408 P.3d 756
Wyo.2018Background
- Thompson and his girlfriend lived together; after drinking on May 4–5, 2016 he assaulted her, threatening to "smash" her with a beer bottle and a clay sculpture and striking her causing a perforated eardrum and temporary hearing loss.
- State charged five felonies: two counts of aggravated assault (threatening with a drawn deadly weapon — beer bottle and clay piece), one count aggravated assault with a deadly weapon (shoes) (acquitted), one count aggravated assault causing serious bodily injury (protracted impairment), and one count domestic battery (third offense).
- Jury convicted Thompson on four counts (all except the shoes count). He admitted two prior felony convictions and the court adjudged him a habitual criminal and sentenced him to enhanced terms.
- On appeal Thompson challenged sufficiency of evidence as to (1) threats with a "drawn" deadly weapon, and (2) that the hearing loss constituted a "protracted" impairment; he also challenged admission of domestic-violence expert and prior-abuse evidence, and argued the habitual-offender enhancement was illegal (or counsel ineffective for stipulating).
- The Wyoming Supreme Court reviewed sufficiency of the evidence de novo (viewing evidence in the light most favorable to the State), reviewed evidentiary rulings for abuse of discretion (or plain error when unobjected), and reviewed legality of sentence de novo.
Issues
| Issue | Thompson's Argument | State's Argument | Held |
|---|---|---|---|
| 1. Sufficiency to convict for threatening with a "drawn" deadly weapon | Words alone, without a threatening gesture, and beer bottle/clay piece are not "drawn" weapons; insufficient evidence | Words + violent conduct during assault were sufficient; objects grasped and used to threaten qualify as deadly weapons | Affirmed — jury reasonably found words and acts amounted to threat and objects could be "drawn" as deadly weapons |
| 2. Serious bodily injury: "protracted" impairment | Hearing loss healed within about a month — not "protracted" | Complete hearing loss in one ear for ~a month may be a lengthy impairment; jury decides duration | Affirmed — jury could find one-month complete loss was sufficiently protracted |
| 3. Admissibility of domestic-violence expert and prior-abuse testimony | Expert/general past-abuse testimony was irrelevant and prejudicial | Testimony explained victim behavior and credibility; admissible; foundation supplied later by other testimony | No reversible error — expert admission should have had foundation but error harmless; victim/daughter testimony admissible |
| 4. Habitual-offender enhancement & counsel stipulation | Prior felonies were not "separately brought and tried" (resolved in single plea/judgment); sentencing illegal; or counsel ineffective for stipulating | Prior offenses were separate occurrences with separate informations/dockets and separate sentences; plea resolution does not negate "separately brought and tried"; stipulation harmless | Affirmed — prior convictions qualified; sentence legal; no ineffective assistance because no prejudice |
Key Cases Cited
- Hill v. State, 371 P.3d 663 (Wyo. 2016) (defines “threatens to use” and reviews combined words/acts analysis)
- Ewing v. State, 157 P.3d 943 (Wyo. 2007) (common-meaning of “drawn” includes bringing out weapon for use)
- Levengood v. State, 336 P.3d 1201 (Wyo. 2014) (contextual analysis upholding threat conviction where weapon not raised but circumstances supported threat)
- Keene v. State, 812 P.2d 147 (Wyo. 1991) (prior convictions arising from separate incidents treated as separately brought for habitual-offender statute)
- Martinez v. State, 199 P.3d 526 (Wyo. 2009) (contrast on what qualifies as severe/serious bodily injury)