July 15, 2019

03:53:17 PM
CASE NUMBER: S-19-0046
IN THE SUPREME COURT

STATE OF WYOMING

THE STATE OF WYOMING, )

)
Petitioner, )
)
v. ) No. S-19-0046
)
JASON TSOSIE JOHN, )
)
Respondent. )

BRIEF OF PETITIONER

Bridget Hill #6-3616

Wyoming Attorney General

Jenny L. Craig #6-3944

Deputy Attorney General

Christyne M. Martens #7-5044

Senior Assistant Attorney General

Kevin Taheri #6-3165

Special Assistant Attorney General

Samuel Williams #7-5725

Assistant Attorney General
2320 Capitol Avenue
Cheyenne, WY 82002
(307) 777-7977

ATTORNEYS FOR PETITIONER

 TABLE OF CONTENTS

TABLE OF CASES AND AUTHORITIES.......................................................................iii

STATEMENT OF JURISDICTION ................................................................................... 1

STATEMENT OF THE ISSUES ........................................................................................ 2

STATEMENT OF THE CASE ........................................................................................... 3

I. Nature of the Case .................................................................................................... 3

II. Facts and Procedural History Relevant to the Issues Presented for Review ............ 5

A. The circuit court found probable cause at the preliminary hearing. ................... 5

B. John’s motion to dismiss under Wyoming Statute § 6-2-602 ............................ 8

III. Rulings Presented for Review ................................................................................ 17

ARGUMENT..................................................................................................................... 18

I. The district court’s dismissal of the case against John impermissably

extended the language of Wyoming Statute § 6-2-602(f) and violated the
separation of powers doctrine by usurping the role of the Executive. ................... 18

A. Standard of Review ........................................................................................... 19

B. This Court should construe Wyoming Statute § 6-2-602(f) as

recognizing the existing preliminary hearing procedures as the sole
method for the Juiciary to restrict the Executive’s prosecutorial
discretion. .......................................................................................................... 19

1. The district court’s interpretation of Wyoming Statute § 6-2-602(f)

infringed the Executive’s exclusive authority to charge an individual
with a crime as defined by the Legislature. ................................................. 20

2. Wyoming Statute § 6-2-602(f) requires it to be applied at the

initiation phase of a proceeding and the Judiciary is empowered to
intervene, if at all, through the preliminary hearing requirements. ............. 25

3. This Court’s other rules do not supply authority to the district court
to reassess the sufficiency of the State’s evidence to proceed with a
prosecution. ................................................................................................. 31

i
 II. The district court’s only authority to consider immunity under Wyoming
Statute § 6-2-602(f) arose from its appellate jurisdiction over the circuit
court, so the court should have applied appellate procedures and standards. ........ 35

A. Standard of Review ........................................................................................... 35

B. The district court did not have original jurisdiction to reassess the
State’s probable cause in a new proceeding. .................................................... 36

C. Challenges to the Executive’s decision to charge a defendant under

Wyoming Statute § 6-2-602(f) should be considered using appellate
procedures and standards. ................................................................................. 38

III. If this Court holds that the district court properly interpreted Wyoming
Statute § 6-2-602(f) as creating a right to a pretrial procedure and it had
jurisdiction to consider the motion, the court erred by dismissing the case in
light of Wyoming’s self-defense law. .................................................................... 41

A. Standard of Review ........................................................................................... 41

B. The State presented probable cause John did not act in self-defense and,
instead, committed first degree murder. ........................................................... 42

CONCLUSION ................................................................................................................. 60

CERTIFICATE REGARDING ELECTRONIC FILING ................................................. 61

ii
 TABLE OF CASES AND AUTHORITIES

Cases Page No.

Arrowsmith v. United Press International,

320 F.2d 219 (2nd Cir. 1963) ...................................................................................... 47

Best v. State,
736 P.2d 739 (Wyo. 1987) ........................................................................................... 57

Billis v. State,
800 P.2d 401 (Wyo. 1990) .................................................................................... passim

Blackledge v. Perry,
417 U.S. 21 (1974) ....................................................................................................... 30

Bordenkircher v. Hayes,
434 U.S. 357 (1978) ..................................................................................................... 22

Bourke v. Grey Wolf Drilling Co., LP,

2013 WY 93, 305 P.3d 1164 (Wyo. 2013) .................................................................. 47

Bowlsby v. State,
2013 WY 72, 302 P.3d 913 (Wyo. 2013) .................................................................... 25

Bretherick v. State,
170 So. 3d 766 (Fla. 2015) .......................................................................................... 10

Causey v. State,
2009 WY 111, 215 P.3d 287 (Wyo. 2009) .......................................... 45, 46, 51, 57, 58

Cir. Ct. of the Eighth Jud. Dist. v. Lee Newspapers,

2014 WY 101, 332 P.3d 523 (Wyo. 2014) .................................................................. 37

Creecy v. State,
2009 WY 89, 210 P.3d 1089 (Wyo. 2009) ................................................ 27, 31, 35, 54

Crozier v. State,
882 P.2d 1230 (Wyo. 1994) ......................................................................................... 30

Daley v. State,
2016 WY 22, 368 P.3d 291 (Wyo. 2016) .................................................................... 19

Davila v. State,
831 P.2d 204 (Wyo. 1992) ........................................................................................... 37
iii
Cases Page No.

Dennis v. State,
51 So. 3d 456 (Fla. 2010) ............................................................................................ 10

Drennen v. State,
2013 WY 118, 311 P.3d 116 (Wyo. 2013) ........................................................... passim

Farrow v. State,
2019 WY 30, 437 P.3d 809 (Wyo. 2019) .............................................................. 46, 51

Fuller v. State,
568 P.2d 900 (Wyo. 1977) ........................................................................................... 32

Garcia v. State,
667 P.2d 1148 (Wyo. 1983) ................................................................................... 27, 35

Haire v. State,
2017 WY 48, 393 P.3d 1304 (Wyo. 2017) ...................................................... 44, 48, 52

Hall v. State,
851 P.2d 1262 (Wyo. 1993) ................................................................................... 33, 34

JHK v. BMG (In re TRG),

665 P.2d 491 (Wyo. 1983) ........................................................................................... 20

Jackson v. State,
891 P.2d 70 (Wyo. 1995) ............................................................................................. 47

Johns v. State,
2018 WY 16, 409 P.3d 1260 (Wyo. 2018) .................................................................. 49

Kerns v. State,
920 P.2d 632 (Wyo. 1996) ........................................................................................... 30

Knospler v. State,
2016 WY 1, 366 P.3d 479 (Wyo. 2016) ...................................................................... 46

Kovach v. State,
2013 WY 46, 299 P.3d 97 (Wyo.2013) ................................................................. 49, 55

Leeper v. State,
589 P.2d 379 (Wyo. 1979) ........................................................................................... 45

iv
Cases Page No.

Lindsay v. State,
2005 WY 34, 108 P.3d 852 (Wyo. 2005) .............................................................. 40, 42

Loomer v. State,
768 P.2d 1042 (Wyo. 1989) .................................................................................... 49, 55

Madrid v. State,
910 P.2d 1340 (Wyo. 1996) ......................................................................................... 27

Matthews v. State,
2014 WY 54, 322 P.3d 1279 (Wyo. 2014) .................................................................. 32

Merrill v. Jansma,
2004 WY 26, 86 P.3d 270 (Wyo. 2004) ...................................................................... 29

Miskimmins v. Shaver,
8 Wyo. 392, 58 P. 411 (Wyo. 1899) ............................................................................ 47

MF v. State,
2013 WY 104, 308 P.3d 854 (Wyo. 2013) ............................................................ 20, 23

Morales v. State,
251 So. 3d 167 (Fla. Dist. Ct. App. 2018) ................................................................... 10

Palmer v. State,
9 Wyo. 793, 59 P. 793 (Wyo. 1900) ............................................................................ 44

Patterson v. New York,

432 U.S. 197 (1977) ............................................................................................... 49, 55

Patterson v. State,
682 P.2d 1049 (Wyo. 1984) ............................................................................. 45, 49, 53

People v. Alaniz,
409 P.3d 508 (Colo. App. 2016) .................................................................................. 10

People v. Guenther,
740 P.2d 971 (Colo. 1987) ........................................................................................... 10

People v. Young,
825 P.2d 1004 (Colo. App. 1991) ................................................................................ 10

v
Cases Page No.

Peterson v. State,
983 So. 2d 27 (Fla. Dist. Ct. App. 2008) ..................................................................... 10

Pub. Serv. Comm'n v. Lower Valley Power & Light,

608 P.2d 660 (Wyo. 1980) ..................................................................................... 38, 39

Rathbun v. State,
2011 WY 116, 257 P.3d 29 (Wyo. 2011) .................................................................... 39

Reynolds v. Bonar,
2013 WY 144, 313 P.3d 501 (Wyo. 2013) ............................................................ 19, 31

Robinson v. State,
2003 WY 32, 64 P.3d 743 (Wyo. 2003) ...................................................................... 40

Rock v. Lankford,
2013 WY 61, 301 P.3d 1075 (Wyo. 2013) ............................................................ 22, 29

Rodgers v. Commonwealth,
285 S.W.3d 740 (Ky. 2009) ................................................................................... 10, 11

State v. Rude, No. 91-228 (Wyo. Nov. 13, 1991).............................................................. 39

Sanchez v. State,
2017 WY 70, 397 P.3d 180 (Wyo. 2017) .................................................................... 35

Shue v. State,
2016 WY 15, 367 P.3d 645 (Wyo. 2016) .................................................................... 38

Shull v. State,
2017 WY 14, 388 P.3d 763 (Wyo. 2017) .................................................................... 11

Snow v. State,
2009 WY 117, 216 P.3d 505 (Wyo. 2009) ...................................................... 28, 35, 58

Stamper v. State,
672 P.2d 106 (Wyo. 1983) ........................................................................................... 38

State v. Carosiello,
No. 15 CO 0017, 2017 Ohio App. LEXIS 4524 (Ohio Ct. App. Oct. 5, 2017) .......... 46

vi
Cases Page No.

State v. Collins,
425 P.3d 630 (Kan. Ct. App. 2018) ............................................................................. 10

State v. Goettina,
158 P.2d 865 (Wyo. 1945) ..................................................................................... 45, 53

State v. Hardy,
390 P.3d 30 (Kan. 2017) .............................................................................................. 10

State v. Helton,
73 Wyo. 92, 276 P.2d 434 (Wyo. 1954) .............................................. 28, 30, 31, 35, 54

State v. Ultreras,
295 P.3d 1020 (Kan. 2013) .......................................................................................... 10

Tatman v. Cordingly,
672 P.2d 1286 (Wyo. 1983) ......................................................................................... 52

Thomas v. Justice Ct. of Washakie Cty.,

538 P.2d 42 (Wyo. 1975) ....................................................................................... 27, 35

United States v. Batchelder,

442 U.S. 114 (1979) ..................................................................................................... 30

Weber v. State,
2011 WY 127, 261 P.3d 225 (Wyo. 2011) .................................................................. 19

Weller v. Weller,
960 P.2d 493, 496 (Wyo. 1998) ................................................................................... 47

Widdison v. State,
2018 WY 18, 410 P.3d 1205 (Wyo. 2018) ........................................................... passim

Wilson v. State,
655 P.2d 1246 (Wyo. 1982) .................................................................................. passim

Wright v. Commonwealth,
No. 2016-SC-000089-MR, 2017 WL 639386 (Ky. Feb. 16, 2017) (unpublished) ..... 10

Yager v. State,
2015 WY 139, 362 P.3d 777 (Wyo. 2015) ............................................................ 19, 41

vii
Statutes Page No.

2018 Wyo. Sess. Laws 393 (Ch. 135) ..................................................................... 8, 24, 25

H.B. 168, 64th Leg., Budget Sess. (Wyo. 2018) ............................................................... 24

Wyo. Stat. Ann. § 5-9-132................................................................................................. 37

Wyo. Stat. Ann. § 6-1-102........................................................................................... 42, 43

Wyo. Stat. Ann. § 6-1-204................................................................................................. 24

Wyo. Stat. Ann. § 6-1-301................................................................................................. 54

Wyo. Stat. Ann. § 6-1-303................................................................................................. 54

Wyo. Stat. Ann. § 6-2-101................................................................................................. 43

Wyo. Stat. Ann. § 6-2-501................................................................................................. 54

Wyo. Stat. Ann. § 6-2-601........................................................................................... 44, 45

Wyo. Stat. Ann. § 6-2-602.......................................................................................... passim

Wyo. Stat. Ann. § 6-3-109................................................................................................. 33

Wyo. Stat. Ann. § 7-5-209................................................................................................. 26

Wyo. Stat. Ann. § 7-8-105........................................................................................... 26, 28

Wyo. Stat. Ann. § 7-11-401............................................................................................... 33

Wyo. Stat. Ann. § 14-3-209............................................................................................... 33

Wyo. Stat. Ann. § 26-2-124............................................................................................... 33

Wyo. Stat. Ann. § 35-7-1043............................................................................................. 33

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ........................................................................... 25

Casper, Wyo., Code § 9.20.010(A)(1) (2018) ................................................................... 54

Casper, Wyo., Code § 9.20.060 (2018) ............................................................................. 54

Wayne R. LaFave et al., Criminal Procedure (4th ed. 2015) ............................... 26, 27, 30
viii
Other Authorities Page No.

Wyo. Const. art. 2, § 1 ....................................................................................................... 21

Wyo. Const. art. 5, § 1 ................................................................................................. 36, 37

Wyo. Const. art. 5, § 3 ......................................................................................................... 1

Wyo. Const. art. 5, § 10 ............................................................................................... 37, 38

Order Adopting the Revised Wyoming Rules of Criminal Procedure (12/23/1991) ........ 28

Fed. R. Cr. P. 12 .......................................................................................................... 32, 33

W.R.A.P. 1.04 .............................................................................................................. 38, 39

W.R.A.P. 1.05 .................................................................................................................... 38

W.R.A.P. 13.02 .............................................................................................................. 1, 39

W.R.A.P. 13.03 .................................................................................................................... 1

W.R.A.P. 13.08 .................................................................................................................. 39

W.R.A.P. 21 ................................................................................................................. 40, 41

W.R.Cr.P. 5.1......................................................................................................... 26, 27, 31

W.R.Cr.P. 6........................................................................................................................ 26

W.R.Cr.P. 12.......................................................................................................... 31, 32, 34

ix
 STATEMENT OF JURISDICTION

This appeal arises from the District Court for the Seventh Judicial District, Natrona

County, Wyoming’s dismissal of the case against Respondent, Jason Tsosie John. (R. at

348–50). The district court filed its order dismissing the case March 1, 2019. (Id.). An order

of a trial court in a criminal action that is not otherwise appealable under the Wyoming

Rules of Appellate Procedure may be reviewed by this Court on a writ of review. See

W.R.A.P. 13.02; Wyo. Const. art. 5, § 3. As required by Rule 13.03 of the Wyoming Rules

of Appellate Procedure, the State timely filed its petition for writ of review within fifteen

days of the order, on March 18, 2019. (3/18/19 Pet. for Writ of Review/Certiorari). 1 This

Court granted the State’s petition on April 19, 2019. (R. at 355). Therefore, jurisdiction is

vested in this Court under article 5, section 3 of the Wyoming Constitution.

1
Available at https://efiling.courts.state.wy.us/public/caseView.do?csIID=26136 (last

visited June 10, 2019).

1
 STATEMENT OF THE ISSUES

I. Was the district court’s order dismissing the case void because
it overextended the language of Wyoming Statute §6-2-602(f)
and violated separation of powers?

II. Did the district court apply the appropriate procedure and
standards in its analysis of John’s motion?

III. Did the district court err in its application of Wyoming’s

statutory and common law on self-defense to the facts
presented at the pretrial hearing?

2
 STATEMENT OF THE CASE

I. Nature of the Case

The Natrona County District Attorney charged John with one count of first degree

murder for purposely, and with premeditated malice, killing Wesley Willow. The Circuit

Court for the Seventh Judicial District held a preliminary hearing and found probable cause

for the charge. After being bound over, the district court held a hearing on John’s motion

to dismiss based on his assertion he was immune from prosecution under § 6-2-602(f)

because he acted in self-defense. The court required the State to present evidence. It then

reassessed whether the State presented probable cause that John committed chargeable

conduct. Ultimately, the court ruled the State did not present probable cause demonstrating

that John was not immune from prosecution under § 6-2-602(f) and dismissed the case.

The State raises three issue on appeal. First, the district court erred by holding a

hearing and dismissing the case. The plain language of § 6-2-602(f) and the separation of

powers doctrine require the executive branch of government, when exercising its exclusive

charging discretion, to apply the statute’s immunity provision. The only judicial

determination called for by the statute is a determination of probable cause, which occurs

at the preliminary hearing. The district court’s interpretation violated the separation of

powers doctrine by creating a procedure for challenging the State’s charging discretion

after the probable cause determination at the preliminary hearing. The district court’s

interpretation of § 6-2-602(f) also impermissibly read a procedure into the statute not

provided for by its plain meaning. Because the court entered its order in a proceeding

outside of the express authority of the statute, its order is void. To resolve this issue, this

3
Court should assess the plain meaning of the statute in light of its well established rules of

statutory interpretation and of the separation of powers doctrine.

Second, the district court also adopted a procedure beyond its original jurisdiction

because the plain language of the statute and the separation of powers doctrine vest

jurisdiction for probable cause determinations exclusively in the circuit court. At most, the

district court had appellate jurisdiction through its constitutional authority to issue a writ

of review. The district court erred when it did not assess the application of § 6-2-602(f)

under its appellate authority and the corresponding appellate standards. To resolve this

issue, this Court should apply its well-established rules of construction to the constitutional

and statutory authority of the district and circuit courts in light of the plain language of § 6-

2-602(f).

Third, even if the district court properly considered John’s motion to dismiss, it

should have limited its analysis to the question of whether the circuit court’s finding of

probable cause was sufficient, based on the record before the circuit court, to vest the

district court with jurisdiction. An analysis of the preliminary hearing record supports a

probable cause finding sufficient to vest the district court with jurisdiction. However, even

if the district court properly heard evidence at the motion to dismiss hearing, the evidence

presented still supported a finding of probable cause when viewed in the context of

Wyoming’s law of self-defense. To resolve this issue of first impression, this Court should

determine what facts should be considered when a defendant files a motion to dismiss

under § 6-2-602(f) by applying its law concerning preliminary hearings and jurisdiction.

This Court should then apply Wyoming’s self-defense law to the record.

4
II. Facts and Procedural History Relevant to the Issues Presented for Review.

The State presented evidence regarding probable cause at two proceedings. First, it

presented evidence to the circuit court, which found probable cause and bound the case

over to the district court. (8/16/18 Prelim. Hr’g Tr. at 68–69). It then represented its

evidence at a pretrial hearing in response to John’s motion to dismiss based on §6-2-602(f),

after which the district court dismissed the case. (2/1/19 Mot. for Dismissal pursuant to

Wyoming Statute 6-2-602, or in the Alternative, Enforcement of Wyoming Statute 6-2-

602(f) Hr’g [Mot. to Dismiss Hr’g] Tr. at 118–20).

A. The circuit court found probable cause at the preliminary hearing.

The circuit court held a preliminary hearing on the first degree murder charge

against John. (8/16/18 Prelim. Hr’g Tr. at 1). Although the State subpoenaed an eyewitness,

Nicolas Heims, to testify at the hearing, the only witness called at the hearing was Detective

Tony Stedellie. (R. at 30; 8/16/18 Prelim. Hr’g Tr. at 7–60).

Detective Stedellie testified that law enforcement officers were called to John’s

home at approximately 4:12 a.m. on August 3, 2018. (8/16/18 Prelim. Hr’g Tr. at 9). The

first responders found Willow deceased on the floor inside the door of John’s home with

his feet located near the threshold of the door. (Id. at 9–10, 55). Investigators found spent

shell casings on the floor inside the home and located an assault style rifle in one of the

bedrooms. (Id. at 10–11). While law enforcement secured the scene, John made unsolicited

statements to the effect of, “He rushed me. I shot him.” (Id. at 11).

Detective Stedellie also testified about the investigation into the relationship of the

parties and the events prior to the shooting. (Id. at 13–31). He spoke with Melissa Hayden,

5
who had dated John from June to July 2018. (Id. at 13). She had dated Willow prior to

dating John and resumed the relationship with Willow after breaking up with John. (Id. at

13–14). She shared two children with Willow. (Id. at 13, 30). John also had a son. (Id. at

30). At 3:44 a.m. on August 3, John sent a text message to Hayden wishing her a happy

birthday. (Id. at 29). After several text messages, Hayden attempted to end the

conversation. (Id. at 18). In response, John sent a message referencing Hayden and

Willow’s children, upsetting both Hayden and Willow. (Id.). As the conversation escalated,

John sent a message in which he stated he would “blow [Hayden] away, just like Wesley

[Willow] and Will. To protect [J] and [J] and [N]. Fuck, yeah. Test me, bitch!” (Id. at 29).

Willow then placed a one minute phone call at 3:56 a.m. to John from Hayden’s

phone in which he challenged John to a fight. (Id. at 18, 30). During the phone call, Willow

repeatedly asked John for his location. (Id. at 19). Heims, who was present during the call,

described Willow repeating “Space 75” during the conversation, which was John’s lot

number. (Id. at 12, 19). Following the call, John sent a number of text messages asking

where Willow and Hayden were, letting them know he was waiting, and disparaging them

as cowards. (Id. at 30). Detective Stedellie read the text messages, but the State did not

introduce them as an exhibit at the hearing. (See id. at 29–30).

Detective Stedellie testified that Willow, Hayden, and Heims drove to John’s

neighborhood and parked away from John’s lot. (Id. at 12). According to Heims, he could

not see the individual on the porch of John’s home. (Id. at 12–13). According to Detective

Stedellie, when investigators asked if anyone present mentioned a firearm, Heims

responded, “No, nobody said anything about a gun.” (Id. at 13).

6
 Hayden explained that the group approached John’s home with Hayden in the lead

and Willow and Heims behind. (Id. at 19). John shined a flashlight on the group and Willow

began to move around Hayden. (Id. at 19–20). Both Hayden and Heims heard Willow and

John exchange words, but neither could discern what they said. (Id. at 13, 20). Willow then

ran up the front steps of the porch and shots rang out. (Id. at 13).

Heims described the shots as occurring in rapid succession. (Id. at 16). The shots

struck Willow as he stood on the porch, causing him to fall into the front doorway. (Id. at

13). Both Heims and Hayden believed the front door of the home was open during the

entire altercation. (Id. at 23). Detective Stedellie described the door as having a bulky strike

plate and functioning deadbolt and doorknob lock. (Id. at 58–59).

Investigators found nine shell casings, corresponding to the nine rounds that struck

Willow. (Id. at 23, 25). Two rounds struck Willow in the chest in an upward trajectory,

indicating John was holding the rifle at his hip or while crouched. (Id. at 25–26). Six shots

entered the back side of Willow’s body (one of which grazed the back of his head) and one

shot entered laterally through his thigh. (See id. at 25, 27-28). Investigators found bullet

holes that entered the home’s floor at a perpendicular angle, indicating John stood over

Willow to fire the shots into his back. (Id. at 24, 27).

John’s counsel cross-examined Detective Stedellie concerning his testimony. (See

id. at 31). He began by focusing on the intoxication of Willow, Hayden, and Heims. (Id. at

34–35). Next, he elicited that Heims described Willow walking with a quickened, “angry”

step as he approached John’s home. (Id. at 37). Detective Stedellie also reaffirmed that

none of the witnesses recalled John telling the party he had a gun. (Id. at 43). The remainder

7
of the cross-examination focused on the text messages found on Hayden’s phone and what

happened when John began to shoot at Willow. (Id. at 44–58). Defense counsel also asked

Detective Stedellie if he believed John acted in self-defense, but Stedellie did not offer an

opinion. (Id.).

After the close of the evidence, the State argued that John and Willow were mutual

combatants and the shots in Willow’s back showed John continued to fire after Willow

became disabled, negating any claim to self-defense. (Id. at 60–62). John’s counsel argued

the court was required to determine if John’s use of force was lawful as part of the probable

cause determination. (Id. at 62). He relied on the presumption codified in § 6-2-602(b) that

John had a reasonable fear of death or serious bodily injury because he was in his home.

(Id. at 64–65). He also argued the recently enacted § 6-2-602(f) required the State present

probable cause establishing John’s use of force in his home did not amount to self-defense.

(Id. at 65). Subsection (f), which states individuals who use reasonable defensive force

shall not be prosecuted, became effective one month prior to the preliminary hearing. 2018

Wyo. Sess. Laws 393, 394–95. The circuit court noted there was a dearth of guidance

regarding the recently enacted legislation but found, based on the evidence presented, the

State had met its burden “[f]or probable cause purposes.” (Id. at 68–69). Accordingly, it

bound the case over to the district court. (R. at 14).

B. John’s motion to dismiss under Wyoming Statute § 6-2-602.

John filed a pretrial motion to dismiss in the district court, arguing § 6-2-602(f)

prohibited his prosecution. (R. at 164). He argued the burden should be on the State to

prove that he was not entitled to immunity. (Id.). He further asserted that because he was

8
lawfully present in his home, he was entitled to a presumption that he had a fear of

imminent death or serious bodily injury and was justified in his use of deadly force. (Id. at

166–69). Accordingly, his use of force was presumptively reasonable and § 6-2-602(f)

prohibited the State from filing a charge against him. (Id. at 170).

The State filed a response, arguing first that John was not entitled to a pretrial

hearing on immunity based on the language of § 6-2-602(f). (Id. at 206, 208–09).

Alternatively, it argued that John was not entitled to immunity because he was not entitled

to the protections of the “Castle Doctrine,” he did not consider reasonable alternatives to

deadly force, and his right to use deadly force ceased after the first two shots disabled

Willow. (Id. at 209–14).

In reply, John argued that he had a due process right to present a defense to the crime

charged in a pretrial hearing, the facts of his case supported an application of the Castle

Doctrine, and his use of deadly force was justified. (Id. at 324–30). In his argument

concerning his right to a hearing, John asserted he had raised the issue of immunity in front

of the circuit court at his preliminary hearing, but the circuit court had not ruled on the

issue. (Id. at 328). He then argued the case should be remanded to the circuit court for an

immunity hearing. (Id. at 328–30). He claimed the State provided additional discovery after

the preliminary hearing that could be used to challenge the State’s charging decision (Id.

at 28-29).

Over the State’s objection, the district court held a hearing on the motion to dismiss.

(Mot. to Dismiss Hr’g Tr. at 6). The State subpoenaed Detective Stedellie, Hayden, and

Casper Police Officer Ben Flake for the hearing. (R. at 333, 335, 339). However, the State

9
only called Detective Stedellie to testify at the hearing. (See Mot. to Dismiss Hr’g Tr. at

3).

Before the presentation of evidence, the court and counsel discussed what had

occurred during the preliminary hearing. (Id. at 6–8). Defense counsel averred that he had

argued for the application of Wyoming’s self-defense statutes to the circuit court, but the

court did not rule on the issue. (Id. at 7–8). The district court then summarized the

Legislature’s amendments to § 6-2-602, which took effect on July 1, 2018. (Id. at 9). The

court ruled that the Legislature’s inclusion of an immunity provision in the statute

necessarily imposed a gatekeeping function upon the court. (Id. at 15–17).

In determining how it should perform its gatekeeping function, the district court

cited an extensive list of cases from four other jurisdictions (Colorado, Florida, Kentucky,

and Kansas) that imposed a range of evidentiary thresholds spanning from clear and

convincing evidence to probable cause. (See id. at 14 (citing People v. Guenther, 740 P.2d

971 (Colo. 1987); People v. Young, 825 P.2d 1004 (Colo. App. 1991); People v. Alaniz,

409 P.3d 508 (Colo. App. 2016); Peterson v. State, 983 So. 2d 27 (Fla. Dist. Ct. App.

2008); Dennis v. State, 51 So. 3d 456 (Fla. 2010); Bretherick v. State, 170 So. 3d 766 (Fla.

2015); Morales v. State, 251 So. 3d 167 (Fla. Dist. Ct. App. 2018); Rodgers v.

Commonwealth, 285 S.W.3d 740 (Ky. 2009); Wright v. Commonwealth, No. 2016-SC-

000089-MR, 2017 WL 639386 (Ky. Feb. 16, 2017) (unpublished); State v. Ultreras, 295

P.3d 1020 (Kan. 2013); State v. Hardy, 390 P.3d 30 (Kan. 2017); State v. Collins, 425 P.3d

630 (Kan. Ct. App. 2018)). The court noted that the cited cases dealt with the self-defense

issue at different stages in the criminal proceedings. (Id. at 15). The court also recognized

10
that the discretionary decision of the prosecutor to bring charges in the first instance is a

discrete and independent stage in those proceedings. (Id.).

Because the statute offered immunity, not an affirmative defense at trial, the district

court determined that the Legislature intended the issue of immunity to be resolved early

in the proceedings. (Id. at 18). Accordingly, it found that cases from Kentucky and Kansas,

which imposed a probable cause standard on the State, were the appropriate persuasive

authority. (Id. at 20). Citing case law from this Court it found to be analogous, the court

ruled that the State had the burden to establish probable cause that John “was not statutorily

justified in the use of force.” (Id. at 21-22 (citing Shull v. State, 2017 WY 14, 388 P.3d 763

(Wyo. 2017)). It relied on a case from the Supreme Court of Kentucky for its formulation

of probable cause. (Id. at 20–21 (quoting Rodgers, 285 S.W.3d at 754-55)).

After the district court articulated the standard that it intended to apply, the parties

presented evidence similar to the evidence presented at the preliminary hearing, with

several clarifications and expansions due to the progress made in the investigation. (See

generally id. at 23–98). In addition to Detective Stedellie’s testimony, the State introduced

four exhibits: 1) the postmortem examination of the victim, 2) text messages extracted from

John’s cell phone, 3) the call log from John’s cell phone, and 4) the internet search history

from John’s cell phone. (Id. at 33, 43, 50, 56). Defense counsel cross-examined the

detective using witness statements, but the only exhibit he introduced was a crime scene

photo of Willow’s body taken by investigators. (See id. at 69–90).

In his statement to law enforcement, John alleged that Hayden had initiated the text

message conversation the morning John shot Willow. (Mot. to Dismiss Hr’g Tr. at 41).

11
However, the State’s exhibit listing the text messages John sent to Hayden on August 3

established John initiated the conversation at 3:44 a.m. (Mot. to Dismiss Hr’g State’s Ex.

2 at 1). The conversation became confrontational, and Hayden attempted to end the

conversation after approximately 11 minutes. (Id. at 2). 2 In response, John stated “Fucking

[c]rackhead … can’t even be a real mom. That’s the truth!” (Id.). A message sent from

Hayden’s phone at 3:53 a.m. responded, “I’m [sic] fuck you up Bitch!” (Id.). In response,

John sent five unanswered messages in the span of two minutes, stating, “Go head…”; “I’ll

blow you away just like Wesley [Willow] and Will. To protect [J] and [J] and [N]! Fuck

yeah! Test me bitch!”; “Come at me!”; “My kids are my life!”; “I don’t fuck around!” (Id.

at 3). He sent the last message quoted above at 3:55 a.m. (Id.).

During this exchange, Willow became upset at the abusive content of John’s

messages to Hayden. (Mot. to Dismiss Hr’g Tr. at 25). He used Hayden’s phone to call

John at 3:56 a.m. (Mot. to Dismiss Hr’g State’s Ex. 3 at 4). The call lasted one minute and

ten seconds. (Id.). As described in the preliminary hearing, Willow identified himself,

challenged John to a fight, and asked for John’s address, which John provided. (Mot. Hr’g

Tr. at 25–27; 8/16/18 Prelim. Hr’g Tr. at 12, 19; but see Mot. to Dismiss Hr’g Tr. at 72

(noting that Hayden had a key to John’s house, so she would have already known John’s

address)). According to John, Willow threatened to kill John for what he did to Hayden.

(Mot. to Dismiss Hr’g Tr. at 41–42). The combatants differed in weight and height, with

2
The text messages in the exhibit are in chronological order starting from the bottom of

each page.

12
Willow measuring five feet, seven inches and weighing 171 pounds, while John measured

six feet, four inches and weighed 275 pounds. (Id. at 43).

After the call, Willow, Hayden, and Heims drove to the address John had given

Willow for a “brawl.” (Id. at 25–27). While the group traveled to John’s home, John sent

five more messages to Hayden’s phone that stated, “Where you at bitch?”; “I’m waiting

motherfucker!!!”; “That’s what I thought motherfucker. You a bitch”; “Fuck you! Fuck

[Hayden] that ho! Fuck all y’all”; “I’m ready!” (Id. at 67; Mot. to Dismiss Hr’g State’s Ex.

2 at 3). Those messages went unanswered. (Mot. to Dismiss Hr’g State’s Ex. 2 at 3).

John also placed eight unanswered calls to various people, including three to

Hayden, before the group arrived at his home. (See Mot. to Dismiss Hr’g State’s Ex. 3 at

4–6). He did not call 911 or law enforcement. (Id.). However, a search of John’s phone

revealed a web search for the non-emergency phone number for the Casper Police

Department approximately four minutes after John sent his first message to Hayden. (Mot.

to Dismiss Hr’g State’s Ex. 4).

Willow, Hayden, and Heims arrived at John’s home approximately fifteen minutes

after the initial phone call between Willow and John. (See Mot. to Dismiss Hr’g Tr. at 37;

Mot. to Dismiss Hr’g State’s Ex. 3 at 4). They parked six lots away from John’s trailer

because, according to Heims, Willow did not want their vehicle identified before or after

the fight. (Mot. to Dismiss Hr’g Tr. at 73–74).

The statements of Hayden and Heims conflicted with John’s statements concerning

what occurred after the group approached John’s home. In a statement to police, John stated

that he shined the flashlight attached to his assault rifle at the group from the threshold of

13
his home and warned them to stop approaching. (Id. at 39). When Willow did not heed this

warning and charged the doorway, John contended that he slammed the door and only had

time to switch the safety off of his rifle before Willow entered his home. (Id.). He also told

police that Willow slammed into the door, banged on it, and then kicked it in before

entering his home. (Id. at 40). He told investigators that he did not intend to step outside of

his front door because he was aware of his rights under the law. (Id. at 39). Detectives did

not find any signs that Willow forced his entry into John’s home and, as described in the

preliminary hearing, the front door had an operational deadbolt, doorknob lock, and striker

plate. (Id. at 42; 8/16/18 Prelim. Hr’g Tr. at 58–59).

According to Hayden and Heims, John never closed the door to his home. (Mot. to

Dismiss Hr’g Tr. at 30). However, in contrast to his original statement that was described

at the preliminary hearing, Heims recalled John telling the group words to the effect of “get

outta here,” after which Willow rushed at John through the doorway. (Compare id. at 78–

79, with 8/16/18 Prelim. Hr’g Tr. at 13, 20). At the time of the hearing on the motion to

dismiss, Heims also recalled seeing John holding a firearm during the exchange of words

between the group and John. (Compare Mot. to Dismiss Hr’g Tr. at 83–85, with 8/16/18

Prelim. Hr’g Tr. at 12–13).

John fired nine shots (of thirty available rounds) from his semi-automatic assault

rifle when Willow ran up the porch of the trailer. (Mot. to Dismiss Hr’g Tr. at 81).

Consistent with their summarized statements at the preliminary hearing, Hayden and Heim

stated that the shots came in fairly rapid succession. (Compare id. at 29, with 8/16/18

Prelim. Hr’g Tr. at 16).

14
 The State introduced the postmortem examination report to add additional details

from those presented at the preliminary hearing. (See Mot. to Dismiss Hr’g State’s Ex. 1).

Two shots entered Willow on his front side—the first entered his upper chest and the

second entered four inches lower in his chest. (Id. at 1, 13–16; Mot. to Dismiss Hr’g Tr. at

45). Seven shots entered Willow through the back side of his body. (See Mot. to Dismiss

Hr’g Tr. at 44; Mot. to Dismiss Hr’g State’s Ex. 1 at 1). Of those seven shots, one entered

the back of Willow’s head and exited through his neck; five entered Willow’s back,

injuring his heart and left lung; and one struck the back side of Willow’s hip. (Mot. to

Dismiss Hr’g State’s Ex. 1 at 1, 13, 22–27, 28–29).

According to the pathologist who performed the autopsy, Willow was lying face

down on the floor, still alive but not moving, when John fired the shots that entered the

backside of Willow’s body. (See Mot. to Dismiss Hr’g State’s Ex. 1 at 14, 22–28). The

shots John fired into Willow’s back entered at an angle perpendicular to the floor,

indicating that John was standing over Willow when he fired those shots. (See id. at 22–

27; Mot. to Dismiss Hr’g Tr. at 45–46). The shot that ended Willow’s life was one of the

shots that entered through his back, damaging the left ventricle of his heart. (Mot. to

Dismiss Hr’g Tr. at 95).

Willow was unarmed at all times during these events. (Id. at 57). Although Hayden

had armed herself with an empty vodka bottle and Heims had a foldable knife, neither the

prosecutor nor John’s counsel presented evidence that John was aware of these facts before

he shot Willow. (See id. at 76).

15
 Detective Stedellie also testified that John admitted he had previously considered

killing Willow. (Mot. To Dismiss Hr’g Tr. at 40-41). John stated that, while intoxicated,

he armed himself with a pistol with the intent to shoot Willow because he had slept with

Hayden while Hayden was still in a relationship with John. (Id. at 40). However, John’s

brother talked him out of it at the time. (Id. at 40–41).

After hearing the evidence and arguments of the parties, the district court ruled that

John acted in self-defense and that he was immune from prosecution. (Id. at 112–20). In

its findings of fact, the court determined that John had been positioned in his home and had

instructed Willow, Hayden, and Heims to “get back” before Willow charged into the door.

(Id. at 114–15). It also specifically found that John fired the nine shots in rapid succession,

with no break. (Id. at 115). It concluded that neither Willow nor Hayden were aware of the

goading texts that John sent after the 3:56 a.m. phone call. (Id. at 116–17).

The district court also concluded that John was lawfully present in his home, was

not the initial aggressor or engaged in illegal activity and, therefore, did not have a duty to

retreat. (Id. at 118). It further found Willow instigated the violence and was not invited into

John’s home. (Id.). It also found that Willow’s act of rushing in, although unarmed, created

a risk of serious bodily injury or death to John. (Id.).

The district court ruled that the statute required it to presume that Willow intended

to commit an unlawful act of force or violence when he entered John’s home after John’s

warning to “stay back.” (Id.). The court also ruled additional statutory presumptions

applied. (Id. at 119). It found that § 6-2-602 required it to presume John had a reasonable

and honest belief that deadly force was necessary to prevent imminent death or serious

16
bodily injury. (Id.). Next, it found that “the statutory presumption of reasonableness is

implicated because Mr. Willow unlawfully and forcefully entered [John’s] home, and that

the force that was used by [John] was necessary in this case.” (Id.).

The district court concluded the hearing by ruling that the State had failed “to

establish that probable cause exist[ed] to conclude that [John’s] use of force was not

statutorily justified” and that John was entitled to immunity under § 6-2-602(f). (Id. at 119–

20).

III. Rulings Presented for Review

The district court filed its written order on March 1, 2019. (R. at 348). It

incorporated its oral ruling by reference. (Id.). Its written order reiterated its finding that

John was lawfully present in his own home, was not the initial aggressor, and was not

engaged in illegal activity within his home. (Id.). It found Willow was the uninvited initial

aggressor and John warned Willow to “stay back,” which Willow ignored and made an

unlawful entry into John’s home. (Id. at 349). It found Willow did not attempt to disengage

and the nine shots John fired came in rapid succession. (Id.). It then found John had a

reasonable and honest belief deadly force was necessary and John’s presence in his home

triggered the presumption that his belief was reasonable. (Id.). It concluded the State had

not met its burden to show “probable caused exist[ed] to conclude that [John]’s use of force

was not statutorily justified[.]” (Id.). As a result, John was entitled to the protections of §

6-2-602 and the State could not subject him to criminal prosecution. (Id.).

17
 ARGUMENT

I. The district court’s dismissal of the case against John impermissibly extended
the language of Wyoming Statute § 6-2-602(f) and violated the separation of
powers doctrine by usurping the role of the Executive.

The district court’s dismissal of the case against John after the circuit court found

probable cause to believe John committed first degree murder violated the separation of

powers doctrine by inserting the Judiciary into the role of the Executive. The district court

should have interpreted the plain language of the statute as a directive to the Executive

concerning what conduct can be criminally charged. Further, it should not have created

new procedure to apply § 6-2-602(f) where the Legislature purposefully declined to impose

one. This interpretation aligns with the language of the separation of powers clause of the

Wyoming Constitution, which places the power to initiate a prosecution exclusively within

the Executive.

Under this interpretation, the proper check on the Executive’s discretion to charge

an individual is a preliminary hearing or grand jury proceeding, which this Court presumes

the Legislature knew of when it passed the statute. The Legislature’s decision not to

provide a procedure recognized the preexisting law that limits the Executive’s discretion

to charge by requiring those charges be supported by probable cause at the outset. The

district court should not have created new procedure to apply § 6-2-602(f) where the

Legislature purposefully declined to impose one. The district court’s overextension of the

statute and dismissal of the case after the circuit court found probable cause infringed upon

the Executive’s exclusive power to bring and request dismissal of charges.

18
 A. Standard of Review

Constitutional issues and statutory interpretation issues are questions of law this

Court reviews de novo. Reynolds v. Bonar, 2013 WY 144, ¶ 7, 313 P.3d 501, 503 (Wyo.

2013); Yager v. State, 2015 WY 139, ¶ 7, 362 P.3d 777, 779 (Wyo. 2015).

B. This Court should construe Wyoming Statute § 6-2-602(f) as recognizing

the existing preliminary hearing procedures as the sole method for the
Judiciary to restrict the Executive’s prosecutorial discretion.

The threshold inquiry in this case is whether the Executive or Judiciary was charged

with effectuating § 6-2-602(f) based on the plain meaning of the statute. When interpreting

statutes, this Court’s “objective is to give effect to the legislature’s intent.” Daley v. State,

2016 WY 22, ¶ 10, 368 P.3d 291, 293 (Wyo. 2016) (quoting Weber v. State, 2011 WY 127,

¶ 12, 261 P.3d 225, 228 (Wyo. 2011)). It starts “with the plain meaning of the language

chosen by the legislature and appl[ies] that meaning if the language is clear and

unambiguous.” Id. “A statute is clear and unambiguous if its wording is such that

reasonable persons are able to agree on its meaning with consistency and predictability.”

Id.

Wyoming Statute § 6-2-602(f) provides

[a] person who uses reasonable defensive force as defined by subsection (a)
of this section shall not be criminally prosecuted for that use of reasonable
defensive force.

Wyo. Stat. Ann. § 6-2-602(f). Because the statute deals with the exclusive power of the

Executive to carry out the criminal laws by making charging decisions, the impetus is on

the Executive to carry it out. The district court’s reliance on this provision to create a

pretrial hearing procedure violated the separation of powers doctrine and impermissibly

19
extended the plain language of the statute. (See Mot. to Dismiss Hr’g Tr. at 15–17).

Because the order extends beyond the plain language of the statute, as interpreted in light

of the separation of powers, it is void. JHK v. BMG (In re TRG), 665 P.2d 491, 498 (Wyo.

1983).

The plain meaning of § 6-2-602(f) has two critical aspects. First, the Legislature

defined a course of conduct and included a directive to the Executive to not prosecute

individuals who commit the defined conduct. Second, the timing inherent in the plain

meaning of the phrase “shall not be criminally prosecuted” requires that the directive be

carried out in the initiation stage of a criminal proceeding. The only permissible

involvement of the Judiciary in the initiation stage of criminal proceedings is the

preliminary hearing.

1. The district court’s interpretation of Wyoming Statute § 6-2-

602(f) infringed the Executive’s exclusive authority to charge an
individual with a crime as defined by the Legislature.

The district court ruled the language of § 6-2-602(f) authorized it to act as a

gatekeeper and entertain John’s motion to dismiss based on his assertion he acted in self-

defense. (Mot. to Dismiss Hr’g Tr. at 16–17). It reasoned that for the substantive guarantee

of immunity in the statute to have any meaning, the court must create additional procedural

requirements allowing John to raise the issue in a motion at the district court level. (Id. at

15–17). The district court erred by creating a pretrial procedure that impermissibly inserted

the Judiciary into the role of the Executive, violating the separation of powers doctrine,

and impermissibly extended the plain language of § 6-2-602(f). Cf. MF, ¶ 8, 308 P.3d at

857; Billis, 800 P.2d at 417. The court should have interpreted § 6-2-602(f) in light of the

20
separation of powers doctrine and avoided creating a procedure explicitly excluded by the

Legislature.

The Wyoming Constitution explicitly divides the powers held by the legislative,

executive, and judicial branches of government:

The powers of the government of this state are divided into three distinct
departments: The legislative, executive and judicial, and no person or
collection of persons charged with the exercise of powers properly
belonging to one of these departments shall exercise any powers
properly belonging to either of the others, except as in this constitution
expressly directed or permitted.

Wyo. Const. art. 2, § 1 (emphasis added). Each branch of government has distinct

responsibilities and powers in a criminal case. Billis v. State, 800 P.2d 401, 413–27 (Wyo.

1990). The Legislature is exclusively empowered “to determine and declare what acts shall

constitute crimes and to prescribe punishments for those crimes.” Id. at 415.

The Executive is charged with the faithful execution of the laws passed by the

Legislature. Id. at 415–17. To fulfill its duty to faithfully execute the law in the criminal

context, the Executive “has the exclusive power to make the charging decision and

prosecute the person who has allegedly committed the act determined by the legislative

department to be a crime.” Id. at 417 (emphasis added). Generally, “[a] prosecutor’s

discretion in charging, deferring or requesting dismissal is limited by pragmatic factors,

but not by judicial intervention.” Id. at 423 (citation omitted).

The Judiciary has the exclusive authority “to adjudicate, to pronounce a judgment

and carry it into effect.” Id. at 415. Its power does not include any authority to initiate a

criminal prosecution and it “has no inherent power to refuse to try a criminal charge upon

21
considerations extraneous to the legality of the charge, such as a belief that the particular

act made criminal by law ought not to be treated as criminal.” Id. at 415–16.

The outer limit of a prosecutor’s discretion is the requirement that the State provide

probable cause that the defendant committed the crime charged. See id. at 418. However,

“so long as the prosecutor has probable cause to believe that the accused committed an

offense defined by statute, ‘the decision whether or not to prosecute, and what charge to

file or bring * * * generally rests entirely in his discretion.’” Id. at 417–18 (quoting

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).

This Court presumes the Legislature enacts all statutes “with full knowledge of the

existing state of law with reference thereto and statutes are therefore to be construed in

harmony with the existing law[.]” Rock v. Lankford, 2013 WY 61, ¶ 35, 301 P.3d 1075,

1084-85 (Wyo. 2013) (citation omitted).

The district court’s interpretation of § 6-2-602(f) is not consistent with the

separation of powers principles discussed above. In particular, § 6-2-602(f) defines a scope

of conduct by making it apply to all people who use “reasonable defensive force as defined

by subsection (a) of this section[.]” Wyo. Stat. Ann. § 6-2-602(f). Reasonable defensive

force is defined in the referenced subsection as actual or threatened force “when it is the

defensive force that a reasonable person in like circumstances would judge necessary to

prevent an injury or loss, and no more, including deadly force if necessary to prevent

imminent death or serious bodily injury to the person employing the deadly force or to

another person.” Wyo. Stat. Ann. § 6-2-602(a). When read in the context of the rest of the

22
subsection, § 6-2-602(f) expresses the Legislature’s constitutional authority to “declare

what acts shall constitute crimes[.]” Billis, 800 P.2d at 415.

The remainder of the subsection is a directive that individuals who use reasonable

defensive force “shall not be criminally prosecuted.” Wyo. Stat. Ann § 6-2-602(f). Reading

the subsection as a whole, it limits the Executive’s exclusive ability to charge an individual

by excluding reasonable force from chargeable conduct. Id. at 417. The subsection does

not contain any explicit procedure for the Judiciary to overcome the Executive’s exclusive

authority to initiate a prosecution based on its discretion. See id. at 415–17. Accordingly,

the district court’s creation of a procedure violated the separation of powers. Its

interpretation also impermissibly extended the language of the statute. Id.; see also MF,

¶ 8, 308 P.3d at 857 (citation omitted).

The Legislature expressed its exclusive power to define criminal conduct in § 6-2-

602, but it did not provide a specific procedure that allows courts to insert themselves into

the Executive’s decision to initiate a prosecution. Billis, 800 P.2d at 415; see Wyo. Stat.

Ann. § 6-2-602(a), (f). When interpreting statutes, this Court will “not enlarge, stretch,

expand, or extend a statute to matters that do not fall within its express provisions.” MF v.

State, 2013 WY 104, ¶ 8, 308 P.3d 854, 857 (Wyo. 2013) (citation omitted). Had the

Legislature imposed a new procedure that allowed for a challenge of the Executive’s

exclusive power to initiate a prosecution after the charge had been found to be supported

by probable cause, the statute would have violated article 2, section 1 of the Wyoming

Constitution. Wyo. Const. art 2, § 1 (“[N]o person or collection of persons charged with

the exercise of powers properly belonging to one of these departments shall exercise any

23
powers properly belonging to either of the others[.]”); see also Billis, 800 P.2d at 417–18

(“[S]o long as the prosecutor has probable cause to believe that the accused committed an

offense defined by statute, the decision whether or not to prosecute, and what charge to file

or bring * * * generally rests entirely in his discretion[.]”). The district court’s

interpretation of the statute as implicitly requiring additional procedural requirements

impermissibly extended the plain language of the statute in a way that infringed the

separation of powers doctrine. If “a court’s authority depends upon and is limited by

statute, a judgment that, by the face of the record proper, is shown not to be in substantial

compliance with mandatory provisions of the statute, or contrary to the limitations or

conditions precedent therein expressed, is void.” In re TRG, 665 P.2d at 498.

The Legislature intentionally avoided creating an impermissible procedure such as

the one the district court created. In early drafts of the amendments to § 6-2-602(f), the

Legislature considered adding a pretrial procedure. H.B. 168, 64th Leg., Budget Sess.

(Wyo. 2018). 3 However, the Legislature jettisoned the proposed procedure from the final

bill. 2018 Wyo. Sess. Laws 393, 394–95. By contrast, during the same session, the

Legislature created an explicit pretrial procedure for courts to consider claims of immunity

based on the use of reasonable force in civil cases. Id. at 393–94; Wyo. Stat. Ann. § 6-1-

204. The rejection of the procedure for criminal cases and the contemporaneous addition

of the civil procedure shows the Legislature knew how to create such procedures, but

3
Available at https://www.wyoleg.gov/2018/Introduced/HB0168.PDF (last visited June

23, 2019).

24
deliberately chose not to for criminal cases. 2018 Wyo. Sess. Laws 393–95; cf. Bowlsby v.

State, 2013 WY 72, ¶ 23, 302 P.3d 913, 924 (Wyo. 2013) (noting that when the Legislature

clearly has knowledge of how to include a provision, its decision to not include a provision

can be interpreted as a deliberate act). The difference between the Legislature’s treatment

of civil and criminal cases reflects a recognition that criminal cases involve the expression

of the parallel powers of each branch of government and require less restrictions to ensure

none of the powers are infringed.

The district court’s creation a procedure where the Legislature expressly declined

to do so ignored the plain language of the statute and violated separation of powers.

Therefore, its order dismissing the case was void. In re TRG, 665 P.2d at 498.

2. Wyoming Statute § 6-2-602(f) requires it to be applied at the

initiation phase of a proceeding and the Judiciary is empowered
to intervene, if at all, through the preliminary hearing
requirements.

The second critical aspect of § 6-2-602(f) is the Legislature’s command that an

individual who uses reasonable defensive force “shall not be criminally prosecuted[.]”

Wyo. Stat. Ann. § 6-2-602(f). This language is unambiguous. The language imposes a

prohibition on prosecution using the passive participle, without an identified actor. The

plain meaning of the adverbial phrase “criminally prosecuted” is “[t]o institute and pursue

a criminal action (against a person)[.]” Prosecute, Black’s Law Dictionary (10th ed. 2014).

When read in the context of the Executive’s exclusive constitutional power, the statute is a

directive that must be carried out by the prosecutors when they consider initiating a

prosecution. Billis, 800 P.2d at 417

25
 As discussed above, the Executive is exclusively empowered to initiate criminal

proceedings by making a charging decision. See id. at 418. It carries out the directive and

expresses its discretion on a daily basis in cases that do not ever become a part of the public

record or reach a circuit court, let alone this Court. See Wayne R. LaFave et al., Criminal

Procedure 136–44 (4th ed. 2015) (discussing how and when prosecutors express their

discretion). The first, and only, involvement of the Judiciary in the Executive’s decision to

initiate a prosecution is the preliminary hearing. See Billis, 800 P.2d at 418. The district

court should have adhered to the temporal limit of the plain language of the statute and

interpreted the statute in light of the separation of powers doctrine and Wyoming’s

preliminary hearing law.

A prosecutor’s constitutional charging discretion is limited by the countervailing

interest of the defendant to have the charge be supported by probable cause. Billis, 800

P.2d at 417–18. Wyoming law accomplishes this check through grand jury proceedings or,

in a majority of cases, preliminary hearings. W.R.Cr.P. 6; Wyo. Stat. Ann. § 7-5-209;

W.R.Cr.P. 5.1; Wyo. Stat. Ann. § 7-8-105.

Preliminary hearings in Wyoming are adversarial proceedings in which the State is

required to present evidence establishing probable cause the defendant committed the

crime charged. See W.R.Cr.P. 5.1(b). Although the defendant does not have a constitutional

right to turn the hearing into a full trial by presenting all available defenses, he has the

ability to present a defense through “cross-examin[ation of] adverse witnesses and [ ]

introduc[tion of] evidence.” Id.; Wilson v. State, 655 P.2d 1246, 1253 (Wyo. 1982).

26
 The constitutional purpose of a preliminary hearing “is to obtain a determination by

a neutral, detached fact finder that there is probable cause to believe a crime has been

committed and that the defendant committed it.” Madrid v. State, 910 P.2d 1340, 1343

(Wyo. 1996) (citing Garcia v. State, 667 P.2d 1148, 1154 (Wyo. 1983)). The constitutional

features of the preliminary hearing are an offshoot of the defendant’s due process liberty

interest in remaining free absent probable cause he has committed a crime. Wilson, 655

P.2d at 1250; see also Garcia, 667 P.2d at 1154; Thomas v. Justice Ct. of Washakie Cty.,

538 P.2d 42, 46 (Wyo. 1975).

However, “[a] preliminary hearing is not designed to be a dress rehearsal for trial.

Its only purpose is to determine whether there is a sound basis for continuing to hold the

accused in custody, to make sure that he is not being held on some capricious or nebulous

charge.” Garcia, 667 P.2d at 1154 (quoting Wilson, 655 P.2d at 1251). If the State does not

present probable cause the defendant committed an offense the case is dismissed.

W.R.Cr.P. 5.1(c). However, “[t]he discharge of the defendant shall not preclude the state

from instituting a subsequent prosecution for the same offense.” Id. Thus, preliminary

hearings serve the purpose of screening cases filed by prosecutors to ensure the

countervailing interests of the accused are protected by determining whether an offense, as

defined by the Legislature, has been committed. See id.; see also LaFave et al., Criminal

Procedure at 307–09.

Once probable cause has been found, the role of the Judiciary to determine questions

of contested facts falls exclusively to the jury. Cf. Creecy v. State, 2009 WY 89, ¶ 28, 210

27
P.3d 1089, 1096 (Wyo. 2009). As recently reiterated by this Court in the context of jury

instructions:

The aim of the guarantee of the right to trial by jury is to preserve the
substance of the right of trial by jury as distinguished from mere matters of
form or procedure, particularly to retain the concept that issues of law are to
be resolved by the court and issues of fact are to be determined by the
jury under appropriate instructions by the court.

Widdison v. State, 2018 WY 18, ¶ 21, 410 P.3d 1205, 1213 (Wyo. 2018) (quoting Snow v.

State, 2009 WY 117, ¶ 29–30, 216 P.3d 505, 514 (Wyo. 2009)) (emphasis added). In the

context of § 6-2-602(f), the probable cause determination at the preliminary hearing that

the defendant committed conduct the Legislature defined as criminal converts a claim of

self-defense into an affirmative defense, which is firmly established as an ultimate question

of fact for the jury. State v. Helton, 73 Wyo. 92, 113, 276 P.2d 434, 441 (Wyo. 1954); cf.

also Snow, ¶ 32, 216 P.3d at 516 (“Because [this Court] so revere[s] the fact-finding role

of the jury in America’s and Wyoming’s legal system, [it is] anxious to defend and protect

that right with utmost care and attention.”).

The right to a preliminary hearing and its features in Wyoming were firmly

established law when the Legislature passed the amendment to § 6-2-602 in 2018. See

Wyo. Stat. Ann. § 7-8-105; Order Adopting the Revised Wyoming Rules of Criminal

Procedure (12/23/1991). 4 Again, this Court presumes the Legislature enacts all statutes

with full knowledge of the existing law and this Court should construe § 6-2-602(f) in

4
Available at https://www.courts.state.wy.us/wp-content/uploads/2017/05/crimpro_

1991122300.pdf (last visited June 17, 2019)

28
harmony with existing law. Rock, ¶ 35, 301 P.3d at 1084-85 (citation omitted). This

presumption also includes viewing statutes passed by the Legislature “as a part of an

overall and uniform system of jurisprudence, and their meaning and effect is to be

determined in connection, not only with the common law and the constitution, but also

with reference to the decisions of the courts.” Id. ¶ 35, 301 P.3d at 1085 (citation omitted).

When a statute intermingles with the common law, “[a]bsent a manifestation of legislative

intent to repeal a common-law rule, statutes should be construed as consistent with the

common law.” Merrill v. Jansma, 2004 WY 26, ¶ 34, 86 P.3d 270, 285-86 (Wyo. 2004).

Further, “[s]tatutes are not to be understood as effecting any change in the common law

beyond that which is clearly indicated either by express terms or by necessary implication

from the language used.” Id. ¶ 34, 86 P.3d at 286. The Legislature’s deliberate choice not

to include a procedural mechanism and its imposition of a temporal requirement in § 6-2-

602(f) evinces the Legislature’s recognition of the constitutional prohibition against

encroaching on the Executive’s exclusive discretion to prosecute and the pre-existing check

on that discretion in the preliminary hearing. See Billis, 800 P.2d at 415, 417–18.

The preliminary hearing procedure ensures an individual whose conduct does not

rise to criminal conduct avoids prosecution at the initial stages of a criminal proceeding, as

required by § 6-2-602(f). It also allows the Executive to express its discretion to initiate a

prosecution, with the outer limit of that discretion being the countervailing due process

interests of the defendant. Id.; Wilson, 655 P.2d at 1250. However, once probable cause is

found, the case should proceed to trial, unless the prosecutor dismisses it, and the issue of

29
self-defense should become a question of fact for the jury, as it has been traditionally

considered. Helton, 73 Wyo. at 113, 276 P.2d at 441.

Limiting judicial intervention to a court’s adjudication of a countervailing interest

of a defendant is consistent with the other traditionally recognized challenges to a

prosecutor’s charging decision. The traditional challenges that have resulted in

successfully overturning a prosecutor’s decision to prosecute an individual fall into four

categories: 1) discriminatory charging selection, 2) vindictive charging selection, 3)

violating a transactional immunity agreement, and 4) failing to present probable cause in a

preliminary hearing or grand jury proceeding. LaFave et al., Criminal Procedure 291–305,

307–14. All of the checks on a prosecutor’s discretion to prosecute a defendant listed above

implicate a countervailing interests of the defendant ranging from constitutional interests

in equal protect and due process to contractual rights based on an agreement offered by the

Executive. Id. at 291; see also United States v. Batchelder, 442 U.S. 114, 125 n.9 (1979);

Crozier v. State, 882 P.2d 1230, 1233 (Wyo. 1994) (quoting Blackledge v. Perry, 417 U.S.

21, 25 (1974)); Kerns v. State, 920 P.2d 632, 636 (Wyo. 1996).

The pre-existing preliminary hearing procedure accomplishes the temporal

requirements of § 6-2-602(f) and adheres to the separation of powers doctrine. The district

court’s act of holding a hearing after probable cause had been found and John had been

arraigned in the district court was error, and the result should be considered void as an

impermissible expansion of the plain language of § 6-2-602(f). See In re TRG, 665 P.2d at

498.

30
 3. This Court’s other rules do not supply authority to the district
court to reassess the sufficiency of the State’s evidence to proceed
with a prosecution.

This Court’s existing rules do not provide a procedure to hear a motion to dismiss

under § 6-2-602(f). Admittedly, this Court’s rules allow the parties to file certain motions

to dismiss in a criminal case. See W.R.Cr.P. 12. This Court’s authority to adopt such a rule

and others to control the course of litigation is derived from the Wyoming Constitution.

See Reynolds, ¶ 13, 313 P.3d at 504. However, this Court’s authority to prescribe rules is

limited “by their reasonableness and conformity to constitutional and legislative

enactments.” Wilson, 655 P.2d at 1252. Regardless of this Court’s constitutional authority,

the motions allowed under Rule 12 do not encompass a motion to dismiss based on § 6-2-

602(f).

Rule 12 specifically states: “Any defense, objection, or request which is capable of

determination without the trial of the general issue may be raised before trial by

motion.” W.R.Cr.P. 12(b) (emphasis added). Because the plain language of § 6-2-602(f)

requires it to be applied at the initiation phase of a criminal case, courts must apply its

terms, if at all, in the preliminary hearing phase of a criminal case. During the adversarial

preliminary hearing, the State must present probable cause that the defendant committed

chargeable conduct. See W.R.Cr.P. 5.1. If the State meets its burden, the question of self-

defense becomes a question of fact traditionally reserved for the jury. Helton, 73 Wyo. at

113, 276 P.2d at 441; see also Creecy, ¶ 28, 210 P.3d at 1096. A motion to dismiss under

Rule 12 based on statutory immunity after probable cause had been found implies either

the initial finding was invalid or the district court is looking into factual questions beyond

31
probable cause, which would amount to a determination of the general issue of whether a

defendant acted in self-defense. These types of questions are not appropriate for a Rule 12

motion. See Matthews v. State, 2014 WY 54, ¶ 16, 322 P.3d 1279, 1281 (Wyo. 2014).

Likewise, the specific motions required under the rule do not provide an avenue for

considering a motion to dismiss under § 6-2-602(f) after the circuit court binds it over. The

only expressly required motions relevant here are those that raise “Defenses and

objections based on defects in the institution of the prosecution[.]” W.R.Cr.P. 12(b)(1)

(emphasis added). This Court has not clarified what constitutes a defect in the institution

of the prosecution. But see Fuller v. State, 568 P.2d 900, 902 (Wyo. 1977) (discussing

alleged defect in amended information filed without leave of trial court). However, Rule

12 also states “[i]f the court grants the motion based on a defect in the institution of the

prosecution or in the indictment or information, it may also order that the defendant be

continued in custody or that bail be continued for a specified time not to exceed 48 hours

pending the filing of a new indictment or information.” W.R.Cr.P. 12(i) (emphasis

added). The rule’s allowance for a new, compliant indictment or information show that the

defects in the initiation of a prosecution that may be raised as an objection or defense are

limited to matters of procedure and form, not the ultimate issue of total immunity. The

analogous federal rule supports this conclusion.

Rule 12 of the Federal Rules of Criminal Procedure includes a list of defects in

instituting prosecutions, “including: (i) improper venue; (ii) preindictment delay; (iii) a

violation of the constitutional right to a speedy trial; (iv) selective or vindictive prosecution;

and (v) an error in the grand-jury proceeding or preliminary hearing[.]” Fed. R. Cr. P.

32
12(b)(3)(A)(i–v). With the exception of vindictive or selective prosecution, all of the

defects listed in the federal rule are procedural defects. See id. However, all of the defects

implicate independent due process or equal protections afforded to defendants. None of the

defects allow a direct challenge to the prosecutor’s discretion to initiate a prosecution

absent misconduct by the prosecutor that infringes a countervailing constitutional right of

the defendant.

Admittedly, this Court has held Rule 12 is an appropriate procedure for determining

questions regarding transactional immunity. Hall v. State, 851 P.2d 1262, 1268-69 (Wyo.

1993). However, the transactional immunity for witnesses at issue in Hall and Wyoming’s

other immunity statutes are distinguishable from the determination that must be made

under § 6-2-602(f). Other forms of statutory immunity in Wyoming are generally either

immunity granted to public officials acting in their official capacity or to witnesses who

face self-incrimination if they testify. Wyo. Stat. Ann. § 35-7-1043; Wyo. Stat. Ann. § 14-

3-209; Wyo. Stat. Ann. § 26-2-124; Wyo. Stat. Ann. § 7-11-401; Wyo. Stat. Ann. § 6-3-

109. A determination of whether an individual is entitled to immunity under these statutes

does not require courts to find the individual did or did not engage in chargeable conduct.

Rather, the questions posed are whether the individual acted in his official capacity, acted

in good faith, the person’s status fits the statutory requirements, or the attorney general

offered immunity. Wyo. Stat. Ann. § 35-7-1043; Wyo. Stat. Ann. § 14-3-209; Wyo. Stat.

Ann. § 26-2-124; Wyo. Stat. Ann. § 7-11-401; Wyo. Stat. Ann. § 6-3-109. Hall involved

the only other form of immunity determination courts in Wyoming have considered.

33
 In Hall, the prosecutor offered Hall transactional immunity related to a charge of

conspiracy to commit first degree murder. Hall, 851 P.2d at 1265. Although the prosecutor

did not have inherent or statutory authority to offer immunity, this Court determined Hall

could nonetheless assert his immunity under the agreement on due process grounds. Id. at

1266–67. Therefore, the question before the trial court and, ultimately, this Court was the

scope of the immunity grant. See id. at 1267–68. This Court held that a motion to dismiss

under the former Rule 12 of the Wyoming Rules of Criminal Procedure was the appropriate

avenue to determine the existence and scope of an immunity agreement. Id. at 1268–69.

The specific question that had to be determined was whether “immunity actually was

granted or the effective limitation upon the immunity granted.” Id. This Court prescribed a

standard requiring Hall to make a prima facie case demonstrating the existence of the grant

and, if he did so, the burden shifted to the State to prove by a preponderance of evidence

that no grant existed or it had been limited to exclude Hall’s prosecution. Id. at 1268–69.

The question appropriate for review by the court in Hall under the former Rule 12

was whether an immunity agreement existed. To determine whether transactional

immunity applies, the court need not consider the ultimate question of whether the

defendant committed the crime charged. The existence of an immunity agreement is

fundamentally different from what must be determined under § 6-2-602(f). One must

consider the facts and circumstances surrounding the criminal transaction to determine

whether the use of force amounted to self-defense under the statute. This type of

determination extends beyond a defense, objection, or request “which is capable of

determination without the trial of the general issue.” W.R.Cr.P. 12(b).

34
 Such fundamental questions of ultimate fact should generally be left to the jury and

the Judiciary’s extension of itself into the role of the jury should be limited to the

preliminary hearing process, where the Judiciary’s authority over such issues has

traditionally been vested. See Wilson, 655 P.2d at 1250; Garcia, 667 P.2d at 1154; Thomas,

538 P.2d at 46; cf. also Snow, ¶ 32, 216 P.3d at 516. To hold that a motion such as John’s

is allowed under Rule 12 would significantly expand the role of the court in a criminal case

and infringe the province of the jury. See Helton, 73 Wyo. at 113, 276 P.2d at 441; see also

Creecy, ¶ 28, 210 P.3d at 1096.

II. The district court’s only authority to consider immunity under Wyoming
Statute § 6-2-602(f) arose from its appellate jurisdiction over the circuit court,
so the court should have applied appellate procedures and standards.

The plain language of § 6-2-602(f) did not give the district court authority to

consider a motion to dismiss after the case was bound over and its order dismissing the

case was void. However, regardless of the procedure employed in this case, a district court

has appellate jurisdiction over a circuit court’s bind-over decision. Thus, if the district court

here had authority to revisit the issue of the State’s probable cause, it should have exercised

its appellate jurisdiction to examine the preliminary hearing proceedings under an

appropriate appellate standard of review.

A. Standard of Review

Issues of jurisdiction are questions of law this Court reviews de novo. Sanchez v.

State, 2017 WY 70, ¶ 8, 397 P.3d 180, 182 (Wyo. 2017).

35
 B. The district court did not have original jurisdiction to reassess the
State’s probable cause in a new proceeding.

The district court failed to examine the type of jurisdiction it should have reviewed

John’s assertion of immunity under § 6-2-602(f). The district court conducted the

evidentiary hearing in a manner similar to a preliminary hearing. (See Mot. to Dismiss Hr’g

Tr. at 24–32) (allowing extensive hearsay); See also Wilson, 655 P.2d at 1252–53

(discussing the features of a preliminary hearing, including the use of hearsay). It also ruled

the State had the burden to present probable cause of the crime charged. (Mot. to Dismiss

Hr’g Tr. at 20). However, the court did not addressed the effect of the circuit court’s

probable cause finding at the preliminary hearing. (See generally Mot. to Dismiss Tr. at 1–

119). Under the Wyoming Constitution, the district court only had appellate jurisdiction to

assess whether probable cause existed in this case and its reassessment of probable cause

after an evidentiary hearing improperly extended its original jurisdiction.

The Wyoming Constitution explicitly establishes the State’s district courts. Wyo.

Const. art. 5, § 1. The Constitution also defines the courts’ jurisdiction:

The district court shall have original jurisdiction of all causes both at law and
in equity and in all criminal cases … and of such special cases and
proceedings as are not otherwise provided for. The district court shall also
have original jurisdiction in all cases and of all proceedings in which
jurisdiction shall not have been by law vested exclusively in some other court
… They shall have such appellate jurisdiction in cases arising in justices’ and
other inferior courts in their respective counties as may be prescribed by law.
Said courts and their judges shall have power to issue writs of mandamus,
quo warranto, review, certiorari, prohibition, injunction and writs of habeas
corpus, on petition by or on behalf of any person in actual custody in their
respective districts.

36
Wyo. Const. art. 5, § 10. Circuit courts are “subordinate courts” which the Legislature is

empowered to create by statute. Wyo. Const. art. 5, § 1. The statutes creating the circuit

courts require that “[p]reliminary examinations for persons charged with a felony shall be

conducted by the circuit court judge or magistrate.” Wyo. Stat. Ann. § 5-9-132(b)

(emphasis added). This Court has interpreted this subsection to create subject matter

jurisdiction in the circuit court to decide whether probable cause exists and bind over or

dismiss cases. Cir.Ct. of the Eighth Jud. Dist. v. Lee Newspapers, 2014 WY 101, ¶ 35, 332

P.3d 523, 533 (Wyo. 2014).

As discussed above, § 6-2-602(f) must be applied during the initiation phase of a

criminal proceeding. The first instance that implicates judicial application of the statute is

the circuit court’s probable cause finding at the preliminary hearing. Because the

jurisdiction to hold the hearing and make the probable determination is vested in the circuit

court, the district court did not have original jurisdiction over such a proceeding. See Cir.

Ct. of the Eighth Jud. Dist., ¶ 35, 332 P.3d at 533; Wyo. Const. art. 5, § 10 (“The district

court shall also have original jurisdiction in all cases and of all proceedings in which

jurisdiction shall not have been by law vested exclusively in some other court[.]”)

(emphasis added); see also Davila v. State, 831 P.2d 204, 222, 226–27, 230 (Wyo. 1992)

(Urbigkit, C.J., dissenting) (discussing the district court’s jurisdiction to review a circuit

court’s defective bind-over order).

Because § 6-2-602(f) must be applied in the preliminary hearing phase the district

court did not have original jurisdiction to conduct a preliminary hearing. It erred by acting

outside its original jurisdiction when it created a proceeding that essentially acted as a

37
second preliminary hearing. Consequently, the order dismissing the case is void and the

case must be remanded for further proceedings within the appellate jurisdiction of the

district court. See Shue v. State, 2016 WY 15, ¶ 6, 367 P.3d 645, 647 (Wyo. 2016) (citation

omitted).

C. Challenges to the Executive’s decision to charge a defendant under

Wyoming Statute § 6-2-602(f) should be considered using appellate
procedures and standards.

As a matter of first impression, this Court should decide what appellate authority

and standard should be applied. District courts have appellate jurisdiction to hear direct

appeals and to issue writs of review. Wyo. Const. art. 5, § 10. Under the circumstances, the

district court only had jurisdiction to consider a challenge to the circuit court’s probable

cause determination through its power to issue a writ of review, which was never invoked

here.

John was not entitled to a direct appeal in the district court because he had not

received a final appealable order. W.R.A.P. 1.04(b). An appealable order is defined, in part,

as “[a]n order affecting a substantial right in an action, when such order, in effect,

determines the action and prevents a judgment[.]” W.R.A.P. 1.05(a). As explained by this

Court, “[g]enerally a judgment or order which determines the merits of the controversy and

leaves nothing for future consideration is final and appealable, and it is not appealable

unless it does those things.” Pub. Serv. Comm’n v. Lower Valley Power & Light, 608 P.2d

660, 661 (Wyo. 1980). Orders such as denials of motions to dismiss are not final appealable

orders. Stamper v. State, 672 P.2d 106, 106–07 (Wyo. 1983). The circuit court’s bind over

decision was not a decision on the merits of the case and the hearing was “in no sense a

38
trial.” Wilson, 655 P.2d at 1253. Had the circuit court dismissed the case for lack of

probable cause, the prosecutor would not have been restricted from refiling. Rathbun v.

State, 2011 WY 116, ¶ 22, 257 P.3d 29, 37 (Wyo. 2011). Due to the nature of preliminary

hearings, the order binding the case over to the district court is not an order on “the merits

of the controversy [that left] nothing for future consideration.” Lower Valley Power &

Light, 608 P.2d at 661; cf. State v. Rude, No. 91-228, (Wyo. Nov. 13, 1991) (ordering

dismissal of case because district court correctly determined circuit court’s bind-over order

was not an appealable order). Accordingly, an order binding a case over is not an

appealable order. Instead, appellate review should be sought through the discretionary writ

of review process. See W.R.A.P. 13.02.

The disposition allowed under any appellate review is limited to affirming,

reversing, vacating, remanding, or modifying the order “for errors appearing on the

record.” W.R.A.P. 1.04(b); W.R.A.P. 13.08. On remand, the district court should consider

the propriety of a writ of review given the stage of the proceedings. If review is appropriate,

it should be bound to apply the appellate standards of review to the circuit court record.

This Court has not established a standard of review for reviewing the sufficiency of

the evidence to support a probable cause determination. It should adopt a standard of

review for appeals of a circuit court’s bind over decisions based on the nature of

preliminary hearings in Wyoming. The sole purpose of a preliminary hearing is to establish

whether probable cause exists showing the defendant committed the charged criminal

conduct. Wilson, 655 P.2d at 1253. “Probable cause exists if the proof is sufficient to cause

a person of ordinary caution or prudence to conscientiously entertain a reasonable belief

39
that a public offense has been committed in which the accused participated.” Id. at 1251.

This determination requires the court to both weigh the evidence and apply the law to

determine if probable cause exists that the defendant committed a crime as defined by the

Legislature. The standard applied to other circumstances where courts are called on to

weigh evidence and apply it to the law readily fit the goals of reviewing a circuit court’s

probable cause determination.

The two established procedures where courts will weigh evidence and apply it to

the law are hearings on motions to suppress and Wyoming Rule of Appellate Procedure 21

motions for new trials based on ineffective assistance of counsel. Lindsay v. State, 2005

WY 34, ¶ 12, 108 P.3d 852, 855 (Wyo. 2005); Robinson v. State, 2003 WY 32, ¶ 14, 64

P.3d 743, 747 (Wyo. 2003). In these cases, the reviewing court will “not disturb evidentiary

rulings made by a [lower] court unless the [lower] court abused its discretion.” Lindsay,

¶ 12, 108 P.3d at 855 (citation omitted). It will “not interfere with the trial court’s findings

of fact unless the findings are clearly erroneous.” Id. It reviews “the evidence in the light

most favorable to the [lower] court’s determination because the [lower] court has an

opportunity at the evidentiary hearing to assess the credibility of the witnesses, weigh the

evidence, and make the necessary inferences, deductions, and conclusions.” Id. However,

the reviewing court reviews the lower court’s application of the law de novo. Id.

This abuse of discretion standard should be applied to appellate review of a circuit

court’s finding of probable cause when the defendant asserts immunity under § 6-2-602(f).

As in hearings on motions to suppress and Rule 21 proceedings, the circuit court is in the

best position to “assess the credibility of the witnesses, weigh the evidence, and make the

40
necessary inferences, deductions, and conclusions.” Id. Therefore, on review, its findings

should be given deference. To the extent that the circuit court applies the law to the facts

to determine whether they amount to criminally culpable conduct at the preliminary

hearing, the reviewing court is in an appropriate position to review that determination de

novo. This standard ensures the directive in § 6-2-602(f) is faithfully executed and

recognizes the proper role of an appellate court when reviewing factual issues on a cold

record.

III. If this Court holds that the district court properly interpreted Wyoming
Statute § 6-2-602(f) as creating a right to a pretrial procedure and it had
jurisdiction to consider the motion, the court erred by dismissing the case in
light of Wyoming’s self-defense law.

If this Court holds that the plain language of § 6-2-602(f) creates original

jurisdiction and that the district court can consider a motion to dismiss, the district court

erred in its application of Wyoming’s self-defense law. Under both the facts presented at

the preliminary hearing and the additional facts presented at the district court’s motion to

dismiss hearing, the State established probable cause John was a mutual aggressor, which

negated his claim to self-defense. Further, John did not pursue reasonable alternatives and

had a duty to retreat because he was engaged in illegal activity.

A. Standard of Review

This issue requires an interpretation of § 6-2-602(f), which is a question of law this

Court reviews de novo. Yager, ¶ 7, 362 P.3d at 779.

Similar to the standard of review argued for review of the circuit court’s bind-over

order above, if this Court holds the district court properly held an evidentiary hearing, it

41
should defer to its findings of fact and only reverse if those findings are clearly erroneous.

Cf. Lindsay, ¶ 12, 108 P.3d at 855. It should review the district court’s application of the

law of self-defense de novo. Id.

B. The State presented probable cause John did not act in self-defense and,
instead, committed first degree murder.

Under Wyoming’s self-defense law, the district court erred when it ruled that the

State failed to meet its burden John did not act in self-defense. The court’s ruling relied

extensively on the presumptions in § 6-2-602. (See Mot. to Dismiss Hr’g Tr. at 111–20). It

ruled John was lawfully present in his home, was not the initial aggressor, or engaged in

illegal activity. (Id.at 118). It also ruled Willow’s actions showed an intent to commit an

unlawful and forceful entry into John’s home and created a risk of serious bodily injury or

death. (Id. 118–19). Based on these conclusions, the court ruled the statutory presumption

dictated John did not have not have a duty to retreat and his use of deadly force was

presumptively reasonable and necessary. (Id. at 119). In light of the presumptions, the court

ruled the State had failed to meet its burden. (Id. at 119–20).

The court erred in failing to apply the whole of Wyoming law on murder and self-

defense. Specifically, it failed to account for John’s status as a mutual aggressor. It also

improperly concluded John’s use of deadly force, without considering reasonable

alternatives, was reasonable. Finally, it erred when it found John was not engaged in illegal

activity and ruled he did not have a duty to retreat.

In Wyoming, common law crimes are abolished and conduct does not constitute a

crime unless it is described in statute as such. Wyo. Stat. Ann. § 6-1-102(a). The State

42
charged John with first degree murder, which required it to present probable cause that

John “purposely and with premeditated malice … kill[ed Willow.]” Wyo. Stat. Ann.

§ 6-2-101(a). On the other hand, common law defenses, including self-defense, are retained

unless otherwise provided by statute. Wyo. Stat. Ann. § 6-1-102(b).

Self-defense in Wyoming is derived from the common law concept of necessity.

Drennen v. State, 2013 WY 118, ¶ 22, 311 P.3d 116, 124 (Wyo. 2013). When a defendant

asserts self-defense as an affirmative defense, his “right to defend [him]self and the amount

and type of force which may be used depend upon what is reasonably necessary under the

circumstances.” Id. Wyoming has codified some of the general principals of self-defense.

Wyo. Stat. Ann. § 6-2-602. As codified, the overriding principal is that

[t]he use of defensive force whether actual or threatened, is reasonable when

it is the defensive force that a reasonable person in like circumstances would
judge necessary to prevent an injury or loss, and no more, including deadly
force if necessary to prevent imminent death or serious bodily injury to the
person employing the deadly force or to another person.

Wyo. Stat. Ann. § 6-2-602(a). The Legislature further defined “necessary to prevent” as

including “a necessity that arises from an honest belief that the danger exists whether the

danger is real or apparent.” Id.

Wyoming’s codification of self-defense also contains two presumptions when force

is used in a person’s home. Per the statute, when a person uses force in defense of his home:

(b) A person is presumed to have held a reasonable fear of imminent peril

of death or serious bodily injury to himself or another when using
defensive force, including deadly force if:

(i) The intruder against whom the defensive force was used was
in the process of unlawfully and forcefully entering, or had
unlawfully and forcibly entered, another’s home or habitation

43
 or, if that intruder had removed or was attempting to remove
another against his will from his home or habitation; and

(ii) The person who uses defensive force knew or had reason to
believe that an unlawful and forcible entry or unlawful and
forcible act was occurring.

Wyo. Stat. Ann. § 6-2-602(b). The statute also lists certain circumstances where the

presumption does not apply. Wyo. Stat. Ann. § 6-2-602(c). The second presumption is that

“[a] person who unlawfully and by force enters or attempts to enter another’s home or

habitation is presumed to be doing so with the intent to commit an unlawful act involving

force or violence.” Wyo. Stat. Ann. § 6-2-602(d). In addition, a person who is attacked

when he is lawfully present in a place does “not have a duty to retreat before using

reasonable defensive force … provided that he is not the initial aggressor and is not

engaged in illegal activity.” Wyo. Stat. Ann. § 6-2-602(e).

This Court’s case law on self-defense also applies in circumstances not covered by

§ 6-2-602. Wyo. Stat. Ann. § 6-2-601. In Drennen v. State, this Court reaffirmed that “the

law [in Wyoming] has recognized that a person has a duty to pursue reasonable alternatives

prior to using deadly force.” Drennen, ¶ 36, 311 P.3d at 129; see also Haire v. State, 2017

WY 48, ¶¶ 36–37, 393 P.3d 1304, 1313–14 (Wyo. 2017); Widdison, ¶¶ 35–39, 410 P.3d at

1216–17. Although an individual may not have to consider retreat as a reasonable

alternative when an altercation happens in his home, he must still consider other reasonable

alternatives, if available, before using deadly force. Wyo. Stat. Ann. § 6-2-602(e); Palmer

v. State, 9 Wyo. 793, 45-47, 59 P. 793, 795 (Wyo. 1900).

44
 This Court’s precedent also limits the availability and scope of self-defense. First,

it exempts those who are engaged in mutual combat. Causey v. State, 2009 WY 111, ¶ 10,

215 P.3d 287, 291 (Wyo. 2009); Leeper v. State, 589 P.2d 379, 383 (Wyo. 1979); see also

Wyo. Stat. Ann. § 6-2-602(e) (excluding individuals engaged in illegal activity). As

explicitly described by this Court, “[w]here two individuals mutually agree to fight, both

are considered aggressors, making a self-defense theory unavailable to either of them.”

Causey, ¶ 10, 215 P.3d at 291. Second, this Court has held that the justification for the use

of deadly force ceases when the danger ceases. State v. Goettina, 158 P.2d 865, 879 (Wyo.

1945); see also Patterson v. State, 682 P.2d 1049, 1053 (Wyo. 1984) (citation omitted) (“A

slaying committed after the danger has ceased to exist cannot be excused on the ground of

self-defense. A person loses his right to shoot again in self-defense after firing a shot which

has so disabled his assailant that there is no longer any apparent danger.”). The limit on

reasonable force depending on the status of the threat is a consistent extension of the

statute’s definition of reasonable force as that which “a reasonable person in like

circumstances would judge necessary to prevent an injury or loss, and no more[.]” Wyo.

Stat. Ann. § 6-2-602(a).

This Court has not spoken directly on the application of the statutory presumptions

in circumstances of mutual combatants. But the precise strictures of the statutory

presumptions do not conflict with an application of the mutual aggressor rule and,

therefore, this Court’s case law would control. See Wyo. Stat. Ann. § 6-2-601. The

codification of Wyoming’s self-defense common law supplies a presumption of a

reasonable fear of imminent serious injury or death. Wyo. Stat. Ann. § 6-2-602(b). The

45
first element of the affirmative defense of self-defense is a determination of who is the

aggressor. See Farrow v. State, 2019 WY 30, ¶ 23, 437 P.3d 809, 818 (Wyo. 2019) (citing

Knospler v. State, 2016 WY 1, ¶ 25, 366 P.3d 479, 486 (Wyo. 2016)). An analysis of

reasonable fear is a secondary element of self-defense. See Knospler, ¶ 21, 366 at 485. If a

person is not entitled to self-defense due to his aggressor status, either initial or mutual, the

question of his reasonable fear of imminent serious bodily injury or death is irrelevant. See

Causey, ¶ 10, 215 P.3d at 291; Farrow, ¶ 23, 437 P.3d at 818.

This distinction has been recognized in situations where the defendant lays a trap

for would-be intruders. See, e.g., State v. Carosiello, No. 15 CO 0017, 2017 Ohio App.

LEXIS 4524, ¶¶ *39–40, (Ohio Ct. App. Oct. 5, 2017). In Carosiello, the defendant, a

known drug dealer who kept cash and marijuana in his residence, armed himself and made

his home appear unoccupied after the victim tried twice, unsuccessfully, to rob the

defendant’s home. Id. at ¶ *2–13. On the third attempt, the defendant sprung his trap and

killed the would-be thief. Id. at ¶¶ *8–13.

On appeal, the defendant argued the Ohio’s statutory presumptions, which were

substantially similar to Wyoming’s, covered his conduct and the only way to overcome his

assertion of self-defense was to prove the victim was legally present in the home. Id. at

¶ *16. The Ohio Court of Appeals noted Ohio’s self-defense statutes only created an

exception to the duty to retreat and imposed a presumption of reasonable fear. Id. at ¶¶ *18–

19. Similar to the analysis above, it rejected the defendant’s position that the statutory

presumptions negated the other elements required for self-defense. Id. at ¶¶ *20–22. It

concluded Ohio’s statutory presumptions “provide[] a defendant confronted with an

46
intruder into his or her residence with somewhat greater protections under the law, [but it]

does not serve as a stand alone right to use deadly force absent other elements of self-

defense.” Id. at ¶ *22.

In order to apply the law of self-defense discussed above, the initial inquiry should

be what facts the district court should have applied the law to in the motion to dismiss. The

district court did not address the import of the circuit court’s probable cause finding that

John committed criminal conduct. (See generally Mot. to Dismiss Hr’g Tr. at 1–118).

Under this Court’s case law, the circuit court’s finding of probable cause established the

district court’s subject matter jurisdiction to try the specific bound-over case. Jackson v.

State, 891 P.2d 70, 74 (Wyo. 1995). If “a court lacks subject matter jurisdiction, action

taken by that court, other than dismissing the case, is considered to be null and void.”

Weller v. Weller, 960 P.2d 493, 496 (Wyo. 1998); Miskimmins v. Shaver, 8 Wyo. 392, 428,

58 P. 411, 422 (Wyo. 1899). A logical extension of this well-established rule is this Court’s

holding that when a preliminary issue involves a court’s jurisdiction it should be decided

before the merits of the case. Bourke v. Grey Wolf Drilling Co., LP, 2013 WY 93, ¶¶ 39–

40, 305 P.3d 1164, 1173, (Wyo. 2013) (quoting Arrowsmith v. United Press International,

320 F.2d 219, 221-222, (2nd Cir. 1963)). As discussed above, § 6-2-602(f) defines a scope

of conduct that is not criminal. The circuit court makes the determination as to whether the

State has presented probable cause a defendant committed criminal conduct at the

preliminary hearing, which, in turn, vests or does not vest the district court with jurisdiction

to enter orders in the case. See Jackson, 891 P.2d at 74. Therefore, the only question before

the district court if a case is bound over and a defendant asserts he did not commit a crime

47
based on §6-2-602(f) is whether the court has jurisdiction for further proceedings based on

the proceedings in the circuit court.

Under the circumstances created by § 6-2-602(f), the district court does not need to

receive further evidence to determine whether it has jurisdiction because the jurisdictional

facts are whether probable cause existed at the time of the preliminary hearing. See id.

Therefore, Wyoming’s self-defense law, including § 6-2-602(f), and the probable cause

standard should be applied to facts presented at the preliminary hearing. A review of the

circuit court record and the applicable law, show that the State met its burden to show

probable cause existed that John committed conduct the Legislature has defined as

criminal, even in light of § 6-2-602(f), and the district court had jurisdiction to allow the

case to proceed to trial.

To apply Wyoming’s self-defense law to the circuit court record, the appropriate

evidentiary standard and burden of proof must also be clarified in light of Wyoming law.

Wyoming’s definition of probable cause in a preliminary hearing requires the State to

present evidence “to cause a person of ordinary caution or prudence to conscientiously

entertain a reasonable belief that a public offense has been committed in which the accused

participated.” Wilson, 655 P.2d at 1251. With regard to the burden of proof, this Court

should adopt the burdens required at trial for assertions of self-defense at the preliminary

hearing phase. Haire, ¶ 36, 393 P.3d at 1313. Specifically, the defendant has the initial

burden to present a prima facie case of self-defense. Id. If made, the burden switches to the

State to provide probable cause the defendant did not act in self-defense. Id. This burden

is appropriate because the strictures of the Fifth Amendment limit what the State is entitled

48
to regarding an accused’s defense and, absent a minimal showing by the accused, the State

would face an untenable burden of showing the nonexistence of an applicable defense in

every case involving use of force. See Patterson v. New York, 432 U.S. 197, 209–10 (1977)

(holding that placing a burden on a defendant to show sever emotional distress was

constitutional); Loomer v. State, 768 P.2d 1042, 1047 (Wyo. 1989) (adopting Patterson in

the context of a defendant’s burden to show mitigating factors in a kidnapping

prosecution); Kovach v. State, 2013 WY 46, ¶¶ 68–74, 299 P.3d 97, 116 Wyo.2013)

(discussing the constitutional dimensions of criminal pretrial discovery).

At the preliminary hearing, John had the initial “‘minimal burden’… [to prove]

some evidence [ ] support[ed] a self-defense theory.” Johns v. State, 2018 WY 16, ¶ 14,

409 P.3d 1260, 1265 (Wyo. 2018). Here, the State established at the preliminary hearing

what occurred before, during, and after John opened fire on Willow. The facts presented

show John cannot meet his “minimal burden.” Id.

John was in a brief relationship with Hayden just before the shooting. (8/16/18

Prelim. Hr’g Tr. at 13). In the early morning hours of August 3, 2018, John began text

messaging Hayden. (Id. at 29). After several text messages, Hayden attempted to end the

conversation. (Id. at 18). In response, John sent a disparaging message invoking the

children Hayden shared with Willow. (Id.). The message upset Willow and Hayden and,

as the conversation escalated, John sent a message in which he stated he would “blow

[Hayden] away, just like Wesley [Willow] and Will, to protect [J] and [J] and [N]. Fuck,

yeah. Test me bitch.” (Id. at 18, 29).

49
 Twelve minutes after John’s first text to Hayden, Willow placed a call to John,

challenged him to a fight, and asked for his address. (Id. at 18, 30). During the call, Willow

repeated John’s address multiple times. (Id. at 12, 19, 30). After the phone call, John sent

a series of unanswered text messages stating “Where you at, bitch?”; “I’m waiting,

motherfucker!!!”; “That’s what I thought, motherfucker. You a bitch”; “Fuck you. Fuck

Melissa, that hoe. Fuck all you all.”; “I’m ready.” (Id. at 30). John also attempted to call

Hayden three times in the minutes following. (Id.).

When Hayden, Willow, and Heims arrived at John’s home, the group approached

from a distance. (Id. at 12). At the time of the preliminary hearing, Heims did not recall

seeing John on the porch of his home or hearing any one exclaim he had a gun. (Id. at 12–

13). Hayden recalled John shining a light on the group as they approached. (Id. at 19–20).

According to their original statements, neither Heims nor Hayden heard what the words

Willow and John exchanged as the group approached John’s home. (Id. at 13, 20). Willow

then ran up the front porch steps and shots rang out in rapid succession. (Id. at 13, 16, 20).

Both witnesses believed that John never closed his front door. (Id. at 23). The door had two

functioning locks and a strike plate. (Id. at 58–59).

Willow’s body was found with his feet at approximately the threshold of the front

door. (Id. at 55). His body had nine bullet holes, including seven that entered the back-side

of his body. (Id. at 25, 27–28). After the shooting, John made unsolicited statements to the

effect of, “He rushed me. I shot him.” (Id. at 11).

Applying Wyoming’s self-defense law as a whole to the evidence produced at the

preliminary hearing, John cannot meet his prima facie burden and the State established

50
probable cause that John did not act in self-defense. John was lawfully present in his home

when the shots were fired. Regardless of this fact, the statutory presumptions concerning

his reasonable belief did not alleviate his status as a mutual aggressor. His presence in his

home also did not alleviate his duty to pursue reasonable alternatives, use proportional

force, and retreat due to his illegal activity.

Again, “[w]here two individuals mutually agree to fight, both are considered

aggressors, making a self-defense theory unavailable to either of them.” Causey, ¶ 10, 215

P.3d at 291. John’s text messages to Hayden and Willow likely did not make him the initial

aggressor under Wyoming law. See Drennen, ¶ 38, 311 P.3d at 129 (holding in relation to

initial aggressors that “words alone do not make a person the aggressor”). However, the

messages and phone conversation with Willow evidenced an explicit agreement to fight.

The text messages continued beyond the phone conversation and, regardless of whether

they were read, they establish John welcomed the fight and attempted to goad Willow into

following through by using derogatory language and statements that John was “waiting”

and “ready.” (8/16/18 Prelim. Hr’g tr. at 30). Beyond the ambiguous statement from John

that “[Willow] rushed [John]” and John shot him, there was no evidence presented showing

John withdrew from the fight as required by Wyoming law. (8/16/18 Prelim. Hr’g tr. at

11); Farrow, ¶¶ 29–31, 437 P.3d at 819.

Because of John’s status as a mutual combatant, the statutory presumptions did not

resurrect his claim to self-defense and the circuit court’s probable cause finding can be

supported on this ground alone. John’s actions do not support a prima facie showing he

acted in self-defense and, in the alternative, were enough “to cause a person of ordinary

51
caution or prudence to conscientiously entertain a reasonable belief that” John agreed to

fight Willow, making self-defense unavailable to either John or Willow. Wilson, 655 P.2d

at 1251.

Even if this Court were to find John withdrew and regained his right to self-defense,

the evidence the State presented at the preliminary hearing also established probable cause

that John failed to pursue reasonable alternatives before using deadly force as required

under Wyoming law.

The statutes provide a presumption regarding the subjective fear of imminent death

or serious bodily injury to justify the use of force, including deadly force. Wyo. Stat. Ann.

§ 6-2-602(b). The presumption, however, does not supply the objective element that the

amount of force, up to and including deadly force, was necessary. See Wyo. Stat. Ann. §

6-2-602(a–b); Tatman v. Cordingly, 672 P.2d 1286, 1290-91 (Wyo. 1983) (“The defendant

can use no more force than a reasonably prudent person would use under the same or

similar circumstances to protect himself against the actual or apparent threatened

contact.”). The doctrine is phrased as permitting the use of defensive force “including

deadly force[.]” Wyo. Stat. Ann. § 6-2-602(b) (emphasis added). Reasonable defensive

force is also defined as “the defensive force that a reasonable person in like circumstances

would judge necessary to prevent an injury or loss, and no more, including deadly

force[.]” Wyo. Stat. Ann. § 6-2-602(a) (emphasis added).

This Court’s recent case law clarified that “the law [in Wyoming] has recognized

that a person has a duty to pursue reasonable alternatives prior to using deadly force.”

Drennen, ¶ 36, 311 P.3d at 129; see also Haire, ¶¶ 36–37, 393 P.3d at 1313–14; Widdison,

52
¶¶ 35–39, 410 P.3d at 1216–17. Further, the justification for the use of deadly force ceases

when the danger ceases. Goettina, 158 P.2d at 879; see also Patterson, 682 P.2d at 1053.

Therefore, regardless of the statutory presumptions, John was required to pursue reasonable

alternatives and cease his use of force when the threat ceased to exist.

Approximately fifteen minutes elapsed from the time Willow announced his

intention to fight John and when he arrived at John’s home. (8/16/18 Prelim. Hr’g Tr. at 9,

18, 30). This lapse of time gave John ample opportunity to call the authorities and inform

them of Willow’s desire to fight him. John’s home also had a functioning deadbolt, door

handle lock, and strike plate that he could have secured. (Id. at 58–59). Once the group

arrived, John did not attempt to close the door to his home or use alternate means of force.

(See id. at 13, 20, 23). Instead he fired two rounds into Willow’s chest, disabling him, and

seven more into the backside of Willow’s body, including five shots into his back at a

perpendicular angle. (Id. at 25–28). Not only did John fail to pursue reasonable alternatives,

the number and location of the bullet holes in Willow showed John continued to fire after

the threat from Willow ceased. Under these facts, John did not make a prima facie showing

of self-defense and probable cause supported the conclusion that John did not act in self-

defense under Wyoming law. See Drennen, ¶ 36, 311 P.3d at 129; Patterson, 682 P.2d at

1053.

John also had a duty to retreat under the circumstances. An individuals does “not

have a duty to retreat before using reasonable defensive force … provided that he is not the

initial aggressor and is not engaged in illegal activity.” Wyo. Stat. Ann. § 6-2-602(e)

(emphasis added). It is unlawful to conspire or attempt to commit assault and battery,

53
disturb the peace by provoking a fight, and encourage crime in a manner that creates a clear

and present danger that a crime will be committed. Wyo. Stat. Ann. § 6-1-301; Wyo. Stat.

Ann. § 6-1-303; Wyo. Stat. Ann. § 6-2-501; Casper, Wyo., Code § 9.20.060 (2018);

Casper, Wyo., Code § 9.20.010(A)(1) (2018). John’s incitement and agreement to fight

Willow was illegal activity. Under the circumstances, John had a duty to retreat before

using reasonable defensive force. The evidence before the circuit court did not show John

retreated beyond taking up a squatting position further within his home. (8/16/18 Prelim.

Hr’g Tr. at 13, 16, 20, 23, 25–26).

Even if this Court were to find John made a prima facie showing of self-defense,

the evidence presented to the circuit court was sufficient enough “to cause a person of

ordinary caution or prudence to conscientiously entertain a reasonable belief that a public

offense has been committed in which the accused participated.” Wilson, 655 P.2d at 1251.

Because the circuit court’s probable cause determination was not deficient, the district

court should have ruled it had jurisdiction and denied John’s motion to dismiss.

If this Court holds the district court properly held an evidentiary hearing, the same

evidentiary standard and burdens discussed above should have been applied. To uphold the

defendant’s right to jury trial and the historical role of courts in criminal cases, courts

should not be called on to assess the sufficiency of the State’s proof beyond an assessment

of whether probable cause that a crime was committed exists. See Widdison, ¶ 21–23, 410

P.3d at 1213–14; Helton, 73 Wyo. at 113, 276 P.2d at 441; see also Creecy, ¶ 28, 210 P.3d

at 1096. Because Wyoming has controlling precedent on the definition of probable cause,

the district court should have applied the definition in Wilson. With regard to the burden

54
of proof, if the State is required to reprove it has the requisite evidence to carry forward the

prosecution of a defendant, the burden should first be on the defendant to present a prima

facie case showing the initial probable cause determination was erroneous. Once shown,

the burden should then be on the State to present probable cause. This approach has been

upheld in the context of trials numerous times and the initial finding of probable cause

addresses any other potential due process concerns. See Drennen, ¶ 24, 311 P.3d at 124–

25; see also Patterson, 432 U.S. at 209–10; Loomer, 768 P.2d at 1047; Kovach, ¶¶ 68–74,

299 P.3d at 116.

Aside from the greater detail added by introducing exhibits of John’s text messages,

phone calls, and the medical examiner report, Detective Stedellie’s testimony described the

incident in a largely similar fashion to his testimony at the preliminary hearing (Compare

id. at 23–98, with 8/16/18 Prelim. Hr’g Tr. at 7–59). The evidence presented at the motion

to dismiss hearing did differ from the preliminary hearing in three respects. First, the text

message John sent that provoked a response from Willow derided Hayden’s ability to be a

mother and described her as a “crackhead.” (Mot. to Dismiss Hr’g State’s Ex. 2 at 2). In

response, a text message was sent from Hayden’s phone stating “I’m [sic] fuck you up

Bitch!” (Id.). What followed were the string of messages in which John responded, “Go

ahead,” “Come at me,” and threatened to “blow [Hayden] away” like Willow and another

of Hayden’s ex-boyfriends. (Id. at 3). After these messages, Willow called John and John

sent the unanswered text messages discussed above. (Id.). The State also presented

evidence John made eight unanswered phone calls while waiting for the group to arrive.

(Mot. to Dismiss Hr’g State’s Ex. 3 at 4–6).

55
 The second grouping of new evidence involved what occurred at John’s home.

Detective Stedellie testified Willow parked six lots away from John’s home to avoid the

car being seen after the fight. (Mot. to Dismiss Hr’g Tr. at 73–74). Contrary to the evidence

presented at the preliminary hearing, Heims also recalled seeing John’s firearm and hearing

John tell the group words to the effect of “get outta here.” (Id. at 78–79). Detective Stedellie

also clarified Hayden was armed with an empty vodka bottle and Heims had a closed knife,

but neither side presented evidence John was aware of these facts. (Id. at 76).

The third grouping of evidence was John’s statements to the police at the hospital

following the incident. John confirmed he told the group to stop, but he also stated he had

time to close the door to his home and switch the safety off his rifle. (Id. at 39). According

to John, Willow slammed into the door and kicked it in. (Id. at 40). This contradicted the

consistent descriptions of Heims and Hayden that John’s front door was never closed and

the lack of any signs of forced entry. (Id. at 30, 42; 8/16/18 Prelim. Hr’g tr. at 23). John

also told investigators he did not intend to step past his front door because he knew his

rights under the law. (Mot. to Dismiss Hr’g Tr. at 39). He also admitted he had previously

gotten drunk, armed himself, and expressed his intention to shoot Willow because of

Willow’s involvement with Hayden’s infidelity while dating John; though he did not carry

through with his intent at the time. (Id. at 40–41). The added detail the State provided at

the motion to dismiss hearing largely strengthened the State’s case against John, with the

exception of the clarification of what was said between John and Willow.

The district court correctly concluded that John was not the initial aggressor as

defined by Wyoming law. (Mot. to Dismiss Hr’g Tr. at 118); see Drennen, ¶ 38, 311 P.3d

56
at 129. However, the evidence of John’s text messages and phone call established John’s

agreement to fight Willow. (See Mot. to Dismiss H’rg State’s Ex. 2 at 2–3; Mot. to Dismiss

Hr’g Tr. at 25–27). Accordingly, John was a mutual aggressor, which removed his

entitlement to assert self-defense all together. Causey, ¶ 10, 215 P.3d at 291.

The added detail concerning John’s statements when the group arrived implicate

Wyoming’s law on withdrawal. If an individual is a mutual aggressor “and thereafter

withdraws from [the conflict] in good faith and informs his adversary by words or actions

that he wants to end the conflict, and he is thereafter attacked, he then has the same right

of self-defense as any other person.” Causey, ¶ 10, 215 P.3d at 291 (emphasis added);

Widdison, ¶ 14, 410 P.3d at 1211. If the course of an individual’s action shows the words

or other actions of withdrawal are not in good faith, the right to self-defense is not restored.

Best v. State, 736 P.2d 739, 746–47 (Wyo. 1987).

Evidence at the hearing showed John told the group to leave while he brandished

the flashlight attachment on his rifle at them. (Mot. to Dismiss Hr’g Tr. at 39, 78–79, 83–

84). According to John, he followed these statements by retreating into his home and

closing the door. (Id. at 39). Willow then allegedly broke down the door and John shot him.

(Id.). While this evidence arguably created a prima facie showing John regained his non-

aggressor status under Wyoming’s law on withdrawal, the other evidence produced

established probable cause that John did not withdraw.

John’s actions belie any assertion his words of withdrawal amounted to a good faith

withdrawal from the conflict. John’s goading text messages, ending with “I’m Ready!”

show he did not intend to withdraw ten minutes after Willow originally challenged him to

57
fight and minutes before the group arrived. (Mot. to Dismiss Hr’g State’s Ex. 2 at 3; Mot.

to Dismiss Hr’g State’s Ex. 3 at 4; Mot. to Dismiss Hr’g Tr. at 37). In contrast to John’s

version of events, the other eyewitnesses described John leaving the front door open. (Mot.

to Dismiss Hr’g Tr. at 29–30). Their version was supported by the lack of evidence of

forced entry. (Id. at 42). In addition, John’s shooting of Willow accomplished his stated

intention to kill Willow when his relationship with Hayden deteriorated due to Willow’s

actions. (Id. at 40). John’s overall course of conduct shows his words of withdrawal were

enough for “a person of ordinary caution or prudence to conscientiously entertain a

reasonable belief that” his withdrawal was not made in good faith. Wilson, 655 P.2d at

1251. Therefore, the State met its burden of demonstrating probable cause exists that John

was a mutual aggressor and not entitled to use self-defense. Id.; Causey, ¶ 10, 215 P.3d at

291. Consequently, the district court’s conclusion that John was entitled to use self-defense

was erroneous as a matter of law.

The existence of conflicting evidence concerning whether John retreated and closed

the door to his home underscores the importance of the case being submitted to a jury. See

Snow, ¶ 32, 216 P.3d at 516. Heims and Hayden’s rendition of events is corroborated by

the physical evidence of the door’s condition, however, what occurred should not be

definitively decided at this stage of the proceedings by any court. (See Mot. to Dismiss

Hr’g Tr. at 29–30, 42). Instead, this crucial determination should be presented to a jury of

John’s peers, consistent with his right to a jury trial. Widdison, ¶ 21, 410 P.3d at 1213.

If this Court finds John’s aggressor status did not exterminate his right to self-

defense, the evidence regarding John’s lack of consideration of reasonable alternatives and

58
his continued firing after the threat ceased was substantially similar to the evidence

presented at the preliminary hearing. Therefore, the analysis above concerning these

aspects of self-defense law would also apply and will not be reiterated in full here.

However, the district court’s error occurred when it conflated the presumption of

reasonable fear (which supplies the subjective component of the offense) with the

requirement that the amount of force be necessary (which is an objective component of the

defense). See Drennen, ¶ 36, 311 P.3d at 129; Wyo. Stat. Ann. § 6-2-602(a),(b). As

discussed above, based on the evidence presented at the hearing, a reasonable person would

not believe John’s actions constituted a reasonable use of force and, therefore, did not meet

the common law requirements of self-defense. He also continued to use disproportionate

force after the threat from Willow ceased, as strengthened by the medical examiners

conclusion that Willow was disabled, but alive, when John fired the shot into Willow’s

back that ended his life. (See Mot. to Dismiss Hr’g State’s Ex. 1 at 14, 22–28; Mot. to

Dismiss Hr’g Tr. at 95). Finally, the court clearly erred in finding John was not engaged

in illegal activity, as the record objectively demonstrated John engaged in illegal activity

by accepting the offer to fight and continuing to goad Willow.

Therefore, regardless of this Court assesses John’s motion in light of the circuit

court record or the evidence produced at the evidentiary hearing, both records support a

finding of probable cause John did not act in self-defense under Wyoming law. As a result,

the district court’s ruling John was immune from prosecution and dismissal of the case was

erroneous as a matter of law.

59
 CONCLUSION

For the foregoing reasons, the State of Wyoming respectfully requests that the

district court’s order dismissing the case against John be reversed and the case be remanded

to proceed to trial or, if appropriate, appellate proceedings in front of the district court.

DATED this 15th day of July 2019.

/s/ Bridget Hill

Bridget Hill #6-3616
Wyoming Attorney General

/s/ Jenny L. Craig

Jenny L. Craig #6-3944
Deputy Attorney General

/s/ Christyne M. Martens

Christyne M. Martens #7-5044
Senior Assistant Attorney General

/s/ Kevin Taheri

Kevin Taheri #6-3156
Special Assistant Attorney General

/s/ Samuel Williams

Samuel Williams
Wyoming State Bar No: 7-5172
Attorney for Appellee
Wyoming Attorney General’s Office
Assistant Attorney General
2320 Capitol Avenue
Cheyenne, WY 82002
Telephone: (307) 777-7977
sam.williams@wyo.gov

60
 CERTIFICATE REGARDING ELECTRONIC FILING

I, Samuel Williams, hereby certify that the foregoing BRIEF OF PETITIONER was

served electronically via the Wyoming Supreme Court C-Track Electronic Filing System

this 15th day of July 2019 on the following parties:

Diane M. Lozano
State Public Defender

Kirk A. Morgan
Chief Appellate Counsel

Wyoming Public Defender Program

Rogers Building
316 W. 22nd Street
Cheyenne, WY 82002
(307) 777-3451

The undersigned also certifies that all required privacy redactions have been made

and, with the exception of those redactions, every document submitted in digital form or

scanned .pdf is an exact copy of the written document filed with the Clerk, and that the

document has been scanned for viruses and is free of viruses.

/s/ Samuel Williams

Samuel Williams
Assistant Attorney General

61