                IN THE SUPREME COURT, STATE OF WYOMING

                                             2014 WY 136

                                                                 OCTOBER TERM, A.D. 2014

                                                                            October 31, 2014

RICHARD CAMERON WILKERSON,

Appellant
(Defendant),

v.                                                                   S-13-0230

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                       Appeal from the District Court of Johnson County
                          The Honorable William J. Edelman, Judge

Representing Appellant:
      Richard R. Jamieson, Jamieson & Robinson, LLC, Casper, Wyoming; John P. LaBuda
      and Rives T. White, LaBuda Law Office, PC, Pinedale, Wyoming; Kyle A. Ridgeway,
      Williams, Porter, Day & Neville, PC, Casper, Wyoming; John H. Robinson, Jamieson &
      Robinson, LLC, Jackson, Wyoming. Argument by Mr. Robinson.

Representing Appellee:
      Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny
      L. Craig, Senior Assistant Attorney General; Amy A. Pauli, Assistant Attorney General.
      Argument by Ms. Pauli.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.

*Chief Justice at time of oral argument.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Chief Justice.

[¶1] Appellant, Richard Cameron Wilkerson, challenges his conviction for second-
degree murder for the killing of Brian Newman. He contends the district court erred in
instructing the jury on the malicious intent element of second-degree murder.
Mr. Wilkerson further claims there was insufficient evidence to support his conviction.
We conclude that the jury instructions regarding the definition of malice were in accord
with our precedent. However, we also conclude that the definition of malice contained in
our precedent does not satisfy the malicious intent requirement of second-degree murder
under Wyo. Stat. Ann. § 6-2-104. Accordingly, we must overturn that precedent and
reverse Mr. Wilkerson’s conviction.

                                                 ISSUES

[¶2] Appellant presents five issues. Our resolution of this case makes it unnecessary
for us to consider all of the issues presented. We rephrase the issues and discuss them in
the following order:

                  1. In order to convict a defendant of second-degree murder,
                     the State must prove that the defendant acted
                     “purposefully and maliciously.” Was the jury properly
                     instructed regarding the meaning of the term “malice?”

                  2. Was sufficient evidence presented to sustain a conviction
                     for second-degree murder?1

                                                  FACTS

[¶3]      At approximately 7:00 p.m. on the night of September 21, 2012, the decedent,


1
    Mr. Wilkerson also presents the following issues, which we do not address:

                  1. Did the district court abuse its discretion in refusing to give the
                     Appellant’s proposed spoliation instruction?

                  2. Did the jury instructions that were ultimately given by the district
                     court violate Appellant’s due process right to have the jury instructed
                     on his theory of the case?

                  3. Does this Court’s precedent – that presentation of evidence by a
                     defendant waives his Rule 29 Motion for Judgment of Acquittal at
                     the close of the State’s case-in-chief – violate the Fifth Amendment’s
                     Double Jeopardy Clause?



                                                      1
Brian Newman, arrived at the Century Club bar in Buffalo, Wyoming, after consuming
several beers at home. Mr. Newman spent the remainder of the evening drinking beer
and shots of Jägermeister, and was still at the bar when Mr. Wilkerson arrived with a
group of friends at approximately 1:00 a.m. Although not invited, Mr. Newman
attempted to join Mr. Wilkerson’s party at a table in the bar by pulling up a stool and
making room for himself. Mr. Wilkerson ordered a round of drinks for his friends at the
table, but did not buy a drink for Mr. Newman. Mr. Newman became “mouthy and rude”
when he did not receive a drink, and proceeded to insult several of the women in
Mr. Wilkerson’s party, telling them that they were “dirty whores” and “sluts,” and that
they were at the bar to “prostitute [themselves].” After a heated exchange between
Mr. Wilkerson and Mr. Newman, several members of Mr. Wilkerson’s group told
Mr. Newman to leave the table, and the bartender eventually intervened and told
Mr. Newman to sit at the bar.

[¶4] Following the initial altercation between Mr. Wilkerson and Mr. Newman,
Mr. Wilkerson was led to the dance floor by another bar patron who noticed that he was
pacing and clenching his fists. Mr. Wilkerson left the dance floor after less than a
minute, walked over to where Mr. Newman was seated at the bar, and punched
Mr. Newman on the right side of his head. The punch knocked Mr. Newman off of his
barstool and he struck his head on the bar ledge or a bar stool as he fell to the floor.
While Mr. Newman lay unconscious on the floor, Mr. Wilkerson kicked or stomped in
his general direction and said “talk shit now, bitch.” Emergency personnel subsequently
arrived and transported Mr. Newman to the hospital, where he was pronounced dead.
Mr. Wilkerson was found at his sister’s house and placed under arrest. A subsequent
autopsy revealed that the cause of Mr. Newman’s death was “massive, fresh, acute
bleeding into [Mr. Newman’s] head that happened when he tore blood vessels from the
fall to the ground, hitting his head after he was punched.” The coroner’s report indicated
that Mr. Newman had a blood alcohol content of .226% at the time of his death.

[¶5] As part of its investigation of the incident, the Buffalo Police Department obtained
warrants to gather the clothing and shoes worn by Mr. Wilkerson at the time of the
altercation, as well as a sample of Mr. Wilkerson’s blood. Based on witness statements
that Mr. Wilkerson had kicked or stomped in the general direction of Mr. Newman after
he was knocked to the ground, the police submitted Mr. Wilkerson’s shoes to the State
Crime Laboratory for DNA testing. The testing revealed no evidence of Mr. Newman’s
DNA on the shoes. At the request of the coroner, Mr. Newman’s hands were bagged to
preserve potential DNA evidence. The State, however, did not request DNA testing of
Mr. Newman’s hands.

[¶6] On September 23, 2012, the State charged Mr. Wilkerson with second-degree
murder under Wyo. Stat. Ann. § 6-2-104 and § 6-10-102. A six-day jury trial began on
April 15, 2013. At the close of the State’s case-in-chief, Mr. Wilkerson moved for a
judgment of acquittal pursuant to W.R.Cr.P. 29(a). The district court denied

                                            2
Mr. Wilkerson’s motion. Mr. Wilkerson again moved for a judgment of acquittal after
the close of the defense’s case, after the close of the State’s rebuttal, and after the case
was submitted to the jury. Those motions were also denied.

[¶7] After the close of evidence, Mr. Wilkerson submitted a supplemental set of
proposed jury instructions. Two of those instructions attempted to define the “malice”
element of second-degree murder:

              LADIES AND GENTLEMEN OF THE JURY:

              The definition of “malice” requires proof of either:

              a. actual intent to cause the particular harm which is
                 produced or harm of the same general nature; or

              b. the wanton and willful doing of an act with awareness of
                 [a] plain and strong likelihood that such harm may result.

              LADIES AND GENTLEMEN OF THE JURY:

                     The striking of a blow with the fist on the side of the
              face or head is not likely to be attended with dangerous or
              fatal consequences, and no inference of malice is warranted
              by such proof.

The district court rejected the proposed instructions, stating that they did not accurately
reflect the status of the law in Wyoming. Instead, the court gave the following
instruction relating to malice, modeled on Wyoming Criminal Pattern Jury Instruction
21.01D2:

              INSTRUCTION NO. 8

                      The term malice means that the act(s) constituting the
              offense charged was/were done intentionally, without legal
              justification or excuse or that the act(s) was/were done in
              such a manner as to indicate hatred, ill will, or hostility
              towards another.

                     “Maliciously” means acting in the state of mind in
              which an intentional act is done without legal justification or
              excuse. The term “maliciously” conveys the meaning of
              hatred, ill will, or hostility toward another.


                                             3
Mr. Wilkerson also submitted a proposed instruction relating to the State’s alleged failure
to preserve potential DNA evidence on Mr. Newman’s hands. That instruction, which
stated that the failure to preserve evidence by a party may give rise to an unfavorable
inference against that party, was also rejected by the district court. After deliberating, the
jury found Mr. Wilkerson guilty of second-degree murder, and the court sentenced
Mr. Wilkerson to 20 to 40 years in prison. Mr. Wilkerson timely filed this appeal.

                                       DISCUSSION

[¶8] In order to resolve Mr. Wilkerson’s first claim of error, we must determine the
meaning of the term “maliciously” as that term is used in Wyo. Stat. Ann. § 6-2-104
(LexisNexis 2011), Wyoming’s second-degree murder statute. That issue presents a
question of law which we review de novo. See, e.g., Kammerer v. State, 2014 WY 50, ¶
5, 322 P.3d 827, 830 (Wyo. 2014). Under Section 6-2-104, “whoever purposely and
maliciously, but without premeditation, kills any human being is guilty of murder in the
second degree . . . .” As noted previously, the district court instructed the jury on the
element of malice as follows:

                      The term malice means that the act(s) constituting the
              offense charged was/were done intentionally, without legal
              justification or excuse or that the act(s) was/were done in
              such a manner as to indicate hatred, ill will, or hostility
              towards another.

                     “Maliciously” means acting in the state of mind in
              which an intentional act is done without legal justification or
              excuse. The term “maliciously” conveys the meaning of
              hatred, ill will, or hostility toward another.

Unquestionably, this instruction provides a very low threshold of proof for conviction.
Under this instruction, a defendant can be convicted of second-degree murder if the jury
is convinced that the act which caused the victim’s death was purposefully done “without
legal justification or excuse.” A defendant could also be convicted if the jury determines
that the act was “done in such a manner as to indicate hatred, ill will, or hostility towards
another.” The State need not prove both elements in order to convict under this
instruction.

[¶9] Mr. Wilkerson objected to the instruction and proposed an instruction that is at the
opposite end of the spectrum. The instruction proposed by Mr. Wilkerson would have
required proof of “actual intent to cause the particular harm which is produced” or
alternatively, “the wanton and willful doing of an act with awareness of [a] plain and
strong likelihood that such harm may result.” Essentially, Mr. Wilkerson’s proposed
instruction requires the State to prove that Mr. Wilkerson acted with intent to kill or with

                                              4
awareness that death was likely to result from his actions. We must determine if either
instruction satisfies the requirements of Wyo. Stat. Ann. § 6-2-104.

History of Second-Degree Murder in Wyoming

[¶10] We begin our analysis with a historical review of the law relating to second-degree
murder in Wyoming. At the time of adoption of Wyoming’s territorial criminal code, in
1869, the code provided that “[a]ny person who shall purposely and maliciously, but
without deliberation and premeditation, kill another . . . shall be deemed guilty of murder
in the second degree.” 1876 Compiled Laws of Wyoming ch. 35, § 16. Early decisions
from this Court interpreted the statute to require proof of the defendant’s intent to kill.
For example, in Ross v. State, 8 Wyo. 351, 384-385, 57 P. 924, 932 (1899), this Court
stated that murder committed with “a distinctly formed intention to kill, not in self-
defense, and without adequate provocation,” is “only murder in the second degree, which
must be done purposely and maliciously, that is, it must be done with the intent to kill
and with malice, or else it is not even murder in the second degree.” See also Parker v.
State, 24 Wyo. 491, 502, 161 P. 552, 555 (1916) (a homicide in which “the intention to
kill was present in the mind of defendant at the time the act was committed . . . under our
statute would constitute murder in the second degree”). Intent to kill continued to be an
element of second-degree murder in Wyoming for over a century. In Goodman v. State,
601 P.2d 178, 186-187 (Wyo. 1979), we approved of jury instructions that required the
State to prove “the essential element of intention to kill” as an element of second-degree
murder, stating that the instructions were “correct and complete in their statement of the
pertinent law.”

[¶11] In 1983, Wyoming’s Criminal Code was revised and modernized, but the second-
degree murder statute was retained without change:

                     The wording of the homicide statutes in Wyoming was
              not substantially changed when the legislature revised the
              criminal code in 1983. The criminal code revision
              subcommittee of the Joint Judiciary Interim Committee, in its
              1981 first draft, proposed to combine first-degree and second-
              degree murder into one offense. The subcommittee was
              heavily criticized for its proposal, because the draft, if
              enacted, would destroy 90 years of Wyoming case law in the
              area of homicide. The subcommittee subsequently chose to
              retain the existing second-degree murder statute without
              change.

Crozier v. State, 723 P.2d 42, 51 (Wyo. 1986). Three years after the legislature’s
adoption of the revised criminal code, however, our decision in Crozier held that intent to
kill was not a necessary element of second-degree murder.

                                            5
Crozier v. State

[¶12] In Crozier, 723 P.2d at 46, the defendant was convicted of second-degree murder
after he strangled a six-year-old boy. At trial, the defendant introduced evidence that he
was intoxicated at the time of the murder. Id., 723 P.2d at 50-51. Over the defendant’s
objection, the trial court instructed the jury that voluntary intoxication was not a defense
to second-degree murder based on the conclusion that second-degree murder was not a
specific intent crime. Id., 723 P.2d at 51. The defendant appealed, and we upheld the
trial court’s decision. Our analysis examined the meaning of the terms “purposely” and
“maliciously,” as used in Wyoming’s second-degree murder statute. In discussing the
element of malice, we noted that in North Carolina, which had adopted a definition of
second-degree murder similar to Wyoming’s, malice may be either express or implied.
Id., 723 P.2d at 53. We quoted from the North Carolina Supreme Court’s decision in
State v. Wilkerson, 247 S.E.2d 905, 917 (N.C. 1978), which defined “malice” broadly as
“wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and
a mind regardless of social duty . . . deliberately bent on mischief.” Ultimately, we
concluded that “malice” was a form of general, rather than specific, intent. Crozier, 723
P.2d at 56.

[¶13] We further concluded that the term “purposely,” as used in Wyoming’s second-
degree murder statute, was a general intent element that “describes the act to be
committed and not an intention to produce a desired, specific result.” Id., 723 P.2d at 54.
Accordingly, in a departure from our precedent, we held that the statute did not require a
specific intent to kill. Id., 723 P.2d at 56. Because we concluded that neither
“maliciously” nor “purposely” denoted a specific intent crime, we concluded the district
court had correctly instructed the jury that voluntary intoxication is not a defense to
second-degree murder. Id.

[¶14] Since our decision in Crozier, we have adhered to the conclusion that the term
“purposely” in Wyoming’s second-degree murder statute “requires only that the State
prove the appellant acted purposely, not that he killed purposely.” Butcher v. State, 2005
WY 146, ¶ 20, 123 P.3d 543, 550 (Wyo. 2005) (emphasis in original). Further, we have
expanded the definition of malice to include not only acts that are committed with
“hatred, ill will, or hostility,” but also, alternatively, acts that are committed “without
legal justification or excuse.” Id., ¶ 24, 123 P.3d at 551. Notably, this alternative
definition of malice, which was not mentioned in Crozier, was adopted from a case
addressing the malice requirement contained in Wyo. Stat. Ann. § 6-3-101, Wyoming’s
first-degree arson statute. In Keats v. State, 2003 WY 19, ¶¶ 5-6, 64 P.3d 104, 106 (Wyo.
2003), the defendant was convicted of first-degree arson for starting several fires in his
home during a standoff with the police. Addressing the defendant’s challenge to the jury
instructions, we concluded that, in the context of Wyoming’s arson statute, the
requirement of malice is satisfied where the State proves either that the defendant acted

                                             6
“without legal justification or excuse” or that the defendant acted with “ill will and
hostility.” Id., ¶ 33, 64 P.3d at 114. Both the facts of Keats and the discussion in that
case indicate that this alternative definition of “malice” would be limited to cases
applying Wyoming’s arson statute. Id., ¶¶ 5, 6, 28, 64 P.3d at 106, 112-113. Indeed, we
quoted the following commentary noting that, outside of the context of first-degree arson,
malice requires an absence of legal justification or excuse in addition to “an intent to
cause a particular harm or the ‘wanton and [willful] doing of an act with awareness of a
plain and strong likelihood that such harm may result’”:

                     In his analysis of the revised criminal code that
              included the new arson statute, Professor Theodore E. Lauer
              concluded that the word “maliciously” may well be
              surplusage in the statute:

                             The word “maliciously” in first-degree arson is
                     probably unnecessary. While traditionally arson has
                     required that a fire be “willfully and maliciously”
                     started, the term “maliciously” has meant something
                     less than intentionally. See R. Perkins & R. Boyce,
                     Criminal Law 856-61 (3d ed.1982), where a malicious
                     state of mind is said to be one wherein there is an
                     absence of justification, excuse or mitigation, and
                     either an intent to cause a particular harm or the
                     “wanton and [willful] doing of an act with awareness
                     of a plain and strong likelihood that such harm may
                     result.” Id. at 860. But where, as in first degree arson,
                     the act of starting the fire must be done “with intent to
                     destroy or damage an occupied structure,” it is clear
                     that only an intent to cause the harm will suffice, and a
                     knowing or reckless state of mind is not enough.

              Theodore E. Lauer, Goodbye 3-Card Monte: The Wyoming
              Criminal Code of 1982, XIX Land & Water L. Rev. 509, 511
              n.12 (1984).

Keats, ¶ 28, 64 P.3d at 112-113. Nonetheless, just two years later, in Butcher, ¶ 24, 123
P.3d at 550-51, we indicated that this alternative definition of malice also applied in cases
arising under Wyoming’s second-degree murder statute. In Butcher, we concluded that
the trial court had erred in requiring the State to satisfy the element of malice by proving
both that the defendant acted with “hatred, ill will, or hostility,” and “without legal
justification or excuse.” Id. (noting that “Any error in the present case, however, inured
to the benefit of the appellant because the definition given required the State to prove
both an intentional act done without legal justification or excuse, and hatred, ill will, or

                                             7
hostility”).

Lopez v. State

[¶15] In his review of Wyoming’s Criminal Code, conducted fifteen years after its
revision, Professor Lauer noted that, as a result of the decision in Crozier, “any act done
maliciously and willfully which causes the death of another person is second degree
murder. Thus, striking or shoving another intentionally and with malice but without
intent to kill, will be second degree murder if the victim dies from the consequences of
the blow or shove.” Theodore E. Lauer, The Wyoming Criminal Code Revisited:
Reflections After Fifteen Years, 33 Land & Water L. Rev. 523, 552 (1998). According to
Professor Lauer’s review, “Crozier requires rethinking of Wyoming’s law of homicide.
By doing away with the intent to kill in second degree murder, the Wyoming Supreme
Court may have in fact enlarged the reach of second degree murder, transferring some
killings from the category of manslaughter to that of second degree murder.” Id. at 553.
That Crozier expanded the scope of second-degree murder in Wyoming seems to have
been confirmed by Lopez v. State, 2004 WY 28, 86 P.3d 851 (Wyo. 2004), a case in
which the defendant was found guilty of second-degree murder after causing the victim’s
death by delivering an open-hand slap to his head. In determining that there was
insufficient evidence to support the conviction in Lopez, we relied on precedent from
Utah and Colorado holding that malice, in the context of second-degree murder, requires
a showing of depraved indifference to the value of human life. Id., ¶¶ 21-23, 86 P.3d at
858-859.

[¶16] The facts of Lopez are relatively straightforward. Lopez and the victim were
“good friends” and Lopez was aware that the victim suffered from chronic alcoholism.
During a night of drinking together, Lopez “became upset that [the victim] was drinking
whiskey and told him to stop drinking before he killed himself.” Id., ¶ 4, 86 P.3d at 855.
The victim pushed Lopez, and Lopez then slapped the victim “on his head with an open
hand and pushed him back down onto a couch.” Id. The victim died approximately 34
hours later from a blood clot caused by the slap, and it was subsequently determined that
the victim “had numerous health problems that made him susceptible to death by the
slap.” Id., ¶ 8, 86 P.3d at 856. After a jury trial, Lopez was found guilty of second-
degree murder.

[¶17] On appeal, Lopez argued that the evidence was not sufficient to demonstrate that
he had acted maliciously. We began our analysis by setting forth the meanings of the
terms “purposely” and “maliciously,” following the definitions set forth in Crozier.
Notably, in contrast to Keats and Butcher, our discussion did not indicate that the element
of malice could be satisfied by a showing that the defendant acted “without legal
justification or excuse:”

                    When used as an element of second degree murder,

                                            8
             “purposely” means intentionally or deliberately. State v.
             Keffer, 860 P.2d 1118, 1138 (Wyo. 1993). “As so used in the
             second degree murder statute, ‘purposely’ is a general-intent
             element that ‘describes the act to be committed and not an
             intention to produce a desired, specific result.’” Id. (quoting
             Crozier v. State, 723 P.2d 42, 54 (Wyo. 1986)). Because
             second degree murder is a general-intent crime, the evidence
             to support a conviction for second degree murder must
             demonstrate “the defendant acted with deliberation, but it
             does not require evidence that he deliberately killed.” Keffer,
             860 P.2d at 1138 (quoting Ramos v. State, 806 P.2d 822, 830
             (Wyo. 1991)). See also Young v. State, 849 P.2d 754, 761-62
             (Wyo. 1993). “It follows that ‘purposely’ distinguishes the act
             from one committed ‘carelessly, inadvertently, accidentally,
             negligently, heedlessly or thoughtlessly.’” Keffer, 860 P.2d at
             1138 (quoting Dean v. State, 668 P.2d 639, 642 (Wyo. 1983)
             (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.
             1982))).

                     Second degree murder requires proof of express,
             implied, constructive or legal malice. Keffer, 860 P.2d at
             1138-39. The State must prove circumstances from which
             legal malice might be justly inferred. Nunez v. State, 383 P.2d
             726, 729 (Wyo. 1963). This form of homicide is a killing that
             cannot be justified under the law of self-defense, and requires
             murderous mens rea. See Keats v. State, 2003 WY 19, ¶ 28,
             64 P.3d 104, ¶ 28 (Wyo. 2003) (“maliciously” gives a statute
             “a mens rea element, without which it would reach innocent
             conduct”). The required state of mind for a murder conviction
             is that degree of mental disturbance or aberration of the mind
             that is wicked, evil and of unlawful purpose, or of that willful
             disregard of the rights of others which is implied in the term
             malice. Keffer, 860 P.2d at 1139. Where malice is absent, the
             crime is manslaughter even if the act that caused the death
             was done purposely. Id.

Lopez, ¶¶ 18-19, 86 P.3d at 857-858. Despite this definition of malice, however, in
determining whether Lopez had acted with the requisite malice, we relied on precedent
from Utah and Colorado indicating that “since death is not the natural or probable result
of a blow with the hand, no malice will ordinarily be inferred although death results from
the assault.” Id., ¶ 22, 86 P.3d at 858.

                    In the past, we have upheld murder convictions where

                                            9
death was not caused by a weapon but only with fists. Dryden
v. State, 535 P.2d 483, 495-96 (Wyo. 1975); see also Coca v.
State, 423 P.2d 382, 387-88 (Wyo. 1967). Those cases are
distinguishable from this case because, in those cases,
numerous vicious blows by a fist were inflicted. Id. Here, we
have one open hand slap, not a blow or blows by a fist. In
Wharton’s Criminal Law, the statement is made that malice is
not to be inferred by a blow with the hand. 2 Charles E.
Torcia, Wharton’s Criminal Law § 141, at 252, 255 (15th ed.
1994). LaFave makes the general statement that it would be
ridiculous to find murder because of a slap. 2 Wayne R.
LaFave, Substantive Criminal Law § 14.2(b), at 432 (2d ed.
2003). In an overview of the general state of law, it has been
said:

       Since death is not the natural or probable result of a
       blow with the hand, it seems that no intent to kill will,
       under ordinary circumstances, be inferred, although
       death results from an assault thus committed.

M.C. Dransfield, Annotation, Inference of Malice or Intent to
Kill Where Killing is by Blow Without Weapon, 22 A.L.R.2d
854, at 857 (1952). Death caused by the repeated use of fists
or feet or boots does present evidence of malice. “[I]n
appropriate cases, generally involving big men attacking
small, frail men or women or children, and generally
involving the repeated use of hands and feet, an inference of
an intent to kill may properly be drawn.” LaFave, supra, §
14.2(b), at 432 (emphasis added).

        Both Colorado and Utah have recognized that there is
a line of authority that since death is not the natural or
probable result of a blow with the hand, no malice will
ordinarily be inferred although death results from the assault.
State v. Wardle, 564 P.2d 764, 765-66 (Utah 1977); Pine v.
People, 168 Colo. 290, 455 P.2d 868, 869 (1969). These
courts reason that the malice necessary to constitute a murder
is presumed where the act is deliberate and is likely to be
attended with dangerous or fatal consequences. Death or great
bodily harm must be the reasonable or probable consequence
of the act to constitute murder. The striking of a blow with the
fist on the side of the face or head is not likely to be attended
with dangerous or fatal consequences, and no inference of

                               10
             malice is warranted by such proof. Id. Both states, however,
             have recognized that an assault with hands or feet may
             support a conviction for second degree murder where the
             circumstances show that death resulted from a violent or
             brutal beating or blows inflicted to victims susceptible
             because of age or known infirmity. Id. Based on this
             precedent concerning fists, we believe it reasonable to
             conclude that these courts would not permit an inference of
             malice because a slap was delivered by an open hand.

                   We observe then that, generally, evidence that death
             caused by an open hand slap without more is insufficient
             evidence of malice and, therefore, is not murder.

Lopez, ¶¶ 21-23, 86 P.3d at 858-859. Ultimately, we concluded that “Lopez acted
purposely; however, the only evidence of malice is the single open hand slap, and we
agree with long standing precedent that, without more, malice cannot be inferred from
this minimal act. We hold that the evidence is insufficient as a matter of law that Lopez
acted maliciously.” Id., ¶ 24, 86 P.3d at 859. Importantly, however, the “long standing
precedent” we relied on in reaching this conclusion, including the decisions in Wardle
and Pine, indicates that malice, in the context of second-degree murder, requires a
showing of depraved indifference to the value of human life.

State v. Wardle and Pine v. People

[¶18] In Wardle, 564 P.2d 764, a case decided by the Utah Supreme Court, the victim
died after the defendant repeatedly jumped on the victim. The question on appeal was
whether the defendant’s conduct could support an inference that the defendant acted with
one of the three mental states required under Utah’s second-degree murder statute: intent
to kill, intent to cause serious bodily injury, or depraved indifference to human life. The
court concluded that the defendant’s conduct could support an inference of the required
mental state, and in doing so, it equated “implied malice” with a mental state exhibiting
“a depraved indifference to human life.” Id., 564 P.2d at 765 n.1. The court also noted
that implied malice was demonstrated, under a more traditional formulation, “when the
circumstances attending the killing show an abandoned and malignant heart.” Id.

[¶19] The same standard is used in Colorado. Although the decision in Pine does not
define the term “implied malice,” contemporaneous decisions from Colorado hold that
“implied malice” exists where “circumstances show an abandoned or malignant heart.”
See, e.g., People v. Spinuzzi, 369 P.2d 427, 430 (Colo. 1962); see also Eric A. Johnson,
The Crime That Wasn’t There: Wyoming’s Elusive Second-Degree Murder Statute, 7
Wyo. L. Rev. 1, 30 (2007). The Colorado Supreme Court has equated this standard to
“depraved heart” and “extreme indifference,” stating that all three formulations of malice

                                            11
require an extreme form of recklessness:

                    At common law, murder was defined as the unlawful
             killing of another human being with “malice aforethought.”
             Model Penal Code § 210.2, comment at 13-14 (official
             draft/rev. comments 1980). There were no degrees of murder
             at common law; instead, malice was the essential ingredient
             distinguishing murder from other types of criminal homicide.
             Quinn, Homicides Under the Colorado Criminal Code, 49
             Den. L.J. 137, 138 (1972). Over time, the phrase malice
             aforethought became an arbitrary symbol used by common
             law judges to signify any of a number of mental states
             deemed sufficient to support liability for murder. Model Penal
             Code, supra § 210.2, comment at 14. Among the categories
             was what became known as “depraved-heart murder.” Id.
             This label derived from decisions and statutes condemning as
             murder unintentional homicide under circumstances evincing
             a “depraved mind” or an “abandoned and malignant heart.”
             Id.

                     Malice aforethought could be either express or
             implied. 1 Warren on Homicide § 63 (1938 ed.). Malice
             included more than simply an intent to kill or endanger
             human life. Quinn, 49 Den. L.J. at 138. Malice could also be
             found where the killer directed no animosity, enmity, or ill
             will toward the victim. C. Torcia, 2 Wharton’s Criminal Law
             § 137 (14th ed. 1979). In describing the kind of malice which
             would support a conviction for murder at common law, a
             number of commentators seized upon the following
             definition:

                    Malice is not restricted to hatred, spite, or malevolence
                    toward the particular person slain, but also includes
                    that general malignity and reckless disregard of human
                    life proceeding from a heart void of a just sense of
                    social duty and fatally bent on mischief.

             1 Warren on Homicide § 66 at 271. See also 2 Wharton’s §§
             137, 143.

                    The essential concept was one of extreme recklessness
             regarding homicidal risk. Thus, a person might be liable for
             murder absent any actual intent to kill or injure if he caused

                                           12
             the death of another in a manner exhibiting “a wanton and
             willful disregard of an unreasonable human risk,” or, in the
             confusing elaboration of one court “a wickedness of
             disposition, hardness of heart, cruelty, recklessness of
             consequences, and a mind regardless of social duty.” Since
             “depraved heart” murderers exhibit the same disregard for the
             value of human life as deliberate or premeditated murderers,
             they are viewed as deserving of the same serious sanctions.

                    Examples of the kinds of conduct which would
             demonstrate “depraved heart” murder at common law
             include: the firing of a loaded gun, without provocation, into
             a moving train and the resultant death of an innocent
             bystander, the discharge of a firearm into a crowd of people,
             operating a vehicle at high speed, placing obstructions on a
             railroad track, throwing a heavy piece of timber from a roof
             onto a crowded street, pointing a revolver loaded with a
             single cartridge and firing it on the third pull of the trigger
             during a game of Russian Roulette, firing several shots into a
             home known to be occupied, intending to shoot over a
             victim’s head in order to scare him, but hitting him by
             “mistake,” and throwing a heavy beer glass at a woman
             carrying a lighted oil lamp.

People v. Jefferson, 748 P.2d 1223, 1226-1227 (Colo. 1988) (some internal citations
omitted); see also Johnson, 7 Wyo. L. Rev. at 30. Accordingly, in both Utah and
Colorado, in order to show malicious intent necessary to second-degree murder, the State
must demonstrate that the defendant acted recklessly under circumstances manifesting
extreme indifference to the value of human life.

O’Brien v. State

[¶20] This formulation of malice, requiring extreme indifference to the value of human
life, is also the standard set forth in the Model Penal Code, as we have previously noted
in O’Brien v. State, 2002 WY 63, ¶ 14, 45 P.3d 225, 230-231 (Wyo. 2002). In that case,
the defendant and the victim had been driving around in separate cars on the streets of
Gillette, Wyoming. Id., ¶ 3, 45 P.3d at 228. After calling out insults to the occupants of
the victim’s vehicle, the defendant approached the victim in a parking lot. Id., ¶ 4, 45
P.3d at 228. The defendant punched the victim near his left eye, knocking him to the
ground. Id. The defendant then punched the victim in the head “pretty quick and hard”
ten or eleven times while the victim lay unconscious on the ground. Id. The victim’s
friends took him to the emergency room in Gillette, and he was subsequently transported
via ambulance to a hospital in Casper to undergo surgery. Id., ¶ 5, 45 P.3d at 228. The

                                           13
surgeon who operated on the victim observed that he had “a severely fractured and
displaced jaw, a condylar fracture, a concussion, and a laceration on the forehead.” Id. A
permanent titanium plate was inserted to repair the victim’s fractured jawbone. Id.

[¶21] After a jury trial, the defendant was convicted of aggravated assault and battery
and was sentenced to three to eight years in prison. Id., ¶ 6, 45 P.3d at 228. On appeal,
the defendant argued that the district court erred when it improperly provided the jury
with the definition of the term “recklessly” rather than providing the jury with a
definition of the term “recklessly under circumstances manifesting extreme indifference
to the value of human life,” the standard set forth in Wyoming’s aggravated assault and
battery statute. Id., ¶ 7, 45 P.3d at 228. We agreed with the defendant. We began our
analysis by noting that the phrase “extreme indifference” had not been previously defined
in Wyoming:

                    In many other states, the “extreme indifference”
             language was preceded by the “depraved heart” and “implied
             malice” terms to distinguish between homicides such as
             second degree murder and involuntary manslaughter, and
             each term was recognized to mean that it contemplated
             circumstances which make a defendant more blameworthy
             than recklessness alone. State v. Boone, 294 Or. 630, 661
             P.2d 917, 920-21 (1983). Wyoming, however, has no
             previous decisions on the meaning of “extreme indifference”
             or “depraved heart.”

Id., ¶ 13, 45 P.3d at 230. After determining that the legislature, in 1982, had modeled
revisions to Wyoming’s aggravated assault and battery statute after the Model Penal
Code, we relied on the definition of “extreme recklessness” as used in the Code to
ascertain legislative intent. Our discussion noted that, under the Model Penal Code’s
definition of murder, malice requires a special character of recklessness demonstrating
extreme indifference to the value of human life:

                    In discussing the term “recklessly under circumstances
             manifesting extreme indifference to the value of human life,”
             the Commentary to the Model Penal Code states that this is a
             “special character” of recklessness required to elevate assault
             or battery to aggravated assault or battery and is adopted from
             the definition of murder found in Section 210.2(1)(b) of the
             Code. § 211.1(2)(a) cmt. 4, at 189. That discussion states that
             criminal homicide constitutes murder when it is committed
             “recklessly under circumstances manifesting extreme
             indifference to the value of human life.” § 210.2(1)(b) cmt. 4,
             at 21. That Commentary goes on to state that this term is

                                           14
intended to reflect the judgment that there is a kind of
reckless homicide that cannot fairly be distinguished in
grading terms from homicides committed purposely or
knowingly. Id. Stating that conduct amounting to a “gross
deviation from the standard of conduct that a law-abiding
person would observe in the actor’s situation” is “ordinary
recklessness” that would justify a manslaughter conviction,
the Commentary observes that

      [i]n a prosecution for murder, however, the Code calls
      for the further judgment whether the actor’s conscious
      disregard of the risk, under the circumstances,
      manifests extreme indifference to the value of human
      life. The significance of purpose or knowledge as a
      standard of culpability is that, cases of provocation or
      other mitigation apart, purposeful or knowing
      homicide demonstrates precisely such indifference to
      the value of human life. Whether recklessness is so
      extreme that it demonstrates similar indifference is not
      a question, it is submitted, that can be further clarified.
      It must be left directly to the trier of fact under
      instructions which make it clear that recklessness that
      can fairly be assimilated to purpose or knowledge
      should be treated as murder and that less extreme
      recklessness should be punished as manslaughter.

Id. at 21-22. The Commentary then notes that this type of
extreme recklessness, formerly known as the so-called
“depraved heart” conduct that allowed murder convictions
when a defendant killed his friend playing Russian roulette,
killed by firing into occupied homes, or killed when he
intended to shoot over the head of the victim but missed,
would permit a jury to reach the same conclusion under the
Code’s language. Id. at 22-23. It warns, however, that
negligent creation of risk of death, regardless of its
extravagance or unjustification, cannot be punished as
murder. Under Section 210.2(1)(b), the actor must perceive
and consciously disregard the risk of death to another before
the conclusion of extreme recklessness can be drawn. Id. at
27-28.

       The Commentaries addressing aggravated assault and
battery state that this special character of recklessness, or

                              15
             extreme recklessness, is designed to more severely punish
             battery where the defendant’s state of mind would have
             justified a murder conviction had his victim not fortuitously
             lived. § 211.1(2)(a) cmt. 4, at 189. By adopting the Model
             Penal Code’s term, “recklessly,” to justify a lesser
             punishment for assault and battery, the Wyoming Legislature
             plainly intended to distinguish between “recklessly” and
             “recklessly under circumstances manifesting extreme
             indifference to the value of human life” in the same manner
             as had the Model Penal Code. We, therefore, determine that
             O’Brien correctly asserts that the jury was not properly
             instructed when it was provided with the statutory definition
             of “recklessly” without further proper instruction.

O’Brien, ¶¶ 16-17, 45 P.3d at 231-32.

[¶22] With this precedent in mind, we turn to the question of whether the definition of
malice set forth in Crozier, and subsequently expanded in Butcher, adequately describes
and delimits the crime of second-degree murder in Wyoming. In answering this question,
we are mindful of the doctrine of stare decisis,

             . . . the means by which we ensure that the law will not
             merely change erratically, but will develop in a principled and
             intelligible fashion. That doctrine permits society to presume
             that bedrock principles are founded in the law rather than in
             the proclivities of individuals, and thereby contributes to the
             integrity of our constitutional system of government, both in
             appearance and in fact.

Borns ex rel. Gannon v. Voss, 2003 WY 74, ¶ 25, 70 P.3d 262, 271 (Wyo. 2003). While
this Court has always shown due deference to the doctrine of stare decisis, it has also
always recognized that stare decisis should not be applied blindly and rigidly. “[W]hen
governing decisions are unworkable or are badly reasoned, this Court has never felt
constrained to follow precedent. Stare decisis is not an inexorable command; rather, it is
a principle of policy and not a mechanical formula of adherence to the latest decision.”
Cook v. State, 841 P.2d 1345, 1354 (Wyo. 1992) (Golden, J., concurring) (internal
citation and quotation marks omitted).

[¶23] Our precedent interpreting “maliciously” in the context of second-degree murder
has not been free from criticism. According to a law review article by Professor Eric A.
Johnson, entitled The Crime That Wasn’t There: Wyoming’s Elusive Second-Degree
Murder Statute, “Neither the requirement that the defendant ‘purposely’ perform the act
that causes death nor the requirement that the defendant act with ‘hatred, ill will, or

                                           16
hostility’ is sufficiently demanding to mark the boundary of second-degree murder.”
Johnson, 7 Wyo. L. Rev. at 47. After careful consideration, we are forced to agree with
the conclusion that the definition of malice contained in our precedent since Crozier does
not adequately describe and delimit the crime of second-degree murder. On this point,
we agree with Professor Johnson’s analysis:

             It can be said of nearly every homicide that the act that
             caused death was performed either with “hostility or ill will”
             or without “legal justification or excuse.” For starters, the
             words “hostility” and “ill will” are broad enough to
             encompass a wide array of innocuous conduct. A bicyclist
             who hollers “asshole” at a rude motorist, for example,
             certainly acts with “hostility,” but few of us would be willing
             to convict the bicyclist of second-degree murder if the
             motorist, in turning to glare at the bicyclist, were to lose
             control of his vehicle and suffer a fatal rollover accident.
             Worse, the alternative criterion of “without legal justification
             or excuse” is even broader. The phrase “legal justification or
             excuse” appears to encompass just those situations where, as
             in cases of self-defense or defense of property, the defendant
             has some affirmative statutory or common law justification
             for his actions. But every form of criminal homicide –
             including negligent homicide – requires that the defendant’s
             act be performed without this sort of justification. This very
             difficulty was remarked by the Wyoming Supreme Court
             itself in Helton v. State, [73 Wyo. 92, 276 P.2d 434 (Wyo.
             1954)] another second-degree murder case:

                            While many definitions may be found of “Legal
                    Malice”, “Implied Malice” and “Constructive Malice”,
                    which say in substance that such malice denotes
                    merely the absence of legal excuse, legal privilege or
                    legal justification, these definitions fail to satisfy when
                    they are placed under the scrutiny of close analysis or
                    of subjective reasoning. In homicide, if the killing be
                    legally excusable, legally privileged or legally
                    justifiable, there can, of course, be no legal conviction
                    of any crime. Conversely, if legal conviction is had,
                    there must be an absence of legal excuse, privilege or
                    justification. Hence, if such definitions are accurate,
                    then in every legal conviction of homicide there would
                    be legal malice, implied malice or constructive malice.
                    This, of course, is not so.

                                            17
Johnson, 7 Wyo. L. Rev. at 22 (footnotes and emphasis omitted).

[¶24] Additionally, we find that our analysis in O’Brien, relating to the difference
between Wyoming’s simple and aggravated assault and battery statutes, leads to a similar
conclusion with respect to the distinction between Wyoming’s manslaughter and second-
degree murder statutes. Under Wyo. Stat. Ann. § 6-2-105, manslaughter, which is a
lesser-included offense of second-degree murder, requires a showing that the defendant
acted “recklessly.”2 In order to distinguish between manslaughter and second-degree
murder, the Wyoming Legislature must have intended to require a more culpable mental
state than ordinary recklessness to justify a second-degree murder conviction. The
definition of malice set forth in our precedent since Crozier, however, does not require a
heightened form of recklessness for a conviction of second-degree murder. Indeed, the
presence of “hatred, ill will, or hostility” may arguably be demonstrated without a
showing of even ordinary recklessness, which raises the possibility that a defendant’s
mental state may be sufficient to satisfy the requirement of malice under Wyoming’s
second-degree murder statute, but not the ordinary recklessness required for
manslaughter. Accordingly, we find that the legislature could not have intended the term
“maliciously,” as used in Wyoming’s second-degree murder statute, to require a mental
state reflecting mere “hatred, ill will, or hostility” or the mere absence of “legal
justification or excuse.”

[¶25] As we have previously noted, the United States Supreme Court has said that a
penal statute must “define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.” Griego v. State, 761 P.2d 973, 975
(Wyo. 1988) (quoting Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 1858, 75
L.Ed.2d 903 (1983)). The same principle applies to jury instructions. The purpose of
jury instructions is to “provide the jury with a foundational legal understanding to enable
a reasoned application of the facts to the law.” Walker v. State, 2013 WY 58, ¶ 31, 302


2
    Wyo. Stat. Ann. § 6-2-105(a) provides as follows:

                  § 6-2-105. Manslaughter; penalty.

                  (a) A person is guilty of manslaughter if he unlawfully kills any human
                  being without malice, expressed or implied, either:

                          (i) Voluntarily, upon a sudden heat of passion; or

                          (ii) Involuntarily, but recklessly except under circumstances
                          constituting a violation of W.S. 6-2-106(b).



                                                        18
P.3d 182, 191 (Wyo. 2013). In order to support a reliable verdict, it is crucial that the
trial court correctly state the law and adequately cover the relevant issues. Id.
Ultimately, the test of adequate jury instructions is “whether the instructions leave no
doubt as to the circumstances under which the crime can be found to have been
committed.” Id. (quoting Burnett v. State, 2011 WY 169, ¶ 14, 267 P.3d 1083, 1087
(Wyo. 2011)).

[¶26] As our discussion indicates, Wyoming precedent defining the malice element of
second-degree murder since Crozier, which eliminated the requirement of an intent to kill
– a requirement that we do not resurrect by this decision – greatly expanded the scope of
second-degree murder. Ultimately, we are forced to conclude that the definition of
malice set forth in Crozier and its progeny does not provide a meaningful distinction
between the mental states necessary for a conviction of second-degree murder and
manslaughter. Indeed, as indicated by Professor Johnson’s analysis, the elements of
second-degree murder as set forth in our precedent and instructed in this case would
encompass nearly every form of criminal homicide. Accordingly, we are unable to
conclude that jury instructions allowing the State to prove malice merely by showing that
the defendant acted with “hatred, ill will, or hostility,” or “without legal justification or
excuse” leave no doubt as to the circumstances under which second-degree murder can
be found to have been committed. In order to ensure proper application of Wyoming’s
second-degree murder statute, we must interpret the term “malice” as used in Wyo. Stat.
Ann. § 6-2-104 to require something more than mere “hatred, ill will, or hostility” or the
mere absence of “legal justification or excuse.” In searching for an adequate definition of
“malice,” we need look no further than our existing precedent.

[¶27] Our decisions in Lopez and O’Brien implicitly approve of the definition of malice
applied in the context of second-degree murder in Utah and Colorado, and under the
Model Penal Code. Again, that formulation requires that, in order to demonstrate
malicious intent, the State must show a heightened form of recklessness as compared to
that required for manslaughter; i.e., the State must show that the defendant acted
recklessly under circumstances manifesting an extreme indifference to the value of
human life. We conclude that this standard is more closely equivalent to the moral
culpability of the intent-to-kill mental requirement abandoned in Crozier, and that this
formulation adequately distinguishes second-degree murder from manslaughter.
Accordingly, we expressly adopt this definition of malice. The jury was not properly
instructed regarding the element of malice and Mr. Wilkerson’s conviction must be
reversed. In the event of retrial on the same charge, the jury must be instructed that
“malice” means that the act constituting the offense was done recklessly under
circumstances manifesting an extreme indifference to the value of human life, and that
the act was done without legal justification or excuse. To the extent this decision
conflicts with our precedent concerning the definition of malice as used in Wyo. Stat.
Ann. § 6-2-104, that precedent is hereby overturned.


                                             19
Sufficiency of the Evidence

[¶28] Although we reverse Mr. Wilkerson’s conviction on the basis that the jury was not
properly instructed, we will briefly address Mr. Wilkerson’s contention that there was
insufficient evidence to support his conviction under the elements of the crime as
instructed at trial. Generally, if the evidence was insufficient as a matter of law,
Mr. Wilkerson is entitled to be acquitted and the State could not retry him. Granzer v.
State, 2008 WY 118, ¶ 23, 193 P.3d 266, 272 (Wyo. 2008). In determining whether there
was sufficient evidence to sustain a conviction, we apply the following standard of
review:

             When reviewing the sufficiency of the evidence, this Court
             accepts as true the State’s evidence and affords it those
             inferences which may be reasonably and fairly drawn from it.
             We do not consider conflicting evidence or inferences that
             can be drawn from such evidence. Our duty is to determine
             whether a quorum of reasonable and rational individuals
             would, or even could, have come to the same result as the
             jury actually did.

Id. (quoting Kelly v. State, 2007 WY 45, ¶ 11, 153 P.3d 926, 929 (Wyo. 2007)) (internal
citations omitted).

[¶29] Relying on Lopez, Mr. Wilkerson claims that a single, closed-fist blow to the head
is not sufficient to demonstrate that he acted “maliciously.” We do not agree with
Mr. Wilkerson’s interpretation of our holding in Lopez. In Lopez, we stated that our
precedent dictates that the defendant’s “actions and motivations must be reviewed to
determine his state of mind.” Id., ¶ 20, 86 P.3d at 858 (citing Eagan v. State, 58 Wyo.
167, 201-210, 128 P.2d 215, 227-230 (1942)). The present case is distinguishable from
Lopez with respect to both actions and motivations. First, regarding the defendant’s
actions, we noted that Lopez had delivered “one open hand slap, not a blow or blows by a
fist,” and we concluded that “the only evidence of malice is the single open hand slap.”
Id., ¶¶ 21, 24, 86 P.3d at 858-859. In contrast, in the present case, Mr. Wilkerson
“blindsided” Mr. Newman with a closed-fist punch while Mr. Newman was seated on a
barstool. After Mr. Newman was knocked to the ground, Mr. Wilkerson stomped or
kicked in his direction and delivered a taunting statement. Second, with respect to the
defendant’s motivations, we noted in Lopez that Lopez and the decedent were friends,
that Lopez had acted in “sudden anger,” and that his anger “was caused by his concern
that his friend would be harmed by drinking whiskey.” Id., ¶ 20, 86 P.3d at 858. In the
present case, there was no evidence that Mr. Wilkerson’s actions were motivated by a
concern for Mr. Newman’s well-being. There was sufficient evidence to support the
conviction for second-degree murder under the definition of “malice” provided at trial.


                                          20
[¶30] Reversed and remanded for further proceedings consistent with this opinion.




                                          21
