Jerald Thomas Fallon v. The State of Wyoming ( 2022 )

THE SUPREME COURT, STATE OF WYOMING
2022 WY 110APRIL TERM, A.D. 2022
September 9, 2022
JERALD THOMAS FALLON,
Appellant
(Defendant),
v. S-21-0251
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellant:
Office of Public Defender: Diane M. Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate
Counsel. Argument by Ms. Cooper.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua
C. Eames*, Senior Assistant Attorney General; Donovan Burton, Assistant Attorney
General. Argument by Mr. Burton.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FENN, Justice.
[¶1] Jerald Thomas Fallon was charged with second-degree murder. A jury convicted
him of the lesser-included offense of voluntary manslaughter. He appeals his conviction
and argues the district court erred when it instructed the jury on voluntary manslaughter.
He also contends the evidence was insufficient to sustain his conviction. We affirm.
ISSUES
[¶2] Mr. Fallon presents two issues on appeal, which we state as follows:
I. Did the district court err when it instructed the jury on the
lesser-included offense of voluntary manslaughter?
II. Was there sufficient evidence at trial to support Mr.
Fallon’s conviction of voluntary manslaughter?
FACTS
[¶3] Jerald Fallon and Kelly Black were in a dating relationship. On February 29, 2020,
Mr. Fallon and Ms. Black attended a company party at the Hilton Garden Inn in Casper,
Wyoming. The party was hosted by 71 Construction in a Hilton banquet room. At the
time, Mr. Fallon worked as a paving foreman for 71 Construction. The party included
dinner, drinks, and a comedy show with three acts.
[¶4] Mr. Fallon and Ms. Black drove to the party in Ms. Black’s vehicle, a Nissan
Armada. They arrived at the Hilton just before 5:00 p.m. and ordered drinks at the lobby
bar. During the course of the evening, Mr. Fallon and Ms. Black consumed several
alcoholic drinks. Mr. Fallon purchased and consumed between four and six rounds of
shots. Ms. Black also consumed shots and at one point the bartender attending to the office
party stopped serving Ms. Black because “she was drunk.”
[¶5] Witnesses testified that Ms. Black was “getting loud and obnoxious when the rest
of the company was trying to watch [the comedy show].” The Vice President of Operations
for 71 Construction testified that she confronted Mr. Fallon after the first comedian’s act
and informed him Ms. Black and his table needed to settle down. Ms. Black continued to
disrupt the show during the second comedian. Mr. Fallon grabbed her by the arm and
screamed at her.
[¶6] At 7:21 p.m., Mr. Fallon left the banquet room and went outside toward a smoking
area. Shortly thereafter, Ms. Black and a female attendee left the banquet room and went
outside toward the same smoking area. At 7:30 p.m., Mr. Fallon returned to the banquet
1
room. Approximately five minutes after Mr. Fallon left the smoking area, Ms. Black and
the female attendee re-entered the hotel, went to the lobby bar, and ordered shots. While
Ms. Black was at the bar, Mr. Fallon complained about her in text messages he sent to her
daughter. The text message exchange is as follows:
[Mr. Fallon at 7:36 p.m.]: I’m at my Christmas party and I’m
sitting all by myself
[Ms. Black’s daughter at 7:37 p.m.]: Why??
[Mr. Fallon at 7:38 p.m.]: Kelly has spilled 2 drinks on our
table and I have no idea where she is right now I’m sitting
at our table all by myself
[Ms. Black’s daughter at 7:39 p.m.]: Is she like drunk-drunk?
Try and find her and just tell her to come sit with you Or tell
her it’s time to go
[Mr. Fallon at 7:39 p.m.]: And she will never do shots with me
and I caught her 2 times tonight doing shots with other guys
I’ve sat her down 2 times and she keeps taking off
[¶7] After the text message exchange, Mr. Fallon left the banquet room and confronted
Ms. Black at the lobby bar. The bartender testified Mr. Fallon “slammed his bottle on the
bar, told [Ms. Black] he was done, he was leaving.” She further testified the female
attendee made a comment for Mr. Fallon to come have a drink with them, and Mr. Fallon
responded, “shut the f*** up, b****; I don’t even know you.”
[¶8] At 7:43 p.m., Mr. Fallon exited the hotel and based on the Hilton surveillance video,
he moved Ms. Black’s vehicle closer to the exit near the banquet room. He re-entered the
hotel through the main entrance and walked by the lobby bar. His demeanor caught the
attention of the bartender and another bar patron. The bartender left the bar and followed
Mr. Fallon toward the banquet room.
[¶9] At 7:45 p.m., Mr. Fallon exited the banquet room with Ms. Black. The bartender
testified, Mr. Fallon was angry and “had [Ms. Black] by the arm” when they left. She
stated “[Ms. Black] was running beside [Mr. Fallon] almost” and “he was stomping out of
[the banquet room]” holding her by the arm “like with a kid when they don’t want to leave.”
[¶10] Based on a review of the Hilton surveillance video, Mr. Fallon and Ms. Black exited
the Hilton from the side door by the banquet room and walked toward the passenger side
of the Nissan Armada. The video does not show whether Ms. Black got into the Nissan,
but it does show Mr. Fallon walked around the front of the Nissan from the passenger side
2
to the driver side, without Ms. Black. The lead investigator, Kevin Jividen with the Natrona
County Sheriff’s Office, testified the surveillance video showed “the Nissan Armada
back[ed] up at a very quick pace and . . . pull[ed] away very speedily.” Approximately
three minutes later, Mr. Fallon called Ms. Black’s daughter. Ms. Black’s daughter testified
Mr. Fallon stated he got into an argument with Ms. Black and she “got[] out of the vehicle
. . . and had taken off” without her phone and wallet.
[¶11] Surveillance video from Racks Gentlemen’s Club showed Mr. Fallon walked into
the establishment and paid a cover charge approximately ten minutes after leaving the
Hilton, at 8:00 p.m. Around this same time, Ms. Black’s daughter called the Casper Public
Safety Communication Center for a welfare check on Ms. Black. Through a text message,
Ms. Black’s daughter notified Mr. Fallon she called law enforcement. The following text
message exchange occurred between Ms. Black’s daughter and Mr. Fallon from 8:11 p.m.
to 8:23 p.m.:
[Ms. Black’s daughter at 8:11 p.m.]: I called the cops and
they’re gonna send someone out to find [Ms. Black] and
probably stick her in the drunk tank.
[Mr. Fallon at 8:18 p.m.]: What? Are you serious
[Ms. Black’s daughter at 8:19 p.m.] Yeah cause it’s supposed
to snow and I don’t want her to freeze or get hurt
[Mr. Fallon at 8:19 p.m.]: I’ll go back and find her
[Ms. Black’s daughter at 8:19 p.m.]: Well if you’ve been
drinking then I don’t recommend you getting pulled over.
[Mr. Fallon at 8:20 p.m.]: I’ll take the risk
[Ms. Black’s daughter at 8:20 p.m.]: Be careful
[Mr. Fallon at 8:20 p.m.]: I will
[Ms. Black’s daughter at 8:21 p.m.]: Okay let me know if you
find her
[Mr. Fallon at 8:23 p.m.]: Ok
[¶12] Mr. Fallon left Rack’s Gentlemen’s Club at 8:21 p.m. At 8:25 p.m., the traffic
camera at the US 20-26 Bypass and Interstate 25 interchange captured a pedestrian,
believed to be Ms. Black, walking on the east side of the interstate. At 8:31 p.m., Mr.
3
Fallon attempted to make several outgoing phone calls to Ms. Black’s daughter. One call
went through, and Mr. Fallon had a conversation with Ms. Black’s daughter that lasted
approximately one minute and sixteen seconds. Ms. Black’s daughter testified Mr. Fallon
stated “I just hit your mom. I just hit your mom. You need to get here.” She stated Mr.
Fallon “sounded very freaked out and serious.”
[¶13] At 8:36 p.m., an eyewitness called dispatch and reported seeing a silver Nissan
Armada with a broken passenger taillight pulled over to the side of the road at the bypass
and Interstate 25 interchange. He testified he drove past the vehicle and witnessed a man—
later identified as Mr. Fallon—running off in the field. The eyewitness thought Mr. Fallon
hit an animal, so he turned around to help. The eyewitness pulled behind the vehicle,
observed Mr. Fallon dragging a woman toward the Nissan, and throwing her into the
vehicle. He noticed the woman’s legs sticking out of the vehicle with no movement, and
Mr. Fallon shutting her legs in the door. The eyewitness asked Mr. Fallon if he needed
help, but Mr. Fallon waved him off and drove away “like he was trying to get out of there.”
[¶14] The eyewitness noticed personal items on the ground, so he followed Mr. Fallon to
the Hilton parking lot. He testified Mr. Fallon drove normally and did not swerve. He
further stated he heard Mr. Fallon yelling when their vehicles passed each other in the
parking lot. The eyewitness requested dispatch to send a police officer to the Hilton
because the Nissan he had been following, containing the motionless passenger, was
parked on the north side of the parking lot facing the event center. While on the phone
with dispatch, the eyewitness saw Mr. Fallon get out of the driver’s side of the vehicle,
walk over to the passenger’s side, and then return to the driver’s side of the vehicle a couple
of times.
[¶15] At 8:42 p.m., Nicholas Moore, a police officer employed by the City of Casper,
arrived at the Hilton. The eyewitness testified Mr. Fallon left the vehicle and took off
running when law enforcement arrived. Around this same time, at 8:46 p.m., Ms. Black’s
daughter called Mr. Fallon. She asked where she needed to go, and he informed her to go
to the Hilton, but that he had left.
[¶16] Officer Moore found the Nissan on the north side of the Hilton parking lot and when
he walked up to the Nissan, he saw Ms. Black slumped over and unresponsive in the
passenger side of the vehicle. Ms. Black was not wearing a shirt, had bruising on her back,
and did not appear to be alert. Ms. Black was not breathing, so Officer Moore and his
partner performed cardiopulmonary resuscitation. At 8:57 p.m., an ambulance transported
Ms. Black to the emergency room, and at 9:27 p.m., less than two hours after leaving the
party, she was pronounced dead.
[¶17] That evening officers went to the accident scene, where they observed a debris field
comprised of the taillights of a vehicle, vehicle tracks, items of clothing, female-style
shoes, sunglasses, one sock, blood droplets, and a 45-foot drag mark in the dirt. One piece
4
of clothing found near the drag marks was a shirt inside a jacket. The jacket was
forensically examined and tested positive for human blood. The deoxyribonucleic acid
(“DNA”) profile obtained from the jacket tested consistent with Ms. Black’s DNA. The
sunglasses were also forensically tested and revealed a DNA profile consistent with Mr.
Fallon’s DNA.
[¶18] Jason Sawdon, a Wyoming Highway Patrol State Trooper certified in accident
reconstruction, testified the evidence indicated Mr. Fallon hit Ms. Black with the Nissan in
the emergency lane, approximately two feet from the dirt side of the roadway. Trooper
Sawdon found tire marks at the accident scene, which matched the Nissan’s tire tread. He
testified the tire tracks showed Mr. Fallon drove the Nissan in reverse when he struck Ms.
Black. He opined the Nissan was traveling in reverse at “38 to 42 miles an hour at impact.”
He concluded the distance the Nissan would have covered to accelerate from 0 to 38 or
0 to 42 miles an hour is “136 feet or 167 feet, respectively.” Trooper Sawdon testified the
evidence indicated the Nissan’s brake light was not active at the time of impact and there
was no evidence of brake marks at the scene.
[¶19] Trooper Sawdon further observed a clothing pattern transfer, which occurs when
there is an impact or contact between two things. He opined for a clothing pattern transfer
to occur the impact must “be pretty forceful and short in duration.” During his
investigation, he compared the embroidery pattern on the back pocket of Ms. Black’s jeans
to the pattern transferred to the back bumper of the Nissan. He found the clothing pattern
on the rear passenger side bumper matched the clothing pattern on the back pocket of Ms.
Black’s jeans. Trooper Sawdon opined Mr. Fallon launched Ms. Black approximately 76
feet when he struck her with the vehicle.
[¶20] Thomas Bennett, a physician and forensic pathologist, performed an autopsy on Ms.
Black. He opined Ms. Black’s cause of death was “the blunt traumatic injuries, with the
internal blood loss, exsanguination, due to being struck as a pedestrian by a motor vehicle.”
He opined the injuries Ms. Black sustained “went from . . . bruises and abrasions of her
back to much more significantly the internal injuries where she fractured . . . ribs, 2 through
9, on the right side of her spine and then tore her aorta . . . where she bled out massively.”
He further opined Ms. Black’s injuries indicated she was struck from behind with the
primary impact to her back.
[¶21] Two days after Mr. Fallon struck Ms. Black, on March 2, 2020, law enforcement
located him at a coworker’s home. The coworker testified Mr. Fallon showed up to his
home around midnight the night of the party and stated he got into an argument with Ms.
Black. Mr. Fallon stayed at the coworker’s residence until law enforcement arrived. He
was taken into custody and arrived at the Natrona County Sheriff’s Office wearing the
same clothing he wore to the party.
[¶22] The State charged Mr. Fallon with two felonies: Count 1, second-degree murder;
5
and Count 2, aggravated assault and battery. It further sought a habitual criminal
sentencing enhancement of life under Wyoming Statute § 6-10-201(b)(ii). A six-day jury
trial was held beginning on March 17, 2021.
[¶23] During the trial, the district court provided the parties with draft jury instructions on
the lesser-included offense of voluntary manslaughter. The district court inquired into the
parties’ positions on whether to give the lesser-included offense instructions. The State
requested the jury instructions and Mr. Fallon objected. Mr. Fallon’s counsel argued the
evidence did not support giving the lesser-included offense instructions because there was
no evidence for the jury to infer Mr. Fallon acted upon a sudden heat of passion. Over Mr.
Fallon’s objection, the district court granted the State’s request and held the circumstances
and manner under which Mr. Fallon and Ms. Black left the party, and the manner in which
the collision occurred, when viewed in favor of the State, supported giving the lesser-
included offense instructions.
[¶24] The jury acquitted Mr. Fallon of second-degree murder and found him guilty of the
lesser-included offense of voluntary manslaughter. It also found Mr. Fallon guilty of
Count 2, aggravated assault and battery. During the habitual criminal portion of the trial,
the jury found Mr. Fallon qualified for the sentencing enhancement. The district court
sentenced Mr. Fallon to life sentences on the voluntary manslaughter conviction and the
aggravated assault conviction, both to run concurrently. Mr. Fallon timely appealed.
STANDARD OF REVIEW
[¶25] When the State requests a lesser-included offense instruction and the defendant
objects, the district court’s decision is subject to de novo review. See generally Jacobs v.
State, 2021 WY 104, ¶ 10, 495 P.3d 303, 308 (Wyo. 2021) (reviewing the district court’s
decision de novo when the defendant requested a lesser-included offense instruction); State
v. Keffer, 860 P.2d 1118, 1137–40 (Wyo. 1993) (reviewing the district court’s denial of the
State’s request for a lesser-included offense instruction de novo). “A crime is a lesser-
included offense if it meets the statutory elements test, meaning that its elements ‘are a
subset of the elements of the charged offense.’” Jacobs, ¶ 11, 495 P.3d at 308 (quoting
Nickels v. State, 2015 WY 85, ¶ 14, 351 P.3d 288, 291 (Wyo. 2015)). First, a court must
determine if an offense meets the statutory elements test, and then it must “determine
whether the evidence supports giving a lesser-included offense instruction.” Id. The
quantum of evidence required to support a jury instruction on a lesser-included offense is
minimal. Id. In reviewing whether there is minimal evidence to support the district court’s
decision to give a lesser-included offense instruction, we view the evidence in the light
most favorable to the party requesting the instruction. Warren v. State, 835 P.2d 304, 330–
31 (Wyo. 1992) (Urbigkit, C.J., dissenting) (“When the trial court refuses to give an
instruction on the lesser included offense, the appellate court must view the evidence
supporting the lesser included offense in the light most favorable to the party requesting
the instruction.”); Dean v. State, 2003 WY 128, ¶ 13, 77 P.3d 692, 697 (Wyo. 2003)
6
(holding when the defendant requests a lesser-included offense instruction the court
“should view the evidence in the light most favorable to the accused” when “deciding
whether to give a lesser-included offense instruction”); Keffer, 860 P.2d at 1134–40
(finding the defendant and State are equally entitled to request a lesser-included offense
instruction).
[¶26] “When reviewing a claim that the evidence was insufficient to support a jury’s
verdict in a criminal trial, we decide whether the evidence could reasonably support the
jury’s verdict.” Neidlinger v. State, 2021 WY 39, ¶ 22, 482 P.3d 337, 344 (Wyo. 2021).
“We do not consider ‘whether or not the evidence was sufficient to establish guilt beyond
a reasonable doubt, but instead whether or not the evidence could reasonably support such
a finding by the factfinder.’” Cotney v. State, 2022 WY 17, ¶ 9, 503 P.3d 58, 63 (Wyo.
2022) (quoting Mraz v. State, 2016 WY 85, ¶ 19, 378 P.3d 280, 286 (Wyo. 2016)).
This Court examines the evidence in the light most favorable
to the State. We accept all evidence favorable to the State as
true and give the State’s evidence every favorable inference
which can reasonably and fairly be drawn from it. We also
disregard any evidence favorable to the appellant that conflicts
with the State’s evidence.
Id. (quoting Birch v. State, 2018 WY 73, ¶ 25, 421 P.3d 528, 536 (Wyo. 2018)). “We will
not reweigh the evidence nor will we re-examine the credibility of the witnesses.” Brown
v. State, 2019 WY 102, ¶ 27, 450 P.3d 208, 214 (Wyo. 2019). “We do not substitute our
judgment for that of the jury; rather” “we defer to the jury as the fact-finder and assume
they believed only the evidence adverse to the defendant since they found the defendant
guilty beyond a reasonable doubt.” Neidlinger, 2021 WY 39, ¶ 22, 482 P.3d at 344 (quoting
Gore v. State, 2019 WY 110, ¶ 9, 450 P.3d 1251, 1253 (Wyo. 2019)); Brown, 2019 WY
102, ¶ 27, 450 P.3d at 214 (quoting Oldman v. State, 2015 WY 121, ¶ 5, 359 P.3d 964, 966
(Wyo. 2015).
DISCUSSION
[¶27] The jury acquitted Mr. Fallon on the charge of murder in the second degree and
convicted him of the lesser included offense of voluntary manslaughter. Mr. Fallon
challenges the district court’s decision to instruct the jury on voluntary manslaughter and
contends there was not the minimal evidentiary support necessary to show he acted in a
sudden heat of passion. He further argues the evidence is insufficient to support the jury’s
verdict.
[¶28] Second-degree murder is the killing of any human being “purposely and
maliciously, but without premeditation.” Wyo. Stat. Ann. § 6-2-104(a) (LexisNexis 2019).
Voluntary manslaughter is the unlawful killing of any human being without malice, express
7
or implied, voluntarily, upon a sudden heat of passion. Wyo. Stat. Ann. § 6-2-105(a)(i)
(LexisNexis 2019). A defendant charged with second-degree murder may be found guilty
of the lesser-included offense of voluntary manslaughter. See W.R.Cr.P. 31(c) (LexisNexis
2021) (“The defendant may be found guilty of an offense necessarily included in the
offense charged.”); Keffer, 860 P.2d at 1139 (“We hold, therefore, that the crime of
voluntary manslaughter is a lesser included offense of the crime of second degree
murder.”). The district court should instruct the jury on the lesser-included offense of
voluntary manslaughter “if there are in dispute factual issues that would permit a jury
rationally to find the defendant guilty of [voluntary manslaughter] and acquit the defendant
of [second-degree murder].” Jacobs, 2021 WY 104, ¶ 11, 495 P.3d at 308; Thomas v. State,
2003 WY 53, ¶ 13, 67 P.3d 1199, 1202–03 (Wyo. 2003) (“The failure to give a lesser-
included offense instruction when such an offense exists and the evidence presented would
support conviction of that offense constitutes reversible error.”); Mueller v. State, 2001
WY 134, ¶ 9, 36 P.3d 1151, 1155–56 (Wyo. 2001) (“[A] trial court may, and sometimes
should, give [a lesser-included offense] instruction without request from either party.”).
[¶29] To reduce second-degree murder to voluntary manslaughter, there must be some
evidence the defendant killed his victim, without malice, in the sudden heat of passion
engendered by an adequate provocation from the victim. See generally Jacobs, 2021 WY
104, ¶¶ 13–14, 495 P.3d at 308–09 (“[V]oluntary manslaughter is an intentional killing in
the heat of passion as a result of severe provocation.”); Schmuck v. State, 2017 WY 140,
¶¶ 29–30, 406 P.3d 286, 296–97 (Wyo. 2017) (discussing the malice element for murder
is mutually exclusive to sudden heat of passion in voluntary manslaughter); 40 C.J.S.
Homicide § 112 (August 2022 Update) (“[A]n intentional homicide may be reduced from
murder to manslaughter only where it was committed in a sudden heat of passion caused
by adequate provocation.”).
“Heat of passion” means such passion as naturally would be
aroused in the mind of an ordinarily reasonable person in the
same or similar circumstances as those in question which
would cause him to act rashly, without reflection or
deliberation, and from passion rather than from judgment. The
heat of passion must be aroused suddenly, and the act resulting
in death must occur while the defendant was acting under the
direct and immediate influence of such heat of passion, and
before sufficient time has elapsed to permit the heat of passion
to cool.
Jacobs, ¶ 13, 495 P.3d at 308–09 (quoting Farrow v. State, 2019 WY 30, ¶ 35, 437 P.3d
809, 820 (Wyo. 2019)).
[¶30] We previously recognized it is reversible error when the factual dispute at trial
centers on the defendant’s intent and the district court denies the State’s request to instruct
8
the jury on the lesser-included offense, despite minimal evidence supporting the
instruction. Keffer, 860 P.2d at 1139–40. In Keffer, we held there were disputed issues of
fact surrounding the defendant’s intent which would permit a jury to rationally find the
defendant guilty of voluntary manslaughter and acquit on the second-degree murder
charge. Id. We explained:
[T]he central factual dispute at Keffer’s trial was her intent.
She admitted firing the gun at Jackson and killing him. If the
jury accepted all of the State’s evidence, the killing was
committed with malice. If the jury accepted Keffer’s evidence,
she acted in self defense, and the homicide was justifiable. A
middle ground, however, is easily seen. If the jury questioned
the credibility of the co-employee’s testimony, which was
strongly attacked by the defense during cross-examination,
then the presence or absence of malice became an open
question. Furthermore, the jury heard Keffer testify that she
was “scared” as she withdrew the gun from a bedroom dresser.
Keffer’s husband, also testified that Keffer was afraid. The
jury was entitled to weigh such fear to determine if it was
of “such a character or degree as to render the accused
incapable of cool reflection” thus reducing a second degree
homicide to manslaughter.
Id. at 1139 (citations omitted) (emphasis added).
[¶31] The central factual dispute at trial was Mr. Fallon’s intent. Mr. Fallon did not deny
hitting Ms. Black with the vehicle. Instead, he claimed it was a tragic accident. Mr.
Fallon’s trial counsel argued the jury should acquit Mr. Fallon on second-degree murder
and voluntary manslaughter because there was no evidence of purpose, malice,
recklessness that rose to a level of indifference to Ms. Black’s life, or sudden heat of
passion. The State argued the evidence showed Mr. Fallon was guilty of second-degree
murder because he acted maliciously, and his actions were indicative of an extreme
indifference to the value of human life. It argued Mr. Fallon put a car in reverse and
accelerated at a high rate of speed for 137 feet knowing Ms. Black was behind the vehicle,
which is not indicative of a sudden heat of passion. The State further argued Mr. Fallon
did not act upon a sudden heat of passion because 45 minutes elapsed before he
intentionally hit Ms. Black with his vehicle.
[¶32] The record supports the jury’s verdict of voluntary manslaughter, which is a middle
ground between Mr. Fallon’s theory of the case and the State’s theory of the case. “[T]he
hallmark of heat of passion [or voluntary manslaughter] is taking action upon impulse
without reflection.” 40 C.J.S. Homicide § 112. “The ‘sudden heat of passion’ contemplated
by our voluntary manslaughter statute is descriptive of just such a state of mind, and it may
9
occur from any emotional excitement of such intensity that it temporarily obscures reason,
or leaves the mind bereft of reason.” Keffer, 860 P.2d at 1139 (quoting State v. Helton, 276
P.2d 434, 442 (Wyo. 1954)). “The actor, to be in the heat of passion, must be experiencing
an intense or vehement emotional excitement of the kind that would prompt violent and
aggressive action.” 40 C.J.S. Homicide § 112. The emotional excitement involved in the
crime of voluntary manslaughter is generally rage, anger or resentment produced by a
provocation from the victim. 2 Wayne R. LaFave, Substantive Criminal Law § 15.2(a) (3d
ed. 2021); Cf. 2 Jens David Ohlin, Wharton’s Criminal Law § 22:4 (16th ed. Sept. 2022
Update) (“Passion is not limited to anger, rage, or resentment. It may include fear, terror,
or, according to some cases, ‘excitement’ or ‘nervousness.’”).
[¶33] “[I]n all cases, civil or criminal, turning upon the state of an individual’s mind, direct
evidence may be rare; usually the trier of facts is required to draw inferences of the state
of mind at issue from surrounding acts, utterances, writings, or other indicia.” Bruce v.
State, 2015 WY 46, ¶ 66, 346 P.3d 909, 929 (Wyo. 2015) (quoting Benjamin v. State, 2011
WY 147, ¶ 46, 264 P.3d 1, 12 (Wyo. 2011)). Here, the surrounding facts and circumstances
support an inference Mr. Fallon killed Ms. Black voluntarily in a heat of passion. During
the comedy show, Ms. Black was loud, disruptive, and spilled her drink on multiple
occasions. The individuals sitting at Mr. Fallon’s table left because they felt uncomfortable
and embarrassed and wanted to disassociate from Mr. Fallon and Ms. Black. Around this
same time, the Vice President of Operations at Mr. Fallon’s employment, approached Mr.
Fallon and indicated Ms. Black was being disruptive and his table needed to settle down.
[¶34] After the interaction, Ms. Black was still disruptive, so Mr. Fallon grabbed her by
the arm and screamed “shut the f*** up.” Witnesses testified Mr. Fallon looked upset and
that his demeanor through the night suggested he was embarrassed, jealous, and upset by
Ms. Black’s actions. Shortly after Mr. Fallon screamed at Ms. Black, a female attendee
encountered her in the bathroom. Ms. Black indicated she was in trouble and afraid to get
in a car with Mr. Fallon. Around this same time, Mr. Fallon text messaged Ms. Black’s
daughter that Ms. Black kept taking off and he was sitting all by himself. He further stated
he caught Ms. Black doing shots with other guys, but she would not do shots with him.
[¶35] Within seconds of sending this text message, Mr. Fallon confronted Ms. Black
sitting at the bar with the female attendee. He slammed his beer bottle down, leaned in
closely to Ms. Black’s face, and stated he was done and leaving. The surveillance video
showed Mr. Fallon walked away then stopped and pointed at Ms. Black and the female
attendee. The bartender testified Mr. Fallon stated to the female attendee, “shut the f***
up, b****; I don’t even know you.” Mr. Fallon’s demeanor garnered the attention of other
people around him, including the bartender. His behavior prompted the bartender to follow
him back to the banquet room.
[¶36] When Mr. Fallon left the Hilton, he had Ms. Black by her arm and was pulling her
out the door. The investigating officer testified it appeared Mr. Fallon was walking at a
10
fast enough pace that Ms. Black had difficulty keeping up. The bartender testified Mr.
Fallon stomped out of the banquet room and was angry. She stated Mr. Fallon had Ms.
Black “by the arm” as “she was running to keep up.”
[¶37] Approximately four minutes after Mr. Fallon and Ms. Black left, Mr. Fallon called
Ms. Black’s daughter. He told her that he got into an argument with Ms. Black, and she
left the vehicle without her phone and wallet. Mr. Fallon said, “he was so done and that he
was going to go do his own thing for a bit and then would be back home that night to pick
up his stuff.” At 8:11 p.m., Ms. Black’s daughter sent a message to Mr. Fallon stating she
called law enforcement to find Ms. Black. Mr. Fallon responded, “are you serious,” but
also messaged he would go find her. Ms. Black’s daughter testified she interpreted Mr.
Fallon’s response as “surprised or maybe angry.” Less than forty-five minutes after last
seeing Ms. Black, he struck her with a vehicle.
[¶38] Mr. Fallon argues “[w]hile [he] could have been . . . in a heat of passion earlier in
the evening, he had a cooling off period and there was no evidence to suggest . . . that he
was acting in the sudden heat of passion” “when he struck Ms. Black.” He contends “[h]is
absence from Ms. Black and break from their argument was at least thirty minutes” and
therefore is not indicative he acted in a heat of passion. See 40 C.J.S. Homicide § 115 (Aug.
2022 Update) (“It has been held that where the alleged provocation is followed by at least
a few minutes during which the defendant and the victim are separated, and then the
defendant seeks out the victim, a charge of voluntary manslaughter based on provocation
is not warranted.”).
[¶39] If the killing occurred “before sufficient time had elapsed for the accused’s temper
to cool, the killing is manslaughter.” 40 Am. Jur. 2d Homicide § 55 (Aug. 2022 Update).
The question before us then is whether there is sufficient evidence to reasonably support
Mr. Fallon’s suspension of reason continued from the time of Ms. Black’s provocation
until he hit her with her vehicle. See 40 Am. Jur. 2d Homicide § 55. There is no precise
time frame to indicate a sufficient time for a temper to cool. 40 C.J.S. Homicide § 115.
“What constitutes a reasonable cooling time in a particular case depends upon the nature
of the provocation and the circumstances surrounding its occurrence—a matter to be
determined by the jury as a question of fact.” 2 Wayne R. LaFave, Substantiative Criminal
Law § 15.2(d) (3d ed. Dec. 2021 Update); see also State v. Flory, 276 P. 458, 464 (Wyo.
1929) (“We think, however, that the weight of authority is that, in cases like that at bar, the
question of cooling time depends on the circumstances and is ordinarily one for the jury.”).
We analyze the surrounding facts and circumstances to determine whether the evidence
reasonably supports the jury’s finding. Bruce, 2015 WY 46, ¶¶ 63–68, 346 P.3d at 929–30
(reviewing the evidence before and after the killing—though the original provocation took
place more than eight hours before—to determine if there is sufficient evidence to support
the jury’s guilty verdict of the lesser-included offense of voluntary manslaughter).
[¶40] The evidence leading up to Ms. Black’s death, and Mr. Fallon’s actions after the
11
assault, reasonably support a sufficient time had not elapsed for Mr. Fallon’s temper to
cool and reason to resume. The nature of the wounds suffered by the victim and evidence
the defendant was upset with the victim can provide sufficient evidence to support an
inference the defendant acted with a sudden heat of passion. Robinson v. State, 11 P.3d
361, 368–69 (Wyo. 2000). Mr. Fallon accelerated the vehicle in reverse on dry roads for
136 to 167 feet and reached a speed of 38 to 42 miles per hour when he struck Ms. Black
with the vehicle. The physical evidence indicated Mr. Fallon never braked before hitting
Ms. Black. The amount of force and speed from the vehicle launched Ms. Black
approximately 76 feet.
[¶41] Ms. Black’s cause of death was “the blunt traumatic injuries” from being struck with
significant force by a vehicle. When Mr. Fallon struck Ms. Black with the Nissan, she was
“facing away from the [vehicle and] [t]he primary area of impact was to her right back.”
The autopsy revealed she was hit with considerable force because her clothing left an
abrasion pattern, meaning “the clothing [was] literally forced into the skin surface” on the
area of impact—her lower right back. The impact caused Ms. Black to lose three quarts of
blood into her chest cavity and bleed out internally. Prior to the crash, Ms. Black had a
healthy elastic aorta, and as a result of the crash, her aorta was “torn completely in half,”
with the edges separating about an inch. It was this damage to the aorta and the extensive
internal bleeding that ultimately led to her death. The amount of force from the vehicle
broke eight of twelve ribs on her right side. This caused tearing in the lining of the inside
of her chest wall and damage to her lungs. The forensic pathologist testified the amount
of force necessary to fracture this many ribs is roughly equivalent to falling five stories and
landing flat on your back.
[¶42] After striking Ms. Black with the vehicle, Mr. Fallon called Ms. Black’s daughter
and stated “I just hit your mom. I just hit your mom. You need to get here.” Ms. Black’s
daughter testified Mr. Fallon “sounded very freaked out and serious.” An eyewitness called
911 after observing the Nissan pulled over with no flashing lights, the taillights damaged,
and someone running off into the field. He observed Mr. Fallon drag a female to a silver
Nissan Armada, throw her into the vehicle, and shut the door on the female’s legs. The
length of the drag marks at the accident scene was 45 feet. The eyewitness testified Mr.
Fallon declined his offer of help and instead left the scene of the accident. He further
observed Mr. Fallon yelling when their vehicles passed each other in the parking lot. When
law enforcement arrived, Mr. Fallon ran. Several hours later, he showed up to a coworker’s
home. The coworker testified he asked Mr. Fallon why he came to his home, and Mr.
Fallon responded that he and Ms. Black got into an argument.
[¶43] From this evidence, the jury could reasonably conclude Mr. Fallon acted without
malice, and in a sudden heat of passion when he killed Ms. Black. The surrounding facts
and circumstances, and reasonable inferences drawn from them, sufficiently support Mr.
Fallon was acting in a heat of passion produced by his perception of Ms. Black’s actions
when he voluntarily struck her with her own vehicle. The evidence and reasonable
12
inferences further support sufficient time had not lapsed for Mr. Fallon’s passion to cool
and his reason to resume. We find there is sufficient evidence to support the jury’s verdict,
which also meets the minimal evidence necessary to instruct the jury on the lesser-included
offense of voluntary manslaughter. Therefore, we find no further analysis is needed.
CONCLUSION
[¶44] We find the record supports the minimal evidence necessary to instruct the jury on
the lesser-included offense of voluntary manslaughter. We find no error in the district
court’s decision. We further find the evidence was sufficient to support the jury’s guilty
verdict on the lesser-included offense of voluntary manslaughter. We affirm on both issues
raised by Mr. Fallon.
13