Butcher v. State, 04-208.

CourtUnited States State Supreme Court of Wyoming
Citation123 P.3d 543,2005 WY 146
Docket NumberNo. 04-208.,04-208.
PartiesBrandon Keith BUTCHER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
Decision Date22 November 2005

Representing Appellant: Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Marion Yoder, Senior Assistant Public Defender.

Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Georgia L. Tibbetts, Senior Assistant Attorney General.


VOIGT, Justice.

[¶ 1] A jury found the appellant guilty of second-degree murder as a lesser-included offense to the charge of first-degree murder. We affirm the judgment and sentence entered by the district court.


1. Did the district court err in denying the appellant's motion for judgment of acquittal on the first-degree murder charge?

2. Was there sufficient evidence to sustain the finding of guilt on the lesser-included offense of second-degree murder?

3. Was the jury improperly instructed on the meaning of the word "purposely?"

4. Was cumulative prejudicial "flight" evidence improperly admitted?

5. Did the prosecutor commit misconduct by eliciting irrelevant prejudicial evidence and by making improper argument?


[¶ 2] In the early evening hours of June 17, 2003, John DiIorio accompanied Shawn Kouri and Becky Cavender to The Lounge, a bar in Casper, Wyoming. Cavender went to play dice, while DiIorio and Kouri sat at a nearby table, where they were given two free drinks by the bartender. When DiIorio said he was not feeling well, Kouri took him to a friend's home to get something to eat. Shortly thereafter, they returned to The Lounge to pick up Cavender. As they entered the bar, the appellant stopped Kouri and asked for a ride to a house on Lincoln Street. Kouri agreed, and the appellant got in the back seat of Kouri's car. DiIorio sat in the front passenger seat. The trio proceeded to the Lincoln Street address, but upon seeing two police cars there, they returned to The Lounge.

[¶ 3] Kouri parked in the parking area in front of the bar. The appellant got out of the vehicle and spoke with Kouri through the open window. DiIorio repeatedly asked the appellant what they were talking about, but the appellant ignored him, which upset DiIorio. The appellant calmed DiIorio down and walked away toward the bar. Kouri talked to DiIorio for a few minutes, and then went into the bar to find Cavender, leaving DiIorio sitting in the car.

[¶ 4] Shortly thereafter, the appellant spoke with Jenna Myers, whom he had accompanied to the bar to pick up Ashley Hessler, and asked for the keys to her car. Rather than giving the keys to the appellant, Myers went with him to the car and unlocked the doors. The appellant reached into the back seat area and grabbed his hunting knife, which was in a leather sheath. The appellant tucked the knife into the waistband of his shorts and adjusted his shirt so the knife was not visible.

[¶ 5] Myers locked the car doors and suggested to the appellant that they go back into the bar. The appellant declined the invitation and, instead, asked Myers about the identity of the man sitting in the front seat of Kouri's car. When Myers identified the man as "John DiIorio," the appellant asked if he was the one who had raped Hessler. Myers confirmed that he was, at which point the appellant said something to the effect that he "should go stab him" or "should stick him." Myers told the appellant not to do anything stupid, and again tried to get him to return to the bar. Once again, the appellant declined.

[¶ 6] Myers left the appellant standing next to her car and went back into the bar. Inside, she told Jeff Maxfield that the appellant was "going to stab somebody." Maxfield ran outside to stop the appellant. As he exited the bar, Maxfield saw the appellant running toward him from Kouri's car and wiping a knife on his shorts. The appellant asked Maxfield to help him get away from the area. When Maxfield refused, the appellant tucked the knife into his shorts and ran toward the bar's lower parking lot.

[¶ 7] Maxfield and other bar patrons ran to Kouri's car, where they found DiIorio slumped over in the driver's seat, with blood on his hands, shirt and pants. They pulled DiIorio out of the car, laid him on the ground, and administered CPR while waiting for an ambulance to arrive. DiIorio was taken to the hospital, where he died of his injuries. An autopsy revealed that DiIorio died of a stab wound, the knife having entered his chest at a steep right to left angle which, coupled with extensive internal injuries, indicated that he was moving away from his attacker when the fatal injury was inflicted.

[¶ 8] The police apprehended the appellant in a Glenrock, Wyoming, park on the night of June 18, 2003. The appellant had changed his appearance and had attempted to garner enough money and other resources to leave the area. He had also disposed of his bloody clothes and the knife with which he had stabbed DiIorio. The knife was never recovered.

[¶ 9] At trial, the appellant admitted stabbing DiIorio, but maintained that he did so in self-defense. According to the appellant, DiIorio was "acting crazy" after they returned to The Lounge from their excursion to Lincoln Street. He testified that he retrieved his knife from Myers' car and hid it in his clothing because DiIorio kept "mad-dogging" him (staring at him), and because DiIorio had earlier threatened him with a knife as he talked to Kouri. The appellant further testified that he went to Kouri's car to confront DiIorio after learning from Myers that DiIorio had raped Hessler. The appellant stated that, as he approached the passenger's door, DiIorio extended his right arm out of the window and slashed at him with a knife, as though he was trying to get him away from the vehicle. The appellant claimed that DiIorio then started to open the door, at which time the appellant slammed it shut and stabbed DiIorio in the chest. The appellant testified that he stabbed DiIorio because he felt threatened by DiIorio's actions and did not believe that he could safely retreat.

Did the district court err in denying the appellant's motion for judgment of acquittal on the first-degree murder charge?

Standard of Review

[¶ 10] Motions for judgment of acquittal are governed by W.R.Cr.P. 29, which provides in relevant part as follows:

(a) At close of evidence. Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant's motion for judgment of acquittal at the close of the evidence offered by the state is not granted, the defendant may offer evidence without having reserved the right.

* * * *

(c) After discharge of jury. — If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix during the 10-day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal within 10 days after such motion is filed, and if not so entered shall be deemed denied, unless within such 10 days the determination shall be continued by order of the court, but a continuance shall not extend the time to a day more than 30 days from the date the verdict is returned. If no verdict is returned, the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury.

[¶ 11] We apply the following standard in reviewing the denial of a motion for judgment of acquittal:

"In reviewing the denial of a motion for judgment of acquittal, we examine and accept as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, leaving out entirely the evidence of the defendant in conflict therewith.

A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. This standard applies whether the supporting evidence is direct or circumstantial."

Wise v. State, 654 P.2d 116, 117 (Wyo.1982) (quoting Weathers v. State, 652 P.2d 970, 972 (Wyo.1982)). We do not substitute our judgment for that of the jury; rather, we determine whether a reasonable jury could have found that the essential elements of the crime were proven beyond a reasonable doubt. Hankinson v. State, 2002 WY 86, ¶ 6, 47 P.3d 623, 626 (Wyo.2002); Robinson v. State, 11 P.3d 361, 368 (Wyo.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 L.Ed.2d 483 (2001). An appellant must support his motion for judgment of acquittal with "something more than a reference to defense evidence that, if believed by the jury, would have supported acquittal." Harlow v. State, 2005 WY 12, ¶ 52, 105 P.3d 1049, 1071 (Wyo.2005).

[¶ 12] Where a defendant introduces evidence after denial of a motion for judgment of acquittal made at the end of the State's case, he waives that motion, and only a similar motion made after return of the verdict may be claimed as error. Id., ¶ 50, 105 P.3d at 1070; Robinson, 11 P.3d at 368; Hodges v. State, 904 P.2d 334, 339 (Wyo.19...

To continue reading

Request your trial
47 cases
  • Byerly v. State
    • United States
    • Wyoming Supreme Court
    • December 27, 2019
    ...the crime, the motion should not be granted. This standard applies whether the supporting evidence is direct or circumstantial. Butcher v. State , 2005 WY 146, ¶ 11, 123 P.3d 543, 548 (Wyo. 2005). Bruce v. State , 2015 WY 46, ¶ 52, 346 P.3d 909, 926 (Wyo. 2015). In other words, "[o]ur duty ......
  • Teniente v. State
    • United States
    • Wyoming Supreme Court
    • October 18, 2007
    ...under `circumstances which manifest inherent unfairness and injustice or conduct which offends the public sense of fair play.' Butcher v. State, 2005 WY 146, ¶ 38, 123 P.3d 543, 554 (Wyo.2005) (citations [¶ 12] Finally, we note that when reviewing claims of prosecutorial misconduct, the pro......
  • Black v. State
    • United States
    • Wyoming Supreme Court
    • November 17, 2017
    ...where we have reviewed for prejudicial error when the district court imposes a remedy for prosecutorial misconduct. See, e.g., Butcher v. State, 2005 WY 146, ¶¶ 41–42, 123 P.3d 543, 555–56 (Wyo. 2005) (overruled on unrelated grounds by Wilkerson v. State, 2014 WY 136, 336 P.3d 1188 (Wyo. 20......
  • Hill v. State
    • United States
    • Wyoming Supreme Court
    • March 2, 2016
    ...2007 WY 25, ¶ 8, 151 P.3d 1131, 1133–34 (Wyo.2007) ; see also Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.2007) ; Butcher v. State, 2005 WY 146, ¶ 39, 123 P.3d 543, 554 (Wyo.2005) [,overruled on other grounds by Wilkerson v. State, 2014 WY 136, 336 P.3d 1188 (Wyo.2014) ]; Burto......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT