from the District Court of Natrona County The Honorable
Catherine E. Wilking, Judge
order granting Ms. Olson's Motion to Withdraw was entered
on December 13, 2017.
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.
Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Attorney General;
David L. Delicath, Deputy Attorney General, Christyne M.
Martens, Senior Assistant Attorney General. Argument by Ms.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted the appellant, Don Wesley Johns, of the
first-degree murder of his roommate, Don Wickersham. Mr.
Johns appeals his conviction, arguing that the district court
erroneously instructed the jury in multiple ways and that the
court utilized an improper stepped verdict form. We affirm.
Mr. Johns' issue statement is a blanket question of
whether the district court properly instructed the jury;
therefore, we re-state the issues to give them more
1. Did the district court properly instruct the jury
regarding the law of self-defense and the duty to retreat?
2. Did the district court properly instruct the jury
regarding the State's burden of proof regarding a
"sudden heat of passion" in voluntary manslaughter?
3. Did the district court utilize an improper stepped verdict
which prohibited the jury from considering "sudden heat
of passion" as a mitigating factor?
4. Did the district court err when it did not provide the
jury a definition of "recklessly" or "enhanced
recklessness" within the instruction defining malice in
During the afternoon and evening of August 29, 2015, Mr.
Johns and Mr. Wickersham hosted a few people at their
apartment while Mr. Johns received a tattoo from Shane
Erickson. Among the guests were Mr. Erickson's
fiancé, Jamie Geesy, Damian Gaylord, and Carmen Dimas.
Although both Mr. Johns and Mr. Wickersham had been drinking
alcohol, the witnesses described Mr. Johns as
"belligerent, " "loud, " and "up in
people's faces, " while Mr. Wickersham was
"laid back, really mellow" and "level
headed." However, Mr. Johns and Mr. Wickersham argued
with one another about the music being played at the party
and Mr. Johns' rent payment. Mr. Johns was yelling and
"getting crazy" and Mr. Wickersham told Mr. Johns
that if he did not calm down and stop arguing he would need
to leave. At one point in time, Mr. Wickersham asked Mr.
Gaylord to be a "referee" between he and Mr. Johns.
Mr. Wickersham left the apartment with Mr. Erickson and Ms.
Geesy to buy more alcohol as a means of temporarily getting
away from Mr. Johns.
Sometime during the party, Mr. Wickersham began showing the
guests some of his knife and sword collection. Ms. Geesy
explained that Mr. Wickersham was simply showing the knives
and was not acting in a threatening manner. This sentiment
was shared by Mr. Erickson. Mr. Gaylord observed Mr.
Wickersham "posture" towards Mr. Johns while he was
holding two of the knives, but there was twenty feet between
the two men and Mr. Gaylord did not consider Mr. Wickersham a
threat to anyone at the party. Ms. Geesy and Mr. Erickson,
however, did not recall seeing Mr. Wickersham
"posture" or act otherwise threatening towards Mr.
Johns. Ms. Geesy and Mr. Erickson left the apartment at
approximately 8:00 p.m. Mr. Gaylord left the apartment by
8:45 p.m. Ms. Geesy and Mr. Gaylord both conveyed that they
did not witness any physical altercations between Mr.
Wickersham and Mr. Johns at the apartment.
Later that evening, Michael Izatt, a resident in the
apartment complex, was on his deck when he was approached by
Mr. Johns. Mr. Johns took Mr. Izatt to the apartment and Mr.
Izatt observed Mr. Wickersham lying face down on an ottoman.
The two left the apartment and Mr. Johns asked Mr. Izatt if
he could keep his belongings in Mr. Izatt's apartment.
Mr. Izatt told him he could not, and Mr. Johns left. Mr.
Izatt later returned to his deck and found an 18-pack of beer
and a knife covered in blood. Mr. Izatt placed the knife in
the beer box and put them in the garbage can behind the
apartment complex. He did not call the police to report the
At approximately 9:00 p.m., Mr. Johns arrived at the home of
Kelly Stanley, who lived four or five blocks from Mr.
Johns' apartment. Mr. Johns was drunk, sweating
profusely, and had a cut on his finger which was wrapped in a
washcloth. He told Ms. Stanley that he needed help, he had
gone too far, and that he had killed Mr. Wickersham. Ms.
Stanley arranged a ride for Mr. Johns and then contacted her
friend, Suzanne Thornton, and asked her to check on Mr.
Wickersham. She did not call the police to report the
Ms. Thornton and Matt Epperson went to the apartment and
found Mr. Wickersham's body. Mr. Epperson made an
anonymous 911 call but emergency personnel were unable to
find the location. In the meantime, Mr. Johns arrived at the
home of his friend, Chris Keck. Mr. Johns told Mr. Keck that
he had cut his finger with a box cutter, and the two spent
most of the night trying to get the finger to stop bleeding.
The next morning, another resident of the apartment complex
went to Mr. Johns' apartment because water was leaking
through the ceiling into the apartment below. Upon arrival,
the resident found Mr. Wickersham's body with multiple
puncture wounds and immediately called 911. When the police
arrived, they found blood throughout the apartment, a large
sword in the bathtub, and the knife in the garbage can behind
the house. Mr. Johns was arrested later that day after
contacting the police. An autopsy showed Mr. Wickersham had
suffered twenty-nine sharp force injuries of which
twenty-four were stab wounds. He suffered seven injuries to
his head and neck, fifteen to the torso and back, and seven
to his extremities. Some of the injuries were consistent with
wounds indicating that Mr. Wickersham had been trying to
The State charged Mr. Johns with one count of first-degree
murder. The case proceeded to a jury trial where Mr.
Johns' attorney asserted that, although Mr. Johns did
kill Mr. Wickersham, he was acting in self-defense. The
district court instructed the jury on the law of self-defense
and included second-degree murder and voluntary manslaughter
as lesser offenses on the verdict form in the event the jury
did not find sufficient evidence of first-degree murder. The
jury convicted Mr. Johns of first-degree murder and the
district court sentenced him to life in prison without the
possibility of parole. Mr. Johns filed a timely notice of
Mr. Johns argues that the jury instructions regarding
self-defense were contradictory and confusing making it
impossible for the jury to decipher the appropriate law
regarding self-defense. He specifically takes issue with the
YOU ARE INSTRUCTED that if the Defendant, at his place of
residence, had reasonable ground to believe, and actually did
believe, that he was in imminent danger of death or serious
bodily harm and that the use of deadly force was necessary to
repel such danger, he was not required to retreat or to
consider whether he could safely retreat. The Defendant was
entitled to stand his ground and use such force as was
reasonably necessary under the circumstances to save his life
or protect himself from serious bodily harm.
YOU ARE INSTRUCTED that in considering the claim of
self-defense in this case, you must first determine whether
the Defendant was the aggressor in this case or whether Mr.
Wickersham was the aggressor in this case. Some sort of
physical aggression or a threat of imminent use of deadly
force is required before a person will be considered an
aggressor. Verbal provocation without more is generally
insufficient to justify an initial aggressor. If you find
that the Defendant was the aggressor in this case, you should
consider his duty under Instruction 38. If you find that Mr.
Wickersham was the aggressor, you should review the
Defendant's actions under Instruction 39.
YOU ARE INSTRUCTED that even if the Defendant had reasonable
grounds to believe and actually did believe that he was in
imminent danger of death or serious bodily harm, the
Defendant was justified in using deadly force to repel the
danger only if he retreated as far as he safely could do
before using deadly force. The law requires a person to
retreat rather than to take the life of an adversary if there
was a convenient mode of retreat without increasing his
actual or apparent peril. To excuse a failure to retreat, it
is necessary that the Defendant's peril would be
increased, or that it reasonably appeared that it would be