Jones v. State

Decision Date22 November 2016
Docket NumberS-16-0005
Citation384 P.3d 260,2016 WY 110
Parties Zechariah Jay Jones, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Public Defender. Argument by Mr. Alden.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne M. Martens, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General. Argument by Ms. Young.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

DAVIS, Justice.

[¶1] Zechariah Jones was convicted and sentenced consecutively for attempted second-degree murder and aggravated assault and battery. On appeal he raises two constitutional questions relating to those sentences. We affirm.


[¶2] We restate the issues as follows:

1. Is cumulative punishment for attempted second-degree murder and aggravated assault and battery, as defined under Wyo. Stat. Ann. § 6-2-502(a)(ii),1 barred by that aspect of the double jeopardy clauses of the state and federal constitutions which protects against multiple punishments for a single offense?
2. If those crimes share the same elements, does that fact render them unconstitutionally vague?

[¶3] During the summer of 2014, Zachary Albrecht attempted to get his significant other2 to spice up their love life by having sex with another man. Using her Facebook account, he contacted Jones and tried to persuade him to visit her when he was not home. Thereafter, the woman and Jones communicated regularly via Facebook, but she repeatedly told him she had no interest in a sexual liaison.

[¶4] On August 24, 2014, Albrecht came home to find his significant other extremely upset and speaking with Jones on her cell phone. Jones told her Albrecht was pursuing a tryst with a woman who lived in another town, and sent her what he claimed were texts to that effect from the other woman. The two argued briefly about those accusations until Albrecht took the phone from her to confront Jones. Their conversation became heated, and Albrecht told Jones he would “kick his ass” if they ever ran into one another. Sometime after 4:00 p.m., Albrecht took his significant other's phone and drove off, leaving her at home with her children. The two men had agreed to meet at Riverview Park on the north side of Casper to fight.

[¶5] At approximately 6:00, Jones arrived at the park in a blue Ford Taurus borrowed from a female friend. Albrecht also arrived and walked toward Jones, who by this time had exited his vehicle and stood by the door with his hands in his pockets. According to Albrecht and two witnesses who were nearby, the men exchanged words, Jones extended his arm toward Albrecht, and they heard a “pop” as Jones shot him in the upper left portion of the abdomen with a small 22 caliber semi-automatic pistol. Jones then drove off. The two witnesses did not see anyone with him in the blue Taurus.

[¶6] Both witnesses called 911 and later gave a physical description of Jones, as well as the license plate number on the Taurus. Albrecht identified him by name. The male witness showed investigators where Jones had been standing when he fired the pistol, and they found a spent .22 shell casing nearby.

[¶7] That evening, a surgeon discovered that the bullet had penetrated a portion of Albrecht's liver and stomach and lodged under the skin on the left side of his back. He was hospitalized for several days before being released, and he eventually had to return on September 10, 2014, for a second surgery to remove fluid accumulations, treat infections, and address other complications from the bullet's passage through his upper abdomen and lower chest.

[¶8] Casper police apprehended Jones late in the afternoon of August 25, 2014, and the following day he was charged with attempted second-degree murder and aggravated assault and battery. The Information also charged that Jones had three prior felony convictions, and thus qualified as an habitual criminal under Wyo. Stat. Ann. § 6-10-201 as to both counts.3 The weapon used in the shooting was never recovered.

[¶9] Following a four-day trial in mid-April of 2015, a jury found Jones guilty of both charged crimes.4 The district court sentenced him to a prison term of forty to fifty years for the attempted murder, and to a term of fifteen to fifty years for the aggravated assault and battery.5 He timely perfected this appeal.

Double Jeopardy

[¶10] Jones argues that sentencing him for both attempted murder and assault and battery violates the double jeopardy clauses of the state and federal constitutions, and in particular, the bar against punishing a defendant more than once for what, in effect, is a single offense set out in two statutes.6 Whether the separate provisions describe the “same offense” is a question of legislative intent which this Court reviews de novo . Sweets v. State , 2013 WY 98, ¶¶ 19, 21, 307 P.3d 860, 867 (Wyo. 2013).

[¶11] If the legislature intended that a defendant's conduct be separately or cumulatively punished under separate statutory crimes, imposing sentences for each does not violate the “double punishment” aspect of the double jeopardy protections. On the other hand, if the legislature intended that the two crimes be viewed as the “same offense,” or if one is a lesser included offense of the greater, cumulative punishment is prohibited. Absent an explicit statutory declaration either permitting or prohibiting cumulative punishment for two crimes, we discern legislative intent in this context by application of the “same elements” test set out in Blockburger v. United States , 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Sweets , ¶¶ 21–24. 307 P.3d at 867–68.

[¶12] With respect to any given statute, we look only to the language used by the legislature to describe the elements which must be proven to bring a particular defendant's specific conduct within the reach of the statute. We do not concern ourselves with how those elements are proven in that defendant's case—that is, we look to what the legislature says must be proven, not the facts or evidence used in a particular case to establish that ultimate fact. Nor is it of any moment that such facts or evidence incidentally may also tend to prove an element of another crime with which the defendant is charged. Id. , ¶ 35, 307 P.3d at 871.

[¶13] The impulse to invoke facts and evidence to determine whether two crimes are the “same offense” for double jeopardy purposes is one that has haunted many courts, including both this Court and the United States Supreme Court. Known as the “same evidence test,” it has been disavowed because it results in confusion and instability in evaluating double jeopardy claims, and because, unlike the “same elements test,” it runs contrary to a longstanding historical understanding of the double jeopardy clause. Id. , ¶ 46, 307 P.3d at 874. In short, double jeopardy protections relate to “offenses” as defined by the language used to set out the elements of a statutory crime, not as defined by a defendant's particular actions. Id. , ¶ 47, 307 P.3d at 874.

[¶14] Second degree murder is defined as follows in Wyo. Stat. Ann. § 6-2-104 :

[W]hoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life.

Jones was charged with attempted second degree murder. The attempt statute, Wyo. Stat. Ann. § 6-1-301 (LexisNexis 2015), provides in pertinent part as follows:

(a) A person is guilty of an attempt to commit a crime if:
(i) With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A “substantial step” is conduct which is strongly corroborative of the firmness of the person's intention to complete the commission of the crime[.]

Finally, the portion of the aggravated assault and battery statute under which Jones was charged, Wyo. Stat. Ann. § 6-2-502(a)(ii), provides as follows:

(a) A person is guilty of aggravated assault and battery if he:
* * *
(ii) Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]

[¶15] Under the “same elements” test, if each of two charged statutory crimes requires proof of an element that the other does not, one is not a lesser included offense of the other and may be punished cumulatively. Sweets , ¶¶ 23–24, 307 P.3d at 868. Jones does not contest that attempted second-degree murder contains an element that is not an element of the type of aggravated assault and battery with which he was charged, Wyo. Stat. Ann. § 6-2-502(a)(ii), as it requires that a defendant act with malice. Burnett v. State , 2011 WY 169, ¶ 27, 267 P.3d 1083, 1090–91 (Wyo. 2011).7 However, he does claim that the latter statute contains no element that is not also required to prove attempted second degree murder. He asserts that the legislature made use of a deadly weapon an element of both offenses.

[¶16] There can be no doubt that use of a deadly weapon is an element of § 6-2-502(a)(ii) based on unambiguous statutory language. Jones then turns to the definition of “deadly weapon” contained in Wyo. Stat. Ann. § 6-1-104(a)(iv). That term “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[.] Wyo. Stat. Ann. § 6-1-104(a)(iv) (LexisNexis 2015). Jones contends that one cannot kill or attempt to kill a human being without employing a deadly weapon as that term is defined by statute, and that it is therefore necessarily an element of second degree murder.

[¶17] We previously...

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3 cases
  • Webb v. State
    • United States
    • Wyoming Supreme Court
    • September 15, 2017
    ...error occur[ ] when the trial court gave an inference of malice instruction?VI. Should this Court reconsider its holding in Jones v. State , 2016 WY 110, (Wyo. 2016) as this Court did not analyze the legislative history of Wyo. Stat. Ann. §§ 6-2-502(a)(ii) and 6-2-104 and determine that the......
  • Winters v. State
    • United States
    • Wyoming Supreme Court
    • July 22, 2019
    ...Under that test, there is no double jeopardy violation if each crime "requires proof of an element that the other does not." Jones v. State , 2016 WY 110, ¶ 15, 384 P.3d 260, 264 (Wyo. 2016). In so deciding,we look only to the language used by the legislature to describe the elements which ......
  • Harrell v. State
    • United States
    • Wyoming Supreme Court
    • June 16, 2022
    ...proof of an element that the other does not.’ " Winters v. State , 2019 WY 76, ¶ 101, 446 P.3d 191, 221 (Wyo. 2019) (quoting Jones v. State , 2016 WY 110, ¶ 15, 384 P.3d 260, 264 (Wyo. 2016) ). [¶13] In applying the same elements test, "we look only to the language used by the legislature t......

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