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Gonzalez-Ochoa v. State

Supreme Court of Wyoming

January 27, 2014

Jesus Antonio GONZALEZ-OCHOA, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).

Page 600

[Copyrighted Material Omitted]

Page 601

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Elisabeth M.W. Trefonas, Assistant Public Defender. Argument by Ms. Trefonas.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney General. Argument by Ms. Zissou.

Before KITE, C.J., and HILL, VOIGT [*], BURKE, and DAVIS, JJ.

BURKE, Justice.

[¶ 1] Appellant, Jesus Antonio Gonzalez-Ochoa, appeals from a judgment and sentence following his conviction on one count of first degree murder. He raises issues involving assertions of an improper evidentiary ruling, prosecutorial misconduct, and error in instructing the jury. We find no error and affirm.

ISSUES

[¶ 2] Appellant presents these three issues:

I. Did the district court admit evidence of uncharged misconduct in violation of Rule 404(b) of the Wyoming Rules of Evidence?
II. Did the prosecutor engage in misconduct during closing argument by asserting facts not in evidence?
III. Did the district court err in refusing to give jury instructions proposed by the defense?

FACTS

[¶ 3] On the night of June 18, 2011, Christopher Walker was shot and killed in an alley near a bar in Wheatland, Wyoming. The State charged Appellant with the murder. Evidence at trial showed that Appellant and Mr. Walker had had an antagonistic relationship, at least in part due to the fact that Mr. Walker's girlfriend broke up with him and began dating Appellant. On several occasions, Mr. Walker had tried to goad Appellant into fighting with him.

[¶ 4] On the night of the shooting, Appellant was at the bar with friends. Mr. Walker and his neighbor came into the bar, and despite the hostility between Appellant and Mr. Walker, the two groups of men played pool and drank together. Mr. Walker again tried to instigate a fight with Appellant, and this time Appellant accepted the challenge. They left the bar together but, instead of immediately fighting, went to Appellant's vehicle to talk. Apparently, they were unable to settle their differences. Mr. Walker left the vehicle and started walking toward the alley. Appellant grabbed a rifle that was in his vehicle, and followed Mr. Walker into the alley. According to the State, Appellant then shot and killed Mr. Walker. After the shooting, Appellant fled the scene. He was arrested later that night at his home. The rifle was found in his vehicle, which was still parked near the bar. Testing indicated that the bullets recovered from Mr. Walker's body were fired from this rifle.

[¶ 5] Appellant was the only witness to the shooting. He denied shooting Mr. Walker, and told the jury that he took his rifle only to " scare" Mr. Walker " so he would leave me in peace." He testified that when he was walking toward the alley behind Mr. Walker, another person jumped out from behind a vehicle in the parking lot. According to Appellant, " this person came and pushed me away ... and he took away the gun; and he is the one that made all the shots; and I heard him say, ‘ I told you I was going to find you.’ " Appellant did not identify this other person.

Page 602

[¶ 6] The jury apparently rejected Appellant's version of the events and returned a verdict of guilty. Appellant was sentenced to life according to law. He filed this timely appeal.

DISCUSSION

404(b) Evidence

[¶ 7] In his first issue, Appellant contends that the district court admitted evidence of uncharged misconduct in violation of Rule 404(b) of the Wyoming Rules of Evidence. At trial, the prosecutor questioned Appellant's former girlfriend about the firearms he possessed. She said he got them after Mr. Walker " approached him wanting to fight." Asked next about people who had been " messing with" Appellant, she said Mr. Walker " was the main one," but that he had also mentioned a few other people. Following a few questions about Mr. Walker, this exchange occurred:

Q. Did you ever make statements when discussing this incident to the effect that [Appellant] had told you people wanted to kill him?
A. No....
Q. But were there other conversations about people in general that ...

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