Thom v. State, 89-163

Citation792 P.2d 192
Decision Date15 May 1990
Docket NumberNo. 89-163,89-163
PartiesJonathan THOM, Appellant (Defendant), v. STATE of Wyoming, Appellee (Plaintiff).
CourtUnited States State Supreme Court of Wyoming

Page 192

792 P.2d 192
Jonathan THOM, Appellant (Defendant),
STATE of Wyoming, Appellee (Plaintiff).
No. 89-163.
Supreme Court of Wyoming.
May 15, 1990.

Page 193

Lee E. Karavitis, Casper, for appellant (defendant).

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Paul S. Rehurek, Sr. Asst. Atty. Gen., for appellee (plaintiff).


MACY, Justice.

Appellant Jonathan Thom appeals from his conviction of aggravated assault and battery.

We affirm.

Appellant presents the following issues: 1

1. Did the district court err in refusing to give Appellant's proposed instructions?

2. Did the district court commit error by its refusal to dismiss Count II of the information?

3. Did the district court err in allowing a number of miscellaneous errors which cumulatively prejudiced the defense?

4. Did the district court err in refusing to grant Appellant's motion to dismiss Count I and Count II?

On the evening of September 17, 1988, Appellant and his wife, Kristina, went to the Beacon Club in Casper, Wyoming, to celebrate a friend's birthday. After Appellant and Kristina consumed a disputed amount of alcohol, Appellant became upset with Kristina and decided to walk home. Kristina and her friend, Penny Sutton, remained at the bar for about twenty minutes and then drove to Kristina's and Appellant's home. Because she feared ramifications from her earlier dispute with Appellant, Kristina decided to take their two children and her child from a previous marriage to Ms. Sutton's house. Appellant arrived at the residence to find Ms. Sutton and the three children in a pickup, which had its doors locked and its engine running. Kristina had gone back into the house to get clothes for the children. After Appellant tried to open a locked door of the pickup, he removed one of his cowboy boots and used it to break out the window of the door on the driver's side. Appellant took the key to the ignition, went to his semi-truck, and retrieved his Ruger .44 magnum caliber revolver. He went into the house and found Kristina in one of the children's bedrooms. Kristina testified that Appellant pointed the gun at her chest and threatened to kill her. When he glanced away, Kristina rushed Appellant, and the gun fell to the floor. They struggled in a hallway and eventually ended up in another bedroom. Appellant pinned Kristina down on a bed until she managed to strike him with a lamp and escape his grasp. Appellant retrieved the gun once again and, according to Kristina, pointed it at her chest and said, " 'I'm going to kill you. I'm going to go get the kids. I'm going to kill them. Then I'm going to kill myself.' "

Page 194

In the meantime, Ms. Sutton had taken the children to the neighbors' house and telephoned for help. When a sheriff's deputy arrived, Appellant threw the gun on a bed, and Kristina ran out of the house. Appellant chased Kristina until he was apprehended and restrained by a deputy. Appellant was charged with two counts of aggravated assault and battery in violation of Wyo.Stat. § 6-2-502 (1977). Appellant pleaded not guilty to both counts.

On January 26, 1989, a jury returned a verdict of not guilty on Count I of aggravated assault and battery and a verdict of guilty on Count II of aggravated assault and battery. The district court sentenced Appellant to a minimum of thirteen months and a maximum of sixteen months in the Wyoming State Penitentiary. This appeal followed.

Appellant's first assignment of error challenges the district court's refusal to give any of his proposed instructions which delineated his main theory of defense. Appellant proposed, and the district court refused to give, the following instructions:



A parent may justify an assault and battery in defense of his children even to the killing of an assailant in the necessary defense of the child.

The law recognizes the power of parental affection and excuses acts which in the absence of the parent-child relation would be punished.

All that the law requires is that the parent should act in good faith and upon reasonable appearances of imminent danger to the child; the law will then hold him guiltless, even though it may afterward turn out that he might have saved the child by pursuing some other course.



It is lawful for a person to defend himself and others from attack if he has reasonable grounds for believing and does believe that bodily injury is about to be inflicted. In doing so he may use all force and means which he believes to be necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.



One who has reasonable grounds to believe that another will endanger his life or limb, or cause him serious bodily harm, or endanger his child's life or limb or cause his children serious bodily harm, has a right to arm himself for the purpose of resisting such injuries.


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24 cases
  • Oien v. State, 89-203
    • United States
    • United States State Supreme Court of Wyoming
    • August 17, 1990
    ......         Our standard of review of an appeal from a refused jury instruction contains two prongs of inquiry. Thom v. State, 792 P.2d 192 (Wyo.1990). The purpose to these two lines of questioning is to ascertain whether the defendant is protected by due process ......
  • Virgilio v. State
    • United States
    • United States State Supreme Court of Wyoming
    • June 4, 1992
    ...v. State, 808 P.2d 190 (Wyo.1991); Oien v. State, 797 P.2d 544 (Wyo.1990). Cf. Ramos v. State, 806 P.2d 822 (Wyo.1991) and Thom v. State, 792 P.2d 192 (Wyo.1990). In structure and decision with failure of the trial court to instruct the jury on the theory of the defendant's case, this appea......
  • Bouwkamp v. State
    • United States
    • United States State Supreme Court of Wyoming
    • June 2, 1992 part and dissenting in part; Ramos v. State, 806 P.2d 822 (Wyo.1991). See contra Oien v. State, 797 P.2d 544 (Wyo.1990); Thom v. State, 792 P.2d 192 (Wyo.1990); Stuebgen v. State, 548 P.2d 870 (Wyo.1976) and Murdock v. State, 351 P.2d 674 (Wyo.1960). In accord with this court's immediate......
  • Olsen v. State
    • United States
    • United States State Supreme Court of Wyoming
    • April 14, 2003
    ...standard of review for a requested-but-refused jury instruction is established by Oien v. State, 797 P.2d 544 (Wyo.1990) and Thom v. State, 792 P.2d 192 (Wyo.1990). "The refusal to allow an instruction requested by the defendant when due process requires the defendant's instruction be given......
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