Nickels v. State, S–14–0245.

• Decision Date: 16 June 2015
• Docket Number: No. S–14–0245.,S–14–0245.
• Citation: 351 P.3d 288,2015 WY 85
• Parties: Timothy S. NICKELS, Appellant (Defendant), v. The STATE of Wyoming, Appellee Plaintiff.
• Court: Wyoming Supreme Court

351 P.3d 288
2015 WY 85

Timothy S. NICKELS, Appellant (Defendant)
v.
The STATE of Wyoming, Appellee Plaintiff.

No. S–14–0245.

Supreme Court of Wyoming.

June 16, 2015.

351 P.3d 289

Representing Appellant: Office of the Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Attorney General. Argument by Mr. Morgan.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General. Argument by Ms. Craig.

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

Opinion

KITE, Justice.

¶ 1] Timothy S. Nickels was convicted by a jury of strangulation of a household member. He claims the district court erred by refusing to instruct the jury on the lesser included offense of battery. We conclude the

[351 P.3d 290

district court properly refused the lesser included offense instruction because there was no evidence to support it.

¶ 2] We affirm.

ISSUE

[¶ 3] Mr. Nickels states the issue on appeal as:

Did the district court err when it refused to give appellant's requested lesser included offense instruction?

The State presents a similar issue, although it is phrased in more detail.

FACTS

[¶ 4] Mr. Nickels and the victim, Diana Evans, were involved in a long-term romantic relationship. Earlier in their relationship, they had hitchhiked to truck stops in various states, where Mr. Nickels earned money by polishing wheels and tanks on semi-trucks. Although the victim decided in 2003 to move to Torrington, Wyoming to live near her mother, she and Mr. Nickels continued their relationship and he would occasionally stay with her.

[¶ 5] On October 21, 2013, Mr. Nickels was staying with the victim in Torrington. They drank beer throughout the afternoon and Mr. Nickels became “aggravated” because he believed he had not been paid fairly for some work he had done for an acquaintance. Mr. Nickels was planning to leave the next day, and the victim decided to quit drinking that evening so she could drive him out of town. They went to bed and he asked if they were going to make love, to which she responded, “No.”

[¶ 6] Mr. Nickels climbed on top of the victim with a leg on either side of her, put both hands on her neck, and pressed so hard she could not breathe. She thought she passed out and he let go. After she took a few breaths, he began to press on her neck again. Mr. Nickels let go the second time, said he was leaving and demanded that she give him some money. After she complied, Mr. Nickels left the house.

[¶ 7] The victim made sure the doors were locked and called a friend, who advised her to contact law enforcement. She called 911 and Sergeant Matthew Davis of the Torrington Police Department responded. At first, the victim would not answer the door because she did not know who was knocking and was afraid Mr. Nickels had returned. After Sgt. Davis identified himself, she let him in. He interviewed her and took photographs of her neck. Emergency medical technicians were summoned to the house, but she refused to be transported to the hospital.

[¶ 8] The State charged Mr. Nickels with one count of strangulation of a household member in violation of Wyo. Stat. Ann. § 6–2–509(a)(i) and (b) (LexisNexis 2013), and he pleaded not guilty. The matter went to trial before a jury on March 24, 2014. The district court refused Mr. Nickels' request for a lesser included offense instruction, concluding there was no evidence to support giving such an instruction. The jury returned a guilty verdict, and Mr. Nickels appealed after the district court sentenced him.

STANDARD OF REVIEW

[¶ 9] Mr. Nickels objected to the district court's failure to give the lesser included offense instructions. We, therefore, review his claim that the district court erred de novo. Silva v. State, 2012 WY 37, ¶ 23, 271 P.3d 443, 450 (Wyo.2012).

DISCUSSION

[¶ 10] Mr. Nickels was convicted of strangulation of a household member, which is a felony under § 6–2–509 :

(a) A person is guilty of strangulation of a household member if he intentionally and knowingly or recklessly causes or attempts to cause bodily injury to a household member by impeding the normal breathing or circulation of blood by:

(i) Applying pressure on the throat or neck of the household member; or

(ii) Blocking the nose and mouth of the household member.

(b) Strangulation of a household member is a felony punishable by imprisonment for not more than five (5) years.

(c) For purposes of this section, “household member” means as defined in

[351 P.3d 291

W.S. 35–21–102(a)(iv)(A) through (D), (G) and (H).

The district court narrowed the elements of the crime in the instruction given at trial:

1. On or about October 21, 2013;

2. In Goshen County, Wyoming;

3. The Defendant, Timothy S. Nickels;

4. Did intentionally and knowingly;

5. Cause bodily injury to [the victim], a household member;

6. By impeding her normal breathing;

7. By applying pressure on [the] throat or neck of [the victim].

¶ 11] Mr. Nickels argues the district court committed reversible error by failing to instruct the jury on the lesser included offenses of battery, under Wyo. Stat. Ann. § 6–2–501(b) (LexisNexis 2013),¹ and domestic battery, under Wyo. Stat. Ann. § 6–2–511 (LexisNexis 2014). Mr. Nickels' appellate argument on § 6–2–511 is misplaced because that statute did not go into effect until July 1, 2014. He committed his crime in 2013 and the trial was held in March 2014. At that time, domestic violence was addressed by § 6–2–501(e) and (f), which provided enhanced penalties for repeat convictions of crimes against household members.

[¶ 12] Consequently, the question for our determination is whether the district court should have instructed the jury on the offense of battery as set out in § 6–2–501(b) :

(b) A person is guilty of battery if he intentionally, knowingly or recklessly causes bodily injury to another person by use of physical force.

Under subsection (d) of the statute, battery is a misdemeanor.

[¶ 13] Our precedent on lesser included offense instructions is long and complicated. We attempted to put to rest various problems with the governing law in State v. Keffer, 860 P.2d 1118 (Wyo.1993). One of the issues addressed in that case was how to determine whether a crime is actually a lesser included offense. In making that determination, W.R.Cr.P. 31(c) governs:

(c) Conviction of Lesser Offense. —The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense.

Based upon the “necessarily included” language of Rule 31(c), applicable federal precedent and earlier Wyoming case law, we concluded the statutory elements or “Blockburger test”² should be used to determine whether a statute sets out a lesser included offense. Keffer, 860 P.2d at 1133–34. The general Blockburger test states:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or

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