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Phillip v. State

February 12, 2010


Appeal from the District Court of Natrona County, The Honorable Scott W. Skavdahl, Judge,

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] Jason Gerald Phillip (the appellant) was involved in a bar fight, during which he bit off a piece of a fellow patron's ear. As a result of this incident, he was charged with and convicted of aggravated assault and battery. On appeal, he claims that the district court erred in instructing the jury regarding an aggressor's forfeiture of a self-defense claim, asserting that there was no evidence showing that he was the aggressor in the altercation. The appellant also asserts that an Affidavit of Indigency, containing statements inconsistent with his in-court testimony, should not have been admitted into evidence. He argues that the inconsistent statements were inadmissible inasmuch as they involved collateral matters and that they resulted in an erroneous application of the falsus in uno, falsus in omnibus maxim. Finally, he contends that the admission of the affidavit resulted in an abridgement of his constitutionally protected right to equal protection, his Fifth Amendment right against self-incrimination, and his Sixth Amendment right to counsel. Finding no abuse of discretion or other error, we will affirm.


[¶2] 1. Did the district court err when it gave the jury an instruction regarding an aggressor's right to self-defense?

2. Did the district court err when it admitted into evidence the appellant's Affidavit of Indigency for impeachment purposes?


[¶3]This matter arose out of a fight that occurred in a bar in Casper, Wyoming, on July 18, 2008. During the altercation, the appellant bit off a piece of the ear of another patron, and as a result was charged with one count of aggravated assault and battery. The appellant pled not guilty and a jury trial was held. The jury found the appellant guilty as charged. The appellant timely appealed.


Did the district court err when it gave the jury an instruction regarding an aggressor's right to self-defense?

[¶4] The appellant did not object at trial to the instruction to which he now takes exception. Therefore, we review the appellant's claim under the three-part plain error analysis.

First, the record must clearly present the incident alleged to be error. Second, appellant must demonstrate that a clear and unequivocal rule of law was violated in a clear and obvious, not merely arguable, way. Last, appellant must prove that he was denied a substantial right resulting in material prejudice against him.

Ogden v. State, 2001 WY 109, ¶ 9, 34 P.3d 271, 274 (Wyo. 2001) (quoting CB v. State, 749 P.2d 267, 268-69 (Wyo. 1988)).

[¶5] At trial, the jury received Instruction No. 15 from the district court. It read:

YOU ARE INSTRUCTED that generally, the right to use self-defense is not available to one who is the aggressor or provokes the conflict. However, if one who provokes a conflict thereafter withdraws from it in good faith and informs his adversary by words or actions that he wants to end the conflict, and he is thereafter pursued or attacked, he then has the same right of self-defense as any other person.

When reviewing claims involving jury instructions, we review the instructions as a whole without singling out individual instructions or parts of them. Ellison v. State, 3 P.3d 845, 849 (Wyo. 2000). We give the trial courts great latitude in instructing the jury. Merchant v. State, 4 P.3d 184, 190 (Wyo. 2000). We "will not find reversible error in the jury instructions as long as the instructions correctly state the law and the entire set of instructions sufficiently covers the issues which were presented at the trial." Id. (quoting Harris v. State, 933 P.2d 1114, 1126 (Wyo. 1997)).

Coburn v. State, 2001 WY 30, ¶ 9, 20 P.3d 518, 520 (Wyo. 2001). There is no question Instruction No. 15 is a correct statement of Wyoming law. In fact, the instruction is the exact language found in Wyoming Criminal Pattern Jury Instruction 8.04. However, our inquiry does not end there. Specifically, when reviewing the propriety of a self-defense instruction, we have said the following:

It is initially the court's obligation to determine whether there is evidence before the jury from which it could infer that the defendant was at fault and be regarded as an aggressor and deprive himself of the right of self-defense. The instruction cannot be given as a matter of course in every case involving a claim of self-defense.

Cullin v. State, 565 P.2d 445, 450-51 (Wyo. 1977) (internal citations omitted).

[¶6] The appellant argues that the district court abused its discretion in giving Instruction No. 15, claiming that there was no evidence presented at trial that supported a finding that he was the aggressor in the conflict. Specifically, the appellant claims the only evidence against him was that "he was a person of color with an insufficiently deferential tone toward the white person who attacked him." The record does not support this assertion.

[¶7] With regard to the evidence that the defendant was the aggressor, the district court specifically commented as follows during the instruction conference: "And in this case, there is certainly plenty of evidence from which both sides can argue as to who was or wasn't the aggressor and who was or wasn't defending themselves and whether or not the force necessary -- or the force used was necessary." Our review of the record supports the district court's finding. The victim described the circumstances leading up to the altercation as follows:

[THE PROSECUTOR:] And there -- did there become [sic] a time where you stood up from your seat?

[THE VICTIM:] Yeah, that's when the argument really started to escalate.

Q: All right. Why do you say the argument was really escalating at that point?

A: Cause you could kind of tell that it was -- it was going -- it wasn't going to continue with, Oh, hey, you know, we're okay now and let's shake hands and have a drink. You could tell it was going to continue on to a more aggressive manner.

Q: And as you stood up, could you tell the ladies and gentlemen of the jury where your back was?

A: Yeah, I was -- when I had stood up, the chair swivels, you know. So I swiveled out towards the opening and had stood up, and my back was facing the bar at the time, three feet away from the bar.

Q: Okay. So you're facing the patrons?

A: Well, I was facing -- my back was facing the bar.

Q: All right. And using Exhibit 3 again, can you illustrate where he was when you stood up and had your back on the bar?

A: I -- I believe that the other picture would be better.

Q: All right. The first exhibit?

A: Yes, sir.

Q: And this is Exhibit 1, for the record.

A: He was standing just right here in this area. If my back was facing the bar, it would be a little more towards the -- right around ...

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