from the District Court of Lincoln County The Honorable
Joseph B. Bluemel, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan,
Chief Appellate Counsel. Argument by Mr. Morgan.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; Christyne M. Martens, Deputy Attorney General;
Caitlin F. Harper, Senior Assistant Attorney General.
Argument by Ms. Harper.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN and GRAY, JJ.
Wade Richard Farrow appeals his second-degree murder
conviction, asserting that the district court committed
several reversible errors during the course of his trial, and
further contending that he received ineffective assistance of
trial counsel. We affirm.
Mr. Farrow presents four issues:
I. Did the district court err when it instructed the jury?
II. Did 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) and 405(b)?
III. Did the prosecutors commit misconduct when they asserted
to the jury that it needed to consider the fact that Mr.
Farrow did not flee or leave the apartment prior to the
physical altercation against his claim of self-defense?
IV. Did the district court err in finding that counsel for
Mr. Farrow was not ineffective and denying his Rule 21
On the evening of December 20, 2014, Mr. Farrow and the woman
he was living with, Whitney Lowham, went to a bar in Afton,
Wyoming to celebrate a friend's birthday. After having a
couple of drinks with friends, Ms. Lowham left the bar
without Mr. Farrow and made her way to a party at Blake
Jensen's apartment. Once at the apartment, the
intoxicated Ms. Lowham kept falling asleep. Tyler Lindsey
took her to Mr. Jensen's bedroom so that she could sleep.
While still at the bar, Mr. Farrow confided in an
acquaintance, Andy Johnson, that he was concerned that Ms.
Lowham was with another man and worried that things would not
work out between them. Mr. Farrow and Mr. Johnson stayed at
the bar and talked until 2:00 a.m., then spent an additional
twenty to thirty minutes talking in the parking lot. The pair
then walked to Mr. Johnson's house where they continued
to talk for an additional hour and a half. Mr. Johnson felt
that Farrow was in a "pretty good spot emotionally"
and that "everything kind of settled down" by that
time, and the two decided to go look for Ms. Lowham.
Mr. Johnson drove them to Mr. Farrow's apartment. Mr.
Farrow went in to look for Ms. Lowham, but she was not there.
Mr. Farrow returned to Mr. Johnson's truck, at which time
he removed a pistol from the back of his pants and set it on
his lap. The two then went to Mr. Jensen's apartment to
look for Ms. Lowham.
Before going to the apartment, Mr. Farrow tucked the pistol
into the back of his pants. He and Mr. Johnson entered the
apartment, where Farrow asked about Ms. Lowham. He was told
that Mr. Lindsey had taken Ms. Lowham back to one of the
bedrooms, where she was asleep. Tony Hansen, who had been on
the couch, began talking to Farrow. During the conversation,
Mr. Farrow made a comment that Mr. Hansen perceived as
derogatory towards Mr. Lindsey. Mr. Hansen began
"lipping off," calling Farrow names and suggesting
that the two go outside to fight.
Mr. Farrow went back to the bedroom to check on Ms. Lowham.
He spent approximately ten minutes with her before he walked
back into the living room and sought help to get her out of
the apartment and home. Mr. Hansen resumed taunting Mr.
Farrow, calling him more names and continuing to insist that
they should go outside and fight. Another individual
suggested that the two should play beer pong to settle their
dispute, and when Mr. Farrow agreed, Mr. Hansen responded,
"Why, cuz you're a bitch?" In response, Mr.
Farrow pulled out his pistol and either shoved it in Mr.
Hansen's face or hit him across the face with it.
Witnesses disagree over whether Mr. Hansen froze or threw a
punch at Mr. Farrow.
Mr. Farrow then turned his back to Mr. Hansen, placed the
pistol up under his arm, and fired directly into Mr.
Hansen's chest. Melanie Pumphrey attempted to separate
the pair, and as a result was shot in the hip.
After being shot the first time, Mr. Hansen fell on his back.
Mr. Farrow positioned himself "straight over the
top" of Mr. Hansen, steadied both hands on the pistol,
and fired the remaining rounds into his body. Mr. Hansen
sustained a total of seven gunshot wounds. Mr. Farrow fled
the apartment and waited outside for law enforcement to
Mr. Farrow testified to a different version of events. He
told the jury that he did not want to leave without Ms.
Lowham, and so he decided to ask Mr. Johnson to help him
carry her out of the apartment. As soon as he returned to the
living room after checking on Ms. Lowham, Mr. Hansen again
suggested that they go outside to fight. Mr. Farrow turned
his back to Mr. Hansen, and Mr. Hansen struck him in the back
"really hard." Mr. Farrow testified that, in pain
and in fear, he pulled out the pistol and stuck it in Mr.
Hansen's face, though he was not planning to shoot him.
Mr. Farrow slumped over, was getting hit repeatedly, and two
other individuals had their hands on the pistol when his
vision started to go black and the pistol fired. Mr. Farrow
regained control of the pistol, saw Mr. Hansen standing, and
shot him again several times. Mr. Hansen then fell back, and
Mr. Farrow ran from the apartment.
Mr. Farrow was charged with first-degree murder for the
shooting death of Mr. Hansen and with aggravated assault and
battery for the injury to Ms. Pumphrey. The jury acquitted
him of first-degree murder, but found him guilty of the
lesser included offense of second-degree murder. It also
acquitted him of the aggravated assault and battery charge.
The district court sentenced Mr. Farrow to serve thirty-five
to sixty-five years imprisonment. Mr. Farrow appealed his
conviction and sentence. He also filed a motion for a new
trial pursuant to W.R.A.P. 21, asserting ineffective
assistance of trial counsel. After holding an evidentiary
hearing on the motion, the district court denied it. Mr.
Farrow appealed that decision as well, and we consolidated
his two appeals.
Mr. Farrow asserts that the district court committed five
reversible errors in instructing the jury. The district court
"has extensive discretion in tailoring jury
instructions, so long as they correctly state the law and
fairly and adequately cover the issues presented."
Merit Energy Co., LLC v. Horr, 2016 WY 3, ¶ 23,
366 P.3d 489, 497 (Wyo. 2016). "Accordingly, our review
of a district court's decision to give or refuse a
particular jury instruction is for an abuse of
discretion." Id. When there is no objection to
a jury instruction, however, we must review for plain error.
Schmuck v. State, 2017 WY 140');">2017 WY 140, ¶ 32, 406 P.3d
286, 297 (Wyo. 2017). We apply the appropriate standard of
review to each of Mr. Farrow's claims. We begin with his
three claims of improper instructions relating to the issue
of self-defense, then turn to his remaining two claims.
Right to Arm
Mr. Farrow's first claim is that the district court
improperly refused to give his proposed instruction
explaining his right to arm himself. Because the question was
presented to the district court, we review for abuse of
discretion. Mr. Farrow proposed a jury instruction based on
Wyoming Criminal Pattern Jury Instruction 8.05, which reads
One who has reasonable grounds to believe that another will
attack him, and that the anticipated attack will be of such a
character as to endanger his life or limb, or to cause him
serious bodily harm, has a right to arm himself for the
purpose of resisting such attack.
If the defendant armed himself in reasonable anticipation of
such an attack, that fact alone does not make the defendant
the aggressor or deprive the defendant of the right of
district court declined to give this instruction.
On appeal, Mr. Farrow asserts that long-standing precedent
supports his claim that the district court abused its
discretion when it refused to give this jury instruction. He
relies on several cases, including Brown v. State,
80 Wyo. 12, 336 P.2d 794 (1959), for the proposition that,
when the evidence conflicts as to who the initial aggressor
was, the jury should be instructed "as to [the]
accused's right to arm himself in anticipation of danger,
and, where such an instruction is warranted by the evidence,
a refusal to give it constitutes error." Id. at
30, 336 P.2d at 801. Similarly, in Baier v. State,
891 P.2d 754 (Wyo. 1995), we quoted with approval from 41
C.J.S. Homicide § 350c, which said:
Where the court restricts the issue of self-defense by
submitting the issue of provoking the difficulty, it should
also instruct the jury as to accused's right to arm
himself in anticipation of danger. Such an instruction is not
required where the court instructs as to self-defense without
any limitation as to provoking the difficulty.
Baier, 891 P.2d at 759. Mr. Farrow contends that the
identity of the first aggressor was not merely at issue in
his case, but "likely . . . one of the most crucial
issues for the jury to decide." The record supports this
contention, with evidence including testimony from Mr.
Johnson that "Mr. Hansen was definitely the one, you
know, kind of - kind of initiating it."
However, the prosecution argued to the district court that
this instruction was inappropriate because Mr. Farrow did not
testify that he armed himself in anticipation of an attack.
His testimony, to the contrary, was that he picked up the
firearm "just out of habit," and that it was his
habit to carry the pistol with him. The district court agreed
with the prosecution, and it declined to give the proposed
In Brown, we quoted 41 C.J.S. Homicide
§ 378 c (4) to the effect that an instruction on the
right of the defendant to arm himself in anticipation of
is neither necessary nor proper where such an issue is not
raised by the evidence in the case, as where the evidence
shows that, although accused was carrying a weapon at the
time, he was doing so merely as was his usual custom, and not
in anticipation of danger from deceased.
Brown, 80 Wyo. at 30, 336 P.2d at 800-01.
The record includes some evidence that Mr. Farrow had
anticipated an attack. For example, Mr. Johnson testified
that when he asked about the pistol, Mr. Farrow said he
"needed it in case he was attacked." This evidence
conflicts with Mr. Farrow's own testimony that he carried
the pistol as a matter of habit. In reviewing for abuse of
discretion, we view the record "in the light most
favorable to that decision and to the prevailing party."
Nicodemus v. Lampert, 2014 WY 135, ¶ 11, 336
P.3d 671, 674 (Wyo. 2014). The district court gave greater
credit to Mr. Farrow's testimony that he carried the
pistol as a matter of habit and discounted evidence to the
contrary. Viewing the evidence in a light favorable to that
decision, we cannot conclude that the district court abused
its discretion when it declined to instruct the jury on Mr.
Farrow's claimed right to arm himself in anticipation of
Determination of Aggressor
Mr. Farrow's second claim of error on the issue of
self-defense involves the instruction informing the jury that
it must determine whether Mr. Farrow or Mr. Hansen was the
aggressor. Instruction No. 22 read in relevant part:
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. Hans[e]n 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.
jury was further instructed that if it found that Mr. Farrow
was the initial aggressor, he 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." In the
alternative, the jury was informed that if it found that Mr.
Hansen was the initial aggressor, then Mr. Farrow could
"use deadly force only if necessary, and must consider
reasonable alternatives under the circumstances."
Mr. Farrow contends that the disputed jury instruction
improperly required the jury to choose whether Mr. Farrow or
Mr. Hansen was the aggressor. In other words, he claims that
it was improper to force the jury to conclude that if Mr.
Hansen was not the aggressor, then Mr. Farrow had to be. He
asserts that the law requires the jury to decide only if the
defendant was or was not the aggressor, but that it does not
require the jury to decide whether the victim was the
aggressor. "The victim is not on trial," Mr. Farrow
maintains, "and a defendant is not required to vilify
the victim at trial in order to establish that the defendant
was not the aggressor."
Mr. Farrow further asserts that because the instruction
indicated that either Mr. Farrow or Mr. Hansen had to be the
aggressor, the jury was not allowed to consider other
possibilities. He posits that both could have been
aggressors, or that neither one might have been. Mr. Farrow
contends that the jury was misled about the law of
self-defense because it was forced to make an artificial
As a preliminary matter, we must resolve the parties'
disagreement over the standard of review. Mr. Farrow asserts
that he objected to this instruction at trial, which would
cause us to review for abuse of discretion. The State
counters that we should review for plain error because Mr.
Farrow's objection at trial was different from his issue
on appeal. The record reflects that Mr. Farrow made this
objection at trial:
We do object to this, your Honor. I think this is adequately
covered in other instructions. Particularly, I'm
concerned with the language . . . . The verbal provocation
without more is generally insufficient to justify an initial
aggressor. I'm not quite sure exactly what that means but
I think it's confusing and unduly emphasizes one aspect
of the evidence over the others. We would object to giving
[¶22] We agree with the State that Mr. Farrow's
issue on appeal is different from the objection made at
trial. "Where the objection was not originally made on
the ground now urged, the argument is without force. . . .
The objector should lay his finger on the particular point
intended to be raised so that the trial court will have
notice and an opportunity to cure the alleged error."
Buszkiewic v. State, 2018 WY 100, ¶ 33, 424
P.3d 1272, 1282 (Wyo. 2018) (quoting Sanderson v.
State, 2007 WY 127, ¶ 13, 165 P.3d 83, 88 (Wyo.
2007). See also Ortega v. State, 966 P.2d 961, 966
(Wyo. 1998) ("The spirit and policy of our rules with
reference to jury instructions is to apprise and inform the
district court of the purpose of offered jury instructions
and of objections to proposed jury instructions so that the
court may have an opportunity to correct and amplify them
before submission to the jury."). Accordingly, we will
review for plain error. As often stated, plain error exists
when: "(1) the record clearly reflects the alleged
error; (2) the party claiming the error demonstrates a
violation of a clear and unequivocal rule of law; and (3) the
party proves that the violation adversely affected a
substantial right resulting in material prejudice."
Garriott v. State, 2018 WY 4, ¶ 21, 408 P.3d
771, 780-81 (quoting Hathaway v. State, 2017 WY 92,
¶ 29, 399 P.3d 625, 634 (Wyo. 2017) (quoting Griggs
v. State, 2016 WY 16');">2016 WY 16, ¶ 81, 367 P.3d 1108, 1132-33
The instruction challenged by Mr. Farrow appears in the
record, satisfying the first requirement of plain error. We
ask next if the instruction violated a clear and unequivocal
rule of law. In Knospler v. State, 2016 WY 1, 366
P.3d 479 (Wyo. 2016), we reviewed an instruction nearly
identical to the one Mr. Farrow challenges:
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. Baldwin 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 ...