Johnston v. State, 87-58

• Citation: 747 P.2d 1132
• Decision Date: 29 December 1987
• Docket Number: No. 87-58,87-58
• Parties: Jim JOHNSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 1132

747 P.2d 1132

Jim JOHNSTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-58.

Supreme Court of Wyoming.

Dec. 29, 1987.

Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Cheyenne; Wyoming Defender Aid Program: Gerald M. Gallivan, Director, and Dawn L. Howell, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen.; John W. Renneisen, Deputy Atty. Gen.; Terry L. Armitage, Asst. Atty. Gen., Cheyenne, for appellee.

Before THOMAS, CARDINE, URBIGKIT, and MACY, JJ, and HANSCUM, DJ.

HANSCUM, District Judge.

This is an appeal from a conviction for aggravated assault and battery in violation of § 6-2-502(a)(iii), W.S.1977 (Cum.Supp.1986), ¹ brought under a claim of plain error Appellant's knife-wielding was the apparent focus of the jury's attention during various stages of deliberations when two questions pertaining to the implications of the term "threat" were posed:

                under Rule 49(b), Wyoming Rules of Criminal Procedure. 2  Appellant contends that the trial court committed plain error by giving two supplemental instructions further defining the term "threat" as an ingredient of the essential elements of the charged offense.  The trial court gave the additional instructions in response to specific questions raised by the jury during deliberations
                

Question One: "Does the presence of weapon in hand constitute a threat to use it?"

In response and without objection, the trial court further instructed:

"Whether there was a threat is a question of fact to be decided by the jury based upon all the circumstances of the case."

Question Two: "Is threaten to use a weapon the same as threatened with a weapon?"

Again, the trial court responded without objection by further instructing:

"A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment."

Affirming the conviction, we conclude that any defect in the judge's first instruction was cured in the giving of the second instruction; thus, no plain error is established and the evidence is sufficient to uphold the verdict.

FACTS

On the evening of June 5, 1986, nineteen-year-old Darren McDaneld arrived at LeRoy's Body Shop to talk to his uncle Jerry West. A conversation ensued between uncle and nephew about allegations by Uncle Jerry that Darren had taken a knife from him and that Darren was involved in selling knives to younger kids. Overhearing the conversation, LeRoy Hibbs, owner of the body shop, joined the discussion which, by this time, had become a heated argument. At some point in time, Darren produced a "butterfly" knife. He testified that the blade was not extended. LeRoy Hibbs testified that the blade extension mechanism had been activated as Darren produced the knife from his back pocket, at which time Hibbs knocked the knife out of Darren's hands and launched a fist attack against Darren's head and face.

Then appellant, Jim Johnston, who was observing the fray retrieved the knife, approached McDaneld and brandished the knife in the area of Darren's face and neck. Darren testified that Johnston nicked him in the throat with the knife and previously had threatened him with two sickle knives. Appellant denied that he nicked McDaneld's throat or that he previously had employed any other knives. Appellant contends that the only conceivable threatening conduct towards McDaneld was in the form of a question: "You like to play with knives?"

The jury, weighing the conflicting testimony, apparently believed McDaneld's version of the course of the events and returned a guilty verdict on the charge of aggravated assault and battery.

LAW OF PLAIN ERROR

Since no objections were made to the supplemental instructions given by the trial court in response to the jury's questions during deliberations, this case must be decided " ' " * * * First, the record must be clear as to the incident which is alleged as error. Second, the party claiming that the error amounted to plain error must demonstrate that a clear and unequivocal rule of law was violated. Finally, that party must prove that a substantial right has been denied him and as a result he has been materially prejudiced. * * * " ' Auclair v. State, Wyo., 660 P.2d 1156, 1159 (1983), cert. denied 464 U.S. 909, 104 S.Ct. 265, 78 L.Ed.2d 249 (quoting Bradley v. State, Wyo., 635 P.2d 1161, 1164 (1981)). See Browder v. State, Wyo., 639 P.2d 889 (1982)." Larsen v. State, Wyo., 686 P.2d 583, 584 (1984).

under the plain error doctrine. Rule 49, W.R.Cr.P. We frequently have had the occasion to consider the plain error doctrine which requires the application of a three-part test:

Here, the focus of the inquiry involves the jury's questions and the trial court's reaction to the inquiries, and the record is clear as to that dialogue. The second prong of the test also is met in this case. The answer to the first jury question constituted a violation of a clear rule of law; however, the corrective action taken by the trial court in its answer to the second question cured any denial of a substantial right, and no prejudice resulted. Accordingly, appellant cannot succeed under the "plain error" doctrine.

Appellant argues that the answer to question one, "Does the presence of weapon in hand constitute a threat to use it?" should have been "no." Appellant argues further that the trial court's response, in effect, informed the jury that they could find a constructive threat, and that the instruction eviscerated the plain language of the charged statute which states that "threatens to use" is an element of the offense. Quite correctly, appellant observes that this court has not had the occasion to construe the words "threatens to use" in § 6-2-502(a)(iii). We will take that opportunity in this appeal.

In contending that "threatens to use," "requires an actual threat not a constructive threat," appellant cites several cases and authorities:

"In State v. Hentz, 663 P.2d 476 (Wash.1983), the Washington Supreme Court construed the words 'threatens to use' by giving it a plain and ordinary meaning. Hentz at 477. The Court reasoned that '[p]ointing a gun at someone is clearly "use" of that weapon, whereas "threat" is defined as the expression of an intention to inflict injury.' Hentz at 478.

"In United States v. Baish, 460 A.2d 38 (D.C.App.1983), the D.C. Appeals Court construed the word "threatens." It stated 'that a person "threatens" when she utters words, which are intended to convey her desire to inflict physical or other harm on any person or on property and these words are communicated to someone.' Baish at 42. See also, State v. Keller, 199 S.E. 620 (N.C.1938).

"In WEBSTER'S COLLEGIATE DICTIONARY 1228 (9th ed. 1984), threaten is defined as 'to utter threats against or * * * to give signs of warning of.' Use is defined as the 'act or practice of employing something.' WEBSTER'S at 1299. In BLACK'S LAW DICTIONARY 1327 (5th ed. 1979), threat is defined as a 'communicated intent to inflict physical or other harm on any person or on property.' Use is defined as an '[a]ct of employing everything, or state of being employed; * * * ' BLACK'S at 1382."

We find appellant's authority on actual threat to be persuasive. We agree and we hold that the phrase "threatens to use" in § 6-2-502(a)(iii), W.S.1977 (Cum.Supp.1986), requires proof of an actual threat of physical injury during the act of employing a deadly weapon. It was error for the trial judge to insinuate in his answer to the question that factual circumstances would govern in determining if the (mere) presence of a weapon in hand could constitute a threat to use. It cannot. Proof of a required ingredient of an element of a criminal offense to be proved beyond a reasonable doubt cannot be aided by such an inference, presumption or insinuation of the kind contained in the trial court's reply.

Reversal of the conviction, however, on the basis of this error is indicated only if all three prongs of the Larsen test are met. The trial court's answer to the second question removed all possibility of taint and prejudice possibly occasioned in the answer to the first question. Accordingly, when reading all the instructions together, as required by Cullin v. State, Wyo., 565 P.2d 445 (1971), and Horn v. State, Wyo., 554 P.2d 1141 (1976), the jury adequately and properly was informed of the essential law of the case.

Were it not for the saving effect of the trial judge's second instruction, this court might well find the necessary prejudice to reverse appellant's conviction. Drawing upon the axiom that words in statutes are to be given their plain and ordinary meaning, Keller v. State, Wyo., 723 P.2d 1244, 1246 (1986), the trial judge instructed the jury in the form of a dictionary definition of the term "threat" directly in response to the second jury entreaty to do so. After lengthy colloquy between the trial court and counsel grappling with the proper way to handle the jury's inquiry, the trial court without objection answered:

"A threat is an expression of an intention to inflict pain, injury, or punishment. It may be expressed by words or acts, or a combination of words and acts. Considering all of the circumstances of the case, you must decide whether the defendant's words and acts amounted to an express or implied statement of his intention to use a drawn deadly weapon to inflict pain, injury, or punishment."

We hold that this definition of "threat" is a proper statement of the law of aggravated assault and battery in the State of Wyoming. We also find, as a corollary ruling, that this second instruction mitigates any error or prejudice occasioned by the giving of the first...