Brightwell v. State
631 P.2d 1048
Wyo.
1981
Check Treatment

*1 Freudenthal, Atty. Gen., F. Steven Gerald Stack, Gen., Deputy Atty. A. BRIGHTWELL, Appellant Sharon A. Gwen Lyman, Atty. Gen., Cheyenne, Asst. ap- for pellee. ROSE, J., RAPPER, Before C. Wyoming, Appellee (Plaintiff). THOM- STATE of AS, BROWN, ROONEY and JJ. No. 5450. ROSE, Chief Justice. Appellant, was convicted July of the crime weap- as embodied in appeals her conviction. She raises one decision, this namely for court's insufficient evidence aggra- of the crime of vated assault was adduced at her trial since the State failed to tery part on her which is a ele- agree ment of the crime. We to convict a defendant of the assault under § W.S. produce the State must evidence of the sole issue in appeal this concerns whether the State met this burden her case. For the reasons discussed below we will affirm the lant's conviction. evening July

On the pellant, friend, along with a Christine Har- per, flagged pickup down a small driven Mr. Donald E. Emerson. Mr. stopped his truck because Ms. Harper standing directly in his lane of traffic. young The two ladies then get ceeded to into the truck though request Emerson made no they so. positioned herself next to Mr. Emerson and Ms. sat in the passenger Upon gaining seat. entrance to requested the women a ride to supermarket. Mr. Emerson decided to request get in order to rid pickup, of them. Once in the ' began to make advances toward Mr. Emer- requested go son and they place find a sleep. refused, When Emerson Brightwell placed her left arm around Mr. Honaker, Counsel, Appellate Richard Wy- Emerson's neck and told that she and oming Defender, Gallivan, Public Gerald M. money. Upon needed Mr. Em- Director, Intern, Brayton, and Jodi E. Wyo- money, erson that he had no ming Laramie, Program, Defender Aid said to Mr.

appellant. business," whereupon sharp she drew a

1049 416, Evanson, P.2d at we Thus, supra, 546 in in held it purse from kitchen elements of the or four set 'out three about right hand interim, as follows: the side. with a Mr. from "* * * glove acquired Harper had an assault constitute To held in of the compartment assault, 6- (aggravated § then opener. hands, sharp letter not be caused. 70OB), injury need Mini- to a blocks three approximately drove are the un offense The elements his truck out of jumped he where Mart (ma with unlawful attempt lawful tried to The police. called the violent accomplish a liciously) to but she left the as he wrist grab his another, of upon the short Throughout unsuccessful. was attempt and the weapon deadly to stab attempt not Brightwell did ride, Ms. injury. accomplish the ability to present any he suffer nor did 893, 1971, 92 Rocha, 3 Cal.3d People v. guilty of At trial 172, In Elliott P.2d 372. 479 Cal.Rptr. weapon under awith assault 791, 30 P.2d State, 1934, Wyo. 47 acquit- Harper was and Ms. 506(b), supra, making it definitions are several ted. 'maliciously' em term clear of crime previously, mentioned As things, the element braces, amongst other aggravated or awith assault added.) (Emphasis intent." unlawful of 6-4-506(b), supra. in § is embodied assault 1312 Wyo., 590 Brown v. reads: This section upon to decide (1979), were called we -Whoever, weapon. "(b) With fire "including an unloaded of effect awith while armed 6-4-506(b), supra, in language arm" firearm, including an unloaded 6-70B, W.S. to § added had been which or an an assault perpetrates maliciously an element made 1975 and thus in any be- human assault In that law. aggravated-assault our than one more not be fined ing, shall the effect determined we impris- ($1,000.00), dollars thousand "present change the was to amendment than not more penitentiary oned in supra, to in or both." (14) years, fourteen Id., P.2d at 1315. 590 ability." elements to the However, inquiry as language the added did not find stop cannot assault aggravated legislature as by the was intended 6-4-506(b), supra, since reading of § awith assault. of a second adoption P.2d 412 in Evanson State, Wyo., 568 P.2d Fuller necessary to also it is (1976), said that statutes, "(bly its statutory defini (1977), we stated corresponding look to assault criminal limited has Wyoming of assault.1 tion decision battery." Our defined is now assault The crime though the change this. not perti- it reads in tois assault criminal law of in the trend part: nent type only the not punish ability to "Whoever, having the intentional-apprehension-of- also but attempts so, unlawfully nature in the is more type, which fear another, person of injury on the violent Wyoming be fined and shall of an assault latter adopted yet not legislature has exceeding fifty dollars any sum approach.2 ($50.00)." not at 6-70B, statute to that amendment dealing we were Evanson 1. statutory in Evanson. 6-67, W.$.1957. Section §in' embodied assault types of criminal the two For a discussion iden- embodies W.$.1977, Handbook LaFave see language 6-70B §of tical 82§ Brown, Considering correctly Emerson. In her brief she our decision swing that at no time did the elements of the erime attempt to use it Mr. Emerson. Mr. deadly weapon Wyoming are now the Emerson also testified that attempt unlawful with unlawful However, physically. never (at (maliciously) commit a violent in this case would have this court *3 battery) upon person tempted anoth hold that to have commit- order er, deadly weapon with the ted an assault she would in fact have had to apparent ability attempt and the to accom Evanson, supra, stab Mr. Emerson. In plish that that to at analyze It is deadly weapon, commit an assault with a facts of this case in relation to the above Appel- be need not inflicted. appel elements to determine whether require lant in this that Mr. case properly lant was convicted of assault with injured. in fact Emerson had seems deadly weapon a under § very likely that had Ms. at- Clearly, case held in in this tempted to stab Mr. Emerson she would pointed a when she hand him, considering the fact that the knife at Mr. Emerson. We said in only body inches his Evanson, supra, 546 P.2d at that "[a] the fact his movement was restricted capable when used in manner a by her arm around his neck. When producing likely produce death placed lant her arm around Mr. Emerson's great bodily deadly weapon." injury, is a A neck, actually she touched him in a rude blade, knife with a six-inch like that held threatening manner. She indicated clearly satisfies test. he could avoid from use of the addition, only on condition that he injury upon a violent attempted her directions. This was an put Emerson when her left arm she around conclusion, tery. we hold that when a his knife a few neck and held the threatening only knife is held in a manner body. from his body, person's attempted inches from a battery has occurred. Likewise, from these same facts Ms. Brightwell's to commit a violent in- conclusion, support As further for this it

jury upon Mr. Emerson can be inferred. easy Brightwel' why is to see commit- Fuller, supra, 568 P.2d at we stated ted an assault with a may be inferred from the "[iJntent why not. Ms. may did conduct of a defendant and from circum- holding have been a knife at the time of the evidence," citing stantial Deeter v. incident, pointed but she never it in Mr. Wyo., 500 P.2d 68 In Fuller direction nor threatened injure defendant's was inferred juxtaposition Bright- with it. to this is firing moving patrol from his a rifle at a only well's conduct. She not had her arm case, Brightwell's placing car. In this pointed around Emerson's neck and a knife neck, while him, arm around Emerson's hold- by stating at but also threatened him . "I Clearly attempted ing mean business." body a knife a few inches from his business," all while Emer- battery upon him. vehicle, driving enough, son was motor prop- conclude collectively, satisfy proof taken re- erly of the crime of assault quirement that she in fact intended to in- assault) deadly weapon (aggravated jure him. 6-4-506(b), W.8.1977, under and her con- viction is affirmed. The final element which must be satisfied require- concerns THOMAS, Justice, specially concurring. ment. The contends that there was no evidence adduced at trial that she I am in accord with ratio decidendi of majority opinion of Mr. insofar as it holds that present, I would clearly were If the issue instance, prove an in this to this majori- an addition hold that I concur in reasonable only is a civil assault there reached opinion and the result ty statute. conclusion. logical application on that premised as it is insofar the claimed Since of wheth- question open the I would leave appar- replaced by the element has been attempted bat- must er the State the definition not believe ent I do a conviction secure tery in order to followed, ought 6-4-506, W.S. assault under applied, I can be agreeing that it and while agreement am not attempt- that an in this case would not hold incorporates 6-4-506 the crime under an element of battery is ed found in § simple wW.8.1977. merit in I find wisdom 501, W.S.1977. as summarized other courts views of perception of rely upon the If *4 p. LaFave and apparent respect the victim 1972): Publishing Company, (West rely of that logical parallel it is a have extend- jurisdictions majority of "A victim insofar as perception scope the crime ed the is concerned. perpetrator intent of the (not an alterna- include, as addition the court held is what I believe that to) tive would be an v. the civil as- resolving this appropriate basis one, with when sault, which is committed judgment eliminate my apprehension cause a reasonable involving the cases debate in such spective (though not to bodily harm of immediate victim of from the distance harm), some act does such inflict evaluating whether *" * * apprehension. such causes battery had occurred. an omitted.) (Footnote leg- with what is consistent This rule Wyoming intended of the State

islature W.8.1977, by it amended § when firearm unloaded an

specifically weapon. Ch. aas certainly I Wyoming 1975. S.L. visualizing difficulty firearm, unless battery with an unloaded MASON, Appellant Tracy Michael event it must insist I do not a club. presented as by used required by the such a conclusion see that justification for statute, can I find nor (Plaintiff). Appellee Wyoming, STATE other applicable to weapons but dangerous and No. firearm. an unloaded plicable to the view same as view is must This of intent concerning the element

expressed July23,1981. my concur battery set forth to cause ring opinion in Fuller (1977). In Brown cited (1979), the court Wyo., 590 P.2d opinion for the concurring ability had that the by this crime defined from the

eliminated

statute, apparent the element therefor. been substituted