Howitt v. State

CourtUnited States State Supreme Court of Wyoming
Citation2022 WY 152
Docket NumberS-21-0284
PartiesJOHN GERALD HOWITT, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
Decision Date01 December 2022

2022 WY 152

JOHN GERALD HOWITT, Appellant (Defendant),

THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-21-0284

Supreme Court of Wyoming

December 1, 2022

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.




[¶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.


[¶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"


[¶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.


[¶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


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.


[¶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...

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