Levengood v. State

• Decision Date: 04 November 2014
• Docket Number: No. S–14–0078.,S–14–0078.
• Citation: 2014 WY 138,336 P.3d 1201
• Parties: Kenneth Ray LEVENGOOD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

336 P.3d 1201

2014 WY 138

Kenneth Ray LEVENGOOD, Appellant (Defendant)

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–14–0078.

Supreme Court of Wyoming.

Nov. 4, 2014.

Representing Appellant: Donald A. Cole, Cole & Cole, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Caitlin F. Young, Assistant Attorney General.

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

Opinion

FOX, Justice.

[¶ 1] Kenneth Levengood was convicted of aggravated assault and battery under Wyo. Stat. Ann. § 6–2–502(a)(iii) for threatening to use a drawn deadly weapon on his ex-girlfriend. On appeal, Mr. Levengood contends there was insufficient evidence that he threatened to use the weapon. We affirm.

ISSUE

[¶ 2] Was the evidence presented at trial sufficient to prove Mr. Levengood threatened to use the knife he was carrying?

FACTS

[¶ 3] On the morning of January 9, 2013, as twelve-year-old A.L. got ready for school, her father, Mr. Levengood, opened her bedroom door with an eighteen-inch kitchen knife in his hand and told her to go back to sleep. Realizing he was drunk and “acting strange,” A.L. followed her father into the hallway and told him to go to the kitchen and stay there. Mr. Levengood did not respond, but clenched his jaw, and with knife still in hand walked to the kitchen.

[¶ 4] A.L. “had never seen him act like that before,” and, scared that he would hurt her, his ex-girlfriend, or himself, she entered the bedroom Mr. Levengood shared with his ex-girlfriend, Aundrea Thompson,¹ to tell her what was going on. Ms. Thompson told A.L. to lock the bedroom door and then she tried calling two members of Mr. Levengood's family. Mr. Levengood rattled the doorknob while asking to be let in, to which Ms. Thompson responded, “No.” Mr. Levengood forced the bedroom door open and entered, holding the knife down at his side. Ms. Thompson told him to leave, and he complied. A.L. locked the bedroom door once again.

[¶ 5] Unable to reach Mr. Levengood's relatives, Ms. Thompson called 911. A.L. testified that while Ms. Thompson was talking to the 911 dispatcher, “[D]ad came again to the door, and it sounded like he was kind of like knocking, kind of like pounding on it.”

[¶ 6] Officer Michael Sutton, a crime scene technician with the Cheyenne Police Department who arrived shortly thereafter, estimated the bedroom door contained eight to eleven independent marks “consistent with knife marks that I've seen on other cases.” Towards the top of the door, and down to the center, “was a very long and sort of pyramid-shaped ... or triangular-shaped slash mark which appeared to be done with some sharp object.” At several other locations, Officer Sutton reported “smaller holes that looked like something was poked into the door, very skinny, which I would attribute to what I've seen with knife wounds [.]” In one location there was an entry hole followed by a four-to-five inch slash that appeared to have been created by a knife pushed into the door and then forced down through the door using “significant force.” Officer Sutton also observed an “unusual” large dent and pry marks on the top of the doorknob, as well as “jab” marks in the door jamb, appearing as though “something had been stuck into the door, and then it appeared as someone pried down on the doorknob, like someone was trying to damage the doorknob.” At trial, commenting on the marks, Officer Sutton testified:

You know, typically when I see marks like this in a door, this is from a very violent situation. It's not the first time I've seen marks like this. I've seen marks like this in walls. I've seen marks like this in doors. I've seen marks like this in people. And every time I've seen marks like this it was a very violent situation.

[¶ 7] A.L. further testified:

And then he was able to get the door open again. And I think he could tell that Andrea [sic] was on the phone with the police, and so he put the knife—he walked over into the room and he put the knife on the stand, on the TV stand, and he walked out.

[¶ 8] The police arrived soon after, and as Ms. Thompson and A.L. left the bedroom, A.L. noticed marks on the bedroom door and walls of the hallway outside the bedroom.

[¶ 9] When Officer Sutton went down the hallway leading to the bedroom, he observed fresh slash marks on the hallway walls. Regarding these marks, Officer Sutton testified, “You know, in my training and experience, when you see slash marks like this ... these are typically of a violent situation. It indicates to me that someone's very upset, and has made these marks in anger.”

[¶ 10] Mr. Levengood was arrested and charged with one count of aggravated assault and battery for threatening to use a drawn deadly weapon against Ms. Thompson. Wyo. Stat. Ann. § 6–2–502(a)(iii) (LexisNexis 2013). Following a bench trial, the district court found Mr. Levengood guilty. He was sentenced to serve four to five years in prison, suspended in favor of three years supervised probation. Mr. Levengood timely filed this appeal.

STANDARD OF REVIEW

[¶ 11] Mr. Levengood contends the State presented insufficient evidence to establish beyond a reasonable doubt that he threatened to use a drawn deadly weapon. Our standard for reviewing the sufficiency of evidence is well established.

[W]e review that evidence with the assumption that the evidence of the prevailing party is true, disregard the evidence favoring the unsuccessful party, and give the prevailing party the benefit of every favorable inference that we may reasonably draw from the evidence. We will not reweigh the evidence nor will we re-examine the credibility of the witnesses.

Brown v. State, 2014 WY 104, ¶ 8, 332 P.3d 1168, 1171–72 (Wyo.2014) (quoting Perritt v. State, 2005 WY 121, ¶ 9, 120 P.3d 181, 186 (Wyo.2005) ).

[¶ 12] “[W]e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt.” Hart v. State, 2003 WY 12, ¶ 8, 62 P.3d 566, 569 (Wyo.2003) (quoting Williams v. State, 986 P.2d 855, 857 (Wyo.1999) ). In other words, we do not consider “whether or not the evidence was sufficient to establish guilt beyond a reasonable doubt, but [instead] whether or not the evidence could reasonably support such a finding by the factfinder.” Broom v. State, 695 P.2d 640, 642 (Wyo.1985). We review the decision from a criminal bench trial the same as we would that of a jury trial. Romero v. State, 2010 WY 84, ¶ 6, 233 P.3d 951, 953 (Wyo.2010) (citing Fitzgerald v. State, 599 P.2d 572, 574 (Wyo.1979) (“The function of the finder of fact in [criminal] cases tried to a court is identical to that in cases tried to juries, and the same rules are applicable with respect to the standards and principles applied in appellate review.”)).

DISCUSSION

[¶ 13] Mr. Levengood was convicted of aggravated assault and battery under Wyo. Stat. Ann. § 6–2–502(a)(iii), which reads,

(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[.]

[¶ 14] Section 6–2–502(a)(iii) is a general rather than a specific intent crime. Cox v. State, 829 P.2d 1183, 1185 (Wyo.1992) ; Simmons v. State, 674 P.2d 1294, 1297 (Wyo.1984) ; Carfield v. State, 649 P.2d 865, 869 (Wyo.1982). In Dean v. State, 668 P.2d 639 (Wyo.1983), we explained the difference.

When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence the fact that the defendant intended to do the proscribed act makes that crime a general criminal intent offense. When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.

Id. at 642 (citations, quotation marks, and emphasis omitted).

[¶ 15] As a general intent crime, the language, “[t]hreatens to use,” describes what a defendant must do with a drawn deadly weapon to be guilty of aggravated assault under § 6–2–502(a)(iii). Dean, 668 P.2d at 642. We have held that “ ‘threatens to use’ requires proof of an actual threat of physical injury during the act of employing a deadly weapon.” Johnston v. State, 747 P.2d 1132, 1134 (Wyo.1987) (internal citation omitted). In Johnston, we approved the trial court's definition of “threat:”

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 or acts. Considering all 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.

Id. at 1135.

[¶ 16] In Johnston, appellant Johnston, observed an altercation between two relatives. Id. at 1133. Johnston retrieved a knife that was dislodged during the altercation and approached one of the two relatives, brandishing the knife in the area of the person's face and neck.Id. The victim testified that Johnston nicked him with the knife. Id. Johnston claimed that the only threat he made towards the victim was possessing the knife while questioning: “You like to play with knives?” Id. He was convicted of aggravated assault under § 6–2–502(a)(iii). Id.

[¶ 17] In Johnston's appeal, we looked to the circumstances of the altercation in order to determine whether the jury could properly infer a threatening employment of the knife as an expression of intention to inflict pain or injury. Id. at 1135. Giving every favorable inference to the State's evidence, we concluded:

Appellant was a forty-three-year old, 6'3? man, weighing 245 pounds, towering over McDaneld, a nineteen-year-old, 5'11? boy, weighing 155 pounds; “working,” i.e., opening and closing, the

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