Bouwkamp v. State ( 1992 )

GOLDEN, Justice.

Marvin J. Bouwkamp appeals from his conviction of first degree murder in the death of Lucien Millox on May 25, 1989, near Buffalo, Wyoming. Bouwkamp received a sentence of life in prison. He was tried on both premeditation and felony murder theories, and the jury returned a general verdict of guilty. We affirm Bouwkamp’s conviction. The state's premeditation argument, however, does not adequately distinguish the elements of first and second degree murder. The court will comment on this distinction to provide guidance in this critical area of the law.

Bouwkamp presents three issues in his appeal:

I. By refusing to give appellant’s theory of the case instruction to the jury, the trial court violated his constitutional right to due process.

II. Instruction 15 should not have been given in this ease, and should no longer be the Wyoming rule of law, because:

1] the rationale supporting the felony murder doctrine is not served by this instruction;

2] a strict application of this rule led to a harsh and incorrect verdict in this case; and

3] this rule has the effect of imposing punishment beyond the defendant’s culpability.

III. There is insufficient evidence to support the verdict and therefore the trial court erred in not entering a judgment of acquittal for the appellant.

The state responds to these three assertions, rephrasing them as:

I. The trial court properly refused to instruct the jury regarding a crime with which appellant was not charged.

II. Instruction 15 was a proper statement of the law and was supported by the facts in this case.

III. There was sufficient evidence to support the verdict.

FACTS

In the early morning hours of May 25, 1989, Lucien Millox, a 63-year-old Buffalo area ranch hand, was savagely battered and left to die at a location north of Buffalo known as the Rock Creek interchange. The beating took place on the roadway, and Millox was then stripped partially naked and thrown over a concrete barrier and out of the sight of travellers on the road; he died an hour or two later from brain swelling caused by multiple blunt trauma. On May 26,1989, a local farmer noticed a large amount of dried blood on the road and a blood trail leading to and apparently over the barrier and stopped to investigate. Following the blood trail he discovered the body, which he immediately reported to the Johnson County sheriff’s office. Millox’s face was so badly battered that the body was unrecognizable, and fingerprints were needed to identify him. The Johnson County sheriff’s office investigated the homicide with assistance from the Wyoming Division of Criminal Investigation and the Wyoming State Crime Lab.

Millox was last seen leaving Buffalo with Bouwkamp and Bouwkamp’s employee, D.J. Lennick, after the bars closed early on May 25, 1989. Bouwkamp and Lennick first encountered Millox in a Buffalo bar on the evening of May 24. Bouwkamp, Len-nick and Stagner, another employee, had come into Buffalo after work to drink beer and play pool; the three men were staying in the area while building a pole barn a short distance outside of Buffalo. Initially, they went to the 21 Club; it was there they met Millox. Stagner left the 21 Club and crossed the street to the Buffalo Club where a woman he knew was tending bar. Some time later, Lennick and Millox got into a dispute which was resolved without violence. Bouwkamp claimed that Millox pulled a knife on Lennick during this confrontation, but others present did not see one. At Bouwkamp’s suggestion, Lennick also went to the Buffalo Club where he remained until it closed.

Some time before the 21 Club closed Bouwkamp and Millox struck up a conversation at the bar and bought each other drinks. Millox paid for drinks from a pile of bills he had placed on the counter in front of him. When the bar closed Millox asked Bouwkamp for a ride home. Bouw-kamp, followed by Millox, went to the Buffalo Club to get Lennick; it was there that Bouwkamp heard about an after-hours party. Millox claimed he knew where to find the party and offered to guide Bouwkamp there. The three left Buffalo in Bouw-kamp’s shop truck. Millox was killed shortly thereafter.

Bouwkamp admitted he was present when Millox was killed, but claimed he had nothing to do with the killing. In Bouw-kamp’s version of the subsequent events, the three men left Buffalo in Bouwkamp’s truck, with Bouwkamp driving, Millox riding with him in front, and Lennick lying in back on the flatbed. They looked for the party, but could not find it. Bouwkamp testified that after slowly driving a couple of miles out of town while searching for the party, he stopped the truck at the Rock Creek interchange at Millox’s request so that Millox could relieve himself. Lennick climbed off the truck and Millox immediately attacked Lennick, again pulling a knife, which Bouwkamp was forced to wrestle from him. Lennick struck Millox several times during this struggle. Bouwkamp testified that, although words were still being exchanged, he believed the incident was over and the other two were under control, and he walked up the ramp to the interstate above to orient himself. However, as he returned he saw the other two exchange blows, Millox fall to the ground, and Lennick stomp on Millox’s face.

Bouwkamp testified he then tried to pull Lennick off Millox, but when he grabbed Lennick from behind, the younger and stronger man simply shrugged him off, flinging him to the ground. Lennick, who was intoxicated and in a rage, then threatened Bouwkamp as well, until finally recognizing him and calming down. After calming Lennick, Bouwkamp knelt and checked Millox’s condition. He could see that Millox was badly battered and could not find a pulse, leading him to believe that Millox was dead.

Bouwkamp admitted that he decided to attempt to cover up the killing. He and Lennick partially stripped Millox and took his knife, checkbook, watch and belt buckle and some of his clothing, planning to destroy these items to cover up the victim’s identity and their involvement in his death. They then dumped what they believed was a dead body over the barrier at the side of the road and tried to remove evidence of their presence from the crime scene. Bouwkamp recalled trying to hide next to his truck during this time when a vehicle drove by. Bouwkamp testified that he did these things out of shock, fear of what would happen to him because he was on probation for a felony car theft, and a desire to protect Lennick.

At about the time the murder occurred, the same farmer who subsequently discovered the body drove through the crime scene as he returned home from a bull sale in South Dakota. He saw what was later identified as Bouwkamp’s vehicle, a flatbed truck with Montana plates and a missing taillight, parked in the road under the interstate at the interchange. He also observed a man in a Stetson type hat crouched alongside the truck, apparently hiding his face from view. He did not see anyone else and thought at the time the man might have been relieving himself. He reported this observation to investigators after he discovered the body.

Bouwkamp and Lennick placed Millox’s clothing and some of the bloodstained clothing they had been wearing in plastic bags, which they hid in the travel trailer they stayed in at the jobsite. They finished the barn the following day, packed up and returned to their homes in Billings, Montana. Lennick then took Millox’s personal items and all the clothing the two had gathered, except for Bouwkamp’s boots, from the trailer. He burned the clothing, but gave Millox’s knife, watch and belt buckle to his father, apparently after his father asked for them in order to turn them over to Lennick’s attorney.

Investigators with a search warrant seized Bouwkamp’s truck and travel trailer in Billings. Lennick was arrested on May 29, 1989, and Bouwkamp turned himself in to authorities the following day. Investigators also received Millox’s knife from Lennick’s attorney, and his watch and belt buckle from another law enforcement agency that had recovered them after they had been stolen from Lennick’s father. Bouwkamp’s bloodstained boots were found in the trailer and dried blood samples were collected from the spatters found on Bouwkamp’s truck. The blood from the boots and truck matched that of the victim, as did hair fragments found in the dried blood on Bouwkamp’s boots.

Codefendant Lennick pled guilty to first degree murder before trial and received a life sentence. He testified at Bouwkamp’s trial, although he was unable to recall much about the incident apparently because of what was described as an alcoholic blackout. Bouwkamp testified on his own behalf. The jury returned a general verdict of guilty of murder in the first degree.

THEORY OF THE CASE INSTRUCTION

Bouwkamp correctly asserts that due process considerations entitle criminal defendants to affirmatively stated theory of the case instructions when two conditions are met. Murray v. State, 776 P.2d 206, 209 (Wyo.1989); Best v. State, 736 P.2d 739, 744 (Wyo.1987). The instruction must sufficiently inform the court of the defendant’s theory and must be supported by competent evidence. Id. However, there is another fundamental condition precedent which was not met by the offered instruction. The instruction must in the first instance be a proper theory of the case, or theory of defense, instruction. That is, the offered instruction must present a defense recognized by statute or case law in this jurisdiction. The instruction Bouwkamp contends was improperly refused did not present such a defense.

Bouwkamp’s offered instruction describes the crime of accessory after the fact. Suggestion of an alternative charge is not a defense to the crime being prosecuted. It may offer the jury a different way to interpret the facts, but does not present a defense against the murder charge. Like the defendant in Ellifritz v. State, 704 P.2d 1300 (Wyo.1985), Bouwkamp contends the evidence did not prove his guilt of the crime charged. In Ellifritz, 704 P.2d at 1301, this court said, “[a] theory of the case is more than a comment on the evidence. What appellant suggests in his proposed instructions is comment on the evidence — in effect, telling the jury how * * * to consider the evidence.” Ellifritz, 704 P.2d at 1301. This approach, we went on to say, does not state a theory of defense. Id. at 1302.

Theory of defense instructions are to be derived from and address criminal defenses provided for by statute or acknowledged by this court. “Common-law defenses are retained unless otherwise provided by this act.” Wyo.Stat. § 6-1-102(b) (June 1988). Additionally, this court has discussed acceptable defenses, notably in Keser v. State, 706 P.2d 263, 269 (Wyo.1985). See also 1 Paul H. Robinson, Criminal Law Defenses § 21, 70 n. 1 (1984); 1 Charles E. Torcia, Wharton’s Criminal Law § 39 (14th ed. 1978). Bouwkamp’s “theory of defense” does not state a defense recognized in Wyoming by statute or judicial decision.

We note the disputed instruction is apparently taken verbatim from Wyoming Pattern Jury Instructions — Criminal, WPJIC § 3.302, Elements of Accessory After the Fact. While reiterating that the WPJIC serves only as a guide for counsel, we observe that it includes two separate parts labelled Defenses and Excused Action and that this instruction was not taken from either, but instead simply states the elements of an offense.

Bouwkamp did not rely on a defense recognized by Wyo.Stat. § 6-1-102 or this court that would merit a theory of the case instruction. Instead, his true defense was the simplest and most direct of all: he denied guilt of the crime charged. He argued he was not guilty of killing Millox, although he was willing to admit that he helped cover up the murder. In other words, he defended by claiming to be innocent of the crime charged. On this argument he received adequate instructions.

Bouwkamp points out that this court apparently considered an accessory after the fact argument as a theory of defense in Miller v. State, 755 P.2d 855 (Wyo.1988). We reject that interpretation. However the Miller instruction may have been la-belled, it adequately covered that which Miller wished instruction on, while his offered instructions were rejected because they were argumentative and confusing. Id. at 865. The Miller opinion does not hold that an accessory after the fact argument is a theory of defense to a murder charge, and the opinion should not be so read.

Bouwkamp’s offered instruction, which was refused by the court, cannot be considered a theory of the case instruction. Without this characterization it is seen as essentially an attempt to amend the charges. However, as the state asserts, the charging decision lies with the prosecutor and the defendant cannot alter or amend the charges. The refused instruction listed the elements of our accessory after the fact statute¹ and provided for a jury determination of defendant’s guilt for that crime. It is a comment on the evidence designed to persuade the jury that while Bouwkamp was guilty of another crime, he was not guilty as charged.

The trial court correctly chose to reject the instruction because it described a crime not charged and one which was not a lesser included offense of murder in the first degree. “It would have been confusing to the jury to be instructed on a crime not charged, and one on which they could not convict.” Miller, 755 P.2d at 865. Additionally, the trial court had no obligation to give a “correct” version of the proposed instruction as it did not apprise the jury of a recognized theory of defense that would entitle Bouwkamp to an instruction.

While Bouwkamp was not permitted this instruction, he was not compromised in arguing his alternative interpretation of the facts to the jury. He did so vigorously, both through his counsel’s efforts and through his own testimony as to the events of Millox’s death. The jury chose not to believe him. As the rejected instruction did not present a theory of defense to the charge of murder, the trial court did not err in refusing to give it. The court gave the following instruction:

INSTRUCTION 15

For the purposes of establishing the crime of felony murder, a killing which occurred in the perpetration of a robbery, the sequence of events is unimportant and the killing may precede, coincide with or follow the robbery and still be committed in its perpetration.

Bouwkamp argues that this instruction should not have been given and should no longer be the rule of law in Wyoming. He reasons it does not further the felony murder rationale, it led to an incorrect verdict against Bouwkamp, and its effect is to impose punishment disproportionate to a defendant’s culpability. We disagree. The instruction as given accurately states the law, and Bouwkamp has not demonstrated the dire consequences that he alleges flowed from its use.

Felony-murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. It makes no difference whether or not there was an intent to kill. The statutory law implies all of the malevolence found and necessary in the crime of first degree murder alone.

Richmond v. State, 554 P.2d 1217, 1232 (Wyo.1976). Consequently, a defendant convicted under this language faces the same penalties as one convicted of premeditated, that is, coolly calculated murder. The element of deliberation is established by the defendant’s presumed consideration of the high degree of risk of causing death involved in the commission of one of the inherently dangerous felonies expressly incorporated into our first degree statute. Richmond, 554 P.2d at 1232.

In its brief the state acknowledges there may be merit in Bouwkamp’s claim that the felony murder rule should not be applied in the instance where the felony arises as an afterthought and is committed subsequent to the murder. The rationale underlying this claim is that the purpose of the rule is to deter homicides in the course of felonies, including those resulting from negligence or accident, by holding the perpetrators strictly responsible. Richmond, 554 P.2d at 1232. This purpose does not logically reach the circumstance where the felony is conceived of and executed after the killing has occurred. However, the state then argues that the issue of misapplication of the felony murder rule does not arise from the trial court’s giving of Instruction 15 in this case. We agree with both contentions.

The key phrase in the instruction, “in the perpetration of,” relied on by the state is found in Cloman v. State, 574 P.2d 410, 418-21 (Wyo.1978). “Perpetration,” as used here, is the act or process of commission of a specified crime. Webster’s Third New International Dictionary 1684 (1971). To occur in the perpetration of a felony the killing must occur in the unbroken chain of events comprising the felony. See Cloman, 574 P.2d at 419-22. In Cloman we framed the concept in this way: “the time sequence is not important as long as the evidence, including the inferences, point to one continuous transaction.” Cloman, at 420. This means that, for a finding of felony murder, the killing must occur as part of the res gestae or “things done to commit” the felony. If the felony was not conceived of before the victim’s death but occurs after the murder, the chain is broken, and the murder is a separate act which cannot have occurred “in the perpetration of” the underlying felony. See United States v. Mack, 466 F.2d 333, 338 (D.C.Cir.1972) cert. denied sub nom. Johnson v. United States, 409 U.S. 952, 93 S.Ct. 297, 34 L.Ed.2d 223; see also Grigsby v. State, 260 Ark. 499, 542 S.W.2d 275, 280 (1976).

While the sequence of events is not significant, their interrelationship is. A specific connection is required: the murder must occur in the performance of the felony for conviction of felony murder under Wyo.Stat. § 6-2-101 (June 1988).

Instruction 15 requires that, before Bouwkamp could be found guilty of felony murder, the murder must be proved to have occurred in the perpetration of, or during transaction of, the robbery of Mil-lox. Consequently, it does not dictate application of the felony murder rule where both the intent to commit the felony and the act itself follow the murder as a separate transaction, as Bouwkamp contended happened here.

Whether the killing and the felony were part and parcel of one transaction is a jury question. Annotation, What Constitutes Termination of Felony for Purpose of Felony Murder Rule, 58 A.L.R.3d 851 § 5 (1974). Without doubt it may be difficult to persuade a jury on facts such as these that there were two separate criminal transactions. The jury is not bound to accept a defendant’s version of events, Grigsby, 260 Ark. at 508, 542 S.W.2d at 280. This jury chose not to believe Bouw-kamp’s story. We note that the evidence and inferences satisfy the one continuous transaction test imposed by the directive that the murder occur “in the perpetration of” the felony.

We expressly reject the suggestion that Cloman may be read to permit a conviction for felony murder where intent to commit the felony cannot be inferred before the murder and the chain of events is apparently broken. When a reasonable doubt remains as to whether the felony may have occurred as an afterthought that followed the killing, the killing cannot have been “in the perpetration of the felony,” and the homicide may not be elevated to murder in the first degree by application of the felony murder rule. This is our understanding of the legislature’s intent. Although the proposition of law may perhaps be stated more plainly, Instruction 15 presents a correct statement of the law, and the trial court did not err in giving it.

SUFFICIENCY OF THE EVIDENCE

Bouwkamp’s final contention is that the evidence presented at his trial was insufficient to support his conviction of murder in the first degree under either the premeditation or felony murder theories argued by the state. Bouwkamp directs most of his argument to the felony murder theory, claiming that there was not sufficient evidence of robbery in light of his alternative explanation of how the victim’s body came to be stripped and Lennick’s possession of some of Millox’s personal effects.

Bouwkamp claimed that Millox’s body was stripped of clothing and property after his death only to cover up his identity. However, our reading of the record reveals that the jury had enough evidence and reasonable inferences available to it on which to find that Millox was murdered only after the intent to commit robbery was formed and to effect that purpose.

To determine whether sufficient evidence of a crime exists, “[w]e examine all the evidence in the light most favorable to the State.” Mendicoa v. State, 771 P.2d 1240, 1243 (Wyo.1989). See also Broom v. State, 695 P.2d 640, 642 (Wyo.1985). In so doing, we note the testimony of Bouw-kamp’s drinking with Millox while the victim placed his stack of bills on the bar, the travel of the trio to a remote location, the ultimate disappearance of the victim’s cash without any explanation, and Lennick’s retention of Millox’s personal items having utility or value. Our standard of review is not whether the evidence is sufficient for us, but whether, when viewed favorably to the state, it was enough on which a jury could form a reasonable inference of guilt beyond a reasonable doubt. Mendicoa, 771 P.2d at 1243. That test is satisfied in this case.

Likewise, we find the evidence of premeditation sufficient. We are somewhat troubled with the evidence of premeditation offered by the state. It is apparent that the hedgerow separating the offenses of first and second degree murder has fallen into some disrepair, requiring that we do some pruning to restore the boundary.

Wyo.Stat. § 6-2-101 defines murder in the first degree as a killing committed “purposely and with premeditated malice” [or one occurring in the course of a felony or attempted felony], Wyo.Stat. § 6-2-104 (June 1988) defines murder in the second degree as a killing committed “purposely and maliciously, but without premeditation.” As second degree murder is a lesser included offense of first degree murder, State v. Selig, 635 P.2d 786, 791 (Wyo.1981), a distinction obviously exists between the charges, which is the element of premeditation required for a finding of murder in the first degree. Another apparent distinction is that first degree murder is a specific intent crime, requiring proof of the element of intent, while second degree murder is a general intent crime, requiring only proof of the element of voluntariness. Crozier v. State, 723 P.2d 42, 52 (Wyo.1986). We conclude premeditation is the specific intent element which distinguishes the two types of murder.

Premeditation, or premeditated malice, should be accorded its ordinary meaning, which has been applied in our decisions for some time. It is the “thinking over, deliberating upon, weighing in the mind beforehand, resulting in a deliberate intention to kill which constitutes the killing murder in the first degree.” Parker v. State, 24 Wyo. 491, 502, 161 P. 552, 555 (1916). Premeditation may be inferred from the facts and circumstances. Murry v. State, 713 P.2d 202, 206 (Wyo.1986); Goodman v. State, 573 P.2d 400, 407 (Wyo.1977).

This court’s recent discussions of premeditation have focused on the passage of time required to establish premeditation. See generally, Murry, 713 P.2d at 206-07. While it is true that no specific or substantial time period is required, there must be evidence of cool calculation beyond the mere opportunity to deliberate, such as a demonstrated motive, State v. Williams, 285 N.W.2d 248, 268 (Iowa 1979),² or leaving an altercation to arm oneself. Murry, 713 P.2d at 207. Otherwise, having said an instant is sufficient, we have inadvertently eliminated any principled distinction between the evidentiary requirements for the two degrees of homicide. See State v. Ollens, 107 Wash.2d 848, 733 P.2d 984, 987 (1987). “The question is not only, did the accused have time to think, but did he think?” Williams, 285 N.W.2d at 268 (quoting State v. Wilson, 234 Iowa 60, 94, 11 N.W.2d 737, 754 (1943)).³

The state does not make a compelling case for premeditation. We are simply reminded of the number of blows delivered, the inference that a weapon of some sort was used, and informed that it would be obvious to anyone that such a brutal attack directed at the head would inevitably cause death. Repeated blows with a weapon evidence purpose and demonstrate malice, but “repeated blows” evidence does not establish premeditation.

The state erroneously argues that premeditation can be inferred from the use of a weapon. As we said earlier, this court has held that premeditation may be inferred from the circumstances surrounding the killing. Murry, 713 P.2d at 206. This court has never said that the circumstance of a deadly weapon is by itself enough to infer premeditation. What we have said is that “malice may be inferred by the use of a deadly weapon.” Braley v. State, 741 P.2d 1061, 1069 (Wyo.1987).

Neither can the brutality of a fatal attack, in itself, support an inference of premeditation. State v. Lacquey, 117 Ariz. 231, 234, 571 P.2d 1027, 1030 (1977); People v. Hoffmeister, 394 Mich. 155, 229 N.W.2d 305, 307 (1975). See 2 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 7.7(a) at 240 (1986). We have examined decisions from other jurisdictions which appear to bootstrap malice in the form of savagely administered wounds into premeditation by characterizing it as circumstances attending the killing. See Heiney v. State, 447 So.2d 210 (Fla.1984); and Tooley v. State, 1 Tenn.Cr.App. 652, 448 S.W.2d 683 (1969). This is inappropriate, and we decline to align Wyoming with these jurisdictions. A sure hazard devolving from the difficulty of establishing premeditation when confronted with a factually heinous crime is that malice tends to assume excessive significance, while the requirement of evidence of preexisting reflection becomes indistinct. We affirm that premeditation remains the defining crux and the distinction which this court will require to uphold a first degree murder conviction.

We have taken this opportunity to carefully review our premeditation jurisprudence. We find that heretofore we have not identified and articulated a method for evaluating evidence of premeditation. To clarify what is required on appeal to sustain a conviction of first degree murder and to analyze the evidence presented in this instance, we adopt the three-part framework articulated by the California Supreme Court, applied in California and other jurisdictions. See People v. Bloom, 48 Cal.3d 1194, 774 P.2d 698, 705-07, 259 Cal.Rptr. 669, 676-78 (1989); Williams, 285 N.W.2d at 268; Longoria v. State, 99 Nev. 754, 670 P.2d 939, 941 (1983). See also, 2 LaFave & Scott, supra, § 7.7(a) at 239. We offer the framework verbatim:

Evidence sufficient to sustain a finding of premeditation and deliberation “falls into three basic categories: (1) facts about * * * what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing — what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3) would * * * support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take [the] victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).”

People v. Crandell, 46 Cal.3d 833, 760 P.2d 423, 441, 251 Cal.Rptr. 227 (1988) (quoting People v. Anderson, 70 Cal.2d 15, 447 P.2d 942, 949, 73 Cal.Rptr. 550, 557 (1968)) (citations omitted).

[VJerdicts of first degree murder typically [are sustained] when there is evidence of all three types and otherwise require at least extremely strong evidence of (1) or evidence of (2) in conjunction with either (1) or (3).

People v. Anderson, 70 Cal.2d 15, 447 P.2d at 949, 73 Cal.Rptr. at 557.

With reference to the foregoing three basic categories, the first type of evidence we consider is that characterized as planning activity. The evidence is questionable regarding “activity directed towards, and explicable as intended to result in, the killing.” Initially, Bouwkamp did not initiate Millox’s fatal trip. Instead, Millox left town with Bouwkamp because he had asked Bouwkamp for a ride home. Subsequent travel to an unpopulated stretch of rural road may be explicable as intended to result in the killing, but the location as readily explained by Bouwkamp’s knowledge of, and search for, the after-hours party.

The state points to the inferred use of a weapon and relies on Cloman to make the argument that this is a circumstance from which premeditation can be inferred. However, this is a substantially different case. First, the use of a weapon is only inferred, as no weapon was discovered or even specifically described. We are being asked to endorse an inference upon an inference. Second, the state’s suggestion is that the weapon used on Millox was probably a tool or stake taken from the back of the shop truck. Use of a weapon of this nature is not, by any reasonable stretch, evidence of planning. Such an instrument is normally found on a vehicle used in construction, and if such a weapon were used, it is at least as suggestive of spontaneity as of planning. Consequently, the state is not asking this court to infer, but to speculate. People v. Rowland, 134 Cal.App.3d 1, 8, 184 Cal.Rptr. 346, 349 (1982). This is distinctly different from the weapon in Cloman, a knife apparently concealed on the person of one of the defendants before encountering the victims, and then used to commit the murders. We find no evidence of planning activity.

The second category of evidence is that related to the prior relationship of the accused and the victim that suggests a motive or motives to murder the victim. This court has discussed the significance of motive evidence in several earlier first degree murder cases. Jones v. State, 568 P.2d 837, 844 (Wyo.1977); Buckles v. State, 500 P.2d 518, 523 (Wyo.1972); Keffer v. State, 12 Wyo. 49, 69-70, 73 P. 556, 561 (1903).

There is little that suggests animosity between Bouwkamp and Millox. The two interacted for the first time the evening of the murder. They spoke to each other only briefly, near closing time, and that was a friendly conversation, in the course of which they bought each other drinks. At the conclusion of that conversation Millox asked Bouwkamp for a ride home, evidence of their mutual comfort level. Lennick did have some sort of brief altercation with Millox earlier that evening, but Bouwkamp was only peripherally involved.

However, there is evidence of motive for robbery, or avoiding detection for robbery, based on Bouwkamp’s observation at the bar of Millox’s roll of bills. Robbery is sufficient motive to justify an inference of premeditation. Keffer, 73 P. at 561; State v. Gordon, 354 N.W.2d 783, 784 (Iowa 1984); Ollens, 733 P.2d at 987.

The final category is evidence of the “nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design.’ ” Here there is merit in the state’s argument regarding the blows administered to Millox. The exacting application of repeated, severe blows across the face is evidence supporting the inference of a deliberate intent to kill.

Returning to the analytical framework, evidence of the nature of the killing to support a finding of premeditation must be supported by reasons reasonably inferred from category (1) or category (2) facts. As robbery is sufficient motive, here support for the evidence of the nature of the killing exists from category (2) evidence, motive.

While the evidence is not overwhelming, we again employ our standard of review for sufficiency of the evidence in a criminal case and find the verdict adequately supported. We consider only whether the jury could find as it did, and not whether we would have reached the same result. Mendicoa, 771 P.2d at 1243. Doing so, we find the evidence of premeditation sufficient to support an inference of guilt beyond a reasonable doubt. Our analysis does not reveal evidence from all three categories since we do not identify evidence of planning activity. However, the motive of robbery is present and may properly be coupled with the exacting nature of the fatal blows to Millox’s skull to support an inference of premeditation.

We hold that the evidence considered by the jury was sufficient to sustain Bouw-kamp’s conviction on both felony murder and premeditation theories. As this court recently held in Price v. State, 807 P.2d 909 (Wyo.1991), where the evidence is sufficient to support the jury’s determination of guilt under either a premeditation or a felony murder theory, we will sustain a general verdict of guilt.

Bouwkamp’s arguments are not persuasive, and his conviction is affirmed.

1 . Wyo.Stat. § 6-5-202 (June 1988).

2 . See also Buckles v. State, 500 P.2d 518, 522, (Wyo.1972), cert. denied, 409 U.S. 1026, 93 S.Ct. 475, 34 L.Ed.2d 320.

3 . We do not mean to suggest by these comments that this court has not required evidence of premeditation beyond mere opportunity to reflect before it has affirmed convictions of murder in the first degree argued on a premeditation theory. Review of our opinions concerning challenges to the sufficiency of the evidence in first degree murder convictions based on premeditation demonstrates that additional evidence of a specific intent to kill has been required to sustain convictions. The Wyoming decisions cited throughout this opinion provide representative examples.