Shey Elan Bruce

IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 46

OCTOBER TERM, A.D. 2014

March 26, 2015

SHEY ELAN BRUCE,

Appellant

(Defendant),

v. S-14-0138

THE STATE OF WYOMING,

Appellee

(Plaintiff).

Appeal from the District Court of Fremont County

The Honorable Norman E. Young, Judge

Representing Appellant:

Office of the State Public Defender: Diane Lozano, State Public Defender; and

Tina N. Olson, Chief Appellate Counsel. Argument by Ms. Olson.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy

Attorney General; Jenny L. Craig, Senior Assistant Attorney General; and

MacKenzie Williams, Senior Assistant Attorney General. Argument by Mr.

Williams.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be

made before final publication in the permanent volume.

HILL, Justice.

[¶1] A jury convicted Appellant Shey Bruce of manslaughter and battery of a

household member. Mr. Bruce appeals his manslaughter conviction, claiming that the

district court erred in denying his motion for judgment of acquittal in relation to the

charge of second degree murder and his post-trial motion for judgment of acquittal in

relation to the manslaughter conviction. He also alleges error in the district court’s denial

of his motion for new trial, its refusal to instruct the jury on his claim of self defense, and

its admission of the deceased victim’s 911 call. We affirm.

ISSUES

[¶2] Mr. Bruce states the issues on appeal as follows:

I. Did the trial court err in denying the motions for

judgment of acquittal with regard to the charge of second

degree murder and in denying the motion for judgment of

acquittal, post-trial, of Appellant’s conviction of

manslaughter?

II. Did the trial court err in denying Appellant’s motion

for new trial, based upon undisclosed statements of the

deceased, which the jury heard?

III. Did the trial court err in refusing to instruct the jury as

to self-defense?

IV. Did the trial court err in admitting the 911 call made

by the decedent?

FACTS

[¶3] Charles Darrell Laster and Lavena Laster were originally married in 1996,

divorced in 2004, remarried in 2007, and separated again, though not divorced, in 2010.

In 2010, the Lasters were living in Shoshoni, Wyoming, and when they separated, Mrs.

Laster moved to Mesa, Arizona. Mrs. Laster lived in Arizona until March 2013, when

Mr. Laster bought her a bus ticket so she could return to Shoshoni. When Mrs. Laster

returned to Shoshoni, she stayed with her daughter, Teri Hughes. Mr. and Mrs. Laster

did not reunite, but they remained good friends.

[¶4] While living in Arizona, Mrs. Laster met and began dating Mr. Bruce. The two

were still dating when Mrs. Laster returned to Shoshoni, and Mr. Bruce joined Mrs.

Laster in Shoshoni about a month after her return. Mrs. Laster and Mr. Bruce initially

stayed with Mrs. Laster’s daughter, Teri Hughes, and then eventually moved into a one-

bedroom home. Mrs. Laster and Mr. Bruce could not afford to rent the home, so Mrs.

1

Laster asked Mr. Laster to rent the home for them, which he agreed to do. Mrs. Laster

and Mr. Bruce did odd jobs around Mr. Laster’s place to help work off the rent.

[¶5] On May 14, 2013, Mrs. Laster was at Mr. Laster’s home drinking. She had been

drinking for several days and described herself as a “blackout drinker.” At about 9:00 or

9:30 that morning, Mr. Bruce had coffee at the home of Mr. Laster’s next door neighbor,

Norman Hughes, who is also the father-in-law of Teri Hughes. Mr. Hughes reported that

Mr. Bruce was intoxicated, and angry and distraught, because Mr. Laster had put his hand

on Mrs. Laster’s leg. Mr. Bruce spent the day at Mr. Hughes’ home and went back and

forth between the homes of Mr. Laster and Mr. Hughes several times throughout the day.

[¶6] At one point, Mr. Bruce told Mr. Hughes that he was going to return to Arizona

and he had a check that Mr. Laster had given him to pay for his return trip. Mr. Bruce

left Mr. Hughes’ home at about 5:00 or 6:00 on the evening of May 14th, and Mr.

Hughes described his departure:

Q. Tell us about that. Tell us about him leaving, if

you would.

A. Well, like I said, I kept telling him, you’re not

going to get a bus ticket. The best thing you can do is,

intoxicated, you can always go home and sleep it off. If you

feel like you still want to leave in the morning, then by all

means, do it.

Q. And did he leave?

A. Yes, he did.

Q. Tell us about that.

A. He got into Darrell’s [Mr. Laster’s] bright blue

Mustang, spun gravel as he was leaving, and then he left.

[¶7] At some point after Mr. Bruce left, Mrs. Laster looked outside Mr. Laster’s home

and saw that Mr. Laster’s blue Mustang was gone. Mrs. Laster reported this to Mr.

Laster, and in response, Mr. Laster loaded two rifles and two handguns. When Mrs.

Laster asked Mr. Laster why he was preparing the firearms, Mr. Laster replied that he

was “not going to take an ass whooping from a young man.”1 The Lasters placed the

firearms in Mr. Laster’s truck and drove over to the home that Mrs. Laster and Mr. Bruce

shared. Once there, Mrs. Laster saw that the keys were in the Mustang, so she did not go

in the home and instead got in the car and followed Mr. Laster back to his home.

[¶8] Upon their return to Mr. Laster’s home, the Lasters carried the firearms into the

home and into the back bedroom. Mr. Laster unloaded the firearms, leaving the

1

The record indicates that on May 14, 2013, Mr. Laster was sixty-five years old and Mr. Bruce was forty-

five years old.

2

ammunition in a pile on the floor. At some point, while the Lasters were in the back

bedroom, Mr. Bruce entered the home and came to the back bedroom. Mr. Bruce had a

beer bottle in his hand, and he and Mr. Laster talked about something that Mrs. Laster

could not recall. Mr. Bruce then struck Mrs. Laster on the left side of her head with the

beer bottle, rendering her unconscious.

[¶9] When Mrs. Laster awoke, Mr. Laster was on the telephone speaking to a 911

dispatcher. During Mr. Laster’s conversation with the 911 dispatcher he reported that he

needed medical assistance for his wife. Mr. Laster also reported to the 911 dispatcher

that he also was hit a couple of times on the head with a beer bottle, that “Shay

something” was the person who assaulted him, and that the assailant was no longer in the

home.

[¶10] EMTs and a deputy sheriff responded to the call for emergency assistance. The

deputy reported that both the Lasters were intoxicated, with slurred speech, but Mr.

Laster was not at a “high level” of intoxication for him. Mrs. Laster was unwilling to

speak with the sheriff’s deputy, and when the deputy began to interview Mr. Laster, she

told him not to tell the deputy anything. The deputy separated the Lasters, and Mr. Laster

then cooperated and answered the deputy’s questions, speaking with him for about ten or

fifteen minutes. Mrs. Laster initially refused any medical treatment, but then when the

deputy threatened to take her into protective custody, she agreed to be examined by the

EMTs but refused transport to the hospital.

[¶11] Teri Hughes arrived at Mr. Laster’s home about ten minutes after the sheriff’s

deputy. Ms. Hughes went to the home because she was worried about her mother (Mrs.

Laster) and her stepfather (Mr. Laster). Ms. Hughes reported that she was worried

because at about 10:30 that evening, Mr. Bruce had called her from the Fast Lane

convenience store and asked her to pick him up. When Ms. Hughes arrived to pick up

Mr. Bruce, he was upset, intoxicated, and had a beer in his hand. Mr. Bruce told Ms.

Hughes that Mr. Laster hit him with a Maglite flashlight, and he had her feel the lump on

the back of his head. Ms. Hughes testified:

Q. Okay. All right. So he’s upset. He tells you

that your dad hit him with a Maglite flashlight. Did you

notice – did you notice anything else about him?

A. He had bloody knuckles.

Q. Okay. Do you remember if it was his right

hand or his left hand?

A. No, I don’t.

Q. Okay. Is he talking about anything else besides

that at this point?

A. He says he’s – I knew he was mad at my mom.

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Q. Okay. How did you know he was mad at your

mom?

A. Because she’s over at my dad’s.

Q. Okay. How do you know that?

A. Because he said.

Q. Okay. So did you just drop him off at his

house?

A. No.

Q. Okay. Why not?

A. He wanted me to go inside.

Q. Why did you go inside with him if he was

upset?

A. I thought I could calm him down.

Q. So what happens when you get inside?

A. He starts hollering about my mom and dad.

Q. What did he say?

A. He said that they – that they fucked him, and

that he hurt them.

Q. Besides – in addition, did he say anything else

besides that he had f’d them and he had hurt them?

A. He said that they got what they deserved.

Q. Okay. Did he say – did he say where – did he

say where they were at when he hurt them and he f’d them?

A. He said he walked into dad’s house and didn’t

see mom and dad nowhere, and that he walked into the back

bedroom and that he thought my mom and dad were having

sex.

Q. What else did he say?

A. He just kept repeating that he was mad and kept

ranting.

[¶12] When Ms. Hughes arrived at Mr. Laster’s home, she checked on both of her

parents. Mrs. Laster would not let Ms. Hughes look closely at her, but she was able to

closely check over Mr. Laster. She found no blood, no bruises, and no scratches, and she

found that he looked and seemed fine. She then returned home.

[¶13] After the EMTs, the deputy sheriff, and Ms. Hughes left Mr. Laster’s home, Mrs.

Laster fell asleep on a futon in Mr. Laster’s home. When she awoke in the morning, the

morning of May 15, 2013, she found Mr. Laster face down on the floor and unresponsive.

EMTs eventually arrived and confirmed that Mr. Laster was deceased. An autopsy

revealed that Mr. Laster died of a right subdural hemorrhage caused by blunt force

trauma.

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[¶14] On May 16, 2013, the State filed a criminal information charging Mr. Bruce with

second degree murder in the death of Mr. Laster and domestic violence battery for the

injury to Mrs. Laster. Mr. Bruce was bound over to the district court, where he pled not

guilty to both charges.

[¶15] On October 10, 2013, the State filed a motion requesting a pretrial ruling on the

admissibility of the 911 call Mr. Laster made on the evening of May 14, 2013. Mr. Bruce

responded with a motion in limine to exclude the 911 call on the ground that admitting

the evidence would violate his Sixth Amendment right to confrontation. Following a

hearing on the issue, the district court ruled that the 911 call was admissible hearsay and

that admission of the call would not violate Mr. Bruce’s Sixth Amendment right to

confrontation.

[¶16] A jury trial was held on November 18-22, 2013. At the close of the State’s case,

Mr. Bruce made a motion for judgment of acquittal on the second degree murder charge,

and the district court denied the motion. Mr. Bruce renewed his motion at the close of all

evidence, and the court again denied the motion. The jury returned a verdict finding Mr.

Bruce not guilty on the second degree murder charge, guilty on the lesser included

offense of manslaughter, and guilty on the domestic violence battery charge. On

December 6, 2013, Mr. Bruce filed a written motion for judgment of acquittal and for a

new trial based on the jury’s exposure to inadmissible hearsay testimony and on the

district court’s failure to instruct the jury on self defense. The court denied Mr. Bruce’s

motion.

[¶17] On March 14, 2014, the district court entered its Judgment and Sentence. The

court sentenced Mr. Bruce to a prison term of four to ten years on the manslaughter count

and 180 days on the domestic violence battery count, both sentences to be served

concurrently. Mr. Bruce thereafter timely filed a notice of appeal to this Court.

DISCUSSION

[¶18] Mr. Bruce challenges his manslaughter conviction on several grounds: 1) the

district court’s denial of his motion for judgment of acquittal on the second degree

murder charge; 2) sufficiency of the evidence to support his manslaughter conviction; 3)

the district court’s denial of his new trial motion based on the jury’s exposure to

inadmissible hearsay; 4) the district court’s failure to give the jury a self defense

instruction; and 5) the district court’s admission of Mr. Laster’s 911 call. Mr. Bruce

presents the district court’s ruling on the 911 call as his last assignment of error, but

because our resolution of that issue may affect our consideration of the other alleged

errors, we will address the ruling on the 911 call first and then turn to Mr. Bruce’s

remaining arguments.

5

A. Admissibility of 911 Call

[¶19] In arguing that the district court erred in admitting Mr. Laster’s 911 call, Mr.

Bruce contends that the evidence was admitted in violation of his Sixth Amendment right

of confrontation and was inadmissible hearsay. Whether an evidentiary ruling violates a

defendant’s Sixth Amendment right to confront witnesses against him is a question of

law that this Court reviews de novo. Counts v. State, 2012 WY 70, ¶ 31, 277 P.3d 94,

104 (Wyo. 2012); Hannon v. State, 2004 WY 8, ¶ 11, 84 P.3d 320, 328 (Wyo. 2004). We

review rulings on the admissibility of evidence for an abuse of discretion:

This Court reviews alleged errors relating to the

admission of evidence for an abuse of discretion. Marquess

v. State, 2011 WY 95, ¶ 12, 256 P.3d 506, 510 (Wyo.2011).

“Determining whether the trial court abused its discretion

involves the consideration of whether the court could

reasonably conclude as it did, and whether it acted in an

arbitrary and capricious manner.” Lancaster v. State, 2002

WY 45, ¶ 11, 43 P.3d 80, 87 (Wyo.2002) (citing Trujillo v.

State, 2 P.3d 567, 571 (Wyo.2000)). A trial court’s

evidentiary rulings “are entitled to considerable deference,”

and will not be reversed “so long as there exists a legitimate

basis for the trial court’s ruling....” Armstrong v. Hrabal,

2004 WY 39, ¶ 10, 87 P.3d 1226, 1230 (Wyo.2004) (internal

quotes and citations omitted).

Ortiz v. State, 2014 WY 60, ¶ 67, 326 P.3d 883, 897 (Wyo. 2014).

[¶20] While Mr. Bruce’s arguments are directed at particular isolated statements within

Mr. Laster’s 911 call, the context of those statements is important in our consideration of

both of Mr. Bruce’s arguments. We therefore set forth the entire text of the call against

which we will consider Mr. Bruce’s confrontation clause and hearsay arguments.

Shey Bruce Criminal No. 6912

911 call on assault

Dispatcher: 911 what’s the address of the emergency?

C. Laster: My Wife (sic) has been assaulted, and she was

hit real hard in the temple lobe. I don’t know if we need an

ambulance or if I should just bring her in, but I’ll let you talk

to her and then she can explain it.

Dispatcher: Okay.

6

L. Laster: Hello.

Dispatcher: Hi this is the 911 Center, What’s the address

that you're at?

L. Laster: 115 Main Street.

Dispatcher: Okay and what is your name?

C. Laster: We live in the alley.

L. Laster: Lavena Laster.

Dispatcher: What was your name again?

L. Laster: Lavena Laster.

Dispatcher: Lavena, Okay.

C. Laster: Hello.

Dispatcher: Okay what’s the phone number your (sic)

calling me from Lavena?

C. Laster: A guy was over here and hit her temple lobe

and she’s having severe headaches now.

L. Laster: My head hurts.

C. Laster: And I think we might need to get her to a

hospital.

Dispatcher: Okay, what’s the phone number that you’re

calling me from?

C. Laster: I’m calling from [telephone number redacted].

Dispatcher: Okay, now is the person that assaulted her, are

they still there?

C. Laster: Beg your pardon?

Dispatcher: The person that assaulted her, are they still

there?

C. Laster: No, I got hit a couple times in the head with a

beer bottle, but they have left ...

7

(L. Laster repeatedly yelling her head hurts in background)

C. Laster: Hun, [we're] gonna try to get you to the hospital

here as quick as we can.

Dispatcher: Okay, how old is your wife?

C. Laster: 49.

Dispatcher: Okay. Is her breathing normal?

C. Laster: Beg your pardon?

Dispatcher: Is she breathing normally?

C. Laster: Ya she’s just got severe headaches.

Dispatcher: Okay.

C. Laster: And . . .

Dispatcher: Okay does she . . .

C. Laster: I don’t know if she’s got blood clots or what in

her head.

Dispatcher: Okay. When did this happen?

C. Laster: About 20 minutes ago.

Dispatcher: Okay does she have any numbness or

paralysis[?]

C. Laster: Your (sic) gonna have to talk to her. Hun, Hun

talk to . . . this is 911, Hun you gotta talk to them.

L. Laster: No.

C. Laster: You gotta talk to them.

Dispatcher: Lavena?

L. Laster: What? Yes, What?

Dispatcher: Lavena do have any numbness or paralysis?

L. Laster: No you know my head fucking hurts . . .

8

Repeatedly yelling ouch . . .

Dispatcher: Lavena . . .

L. Laster: . . . Repeatedly yelling ouch. . .

Dispatcher: Have you had any recent changes in your

behavior[?]

C. Laster: Maybe she wasn’t much information but she’s

hurting pretty bad.

Dispatcher: Okay, where did this happen at Charles?

C. Laster: Beg your pardon.

Dispatcher: Where did this happen at?

C. Laster: In my house.

Dispatcher: At your house, okay. Where’s the person that

assaulted you guys?

C. Laster: Shay something, I don’t know his last name, but

I’m alright.

Dispatcher: Okay. Where did the person go that assaulted

you?

C. Laster: I don’t know exactly what the address but it[’]s

right across from the high school in Shoshoni.

Dispatcher: Okay.

C. Laster: Hun we’ve got help coming it’s on the way.

Dispatcher: Okay. I’m sending the ambulance now. Stay

on the line and I will tell you exactly what to do.

C. Laster: Okay. I’m at 115 Main . . .

Dispatcher: Are you at 115 or 117 Main?

C. Laster: Either one, I own two pieces of property, and I

live in a trailer in the back, in the alley.

Dispatcher: Okay, and you’re at the trailer in the back?

9

C. Laster: I live in the mobile home in the back.

Dispatcher: Okay. Okay, reassure her that help is on the

way, don’t let her have anything . . .

C. Laster: Hey babe, help[’]s on the way.

Dispatcher: Okay don’t let her have anything to eat or drink,

as it might make her sick or cause problems for the doctor.

C. Laster: I’m hard of hearing . . . Hun help is on the way

babe, Hun helps on the way.

L. Laster: Right now (inaudible).

C. Laster: There’s nothing I can do for you [now], helps

on the way. Hun .. .

Dispatcher: Okay, are you still there Charles?

C. Laster: Beg your pardon.

Dispatcher: Don’t let her have anything to eat or drink, as it

might make her sick or cause problems for the doctor.

C. Laster: Okay well just get some help over here and give

me the instructions when they get here.

Dispatcher: Okay.

C. Laster: And right now I’m worried about my wife, and

I’m not listening to instructions.

Dispatcher: Okay Charles we’ve got the ambulance paged

and I’ve got a deputy on his way over there right now.

C. Laster: Okay sounds good.

Dispatcher: Okay.

C. Laster: Okay thanks ma’am.

Dispatcher: You’re welcome.

C. Laster: I appreciate it.

Dispatcher: Not a problem.

10

C. Laster: Okay.

Dispatcher: Alright.

C. Laster: Okay, bye.

Dispatcher: Bye.

RECORDING ENDS

1. Sixth Amendment Ruling

[¶21] The Sixth Amendment protects a defendant’s right to confront witnesses against

him, and owing to that protection, testimonial statements of a witness absent from trial

are admissible “only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 59,

124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004); see also Anderson v. State, 2014 WY 13,

¶ 27, 317 P.3d 1108, 1118 (Wyo. 2014); Rodriguez v. State, 2010 WY 170, ¶ 9, 245 P.3d

818, 823 (Wyo. 2010); Szymanski v. State, 2007 WY 139, ¶ 16, 166 P.3d 879, 883 (Wyo.

2007). Stated as a three-part test, the Sixth Amendment confrontation clause bars the

admission of an out-of-court statement if the statement is testimonial, the declarant is

unavailable, and the defendant had no opportunity to cross-examine the declarant

concerning the statement. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; Szymanski, ¶ 16,

166 P.3d at 883.

[¶22] In Crawford, the Supreme Court abandoned consideration of a statement’s

reliability in determining admissibility under the Sixth Amendment. Crawford, 541 U.S.

at 60-62, 124 S.Ct. at 1369-70; Teniente v. State, 2007 WY 165, ¶ 77, 169 P.3d 512, 533-

34 (Wyo. 2007); Vigil v. State, 2004 WY 110, ¶ 18, 98 P.3d 172, 177-78 (Wyo. 2004).

The Court explained that while the reliability of a statement may be a proper

consideration in the application of hearsay rules, it is not a factor to be considered in

determining the admissibility of a statement under the Sixth Amendment. Crawford, 541

U.S. at 60-62, 124 S.Ct. at 1369-70. If the statement is testimonial, “the only indicium

of reliability sufficient to satisfy constitutional demands is the one the Constitution

actually prescribes: confrontation.” Id., 541 U.S. at 69, 124 S.Ct. at 1374; see also Bush

v. State, 2008 WY 108, ¶ 34, 193 P.3d 203, 211-12 (Wyo. 2008); Teniente, ¶ 77, 169

P.3d at 535; Vigil, ¶ 18, 98 P.3d at 179.

[¶23] The Supreme Court did not in Crawford attempt to fully define the difference

between a testimonial statement and a non-testimonial statement. The Court stated:

We leave for another day any effort to spell out a

comprehensive definition of “testimonial.” Whatever else the

term covers, it applies at a minimum to prior testimony at a

preliminary hearing, before a grand jury, or at a former trial;

11

and to police interrogations.

Crawford, 541 U.S. at 68, 124 S.Ct. at 1374 (footnote omitted).

[¶24] A couple of years after Crawford, the Supreme Court did flesh out the distinction

between testimonial and non-testimonial statements:

Statements are nontestimonial when made in the course of

police interrogation under circumstances objectively

indicating that the primary purpose of the interrogation is to

enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively

indicate that there is no such ongoing emergency, and that the

primary purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal prosecution.

Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273-74, 165 L.Ed.2d 224

(2006) (footnote omitted); see also Szymanski, ¶ 18, 166 P.3d at 884.

[¶25] In Michigan v. Bryant, 562 U.S. 344, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), the

Supreme Court again addressed the distinction between testimonial and non-testimonial

statements. The Court did not expand the definition but provided guidance in making the

determination, emphasizing in particular the objective nature of the inquiry:

An objective analysis of the circumstances of an encounter

and the statements and actions of the parties to it provides the

most accurate assessment of the “primary purpose of the

interrogation.” The circumstances in which an encounter

occurs—e.g., at or near the scene of the crime versus at a

police station, during an ongoing emergency or afterwards—

are clearly matters of objective fact. The statements and

actions of the parties must also be objectively evaluated. That

is, the relevant inquiry is not the subjective or actual purpose

of the individuals involved in a particular encounter, but

rather the purpose that reasonable participants would have

had, as ascertained from the individuals’ statements and

actions and the circumstances in which the encounter

occurred.

Bryant, 562 U.S. at ___, 131 S.Ct. at 1156 (footnote omitted).

[¶26] The Court explained why the existence of an ongoing emergency is an important

factor in determining the primary purpose of an interrogation.

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As our recent Confrontation Clause cases have explained, the

existence of an “ongoing emergency” at the time of an

encounter between an individual and the police is among the

most important circumstances informing the “primary

purpose” of an interrogation. The existence of an ongoing

emergency is relevant to determining the primary purpose of

the interrogation because an emergency focuses the

participants on something other than “prov[ing] past events

potentially relevant to later criminal prosecution.” Rather, it

focuses them on “end[ing] a threatening situation.”

Bryant, 562 U.S. at ___, 131 S.Ct. at 1157 (footnote and internal citations omitted).

[¶27] To summarize, the Sixth Amendment analysis requires an objective determination

of an interrogation’s “primary purpose” based on the circumstances in which the

interrogation takes place as well as the statements and actions of both the interrogator and

the declarant. Bryant, 562 U.S. at ___, 131 S.Ct. at 1156. In particular, the inquiry must

determine whether the interrogation’s primary purpose was to enable assistance to meet

an ongoing emergency, or whether it was “to establish or prove past events potentially

relevant to later criminal prosecution.” Id. at 1165 (quoting Davis, 547 U.S. at 822, 126

S.Ct. 2266); see also Bush, ¶ 39, 193 P.3d at 213; Szymanski, ¶ 16, 166 P.3d at 883.

[¶28] Against this backdrop, we review the district court’s ruling on the admissibility of

Mr. Laster’s 911 call under the Sixth Amendment. In ruling that the 911 call was

admissible, the court found that it was a non-testimonial statement. The court reasoned:

In listening to the 911 call, and reading the transcript

provided by the defendant the Dispatcher asks several

questions concerning the location of the emergency, the

names of the people on the call, the phone number of the

emergency location, when the injury occurred, and lastly the

location of the person who committed or caused the injury.

The Dispatcher asks these same questions several times, and

in different manners; however, what is glaringly absent is the

who. One of the most important elements of proof of any

crime is the identity of the defendant. In this instance, the

Dispatcher never asks the Lasters who hurt them. All of her

questions were to appropriately respond to [the] ongoing

medical emergency. Even after Mr. Laster apparently

misunderstood the Dispatcher’s question “Where’s the person

that assaulted you guys?” and answered “Shay something,

. . .”[,] [t]he Dispatcher reiterated the location question and

she did not illicit information about the identity of the

perpetrator. She does not ask any other potentially

13

identifying or criminal investigative type questions. The

Court finds that taken as a whole, and viewed objectively, the

questions posed by the 911 operator were primarily, if not

exclusively, posed in response to the medical emergency

perceived by Mr. Laster.

[¶29] Mr. Bruce takes issue with the district court’s ruling, arguing there was no on-

going emergency because the call was made over twenty minutes after the assault, and

that if there were an emergency, it was Mrs. Laster’s emergency, not Mr. Laster’s

emergency. Mr. Bruce further argues the district court placed too much emphasis on the

dispatcher’s statements and too little on Mr. Laster’s statements. We reject Mr. Bruce’s

arguments and agree with the district court that Mr. Laster’s statements during the 911

call were non-testimonial.

[¶30] First, we reject Mr. Bruce’s contention that there was not an on-going emergency.

On the recording of the 911 call, Mrs. Laster can be heard, sometimes speaking to the

dispatcher and sometimes in the background, repeatedly stating that her head hurts,

crying ouch, moaning and making sounds of distress. For his part, Mr. Laster repeatedly

expresses his concern with Mrs. Laster’s severe headaches and expresses a concern that

she may have blood clots in her head. While the assault itself had ended, the medical

emergency clearly continued.

[¶31] We likewise find no merit in the assertion that the emergency should be rejected as

a consideration in the Sixth Amendment analysis because the emergency was Mrs.

Laster’s and not Mr. Laster’s. The focus of the “primary purpose” analysis is on the

reason for the interrogation and the reason for the declarant’s statements. While there

may be instances where a declarant’s relationship to an emergency may call into question

the declarant’s motives and whether the declarant’s statements stemmed from a true

concern regarding the emergency, the record does not support that suggestion in this case.

Mrs. Laster testified that when she regained consciousness, Mr. Laster was already

making the 911 call to get her help. Additionally, during the call, Mr. Laster tried to have

Mrs. Laster provide information to the dispatcher, only to have Mrs. Laster persist in

moaning and making other sounds of distress. Throughout the call, Mr. Laster spoke

words of comfort to his wife and repeatedly expressed his concern with his wife’s head

injury and the need to get her medical help. Given the circumstances and Mr. Laster’s

focus on his wife’s condition, we conclude that Mr. Laster made the 911 call because his

wife was unable to make the call for herself, because he was concerned about his wife’s

head injury, and because he was seeking immediate medical assistance for his wife. The

on-going emergency is thus properly considered in the Sixth Amendment analysis even

though it was Mrs. Laster’s injuries that created the emergency and Mr. Laster who made

the 911 call.

[¶32] Finally, we address Mr. Bruce’s contention that the district court placed too much

emphasis on the dispatcher’s questions and not enough emphasis on Mr. Laster’s

14

statements. In particular, Mr. Bruce argues that Mr. Laster’s statements in which he

reported he was “hit a couple times in the head with a beer bottle,” and in which he

identified his assailant as “Shay something,” were testimonial statements and should have

been redacted from the recording and transcript presented to the jury. We reject this

argument because it fails to take into consideration the entirety of the circumstances in

which the statements were made.

[¶33] In holding that the statements of both the interrogator and the declarant must be

considered when conducting a Sixth Amendment analysis, the Supreme Court did not

suggest that the questions and statements of each participant be considered in isolation.

The Court instead emphasized the need to consider the questions and statements together

and in light of the circumstances.

In addition to the circumstances in which an encounter

occurs, the statements and actions of both the declarant and

interrogators provide objective evidence of the primary

purpose of the interrogation. See, e.g., Davis, 547 U.S., at

827, 126 S.Ct. 2266 (“[T]he nature of what was asked and

answered in Davis, again viewed objectively, was such that

the elicited statements were necessary to be able to resolve

the present emergency, rather than simply to learn (as in

Crawford ) what had happened in the past” (first emphasis

added)). . . .

. . . In many instances, the primary purpose of the

interrogation will be most accurately ascertained by looking

to the contents of both the questions and the answers. To give

an extreme example, if the police say to a victim, “Tell us

who did this to you so that we can arrest and prosecute them,”

the victim’s response that “Rick did it,” appears purely

accusatory because by virtue of the phrasing of the question,

the victim necessarily has prosecution in mind when she

answers.

....

. . . During an ongoing emergency, a victim is most likely to

want the threat to her and to other potential victims to end,

but that does not necessarily mean that the victim wants or

envisions prosecution of the assailant. A victim may want the

attacker to be incapacitated temporarily or rehabilitated.

Alternatively, a severely injured victim may have no purpose

at all in answering questions posed; the answers may be

15

simply reflexive. The victim’s injuries could be so

debilitating as to prevent her from thinking sufficiently

clearly to understand whether her statements are for the

purpose of addressing an ongoing emergency or for the

purpose of future prosecution. Taking into account a victim’s

injuries does not transform this objective inquiry into a

subjective one. The inquiry is still objective because it

focuses on the understanding and purpose of a reasonable

victim in the circumstances of the actual victim—

circumstances that prominently include the victim’s physical

state.

Bryant, 562 U.S. at ___, 131 S.Ct. at 1160-62 (footnote omitted).

[¶34] As the foregoing discussion illustrates, the focus of the Sixth Amendment analysis

is not on the statements in isolation but on the purpose of those statements as framed by

their context. The fact then that Mr. Laster reported what happened to him and the

identity of his assailant does not make those statements testimonial. The statements are

testimonial only if the context in which they were made indicates that Mr. Laster’s

purpose in making the statements was to assist in a future prosecution, and in this case,

we find nothing to suggest such a purpose.

[¶35] First, none of the dispatcher’s questions were prosecution oriented. The

dispatcher’s questions were directed at determining the location of the emergency, the

nature of the injury, and whether the assailant was still in the area. These are questions

directed at enabling the dispatcher to send assistance efficiently and safely. As the

district court observed, the dispatcher at no time asked for the identity of the assailant.

Nor did the dispatcher ask questions concerning what happened during the altercation or

why. Thus, none of the dispatcher’s questions would have signaled Mr. Laster that he

was providing information for a future prosecution.

[¶36] The remaining circumstances likewise weigh against finding any prosecutorial

purpose in Mr. Laster’s statements. Throughout most of the call, Mrs. Laster can be

heard in the background yelling and moaning in pain. Mr. Laster himself was hard of

hearing, intoxicated, and was dividing his attention between the dispatcher and his wife.

For example, immediately after Mr. Laster told the dispatcher that he had been hit a

couple of times with a beer bottle, he turned his attention to Mrs. Laster and told her he

was trying to get her help as quick as he could. Likewise, shortly after identifying “Shay

something” as his assailant, Mr. Laster again spoke to his wife, telling her that help was

on the way.

[¶37] It is clear from the entirety of the 911 call, that Mr. Laster did not call 911 to

report that a crime had been committed. He called to seek medical assistance for his

wife. When Mr. Laster’s statements concerning what happened to him and the identity of

16

his assailant are considered in the context in which they were made, we cannot conclude

that those statements changed the primary purpose of the call from seeking medical

assistance to assisting in a future prosecution. Mr. Laster’s focus throughout the call

remained on his wife’s injury, and to the extent he provided additional information, the

circumstances indicate that the information was offered “reflexively,” with no change in

Mr. Laster’s purpose for providing the information. See Bryant, 562 U.S. at ___, 131

S.Ct. at 1161.

[¶38] The facts of this case are analogous to those addressed by the Supreme Court in

Bryant. In Bryant, the victim suffered a mortal gunshot wound at one location and then

drove to a gas station. Bryant, 562 U.S. at ___, 131 S.Ct. at 1150. Police officers

reported to the gas station and found the victim on the ground bleeding from the wound.

Id. The officers asked the victim, “what had happened, who had shot him, and where the

shooting had occurred.” Id. The victim answered those questions, and the Court held the

victim’s statements were admissible because the purpose of the interrogation was to

address an ongoing emergency. Id. The Court explained, in part:

The circumstances of the encounter provide important context

for understanding [the victim’s] statements to the police.

When the police arrived at [the victim’s] side, their first

question to him was “What happened?” [The victim’s]

response was either “Rick shot me” or “I was shot,” followed

very quickly by an identification of “Rick” as the shooter. In

response to further questions, [the victim] explained that the

shooting occurred through the back door of Bryant’s house

and provided a physical description of the shooter. When he

made the statements, [the victim] was lying in a gas station

parking lot bleeding from a mortal gunshot wound to his

abdomen. His answers to the police officers’ questions were

punctuated with questions about when emergency medical

services would arrive. He was obviously in considerable pain

and had difficulty breathing and talking. From this

description of his condition and report of his statements, we

cannot say that a person in [the victim’s] situation would have

had a “primary purpose” “to establish or prove past events

potentially relevant to later criminal prosecution.”

For their part, the police responded to a call that a man had

been shot. As discussed above, they did not know why,

where, or when the shooting had occurred. Nor did they

know the location of the shooter or anything else about the

circumstances in which the crime occurred. The questions

they asked—“what had happened, who had shot him, and

17

where the shooting occurred,”—were the exact type of

questions necessary to allow the police to “‘assess the

situation, the threat to their own safety, and possible danger to

the potential victim’” and to the public, including to allow

them to ascertain “whether they would be encountering a

violent felon[.]” In other words, they solicited the

information necessary to enable them “to meet an ongoing

emergency.”

Bryant, 562 U.S. at ___, 131 S.Ct. at 1165-66 (footnotes and internal citations omitted).

[¶39] For the foregoing reasons, we find Mr. Laster’s statements during the 911 call

were non-testimonial and that the district court did not err in ruling that the statements

were admissible under the Sixth Amendment. Having concluded that the district court

did not err in its Sixth Amendment analysis, we next consider whether the court abused

its discretion in admitting Mr. Laster’s statements over Mr. Bruce’s hearsay objections.

See Davis, 547 U.S. at 821, 126 S.Ct. at 2273 (though not barred by the confrontation

clause, non-testimonial statement remains subject to traditional limitations on hearsay

evidence); see also Majors v. State, 2011 WY 63, ¶ 24, 252 P.3d 435, 441, n.2 (Wyo.

2011); Bush, ¶ 28, 193 P.3d at 210.

2. Hearsay Ruling

[¶40] Hearsay is “a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” W.R.E.

801(c). “Hearsay statements are generally inadmissible because they are made outside of

court and, therefore, presumed to be unreliable.” Moore v. State, 2013 WY 146, ¶ 11,

313 P.3d 505, 508 (Wyo. 2013) (citing W.R.E. 802). A hearsay statement is admissible,

however, if it fits a recognized exception to the hearsay rule making it sufficiently

reliable. Moore, ¶ 11, 313 P.3d at 508 (citing Sanders v. State, 7 P.3d 891, 895 (Wyo.

2000); Johnson v. State, 930 P.2d 358, 361–62 (Wyo. 1996)).

[¶41] The State argued that Mr. Laster’s statements were admissible under four hearsay

exceptions: 1) as a present sense impression under Wyoming Rule of Evidence 803(1);

2) as an excited utterance under W.R.E. 803(2); 3) as a statement of then-existing mental,

emotional or physical condition under W.R.E. 803(3); and 4), under the catchall

provisions of W.R.E. 804(b)(6). The district court found the statements admissible

“under a combination of the exceptions to the hearsay rule,” and specifically referred to

the exception for statements concerning then-existing mental and emotional condition

and the Rule 804(b)(6 ) catchall. Though not specifically cited by the district court as an

exception applicable to Mr. Laster’s statements, the district court’s analysis also

incorporated a discussion of the present sense impression exception.

18

[¶42] We disagree with the district court’s application of the exception for the

declarant’s then-existing mental, physical, or emotional condition. The testimony the

State sought to rely upon related to a fact, that Mr. Laster had been hit by a beer bottle by

a man named Shey. The rule specifically excludes a statement “of memory or belief to

prove the fact remembered or believed” unless the statement relates to the execution of a

will. W.R.E. 803(3); 4 Christopher B. Mueller and Laird C. Kirkpatrick, Federal

Evidence § 8:70 (4th ed. 2013).

[¶43] We also reject application of the Rule 803(1) present sense impression exception

to Mr. Laster’s statements. That rule requires that the statement describe or explain an

event “while the declarant was perceiving the event or condition, or immediately

thereafter.” W.R.E. 803(1). We have explained:

The phrase “immediately thereafter” accommodates the

human realities that the condition or event may happen so fast

that the words do not quite keep pace, and proving a true

match of words and events may be impossible for ordinary

witnesses, so it would be foolish to require a statement to be

truly simultaneous with the event or condition. The exception

allows enough flexibility to reach statements made a moment

after the fact, where a small delay or “slight lapse” ... is not

enough to allow reflection, which would raise doubts about

trustworthiness.

Schultz v. State, 2007 WY 162, ¶ 23, 169 P.3d 81, 88 (Wyo. 2007) (quoting 4 Christopher

B. Mueller and Laird C. Kirkpatrick, Federal Evidence § 434, at 384–85 (2d ed. 1994)).

In this case, Mr. Laster’s statements were made twenty to twenty-five minutes earlier.

This is not contemporaneous enough to fall within the Rule 803(1) exception.

[¶44] In terms of the exceptions applied by the district court, that brings us to

application of W.R.E. 804(b)(6), one of the “catchall” exceptions. This Court has,

however, observed that the catchall exceptions, W.R.E. 803(24) and 804(b)(6), are to be

cautiously used only in exceptional cases, in the interest of justice. Williams v. Collins

Communications, 720 P.2d 880, 888 (Wyo. 1986). The catchalls under both Rules 803

and 804 specifically say that they apply to statements “not specifically covered by any of

the foregoing exceptions but having equivalent circumstantial guarantees of

trustworthiness . . . .” The two rules, read together, suggest that the catchall exception is

only to be used if there is no other well-established hearsay exception. One evidence

treatise concludes that the placement of the catchall in the federal rules suggests that it

was intended as a rule of last resort. 5 Christopher B. Mueller and Laird C. Kirkpatrick,

19

Federal Evidence § 8:108 (4th ed. 2013).2

[¶45] In a pre-Crawford Confrontation Clause case, the United States Supreme Court

explained the reliability of traditional hearsay exceptions:

We note at the outset that Idaho’s residual hearsay exception,

Idaho Rule Evid. 803(24), under which the challenged

statements were admitted, is not a firmly rooted hearsay

exception for Confrontation Clause purposes. Admission

under a firmly rooted hearsay exception satisfies the

constitutional requirement of reliability because of the weight

accorded longstanding judicial and legislative experience in

assessing the trustworthiness of certain types of out-of-court

statements. The residual hearsay exception, by contrast,

accommodates ad hoc instances in which statements not

otherwise falling within a recognized hearsay exception might

nevertheless be sufficiently reliable to be admissible at trial.

See, e.g., Senate Judiciary Committee’s Note on Fed.Rule

Evid. 803(24), 28 U.S.C.App., pp. 786–787; E. Cleary,

McCormick on Evidence § 324.1, pp. 907–909 (3d ed. 1984).

Hearsay statements admitted under the residual exception,

almost by definition, therefore do not share the same tradition

of reliability that supports the admissibility of statements

under a firmly rooted hearsay exception.

Idaho v. Wright, 497 U.S. 805, 817-18, 110 S.Ct. 3139, 3147-48, 111 L.Ed.2d 638 (1990)

(some citations omitted).3

[¶46] Based on the foregoing, we believe that the catchall exceptions, Rules 803(24) and

804(b)(6), should be rules of last resort, and that particularly in criminal cases, they

should not be used if a traditional exception applies. In this case, we find a traditional

exception in the Rule 803(2) excited utterance exception. Although the district court did

not rely on this exception, we may affirm the court’s decision on any basis appearing in

the record. Leach v. State, 2013 WY 139, ¶ 19, 312 P.3d 795, 799 (Wyo. 2013).

2

The Federal Rules of Evidence originally had two separate catchall provisions as the Wyoming rules

still do. They were consolidated into F.R.E. 807 in 1997. 5 Christopher B. Mueller and Laird C.

Kirkpatrick, supra, § 8:139.

3

Crawford overruled Wright and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980)

by holding that testimonial statements were not admissible even if they were reliable under the criteria of

those cases. Those cases may have continued vitality as to non-testimonial hearsay like that in this case,

although that is not clearly resolved. 5 Christopher B. Mueller and Laird C. Kirkpatrick, supra, § 8:31.

20

[¶47] An excited utterance is a “statement relating to a startling event or condition made

while the declarant was under the stress of excitement caused by the event or condition.”

W.R.E. 803(2). We have said:

The exception is founded upon the proposition that a

statement made during the stress of excitement resulting from

a startling event is probably trustworthy, since there is not

leisure to reflect, contrive or fabricate. The rule assumes the

presence of a startling event which temporarily stills the

senses and alleviates any motive to fabricate.

Marquess v. State, 2011 WY 95, ¶ 17, 256 P.3d 506, 512 (Wyo. 2011) (quoting Boykin v.

State, 2005 WY 15, ¶ 7, 105 P.3d 481, 483 (Wyo. 2005)).

[¶48] This Court has identified five factors to be considered in applying the excited

utterance exception: (1) the nature of the startling event; (2) the declarant’s physical

manifestation of excitement; (3) the declarant’s age; (4) the lapse of time between the

event and the hearsay statement; and (5) whether the statement was made in response to

an inquiry. Marquess, ¶ 17, 256 P.3d at 512; Sanchez v. State, 2011 WY 77, ¶ 22, 253

P.3d 136, 143 (Wyo. 2011). We have also observed that while these factors are helpful,

the ultimate inquiry remains whether the “declarant’s condition at the time was such that

the statement was spontaneous, excited or impulsive rather than the product of reflection

and deliberation.” Sanchez, ¶ 22, 253 P.3d at 143 (quoting Boykin, ¶ 8, 105 P.3d at 483);

see also Dike v. State, 990 P.2d 1012, 1021 (Wyo. 1999).

[¶49] A review of the 911 call reveals that a reasonable judge could find that Mr.

Laster’s statements fit within the excited utterance exception. Seeing one’s spouse struck

by a beer bottle and being struck oneself is undoubtedly startling, and the statements at

issue related to the startling event. The content of the call, and in particular Mrs. Laster’s

cries of pain and distress, and Mr. Laster’s attempts to comfort her, establishes that Mr.

Laster was still under the stress of excitement caused by the event. Although Mr.

Laster’s statements were made in response to an inquiry by the 911 dispatcher, we do not

in this case find this fact sufficient to take the statements outside the excited utterance

exception. Mr. Laster’s statements were not responsive to the questions being asked, and

in this type of circumstance, we have explained:

The fact that she made the challenged statement in response

to an inquiry is not sufficient under the circumstances to take

the statement outside the excited utterance exception. The

convenience store clerk asked, “Are you all right?” Ms. Potter

responded according to the store clerk that her boyfriend

assaulted her when he could not find the cheese. This non-

21

responsive answer to the store clerk’s inquiry further suggests

that Ms. Potter’s statement was spontaneous and not the result

of reflection, deliberation, or fabrication.

Boykin, ¶ 10, 105 P.3d at 484.

[¶50] As to the lapse of time between the startling event and the hearsay statements, the

excited utterance exception, unlike the present sense impression exception, does not

require immediacy.

Time factor. Other things being equal, the more

quickly a statement follows the occasion, the more likely it is

to be a spontaneous reaction. Statements during or

immediately after an exciting occurrence clearly can satisfy

the exception in being the product of stress or excitement.

This kind of close connection, however, is only indispensable

in the exception for present sense impressions, and such

immediacy is not required by the excited utterance exception.

Resort to the excited utterance exception is entirely

appropriate in the face of lapses of minutes between event

and utterance, where it is clear that the speaker was still

laboring under stress that stilled reflective capacity, as is

likely if the event was sudden or violent or frightening, or

caused injury or pain to the speaker or someone he knows.

Even much longer lapses, on the order of several

hours, do not necessarily dissipate the stress or excitement

caused by an act or event, particularly in cases that result in

injury or trauma to the speaker. Here the condition of the

speaker between the event and the statement is important, and

continuing emotional or physical shock, loss of

consciousness, persistent pain, unabated fright, isolation, and

other factors may prolong the impact of a stressful event,

particularly one that is long lasting and arduous. Sensible

decisions apply the exception despite time lapses of this sort

when it comes to statements by victims of brutal or terrifying

crimes, including assault and kidnap, particularly when they

are of tender years.

22

4 Christopher B. Mueller and Laird C. Kirkpatrick, supra, § 8:684; see also Dike, 990

P.2d at 1021 (applying exception where statements were made thirty minutes after event);

Streitmatter v. State, 981 P.2d 921, 927 (Wyo. 1999) (applying exception where

statements were made forty-five minutes after event); James v. State, 888 P.2d 200, 206

(Wyo. 1994) (applying exception where statements were made fifteen to thirty minutes

after event).

[¶51] In this case, the lapse of time between the startling event and Mr. Laster’s 911 call

was twenty to twenty-five minutes. Based on this time lapse and the other factors, we

find that Mr. Laster’s statements fall within the requirements of the “excited utterance”

exception of W.R.E. 803(2). We therefore conclude that they were properly admitted

into evidence.

B. Motion for Judgment of Acquittal on Second Degree Murder Charge

[¶52] We next address Mr. Bruce’s argument that the district court erred in denying his

motion for judgment of acquittal on the charge of second degree murder. We review the

denial of a motion for judgment of acquittal using the following standard of review:

In reviewing the denial of a motion for judgment of

acquittal, we examine and accept as true the evidence of the

prosecution together with all logical and reasonable

inferences to be drawn therefrom, leaving out entirely the

evidence of the defendant in conflict therewith.

A motion for judgment of acquittal is to be granted

only when the evidence is such that a reasonable juror must

have a reasonable doubt as to the existence of any of the

essential elements of the crime. Or, stated another way, if

there is substantial evidence to sustain a conviction of the

crime, the motion should not be granted. This standard

applies whether the supporting evidence is direct or

circumstantial.

Butcher v. State, 2005 WY 146, ¶ 11, 123 P.3d 543, 548 (Wyo. 2005).

[¶53] At the close of the State’s case, Mr. Bruce moved for a judgment of acquittal, and

the district court denied that motion. Mr. Bruce then presented evidence, including the

testimony of four defense witnesses. At the close of evidence, Mr. Bruce again moved

4

This discussion of the allowable time lapse points to consideration of the declarant’s age as a factor that

may require consideration where the declarant’s age may influence the response to the startling event.

Mr. Laster’s age in a neutral factor in our analysis.

23

for a judgment of acquittal, and the district court again denied the motion. The jury then

returned a verdict finding Mr. Bruce not guilty of second degree murder but guilty of the

lesser included offense of manslaughter. Following the jury verdict, Mr. Bruce filed a

written motion for judgment of acquittal challenging the sufficiency of the evidence to

support the manslaughter conviction.

[¶54] Based on the foregoing sequence of motions, Mr. Bruce argues that “[t]here is no

issue of waiver” with respect to his request that this Court reverse the district court’s

rulings on his motions for judgment of acquittal on the charge of second degree murder.

Based upon our precedent, however, we find this assertion to be overly broad.

[¶55] This Court has repeatedly held that a defendant’s introduction of evidence

following denial of a judgment of acquittal is a waiver of the appeal of that motion.

Hawes v. State, 2014 WY 127, ¶ 8, 335 P.3d 1073, 1076 (Wyo. 2014); Granzer v. State,

2010 WY 130, ¶ 7, 239 P.3d 640, 643–44 (Wyo. 2010); Butcher, ¶ 12, 123 P.3d at 548;

Robinson v. State, 11 P.3d 361, 368 (Wyo. 2000); Hodges v. State, 904 P.2d 334, 339

(Wyo. 1995). We have explained:

Where a defendant introduces evidence after denial of a

motion for judgment of acquittal made at the end of the

State’s case, he waives that motion, and only a similar motion

made after return of the verdict may be claimed as error.

Butcher, ¶ 12, 123 P.3d at 548.

[¶56] Mr. Bruce’s appeal from the denial of his motion for judgment of acquittal on the

second degree murder charge for which he was ultimately acquitted is similar to the

appeal we addressed in Robinson. In Robinson, the defendant was acquitted of the

charged offense of first degree murder and the lesser included offense of second degree

murder but was convicted of the lesser included offense of manslaughter. Robinson, 11

P.3d at 368. The defendant appealed the denial of his motion for judgment of acquittal

on the first and second degree murder charges, and this Court addressed the appeal by

limiting its review to the sufficiency of the evidence supporting the manslaughter charge

on which the defendant was convicted:

Robinson contends that the trial court’s failure to grant

his motion for judgment of acquittal on the counts for first

and second degree murder gave rise to the additional

instruction on voluntary manslaughter for which he was

convicted. In reply, the State contends that one cannot appeal

the denial of a motion for judgment of acquittal on charges

for which the jury ultimately acquits.

24

W.R.Cr.P. 29 permits motions for judgment of

acquittal at the close of evidence by either side and after

discharge of the jury. In this case, Robinson made three

motions for judgment of acquittal, but it is our rule of law that

introducing evidence waives the earlier motion and only the

later motion may be claimed as error. Hodges v. State, 904

P.2d 334, 339 (Wyo.1995). The motion made after the jury

returned its verdict indicates that at the close of all evidence

during the jury instruction conference, the State requested and

received an instruction on second degree murder and the

defense then requested and received an instruction on

voluntary manslaughter. Because of his acquittal on first and

second degree murder, the last motion was limited to the

conviction for voluntary manslaughter. We, therefore, will

consider whether the evidence was sufficient to support the

conviction for voluntary manslaughter.

Robinson, 11 P.3d at 368.

[¶57] We again addressed a similar issue in Butcher, where the defendant was acquitted

of first degree murder but convicted on the lesser included offense of second degree

murder. Butcher, ¶ 14, 123 P.3d at 548. In addressing the defendant’s appeal from the

denial of his motion for judgment of acquittal, we observed:

At the close of the State’s case, defense counsel moved

for judgment of acquittal on the ground that “the State has not

met its burden to show either premeditated malice or malice.”

The district court denied that motion, and the appellant

proceeded to present evidence. Consequently, he has waived

his right to challenge that denial on appeal. After trial,

however, the appellant renewed his motion for judgment of

acquittal, on the same grounds as his earlier motion. Despite

the intervening conviction for the lesser-included offense of

second-degree murder, the latter motion sought “judgment of

acquittal on the single count contained in the information.”

That motion, like the earlier one, was denied.

This Court must confess a certain amount of confusion

as it addresses this issue. The appellant’s brief contains

nineteen pages of argument in which it is contended that the

State did not prove either premeditation or deliberation, and

that, therefore, the charge of first-degree murder should not

have gone to the jury. Our confusion arises out of the fact

25

that, by finding the appellant guilty of the lesser-included

offense of second-degree murder, the jury had, in effect,

acquitted him of the charged offense of first-degree murder.

There can be no possible error or prejudice here. Even if the

district court had granted the appellant’s post-verdict motion

for judgment of acquittal on the charge of first-degree

murder, that would have had no effect upon the finding of

guilt on the lesser-included offense.

Butcher, ¶¶ 14-15, 123 P.3d at 548-49 (footnote omitted).

[¶58] Our decisions in Robinson and Butcher instruct that there is simply no basis for

this Court to review the denial of a motion for judgment of acquittal where a jury has

acquitted the defendant on the charge for which the motion was denied. Mr. Bruce

attempts to distinguish Butcher by arguing the following prejudice from the denial of his

motion at the close of evidence:

This prejudice arises from the fact that the evidence was not

sufficient to support the offense charged. Yes, the jury

ultimately acquitted him of the more serious offense, but the

jury was given the opportunity to consider the lesser included

offense (an uncharged offense) when there was not enough

evidence to go forward on the charged offense. To deny that

prejudice can exist in this circumstance is to chip away or

diminish the meaning and purpose of Rule 29, as well as any

level of protection it affords to criminal defendants. It is, in a

sense, already a great burden for defense counsel to defend

against every possible lesser (but uncharged) offense the State

may ask to submit to the jury. Defense counsel here

aggressively defended against the charge of second degree

murder, and the State failed to meet its burden. Mr. Bruce

should not then be penalized by the fact that the jury

recognized this failure, though the trial court did not. If the

State has not met its burden, the ultimate verdict should not

affect the relief to which Mr. Bruce was due.

[¶59] We reject this alleged prejudice as a basis to revisit the district court’s denial of

Mr. Bruce’s motion for judgment of acquittal on the second degree murder charge. First,

the argument presumes that a not guilty verdict equates to error in the denial of the

motion. This presumption ignores the standard a court must follow in ruling on a motion

for judgment of acquittal, which requires it to disregard the defendant’s evidence, assume

the prosecution’s evidence is true, and give that evidence all logical and reasonable

26

inferences. See Butcher, ¶ 11, 123 P.3d at 548. Obviously, a jury does not approach its

task with the same constraints.

[¶60] Mr. Bruce’s alleged prejudice also strays from the purpose to be served by a

motion for judgment of acquittal, which has been described as follows:

A directed verdict for defendant, however, or judgment for

acquittal as it is now called, is an important safeguard to the

defendant. It tests the sufficiency of the evidence against

defendant, and avoids the risk that a jury may capriciously

find him guilty though there is no legally sufficient evidence

of guilt.

2A Charles Alan Wright and Peter J. Henning, Federal Practice and Procedure:

Criminal § 461, at 325 (4th ed. 2009) (footnotes omitted). Here, because the jury

acquitted Mr. Bruce of the second degree murder charge, the potential harm the motion

was intended to guard against plainly did not come to pass.

[¶61] Finally, Mr. Bruce’s argument implies that had the motion for judgment of

acquittal been granted on the charged count of second degree murder, the lesser included

offense would not have been submitted to the jury. Our decisions in Butcher and

Robinson implicitly recognized that this is not the case. See Butcher, ¶ 15, 123 P.3d at

549 (“Even if the district court had granted the appellant’s post-verdict motion for

judgment of acquittal on the charge of first-degree murder, that would have had no effect

upon the finding of guilt on the lesser-included offense.”); Robinson, 11 P.3d at 368

(considering sufficiency of the evidence on lesser included offense with no consideration

given to denied motion for judgment of acquittal on charged offense). We agree with the

reasoning of the Tenth Circuit Court of Appeals:

When ruling on a motion for judgment of acquittal, a district

court should consider not only whether the evidence would be

sufficient to sustain a conviction of the offense charged, but

also whether it would be sufficient to sustain a conviction on

a lesser included offense. See Fed.R.Crim.P. 31(c) (“The

defendant may be found guilty of an offense necessarily

included in the offense charged....”); United States v.

Cavanaugh, 948 F.2d 405, 409 (8th Cir.1991) (holding that if

a court grants judgment of acquittal following a jury verdict

of guilty, it may enter judgment of conviction on a lesser

included offense); 2 Charles Alan Wright, Federal Practice

and Procedure: Criminal 2d § 467 (2d ed. 1982) (“[O]n a

motion for judgment of acquittal the court must consider

whether the evidence would be sufficient to sustain a

27

conviction of [ ] a lesser offense.”). If the evidence is

sufficient to sustain a conviction on the lesser but not the

greater offense, the judge may submit only the lesser charge

to the jury. See United States v. LoRusso, 695 F.2d 45, 52 (2d

Cir.1982).

United States v. Wood, 207 F.3d 1222, 1229 (10th Cir. 2000); see also People v. Scott, 10

P.3d 686, 688 (Colo. App. 2000) (where trial court grants motion for judgment of

acquittal on greater offense, it retains authority to submit lesser included offense to jury);

State v. Morris, 331 N.W.2d 48, 56 (N.D. 1983) (“A trial court’s granting of a motion for

judgment of acquittal with respect to the major offense charged does not preclude

submission of the case to the jury on the basis of the lesser included offense

instruction[.]”).5

[¶62] For the foregoing reasons, we will not address the district court’s denial of Mr.

Bruce’s motion for judgment of acquittal as it pertains to the second degree murder

charge.

C. Sufficiency of Evidence to Support Manslaughter Conviction

[¶63] We agree with Mr. Bruce that there is no question of waiver respecting his

challenge to the sufficiency of the evidence supporting his manslaughter conviction. We

review a sufficiency of the evidence claim as follows:

We review that evidence with the assumption that the

evidence of the prevailing party is true, disregard the

evidence favoring the unsuccessful party, and give the

prevailing party the benefit of every favorable inference that

we may reasonably draw from the evidence. We will not

reweigh the evidence nor will we re-examine the credibility

of the witnesses.

Hawes, ¶ 8, 335 P.3d at 1076 (quoting Brown v. State, 2014 WY 104, ¶ 8, 332 P.3d 1168,

1171–72 (Wyo. 2014)).

5

As a final observation, to the extent Mr. Bruce’s argument implies that submission of both the second

degree murder and manslaughter charges to the jury was unfair because it presented the jury with a

compromise it would not have felt compelled to make had the second degree murder charge not been

submitted, we rejected such a suggestion in Butcher: “Perhaps the appellant is attempting through this

argument to hint that this was a compromise verdict, and that he would have preferred a compromise

between second-degree murder and manslaughter. There is no legitimacy to such an argument.” Butcher,

¶ 15, 123 P.3d at 549, n.1.

28

[¶64] Mr. Bruce was convicted of voluntary manslaughter pursuant to Wyo. Stat. Ann.

§ 6-2-105(a)(i), which provides that a person is guilty of manslaughter “if he unlawfully

kills any human being without malice, expressed or implied, . . . [v]oluntarily, upon a

sudden heat of passion[.]” Wyo. Stat. Ann. § 6-2-105(a)(i) (LexisNexis 2013). The

district court instructed the jury that “heat of passion” means:

[S]uch passion as naturally would be aroused in the mind of

an ordinarily reasonable person in the same or similar

circumstances as those in question which would cause him to

act rashly, without reflection of deliberation, and from

passion rather than from judgment. The heat of passion must

be aroused suddenly, and the act resulting in death must occur

while the defendant was acting under the direct and

immediate influence of such heat of passion, and before

sufficient time has elapsed to permit the heat of passion to

cool.

[¶65] Mr. Bruce argues there was insufficient evidence to establish the statutory

elements of manslaughter, insufficient evidence to establish his state of mind when he

struck Mr. Laster, and “absolutely no evidence whatsoever that Mr. Bruce intended to kill

Mr. Laster, or even, for that matter, that he was acting voluntarily as opposed to

reflexively.” Based on our review of the record, we find the evidence was sufficient to

support the jury verdict finding Mr. Bruce guilty of manslaughter.

[¶66] At the outset, we reject the assertions framing Mr. Bruce’s state of mind and intent

arguments. First, the argument that there is no evidence that Mr. Bruce intended to kill

Mr. Laster is not relevant to our review because voluntary manslaughter is “a general

intent crime that does not require a deliberate intent to kill.” Noel v. State, 2014 WY 30,

¶ 35, 319 P.3d 134, 146 (Wyo. 2014) (quoting State v. Keffer, 860 P.2d 1118, 1138–39

(Wyo. 1993)). Second, we disagree with Mr. Bruce’s suggestion that evidence of his

state of mind is necessarily insufficient unless it is direct evidence of state of mind at the

moment he struck Mr. Laster. This Court has observed that “in all cases, civil or

criminal, turning upon the state of an individual’s mind, direct evidence may be rare;

usually the trier of facts is required to draw inferences of the state of mind at issue from

surrounding acts, utterances, writings, or other indicia.” Benjamin v. State, 2011 WY

147, ¶ 46, 264 P.3d 1, 12 (Wyo. 2011) (quoting MacGuire v. Harriscope Broadcasting

Co., 612 P.2d 830, 843 (Wyo. 1980)). Our consideration of the evidence may therefore

include both direct and circumstantial evidence of the statutory elements and Mr. Bruce’s

state of mind.

[¶67] When we accept the State’s evidence as true and give the State every favorable

inference that may reasonably be drawn from that evidence, the evidence shows that Mr.

Bruce entered Mr. Laster’s home, proceeded to the back bedroom, struck Mrs. Laster in

29

the temple with a beer bottle, and thereafter struck Mr. Laster a couple of times with the

beer bottle, which blunt force trauma caused Mr. Laster’s death from a subdural

hematoma. As to Mr. Bruce’s state of mind, the State’s evidence showed that Mr. Bruce

had been upset most of the day because of his concern that the Lasters might be

reconciling. The State’s evidence also showed that just after the assault, Mr. Bruce

contacted Mrs. Laster’s daughter, Teri Hughes, and was ranting and hollering. During

that encounter, which occurred shortly after the assault, Mr. Bruce told Ms. Hughes: that

he was angry when he went to Mr. Laster’s home because Mrs. Laster was there; that

when he went to the back bedroom in Mr. Laster’s home he thought the Lasters were

having sex; that he hurt the Lasters because they “fucked him;” and the Lasters got what

they deserved.

[¶68] The evidence was sufficient to support a finding that Mr. Bruce voluntarily struck

Mr. Laster with a beer bottle, that he struck Mr. Laster in the heat of passion, and that in

doing so, he unlawfully killed Mr. Laster. The district court therefore did not err in

denying Mr. Laster’s motion for judgment of acquittal on the charge of manslaughter.

D. Denial of Motion for New Trial based on Inadmissible Hearsay

[¶69] Before addressing the substance of Mr. Bruce’s argument that the district court

erred in denying his motion for a new trial, we must determine the appropriate standard

of review. Mr. Bruce filed his new trial motion based upon a prosecution witness’

testimony, which the district court struck as inadmissible hearsay. When the offending

testimony was given, defense counsel objected and asked that the testimony be stricken,

but counsel did not object to the court’s curative instruction or move for a mistrial. In

moving for a new trial, Mr. Bruce did not assert any particular defect in the court’s

curative instruction or even reference the instruction and instead generally asserted a new

trial was warranted because, although the inadmissible hearsay had been stricken, the

damage had been done, and the bell could not be un-rung.

[¶70] In Mendoza v. State, 2013 WY 55, 300 P.3d 487 (Wyo. 2013), this Court reviewed

the denial of a new trial motion, which motion was based on what the defendant alleged

to be an erroneous jury instruction. Because the defendant had not objected to the jury

instruction, we held that the district court’s denial of the new trial motion would be

reviewed for an abuse of discretion, but the alleged underlying error in the jury

instruction itself would be subject to our plain error standard of review. Id., ¶¶ 8-9, 300

P.3d at 489-90. Because Mr. Bruce likewise did not object to the district court’s curative

instruction, we will take the same approach. We shall review the denial of the new trial

motion for an abuse of discretion and the adequacy of the district court’s curative

instruction for plain error.

[¶71] “A district court abuses its discretion when it could not have reasonably concluded

as it did.” Mendoza, ¶ 8, 300 P.3d at 489 (citing Majors v. State, 2011 WY 63, ¶ 24, 252

30

P.3d 435, 441 (Wyo. 2011)). Our plain error analysis requires that an appellant

“establish, by reference to the record, a violation of a clear and unequivocal rule of law in

a clear and obvious, not merely arguable, way and that the violation adversely affected a

substantial right resulting in material prejudice.” Joreski v. State, 2012 WY 143, ¶ 11,

288 P.3d 413, 416 (Wyo. 2012) (quoting Jealous v. State, 2011 WY 171, ¶ 11, 267 P.3d

1101, 1104 (Wyo. 2011)). Material prejudice means a reasonable probability exists that

the result would have been more favorable in the absence of the alleged error. Id.

[¶72] The testimony that was the basis of Mr. Bruce’s new trial motion was testimony

given by Teri Hughes, daughter of Mrs. Laster and stepdaughter of Mr. Laster. The

testimony, defense objection, and ruling on the defense objection went as follows:

Q. Did you talk to your dad after he got done speaking

to the deputy?

A. Yes.

Q. Okay. Did you ask him if he was okay?

A. Yes.

Q. And why did you ask him if he was okay?

A. Because I heard him tell the deputy that Shey hit

him with a bottle.

THE COURT: Just a minute.

[Defense Counsel]: Well –

THE COURT: You’re on your feet, Counsel. Is there

something you want?

[Defense Counsel]: To the extent that she was – said

anything about what her dad told her that the jury heard, I

would ask the Court to strike that and object that I don’t think

counsel asked her a hearsay question, but she was

nonresponsive.

* * * [proceedings outside presence of jury] * * *

[Defense Counsel]: Thank you, Your Honor.

Obviously, the defendant objects to Ms. Hughes testifying

what her father told her about the incidents of that evening.

And I did not object when [Prosecutor] asked her the

question, because I believe he asked her – I can’t remember

what it was, but I don’t think it directly called for hearsay.

THE COURT: [Reads back testimony] And at that

point, I interjected and tried to stop the answer.

[Defense Counsel]: And thank you for doing that,

Your Honor. I was making a note or something at that time

and, perhaps, I should’ve objected before.

But, so, again, we move to strike whatever she said in

response to that, and also on the grounds of hearsay.

31

....

THE COURT: Well, I have some thoughts about how

to deal with it, too. First of all, I’m going to deal with the

objection and sustain it. And I’m going to caution – I’m

going to strike her testimony as to what her father told her

outside, and caution the jury not to consider it. . . .

[Defense Counsel]: Okay. Thank you, Your Honor.

[¶73] The district court thereafter explained the meaning of hearsay to the witness and

cautioned her to refrain from providing such testimony and to answer only the question

she is asked. The court then instructed the jury:

. . . The ladies and gentlemen of the jury are back

with us. And ladies and gentlemen, just before you were

escorted to the jury room, Ms. Hughes was asked a question

to the effect of why was she concerned about her father. And

her answer – and I’m paraphrasing a bit here – was that she

was concerned because she heard her father say to the

policeman present that the defendant had hit him with a

bottle.

I attempted to stop that testimony, as I think all of us

did, because it’s hearsay. That is a classic hearsay statement,

and it’s not admissible. And the Court has sustained the

defendant’s objection to that testimony. And you are

instructed that – specifically that you must disregard that

particular testimony.

[¶74] Applying our plain error analysis, we find that the first element of the test is

satisfied. Mr. Bruce alleges the district court’s jury instruction was inadequate to cure the

harm caused by the inadmissible hearsay. The record clearly depicts the hearsay

testimony and the curative instruction.

[¶75] The second element of the plain error analysis requires that Mr. Bruce establish a

violation of a clear and unequivocal rule, and that the violation be clear and obvious, not

merely arguable. Mr. Bruce has not made this showing. “We have said many times that

a trial error may be corrected by an appropriate curative instruction, and that we presume

that jurors follow the court’s instructions.” Willoughby v. State, 2011 WY 92, ¶ 11, 253

P.3d 157, 161 (Wyo. 2011) (citing Janpol v. State, 2008 WY 21, ¶ 24, 178 P.3d 396, 405

(Wyo. 2008); Brown v. State, 953 P.2d 1170, 1177 (Wyo. 1998); Rubio v. State, 939 P.2d

238, 243 (Wyo. 1997); and Burke v. State, 746 P.2d 852, 857 (Wyo. 1987)). Mr. Bruce

has provided no basis to deviate from this approach. In particular, he has cited no

authority that would establish that the curative instruction in this case was clearly

32

inadequate, and our precedent is in fact to the contrary. See Metzger v. State, 4 P.3d 901

(Wyo. 2000).

[¶76] In Metzger, a witness testified to statements the victim made to her concerning the

defendant’s sexual abuse of the victim. Id., 4 P.3d at 907-08. The trial court sustained

hearsay objections to the testimony, struck the testimony, and instructed the jury: “I’d ask

the jury to disregard the hearsay statements.” Id. On appeal, the defendant asserted the

curative instruction was inadequate to remedy the harm caused by the testimony. Id. at

908. This Court disagreed, explaining:

Keeping in mind that this was a witness who was nine years

old at the time she testified, and the overall context of AG’s

testimony, we conclude that the witness’s hearsay statements

were inadvertent and not a deliberate effort by the prosecutor

to get the witness to introduce that hearsay into evidence. The

trial court immediately corrected the problem by instructing

the jury to disregard both of AG’s hearsay responses. We

must assume that the jury followed the court’s curative

instruction. Burke v. State, 746 P.2d 852, 857 (Wyo.1987).

Metzger asks that we rely instead on our holding in Zabel v.

State, 765 P.2d 357, 363 (Wyo.1988) that curative action

cannot take the sting out of every mistake, i.e., we do not

always presume that the jury will follow the court’s curative

instructions. In Zabel, we declined to follow our usual rule

because an expert’s testimony led the jury through a

truthfulness evaluation (of a victim under circumstances

similar to this case) which ultimately told the jury that the

victim was truthful and the defendant was guilty. In this case,

AG’s stricken statements did tend to corroborate EM’s

accusations; however, the trial court’s remedial action was

immediate and comprehensive. Under the circumstances of

this case, we opt to follow our general rule that the jury did

obey the corrective instructions utilized by the trial court.

Metzger, 4 P.3d at 908.

[¶77] Given this precedent, we cannot find plain error in the district court’s response to

the inadmissible hearsay and its curative instruction. Defense counsel agreed that the

hearsay testimony given in this case was not deliberately drawn out by the prosecutor.

Additionally, when the witness offered the offending testimony, the district court

immediately intervened and then gave the jury a curative instruction that was much more

detailed and comprehensive than the instruction upheld in Metzger. Because we find no

33

plain error in the court’s curative instruction, we find no abuse of discretion in the court’s

denial of Mr. Bruce’s motion for a new trial.

E. Failure to Instruct the Jury on Self Defense

[¶78] Mr. Bruce argues that self-defense was part of his defense theory and the district

court erred in failing to give the jury a self-defense instruction. “The failure to give an

instruction on the law related to a theory of defense is a due process issue, which this

Court reviews de novo.” Nelson v. State, 2010 WY 159, ¶ 13, 245 P.3d 282, 285 (Wyo.

2010); Ewing v. State, 2007 WY 78, ¶ 7, 157 P.3d 943, 945 (Wyo. 2007).

[¶79] Wyoming law is well settled with respect to instructing a jury on a defendant’s

theory of the case:

“[A] defendant has the right to have instructions on his theory

of the case or his theory of defense presented to the jury if the

instructions sufficiently inform the jury of the theory of

defense and if competent evidence exists which supports the

law expressed in the instructions.” Thom v. State, 792 P.2d

192, 195 (Wyo.1990). However, we have also noted that

“[n]ot every instruction must be given simply because there is

a claim that it incorporates a theory of the case.” Wilkening v.

State, 922 P.2d 1381, 1383 (Wyo.1996). A trial court may

properly refuse to give a proposed instruction if it is

erroneous, confusing, argumentative, or if the instruction

unduly emphasizes one aspect of the case, the law, or the

defendant’s version of the events. Madrid v. State, 910 P.2d

1340, 1346 (Wyo.1996); Jansen v. State, 892 P.2d 1131, 1140

(Wyo.1995); Virgilio v. State, 834 P.2d 1125, 1128

(Wyo.1992). Additionally, “instructions not based on the

evidence can be properly refused.” Chavez-Becerra v. State,

924 P.2d 63, 67 (Wyo.1996).

Drennen v. State, 2013 WY 118, ¶ 20, 311 P.3d 116, 124 (Wyo. 2013) (quoting Farmer

v. State, 2005 WY 162, ¶ 23, 124 P.3d 699, 707 (Wyo. 2005)).

[¶80] We have also said:

Any competent evidence is sufficient to establish a defense

theory even if it consists only of testimony of the defendant.

Best v. State, 736 P.2d 739, 745 (Wyo.1987). We view the

evidence in a light favorable to the accused and the accused’s

testimony must be taken as entirely true to determine if the

34

evidence is competent. Duckett v. State, 966 P.2d 941, 944

(Wyo.1998). Even if the court deems the evidence to be

weak, or unworthy of belief, the instruction must be given if a

jury could reasonably conclude the evidence supports the

defendant’s position. Id.

Nelson, ¶ 14, 245 P.3d at 286 (quoting Iseli v. State, 2007 WY 102, ¶ 10, 160 P.3d 1133,

1136 (Wyo. 2007)). On the other hand, an instruction is properly refused if it invites the

jury to engage in speculation or conjecture. Young v. State, 849 P.2d 754, 766 (Wyo.

1993).

[¶81] Mr. Bruce cites the following as evidence that supported giving a self-defense

instruction in this case:

Mr. Laster took four loaded weapons over to Mr.

Bruce’s just before the altercation, and expressed that he was

not going to take an “ass whooping” from a younger man. It

was within ten or fifteen minutes of Mr. Laster’s return to his

trailer from Mr. Bruce’s home that Mr. Bruce came over.

When Ms. Hughes picked Mr. Bruce up at the Fast

Lane, he was upset, and said Mr. Laster had hit him in the

back of the head with a Maglite flashlight. In fact, Ms.

Hughes felt the bump on Mr. Bruce’s head from the injury

through his hair.

Ms. Hughes also testified that Mr. Bruce had bloody

knuckles, and that Mr. and Mrs. Laster had “fucked him.”

[¶82] We disagree that the above-cited evidence was sufficient to warrant the giving of a

self-defense instruction. This Court has held that a person who is the aggressor in an

altercation has a duty to retreat before using deadly force:

Self-defense is one of the rights which the law of necessity

gives to man. It is founded and based on necessity-on the

inability of the executive machinery of the law to be always

with the citizen to protect him from the aggression of others.

A right of such a high character must also, of necessity, be

attended with high responsibilities; and that is the obligation

on the part of one who exercises the right to be the

executioner of his fellow man to see that his own conduct is

exemplary. Self-defense is a legal right, not an excuse for a

homicide, and it can be exercised only where he who employs

it is himself in the right at the time or moment of its use. The

aggressor-one who strikes another, and thereby brings on a

35

combat, or one who by the use of vile and opprobrious

language almost as surely brings on a combat-is not clothed

with the right of self-defense, so long as he continues to

persist in his own wrongdoing. He must discontinue his own

assault, whether by violence or by word, before the law of

necessity says that he can strike down his assailant; and

whether or not he is required to retreat before resorting to the

awful extremity of taking human life, when he is in the right,

he certainly must resort to that simple expedient, if it is

consistent with his safety, when he is in the wrong.

Drennan, ¶ 24, 311 P.3d at 125-26 (quoting State v. Flory, 276 P. 458, 462 (Wyo. 1929)).

[¶83] While it is true that the State carries the burden of proving that the defendant did

not act in self-defense, we have also held:

A defendant must first present a prima facie case of each

element of the affirmative defense before the jury is

instructed on the theory, including that the victim acted as the

aggressor. Only then does the burden shift to the State to

prove that a defendant was not acting in self-defense.

Brown v. State, 2014 WY 104, ¶ 16, 332 P.3d 1168, 1174 (Wyo. 2014) (citing Drennen,

¶ 39, 311 P.3d at 129).

[¶84] There is no question that when the incident in Mr. Laster’s home began, Mr. Bruce

was the aggressor. While much of the evidence in this case was hearsay evidence, Mrs.

Laster testified to the events she witnessed that initiated the violence at Mr. Laster’s

home. Mrs. Laster testified that Mr. Bruce entered Mr. Laster’s home unbidden, came

into to the back bedroom where Mr. and Mrs. Laster were located, talked to some extent

with Mr. Laster, and then suddenly struck Mrs. Laster with a beer bottle hard enough to

cause her to lose consciousness. Thereafter, the evidence shows that Mr. Bruce struck

Mr. Laster a couple of times with a beer bottle, and accepting Mr. Bruce’s evidence as

true, Mr. Laster struck Mr. Bruce with a Maglite flashlight. As to how those events

unfolded, we agree with defense counsel’s observation during the instructions conference

that “we’re guessing about whatever happened in those moments.”

[¶85] What is critical here is that the record is entirely devoid of evidence that Mr. Bruce

stopped being the aggressor and that Mr. Laster became the aggressor. That is, Mr.

Bruce presented no evidence that at some point during the altercation, he attempted to

stop his own aggression and withdraw or retreat from the situation. None of the evidence

cited by Mr. Bruce addresses this controlling question. Mr. Laster’s possession of

firearms is not relevant to the inquiry because Mr. Bruce presented no evidence that Mr.

36

Laster threatened him with the weapons or that Mr. Bruce was even aware of the

weapons. Likewise, Mr. Bruce’s own injuries, the bloody knuckles and the bump on his

head, and his statements that the Lasters “fucked him,” reveal nothing concerning who

acted as the aggressor during the continuing altercation. In the absence of evidence that

Mr. Bruce stopped being the aggressor and Mr. Laster became the aggressor, Mr. Bruce

failed to make a prima facie case that would have supported the giving of a self-defense

instruction. The self-defense instruction requested by Mr. Bruce would have simply been

an invitation to the jury to engage in speculation or conjecture, and the district court thus

properly refused to give the instruction.

CONCLUSION

[¶86] We find no error in the district court’s admission of the deceased victim’s 911 call,

its rulings on Mr. Bruce’s motions for judgment of acquittal, its curative instruction

regarding the inadmissible hearsay, or its refusal to instruct the jury on self-defense.

Affirmed.

37