John Gerald Howitt v. The State of Wyoming , 2022 WY 152 ( 2022 )

THE SUPREME COURT, STATE OF WYOMING
2022 WY 152OCTOBER TERM, A.D. 2022
December 1, 2022
JOHN GERALD HOWITT,
Appellant
(Defendant),
v. S-21-0284
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Albany County
The Honorable Tori R.A. Kricken, Judge
Representing Appellant:
Office of Public Defender: Diane M. Lozano, State Public Defender; Kirk A.
Morgan, Chief Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee:
Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua
C. Eames*, Senior Assistant Attorney General; Timothy P. Zintak*, Senior
Assistant Attorney General. Argument by Mr. Zintak.
* An Order Allowing Withdrawal of Counsel was entered on August 1, 2022.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
FENN, J., delivers the opinion of the Court; KAUTZ, J., files a dissenting opinion in
which FOX, C.J., joins.
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] A jury convicted John Howitt of aggravated assault and battery after he shot a man
at a campground. Mr. Howitt argues the trial court erred when it refused to give his
proposed castle doctrine instructions. We reverse and remand.
ISSUE
[¶2] We rephrase the issue as follows:
I. Did the district court commit legal error when it
removed from the jury’s consideration the factual
question of whether Mr. Pickering was “in the process”
of unlawfully and forcefully entering Mr. Howitt’s
“home” or “habitation”?
FACTS
[¶3] On July 24, 2020, John Howitt was camping at the Willow Creek Campground near
Centennial, Wyoming, where he had arrived approximately five days earlier. There were
several containers of camping gear in and around his vehicle, and Mr. Howitt set up his
campsite so he could sleep in his vehicle by clearing space on the passenger side and
folding down the rear seat.
[¶4] That same day, Drew Pickering, a resident of Boulder, Colorado, decided to go
camping around Centennial, Wyoming. Mr. Pickering left Boulder around 5:00 p.m. He
arrived at the Willow Creek Campground between 7:30 p.m. and 7:45 p.m. He drove
through the campground to see if there were any available campsites. He then drove to the
nearby Brooklyn Lake Campground to see which campsites were available there but
returned to Willow Creek when he discovered the Brooklyn Lake Campground was more
crowded. Mr. Pickering arrived back at the Willow Creek Campground around 8:30 p.m.
He parked his vehicle near the entrance of the campground and took his dog for a walk
before making his final decision on where to camp.
[¶5] Mr. Pickering sent numerous text messages as he walked around the campground.
Some of these messages indicated Mr. Pickering was lost, stumbling, and did not know
where he had left his vehicle. The last message Mr. Pickering sent was at 9:44 p.m. After
sending this message, Mr. Pickering heard a sound and looked around to figure out what it
was. He felt something punch his left hip. He then heard a man say: “Yep, you’ve been
shot,” and “I thought I told you not to come back here again.” After realizing he had been
shot, Mr. Pickering sat down on the ground.
1
[¶6] Cameron Knutson, Adam Geoffroy, and Treyton Johnson were also staying at the
Willow Creek Campground on July 24, 2020. They had been hiking in the woods behind
their campsite just after dark when they heard a gunshot. About ten minutes later, they
decided to return to their campsite. Shortly after they returned, they heard someone saying
“hello” repeatedly from the campsite next to theirs. Mr. Howitt approached them and asked
if they had been able to get through to 911. They asked Mr. Howitt if this had anything to
do with the gunshot, and he informed them he had just shot someone.
[¶7] Mr. Knutson grabbed his medical kit, and the three men went to Mr. Howitt’s
campsite. They saw Mr. Pickering lying on the ground. The men estimated Mr. Pickering
was between five and fifteen feet away from Mr. Howitt’s vehicle when they first arrived
on the scene.
[¶8] As the three men rendered aid to Mr. Pickering, Mr. Howitt became increasingly
angry with Mr. Pickering and started making comments like: “I’ll bet you’ll never drink
again f**ker,” “You deserved what you got,” “You’re lucky I’m a good shot,” “I could’ve
killed you,” and “I told you not to mess around with me.” Mr. Howitt tried to convince the
three men that Mr. Pickering had been threatening him and was under the influence of
drugs or alcohol. Mr. Pickering seemed to be confused, and he kept asking the three men
what had happened, who they were, and where his dog was. Mr. Pickering kept asking Mr.
Howitt questions like: “Why are you so mad at me?” and “Why are you so angry?” Mr.
Howitt told the three men that Mr. Pickering was “messing with him” throughout the
evening. He told them Mr. Pickering had been knocking on the window of his vehicle
telling him that he was going to “beat the sh*t out of him.” Mr. Howitt also said he had
threatened to shoot Mr. Pickering, and then he did.
[¶9] While the three men were rendering first aid, Mr. Howitt started taking videos of
Mr. Pickering with his phone; he later told law enforcement he took these videos hoping
to catch Mr. Pickering saying something incriminating. In these videos, Mr. Howitt
repeatedly asked Mr. Pickering how much alcohol he had consumed and whether he was
under the influence of any illicit drugs. Mr. Howitt did not ask Mr. Pickering any questions
about the incident itself. When Mr. Pickering started to tell his version of events to Mr.
Geoffroy, Mr. Howitt ended the recording. After multiple unsuccessful attempts to call
911, Mr. Geoffroy stayed with Mr. Pickering to render first aid while Mr. Knutson and Mr.
Johnson drove into Centennial to call 911.
[¶10] Trooper Ethan Smith was the first law enforcement officer to arrive at the Willow
Creek Campground. When he arrived on the scene, Trooper Smith saw Mr. Pickering lying
on the ground, with one individual crouching about halfway down his body, and another
individual standing up by his head. He estimated Mr. Pickering was about ten-to-fifteen
feet away from the vehicle that was parked in the campsite. As he approached, he asked
who had shot Mr. Pickering. Mr. Howitt admitted he shot Mr. Pickering. Mr. Howitt
continued to ask Mr. Pickering how much alcohol he had consumed and if he had taken
2
any illicit drugs. Trooper Smith placed Mr. Howitt in handcuffs, and he then assisted Mr.
Geoffroy in rendering aid to Mr. Pickering.
[¶11] Emergency Medical Services (EMS) arrived on the scene shortly after Trooper
Smith had placed Mr. Howitt in handcuffs. Mr. Pickering sustained a gunshot wound to
his left hip. He was taken by ambulance to the Centennial Volunteer Fire Department, and
he was then airlifted to the Medical Center of the Rockies in Loveland, Colorado. Mr.
Pickering’s blood was drawn at the hospital, and it showed he had a blood alcohol content
(BAC) of .2%. Mr. Pickering also tested positive for marijuana.
[¶12] Mr. Howitt gave multiple statements to law enforcement, both at the scene and at
the Albany County Sheriff’s Office. Mr. Howitt stated he saw a man walking his dog
around the campground earlier that night.1 The man was stumbling and staggering and
appeared to be intoxicated. He did not get a good look at this individual because it was
getting dark, and the individual was at a distance. However, he could tell the person was
wearing a blue shirt. He saw this person circle the campground many times. Mr. Howitt
did not think this guy “had a clue what was going on,” and he was “concerned” about his
intentions at that time.
[¶13] Mr. Howitt said he went to bed in his vehicle shortly after dark, wearing only his
underwear and socks. The doors to his vehicle were locked and the windows were rolled
up. His head was positioned behind the front passenger seat, and his feet were facing the
rear of the vehicle. About ten-to-fifteen minutes later, he saw a light bobbing up and down.
He felt someone repeatedly bump against or rock the front of his vehicle. Mr. Howitt yelled
at the person and asked him what he was doing. Mr. Howitt then heard footsteps in the
gravel, which indicated the person had moved away to the right of the vehicle. Mr. Howitt
stated he warned the individual numerous times not to come near him. The person yelled
something to the effect of: “I’ll come over there and slap the f**king sh*t out of you.” The
person then aggressively lunged at or advanced toward Mr. Howitt’s vehicle. Mr. Howitt
could hear the person pick up speed as he approached. Mr. Howitt estimated Mr. Pickering
was within feet of his vehicle. Mr. Howitt could not tell if Mr. Pickering was brandishing
a weapon because it was pitch black.
[¶14] Mr. Howitt indicated he feared for his life, so he retrieved his gun, opened the rear
passenger door, raised the gun above the doorframe, and shot downwards toward the man’s
legs. Mr. Howitt stated he did not intend to kill Mr. Pickering. After shooting Mr.
Pickering, Mr. Howitt attempted to call 911 multiple times, but he was unable to get
through. Mr. Howitt made his first attempted call to 911 at 9:48 p.m., and he made a final
attempt at 10:06 p.m.
1
In one of his statements, he claimed the man had been walking around the campground “all night.”
3
[¶15] The deputies asked Mr. Howitt if Mr. Pickering had entered or attempted to enter
his vehicle. Mr. Howitt stated Mr. Pickering had never touched the door handles or
windows, and the only time the man had touched the vehicle was when he bumped up
against it. However, he believed or envisioned the man would have tried to open the doors
or break a window to reach in and grab him if he had not acted to defend himself.
[¶16] Although he could not see the person, Mr. Howitt believed it was the intoxicated
man he saw earlier in the night walking around the campground. He could not see the
man’s face but could tell he was wearing a blue shirt. Mr. Howitt heard a thud after he
shot Mr. Pickering, and he did not hear any sounds indicative of Mr. Pickering attempting
to move from where he fell. Mr. Howitt got dressed, grabbed a flashlight, and shined the
light on Mr. Pickering. The only time Mr. Howitt saw Mr. Pickering in his campsite was
after he shined the light on him; he assumed Mr. Pickering was in his campsite when he
felt the vehicle rocking.
[¶17] A deputy inspected Mr. Howitt’s vehicle, which was very dirty on the outside, but
the deputy did not observe any handprints on the vehicle. He did see a small rub mark
above the driver’s side front fender, which was consistent with someone getting in and out
of the vehicle. He did not observe any smudge marks on the passenger side of the vehicle.
[¶18] The State charged Mr. Howitt with aggravated assault and battery in violation of
Wyoming Statute § 6-2-502. Mr. Howitt filed a motion to dismiss, asserting he had acted
in self-defense and was immune from prosecution under Wyoming Statute § 6-2-602(f).
The district court conducted an evidentiary hearing on the motion to dismiss as required by
State v. John, 2020 WY 46, 460 P.3d 1122 (Wyo. 2020). Following that hearing, the trial
court entered an order denying the motion to dismiss. The district court found Mr. Howitt
was not entitled to “self-defense immunity” because he “failed to make a prima facie
showing that Mr. Pickering was in the process of unlawfully and forcefully entering Mr.
Howitt’s habitation.”
[¶19] Mr. Howitt did not testify at the trial, but several witnesses testified about statements
Mr. Howitt made on the night of the incident. In addition, the videos of his statements to
law enforcement were played for the jury. Mr. Howitt argued he shot Mr. Pickering in
self-defense. He asked the court to give numerous jury instructions setting forth the law
on self-defense. The State objected to giving any self-defense instructions because Mr.
Howitt had not made a prima facie showing of self-defense. The district court found Mr.
Howitt made such a showing, and gave the general self-defense instruction,2 along with the
2
This instruction read:
The State must prove beyond a reasonable doubt that the
Defendant did not act in self-defense. Self-defense is a right that can be
exercised only when the person employing it has the right to do so at the
moment it is used. Whether he has that right depends on what is
4
definition of “serious bodily injury.” Additionally, it determined the jury should receive
instructions on determining who was the first aggressor, how an initial aggressor could
regain the right of self-defense, and the definition of reasonable force. Finally, the district
court instructed the jury that if it determined Mr. Pickering was the initial aggressor, Mr.
Howitt did not have a duty to retreat before using reasonable force against him.
[¶20] Mr. Howitt also asked the court to give two “castle doctrine” instructions. Proposed
instruction 7 read:
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.
Habitation means any structure which is designed or adapted
for overnight accommodations, including, but not limited to,
buildings, modular units, trailers and campers and tents, but
does not include the inmate housing area of a jail, state penal
institution, or other secure facility under contract with the
Department of Corrections to house inmates.
Home means any occupied residential dwelling place.
The State objected to this instruction, stating:
There has been absolutely no evidence in the State’s case or
defense’s case that indicates that there was any person who, by
force or attempt, was entering the home or habitation. I think
[the] Defendant’s statements alone say that he never felt him
pull on the door handle, never broke a window, but that the
Defendant envisioned that that could be a result of something.
The State also argued “there’s no authority interpreting the definition of habitation to
include vehicles and no authority supporting claims that a vehicle may be adapted for
overnight accommodation simply by choosing to sleep in it.”
reasonably necessary under all the circumstances.
To determine what is reasonably necessary you must determine
whether the Defendant reasonably perceived a threat of imminent death or
serious bodily harm under the circumstances. If the Defendant reasonably
and honestly believed that he was in imminent danger of death or serious
bodily harm and the force used was necessary to repel that danger, he may
have been entitled to self-defense. The perceived danger may have been
real, apparent, or later determined to be false.
5
[¶21] Mr. Howitt’s counsel argued the court should give the instruction:
I think the defense has shown that if the Defendant had not
discharged that firearm we have the -- Mr. Pickering making
his way towards the Defendant in an effort to gain entry and
make contact with the Defendant and therefore it meets the
requirement of attempts to enter another’s home or habitat
[sic]. Yes, the jury instruction that we just read doesn’t say
SUV, but it goes between a camper and a tent and somewhere
in between I think we can say a vehicle if it’s converted to a
place to sleep, the habitat [sic], it qualifies, so we ask the Court
to allow for that instruction.
The district court found it was not appropriate to give the proffered instruction:
I definitely agree there’s some argument to be made either way
regarding habitation and an SUV. This clearly was converted
into a sleeping arrangement for Mr. Howitt, there’s no debate
there, however, I agree with the State that neither -- none of the
evidence presented suggests that Mr. Pickering was unlawfully
entering or by force entering or attempting to enter the vehicle.
We have clear statements from Mr. Howitt that he never -- Mr.
Pickering never touched the door handle. He may have been --
Mr. Howitt may have anticipated that Mr. Pickering would do
that, but that’s not the standard here. There has to be an
attempt, and under the circumstances and the evidence that we
have, we do not even have an attempt to enter. So instruction
number 7 will not be given.
[¶22] Mr. Howitt also asked the court to give proposed instruction number 8, which read:
If the evidence shows that, one, Drew Pickering was in the
process of unlawfully and forcibly entering a home or
habitation; and, number two, John Howitt knew or had reason
to believe that an unlawful and forcible entry or an unlawful
forcible act was occurring, then you shall presume that the
Defendant honestly and reasonably believed that he was in
imminent danger of death or serious bodily injury and that
force was necessary to repel that danger.
The State objected to this instruction on the grounds that there was “no evidence that Drew
Pickering was in the process of unlawfully or forcibly entering a home or habitation.” Mr.
6
Howitt’s counsel made the same argument as he had for instruction number 7. The district
court found: “[I]nstruction number 8 will not be given because there is no evidence that
Mr. Pickering was in the process of unlawfully and forcibly entering a home or habitation.”
[¶23] The jury convicted Mr. Howitt of aggravated assault and battery. Using a special
verdict form, the jury unanimously found Mr. Howitt did not act in self-defense. The
district court sentenced Mr. Howitt to prison for not less than four nor more than eight
years. This appeal timely followed.
STANDARD OF REVIEW
[¶24] “The failure to give an offered instruction on the law related to a theory of defense
is a due process issue, which this Court reviews de novo.” Smith v. State, 2021 WY 28,
¶ 25, 480 P.3d 532, 538 (Wyo. 2021) (quoting Black v. State, 2020 WY 65, ¶ 22, 464 P.3d
574, 579 (Wyo. 2020)). “[T]he question of whether the court invaded the province of the
jury by making a factual determination” is a legal question that we also review de novo.
Widdison v. State, 2018 WY 18, ¶ 15, 410 P.3d 1205, 1211 (Wyo. 2018) (citing Weinstein
v. Beach, 2014 WY 167, ¶¶ 8–9, 340 P.3d 1013, 1016 (Wyo. 2014); K.C. v. State, 2011
WY 108, ¶ 7, 257 P.3d 23, 25–26 (Wyo. 2011)).
DISCUSSION
[¶25] Wyoming has long recognized the “castle doctrine” which holds “a person is not
required to retreat and may stand his ground and kill his assailant if he is assaulted, without
fault, in his own home.” Drennen v. State, 2013 WY 118, ¶ 24, 311 P.3d 116, 125 (Wyo.
2013) (citing Palmer v. State, 59 P. 793 (Wyo. 1900))3 “In Wyoming, a person has a greater
right to use self-defense within one’s ‘home or habitation.’” Knospler v. State, 2016 WY
1, ¶ 23, 366 P.3d 479, 485 (Wyo. 2016) (citing Wyo. Stat. Ann. § 6-2-602). “Home” and
“habitation” are defined as:
(i) “Habitation” means any structure which is designed or
adapted for overnight accommodation, including, but not
limited to, buildings, modular units, trailers, campers and tents,
but does not include the inmate housing area of a jail, state
penal institution or other secure facility under contract with the
department of corrections to house inmates;
(ii) “Home” means any occupied residential dwelling place
other than the inmate housing area of a jail, state penal
3
This principle was based on the idea that “a man’s home is his castle and he has the right to defend his
family and himself therein.” Drennen, ¶ 24 n. 4, 311 P.3d at 125 (citing D. Drake, The Castle Doctrine: An
Expanding Right To Stand Your Ground, 39 St. Mary’s L.J. 573 (2008)).
7
institution or other secure facility under contract with the
department of corrections to house inmates;
Wyo. Stat. Ann. § 6-2-602(g)(i)–(ii) (LexisNexis 2021). The castle doctrine establishes
certain rebuttable presumptions that apply when defensive force is used against someone
who was in the process of unlawfully and forcefully entering a home or habitation:
(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 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) (LexisNexis 2021).
[¶26] Mr. Howitt asserts the district court erred when it refused to give his proposed castle
doctrine instructions that would have informed the jury about these presumptions. He
alleges “[t]here was evidence in the record which the jury could have interpreted to support
[his] defense that Mr. Pickering was ‘in the process’ of breaking into Mr. Howitt’s SUV
when Mr. Howitt resorted to using force.” He claims the question of whether Mr. Pickering
was in the process of unlawfully and forcefully entering Mr. Howitt’s vehicle was a
question of fact that should have been resolved by the jury. The State argues the district
court correctly refused the castle doctrine instructions, for two reasons: 1) Mr. Howitt’s
vehicle does not meet the definition of home or habitation; and 2) the evidence did not
show Mr. Pickering was in the process of unlawfully and forcefully entering Mr. Howitt’s
vehicle.
[¶27] “A proper theory of defense instruction must ‘sufficiently inform the jury of the
theory of defense,’ and there must be ‘competent evidence’ to support that theory of
defense.” Harnetty v. State, 2019 WY 21, ¶ 29, 435 P.3d 368, 374 (Wyo. 2019) (quoting
Bruce v. State, 2015 WY 46, ¶ 79, 346 P.3d 909, 932 (Wyo. 2015)). We have said:
Any competent evidence is sufficient to establish a defense
theory even if it consists only of testimony of the defendant.
8
We view the evidence in a light favorable to the accused and
the accused’s testimony must be taken as entirely true to
determine if the evidence is competent. Even if the court
deems the evidence to be weak, or unworthy of belief, the
instruction must be given if a jury could reasonably conclude
the evidence supports the defendant's position.
Smith, 2021 WY 28, ¶ 25, 480 P.3d at 538 (internal citations omitted) (quoting Black, 2020
WY 65, ¶ 22, 464 P.3d at 579–80).
The quantum of evidence required to submit [a theory of]
defense to a jury has been described as ‘any evidence,’ ‘some
evidence,’ ‘slight evidence,’ and ‘more than a scintilla.’ . . .
[T]hese phrases are not useful because the ultimate test is
whether the evidence (regardless of amount) creates a fact
issue requiring submission to the jury.
Black, ¶ 24, 464 P.3d at 580 (citing United States v. Ortiz, 804 F.2d 1161, 1166 n. 4 (10th
Cir. 1986)). A theory of defense instruction should be given “if the jury could reasonably
conclude the evidence supports the defendant’s position.” Tingey v. State, 2017 WY 5,
¶ 40, 387 P.3d 1170, 1181 (Wyo. 2017). An erroneous refusal to give “a theory of defense
instruction is ‘reversible error per se.’” Smith, ¶ 25, 480 P.3d at 538 (quoting Black, ¶ 22,
464 P.3d at 579).
[¶28] Although the trial court must determine if there is competent evidence in the record
to support giving the proposed theory of defense instructions, it must not invade the
province of the jury by resolving factual questions. “Criminal defendants are entitled to a
jury trial with the jury as the sole fact-finder.” Widdison, 2018 WY 18, ¶ 21, 410 P.3d at
1213 (quoting Snow v. State, 2009 WY 117, ¶ 28, 216 P.3d 505, 514 (Wyo. 2009)). We
have “consistently emphasized the principle that the jury—not the trial court and not the
attorneys—resolves factual issues.” Id. (citations omitted). Where the evidence regarding
the proposed defense is conflicting, the question is one for the jury. Black, 2020 WY 65,
¶ 24, 464 P.3d at 580 (citing Nelson v. State, 2010 WY 159, ¶ 22, 245 P.3d 282, 287 (Wyo.
2010)).
[¶29] In Widdison, there was conflicting evidence in the record about whether the
defendant resided in the home where the killing took place. 2018 WY 18, ¶ 20, 410 P.3d
at 1213. The trial court took it upon itself to make a “judgment call” on this conflicting
evidence, and it decided the evidence did not support giving a castle doctrine instruction.
Id. at ¶¶ 17–20, 410 P.3d at 1212–13. We reversed and found this “judgment call” invaded
the fact-finding province of the jury. Id. at ¶¶ 22–23, 410 P.3d at 1213. We held the
determination of whether the victim’s home was the defendant’s residence was a question
of fact that had to be answered by the jury. Id.
9
[¶30] In this case, when deciding whether to give the castle doctrine instructions, the trial
court had to determine if there was competent evidence in the record that created factual
questions about whether Mr. Howitt’s vehicle was a habitation and whether Mr. Pickering
was in the process of unlawfully and forcefully entering that habitation.4 We review each
of these questions de novo to decide whether the district court committed legal error by
removing factual questions from the jury’s consideration.
I. Was there competent evidence that would allow a jury to conclude Mr.
Howitt’s vehicle was a “habitation”?
[¶31] The State contends we should affirm the trial court’s decision on the grounds that
vehicles do not fall within the statutory definition of habitation. As support for this
argument, the State cites our decision in Knospler. In Knospler, the defendant was sleeping
in his vehicle after he was asked to leave a bar. 2016 WY 1, ¶ 3, 366 P.3d at 481.
Approximately an hour and a half later, the victim exited the bar and approached the
defendant’s vehicle, believing it belonged to his friends. Id. The victim pulled on the
passenger door handle and knocked on the window, before walking around to the driver’s
side and leaning on the door. Id. The defendant shot and killed the victim. Id. The
defendant asked the court to give castle doctrine instructions. Id. at ¶ 9, 366 P.3d at 482.
The district court declined to give the proffered instructions. Id. at ¶ 21, 366 P.3d at 485.
We affirmed the district court’s decision because the defendant “provide[d] no authority
interpreting the statutory definition of ‘habitation’ to include vehicles, and no authority
supporting his claim that a vehicle may be ‘adapted’ for overnight accommodation simply
by choosing to sleep in it.” Id. at ¶ 23, 366 P.3d at 485.
[¶32] The definition of habitation includes “any structure” that has been “adapted for
overnight accommodation,” including tents and campers. Wyo. Stat. Ann. § 6-2-602(g)(i).
The word vehicle is not expressly included in this definition. Id. However, the list
contained in the definition is representative, not exhaustive, as evidenced by the use of the
words “including, but not limited to.” Id. This statute “should be construed to apply to the
same general kind or class as those specifically listed.” Yager v. State, 2015 WY 139, ¶ 19,
362 P.3d 777, 782 (Wyo. 2015) (quoting RME Petroleum Co. v. Wyo. Dep’t of Revenue,
2007 WY 16, ¶ 46, 150 P.3d 673, 689–90 (Wyo. 2007)). Whether a vehicle has been
adapted for overnight accommodation, such that it could fall under the definition of
habitation, becomes a question of fact for the jury once the trial court determines there is
competent evidence in the record that would allow a jury to conclude such adaptations were
made.
4
At trial, Mr. Howitt also proposed instruction number 7 based on Wyo. Stat. Ann. § 6-2-602(d)
(LexisNexis 2021). However, he does not focus his appeal on this proposed instruction. Accordingly, we
decline to address this subsection of the statute.
10
[¶33] We recognize in Knospler we affirmed the district court’s decision not to recognize
the vehicle as a home or habitation. However, the facts in this case are distinguishable
from those in Knospler. In this case, it is undisputed Mr. Howitt had been living out of his
vehicle for several days. He had cleared out the passenger side and folded down the back
seat so that he could sleep in his vehicle. The district court correctly found there was
competent evidence in the record to create a factual question about whether Mr. Howitt’s
vehicle was a “habitation” because it had been adapted for overnight accommodation.
II. Was there competent evidence that Mr. Pickering was in the process of
unlawfully and forcefully entering Mr. Howitt’s habitation?
[¶34] In this case, it is undisputed that Mr. Pickering never entered Mr. Howitt’s vehicle.
Mr. Howitt would only have been entitled to instructions on the castle doctrine
presumptions set forth in Wyoming Statute § 6-2-602(b) if there was competent evidence
to show Mr. Pickering was in the process of unlawfully and forcefully entering Mr.
Howitt’s habitation. “In the process of” is not defined in the statute. “When a statute does
not provide a technical definition of a word, the ordinary definition of the word generally
applies.” Dugan v. State, 2019 WY 112, ¶ 31, 451 P.3d 731, 741 (Wyo. 2019) (citing Cecil
v. State, 2015 WY 158, ¶ 14, 364 P.3d 1086, 1090–91 (Wyo. 2015)); see also Ewing v.
State, 2007 WY 78, ¶¶ 9–10, 157 P.3d 943, 945–46 (Wyo. 2007) (stating when a term is
not defined in the statute, it suggests the legislature did not intend to give it a specialized
meaning). “A term must only be defined if the correct legal definition is such a departure
from ordinary meaning that the jury would misunderstand its application to the
circumstances before it.” Ewing, ¶ 9, 157 P.3d at 946 (citing Wilson v. State, 14 P.3d 912,
916 (Wyo. 2000)). We find the term “in the process of” as used in this statute does not
have a technical meaning outside of its ordinary connotation. See Ewing, ¶ 10, 157 P.3d at
946. Mr. Howitt asks us to find the phrase “in the process of . . . encompasses a spectrum
of activity.” We have not yet explored what types of conduct fall within this phrase.
However, courts in other jurisdictions with similar statutes have done so, and we find those
cases instructive for the application of our statute.
[¶35] In State v. Duncan, the Supreme Court of South Carolina had to determine whether
the victim was in the process of entering the defendant’s home when he was shot. 709
S.E.2d 662, 663 (S.C. 2011).5 The victim was a guest in the defendant’s home, but he was
5
The relevant portion of South Carolina’s self-defense statute states:
(A) A person is presumed to have a reasonable fear of imminent peril of
death or great bodily injury to himself or another person when using
deadly force that is intended or likely to cause death or great bodily injury
to another person if the person:
(1) against whom the deadly force is used is in the process of
unlawfully and forcefully entering, or has unlawfully and forcibly
entered a dwelling, residence, or occupied vehicle, or if he
11
asked to leave after making inappropriate comments about the defendant’s daughter. Id. at
663. The victim left but returned a short time later. Id. The victim opened the screened
porch door of the defendant’s home, advanced across the porch, and tried to force his way
onto the porch despite a third party’s attempts to get him to leave. Id. The defendant shot
and killed the victim. Id. The Supreme Court of South Carolina upheld the trial court’s
decision that the defendant was immune from prosecution because the evidence showed
the victim was in the process of unlawfully and forcefully entering the defendant’s home.
Id. at 665.
[¶36] In Commonwealth v. Cannavo, the Superior Court of Pennsylvania was asked to
determine if the victim was in the process of entering the defendant’s home or habitation
when he was shot. 199 A. 3d 1282 (Pa. Super. Ct. 2018).6 The defendant was staying in a
carriage house on Halloween night. Id. at 1285. The victim and his friends went “out on
the town” wearing Halloween costumes, and they became intoxicated. Id. They tried to
enter a party that was being held near the carriage house, but they were denied entry. Id.
The victim then began banging on the door of the carriage house. Id. at 1285–86. The
defendant fired a shot at the door, without opening it. Id. at 1286. The victim survived,
and the defendant was charged with attempted murder, aggravated assault, recklessly
endangering another person, and simple assault. Id. at 1285. The defendant asked the court
for castle doctrine instructions. Id. at 1286. The trial court declined to give the instructions
and found:
No evidence whatsoever, express or implied, was presented at
removes or is attempting to remove another person against his will
from the dwelling, residence, or occupied vehicle; and
(2) who uses deadly force knows or has reason to believe that an
unlawful and forcible entry or unlawful and forcible act is
occurring or has occurred.
S.C. Code Ann. § 16-11-440 (2022).
6
The relevant portion of Pennsylvania’s self-defense statute reads:
(2.1) Except as otherwise provided in paragraph (2.2), an actor is
presumed to have a reasonable belief that deadly force is immediately
necessary to protect himself against death, serious bodily injury,
kidnapping or sexual intercourse compelled by force or threat if both of
the following conditions exist:
(i) The person against whom the force is used is in the process of
unlawfully and forcefully entering, or has unlawfully and
forcefully entered and is present within, a dwelling, residence or
occupied vehicle; or the person against whom the force is used is
or is attempting to unlawfully and forcefully remove another
against that other’s will from the dwelling, residence or occupied
vehicle.
(ii) The actor knows or has reason to believe that the unlawful and
forceful entry or act is occurring or has occurred.
18 Pa. Stat. and Cons. Stat. Ann. § 505 (West 2022).
12
trial that the victim himself . . . was attempting to gain entry to
the carriage house at the time he was shot . . . . The only
“evidence” that the victim was attempting to break into the
carriage house is [defendant’s] uncorroborated testimony of his
personal, subjective belief that the victim was attempting to
break in. . . .
Id. at 1288–89 (citing Trial Ct. Op., filed 12/19/17, at 5-6). The Superior Court of
Pennsylvania found the trial court’s refusal to give the instruction was proper. Id. at 1289.
It found the defendant’s subjective belief only applied to whether he knew the entry had
occurred, and it did not show the victim was in the process of unlawfully and forcefully
entering the carriage house. Id. The defendant would have been entitled to a castle doctrine
instruction “only if evidence was actually presented of the victim’s unlawful and forceful
attempt to enter the carriage house.” Id.
[¶37] In Commonwealth v. Brockington, the Superior Court of Pennsylvania had to decide
if someone was in the process of entering the defendant’s home when defensive force was
used. 230 A. 3d 1209 (Pa. Super. Ct. 2020). In that case, the defendant heard noises outside
the front of her home early in the morning. Id. at 1212. She exited her house and fired a
single shot up in the air. Id. No one was injured, but she was charged with possession of
the instrument of a crime and recklessly endangering another person. Id. at 1211. She
argued she had acted in self-defense and was entitled to invoke the castle doctrine. Id. at
1212–13. At the trial, the defendant testified that several months before the events at issue,
she had heard someone “scratching” on the screen door to her cellar. Id. at 1214. She was
not sure who it was, but she thought it might be her neighbor’s son. Id. The neighbors
denied the allegations. Id. The defendant also testified that someone caused damage to her
home resulting in a split in the front of the house, a dented pole, and damaged concrete. Id.
When she awoke on the night in question, she could hear “them” outside. Id. Although she
could not see them, she thought a bunch of young kids were outside, and they would run
off after she fired the shot. Id. The Pennsylvania Superior Court found the defendant’s
“testimony did not show that she knew or had reason to believe that an individual had
unlawfully entered or was in the process of unlawfully entering her dwelling when she shot
the firearm.” Id. (citing 18 Pa. C.S. § 505(b)(2.1)).
[¶38] In State v. Dilworth, the Court of Appeals for North Carolina had to decide if the
victim was in the process of entering the curtilage7 of the defendant’s home when he was
7
North Carolina’s statute defines home as: “A building or conveyance of any kind, to include its curtilage,
whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over
it, including a tent, and is designed as a temporary or permanent residence. N.C. Gen. Stat. Ann. § 14-
51.2(a)(1) (2019). Wyoming’s definitions of home and habitation do not specifically include the curtilage
of the structure. Wyo. Stat. Ann. § 6-2-602(g)(i)–(ii).
13
stabbed. 851 S.E.2d 406 (N.C. Ct. App. 2020).8 In that case, the defendant repeatedly
stabbed a man who was riding an ATV on property that was adjacent to the defendant’s
property. Id. at 407. The defendant told the investigators he heard loud noises outside his
home and stepped outside to see what was going on. Id. at 408. The defendant claimed the
victim had been riding an ATV on his property, close to his home. Id. However, the area
where the attack occurred was outside of the defendant’s property line. Id. The defendant
admitted he did not know where the property line was. Id. The defendant was charged with
assault with a deadly weapon inflicting serious injury. Id. at 407. He asked the trial court
to give castle doctrine instructions. Id. at 409. The trial court declined to give the
instructions because the attack occurred outside the curtilage of the defendant’s home. Id.
On appeal, the defendant argued the evidence was sufficient to support giving the
instruction because he believed the victim “to be unlawfully on his property at the time of
the attack.” Id. at 410. The Court of Appeals of North Carolina affirmed the trial court’s
decision and concluded the defendant “presented no actual evidence [the victim] was in the
process or had actually unlawfully and forcibly entered his home.” Id. at 411. Although
the defendant “felt like” the victim was on his property, this would only support a
determination the defendant “had reason to believe that an unlawful and forcible entry or
unlawful and forcible act was occurring or had occurred,” and there was “simply no
evidence [the victim] was in fact ‘in the process of unlawfully and forcefully entering, or
had unlawfully and forcefully entered, a home.’” Id. at 411 (citing N.C. Gen. Stat. § 14-
51.2(b)(1)).
[¶39] Turning to the facts of this case, we view the evidence in the light most favorable to
Mr. Howitt and accept all his statements as true. Smith, 2021 WY 28, ¶ 25, 480 P.3d at 538
(quoting Black, 2020 WY 65, ¶ 22, 464 P.3d at 579–80). Based on the cases cited above,
Mr. Howitt’s personal, subjective belief that Mr. Pickering was going to enter his vehicle,
standing alone, would be insufficient to support giving a castle doctrine instruction.
However, there was other evidence in the record that, if believed, would create a factual
8
The relevant portion of North Carolina’s self-defense statute reads:
(b) The lawful occupant of a home, motor vehicle, or workplace is
presumed to have held a reasonable fear of imminent death or serious
bodily harm to himself or herself or another when using defensive force
that is intended or likely to cause death or serious bodily harm to another
if both of the following apply:
(1) The person against whom the defensive force was used was in
the process of unlawfully and forcefully entering, or had
unlawfully and forcibly entered, a home, motor vehicle, or
workplace, or if that person had removed or was attempting to
remove another against that person’s will from the home, motor
vehicle, or workplace.
(2) 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 or had occurred.
N.C. Gen. Stat. Ann. § 14-51.2 (2019).
14
question about whether Mr. Pickering was in the process of unlawfully and forcefully
entering Mr. Howitt’s habitation.
[¶40] Mr. Pickering’s actions in this case fall in between those of the victim in Duncan
and those of the victims in Cannavo, Brockington, and Dilworth. Mr. Howitt told several
witnesses that Mr. Pickering threatened to come over and assault him. Mr. Howitt
repeatedly told Mr. Pickering not to come any closer. According to Mr. Howitt’s
statements, despite these warnings, Mr. Pickering aggressively lunged at or approached
Mr. Howitt’s vehicle. Mr. Howitt told law enforcement that Mr. Pickering did not touch
any of the doors or windows, and the only time Mr. Pickering made contact with Mr.
Howitt’s vehicle was when he bumped against it before any words were exchanged.
However, he told other witnesses that Mr. Pickering had been knocking on the window of
his vehicle while threatening to “beat the sh*t out of him.” Mr. Pickering was within the
gravel area of Mr. Howitt’s campsite when he was shot, which could support Mr. Howitt’s
claim that he heard Mr. Pickering pick up speed as he approached the vehicle. The jury,
not the district court, should have been given the opportunity to determine which of Mr.
Howitt’s statements were credible. Although the evidence about Mr. Pickering knocking
on the windows or lunging toward the vehicle may be weak or unworthy of belief, a jury
could reasonably conclude this evidence supports Mr. Howitt’s position that Mr. Pickering
was in the process of unlawfully and forcefully entering his vehicle. The trial court should
have allowed the jury to resolve this factual question.
[¶41] We find the record contains facts from which a jury could have concluded Mr.
Pickering was in the process of unlawfully and forcefully entering Mr. Howitt’s habitation.
After thoughtfully and thoroughly examining the record, the dissent reached the opposite
conclusion. This illustrates the fact-intensive nature of this inquiry and highlights the need
for this factual question to be resolved by the jury.
[¶42] In Widdison we stated: “[t]he determination whether [the victim’s] home was [the
defendant’s] residence was a question that had to be answered before the jury could have
been instructed on the castle doctrine.” 2018 WY 18, ¶ 23, 410 P.3d at 1213. This language
should not be read as requiring the trial court to bifurcate the proceedings and have the jury
determine the factual questions surrounding the castle doctrine before the court determines
what self-defense instructions to give. The trial court has the discretion to determine the
best method for allowing the jury to resolve factual questions surrounding the castle
doctrine. A trial court may choose to bifurcate the proceedings or use instructions and a
detailed special verdict form to allow the jury to resolve all the factual questions raised by
the evidence.
CONCLUSION
[¶43] Mr. Howitt presented competent evidence to create factual issues about whether his
vehicle was adapted for overnight accommodation and fit within the definition of a
15
habitation and whether Mr. Pickering was in the process of unlawfully and forcefully
entering that habitation when he was shot. The district court should have allowed these
factual questions to be resolved by the jury. We reverse and remand for a new trial.
16
KAUTZ, J., dissenting, in which FOX, C.J., joins.
[¶44] I respectfully dissent from the proposed majority opinion.
[¶45] This case requires interpretation of the language in Wyo. Stat. Ann. § 6-2-602(LexisNexis 2021) which codifies the law of self-defense and the castle doctrine.
(a) The 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.
. . .
(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 . . . 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. . . .
Section 6-2-602(a) & (b).
[¶46] As the majority recognizes, Mr. Howitt restricts his appellate argument to
Proposed Instruction 89:
If the evidence shows that, one, [the victim] was in the process
of unlawfully and forcibly entering a home or habitation; and,
number two, [Mr.] Howitt knew or had reason to believe that
an unlawful and forcible entry or an unlawful forcible act was
occurring, then you shall presume that [Mr. Howitt] honestly
and reasonably believed that he was in imminent danger of
9
Mr. Howitt did not focus his appeal on the presumption listed in his Proposed Instruction 7. Because we
appropriately do not address that presumption in this opinion, no conclusion should be drawn as to whether
that presumption has any bearing on self-defense or on the castle doctrine.
17
death or serious bodily injury and that force was necessary to
repel that danger.
[¶47] The majority opinion does not find the statutory language ambiguous, and it is not.
It is entirely plain and unambiguous. We should rely on the plain meaning of the words
and phrases the legislature used. See Ailport v. Ailport, 2022 WY 43, ¶ 22, 507 P.3d 427,
437 (Wyo. 2022) (“If the [statutory language] is sufficiently clear and unambiguous, the
Court simply applies the words according to their ordinary and obvious meaning.”)
(citations and quotation marks omitted).
[¶48] The plain meaning of “in the process of” is “working on (doing something) that
takes a certain amount of time to do[.]” https://www.merriamwebster.com. The plain
meaning of “forcefully enter” is “to go into” “in a forceful, powerful or emphatic manner.”
https://www.merriam-webster.com/dictionary/forcefully and https://www.merriam-
webster.com/dictionary/enter. Under these definitions, it was appropriate to give the
statutory castle doctrine instruction only if there was evidence the victim was going into,
i.e., entering, Mr. Howitt’s vehicle. Subsection 6-2-602(b)(ii) reinforces the necessity of a
physical effort to enter before the castle doctrine applies by requiring that the defendant
knew or had reason to believe “an unlawful and forcible entry . . . was occurring.”
(Emphasis added).
[¶49] As the majority recognizes, the facts show the victim neither entered nor made an
effort to enter Mr. Howitt’s vehicle. The majority also acknowledges in Paragraph 40
that Mr. Howitt’s subjective belief the victim would attempt to enter the vehicle was
clearly insufficient to warrant instructing the jury on the castle doctrine. What the facts
show is he never grabbed the door handle, attempted to break the windows, or otherwise
tried to gain entry in any manner, much less in a forceful manner. Being in the vicinity of
the car, knocking on the windows, bumping the car, and engaging in verbal threats all are
insufficient to establish the victim was working on or attempting to enter Mr. Howitt’s
vehicle. Even if the victim “lunged,” as Mr. Howitt claimed, that act does not constitute
entry, or even an attempted entry. Furthermore, when the shooting occurred, the victim
was not doing any of those things.
[¶50] The Pennsylvania cases cited by the majority actually support the district court’s
decision to refuse Mr. Howitt’s request for a castle doctrine instruction. In
Commonwealth v. Brockington, 230 A.3d 1209, 1212 (Pa. Super. Ct. 2020), the
defendant shot into the air when she heard someone making noises outside her home. In
the past, she had heard scratching on her cellar door and someone had damaged the front
of her house. Id. at 1214. The Pennsylvania court found, as a matter of law, the
defendant was not entitled to a castle doctrine instruction because the evidence was
insufficient to show anyone was “in the process of unlawfully and forcefully” entering
the defendant’s house. Id. This case demands the same result. Mr. Howitt may have
18
heard knocking on his windows or felt his vehicle rocking, but none of that relates to
any ongoing effort by the victim to enter the vehicle.
[¶51] In Commonwealth v. Cannavo, 199 A.3d 1282, 1285 (Pa. Super. Ct. 2018), the
victim and his friends, all of whom had been drinking in celebration of Halloween, tried
to join “what they believed to be a party around [the defendant’s] house, but were denied
entry. The victim, and possibly others, subsequently banged on [the defendant’s] door,”
making repeated loud strikes. The defendant saw them on his security camera and shot
the victim through the door. Id. The defendant claimed he acted in self-defense and
requested the trial court instruct the jury on the castle doctrine. Id. at 1286. The
Pennsylvania court agreed with the trial court’s conclusion that “[n]o evidence
whatsoever, express or implied, was presented at trial that the victim . . . was attempting to
gain entry to the [defendant’s] house at the time he was shot.” Id. at 1288. The victim in
Cannavo was at least still at the door immediately after the loud banging occurred. In this
case, even if the victim had knocked on the windows and rocked Mr. Howitt’s vehicle, he
had moved away when Mr. Howitt shot. Again, this case demands the same conclusion
and result as the Pennsylvania court reached in Cannavo — the statutory castle doctrine
could not apply because there was no evidence the victim was in the process of forcefully
entering the vehicle when Mr. Howitt shot him. C.f., State v. Duncan, 709 S.E.2d 662,
663, 665 (S.C. 2011) (the castle doctrine immunized the defendant from prosecution for
shooting a person who forced his way onto the porch of the defendant’s home).
[¶52] The majority states “[a]lthough the evidence about Mr. Pickering knocking on the
windows or lunging towards the vehicle may be weak or unworthy of belief, a jury could
reasonably conclude this evidence supports Mr. Howitt’s position that Mr. Pickering was
in the process of unlawfully and forcefully entering his vehicle.” I disagree. If a jury so
concluded, it would be speculating. There would be no evidence from which it could
rationally reach that conclusion. A defendant is entitled to theory of defense instructions
“only if there is competent evidence in the record to support them.” Patterson v. State, 682
P.2d 1049, 1050 (Wyo. 1984). “[A]n instruction should not be given based on evidence
which at best raises a possibility or conjecture, or which is inconsistent with the physical
facts.” Id. In Iseli v. State, 2007 WY 102, ¶¶ 10, 18-20, 160 P.3d 1133, 1136, 1138-39
(Wyo. 2007), the district court properly refused to give the defense’s proposed self-defense
instructions because there was no version of the facts of the case which supported the
theory of defense. The same is true here. There is no version of the facts which supports
Mr. Howitt’s theory that the victim was in the process of forcefully entering his vehicle.
[¶53] In Paragraph 41, the majority mentions the victim’s location within the gravel area
of Mr. Howitt’s campsite as a salient fact based on State v. Dilworth, 851 S.E.2d 406 (N.C.
Ct. App. 2020). Dilworth is completely inapplicable to this case. It applies a North
Carolina statute which extends a statutory castle doctrine to trespassers within the curtilage
of a home. Id. at 410. Wyoming’s statute does not apply the castle doctrine to trespassers
in a curtilage.
19
[¶54] The effect of the majority opinion is to greatly expand the castle doctrine statute in
Wyoming. It permits juries to find defendants can use deadly force even though no one is
in the process of entering a home, but only knocks on a window, makes a verbal threat, or
stands outside. The majority’s approach ignores the statutory limitation of the castle
doctrine presumption to circumstances when someone is in the process of unlawfully and
forcefully entering a home or habitation and permits juries to apply that presumption in
speculative circumstances. That simply is not what our statute provides.
[¶55] Because there was no evidence showing the victim was in the process of unlawfully
and forcefully entering Mr. Howitt’s vehicle when Mr. Howitt shot him, the trial court
correctly refused to give the castle doctrine instruction.
20