Kiley J. Cecil v. State, 364 P.3d 1086

On April 4, 2014, Kiley J. Cecil assaulted his cohabitant, Michelle DeVault: hair-pulling, pushing head into a wall, stomping, knife to the throat, and strangulation; victim lost consciousness twice.
State charged Cecil with aggravated assault and battery under § 6-2-502(a)(i) (causes or attempts to cause serious bodily injury) and § 6-2-502(a)(iii) (threatening to use a drawn deadly weapon), and with strangulation of a household member.
Jury convicted Cecil of aggravated assault and battery under § 6-2-502(a)(i) (finding he intentionally and knowingly attempted to cause serious bodily injury) and of strangulation; it acquitted on the § 6-2-502(a)(iii) charge but convicted him of simple assault.
At defense request the court instructed that simple assault was a lesser included offense of the § 6-2-502(a)(iii) charge; the court also instructed on “attempt” as a substantial step but did not include language mirroring the general attempt statute’s “intent to commit the crime.”
Cecil appealed, arguing (1) the attempt instruction was legally deficient for § 6-2-502(a)(i), and (2) the court erred by instructing that simple assault is a lesser included offense of § 6-2-502(a)(iii).

Issue	Plaintiff's Argument (Cecil)	Defendant's Argument (State)	Held
Whether jury instruction on elements of aggravated assault (§ 6-2-502(a)(i)) erred by omitting an express "intent to commit the crime" element for attempt	Instruction should have tracked the general attempt statute (§ 6-1-301) and required intent to commit the underlying crime	Legislature amended § 6-2-502(a)(i) to include "attempts," making attempt an element of that specific offense; the jury was instructed that attempt is a substantial step and found intent/knowledge	Affirmed — no plain error. Court held the specific statutory language made attempt an element and the instructions fairly and adequately stated the law.
Whether simple assault (§ 6-2-501) is a lesser included offense of aggravated assault under § 6-2-502(a)(iii) (threat to use a drawn deadly weapon)	Instruction was improper; due process and double jeopardy violated because assault is not a statutory subset of the § 6-2-502(a)(iii) elements	State concedes assault is not a lesser included offense but argues invited error (defense requested instruction) and no prejudice because the jury convicted a lesser offense	Reversed (for the simple assault conviction). Court held assault is not a lesser included offense of § 6-2-502(a)(iii); the requested instruction was necessarily prejudicial because it allowed conviction of an uncharged crime.

Schafer v. State, 197 P.3d 1247 (Wyo. 2008) (addressed applicability of general attempt statute to aggravated assault and held legislature had not intended attempt to apply until statute was amended)
Rathbun v. State, 257 P.3d 29 (Wyo. 2011) (plain error test explained)
Pendleton v. State, 180 P.3d 212 (Wyo. 2008) (material prejudice/ reasonable probability standard for showing prejudice)
Butcher v. State, 123 P.3d 543 (Wyo. 2005) (invited error doctrine for jury instructions; reversal only if necessarily prejudicial)
Bowlsby v. State, 302 P.3d 913 (Wyo. 2013) (lesser-included offense test; elements must be subset)
Craney v. State, 798 P.2d 1202 (Wyo. 1990) (Wyoming Constitution prohibits conviction for an uncharged crime; notice/prejudice concerns)