from the District Court of Uinta County The Honorable Joseph
B. Bluemel, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General;
Caitlin F. Harper, Assistant Attorney General. Argument by
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
A jury convicted Misty Lynn Widdison of aggravated assault
and attempted second-degree murder after she stabbed her
uncle. Ms. Widdison argues that the jury instructions
contained numerous errors and that evidence of specific
instances of conduct relevant to her uncle's violent
character was erroneously excluded. Because the trial court
improperly resolved the disputed factual question of whether
Ms. Widdison resided in her uncle's home and accordingly
declined to give the defense's proposed instruction
regarding the duty to retreat in one's residence, we
reverse and remand.
We reorder, rephrase and clarify the issues as follows:
the district court err when it:
A. Rejected the defense's proposed instruction regarding
the duty to retreat in one's own residence based on the
court's determination of fact?
B. Provided the jury with two separate standards for
assessing the claim of self-defense without indicating which
standard applied to which charge?
C. Gave an instruction on the right to arm oneself in
anticipation of an attack which was limited to situations of
D. Gave instructions regarding the first aggressor and the
duty to retreat that did not clearly allocate the burden of
proof and that have been held to constitute plain error?
E. Gave an incorrect malice definition?
F. Failed to provide definitions of "recklessly"
and "recklessly under circumstances manifesting an
extreme indifference to the value of human life"?
the district court abuse its discretion when it prohibited
testimony of specific instances of conduct relating to the
victim's character for violence under W.R.E. 404(a)(2)
The district court's resolution of the factual question
whether Ms. Widdison resided in David Jones' home
requires us to reverse and remand. Accordingly, we address
the remaining issues only to the extent our resolution will
be helpful to the district court on remand.
Ms. Widdison resided with her uncle, Mr. Jones, off and on,
usually six or more months at a time, for five years.
Beginning February 22, 2016, Ms. Widdison again began staying
with Mr. Jones. On Sunday, February 28, Mr. Jones brought
home a case of beer and a bottle of rum and shared it with
Ms. Widdison. They drank and watched television for most of
the afternoon and into the evening. At around 4:30 that
afternoon, Mike Nygard, a friend of Mr. Jones, stopped by. He
testified that both Ms. Widdison and Mr. Jones were very
drunk and were arguing. He stayed for several hours, and at
one point took Ms. Widdison to his home. He took her back at
approximately 7:30 p.m., but did not go inside.
About a half hour later, Mr. Nygard received the first in a
series of voicemails from Ms. Widdison. Mr. Nygard did not
listen to the voicemails until later that evening when Ms.
Widdison's mother telephoned him. Ms. Widdison's
mother and stepfather had received a voicemail from Ms.
Widdison in which she said, "I've got a
bleeder" and indicated she needed help. In response,
they contacted Mr. Nygard and asked him to check on Widdison
and Jones. Mr. Nygard listened to his voicemails. In the
final voicemail, Ms. Widdison repeated the statement,
"cleanup on aisle nine" several times. Mr. Nygard
When the sheriff's officers arrived, Ms. Widdison came
outside, said something they did not understand, and went
back into the home. They entered and found Mr. Jones lying on
the floor, covered with blood, and stating something about
molesting little girls. Ms. Widdison made statements
indicating that Mr. Jones had "tried touching" her.
Bloody footprints matching Ms. Widdison's boots
surrounded Mr. Jones, and the blood on the carpet had dried
by the time the officers arrived. Two bloody knives were
found in the kitchen sink. EMTs arrived shortly after the
sheriff's officers and began to administer first aid. Mr.
Jones was hospitalized and treated for a cut on his hand and
three stab wounds, one in his thigh and two in his neck.
Mr. Jones did not have a clear recollection of the events
leading up to the incident. He did testify that when their
argument began to escalate, he told Ms. Widdison that she had
to leave his home. Ms. Widdison testified that the conflict
arose because Mr. Jones insisted that she give him oral sex
in exchange for staying at his home. She stated that he
threatened her with a knife and pinned her to the ground, and
that she wrestled the knife away from him. She recalled
nothing about the stabbing or a second knife. Ms. Widdison
also testified that she was afraid Mr. Jones was going to
kill her and that he had threatened her with weapons before.
The defense presented two additional witnesses. Darcey
Fulmer, another of Mr. Jones' nieces, testified that Mr.
Jones had a propensity for violence and inappropriate sexual
solicitation and touching, especially when he was drunk. The
second witness, Mr. Jones' nephew, Yancey Norton, also
testified regarding Mr. Jones' reputation for violence
and for making unwanted sexual advances. Mr. Norton recounted
an incident in which Mr. Jones had locked him and Ms.
Widdison in the basement and threatened to kill them with a
gun he was holding. The district court interrupted the
testimony and prohibited the defense from presenting that or
other testimony regarding specific instances of Mr.
Jones' conduct. The defense rested without calling two
additional family members who had been listed as witnesses to
testify regarding Mr. Jones' reputation and propensity
The district court instructed the jury regarding both
aggravated assault and attempted second-degree murder. The
instructions included instructions on self-defense, the right
to arm, and the definition of "maliciously" as
applied to attempted second-degree murder. The court refused
Ms. Widdison's proposed instruction on the "castle
doctrine." These instructions are discussed in detail
below. The jury returned guilty verdicts on both counts, and
the district court sentenced Ms. Widdison to concurrent
sentences of twenty-five years on the attempted second-degree
murder charge and eight to ten years on the aggravated
assault charge. This appeal follows.
Did the jury instructions result in prejudicial
Did the district court err when it rejected the defense's
proposed instruction regarding the duty to retreat in
one's own residence based on the court's
determination of fact?
Ms. Widdison argues that the district court erred when it
refused to give her proposed castle doctrine instruction. The
question of whether a cohabitant may assert the castle
doctrine against another cohabitant is a question of first
impression in Wyoming. Accordingly, we first consider this
issue. Because we conclude that the castle doctrine applies
between cohabitants, we will also consider whether the
district court's refusal to give the castle doctrine
instruction was erroneous.
Cohabitants and the use of the castle doctrine
The majority of jurisdictions that have considered the issue
conclude that a cohabitant does not have a duty to retreat in
his own home when, through no fault of his own, he is
assailed by another cohabitant. Linda A. Sharp, Homicide:
duty to retreat where assailant and assailed share the same
living quarters, 67 A.L.R.5th 637, § 2(a) (1999
& 2017 Supp.) (fourteen jurisdictions hold cohabitant has
no duty to retreat; seven jurisdictions require cohabitant to
retreat, one of which (Florida) has since abandoned that
rule); see also State v. Shaw, 441 A.2d 561, 565
(Conn. 1981) (noting that most jurisdictions have adopted the
rule that there is no duty of retreat with cohabitants and
unlawful intruders). These courts reason that it would be
illogical to require retreat when one is attacked in
one's own home by a cohabitant, but not when attacked by
a stranger. "The danger posed and the sanctuary of the
dwelling is the same regardless of the status of the
attacker." State v. White, 819 N.W.2d 473, 479
(Neb. Ct. App. 2012) (citation omitted). In State v.
Glowacki, 630 N.W.2d 392, 401-02 (Minn. 2001), the
Minnesota Supreme Court adopted the majority rule,
We require reasonable retreat in self-defense outside the
home because the law presumes that there is somewhere safer
to go-home. See [State v. Carothers, 594
N.W.2d. 897, 900 (Minn. 1999)]. But self-defense in
the home is based on the premise that the home is "a
place critical for the protection of the family."
Id. at 901. Requiring retreat from the home before
acting in self-defense would require one to leave one's
safest place. As Justice Cardozo explained in People v.
Tomlins, 213 N.Y. 240, 107 N.E. 496 (1914), "[i]t
is not now and never has been the law that a man assailed in
his own dwelling is bound to retreat. If assailed there, he
may stand his ground and resist the attack. He is under no
duty to take to the fields and the highways, a fugitive from
his own home. * * * Flight is for sanctuary and shelter, and
shelter, if not sanctuary, is in the home." 107 N.E. at
497. The court in Tomlins went on to explain that
the no retreat from the home rule was the same regardless of
whether the aggressor was an intruder or a co-resident.
In contrast, a minority of jurisdictions distinguish
encounters between cohabitants and intruders and require
retreat when one is attacked by a cohabitant. Those courts
focus on the "entitlement of both combatants to occupy
the house and the fact that they usually are related, and
reason that the parties have some obligation to attempt to
defuse the situation." Cooper v. United States,
512 A.2d 1002, 1005-06 (D.C. Ct. App. 1986) (citations
We conclude that the majority rule is the better-reasoned
approach. When a person is attacked within her dwelling, the
right to defend herself and the privilege of non-retreat
should not depend upon the identity of the attacker.
"Further, forcing a resident to retreat from the home is
at odds with the historical notion of the home as a place
critical for the protection of the family." State v.
Carothers, 594 N.W.2d 897, 901 (Minn. 1999). In
addition, applying the castle doctrine to cohabitants will
better protect victims of domestic violence. As the Florida
Supreme Court recognized when it abandoned the minority view,
"placing a duty to retreat from the home on the
defendant may serve to legitimize the common myth [that
victims of domestic violence are free to leave the battering
relationship any time they wish to do so, and that abuse
could not have been so bad because otherwise she would have
left] and allow prosecutors to capitalize upon it."
Weiand v. State, 732 So.2d 1044, 1052-54 (Fla.
1999), superseded by statute on other grounds,
Little v. State, 111 So.3d 214 (Fla. Dist. Ct. App.
Finally, our holding is compatible with longstanding
self-defense principles. Beginning with Palmer v.
State, 9 Wyo. 40, 59 P. 793, 795 (Wyo. 1900), we have
consistently held that when a person without fault is
attacked in his home, he may defend himself. In
Palmer, we first adopted the castle doctrine. We
explained that "the law does not require that [a person
in his own home] shall avoid the necessity by retreating
before his assailant. His house is his castle, and when it is
invaded he is deemed to be 'at the wall, ' and no
further retreat is required." Id. (citations
omitted). We established that a person in his own home has a
right to defend himself against any person who attacks him:
Every man has a right to pursue his peaceful avocations in
his own house and about his own premises, unmolested by
threats or violence, or unlawful interference by any
other person or persons; and if, while pursuing these
avocations, he is violently attacked in a manner indicating a
purpose to perpetrate a known felony upon him, such as
murder, mayhem, or the like, under such circumstances he is
not obliged to retreat, but may pursue his adversary until he
has freed himself from all danger.
Id. at 796 (emphasis added) (citation omitted). In
State v. Flory, 40 Wyo. 184, 276 P. 458, 462 (Wyo.
1929), we again recognized that "a man need not retreat
if assaulted, without fault, in his own home . . . ."
More recently in Haire v. State, we reaffirmed the
rule, but declined to extend the castle doctrine beyond the
home and its curtilage. 2017 WY 48, ¶¶ 29-30, 393
P.3d 1304, 1311-12 (Wyo. 2017) ("[A]n individual who is
in his own home can stand his ground and need not retreat
before killing his assailant if he is attacked with
When a person without fault is confronted in her place of
residence, either by an intruder or by a cohabitant, she need
not retreat. However, if that person is the initial
aggressor, she is not without fault, and therefore has a duty
to retreat prior to defending herself. The rule that
"[t]he right of self-defense is not available to an
aggressor who provokes the conflict, unless the aggressor
withdraws in good faith and informs the other person by words
or actions of a desire to end the conflict, "
Haire, 2017 WY 48, ¶ 36, 393 P.3d at 1314,
applies whether the person is in her residence or not.
See also Drennen v. State, 2013 WY 118, ¶ 39,
311 P.3d 116, 129 (Wyo. 2013); Cassels v. People, 92
P.3d 951, 956 (Colo. 2004).
Availability of the castle doctrine in Ms. Widdison's
Having determined that the castle doctrine can be available
when one cohabitant attacks another, we now examine Ms.
Widdison's assertion that the district court erred when
it refused to give her proposed castle doctrine instruction
without first putting the fact question of whether Mr.
Jones' home was her residence to the jury. We review the
district court's refusal to give an offered instruction
for abuse of discretion. Pina v. Christensen, 2009
WY 64, ¶ 8, 206 P.3d 1298, 1300 (Wyo. 2009). We have
explained that an abuse of discretion occurs "when the
trial court acts outside the bounds of reason or commits an
error of law." In re L.L., 2007 WY 92, ¶
8, 159 P.3d 499, 501 (Wyo. 2007) (citations omitted). While
the refusal to give an offered instruction is reviewed for an
abuse of discretion, the question of whether the court
invaded the province of the jury by making a factual
determination constitutes an error of law is a legal question
which we review de novo. See Weinstein v. Beach,
2014 WY 167, ¶¶ 8-9, 340 P.3d 1013, 1016 (Wyo.
2014); K.C. v. State, 2011 WY 108, ¶ 7, 257
P.3d 23, 25-26 (Wyo. 2011).
Ms. Widdison testified that she considered Mr. Jones'
home to be her residence, and that she used his address on
her driver's license. Based upon this testimony, Ms.
Widdison offered the following instruction:
If the defendant at her place of residence had reasonable
ground to believe and actually did believe that she was in
imminent danger of death or serious bodily harm and that the
use of deadly force was necessary to repel such danger, she
was not required to retreat or to consider whether she could
safely retreat. The defendant was entitled to stand her
ground and use such force as was reasonably necessary under
the circumstances to save her life or protect herself from
serious bodily harm.
instruction conference, the State argued that Ms. Widdison
was a guest in Mr. Jones' home and could not claim that
it was her residence. Defense counsel claimed that because
she had come and gone from Mr. Jones' home for "a
long period of time, " it was her residence.
The district court agreed with the State, concluding that the
home was not Ms. Widdison's residence, and rejected the
The Court specifically relies upon the testimony that was
presented that she was asked to leave. You don't ask
somebody to leave their own residence if it's their
residence, if it's their house. I don't think