Johnston v. State
In Johnston v. State, 747 P.2d 1132, 1134-35 (Wyo. 1987), the Court held that proof of the mere presence of a weapon is insufficient to satisfy the "threatens to use" element of the crime of aggravated assault and battery. Id. at 1134.
The phrase "threatens to use" requires proof of an actual threat of physical injury during the act of employing a deadly weapon. Id.
In Johnston, having defined "threatens to use," we also considered conflicting evidence, and we determined that the following facts met that definition and established the essential element of "threatens to use:"
"To illustrate the scene portrayed to the jury, the evidence viewed in a light most favorable to the state showed: Appellant was a forty-three-year old, 6'3" man, weighing 245 pounds, towering over McDaneld, a nineteen-year-old, 5'11" boy, weighing 155 pounds; "working," i.e., opening and closing, the butterfly knife as he approached within inches of the boy's throat; nicking the boy; only to be interrupted in the further employment of the knife by the advent of McDaneld's mother onto the scene."
(Johnston, 747 P.2d at 1136-37.)
The Court held that:
"under these circumstances, not only could the jury properly have inferred a threatening employment of the drawn knife as an expression of an intention to inflict pain and injury, but also as an accomplishment of that expression as manifested by the nicked and bloodied throat. These were reasonable inferences that the jury was entitled to draw from the evidence before it. Again, it is not this court's function to re-weigh the evidence or re-examine the believability of the witnesses, but only to declare sufficiency or lack of sufficiency of the evidence. In this case we declare sufficiency." (Id. at 1137.)