Streitmatter v. State

• Decision Date: 04 June 1999
• Docket Number: No. 97-171,97-171
• Citation: 981 P.2d 921
• Parties: Elmer STREITMATTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 921

981 P.2d 921

Elmer STREITMATTER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 97-171.

Supreme Court of Wyoming.

June 4, 1999.

Sylvia L. Hackl, State Public Defender; Donna D. Domonkos, Assistant Public Defender; and Karl Linde, Assistant Public Defender, Representing Appellant.

William U. Hill, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker-Musick, Assistant Attorney General, Representing Appellee.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, ^*JJ.

THOMAS, Justice.

In his appeal from a conviction of aggravated assault in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) (Michie 1997), Elmer Streitmatter (Streitmatter) raises the constitutionality of the statute under which he was convicted. In a related claim of error, he asserts that the trial court failed to properly instruct the jury on the elements of the crime. In addition, he presents claims of error in the admission and exclusion of evidence, arguing that a police officer should not have been permitted to recount statements made to him by the victim and the victim's daughter and, further, that he should have been permitted to present evidence as to his mental and physical condition at the time of the offense. Our examination of the record and review of the pertinent rules of law persuade us that the statute is constitutional; the trial court properly instructed the jury; and there was no abuse of discretion in the evidentiary rulings. The Judgment and Sentence of the Court is affirmed.

In the Brief of Appellant, the issues raised by Streitmatter are:

ISSUE I

Whether Wyo. Stat. § 6-2-502(a)(iii) is unconstitutionally vague on its face because it does not require a mental element and fails to discriminate between threats with a deadly weapon that constitute criminal behavior and those that do not, in violation [of] Wyo. Const. Art. 1 § 6. U.S. Const. Amend. XIV.

ISSUE II

Whether the district court committed reversible error when it allowed Officer Smith to testify to numerous statements allegedly made by [the victim] and [the victim's daughter] that did not qualify for any hearsay exception or exemption.

ISSUE III

Did the district court commit reversible error by failing to properly instruct the jury on the law relating to the elements of the crime?

ISSUE IV

Whether the district court deprived appellant of his right to present a defense by prohibiting three defense witnesses from testifying concerning appellant's mental and physical condition at the time of the offense.

The State of Wyoming presents the issues in this way in its Brief of Appellee:

I. Whether Wyo. Stat. § 6-2-502(a)(iii) is unconstitutionally vague?

II. Whether the trial court properly instructed the jury?

III. Whether the trial court properly allowed Officer Smith to testify concerning statements made to him?

IV. Whether the trial court properly prohibited testimony concerning appellant's medical and physical condition?

On April 14, 1996, Streitmatter was living in Cheyenne with his ex-wife, the victim, and their four children. Sometime during the morning of that day, Streitmatter and the victim argued about Streitmatter's drinking alcohol in the morning. The victim and the children left the house shortly before noon with the victim's mother, and they all went to the home of the victim's step-sister. About an hour later, the victim's mother left the step-sister's home with the children, and eventually she took the children back to the Streitmatter residence. The victim returned home later that evening.

Streitmatter pulled the victim into the house by her hair, and he began beating her and accusing her of spending the evening in the company of other men. There came a time during the struggle when Streitmatter held the victim against a wall with one hand while holding two knives in his other hand. Fortuitously, the Streitmatters' landlord was in the area on an unrelated errand, and, having noticed the screen door was open, he decided to investigate. The victim asked Streitmatter to permit the landlord to take her and the children to her mother's house for the night. Streitmatter then accused the victim of wanting to have sex with the landlord, and he threw her against the wall, causing her to lose consciousness. After that, Streitmatter threatened the landlord with the knives, but the landlord was able to calm Streitmatter down enough so that he would sit and talk.

The victim regained consciousness, and, without Streitmatter noticing, went to a neighbor's home to call for help. The victim then returned home and stayed with the children while the landlord held Streitmatter in conversation until the police arrived. After talking with the parties, the police took Streitmatter into custody on a charge of simple assault.

Later, Streitmatter was charged with aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii), with the charge specifying the knives as the deadly weapon. Streitmatter entered a plea of not guilty to this charge, and his trial commenced on November 18, 1996. The following day, the jury returned a verdict of guilty. On March 14, 1997, the trial court sentenced Streitmatter to a term of not less than four and not more than six years in the state penitentiary. Streitmatter appeals from the Judgment and Sentence of the Court.

In what can best be described as a convoluted argument, Streitmatter first attacks the constitutionality of Wyo. Stat. Ann. § 6-2-502(a)(iii) because it does not require a mental element and because it fails to discriminate between conduct that would constitute criminal behavior and conduct that would not. Streitmatter acknowledges the clear holding of this court in Cox v. State, 829 P.2d 1183 (Wyo.1992), that Wyo. Stat. Ann. § 6-2-502(a)(iii) defines a general intent crime, which simply proscribes a particular act, and requires only the intent to be inferred from doing the act that constitutes the offense charged. Even so, Streitmatter relies upon State v. Stern, 526 P.2d 344 (Wyo.1974) and Nimmo v. State, 603 P.2d 386 (Wyo.1979) to structure an argument that the statute is unconstitutional because no mental element is articulated.

The major fallacy in Streitmatter's reliance on Stern lies in the assumption that assault and battery is not a common law crime. In Ross v. State, 16 Wyo. 285, 93 P. 299, 301 (1908), in dictum, this Court recognized that assault and battery was a common law crime, while noting that the statutory definitions differed from the common law crime. We are in accord with the Supreme Court of Maine, which held that the statutory definition of assault and battery is simply declaratory of the common law. State v. Rand, 156 Me. 81, 161 A.2d 852, 853 (1960). It is clear that Wyo. Stat. Ann. §§ 6-2-501 and 6-2-502 (Michie 1997), simple assault and battery and aggravated assault and battery, are the statutory equivalents of a crime at common law. In Nimmo, the court pointed out that Stern "warns that the guidelines set forth in the opinion are inapplicable in determining the validity of statutes involving common-law crimes * * *." Nimmo, 603 P.2d at 389. While Streitmatter seeks to sever subparagraph (iii) from the rest of Wyo. Stat. Ann. § 6-2-502(a), claiming that the conduct proscribed was not a crime at common law, we are satisfied that the entire statute must be evaluated to determine if it had a genesis in common law, and we hold that it did.

We have no hesitancy in holding in this case that the crime defined by Wyo. Stat. Ann. § 6-2-502(a)(iii) is a general intent crime. The statute proscribed this conduct:

(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 * * *.

We rely upon Bryan v. State, 745 P.2d 905, 909 (Wyo.1987), where we said:

In determining whether a factual basis exists for a guilty plea to a general intent crime, the court must only find that the act was done voluntarily. " '[T]he inference thereupon arises that the defendant intended that which resulted.' " Slaughter v. State, Wyo., 629 P.2d 481, 483-484 (1981), quoting Dorador v. State, Wyo., 573 P.2d 839, 843 (1978).

"[W]here the offense is malum prohibitum, intent and knowledge are not elements of the crime, unless expressly made so, and all that is required for the commission of the crime is the intentional doing of the prohibited act itself, regardless of whether the doer intended to commit the crime resulting from the intentional act." (Footnotes omitted.) 22 C.J.S. Criminal Law, § 30, p. 105.

Further, we said in Cox, 829 P.2d at 1185-86:

Rather than describing a specific intent crime, § 6-2-502(a)(iii) conforms to our definition of a general intent crime; i.e., a statute which simply describes a particular act, without reference to intent to do a further act or achieve a future consequence. The language, "[t]hreatens to use," merely describes what a defendant must do with a drawn deadly weapon to be guilty of aggravated assault. See Johnston v. State, 747 P.2d 1132, 1134 (Wyo.1987) ("threatens to use" requires an actual threat of physical injury during the act of employing a deadly weapon). As a general intent crime, aggravated assault requires only that intent which may be inferred from doing the act which constitutes the offense charged; i.e., slashing back and forth with the hunting knife. Carfield [v. State ], 649 P.2d [865,] 869 [ (Wyo.1982) ]; Sanchez v. State, 567 P.2d 270, 279 (Wyo.1977).

The prong of Streitmatter's first argument that this statute is unconstitutionally vague because it does not require a mental element is fallacious. We hold that the statute is constitutional contrary to Streitmatter's argument.

Streitmatter also asserts facial unconstitutionality because the...