TODD M. SINDELAR, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Campbell County The Honorable
Michael N. Deegan, Judge
Representing Appellant: Office of the Public Defender: Diane
Lozano, State Public Defender; Tina N. Olson, Chief Appellate
Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.
Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Senior Assistant Attorney General.
Argument by Ms. Martens.
BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.
An order granting Ms. Olson's Motion to Withdraw was
entered on December 13, 2017.
A jury convicted Todd M. Sindelar of second-degree murder for
shooting and killing Matthew Boyer. Mr. Sindelar asserts the
district court committed several errors in instructing the
jury. We conclude that, although some of the instructions
were incorrect, Mr. Sindelar was not prejudiced by the errors
and, accordingly, affirm.
The issues on appeal are:
the district court commit plain error when it failed to
properly instruct the jury on self-defense and the duty to
the district court commit plain error when it instructed the
jury on second-degree murder?
a. Did the district court include an incorrect definition of
"maliciously" in the jury instructions?
b. Did the district court err by failing to define
"recklessly" or "recklessly under
circumstances manifesting an extreme indifference to the
value of human life" in the jury instructions?
Did the district court commit plain error by failing to
instruct the jury that the State had to prove beyond a
reasonable doubt that Mr. Sindelar did not act in a sudden
heat of passion and by using a stepped verdict form that did
not allow the jury to consider the defense of voluntary
Mr. Sindelar and Mr. Boyer had once been close friends but
they had a falling out some time prior to the event in
question. Mr. Boyer was also friends with Lyle Schmidt, who
had rented a room from Mr. Sindelar for a time. On the night
of November 27, 2013, Mr. Schmidt and Mr. Boyer were drinking
together. They discussed that Mr. Schmidt had given Mr.
Sindelar "400-some-dollars" for rent but
subsequently discovered that a former tenant had also paid
rent for the room for the same time period. Although Mr.
Schmidt had since moved out, he was upset about the rent and
decided to go to Mr. Sindelar's place and confront him
Mr. Sindelar was not at home when Mr. Schmidt and Mr. Boyer
arrived at his house, but another resident of the house,
Jonathan Whelan, was. Mr. Whelan stated that the two visitors
were "aggressively upset, " and Mr. Schmidt asked
Mr. Whelan to call Mr. Sindelar. Mr. Whelan made the call and
gave Mr. Schmidt the phone. Mr. Schmidt asked Mr. Sindelar
where he was. Mr. Sindelar said he was at Mingles, even
though he was actually at Boot Hill. Mr. Sindelar described
Mr. Schmidt as "very angry, " but Mr. Schmidt did
not threaten him or Mr. Whelan. Mr. Boyer did not speak at
Mr. Schmidt and Mr. Boyer went to Mingles looking for Mr.
Sindelar. Mr. Schmidt stated that they intended to talk to
Mr. Sindelar about the rent dispute. They did not locate Mr.
Sindelar, so they went back to his house. No one answered the
door at Mr. Sindelar's house, but Mr. Schmidt testified
that he and Mr. Boyer went in to see if they could find
anyone. He went up to the bedrooms on the second floor but
did not locate anyone. He testified that, as they were
leaving, he tripped over the coffee table and grabbed the
entertainment center to catch himself, accidentally knocking
it over. The entertainment center and the TV fell onto the
coffee table, breaking the table. Mr. Schmidt denied breaking
the door or a mirror downstairs.
Mr. Whelan testified that he had gone looking for Mr.
Sindelar at Boot Hill after Mr. Schmidt and Mr. Boyer left
the house the first time. The bar was already closed when he
got there and he did not find Mr. Sindelar, so he returned to
the house. According to Mr. Whelan, he found the door to the
house broken, the entertainment center knocked over, and a
mirror in a downstairs bedroom broken on the floor.
Mr. Whelan called Mr. Sindelar to report that the house had
been broken into, the entertainment center was knocked over,
and the coffee table and a mirror were broken. Mr. Sindelar
and a friend had been to Mingles looking for Mr. Schmidt and
Mr. Boyer and were headed back to the friend's house when
Mr. Whelan called. Mr. Sindelar instructed Mr. Whelan not to
call the police and said he would "take care of
it." Mr. Sindelar tried to get his friend to take him to
his car, which was parked at another friend's house, but
she refused, fearing he would get into trouble. So, Mr.
Sindelar called Mr. Whelan and asked him for a ride to his
car. Mr. Whelan took Mr. Sindelar home to get the keys and
then to his car. Mr. Sindelar gave him $20 for his trouble.
Mr. Sindelar drove to McDonalds, bought a sandwich and ate it
in his car. There is a dispute over the details; however, it
is clear that after finishing his meal, Mr. Sindelar drove to
Mr. Boyer's house around 3:30 a.m. and shot him.
Mr. Boyer's girlfriend, Jessica Hanten, testified that
she and Mr. Boyer were asleep in their second-floor bedroom
when she heard pounding on the door, which she described as
louder than a knock. Mr. Boyer woke up and went downstairs,
wearing only a pair of athletic shorts. Ms. Hanten heard him
going down the stairs and heard the front door open with no
gap between the two sounds. She heard Mr. Boyer say,
"What the f***?", followed immediately by two
gunshots. She did not hear any discussion between Mr. Boyer
and Mr. Sindelar. Ms. Hanten ran downstairs and found Mr.
Boyer on the floor with his whole body inside the house.
There was no knife or other weapon anywhere near him. She
shouted for help from a roommate who lived in the basement,
Jacob Rogers, and called 911. The 911 operator asked her to
look for weapons, and she told the operator she did not see
Mr. Rogers testified that in the early morning hours of
November 28, 2013, he heard loud banging on the front door.
He heard "someone running down the stairs, and then
opening the door, and then I heard two bangs, " which he
said sounded like bricks being clapped together. He described
the timing of the sounds as follows:
Q. Now, when you hear the banging on the door to the coming
down the stairs to the door opening, was there any break in
time between you hearing the coming down the stairs and the
opening of the door?
A. Like two seconds, maybe split seconds; not long at all.
Q. So it wasn't as though you hear someone coming down
the stairs, then there's a pause for ten minutes, and
then all of a sudden you hear the door open?
A. No, it was all in one concurring motion, like it all
happened all at once.
Q. So in succession?
A. In succession, yes. It happened someone going down the
stairs, opening the door, and then two gunshots, and it all
happened all altogether.
Mr. Rogers testified that, because of all the noise, he had
already started up the stairs from the basement when Ms.
Hanten screamed for him. He saw Mr. Boyer lying on his back
on the floor with his feet pointed toward the door. No
portion of Mr. Boyer's body was outside of the residence.
He saw "little bits" of blood on Mr. Boyer's
chest and stomach and picked him up and saw two exit wounds
in his back, with blood pooling on the floor beneath him. He
overheard Ms. Hanten talking to the 911 operator and she
mentioned CPR, so he tried to perform CPR "for a minute,
" but stopped because he did not know how to do it. He
denied seeing any weapons or "knives of any sort"
by Mr. Boyer and denied removing any knives or other weapons
from Mr. Boyer's presence.
Mr. Sindelar told a different story. He claimed that he drove
to Mr. Boyer's house at around 3:30 a.m. to
"talk" to him. He parked across the street from the
house, tucked the gun that he kept under his car seat into
the waistband of his pants, walked to the house and up onto
the front porch, opened the storm door and knocked. He said
that no one responded to his first knock, so he knocked
louder. Mr. Sindelar stated that he saw someone look out
through the blinds on the window to the side of the door and
a period of time went by before Mr. Boyer opened the door.
Mr. Sindelar testified that Mr. Boyer said, "What the
f*** are you doing here?" According to Mr. Sindelar, he
responded, "Why did you break into my house?" He
said he then noticed a knife in Mr. Boyer's
hand. Mr. Sindelar stated there was about three
feet between him and Mr. Boyer at that time - Mr. Boyer was
less than one foot inside the door and he was two feet
outside the door. Mr. Sindelar said that he pulled the gun
out of his waistband, held it at his side and said,
"Don't come at me with a knife. I have a gun."
Mr. Sindelar said that Mr. Boyer lunged at him with the
knife, he pulled the gun up and shot once, took a step back
and then shot Mr. Boyer a second time. He stated that Mr.
Boyer said something like, "Aw f*** call the, " and
the door shut. He heard the knife hit the floor when Mr.
After the shooting, Mr. Sindelar drove east on I-90. He
called his ex-girlfriend and, about ten to fifteen miles
outside of Gillette, threw the phone out the window so he
could not be tracked. He stopped in the Black Hills near
Sundance, Wyoming, to sleep. In the morning, he drove into
Rapid City, South Dakota, and purchased gas.
Near Rapid City, a South Dakota highway patrolman recognized
Mr. Sindelar's car from a BOLO (Be On the Look Out)
notice. After requesting assistance from other troopers, he
attempted to stop Mr. Sindelar. Mr. Sindelar led South Dakota
authorities on a high-speed chase. He eventually was taken
into custody when a set of spikes punctured his tire. Mr.
Sindelar stated that he planned to go to a large city, steal
a car, and drive to Florida.
The State charged Mr. Sindelar with first-degree murder. He
was tried in 2015, and the jury acquitted him of first-degree
murder but convicted him of the lesser charge, second-degree
murder. He appealed his conviction, and the State conceded
error because the district court had improperly given the
jury a "flight" instruction, in contravention of
Hadden v. State, 2002 WY 41, 42 P.3d 495 (Wyo.
2002). We entered an order reversing and remanding the case
for further proceedings. Sindelar v. State, 2016 WY
88, 378 P.3d 309 (Wyo. 2016).
The State filed an amended information, charging Mr. Sindelar
with second-degree murder. The matter was tried before a jury in
January 2017. Mr. Sindelar admitted that he shot and killed
Mr. Boyer, but claimed that he was acting in self-defense.
The jury convicted him of second-degree murder, and he filed
a timely notice of appeal.
Mr. Sindelar claims the district court gave several erroneous
instructions to the jury. He did not object to any of the
instructions; consequently, our review is limited to a search
for plain error. In order to establish the district court
committed plain error, Mr. Sindelar is required to show: 1)
the record is clear about the incident alleged as error; 2)
the district court transgressed a clear and unequivocal rule
of law; and 3) he was denied a substantial right resulting in
material prejudice. Johns v. State, 2018 WY 16,
¶ 12, 409 P.3d 1260, 1264 (Wyo. 2018) (citing
Schmuck v. State, 2017 WY 140');">2017 WY 140, ¶ 32, 406 P.3d
286, 297 (Wyo. 2017) and Collins v. State, 2015 WY
92, ¶ 10, 354 P.3d 55, 57 (Wyo. 2015)).
Mr. Sindelar claims the district court committed plain error
when it instructed the jury that he had an absolute duty to
retreat before using deadly force. The district court gave
the following instructions regarding self-defense and the
duty to retreat:
INSTRUCTION NO. 21
If the Defendant had reasonable grounds to believe and did
believe that he was in imminent danger of death or serious
bodily harm from which the Defendant could save himself only
by using deadly force against an assailant, the Defendant had
the right to use deadly force in order to defend himself.
"Deadly force" means force which is likely to cause
death or serious bodily harm.
The circumstances under which the Defendant acted must have
been such as to produce in the mind of a reasonably prudent
person, similarly situated, the reasonable belief that the
assailant was about to kill the Defendant or do serious
bodily harm to the Defendant. The danger must have been