The State of Wyoming v. Jason Tsosie John ( 2020 )

IN THE SUPREME COURT, STATE OF WYOMING
2020 WY 46APRIL TERM, A.D. 2020
April 6, 2020
THE STATE OF WYOMING,
Petitioner,
v. S-19-0046
JASON TSOSIE JOHN,
Respondent.
Original Proceeding
Petition for Writ of Review/Certiorari
District Court of Natrona County
The Honorable Catherine E. Wilking, Judge
Representing Petitioner:
Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Christyne M. Martens, Senior Assistant Attorney General; Samuel L.
Williams, Assistant Attorney General; Kevin D. Taheri, Special Assistant Attorney
General. Argument by Mr. Williams.
Representing Respondent:
Office of the State Public Defender: Diane M. Lozano, Wyoming Public Defender;
Kirk A. Morgan, Chief Appellate Counsel; Desiree Wilson, Senior Assistant
Appellate Counsel. Argument by Ms. Wilson.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, 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.
BOOMGAARDEN, Justice.
[¶1] In August 2018, the State charged Jason Tsosie John with one count of first degree
murder. The district court dismissed the case under Wyo. Stat. Ann. § 6-2-602(f), which
the legislature had only recently added to the self-defense statutes. 2018 Wyo. Sess. Laws,
ch. 135 (amending Wyoming Statute §§ 6-1-204 and 6-2-602). Subsection (f) states “[a]
person who uses reasonable defensive force as defined by subsection (a) of this section
shall not be criminally prosecuted for that use of reasonable defensive force.” Wyo. Stat.
Ann. § 6-2-602(f) (LexisNexis 2019). We granted the State’s petition for writ of review to
address several matters of first impression regarding the statute’s meaning and application.
We conclude § 6-2-602(f) is a mandatory immunity provision carrying with it a judicial
gatekeeping function following the preliminary hearing. The accused must present a prima
facie showing that § 6-2-602(f) applies. If the accused satisfies this minimal burden, the
burden shifts to the State to establish by a preponderance of the evidence that § 6-2-602(f)
does not apply. Though the district court applied a different burden and standard when
adjudicating Mr. John’s motion to dismiss, its error was harmless, and we affirm.
ISSUES
[¶2] We restate the issues as follows:
I. Did the district court err when it concluded Wyo. Stat. Ann.
§ 6-2-602(f) is a “true immunity” provision carrying with it a
gatekeeping function for courts?
II. Did the district court err when it considered Mr. John’s
pretrial motion to dismiss after an evidentiary hearing?
III. Did the district court erroneously grant Mr. John’s motion
to dismiss?
BACKGROUND
A. Statutory Amendments
[¶3] The legislature substantially amended Wyo. Stat. Ann. § 6-2-602 during the 2018
Budget Session. 1 2018 Wyo. Sess. Laws, ch. 135. Those amendments took effect
approximately one month before the State charged Mr. John with first degree murder. Id.1
Section 6-2-602 is one of two statutes in Title 6. Crimes and Offenses, Chapter 2. Offenses Against the
Person, Article 6. Justification. The other statute in Article 6 states “[t]he common law shall govern in all
cases not governed by this article.” Wyo. Stat. Ann. § 6-2-601 (LexisNexis 2019). It has not been amended
since its enactment in 2008. See id.
1
[¶4] As amended, the statute provides in relevant part: 2
§ 6-2-602. Use of force in self defense; no duty to retreat.
(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.
As used in this subsection, “necessary to prevent” includes a
necessity that arises from an honest belief that the danger exists
whether the danger is real or apparent.
(a) (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, that is intended or likely
to cause death or serious bodily injury to another 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.
....
(c) (d) 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.
(e) A person who is attacked in any place where the person is
lawfully present shall not have a duty to retreat before using
2
The legislature added the underlined language to the statute and removed the stricken language. See 2018
Wyo. Sess. Laws, ch. 135; Wyo. Stat. Ann. § 6-2-602 (LexisNexis 2019).
2
reasonable defensive force pursuant to subsection (a) of this
section provided that he is not the initial aggressor and is not
engaged in illegal activity.
(f) A person who uses reasonable defensive force as defined by
subsection (a) of this section shall not be criminally prosecuted
for that use of reasonable defensive force.
(d) (g) As used in this section:
....
(iii) “Deadly force” means force that is intended or
likely to cause death or serious bodily injury.
Id.B. The Shooting and Court Proceedings
[¶5] The amended statute’s meaning and application are hotly contested in this case, the
facts of which do not establish the defense of one’s home against an unknown intruder.
Mr. John, the accused, knew Wesley Willow, the deceased. Each had a relationship with
Melissa Hayden. Ms. Hayden and Mr. John dated from June to July 2018. Prior to that,
Ms. Hayden dated Mr. Willow. She resumed dating Mr. Willow after she and Mr. John
broke up. Ms. Hayden and Mr. Willow had two children.
[¶6] On Friday, August 3, 2018, the night of the shooting, Ms. Hayden, Mr. Willow, and
Nicholas Heims were celebrating Ms. Hayden’s birthday at a hotel in Casper, Wyoming.
Ms. Hayden had an active protection order against Mr. Willow and, as a condition of her
felony probation, should not have been with him. Ms. Hayden and Mr. Willow did not
know Mr. Heims until they met him that night at the hotel.
[¶7] A series of text messages between Mr. John and Ms. Hayden precipitated the
confrontation that resulted in Mr. Willow’s death. Mr. John sent Ms. Hayden text messages
at 3:42 and 3:44 a.m. expressing his disgust about her relationship with Mr. Willow. Ms.
Hayden responded at 3:46 a.m. The messages escalated over the next few minutes and Ms.
Hayden ultimately told Mr. John, “Stop texting me. . . . . . Done.” Mr. John did not stop.
His next text said “Fucking Crackhead… can’t even be a real mom. That’s the truth!”
Then, at 3:53 a.m. Ms. Hayden, or someone using her phone, texted back “I’m fuck you
up Bitch!” Mr. John, apparently presuming Ms. Hayden sent the message, responded: “Go
head…”; “I’ll blow you away just like Wesley [Willow] and Will. To protect J[] and J[]
and N[]! Fuck yeah! Test me bitch!”; “Come at me!”; “My kids are my life!”; “I don’t
fuck around!!!” When Ms. Hayden showed Mr. Willow the text messages, “all hell broke
loose.”
3
[¶8] A one-minute phone call between Mr. Willow and Mr. John occurred shortly after,
at 3:56 a.m. The exact words spoken during the phone call are unclear, but Mr. Heims
heard Mr. Willow ask “where you at” and then repeat the number “75,” which was the
trailer spot where Mr. John lived. When the call ended, Mr. Heims and Ms. Hayden
understood that Mr. Willow intended to go to Mr. John’s home to fight him.
[¶9] The three drove to the area where Mr. John lived. They parked several spots past
Mr. John’s trailer to avoid being seen. Ms. Hayden and Mr. Willow were intoxicated. Ms.
Hayden brought an empty vodka bottle to hit Mr. John over the head. Mr. Willow was
unarmed. Mr. Heims had a closed knife.
[¶10] As they walked toward Mr. John’s home they saw him standing on the porch or in
the front doorway holding an “AR-15 style rifle” with a mounted flashlight. Mr. John’s
mother and young son were sleeping inside. Mr. John and Mr. Willow shouted back and
forth. Though Mr. John warned the group to “get back” or “get out of here,” Mr. Willow
did not heed the warning. As Mr. Willow sprinted into Mr. John’s home, Mr. John fired
nine shots in rapid succession. Several struck Mr. Willow.
[¶11] Awoken by the commotion, Mr. John’s mother came out to the living room, took
the rifle from Mr. John, and called 911 at 4:12 a.m. First responders could not revive Mr.
Willow and pronounced him dead at the scene.
[¶12] Three days later, on August 6, the State charged Mr. John with first degree murder,
alleging he “purposely and with premeditated malice” killed Mr. Willow, in violation of
Wyo. Stat. Ann. § 6-2-101(a).
[¶13] At the preliminary hearing less than two weeks later, the State informed the circuit
court the evidence would show Mr. John sent disparaging text messages to Ms. Hayden
about her and Mr. Willow’s children, agreed to fight Mr. Willow, provided Mr. Willow his
address, and then “ambush[ed]” him with a firearm and killed him. Though Mr. John asked
the court to decide whether the shooting was lawful and directed the court’s attention to
the newly amended statute, the court declined to decide whether § 6-2-602(f) applied
because it had unanswered questions about the facts and there was no precedent applying
the statute. The circuit court bound the case over to district court.
[¶14] Mr. John pleaded not guilty at arraignment and the district court scheduled trial for
mid-February. At the end of December, Mr. John filed his “Motion for Dismissal Pursuant
to Wyoming Statute § 6-2-602 or in the Alternative Enforcement of Wyoming Statute § 6-
2-602(f).” He argued the State had to prove § 6-2-602(f) did not apply. According to Mr.
John, the State could not meet its burden because he was “presumed to have held a
reasonable fear of imminent peril of death or serious bodily injury to himself or another”
under subsection (b), Mr. Willow was presumed to be entering his home “with the intent
4
to commit an unlawful act involving force or violence” under subsection (d), and he had
no duty to retreat under subsection (e).
[¶15] The State responded that § 6-2-602(f) did not entitle Mr. John to a separate pretrial
immunity hearing in the district court. Alternatively, it asserted Mr. John was not entitled
to statutory immunity because Mr. Willow’s entry into his home was not “unlawful” or
“forcible,” there were reasonable alternatives to deadly force Mr. John failed to exercise,
and Mr. John used more force than necessary under the circumstances.
[¶16] The district court heard Mr. John’s motion to dismiss on February 1, 2019. The
court first identified questions left unanswered by the amended statute: “[I]s the defendant
entitled to a pretrial immunity hearing[?] And, if so, who bears the burden at the hearing
and what is the standard of evidence that would be required to meet that burden[?]” Then
the court concluded the amended statute entitled Mr. John to a pretrial hearing because it
created “true immunity” for persons who were justified in their use of defensive force, and
that immunity carries with it a procedural “gatekeeping function” for courts.
[¶17] The hearing proceeded to an evidentiary phase. Casper Police Detective Anthony
Stedillie recounted various witness statements from Ms. Hayden, Mr. Heims, and Mr.
John’s mother, as well as statements Mr. John made at the scene and the hospital. The
State introduced the postmortem examination report and a copy of text messages, the call
log, and the internet search history from Mr. John’s phone. Defense counsel thoroughly
cross-examined the detective and introduced a photograph showing the location of Mr.
Willow’s body inside Mr. John’s home after the shooting.
[¶18] The court made thorough findings before orally granting Mr. John’s motion to
dismiss:
It has been established that the defendant and Ms. Hayden were
in a dating relationship. That relationship ended sometime in
July of 2018, and Ms. Hayden had apparently reconciled with
Mr. Willow and the two were celebrating her birthday on the
date of this offense.
On August 3rd of 2018, there is a dispute between the
defendant and Ms. Hayden and that occurs via text messages,
and those are in evidence.
Mr. Heims indicated that, after this series of text messages was
received by Ms. Hayden, one of them in particular upset her
greatly, was shown to Mr. Willow, and then Mr. Heims
testified that all hell broke loose.
5
Then we have a call being placed using Ms. Hayden’s phone,
but it’s Mr. Willow placing the call to the defendant, and that
call is made at 3:56 a.m. and lasts one minute. And there is
some sort of an exchange between Mr. Willow and Mr. John,
which, when that call ends, Mr. Heims and Ms. Hayden
understood that Mr. Willow intended to go to Mr. John’s home
to fight him. Then we have Mr. Willow, Mr. Heims, and Ms.
Hayden traveling to the defendant’s home by vehicle.
Ms. Hayden has testified that Mr. Willow had threatened to
beat Mr. John up. And then, after the phone call is made and
they’re in the car, there are these texts that are being sent by
Mr. John. But the evidence is that those texts were never read
by Ms. Hayden, Mr. Willow, or Mr. Heims prior to the
shooting.
The testimony is that Ms. Hayden knew where the defendant
lived and gave directions to Mr. Willow to get there, that Mr.
Willow was intoxicated and had a blood alcohol concentration
of .20.
The testimony is that Mr. Willow parked in Lot Number 69,
and the three of them then proceeded to travel by foot to Lot
Number 75, which was where the defendant was residing. And
that Mr. Heims indicated that they parked at Lot Number 69
because Mr. Willow told him he didn’t want the car to be seen
before or after.
Ms. Hayden stated that she had an empty vodka bottle that she
had with her as she approached the defendant’s home and that
she brought it because she intended to use it against the
defendant and, eventually, she did do that; although, it
happened after the shooting. And Ms. Hayden was also
intoxicated to an unknown extent.
Ms. Hayden stated to the officers that she thought the physical
confrontation would occur outside of the defendant’s
residence. It’s somewhat unclear whether -- where her part
was in that. I know the statement was made that she thought
she would meet the defendant outside and hit him on the head
with the vodka bottle and then whatever else happened,
happened. That could very well mean that she believed, then,
6
Mr. Willow and the defendant would fight after she struck him
with the vodka bottle.
And there is also a statement that Mr. Heims was armed with a
closed knife when approaching the defendant’s home.
The defendant had an AR-15 style rifle weapon. It had a
flashlight mounted on it. And both Mr. Heims and Ms. Hayden
saw the gun and also indicated that the light was shining on
them as they approached the defendant’s home, and that the
light was shone on all three of them. And there’s an indication
that Mr. Heims was an unknown male to the defendant at the
time he was approaching.
The evidence also shows that the defendant was either standing
on his porch or the threshold of his home when the three
individuals were approaching his home.
The evidence has shown that the defendant yelled back and
forth with the three individuals as they approached the home.
It’s unclear what words were exchanged, but they were yelling
back and forth.
But it is in the evidence that, before any shots were fired, the
defendant yelled either “get back” or “get out of here.” The
defendant told the officers that he said “back the F up”
approximately three times prior to any shots being fired.
Mr. Heims stated that the defendant stepped back into the
defendant’s home when Mr. Willow charged up the steps of
the home. And Ms. Hayden also stated that Mr. Willow
sprinted straight for the defendant because he does not back
down; meaning Mr. Willow does not back down.
And Ms. Hayden indicated that Mr. Willow went past her, as
she was in the front, as they originally made their approach.
And Mr. Heims indicated that Mr. Willow was moving
quickly, that he was angry, and moving toward the house with
what he described as an angry step.
The defendant fired shots. Apparently, there were 30 in the
magazine. He fired nine shots. Two struck Mr. Willow in the
7
chest and six in the backside of his body. These shots were
made in rapid succession with no break in the shots fired.
Mr. Willow’s body was inside of the defendant’s home, and
that is most clearly demonstrated to the Court by Exhibit A.
That is a photo of his body inside the defendant’s home. It’s
quite close to a tan-colored recliner in the defendant’s home.
There are statements that the defendant’s door was open when
the light was being shone by him on the three individuals
approaching his home. The officer testified that the lock on his
door was operational. The defendant told the officers that he,
in fact, closed the door and Mr. Willow opened it and entered
his home.
Mr. Willow was not armed when he approached the
defendant’s home. The defendant did make eight calls. In
between the call with Mr. Willow at 3:56 a.m., he made three
phone calls to Ms. Hayden: one at 4:02, one at 4:05, and one at
4:09 a.m.; he made one to somebody identified as Soppy, S-O-
P-P-Y, at 4:01 a.m.; and he made four calls to a Shannon
Homolka: one at 3:58, one at 4:01, one at 4:06, and one at 4:07.
So the last call that I can see being made or attempted by the
defendant happened at 4:07.
The defendant’s mother and his young son were in the home
when this occurred. The defendant did not invite Mr. Willow
into his home.
And then we have the 911 call being made by Ms. George at
4:12 a.m. So we have an interval of 4:07, when the last call is
made by the defendant to Ms. Homolka, to the 911 call being
made at 4:12 a.m.
The defendant stated to officers that Mr. Willow rushed him,
and that he shot him. The evidence also establishes that, after
the 3:56 a.m. call, that lasted until 3:57, it was after that call
was made that the three individuals left the Royal Inn and then
traveled to . . . the defendant’s home.
Between 4:02 and 4:06, there were those text messages that
were sent to Ms. Hayden’s phone, but the evidence is that those
8
texts were never seen by Mr. Willow, Mr. Heims, or Ms.
Hayden.
That is somewhat different than the presentation that was made
by the State in prior hearings, particularly the 404(b) hearing,
where it was presented that those texts were received, and that
is what was goading Mr. Willow on. But it appears that is not
the case based on what was presented today.
[¶19] Based on these findings, the district court reached the following conclusions, set
forth both at the hearing and in its written order:
1. That the Defendant was lawfully present in his own home,
he was not the initial aggressor in this case and he was not
engaged in illegal activity when he was in his home.
2. That the Defendant had no duty to retreat.
3. Th[at] Mr. Willow was not invited into the home of the
Defendant.
4. Mr. Willow instigated the violence in this case and the
violence was contemporaneous and the risk of serious bodily
harm or death to the Defendant or others within his home was
considered imminent by the Defendant.
5. This was a very dangerous encounter that escalated in mere
seconds.
6. Mr. Willow was warned to stay back by the Defendant,
instead he made an unlawful and highly provocative and
violent entry into the Defendant’s home and the presumptions
are that he intended to commit an unlawful act involving force
or violence.
7. There is no indication that there was an act of disengagement
on the part of Mr. Willow once he started running toward the
Defendant.
8. The Defendant fired 9 shots from a magazine of 30 rounds
from an AR-15-type rifle, in rapid succession with no
discernable break in the time between those shots.
9
9. That Defendant was in his own home and the body of Mr.
Willow was also found in the home of the Defendant.
10. That the Defendant’s reasonable and honest belief that
deadly force was necessary to prevent imminent death or
serious bodily injury to himself or another is triggered under
the facts of this case.
11. That the statutory presumption of reasonableness is
implicated because Mr. Willow unlawfully and forcefully
entered the Defendant’s home, and that the force that was used
by the Defendant was necessary in this case.
12. That the State has not met its burden to establish that
probable cause exists to conclude that the Defendant’s use of
force was not statutorily justified and that the Defendant shall
be afforded the protections of Wyoming Statute § 6-2-602, and
he shall not be subject to criminal prosecution in this matter.
The district court ordered Mr. John “be afforded the protections of Wyoming Statute § 6-
2-602[,]” granted his motion, and dismissed the case.
[¶20] The State petitioned this Court to review the “Order Dismissing Case Following
W.S. 6-2-602 Hearing” under W.R.A.P. 13.01 and 13.02. It sought broad review of the
district court’s decision, including its interpretation of § 6-2-602(f), the procedures utilized,
and application of the law to the facts. We granted the petition, ordered briefing, and heard
argument.
DISCUSSION
[¶21] The State raises various arguments, but primarily asserts the district court erred by
holding an evidentiary hearing. According to the State, the plain language of Wyo. Stat.
Ann. § 6-2-602(f) and separation of powers principles require the executive branch (i.e.,
state prosecutors) to apply the provision when deciding whether to charge a person with a
crime. It contends the only authorized judicial determination is the circuit court’s probable
cause determination at the preliminary hearing. The State concludes that by conducting a
pretrial evidentiary hearing, the district court read a procedure into the statute the
legislature did not provide. The district court therefore exceeded its authority and the
dismissal order is void. Even if the evidentiary hearing was proper, the State argues the
court incorrectly applied Wyoming self-defense law to the facts.
[¶22] As discussed below, we conclude § 6-2-602(f) is a mandatory, judicially enforceable
immunity provision. If an accused asserts protection from prosecution under subsection
10
(f), the district court must determine whether the statutory immunity requirements have
been met. Our remaining analysis therefore focuses on the appropriate procedural
framework for a § 6-2-602(f) self-defense immunity determination, including the
applicable burdens and standards of proof. We end by considering whether the district
court correctly applied the statute to its findings.
I. Wyo. Stat. Ann. § 6-2-602(f) is a mandatory, judicially enforceable immunity
provision.
[¶23] The district court correctly interpreted the plain language of Wyo. Stat. Ann. § 6-2-
602. Though subsection (f) nowhere uses the word “immunity,” it is clearly an immunity
provision carrying with it a judicial gatekeeping function to ensure the executive branch
does not prosecute individuals who exercised reasonable force in self-defense. As such,
§ 6-2-602(f) preserves, rather than violates, the separation of powers between the
legislature, executive, and judiciary.
[¶24] Statutory interpretation is a matter of law we review de novo. Cercy v. State, 2019
WY 131, ¶ 20, 455 P.3d 678, 685 (Wyo. 2019) (citation omitted). “In interpreting and
construing statutory language, our primary purpose is to determine the legislature’s intent.”
Stutzman v. Office of Wyoming State Eng’r, 2006 WY 30, ¶ 14, 130 P.3d 470, 475 (Wyo.
2006) (citing Merrill v. Jansma, 2004 WY 26, ¶ 28, 86 P.3d 270, 284–85 (Wyo. 2004)).
“Where the language is clear, we look to its ordinary and obvious meaning, are bound to
the results so expressed and do not resort to rules of construction.” Id. (citation omitted).
“A statute is unambiguous if its wording is such that reasonable persons are able to agree
concerning its meaning with consistency and predictability.” Id. (citation omitted).
“Ultimately, whether a statute is ambiguous is a matter of law to be determined by the
court.” Id. ¶ 15, 130 P.3d at 475 (citation omitted).
[¶25] Subsection (f) states “[a] person who uses reasonable defensive force as defined by
subsection (a) shall not be criminally prosecuted for that use of reasonable defensive
force.” Wyo. Stat. Ann. § 6-2-602(f) (emphasis added). Subsection (f) clearly and
unambiguously prohibits prosecution of a person who uses reasonable defensive force. We
have repeatedly recognized “use of the word ‘shall’ in a statute makes the provision
mandatory.” Halling v. Yovanovich, 2017 WY 28, ¶ 37, 391 P.3d 611, 623 (Wyo. 2017)
(quoting Wyo. Dep’t of Revenue v. Qwest Corp., 2011 WY 146, ¶ 30, 263 P.3d 622, 632
(Wyo. 2011)). The phrase “shall not” is likewise mandatory in the prohibitive sense, and
“intimates an absence of discretion” in applying subsection (f) immunity so long as all
statutory conditions are satisfied. See In re MN, 2007 WY 189, ¶ 5, 171 P.3d 1077, 1080
(Wyo. 2007) (quoting In re LePage, 2001 WY 26, ¶ 12, 18 P.3d 1177, 1180 (Wyo. 2001)).
If, as the State suggests, the legislature intended § 6-2-602(f) to be nothing more than a
directive for the executive branch to avoid prosecuting a person who used reasonable
defensive force under subsection (a), it could and would have said so. See Hall v. Park
11
Cty., 2010 WY 124, ¶ 12, 238 P.3d 580, 584 (Wyo. 2010). Instead, subsection (f) flatly
prohibits such prosecution under certain factual circumstances.
[¶26] When the legislature amended § 6-2-602 in 2018, it exercised its exclusive power
to determine and declare what acts constitute a crime when the underlying facts implicate
self-defense principles. See 2018 Wyo. Sess. Laws, ch. 135; see also Billis v. State, 800
P.2d 401, 415 (Wyo. 1990). If the executive branch prosecutes someone who then claims
the protection of subsection (f), the court must determine whether a sufficient factual
predicate exists to apply the statutory bar. This judicial gatekeeping function is no different
from other forms of criminal adjudication requiring the court to apply statutory standards
to the facts.
[¶27] Courts perform a similar function when they conduct pretrial hearings to determine
whether a pending prosecution would constitute double jeopardy or violate the defendant’s
right to a speedy trial. The court’s adjudicatory role in resolving those substantive legal
issues is not materially different from the court’s adjudicatory, or gatekeeping, role in
deciding whether an accused is immune from further prosecution under § 6-2-602(f). See
Billis, 800 P.2d at 423 (noting the judiciary has exclusive power in a prosecution “to
adjudicate substantive legal issues raised by the litigants”); see also People v. Guenther,
740 P.2d 971, 976–78 (Colo. 1987) (rejecting a separation of powers challenge to
Colorado’s self-defense immunity statute). The district court fittingly took on the role of
resolving the subsection (f) issues in this case.
II. The district court appropriately considered Mr. John’s pretrial motion to dismiss
following an evidentiary hearing.
[¶28] The district court appropriately heard Mr. John’s motion to dismiss at an evidentiary
hearing following his preliminary hearing. Although we conclude the district court should
have applied different burdens and standards of proof when evaluating the motion to
dismiss, the error was harmless.
A. Immunity determinations are beyond the scope and purpose of preliminary
hearings.
[¶29] Circuit courts are responsible for conducting “[p]reliminary examinations for
persons charged with a felony[.]” Wyo. Stat. Ann. § 5-9-132(b) (LexisNexis 2019). The
scope of a preliminary hearing is constrained. Its limited purpose is for the circuit court to
determine whether there is “probable cause to believe that the charged offense or lesser
included offense has been committed and that the defendant committed it[.]” W.R.Cr.P.
5.1(b); see Madrid v. State, 910 P.2d 1340, 1343 (Wyo. 1996) (citing Garcia v. State, 667
P.2d 1148, 1154 (Wyo. 1983)). The hearing is intended “to determine whether there is a
sound basis for continuing to hold the accused in custody, to make sure that he is not being
held on some capricious or nebulous charge.” Wilson v. State, 655 P.2d 1246, 1251 (Wyo.
12
1982). The State must present a sufficient basis “to cause a person of ordinary caution or
prudence to conscientiously entertain a reasonable belief that a public offense has been
committed in which the accused participated.” Id. A probable cause finding may be based
on hearsay and “[t]he defendant may cross-examine adverse witnesses and may introduce
evidence.” W.R.Cr.P. 5.1(b).
[¶30] In State v. Carter, 714 P.2d 1217 (Wyo. 1986), we addressed the narrow set of issues
properly decided at preliminary hearings. The principles we set forth in Carter are
instructive here. The State charged Mr. Carter with two related drug crimes: delivery of
marijuana (Count I) and possession with intent to deliver hash oil (Count II). Id. at 1218.
At the close of evidence at the preliminary hearing, Mr. Carter moved to dismiss Count II
on grounds it merged into Count I. Id. The court accepted briefs on the question, held a
hearing, and dismissed the second count. Id. We sustained the State’s bill of exceptions
to the dismissal because the court had no authority to dismiss the charge at the preliminary
hearing. Id. at 1219–20. Instead, the court’s authority was limited to determining whether
probable cause supported the charges, and if it did, binding the charges over to the district
court. Id. at 1219. Mr. Carter could have then moved to dismiss Count II in the district
court under what is now W.R.Cr.P. 12(b). Id. at 1219, 1219 n.1.
[¶31] We reasoned that a court “should not attempt or be called upon to decide difficult
legal questions” at a preliminary hearing. Id. at 1219 (citing 21 Am.Jur.2d Criminal Law
§ 428 (1981)). Nor should a court “ask for and receive briefs on disputed legal points.”
Id. (citing State ex rel. Berger v. Jennings, 110 Ariz. 441, 520 P.2d 313 (1974)). We
explained that those principles developed “due in part to the summary nature of the
preliminary hearing”:
It is held promptly after arrest. Neither side has much time to
prepare. The prosecution presents only so much of its case as
is necessary to establish probable cause, reserving the
remainder for trial. The accused may very well offer no
evidence unless he can demonstrate the absence of probable
cause. Just as the preliminary hearing is an inappropriate
forum for deciding the important issues involved in a motion
to suppress, 2 LaFave & Israel, Criminal Procedure § 14.4
(1984), so too is it an inappropriate forum for deciding other
complicated legal questions. The preliminary hearing is
designed to be a quick, efficient means of determining whether
the accused should be detained and of ensuring the effective
administration of justice.
Id. at 1219–20.
13
[¶32] Mr. John’s preliminary hearing implicates those same principles. The question of
self-defense immunity under § 6-2-602(f) is inherently complex; resolution of that question
is well-beyond the limited scope and purpose of a preliminary hearing. In addition, Mr.
John’s preliminary hearing occurred less than two weeks after the incident, when it was
still being investigated. Facts and witness statements evolved over the course of the
investigation. These points were not lost on either the circuit or district court.
[¶33] While immunity should be determined as early as possible to ensure the accused
spends no more time than necessary enmeshed in criminal proceedings, whether an accused
is immune from prosecution under § 6-2-602(f) should not be decided at the preliminary
hearing.
B. The procedural framework, burdens, and standards from Hall v. State
apply.
[¶34] Hall v. State, 851 P.2d 1262 (Wyo. 1993)—a transactional immunity 3 case—sets
forth the appropriate procedural framework in which to decide whether an accused is
entitled to self-defense immunity under § 6-2-602(f). Hall similarly involved murder
charges and a pretrial motion to dismiss based on immunity. Id. at 1264–65. Mr. Hall
asked the district court to dismiss the charges before trial on grounds that the prosecutor
had granted him immunity from prosecution for any involvement he may have had in the
murder. Id. at 1265. The record disclosed the alleged agreement granting him transactional
immunity in exchange for his cooperation and testimony. Id.
[¶35] In deciding Mr. Hall’s motion to dismiss, the district court concluded the State had
granted Mr. Hall immunity from prosecution on the conspiracy charge. Id. With respect
to the State’s claim that Mr. Hall had forfeited his immunity, the district court required the
State to prove, by clear and convincing evidence, the nature of the immunity agreement,
the manner in which Mr. Hall had violated it, and that Mr. Hall’s violation was material.
Id.
[¶36] Relevant to this case, on review of Mr. Hall’s petition for writ of certiorari, we
addressed what procedure to follow to prove that immunity had been granted or forfeited,
and what burden of proof to apply. Id. at 1264, 1268–69. We concluded W.R.Cr.P. 16,
subsequently renumbered as W.R.Cr.P. 12, 4 offered Mr. Hall a vehicle for raising
3
“Transactional immunity” is “[i]mmunity from prosecution for any event or transaction described in the
compelled testimony.” Black’s Law Dictionary 900 (11th ed. 2019). It is distinct from “use immunity,”
which is “[i]mmunity from the use of the compelled testimony (or any information derived from that
testimony) in a future prosecution against the witness.” Id. “Transactional immunity” is broader than “use
immunity.” Id. “After granting use immunity, the government can still prosecute if it shows that its
evidence comes from a legitimate independent source.” Id.
4
Rule 16 was renumbered in December 1991 as Rule 12. Order Adopting the Revised Wyoming Rules
of Criminal Procedure (12/23/1991), available at https://www.courts.state.wy.us/wp-content/uploads/
14
immunity prior to trial. Id. at 1268. But because we were not satisfied the district court
had conducted an appropriate evidentiary hearing, we remanded the case with the following
guidance:
We remand the case for an appropriate hearing pursuant to
W.R.Cr.P. 16 at which Hall must make a prima facie case
demonstrating the grant of immunity. The State then must
establish, by a preponderance of the evidence, no immunity
actually was granted or the effective limitation upon the
immunity granted. The State also must assume the burden of
demonstrating, by a preponderance of the evidence, the
forfeiture of any immunity extended because of Hall’s breach
of the agreement.
After that hearing, if the court permits the trial to go forward
as to either of the charges, Hall may still choose to assert
immunity as a defense at the trial. That issue would be tried as
an affirmative defense in the usual course of events, and the
completeness and truthfulness of Hall’s statements, as well as
the inculpatory content of those statements, would be
ascertained by the jury.
Id. at 1268–69 (emphasis in original).
[¶37] We conclude here, as in Hall, that Wyoming Rule of Criminal Procedure 12 governs
pretrial pleadings and motions pertaining to immunity from prosecution. W.R.Cr.P. 12(b).
[¶38] We agree with the State that a § 6-2-602(f) immunity claim does not constitute an
objection “based on defects in the institution of the prosecution,” which the accused must
raise before trial. 5 The broad language at the beginning of Rule 12(b), however, permits
2017/05/crimpro_1991122300.pdf; see also Hall, 851 P.2d at 1267 (comparing former W.R.Cr.P. 16 to
its federal equivalent F.R.Cr.P. 12).
5
W.R.Cr.P. 12(b) specifies that “[t]he following must be raised prior to trial”:
(1) Defenses and objections based on defects in the institution of the
prosecution;
(2) Defenses and objections based on defects in the indictment or
information (other than that it fails to show jurisdiction in the court or to
charge an offense which objections shall be noticed by the court at any
time during the pendency of the proceedings);
(3) Motions to suppress evidence;
15
the court to hear “[a]ny defense, objection, or request” capable of determination without
trial. An accused may raise his § 6-2-602(f) immunity claim in reliance on that broad
language. W.R.Cr.P. 12(b).
[¶39] The State nonetheless attempts to distinguish Hall on the basis that § 6-2-602(f)
“require[s] courts to find the individual did or did not engage in chargeable conduct.” The
State cites no pertinent authority, and we have found none, to suggest this is a meaningful
or dispositive distinction. A determination whether transactional immunity had been
granted or forfeited also requires the court to make factual determinations. So too do
motions to suppress evidence under Rule 12(b)(3). Rule 12 explicitly recognizes that
district courts may be called on to make dispositive pretrial factual determinations.
W.R.Cr.P. 12(f) (“Where factual issues are involved in determining a motion, the court
shall state its essential findings on the record.”).
[¶40] The guidance we provided in Hall applies equally to self-defense immunity. When
the accused moves to dismiss a criminal charge pursuant to W.R.Cr.P. 12(b), asserting self-
defense immunity under § 6-2-602(f), the district court must hold an evidentiary hearing
to determine whether he may be tried for the charge. The accused must make a prima facie
showing that § 6-2-602(f) applies. 6 If he satisfies this minimal burden, the burden shifts to
the State to establish by a preponderance of the evidence that § 6-2-602(f) does not apply.
If the State cannot meet its burden the charge must be dismissed. If the court denies the
motion to dismiss and the case proceeds to trial, the accused may raise self-defense as an
affirmative defense at trial. 7 See, e.g., Widdison v. State, 2018 WY 18, ¶ 37, 410 P.3d
1205, 1217 (Wyo. 2018) (citing Drennen v. State, 2013 WY 118, ¶ 39, 311 P.3d 116, 129
(Wyo. 2013)); Johns, ¶ 14, 409 P.3d at 1265 (citing Schmuck v. State, 2017 WY 140, ¶ 69,
406 P.3d 286, 308 (Wyo. 2017); Haire v. State, 2017 WY 48, ¶ 25, 393 P.3d 1304, 1311
(Wyo. 2017)).
[¶41] Though the district court applied a different burden and standard of proof, 8 remand
is unnecessary. Here, unlike Hall, the district court held an appropriate evidentiary hearing
(4) Requests for discovery under Rule 16;
(5) Request for a severance of charges or defendants under Rule 14.
Id.6
“[T]his Court has not stated what quantity of evidence is necessary to satisfy the ‘minimal’ or ‘slight
burden’ required to make a prima facie showing[.]” Johns v. State, 2018 WY 16, ¶ 15, 409 P.3d 1260, 1265
(Wyo. 2018) (addressing the quantity of proof in the trial context). As that question is not dispositive in
this case, we will not elaborate here.
7
We do not decide whether the 2018 statutory amendments affect matters related to a self-defense claim at
trial.
8
By requiring the State to establish probable cause that § 6-2-602(f) did not apply, the district court adopted
Kansas’s and Kentucky’s approach. However, the underlying statutes in both those states expressly
referenced “probable cause” and those references were central to the rationale for placing a probable cause
burden on the State. State v. Ultreras, 296 Kan. 828, 843, 295 P.3d 1020, 1030–31 (Kan. 2013) (noting
16
and made thorough fact findings. The State does not challenge those findings. We
therefore turn our attention to whether those facts afford Mr. John immunity under § 6-2-
602.
III. The district court did not err when it granted Mr. John’s motion to dismiss.
[¶42] Applying Wyo. Stat. Ann. § 6-2-602, Mr. John is immune from prosecution only if
he:
• was lawfully present in his home when the shooting
occurred (subsection (e));
• was not the initial aggressor or engaged in illegal activity,
and therefore had no duty to retreat (subsection (e));
• is entitled to the presumption his fear was reasonable
(subsection (b));
• is entitled to the presumption Mr. Willow intended to
commit an unlawful act involving force or violence when
he entered Mr. John’s home unlawfully and forcefully
(subsection (d)); and
• was otherwise justified in using deadly force and the force
used was “necessary to prevent an injury or loss, and no
more” (subsection (a)).
Whether the district court properly applied the statutory requirements, definitions, and
presumptions to the facts is a question of law we review de novo. See Starrett v. State,
2012 WY 133, ¶¶ 9–19, 286 P.3d 1033, 1036–40 (Wyo. 2012); Johnson v. City of Laramie,
2008 WY 73, ¶ 7, 187 P.3d 355, 357 (Wyo. 2008). Because the record supports the district
court’s findings of fact and the State does not challenge them, we defer to those findings
in our analysis.
[¶43] Section 6-2-602(f) is the sole basis for self-defense immunity. Statutory language
therefore governs the analysis. Common law principles consistent with the statutory
“[t]he only standard of proof referenced in K.S.A. 21-3219 is to the standard of probable cause” and
rejecting the preponderance of the evidence standard adopted by the Colorado Supreme Court, whose
statute “makes no mention of any standard”); Rodgers v. Com., 285 S.W.3d 740, 754 (Ky. 2009)
(“infer[ring] from [§ 503.085] that the controlling standard of proof remains ‘probable cause.’”). Because
Wyo. Stat. Ann. § 6-2-602 nowhere mentions probable cause, we conclude the approach followed in Kansas
and Kentucky is not appropriate here. We look instead to our precedent for guidance on the appropriate
burdens and standards.
17
language may guide our application of the statutory requirements, definitions, and
presumptions, but nothing more. Elements of the common law defense of self-defense
have no place in this immunity analysis. See Wyo. Stat. Ann. § 6-1-102(b) (LexisNexis
2019) (“Common-law defenses are retained unless otherwise provided by this act.”), 6-2-
601 (LexisNexis 2019) (“The common law shall govern in all cases not governed by this
article.”). For the reasons stated below, we hold the court did not err when it granted Mr.
John’s motion to dismiss.
A. Mr. John met his prima facie burden.
[¶44] The majority of the evidence at the motion to dismiss hearing was that offered by
the State. Recall, the State called one witness, Detective Stedillie, who recounted various
witness statements from Ms. Hayden, Mr. Heims, and Mr. John’s mother, as well as
statements Mr. John made at the scene and the hospital. The State introduced the
postmortem examination report and a copy of text messages, the call log, and the internet
search history from Mr. John’s phone. Defense counsel thoroughly cross-examined the
detective and introduced a photograph showing the location of Mr. Willow’s body inside
Mr. John’s home.
[¶45] At the conclusion of the hearing, the district court found that Mr. John was lawfully
present in his home when the shooting occurred. 9 Mr. Willow’s body was inside Mr.
John’s home.
[¶46] The district court further found there had been a heated telephone call between Mr.
Willow and Mr. John prior to the shooting. After the call ended, Ms. Hayden and Mr.
Heims understood that Mr. Willow intended to go to Mr. John’s home to fight him. Mr.
Willow, Mr. Heims, and Ms. Hayden then drove to Mr. John’s home and parked in Lot
Number 69 because, according to Mr. Heims, Mr. Willow did not want the car to be seen
before or after. The three then walked to Lot Number 75. Both Mr. Willow and Ms.
Hayden were intoxicated.
[¶47] As they approached Mr. John’s home, Ms. Hayden and Mr. Heims saw Mr. John
holding an AR-15 style rifle with a mounted flashlight. Mr. John was either standing on
his porch or the threshold when, before any shots were fired, he yelled either “get back” or
“get out of here.” Mr. John “told the officers he said ‘back the F up’ approximately three
times prior to any shots being fired.”
[¶48] Mr. Heims stated that Mr. John stepped back into his home when Mr. Willow
charged up the steps. Ms. Hayden stated that Mr. Willow sprinted straight for Mr. John.
9
This fact implicates Wyoming’s long-recognized castle doctrine. We recently summarized castle doctrine
principles in Widdison, ¶¶ 13–14, 410 P.3d at 1211. The legislature codified these principles when it added
subsection (e) to § 6-2-602 in 2018. See Wyo. Stat. Ann. § 6-2-602(e).
18
Both eyewitnesses indicated Mr. Willow was angry and moving quickly toward Mr. John’s
house. Mr. John told officers he closed the door and Mr. Willow opened it and entered his
home. He said Mr. Willow rushed him, and he shot him.
[¶49] This prima facie evidence satisfies § 6-2-602(e): Mr. John was not the initial
aggressor, and there is no indication he was engaged in illegal activity. The record further
supports application of the § 6-2-602(b) presumption: Mr. John reasonably feared
imminent peril of death or serious bodily injury to himself or another when he used deadly
force because (i) Mr. Willow was in the process of unlawfully and forcefully entering or
had unlawfully and forcibly entered his home, and (ii) Mr. John knew or had reason to
believe that Mr. Willow’s unlawful and forcible entry was occurring. Wyo. Stat. Ann. § 6-
2-602(b). By its plain language, subsection (b) applies to Mr. John’s use of deadly force.
[¶50] Having applied the reasonable fear presumption, the record then supports
application of subsection (d) to presume Mr. Willow was entering Mr. John’s home with
the intent to commit an unlawful act involving force or violence. Wyo. Stat. Ann. § 6-2-
602(d).
[¶51] The remaining statutory requirement is whether Mr. John’s use of deadly force was
“necessary to prevent an injury or loss, and no more[.]” Wyo. Stat. Ann. § 6-2-602(a). The
record shows, and the district court found, Mr. John fired only nine of 30 available shots
in rapid succession, with no break in between. Two shots struck Mr. Willow in the chest
and six struck Mr. Willow’s backside in an “encounter that escalated in mere seconds[.]”
[¶52] Mr. John met his prima facie burden of showing that each statutory immunity
requirement was satisfied.
B. The State did not meet its preponderance burden.
[¶53] The State does not dispute that Mr. John was lawfully present in his home, and it
concedes that Mr. John was not the initial aggressor. Consequently, the State cannot
establish by a preponderance of the evidence that Mr. John did not satisfy § 6-2-602(e),
which specifies that “[a] person who is attacked in any place where the person is lawfully
present shall not have a duty to retreat before using reasonable defensive force pursuant to
subsection (a) of this section provided that he is not the initial aggressor and is not engaged
in illegal activity.” 10 Wyo. Stat. Ann. § 6-2-602(e).
10
The State argues for the first time on appeal that Mr. John engaged in illegal activity when he accepted
Mr. Willow’s offer to fight and then continued to goad Mr. Willow. The State presented no such argument
in its filings or at the motion to dismiss hearing. Based on the evidence and argument it heard, the district
court concluded Mr. John “was not engaged in illegal activity when he was in his home.” Because this is
not a jurisdictional issue and the State presented no argument or authority it is so fundamental we must
consider it, we “adhere to ‘[o]ur general rule . . . that we will not consider issues not raised in the court
19
[¶54] The State suggests Mr. John nevertheless had a duty to retreat because he was a
mutual combatant. Our case law holds that a mutual combatant has a duty to withdraw or
retreat before he may claim the right to self-defense. Haire, ¶ 36, 393 P.3d at 1313 (citing
Drennen, ¶ 39, 311 P.3d at 129). The plain language of § 6-2-602, however, makes no
allowance for mutual combatants when determining whether statutory immunity under
subsection (f) applies. “Mutual combatants” are nowhere mentioned in the statute. See
Wyo. Stat. Ann. § 6-2-602. Mr. John had a duty to retreat only if he was “the initial
aggressor.” Wyo. Stat. Ann. § 6-2-602(e) (emphasis added). The State concedes he was
not.
[¶55] As to whether Mr. John used reasonable defensive force pursuant to subsection (a),
we note the State did not challenge the district court’s application of the reasonable fear
presumption provided by subsection (b), or the presumption regarding Mr. Willow’s
“intent to commit an unlawful act involving force or violence” provided by subsection (d).
Accordingly, to defeat Mr. John’s motion to dismiss the State must establish by a
preponderance of the evidence that Mr. John’s use of deadly force exceeded the amount of
force “necessary to prevent an injury or loss.” 11 Wyo. Stat. Ann. § 6-2-602(a).
[¶56] The State relies on the postmortem examination and Detective Stedillie’s testimony
to argue Mr. John used excessive force because he was in no apparent danger when he fired
the gunshots that struck Mr. Willow in the back. 12 The State directs our attention to “the
medical examiner[’]s conclusion that [Mr.] Willow was disabled, but alive, when [Mr.]
John fired the shot into [Mr.] Willow’s back that ended his life.” The medical examiner’s
report identified Mr. Willow’s probable cause of death as “[m]ultiple gunshot wounds.”
The medical examiner identified 11 distinct wounds to the body that could have been
caused by as few as nine bullets. However, the report did not account for the circumstances
in which the gunshot wounds were inflicted. Those circumstances are set forth in the
district court’s findings.
[¶57] The district court accounted for various witness statements when it found that Mr.
Willow “started running toward” Mr. John and Mr. John “fired nine shots from the AR-15-
below.’” Williams v. Tharp, 2017 WY 8, ¶¶ 10–11, 388 P.3d 513, 517 (Wyo. 2017) (quoting Rock Springs
Land & Timber, Inc. v. Lore, 2003 WY 100, ¶ 35, 75 P.3d 614, 627 (Wyo. 2003)).
11
Subsection (a)’s requirement that deadly force must be “necessary” embodies the fundamental common
law principle that “[a] slaying committed after the danger has ceased to exist cannot be excused on the
ground of self-defense. A person loses his right to shoot again in self-defense after firing a shot which has
so disabled his assailant that there is no longer any apparent danger.” Patterson v. State, 682 P.2d 1049,
1053 (Wyo. 1984) (citation omitted).
12
The State also contends Mr. John had a duty to pursue reasonable alternatives to deadly force. According
to the State the reasonable alternatives of closing and locking the front door, calling 911, or “us[ing]
alternative means of force” were available to Mr. John. The amended statute leaves no room for
consideration of the State’s proffered alternatives where Mr. John used deadly force in his home in
accordance with the requirements set forth in § 6-2-602(e), and where the presumptions set forth in § 6-2-
602(b) and (d) soundly apply.
20
type rifle, in rapid succession, with no discernable break in time between those shots.” The
court noted that according to Mr. Heims, Mr. John “stepped back into [his] home when Mr.
Willow charged up the steps[.]”; Mr. Willow moved “quickly,” “he was angry,” and he
“mov[ed] toward the house with . . . an angry step.” It further noted that, according to Ms.
Hayden, “Mr. Willow sprinted straight for [Mr. John.]”
[¶58] On direct examination, Detective Stedillie testified that Ms. Hayden “recall[ed] one
shot ringing out and then [Mr. Willow] rushing towards the front of the trailer.” “There
was a rapid succession of shots[.]” On cross-examination, Detective Stedillie confirmed
Ms. Hayden “said that, once [Mr. John] started pulling the trigger, he didn’t stop[.]” Mr.
John’s neighbor “said it sounded like an automatic,” with “[o]ne shot right after another,
semiautomatic, as fast as you can pull the trigger[.]” Ms. Hayden, Mr. Heims, and Mr.
John’s mother all spoke “words to that effect.”
[¶59] In light of these circumstances the district court determined the encounter “escalated
in mere seconds.” Viewing the record and the court’s findings in the light most favorable
to the district court’s decision, Dixon v. State, 2019 WY 37, ¶ 17, 438 P.3d 216, 226 (Wyo.
2019), we find no error in its conclusion that Mr. John used necessary force. Cf. Patterson,
682 P.2d at 1050–51, 1053 (concluding no competent evidence supported self-defense jury
instructions when there was a gap in time between the perceived danger and the use of
deadly force).
[¶60] Nor did the court err when it determined “the State [did] not [meet] its burden to
establish that probable cause exists to conclude that [Mr. John’s] use of force was not
statutorily justified[.]” Because the State did not satisfy the probable cause standard, it
rationally follows that the State did not satisfy the higher preponderance of the evidence
standard. See Phippen v. State, 2013 WY 30, ¶ 14, 297 P.3d 104, 108 (Wyo. 2013) (citing
Florida v. Harris, 568 U.S. 237, 243–44, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61, 67–68
(2013)). The district court therefore properly granted Mr. John’s motion to dismiss.
CONCLUSION
[¶61] We affirm the district court’s “Order Dismissing Case Following W.S. 6-2-602
Hearing.”
21