Birch v. State, 421 P.3d 528

Don Birch, neighbor to Gordon and Cheri Johnson, repeatedly fired a gun and screamed threats toward the Johnsons on November 7, 2016; the Johnsons recorded about 32 minutes of the tirade including threats to kill and audible gunshots.
Birch had earlier made threats to a neighbor (Nov. 1) and reportedly fired near the Johnsons' home on Nov. 2; police were informed of those events and the Nov. 2 incident was included in the affidavit of probable cause.
Birch was charged with aggravated assault and battery (threat to use a drawn deadly weapon) and breach of the peace based on the Nov. 7 conduct; a jury convicted him on both counts.
At trial the district court refused Birch’s proposed, more detailed instruction defining “threatens to use” but gave the Wyoming pattern instruction including that an "actual threat" is required.
The court admitted evidence of the Nov. 2 incident without performing the Rule 404(b)/Gleason analysis, concluding it was part of the charged conduct; Birch objected.
On appeal Birch challenged (1) the jury instruction about "actual threat," (2) admission of uncharged-misconduct evidence (Nov. 2), and (3) sufficiency of the evidence for aggravated assault and battery.

Issue	Birch's Argument	State's Argument	Held
Whether court erred by refusing Birch's proposed instruction further defining "threatens to use" (actual threat)	Proposed instruction necessary to clarify required "actual threat" element	Pattern instruction correctly states law; extra definition unnecessary and could confuse jury	No error: district court did not abuse discretion; pattern instruction was adequate
Whether Nov. 2 incident was admissible or constituted uncharged misconduct under W.R.E. 404(b)	Nov. 2 incident was uncharged misconduct; court should have done Gleason analysis before admitting it	Evidence was intrinsic/inseparable or logically intertwined with Nov. 7 conduct	Court erred in admitting Nov. 2 evidence without Gleason analysis, but error was harmless
Whether evidence was "intrinsic" (so not 404(b))	N/A (Court found it was uncharged misconduct)	Argued Nov. 2 incident was intrinsic/logically intertwined with Nov. 7 events	Nov. 2 was not intrinsic; it was uncharged misconduct requiring Gleason analysis
Sufficiency of evidence that Birch "threatened to use a drawn deadly weapon"	N/A—asserted insufficient proof of intent to use firearm to inflict harm	Recording, witness testimony, visual observation of muzzle flashes and repeated verbal threats support conviction	Sufficient evidence: conviction for aggravated assault and battery affirmed

Johnston v. State, 747 P.2d 1132 (Wyo. 1987) (approved broader jury definition of “threat” in context where jury expressed confusion)
Cardenas v. State, 811 P.2d 989 (Wyo. 1991) ("threat" need not be specially defined; ordinary meaning suffices)
Streitmatter v. State, 981 P.2d 921 (Wyo. 1999) (no special legal meaning for "threats to use" beyond ordinary understanding)
Gleason v. State, 57 P.3d 332 (Wyo. 2002) (sets forth required 404(b) procedure and Gleason factors analysis)
Marquess v. State, 256 P.3d 506 (Wyo. 2011) (overt acts may be admissible as inseparable parts of a charged conspiracy; court relied on this but appellate court found it inapplicable)
Roeschlein v. State, 168 P.3d 468 (Wyo. 2007) (defines "intrinsic" other-act evidence as inextricably intertwined or part of a single episode)
Lindstrom v. State, 343 P.3d 792 (Wyo. 2015) (reemphasizes requirement to apply Gleason factors for uncharged-misconduct evidence)
Hill v. State, 371 P.3d 553 (Wyo. 2016) (a shot or firearm use need not be pointed directly at victim for jury to infer threat)
Ewing v. State, 157 P.3d 943 (Wyo. 2007) (statements plus presence of a firearm may permit inference that weapon was drawn and used to threaten)