Summary 2008 WY 149

Summary of Decision issued December 17, 2008

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Schafer v. State

Citation: 2008 WY 149

Docket Number: S-07-0175

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge.

Representing Appellant Schafer: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel; and Kirk A. Morgan, Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: A Natrona County jury found Schafer guilty on seven of eight counts, which included various assault charges and multiple drug charges.

The Court looked at the statutory language of Wyo. Stat. Ann. § 6-1-301(a)(i). Schafer was convicted of attempting to threaten to use a drawn deadly weapon on another. The question was whether the Wyoming Legislature intended attempted aggravated assault to be a criminal offense. The Court analyzed the language of the aggravated assault and battery statute in order to determine if it covered the issue of attempt, thus precluding the overlay of the general attempt statute. A person is guilty of aggravated assault and battery if he: 1) seriously injures someone or injures a pregnant woman; 2) attempts to injure someone with a deadly weapon; or 3) threatens to injure someone with a drawn deadly weapon. The Court concluded the Wyoming Legislature did not intend for the general attempt statute to be applicable to the specific aggravated assault and battery statute.

Three claims of prosecutorial misconduct were alleged on appeal. Schafer was mentioned in a newspaper article with Zach Cohen who had been convicted of numerous offenses similar to those with which Schafer was charged at trial. At trial, a computer desktop file folder that was projected on a large screen at trial was marked “Cohen.” The Court reviewed the record and agreed with the district court that the icon had to have been tied in some way to Schafer to prejudice him. The prosecutor would know of a connection between Schafer and Cohen given his line of work. Schafer argued that the prosecutor shifted the burden of proof to Schafer with his comments. The district court struck that portion of the argument and instructed the jury that Schafer had no burden to present any evidence. The prosecutor asked the jury in closing argument to consider the protection of the community in general. The Court stated the prosecutor’s comments did not rise to the level that so prejudiced Schafer that the district court could not have reasonably concluded as it did. The cumulative effect of the alleged instances of prosecutorial misconduct did not add up to reversible error.

Holding: The Wyoming Legislature did not intend attempted aggravated assault to be a criminal offense; therefore Schafer’s conviction under Count I cannot stand. The Court reversed Schafer’s conviction because the Legislature never intended for the general attempt statute to be applied to the aggravated assault and battery statute. The crime as charged in the Count simply does not exist except by judicial and prosecutorial creation. The Court concluded that the district court did not abuse its discretion in denying Schafer’s motion for a new trial.

Affirmed in part, reversed in part and remanded for resentencing.

J. Hill delivered the decision.

Concurrence: C.J. Voigt, (concurring in part and dissenting in part) The Chief Justice concurred in the part of the majority opinion that affirmed Appellant’s various convictions and agreed that the aggravated assault and battery conviction should be reversed, but would do the latter on the basis of insufficiency of the evidence as opposed to doing so as a matter of law. He dissented from the portions of the opinion that concluded that the legislature manifested an intent to declare that “attempt to threaten with a drawn deadly weapon” was not a crime and that concluded that the legislature manifested an intent that the general attempt statute did not apply to any of the subdivisions of the aggravated assault and battery statute.

Link: http://tinyurl.com/5klvlt .

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