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Dike v. State11/30/1999
ultimately convinced Dike to let her take her car. Dike got into the car with the victim and began accusing her of telling her husband about the sexual advances he had made toward her the previous summer. The victim denied telling her husband anything and tried to persuade Dike to give her the gun.
The victim was finally able to convince Dike to give her the gun, which she held in her left hand while she drove toward the Buffalo Lodge. When she arrived at the Buffalo Lodge, she spoke with a new employee and told him that she was going to take Dike to his truck and that she would return to train him, hoping he would get suspicious if she did not come back.
When they got to Dike=s truck, Dike told the victim that he would kill himself if she called the police. The victim assured Dike that she would not call the police and gave the gun back to him. At that point, Dike showed the victim that the gun was not loaded. He exited her vehicle and followed her as she drove back toward the Buffalo Lodge.
While she was on her way back to the Buffalo Lodge, the victim used her cellular telephone to call her mother-in-law, who advised her to call the police. Although she was apprehensive about doing so, the victim did call the police from the Buffalo Lodge and asked to speak with Deputy Sheriff Jake Hardin. During this telephone conversation, the victim told the dispatcher what had happened and also communicated it to Deputy Hardin. Deputy Hardin, along with two detectives from the Laramie County sheriff=s office, went to Dike=s home and arrested him. Searches of the house on separate occasions netted various guns and ammunition.
Dike was charged with aggravated assault and kidnapping. At the trial, Dike acknowledged that he went to the victim=s home, that they had an argument, and that he rode with her to the Buffalo Lodge, but he denied threatening the victim with a gun. A jury convicted Dike of the aggravated assault offense, and the trial Judge sentenced him to serve a term in a state penal institution of not less than two years nor more than five years. Dike appeals from his conviction to this Court.
DISCUSSION
A. Definition of a AADeadly Weapon@
@
In his first claim of error, Dike contends that the state failed to prove that he committed aggravated assault because the only evidence relating to the deadly weapon requirement of the offense was that he possessed an unloaded gun. The state counters that it was not required to establish that the firearm was loaded in order to prove that Dike committed aggravated assault.
Wyo. Stat. Ann. ' 6-2-502(a)(iii) (LEXIS 1999) describes the aggravated assault offense:
(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 . . .
The term Adeadly weapon@ is defined in Wyo. Stat. Ann. ' 6-1-104(a)(iv) (LEXIS 1999) as follows:
(iv) ADeadly weapon@ means but is not limited to a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance, which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury[.]
Dike contends that the phrase Awhich in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury@ qualifies each of the previously listed items, including Aa firearm.@
In deciding this issue, we must apply our well established
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