*1 Terry Dewey Bobich, Lee Lee EDGE and (Defendants),
Appellants Wyoming, Appellee
The STATE of
(Plaintiff).
No. 5631.
Supreme Wyoming. Court of 17,
June Hackl,
Sylvia Counsel, Lee Appellate Wy- oming Public Defender Program, Cheyenne, for appellants. Freudenthal, Gen.,
Steven F. Atty. Ger- Stack, Gen., ald A. Deputy Atty. Criminal Division, Johnson, Allen C. Senior Asst. Gen., Atty. Harris, Terry and J. Legal In- tern, appellee. for J., ROSE, RAPER, Before C. and THOM- AS, BROWN, ROONEY and JJ. ROONEY, Justice. Appellants-defendants, Dewey Edge Lee Bobich, Terry Lee tried jury guilty before a and found of aggrava- 6-4-506, ted assault in violation of W.S. 1977,1 kidnapping 6-4- violation of § Appellants W.S.1977.2 word issue W.S.1977, 6-4-506(b), provides: willfully, maliciously, 1. Section “Whoever shall fraudu- seize, confine, lently, forcibly unlawfully “(b) or dangerous weapon. Whoever, With — abduct, inveigle, decoy, kidnap, away dangerous entice while armed with a or by any weapon, firearm, carry awаy including or means whatsoever an unloaded mali- ransom, ciously perpetrates person, assault or hold or detain ward, re- an assault battery upon any being, transport robbery; human shall or or whoever shall transporting any person, fined not one more than thousand dollars aid or abet ($1,000.00), imprisoned peniten- knowing willfully, or be to have been tiary (14) years, fraudulently, not more than maliciously, forcibly fourteen or unlaw- confined, both.” seized, fully inveigled, decoyed, kid- abducted, napped, away enticed or carried 6-4-201, W.S.1977, provides: 2. Section *2 judgment the appeal on from and sentence ed in advice that the automobile was stolen. as follows: Appellants wеre in it. trial denying “Whether the court erred in patrolmen the When to stop
Appellants’ judgment motion for of ac- automobile, the a high speed chase ensued. quittal since the evidence at trial adduced running After through roadblock, a a tire was insufficient to sustain a conviction of appellants’ on automobile went flat. They, pending against either charge Appel- then, abandoned the automobile and ran to lants.” nearby park trailer they where entered a We affirm. belonging trailer to Herman Carrier. Edge carrying a butcher Carrier, knife. Mr. out the recently by We set standard used years who was 74 old and had difficulty reviewing this court the denial of a mo- walking, was in the wаtching trailer televi- judgment acquittal. tion for of appellants sion when entered. One of the reviewing “In the denial of a motion for appellants picked up another knife from judgment acquittal, of we examine and Mr. Carrier’s kitchen table. Appellants accept prose- as the evidence of true the then took Mr. Carrier to the back bedroom logical cution with all and rea- of his trailer where held they him for two sonable inferences to be there- drawn and one-half hours. from, leaving entirely out the [citations] evidence the defendant Appellants of in conflict barricaded themselves in this bedroom, therewith back placing mattresses [citations]. over the They negotiated windows. with judgment police “A the acquittal motion for of is to through a window of this back granted only bedroom, be when the evidence is demanding prescription drugs (Quaaludes), juror that a reasonable must have a presence of the President of the reasonable as to the doubt existence of United States, the Governor, the any of essential of Buffalo elements Police Chief, Johnson County Or, crime. Sheriff and way, report- stated another if there is They ers. threatened several substantial evidence to times to kill sustain a convic- Carrier unless crime, their tion demands were met. of the motion should not At police, insistence of the thеy permitted granted. be This standard [Citations.] talk to applies one supporting whether occasion. He then said he had been not harmed direct or circumstantial. but [Citations.]” requested the do 1117, appellants Leppek Wyo., v. 636 P.2d asked would kill him. (1981). Finally, ap- pellants demanded coverage television standard, Viewed by this the evidence is as their surrender. police agreed to vi- follows: deotape They surrender.3 then surren- 7, 1981, On the August afternoon of dered, and Mr. Carrier was released un- Wyoming Highway given Patrolman was harmed. the description an automobile which had been used in recent robbery. armed A AGGRAVATED ASSAULT later,
short
time
observed an automobile
matching
description
this
traveling east on
recently
We
set out the elements of as-
90,
Interstate
and followed it. A radio in-
sault
a deadly
with
weapon Brightwell
quiry concerning the license
number result-
Wyo.,
631 P.2d
(1981).
away by any
penalty
whatsoever to be held or
apply
means
If the death
imposed
not
shall
or be
ransom, reward,
robbery,
detained for
or for
person
pun-
the convicted
shall be
shall,
conviction,
by
punished
death
by imprisonment
peniten-
ished
in the state
recommend,
jury
pro-
if the verdict of the
so
tiary
period
twenty
for a
of not more than
vided that the sentence of
death shall
years.”
(20)
imposed
if,
prior
case be
the court
commencement
the trial of
case in
videotape
used a
recorder but its
charged,
which the defendant is
the kid-
batteries were dead.
napped person has been liberated unharmed.
“ * *
elements of the crime of
Carrier testified that he saw a butcher
[T]he
deadly weapon Wyo-
with a
assault
knife in the hands of one of
appellants
ming
are
now
unlawful
entered his trailer and
(maliciously)
unlawful intent
to commit a
took another butcher knife off the table in
(attempted battery)
violent
the trailer. He said that they “taked me to
another,
with the use of a
*3
in
move
the back
They kept
room.”
him in
and
attempt
in that
the
the back room with them during
negoti-
the
accomplish
inju-
apparent ability to
ations.
police
Carriеr asked the
to do as
ry.”
appellants
asked or
would kill him.
Appellants
contend that
Appellants
told the
several times that
this
is
presented in
case
insufficient on
they would kill him the
if
demands were
of
attempted
three
these elements:
“the
not met.
battery,
apparent
ability
injure,
to
in Brightwell,
As
the knives in the
Appellant
to
Bobich —the use of a
hands
and —as
of
deadly weapon.”
appellants
deadly
were
weapons. Appel-
“apparent
lants had the
ability” to commit
Brightwell, supra, we
In
discussed the
Carrier,
violent
on
injury
74-year-old
Brightwell
of
actions Miss
which constitut-
man who
attempted battery
walking
ed an
and contrasted
had trouble
and who
* * *
Miss
those actions with
actions of
Har-
“taked
to
in
move
the back room”
acquitted of
per, a co-defendant who was
with them and held there.
in Bright-
As
victim,
aggravated
Miss
assault.4
well, the intent
to
injury
commit violent
Harper
Brightwell and Miss
were
cab
upon Mr.
can
be “inferred from the
**
*
pickup
of the victim’s
at the time of the
of
[appellants]
conduct
and from cir-
driving,
victim was
Miss
incident. The
cumstantial
Appellants
evidence.”
threat-
sitting next
Brightwell was
They
ened
kill him.
“taked” him with
Harper
sitting
and Miss
was
next
them into
the small room which
barri-
said
passenger
door
side. We
against police
Again,
caded
action.
inas
page
1050:
Brightwell,
the attempted battery require-
conclusion,
support
“As further
for this
it
ment was present.
There
no
wаs
easy
why
is
to see
Ms.
com-
(as
Appel-
use the
Brightwell).
knife
in
weapon
mitted an assault with
physically"
(as
lant was not
injured
in
why
Harper
Harper
and
Ms.
did not. Ms.
Brightwell). Mr.
in
Carrier was
a small
may
holding
have been
a knife at
appellants,
very
room with
unable
walk
incident,
point-
time of the
but she never
well,
74,
age
injury
and able to avoid
it
ed
in Mr. Emerson’s direction nor
acceded
the conditions
juxtaposition
threatened him with it.
In
imposed
appellants.
by
Brightwell,
Brightwell’s
to this is
conduct. She not
said:
only had
arm
her
around Emerson’s neck
“ * * *
him,
pointed a knife at
but
also
[Brightwell]
She
indicated that
stating
threatened him
‘I mean busi-
could avoid
from use
of
knife
Clearly
attempted
battery
ness.’
she
only on condition that hе
comply
her
”
* *
him.”
(Emphasis
origi-
directions.
Accepting as true the evidence of
nal.)
cient. such evidence not directed at him. He acquittal Harper of Miss made unneces- her determine whether or not actions sary appeal by guilty. We her. called were sufficient to sustain a verdict evidence which placed to the the first At points common law the taking person of a appellant Edge’s possession
knife in
out of his own country was required as an
element of
trailer was entered and to
the crime
the fact that
of kidnapping.
1,
490;
Kidnapping
p.
C.J.S.
§
all of the conversation with the
Am.Jur.2d
Abduction and Kidnapping
1, pp.
§
160-
by appellant Edge.
jury
was instruct-
161. Wyoming’s early statutory definitions
6-1-114, W.S.1977,
ed with reference to §
of kidnapping also contained an asportation
provides:
which
requirement.
Revised Statutes
Wyo-
person who
“Every
shall aid or abet in
1899,
ming
However,
§
1935 Wyo-
any felony,
the commission of
or who
ming adopted its present and much broader
counsel,
hire,
encourage,
command,
shall
definition
85,
of kidnapping.
Ch.
S.L.
procure
felony
otherwise
to be
(see
of Wyoming 2).
footnote
committed, shall
accessory
be deemed an
6-4-201, W.S.1977,
Section
fact,
indicted,
makes it
may
before
illegal
for a
to “seize” or “confine”
*4
against,
informed
tried and convicted in
“and hold or
any person,
detain
ransom,
for
the same manner as if he
princi-
were a
reward, or robbery.” Asportation or the
pal,
either
princi-
before or after the
transporting
of the
is but an alter
pal offender is convicted or indicted or
nate means of committing the crime.
against;
informed
such convic-
tion he shall
punishment
suffer the same
Appellants argue that
asportation
re-
penalties
prescribed
quirement
are
as
law for
is necessary to avoid
possible
elevation of
punishment
of the
a lesser
principal.”
crime to kidnapping.
False imprisonment was referred to as an
Appellant Bobich
ap-
was associated with
example of
However,
such.
the purpose of
pellant Edge throughout
the entire esca-
imprisonment
false
is not for ransom or
pade. They entered
together.
the trailer
be,
reward.
If it
then,
should
properly,
They “taked” Mr.
Carrier to
back room.
kidnapping has resulted. Appellants do not
negotiations
The
were carriеd on for both
point to another crime which has the same
of
prove
them.
It isn’t
necessary
elements as does kidnapping.
each
necessary
of them did that
to establish
Appellants also
each element of the
contend that
offense.
It is sufficient
was insufficient evidence on the
to show that
element of
were associated
ransom or reward. Reward can consist of
in doing
comprises
that which
each element
arrest,5
freedom from
obtaining prescrip
Thompson,
of
offense.
v.
State
253 Or.
drugs,
tion
publicity,
However,
etc.6
appel
430,
754,
452 P.2d
reh. denied
for judgment
acquittal
charge
on the
and dissenting
part.
kidnapping arguing that there was insuffi-
cient
asportation
evidence of
or of “ransom
I concur
part
in that
of the majority
go
reward” for the case to
jury.
opinion
which upholds the appellants’ eon-
arrest,
escape physical
5. “To
or to
Supreme
6. The United States
Court has defined
so,
here,
do
as the defendant did
“something given
within the
good
reward as
in return for
”
Aleck,
State v.
broad definition of ‘reward.’
or evil done or received.” Gooch v. United
796,
Wash.App.
645,
(1974),
States,
124,
10
126,
395, 396,
520 P.2d
649
297 U.S.
56 S.Ct.
80
937,
1146,
cert.
(1936).
denied 420 U.S.
95 S.Ct.
L.Ed. 522
(1975).
L.Ed.2d 413
W.S.1977,3
kidnapping
incorporated
for
under
6-4-201
must
§
victions
be
into
6-§
4-506(b)
longer
defining
the statute no
re-
because
elements of
W.S.1977
as-
sault with
deadly weapon.
“asportation” as an element of the
“includ-
quires
ing an unloaded firearm” language was in-
kidnapping,
because the record
crime
&-4-506(b)
serted into §
in 1975 and there-
(even though conflicting)1
reflects evidence
“present
fore the
ability” language of
sought
the defendants
“ransom” or
6-4-501 must
read
“apparent
§
be
аbili-
cap-
“reward” for the safe return of their
ty.”
State,
See Brown
Wyo.,
v.
590 P.2d
cannot, however, agree with
tive.
I
(1979).
opinion
upholds
of the
which
part
con-
We said in Brown v.
supra,
assault,
is,
aggravated
victions for
as-
the rule in
weapon,
with a deadly
sault
under
6-4-
“ * * * this statute
appears
now
W.S.1977,2
506(b),
because, my judgment,
directed at the
effect
appre-
prove
necessary
state failed to
ele-
hension of the victim of the assault.”
I
ment
that crime. would have reversed
thenWe
went on
aggravated
say:
convictions
assault with
because there is insuffi-
adopts
“This
the rule which has been
battery.
denominated
jurisdictions
cient evidence of
in some
as a
‘show of violence rule’
mentioned
State
ATTEMPTED BATTERY
Sawyer,
v.
N.C.App.
221 S.E.2d
518, 520.”
“In
to decide the
we were called
(1979),
Cases
Gun
‘including
of the
an unloaded fire-
effect
State,
Shafsky v.
Wyo.,
In
P.2d 60
6-4-506(b),
language
supra,
in §
arm’
(1974),
the rule
“present ability”
6-70B,
had been added to
W.S.
which
“apparent
it
ability”
instead
as
is now
1957, in
thus made an element
1975 and
State,
(Brown v.
supra),
appel-
we sustained
law.
aggravated-assault
our
lant’s conviction for assault with a
case,
effect of the
we determined that the
weapon i.e., that
it
was an
—
‘present
change
was to
amendment
a
commit
violent
in circumstances
6-4-501, supra, to
ability’ element
in §
gun directly
where the defendant held a
Id.,
stomаch,
590 P.2d
‘apparent ability.’
against
a
officer’s
even
it
though
was later
the added
determined
We did not find that
gun
not fire
faulty
would
because
aof
language
legislature
was intended
clip. Similarly,
ammunition
in Evanson v.
adoption
type
of a second
of as-
supra
(another
“present
ability”
State, Wyo., 568
In Fuller v.
P.2d
sault.
case),
upheld
we
assault
conviction for
(1977),
‘[b]y
we stated
its
deadly weapon
with a
where the defendant
statutes, Wyoming has limited criminal
’
pointed
handgun
had
at a deputy sheriff
battery.
Our deci-
assault
pressed
trigger
though
even
Thus,
change this.
in Brown did not
sion
gun
not
did
fire because of a malfunction.
law
though the trend in the
of crim-
even
Then,
Brown
supra (an “appar-
punish
inal assault
is to
аbility” case),
ent
upheld
aggra-
another
also the
attempted-battery
type but
in-
vated-assault conviction where the defend-
type,
tentional-apprehension-of-fear
pointed
ant
had
sawed-off .22 caliber rifle
is more in the nature of the tort
which
which,
at a
upon being
officer
assault,
concept
legisla-
Wyoming
officer,
grabbed by the
discharged but did
this
yet adopted
ap-
has not
latter
ture
seen,
him.4
not strike
As can be
most of
(Footnote
empha-
proach.”
omitted
appeals
past
involving challenges
our
to a
added.)
sis
lence
discussed in Brown v.
su-
State,
Brightwell
It was
until
v.
su-
pra, insofar as such a rule would relieve the
pra,
alleged
where
was a
deadly weapon
proof
state
of a
assault—
common-law
knife,
we
that
a
confronted with
case
i.e., an attempted battery.
involving
question
attempted-battery
course,
Wyo.,
inoperability
4. See also Fuller
v.
P.2d 900
5. Of
of a firearm is no
(1977)
shotgun
longer important
light
where
a
defendant had fired
in
of the 1975 amend-
moving patrol
6-4-506(b)
(former
6-70(B))
a
car and
§
we held
ment
dis-
§
State, supra.
was sufficient
to sustain the
Brown
conviction.
cussed in
v.
charged
we
the defendant was
with as-
hold that
where
when a knife is held in a
deadly weapon
with a
and a firearm
threatening
sault
manner
inches from a
person’s
appellant
attempted
was not involved. We sustained
an
body,
battery has
”
Brightwell’s conviction for assault with a
(Emphasis added.)
occurred.
Bright
we found that the
well
supra,
because
565 respect situation, There is no evidence in this to this Mr. Carrier. we said in Nunez v. to utilize them they 726, record that undertook Wyo., 383 P.2d (1963): 729 against by any him threat or action kind contrary “Inferences to direct testimony whatsoever. are ordinarily sufficient support a finding [citing National Labor Relations will, do What did the defendants that Cir., Kaye, 114; Board v. 112, 7 272 F.2d against by when the rules established tested and Waller v. Northern Pacific Terminal court, this constitute the unlawful Oregon, 274, Co. of 488, 178 Or. 166 P.2d injure that law requires before an 496-497, 742, certiorari denied 329 U.S. assault with a will be said to 45, 640, S.Ct. 91 L.Ed. rehearing denied have been committed? 825, U.S. S.Ct. L.Ed. 701.] appel- shows that evidence “Hence, in the absence of evi- concrete trailer, (ap- lants entered the one them dence part on the of the state to show pellant Edge) carrying was butcher knife * * * intent, can there be no presumption only possibly is it sufficient establish of law on intent.” entering that after other soon codefend- Bobich) up ant (appellant picked a butcher real flavor of flights this case and the belonging knife victim Carrier. Car- of fantasy the majority relies rier testified when he observed the the necessary inferences, constitute can by Edge, knife held as he be appreciated came front after a review of the door, Edge he and defendant were some relevant testimony: that, eight apart. ten or feet After Well, come, “A. those two men opened testimony reflects that all three went into door taked me to move the back the bedroom of but the trailer no room. to the the appellants effect that “Q. What were carrying? ever to assault Mr. Carrier or in “A. I saw one—he had a knife. I saw any way threatened him with the knife. just the blade because it was shiney There is no indication that defendants [sic] he but had that in his hand like that. pointed the knives at Carrier —that presence brandished the knives in his —that “Q. say What did he to you? he was afraid of either or the knives “A. Nothing. One said come in the defendants —that he went the bedroom back room. all. That’s knife-point with the defendants at or that “Q. you What did tell going was being he threatened had been happen you didn’t do it? threatened the knives when the the police testified Carrier said had They “A. they didn’t me tell didn’t— comply best demands of the de- nothing. fendants would killed. The “Q. Which one had knife? witness said that while in the bedroom hours, negotia- some two-and-one-half “A. I think it’s the blonde one. tions between the defendants “Q. you How close to was he? on, going the defendants threatened Oh, maybe eight, eight “A. ten feet— safety, the victim’s but testified maybe. feet while the bedroom with the defend- ants he did not hear such threats and “Q. What kind of knife was it? seeing did not ever even recall the knives. just “A. I don’t know. I saw the blade. In point of fact the inferences relied “Q. Was it a pocket knife? by majority (to show malicious intent to “A. Butcher knife. commit injury) contradictory a violent are to the direct testimony of the victim. With [*] [*] [*] [*] [*] *9 hold it “Q. Did he take that knife and your table? “Q. had a knife You your throat or up you put it to “A. Yes. anything? that? they took “Q. And “A. No. you knife at “Q. swing he Did “A. Yes. ' any way? went to the back you all “Q. And then No. “A.
room? going to “Q. he tell he wasn’t you Did “A. Yes. you? hurt trailer, your long “Q. How “A. No. going He me I ain’t told Mr. Carrier? you. hurt two and a half hours. “A. Around going to hurt “Q. you he wasn’t He told you? the back room you remain in “Q. Did period? them all that “A, Yes.
“A. Yes. just “Q. say you Did he that to one time couple times? or a you while were in “Q. happened What couple “A. No. A times. One in the room? back bedroom, too. Oh, they were talked to me nice but “A. “Q. you What did think about these in the window and
they put the mattresses guys? you? Were mean to I springs in the other one and put couldn’t see out. “A. No.
[*] [*] [*] [*] [*] [*] TQ. How did treat you? “Q. you Were scared? right. “A. All Nice.
“A. No. “Q. you anything Did do with them you while were in the trailer? Well, “Q. you at first were scared? “A. Do something with those? Oh, Sure, “A. at first I don’t know. but “Q. you Did drink a beer with them? right away
I found out I and wasn’t scared at after all. “A. Yes. The blonde one asked me—he says, have you got something to drink? I “Q. After the first? said, know; icebox; I go don’t look in the minutes, he “A. After a few said maybe you find some. He up went and he hurt, going you worry. ain’t don’t got gave two cans and he me a can I trailer, talk at all. blonde, “Q. “A. “Q. Which one said that? [*] When Oh, you say one I guess. [*] I don’t know that these two men came into [*] The other one never did man was [*] [*] little —the holding your ry thank said thank for himself? “A. Yes. “Q. “Q. Did he drink one beer or a couple? we’re not you He gave you. going my you one beer and took one He opened one and said beer. He said don’t wor- to hurt you. knife? “A. Just one beer. That’s all I had. “Q. beer,
“A. Yes. Just drank one too? *10 Yes, Well, right “A. was all to me. “A. I don’t know. They were all right to me. “Q. you of these men? Were afraid “Q. you Did find that this day kind of “A. No. added a little your excitement dull life? going were “Q. you they ever think Did “A. No. as I Just as I soon saw those you? hurt сome in the door but they after went in I went in the back. “A. No. “Q. So it didn’t you they bother were in “Q. they Did have the knife with them your trailer afterwards? they
the whole time were in the back room? “A. No. I never seen no knife. I don’t know “A.
if he put that on the floor. I never seen no [******]
knife. “Q. Good Mr. day, Carrier. “Q. So, trailer, after he came in the you “A. Hello. never saw knife after that ? “Q. Carrier, Mr. you said a lot about the
“A. No. blonde one. There men, were two were there not? “Q. Did they you ever tell they were “A. Yes.
going you you to hurt if corporate didn’t with them? [sic] “Q. What color hair did the man have? “A. No. “A. Brown. The brown, face pretty too. “Q. He you with two men “Q. were these dark? When were back they entire time room Oh, “A. yes. right? you, with “Q. they trailer, When came into did “A. Pardon me? the man with the dark hair have a knife? “Q. You were with these two men the “A. No. they
whole time were the trailer? ' “Q. Did the man with the dark hair ever say anything you you remember? “A. Yes. “A. No. He never talk. “Q. you Did ever hear them tell “Q. Never talked. going you were to hurt He didn’t threaten you? corporate didn’t [sic]? “A. No.
“A. I never heard that. “Q. He you didn’t tell going he was “Q. you about two And them hurt you any way? and a half hours? “A. Nothing.” (Emphasis added.) “A. Yes. men did not like you? were in this trailer house that “Q. [******] Did you ever feel while the you these two Carrier —the in order to show this ciously perpetrated” with whether Keeping in mind that victim —and the defendants “mali- an we have to remembering we are concerned assault prove attempted battery, it might be well to com- “A. No. pare the facts of and the facts “Q. you Do you? think liked of this case: BRIGHTWELL: EDGE: BOBICH: FACTS: *11 Defendant’s arm around Touching: None None Knife Weapon: Knife Knife vic- a few from Knife inches None None9 Threats: body saying “I mean tim’s (supra, 6) business” n. touching and 3 inches time 8-10 No Distance threat feet between weapon no threat victim: No indication of fear None None
Victim’s opinion part of the in the apprehension of the case fear of defendant: pointed ribs Weapon at victim’s Pointing None None away when threats 3 inches weapon made victim: There was sup- insufficient evidence to have reversed this conviction while voting port guilty aggravatеd verdict as- to affirm the kidnap conviction. dangerous sault with a weapon. I would victim who came out was with the defendants in had no knife when
8. Bobich up trailer, although may picked room of that he have the back the trailer testified did say had in the trail- not hear the to the knife which the victim defendants butcher purposes. The evidence is would harm the victim if the did not household er for certainly comply requests. he ever had a with their not clear as to whether testi- presence fied there were such threats —but even did knife while he was in the trailer suggest not At did know not the defendants threatened to of Carrier. least Carrier alleged “dangerous had a knife. harm weapons” Carrier with the whether or Bobich knives. —the