Dike v. State

Decision Date30 November 1999
Docket NumberNo. 98-254.,98-254.
Citation990 P.2d 1012
PartiesWilliam H. DIKE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Sylvia Lee Hackl, State Public Defender; Donna D. Domonkos, Appellate Counsel; Diane Courselle, Director of the Wyoming Defender Aid Program; and Daniel Pedriana and Brenda Hammitt, Student Interns for the Wyoming Defender Aid Program.

Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia L. Tibbetts, Senior Assistant Attorney General; Theodore E. Lauer, Director of the Prosecution Assistance Program; and Monique DuPont Armijo and Jodi A. Weppner, Student Interns for the Prosecution Assistance Program.


MACY, Justice.

Appellant William Dike appeals from the judgment and sentence that was entered after a jury found him guilty of aggravated assault and battery.

We affirm.


Dike presents several issues for our review:

Did the state fail to prove that William Dike committed aggravated assault since he did not use a "deadly weapon?"
Did the trial court deprive William Dike of his due process right to a fair trial by failing to instruct the jury on the elements of aggravated assault?
Did the trial court err by allowing unfairly prejudicial evidence to be introduced at trial, whereby a reasonable juror could be so inflamed as to infer that because of all the guns and ammunition seized from the Dike residence, William Dike must have committed the aggravated assault?
Did the trial court abuse its discretion by allowing hearsay evidence of a taped phone call that does not qualify for the excited utterance exception to be heard by the jury?
Did the trial court abuse its discretion by allowing the jury to hear portions of a taped phone call that do not qualify for the excited utterance exception to the hearsay rule?
Did the trial court violate Billy Dike's right to confrontation, his right to testify in his own behalf, and his right to receive due process and a fair trial when the court allowed the prosecutor to remark in closing that Mr. Dike's right to be present during his own trial gave him an unfair advantage as a witness and that a conviction was required in order to uphold the community's trust in the jury?
Did the ineffectiveness of William Dike's counsel deny him his due process right to a fair trial?

Shortly after arriving home on November 1, 1997, at approximately 11:00 p.m., the victim heard someone pounding on her door. She went to the door and found Dike, who hollered: "Open this door." The victim knew Dike because he had worked for her and her husband and he had previously been a guest in their home. She opened the door, and Dike walked into her house, informing her that he needed to use her telephone. The victim agreed to let him use her telephone, but, feeling uncomfortable, she remained near the door. She did not believe that Dike actually used the telephone because he did not turn on the light in the room where the telephone was located and she did not hear him pick up the receiver. When she asked him if he got a hold of anyone, he responded that the line was busy.

Because of the victim's uneasiness about being alone with Dike, she told him that she could not visit with him because she had to go back to work at the Buffalo Lodge, that a friend was spending the night, and that her husband would be back from hunting that night, all of which were untrue. She walked out the door, and Dike followed her outside. When she tried to get into her car, Dike pulled her out. When she attempted to get into her car again, he again pulled her out. After a brief struggle, Dike told the victim that she was going with him and pointed a pistol at her head, telling her: "I will use this if I have to." The victim ultimately convinced Dike to let her take her car. Dike got into the car with the victim and began accusing her of telling her husband about the sexual advances he had made toward her the previous summer. The victim denied telling her husband anything and tried to persuade Dike to give her the gun.

The victim was finally able to convince Dike to give her the gun, which she held in her left hand while she drove toward the Buffalo Lodge. When she arrived at the Buffalo Lodge, she spoke with a new employee and told him that she was going to take Dike to his truck and that she would return to train him, hoping he would get suspicious if she did not come back. When they got to Dike's truck, Dike told the victim that he would kill himself if she called the police. The victim assured Dike that she would not call the police and gave the gun back to him. At that point, Dike showed the victim that the gun was not loaded. He exited her vehicle and followed her as she drove back toward the Buffalo Lodge.

While she was on her way back to the Buffalo Lodge, the victim used her cellular telephone to call her mother-in-law, who advised her to call the police. Although she was apprehensive about doing so, the victim did call the police from the Buffalo Lodge and asked to speak with Deputy Sheriff Jake Hardin. During this telephone conversation, the victim told the dispatcher what had happened and also communicated it to Deputy Hardin. Deputy Hardin, along with two detectives from the Laramie County sheriff's office, went to Dike's home and arrested him. Searches of the house on separate occasions netted various guns and ammunition.

Dike was charged with aggravated assault and kidnapping. At the trial, Dike acknowledged that he went to the victim's home, that they had an argument, and that he rode with her to the Buffalo Lodge, but he denied threatening the victim with a gun. A jury convicted Dike of the aggravated assault offense, and the trial judge sentenced him to serve a term in a state penal institution of not less than two years nor more than five years. Dike appeals from his conviction to this Court.

A. Definition of a "Deadly Weapon"

In his first claim of error, Dike contends that the state failed to prove that he committed aggravated assault because the only evidence relating to the deadly weapon requirement of the offense was that he possessed an unloaded gun. The state counters that it was not required to establish that the firearm was loaded in order to prove that Dike committed aggravated assault.

Wyo. Stat. Ann. § 6-2-502(a)(iii) (LEXIS 1999) describes the aggravated assault offense:

(a) A person is guilty of aggravated assault and battery if he:
(iii) Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another ...

The term "deadly weapon" is defined in Wyo. Stat. Ann. § 6-1-104(a)(iv) (LEXIS 1999) as follows:

(iv) "Deadly weapon" means but is not limited to a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance, which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury[.]

Dike contends that the phrase "which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury" qualifies each of the previously listed items, including "a firearm."

In deciding this issue, we must apply our well established standard for construing statutes. We attempt to interpret statutes in accordance with the legislature's intent. State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994). We begin by making an "`inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection.'" Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 133, 50 P. 819, 823 (1897)). We construe statutes as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statutes on the same subject. State ex rel. Wyoming Workers' Safety and Compensation Division v. Bruhn, 951 P.2d 373, 376 (Wyo.1997); Pacificorp, 872 P.2d at 1166. We give effect to the plain language of unambiguous statutes. Lyles v. State ex rel. Division of Workers' Compensation, 957 P.2d 843, 846 (Wyo.1998). We resort to extrinsic aids of statutory interpretation, such as legislative history or intent, only when statutes are ambiguous. Christensen v. Oedekoven, 888 P.2d 228, 230 (Wyo.1995).

In making the determination of whether this statute is clear and unambiguous, we must analyze the structure and position of the words in the statute, applying rules of common grammatical principles. "`This Court naturally does not review congressional enactments as a panel of grammarians; but neither do we regard ordinary principles of English prose as irrelevant to a construction of those enactments.'" Management Council of Wyoming Legislature v. Geringer, 953 P.2d 839, 843-44 (Wyo.1998) (quoting Flora v. United States, 362 U.S. 145, 150, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960)).

After analyzing § 6-1-104(a)(iv), we conclude that the language is clear and unambiguous. The phrase "which in the manner it is used" modifies only the last antecedent, "other device, instrument, material or substance." "[O]ther device" is preceded by an "or," and, generally, where no contrary intention appears, relative and qualifying words and phrases are construed to refer solely to the last antecedent with which they are closely connected. Moschetti v. Liquor Licensing Authority of City of Boulder, 176 Colo. 281, 490 P.2d 299, 301-02 (1971) (en banc).

The aggravated assault statute enhances the punishment if the defendant uses a deadly weapon because deadly weapons cause a...

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