we re-examine the credibility
              of the witnesses.

Brown v. State, 2014 WY 104, ¶ 8, 332 P.3d 1168, 1171-72 (Wyo. 2014) (quoting Perritt
v. State, 2005 WY 121, ¶ 9, 120 P.3d 181, 186 (Wyo. 2005)).

[¶12] “[W]e must determine whether a rational trier of fact could find the essential
elements of the crime were proven beyond a reasonable doubt.” Hart v. State, 2003 WY
12, ¶ 8, 62 P.3d 566, 569 (Wyo. 2003) (quoting Williams v. State, 986 P.2d 855, 857
(Wyo. 1999)). In other words, we 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.” Broom v. State, 695
P.2d 640, 642 (Wyo. 1985). We review the decision from a criminal bench trial the same
as we would that of a jury trial. Romero v. State, 2010 WY 84, ¶ 6, 233 P.3d 951, 953
(Wyo. 2010) (citing Fitzgerald v. State, 599 P.2d 572, 574 (Wyo. 1979) (“The function of
the finder of fact in [criminal] cases tried to a court is identical to that in cases tried to
juries, and the same rules are applicable with respect to the standards and principles
applied in appellate review.”)).

                                       DISCUSSION

[¶13] Mr. Levengood was convicted of aggravated assault and battery under Wyo. Stat.
Ann. § 6-2-502(a)(iii), which reads,

              (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[.]

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[¶14] Section 6-2-502(a)(iii) is a general rather than a specific intent crime. Cox v.
State, 829 P.2d 1183, 1185 (Wyo. 1992); Simmons v. State, 674 P.2d 1294, 1297 (Wyo.
1984); Carfield v. State, 649 P.2d 865, 869 (Wyo. 1982). In Dean v. State, 668 P.2d 639
(Wyo. 1983), we explained the difference.

               When the definition of a crime consists of only the
               description of a particular act, without reference to intent to
               do a further act or achieve a future consequence the fact that
               the defendant intended to do the proscribed act makes that
               crime a general criminal intent offense. When the definition
               refers to defendant’s intent to do some further act or achieve
               some additional consequence, the crime is deemed to be one
               of specific intent.

Id. at 642 (citations, quotation marks, and emphasis omitted).

[¶15] As a general intent crime, the language, “[t]hreatens to use,” describes what a
defendant must do with a drawn deadly weapon to be guilty of aggravated assault under
§ 6-2-502(a)(iii). Dean, 668 P.2d at 642. We have held that “‘threatens to use’ 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) (internal citation omitted). In
Johnston, we approved the trial court’s definition of “threat:”

                       A threat 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 or acts. Considering all the
               circumstances of the case, you must decide 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. at 1135.

[¶16] In Johnston, appellant Johnston, observed an altercation between two relatives.
Id. at 1133. Johnston retrieved a knife that was dislodged during the altercation and
approached one of the two relatives, brandishing the knife in the area of the person’s face
and neck. Id. The victim testified that Johnston nicked him with the knife. Id. Johnston
claimed that the only threat he made towards the victim was possessing the knife while
questioning: “You like to play with knives?” Id. He was convicted of aggravated assault
under § 6-2-502(a)(iii). Id.

[¶17] In Johnston’s appeal, we looked to the circumstances of the altercation in order to
determine whether the jury could properly infer a threatening employment of the knife as


                                               4
an expression of intention to inflict pain or injury. Id. at 1135. Giving every favorable
inference to the State’s evidence, we concluded:

               Appellant was a forty-three-year old, 6’ 3” man, weighing
               245 pounds, towering over McDaneld, a nineteen-year-old, 5’
               11” boy, weighing 155 pounds; “working,” i.e., opening and
               closing, the butterfly knife as he approached within inches of
               the boy’s throat; nicking the boy; only to be interrupted in the
               further employment of the knife by the advent of McDaneld’s
               mother onto the scene.

                      Under these circumstances, not only could the jury
               properly have inferred a threatening employment of the
               drawn knife as an expression of an intention to inflict pain
               and injury, but also as an accomplishment of that expression
               as manifested by the nicked and bloodied throat. These were
               reasonable inferences that the jury was entitled to draw from
               the evidence before it.

Id. at 1137.

[¶18] In Cox v. State, 829 P.2d 1183, 1186 (Wyo. 1992), the highly-intoxicated
defendant approached a police officer while slashing back and forth with a hunting knife.
We explained that “actual threat,” requires that the alleged threat be measured by the
“defendant’s conduct and not by the victim’s reaction.” We also stated that “[a]s a
general intent crime, aggravated assault requires only that intent which may be inferred
from doing the act which constitutes the offense charged; i.e., slashing back and forth
with the hunting knife.” Id. (citing Carfield, 649 P.2d at 869; Sanchez v. State, 567 P.2d
270, 279 (Wyo. 1977)).

[¶19] We are not concerned with the subjective reaction of the victim. Instead, we must
objectively consider the actions of the defendant, and decide whether a rational trier of
fact could infer from Mr. Levengood’s words and acts an intention to use a drawn deadly
weapon to inflict pain, injury, or punishment. Here, there is undisputed evidence from
Mr. Levengood’s daughter that he was drunk and “acting strange.” She also reported that
a 240-pound Mr. Levengood twice violently forced his way through a locked door with a
knife. The evidence includes a number of photographic exhibits detailing the significant
damage Mr. Levengood inflicted upon the hallway and bedroom door while trying to gain
entry to the bedroom. Finally, we have the testimony of Officer Sutton who concluded,
“every time I’ve seen marks like this it was a very violent situation.” Construing this
undisputed evidence and the reasonable inferences drawn therefrom in the light most
favorable to the State, we conclude that a rational trier of fact could find that, under the
circumstances, Mr. Levengood’s conduct constituted a threat to Ms. Thompson under
§ 6-2-502(a)(iii).


                                              5
[¶20] Mr. Levengood argues that “it was not illegal for the Appellant to remain in his
home, enter the bedroom or to have a knife in his possession.” We agree that the mere
possession of a deadly weapon does not constitute a threat under § 6-2-502(a)(iii). See
Hart, 2003 WY 12, ¶ 8, 62 P.3d at 569; Johnston, 747 P.3d at 1134. However, this
harmless picture ignores the totality of the circumstances, which included a highly-
intoxicated 240-pound ex-boyfriend; in possession of an 18-inch knife; violently seeking
entry to a locked bedroom where A.L. and Ms. Thompson sought refuge; and slashing,
puncturing, and prying with the knife to gain entry.

[¶21] Mr. Levengood insists that because he never used the knife directly on Ms.
Thompson, instead attacking the door, he never “threatened to use” the knife. He argues
“[t]here is no evidence that the Appellant ever raised the knife in a threatening manner.
There are no motions involving slashing, waving, pointing, stabbing, jabbing or
throwing.” In fact, the evidence shows that Mr. Levengood did use the knife in a
threatening manner; the only question is whether he can be insulated by the presence of a
locked door between him and his victim, a door which he twice broke open.

[¶22] In Hart v. State, 62 P.3d 566 (Wyo. 2003), Hart attempted to gain entry to his ex-
wife’s parent’s residence. As Hart walked toward the home, Ms. Moline’s father went to
the front door to lock and secure it. Id. at 569. Hart opened the outer screen door and
demanded, “you better let me in.” Id. Mr. Moline responded by telling Hart to go home
and cool off or settle down. Id. Hart then pulled the gun out of his back waistband, and
showed it to Mr. Moline by holding it straight up in the air, pointed towards the sky. Id.
Hart then started to beat on the door. Id. When it was apparent that he would not gain
entry, Hart left, pausing in front of Ms. Moline’s car and discharging four rounds into her
vehicle. Id. Hart was charged and convicted under § 6-2-502(a)(iii).

[¶23] On Hart’s appeal for sufficiency of the evidence we affirmed, stating:

             Viewed in a light most favorable to the State, the facts show
             that Hart went to the front door of the Molines’ home and told
             Mr. Moline, “you better let me in.” To reinforce this demand,
             Hart held up his handgun for Mr. Moline to see. Clearly, this
             is more than mere presence of a weapon in Hart’s hand.
             Instead, given Hart’s demands, and his display of a deadly
             weapon to the man resisting the demands, we are satisfied
             that a jury could rationally conclude that Hart made an actual
             threat to use a drawn deadly weapon on Mr. Moline. We thus
             conclude there was sufficient evidence to support the
             conviction.
Id. at 569-570.



                                            6
[¶24] As in Hart, even though Mr. Levengood did not point the knife directly at Ms.
Thompson, the evidence is sufficient for a factfinder to rationally conclude that Mr.
Levengood made an actual threat to use the knife on Ms. Thompson. There is ample
evidence in the record that Mr. Levengood did indeed raise the knife to slash, puncture,
and pry at the locked bedroom door, behind which A.L. and Ms. Thompson sought
refuge. In spite of being twice refused entry, Mr. Levengood used the knife to attack the
door and gain entry to the bedroom. These circumstances justify a factfinder’s rejection
of Mr. Levengood’s contention that his violent actions should be narrowly construed as
an act of violence only to the bedroom door. Instead, considering the undisputed facts
presented at trial, a rational trier of fact could construe Mr. Levengood’s slashing,
puncturing, and prying at the bedroom door while demanding to be let in, as an actual
threat―an expression of an intention to inflict pain, injury, or punishment towards Ms.
Thompson.

                                    CONCLUSION

[¶25] Affording every favorable inference to the evidence presented by the State at trial,
we conclude that a rational trier of fact could find that, under the circumstances, Mr.
Levengood’s actions were an actual threat towards Ms. Thompson. There is sufficient
evidence to sustain the conviction and therefore we affirm.




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