               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 36

                                                       OCTOBER TERM, A.D. 2013

                                                                  March 12, 2014

MICHAEL LEE COOPER,

Appellant
(Defendant),

v.                                                   S-12-0215

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Natrona County
                        The Honorable W. Thomas Sullins, Judge

Representing Appellant:
      Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N.
      Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
      Counsel. Argument by Mr. Alden.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jeffrey Pope, Assistant Attorney General; Caitlin F. Young,
      Assistant Attorney General. Argument by Ms. Young.

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

* Justice Voigt retired effective January 3, 2014.

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 typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Chief Justice.

[¶1] Mr. Cooper challenges his conviction for aggravated assault by threatening to use
a drawn deadly weapon. He asserts his trial counsel was ineffective because she failed to
call an expert witness; the district court improperly instructed the jury on the law of self
defense; and there was insufficient evidence of a threat to support the jury’s guilty
verdict. We conclude there was sufficient evidence to support the jury’s verdict but that
Mr. Cooper did not receive effective assistance of counsel and the jury was improperly
instructed on self defense. We, therefore, reverse and remand for a new trial.

                                         ISSUES

[¶2]   Mr. Cooper presents the following issues on appeal:

              I.     Was Mr. Cooper denied his constitutional right to
                     effective assistance of counsel?

              II.    Was the jury improperly instructed on the law?

              III.   Was the evidence sufficient to support the jury’s
                     verdict on the crime charged?

Though stated in more detail, the State presents similar issues.

                                          FACTS

[¶3] On July 9, 2011, Mr. Cooper and his friends, Shantel Webb, Tom Hinckley and
Colby Davis, spent the afternoon drinking and then attended the Central Wyoming Fair in
Casper, Wyoming. They got into an altercation with Josh Rodabaugh (Josh) and Michael
Sanchez over a carnival game, and law enforcement directed all of them to leave the
fairgrounds.

[¶4] Mr. Cooper and his friends returned to Mr. Cooper’s residence, which was located
close to the Loaf and Jug on Poplar Street. In the meantime, Josh and Mr. Sanchez called
Josh’s father, Ronald “Kirk” Rodabaugh (Kirk), to come and pick them up because they
had two flat tires. They stopped at the Loaf and Jug so Kirk could get some iced tea.

[¶5] Ms. Webb and Mr. Davis decided to walk from Mr. Cooper’s house to the Loaf
and Jug for cigarettes. Josh confronted them, and a shouting match ensued. Kirk
witnessed what was happening and began yelling as well. He also asked the store clerk
to call the police and directed Ms. Webb and Mr. Davis to wait for the officers to arrive.
They ignored his command and began walking back to Mr. Cooper’s house.


                                             1
[¶6] While the argument was going on, Mr. Cooper and Mr. Hinckley also decided to
go the Loaf and Jug, and Mr. Cooper retrieved some money and a gun from his residence.
They met up with Ms. Webb and Mr. Davis and all four of them started walking back to
Mr. Cooper’s residence.

[¶7] The Rodabaughs got back into their car, with Kirk driving, and began looking for
the Cooper group. Kirk located them and drove toward them. Although the timing of the
events was contested, it was undisputed that Kirk drove toward Mr. Cooper, Mr. Cooper
brandished a gun and shot into the windshield twice, and Kirk hit Mr. Cooper with the
car. Mr. Cooper shot a third time as he lay upon the hood of the car. Kirk then stopped
the car, causing Mr. Cooper to fall off, drove forward again and pinned Mr. Cooper
underneath the car and next to a fence. Kirk got out of the car and Mr. Cooper told him
to get the car off of him. Kirk refused and Mr. Cooper shot three more times from under
the car, hitting Kirk in the calf once.

[¶8] Law enforcement arrived and both Kirk and Mr. Cooper were transported to the
hospital. Kirk was treated for the gunshot wound, and Mr. Cooper had numerous injuries
including a broken collarbone, broken back and punctured lung. After interviewing the
witnesses and conducting an investigation, the State charged Mr. Cooper with aggravated
assault and battery for threatening Kirk with a drawn deadly weapon. Mr. Cooper
claimed he had acted in self defense.

[¶9] The matter was tried to a jury, which returned a guilty verdict. After Mr. Cooper
was sentenced, he filed a timely notice of appeal. Mr. Cooper’s original trial counsel
withdrew and new counsel was appointed to represent him. New counsel filed a
W.R.A.P. 21 motion for a remand, claiming that trial counsel did not effectively present
his self defense claim because she failed to retain an expert to testify about the distance
between the car and Mr. Cooper.

[¶10] We granted a partial remand for an evidentiary hearing on his ineffective
assistance of counsel claim. At the hearing, defense appellate counsel questioned Mr.
Cooper, his trial counsel and Gregory Taylor, an investigator and former law enforcement
officer who was trained in accident reconstruction. Mr. Taylor testified that, based upon
the information in the record and his investigation, Kirk’s car was just inches from Mr.
Cooper when he fired the first two rounds. The district court issued its findings of fact
and conclusions of law, ruling that trial counsel was effective.

                                     DISCUSSION

      1. Sufficiency of the Evidence

[¶11] We begin our discussion of this case with an analysis of the sufficiency of the
evidence to support the jury’s guilty verdict. If the evidence was legally insufficient to


                                            2
support a conviction, an order directing entry of a judgment of acquittal is the only just
remedy. Ken v. State, 2011 WY 167, ¶ 17, 267 P.3d 567, 572 (Wyo. 2011). The Double
Jeopardy clause of the United States and Wyoming constitutions would prohibit a retrial
under those circumstances. U.S. Const., Amend. 5; Wyo. Const. Art. 1, § 11. See also
Ken, ¶ 17, 267 P.3d at 572; Tanner v. State, 2002 WY 170, ¶ 17, 57 P.3d 1242, 1247
(Wyo. 2002); Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1
(1978).

[¶12] In reviewing a sufficiency of the evidence claim:

              we examine and accept as true the State’s evidence and all
              reasonable inferences which can be drawn from it. We do not
              consider conflicting evidence presented by the defendant. We
              do not substitute our judgment for that of the jury; rather, we
              determine whether a jury could have reasonably concluded
              each of the elements of the crime was proven beyond a
              reasonable doubt.

Ken, ¶ 19, 267 P.3d at 572, quoting Daves v. State, 2011 WY 47, ¶ 30, 249 P.3d 250, 259
(Wyo. 2011). See also Grimes v. State, 2013 WY 84, ¶ 8, 304 P.3d 972, 975 (Wyo.
2013).

[¶13] Mr. Cooper was convicted of aggravated assault and battery under Wyo. Stat.
Ann. § 6-2-502(a)(iii) (LexisNexis 2013):

                (a) A person is guilty of aggravated assault and battery if
              he:

              ****
                     (iii) Threatens to use a drawn deadly weapon on
              another unless reasonably necessary in defense of his person,
              property or abode or to prevent serious bodily injury to
              another[.]

[¶14] Mr. Cooper claims the evidence was insufficient on the “threatens to use” element
of the crime. The district court instructed the jury on the definition of “threatens to use”
as follows:

                     “Threatens to use” means more than mere presence of
              a weapon. The phrase “threatens to use” requires proof
              beyond a reasonable doubt of an actual threat of physical
              injury during the act of employing a deadly weapon.



                                             3
                      A threat may be expressed by words or acts or a
                combination of words and acts.

[¶15] Mr. Cooper does not challenge this instruction, and it is consistent with our
precedent. This Court defined “threatens to use” in the context of aggravated assault and
battery under § 6-2-502(a)(iii) as “an actual threat of physical injury during the act of
employing a deadly weapon.” Johnston v. State, 747 P.2d 1132, 1134 (Wyo. 1987). We
also approved the following definition of “threat” in that case:

                A threat is an expression of an intention to inflict pain, injury,
                or punishment. It may be expressed by words or acts, or a
                combination of words and acts. Considering all of the
                circumstances of the case, you must decide whether the
                defendant’s words and acts amounted to an express or implied
                statement of his intention to use a drawn deadly weapon to
                inflict pain, injury, or punishment.

Id. at 1135. See also Miller v. State, 2003 WY 55, ¶¶ 24-26, 67 P.3d 1191, 1197-98
(Wyo. 2003); United States v. Jenkins, 17 Fed. Appx. 769, 775 (10th Cir. 2001) (under
Wyoming law, a threat does not have to be verbal but can be accomplished simply by
actions).

[¶16] Mr. Cooper claims there was evidence that he possessed and used a drawn deadly
weapon, but no evidence that he threatened to use it. He asserts there was no evidence
that he expressed an intention to inflict pain, injury or punishment on Kirk. Although Mr.
Cooper acknowledges raising the gun and shooting it, he states that he only pointed the
gun in the immediate act of shooting. He claims the State focused on the fact he actually
shot Kirk from under the car, but that, since there was no spoken threat and Kirk could
not see him, no threat occurred at that time.1

[¶17] Mr. Cooper’s argument ignores the chain of events. Casper Police Department
Detective Randy Dolberg testified Mr. Cooper told him that when he got the gun from his
home and put it in the waist band of his pants, there was ammunition in the magazine but
the chamber was not loaded. Prior to being pinned under the car and shooting Kirk, Mr.
Cooper brandished the gun and shot through the windshield. Because a bullet was not

1
  Mr. Cooper asserts the State should have charged him with aggravated assault by attempting to cause
bodily injury with a deadly weapon under Wyo. Stat. Ann. § 6-2-502(a)(ii), instead of threatening to use a
drawn deadly weapon under subsection (iii). According to Mr. Cooper, “[t]he problem with the
mischarge was that the entire trial was directed at a charge which had not been filed.” We agree that the
difficulties in this case arose largely from the fact he was charged with a threat when he actually shot the
victim. These circumstances are not, however, unique. In Johnston, supra, we upheld a conviction based
on the defendant’s threat against the victim with a knife, even though he had also nicked him with the
blade.


                                                     4
loaded in the chamber, he “racked a round” prior to shooting toward the windshield. A
recording of Detective Dolberg’s interview with Mr. Cooper was admitted into evidence
and played for the jury at trial. It confirms that Mr. Cooper stated he pulled the gun out
of his pants, cocked the weapon and fired. Kirk also testified that, as he turned the corner
with his car, he saw Cooper pull a gun out of his pants and point the gun straight at him.

[¶18] In many respects, the circumstances in the present case are similar to those
presented in Miller, supra. During an argument with the victim, Ms. Miller retrieved a
gun, pointed it at the victim, cocked the hammer and fired a shot which hit the floor
because her boyfriend pushed the gun down. Miller, ¶¶ 24-26, 67 P.3d at 1198. We
concluded the evidence of threatening to use a drawn deadly weapon was sufficient to
support Ms. Miller’s conviction of aggravated assault and battery under § 6-2-502(a)(iii).
Similarly, Mr. Cooper’s actions of brandishing a gun and “jacking a round” or cocking
the weapon before shooting were sufficient to establish he threatened to use a drawn
deadly weapon.

       2. Ineffective Assistance of Counsel

[¶19] The right to effective assistance of defense counsel is guaranteed by the Sixth
Amendment to the United States Constitution and Art. 1, § 10 of the Wyoming
Constitution. To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate that trial counsel’s performance was deficient and the deficient performance
prejudiced his defense. Osborne v. State, 2012 WY 123, ¶ 19, 285 P.3d 248, 252 (Wyo.
2012); Ken, ¶ 27, 267 P.3d at 574; Strickland v. Washington, 466 U.S. 668, 690–91, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The deficiency prong requires a showing that
counsel failed to render such assistance as would have been offered by a reasonably
competent attorney. Ken, ¶ 27, 267 P.3d at 574. If the defendant establishes that
counsel’s performance was deficient, he must then demonstrate that he was prejudiced by
showing “a reasonable probability exists that, but for counsel’s deficient performance, the
outcome would have been different.” Osborne, ¶ 19, 285 P.3d at 252.

[¶20] Ineffective assistance of counsel claims involve mixed questions of law and fact.
Osborne, ¶ 17, 285 P.3d at 252. We defer to the district court’s findings of fact unless
they are clearly erroneous. Strandlien v. State, 2007 WY 66, ¶ 20, 156 P.3d 986, 992
(Wyo. 2007). The district court’s “conclusions of law, which include the question of
whether counsel’s conduct was deficient and the question of whether the appellant was
prejudiced by that deficient conduct,” are reviewed de novo. Id., quoting Robinson v.
State, 2003 WY 32, ¶ 16, 64 P.3d 743, 748 (Wyo. 2003).

[¶21] Mr. Cooper claimed that he was not guilty of aggravated assault and battery
because he acted in self defense. Specifically, he asserted he initially shot at Kirk’s car
because he was about to be run over. He estimated the car was no more than twenty feet
from him when he fired. Kirk maintained that Mr. Cooper was forty to fifty feet away


                                              5
when the shooting started and he accelerated toward Mr. Cooper after the first shots were
fired. The determination of where the car was in relation to Mr. Cooper when he pointed
his weapon and fired was obviously important, and Mr. Cooper claims his trial counsel’s
performance was defective because she failed to retain an expert witness to testify as to
the distance based upon the angles at which the first two bullets hit the car.

[¶22] Counsel has a duty to conduct reasonable investigations or make a reasonable
decision that makes particular investigations unnecessary. Lopez v. State, 2004 WY 28, ¶
29, 86 P.3d 851, 860 (Wyo. 2004), citing McCoy v. State, 886 P.2d 252, 254 (Wyo.
1994). When an ineffective assistance claim is based upon the failure to call an expert
witness, the defendant must show an expert was available who would have testified
consistently with his theory. Id., ¶ 30, 86 P.3d at 860.

[¶23] Mr. Cooper filed an affidavit with his motion for remand, stating he “shot at the
car only at the last second as it approached to run me down.” He said that his trial
counsel told him that she would retain the services of an expert witness to analyze the
“ballistics evidence in my case and testify regarding a reconstruction of the locations and
relationships between myself and the car operated by the ‘victim’ at the moment of the
shooting.” She did not, however, present an expert.

[¶24] The State claims defense counsel’s decision not to call an expert to analyze the
trajectory evidence was appropriate because there was no showing that an expert was
available. W.R.E. 702 guides the use of expert testimony:

                        If scientific, technical, or other specialized knowledge
                will assist the trier of fact to understand the evidence or to
                determine a fact in issue, a witness qualified as an expert by
                knowledge, skill, experience, training, or education, may
                testify thereto in the form of an opinion or otherwise.2

[¶25] Gregory Taylor, an investigator and former law enforcement officer trained in
accident and crime scene reconstruction, testified for Mr. Cooper at the remand hearing.
He discussed the relative location of the car to Mr. Cooper when he first shot, based upon
the angles of the bullet holes in the windshield provided by law enforcement reports.
Kirk’s car was not available, but Mr. Taylor located a similar vehicle and took
measurements to aid in his calculations. Based upon that information, he dispelled Kirk’s

2
   If there is a challenge to proposed expert testimony, the district court uses the two-part Daubert test to
determine its admissibility. Stalcup v. State, 2013 WY 114, ¶¶ 22-23, 311 P.3d 104, 110-11 (Wyo. 2013).
Under the Daubert test, the court first determines whether the expert’s methodology is reliable; secondly,
it determines whether the proposed testimony is relevant, i.e. whether it fits the facts of the particular
case. Id., citing Cooper v. State, 2008 WY 5, ¶ 10, 174 P.3d 726, 729 (Wyo. 2008). No Daubert analysis
was requested or performed in this case.



                                                     6
testimony that he was forty feet or more away when Mr. Cooper fired the first shot. Mr.
Taylor stated that, if Mr. Cooper was truly 40 feet away as Kirk stated, Mr. Cooper would
have had to shoot from nearly fourteen feet high for the bullet to impact the windshield at
the angle it did.

[¶26] Mr. Taylor used Mr. Cooper’s height and the trajectory information to calculate
the first bullet as being shot forty-two inches from the windshield, or 2.4 inches past the
front bumper. The second shot was made from twenty-two inches from the windshield,
or 17.4 inches past the front bumper of the car. Therefore, according to Mr. Taylor, the
car was so close when Mr. Cooper fired the first two shots that his hand was already over
the hood of the car. The third shot occurred when he was on the vehicle hood after being
hit. Mr. Taylor explained that the calculations were not difficult to make and such
training is standard in Nebraska, where he was trained.

[¶27] Mr. Cooper’s trial counsel stated that she knew the angles of the gunshots into the
windshield were important because they were relevant to determining “where Mr. Cooper
would have been in proximity to the vehicle when the gunshots were fired.” She
indicated the distance was important to Mr. Cooper’s self-defense claim. Trial counsel
testified that she consulted trajectory charts on the internet to make her own calculations
of the distance. She made a tactical decision to forgo consulting an expert witness and to,
instead, present the evidence regarding the distance between the car and Mr. Cooper
through cross examination of the State’s witnesses. She explained her rationale as
follows:

                    Q. . . . Did you consider retaining an expert or . . . a
             witness on behalf of your client who could make those
             calculations?

                    A.     Yes.

                    Q.     Okay. Did you contact anybody?

                     A.    No.

                    Q.     Any particular reason why?

                     A.     I made a decision after looking at all the
             statements and the evidence that an expert witness wouldn’t
             have probably made any difference about the outcome of the
             case. All the witness statements were consistent with what
             happened. Mr. Cooper testified that he shot the gun prior to
             being hit by the automobile. The driver of the vehicle also
             testified to the same. And then all the – all the evidence and


                                            7
             exhibits [were] consistent, so there wasn’t anything that was
             inconsistent in the statements that were made.

Defense counsel stated that she thought she had questioned the state’s witness about the
distances and angles.

[¶28] In fact, the evidence on the distances was not consistent, and Mr. Taylor testified
that eye witnesses commonly make mistakes in estimating distances. Kirk testified that
the car was forty to fifty feet from Mr. Cooper when he started firing. Mr. Davis testified
that the car accelerated very quickly toward Mr. Cooper and the shots were fired when he
was hit by the car. Mr. Cooper stated in his interview with Detective Dolberg that the car
was no more than twenty feet away from him when he began shooting.

[¶29] Trial counsel’s strategy to present the distance evidence through cross examination
of the State’s witnesses did not pan out. She apparently assumed the State would call the
evidence technician who actually did the trajectory analysis, but it did not. When she
questioned Detective Dolberg about the distances, he stated that he did not have any
specific training in trajectory analysis and that he could not determine how close the
vehicle was when Mr. Cooper fired the first two shots. In the end, none of the trial
witnesses testified concerning the distance based upon the trajectory evidence.

[¶30] Despite this lack of evidence, Mr. Cooper’s trial counsel attempted to discuss her
own distance calculations during closing argument, but drew an objection:

                    [Defense Counsel]:        . . . Mr. Cooper shot close
             distance, you know, close. . . .

                     [The prosecutor] says, oh, the trajectory means
             nothing, oh jeez, nothing. That’s why there’s no expert
             witness to talk about the trajectory, because we know what
             the trajectory means. . . . [W]e know it means he was close
             distance when he was shooting. We know what that means.
             15 degrees, 27 degrees. At that angle the vehicle had to have
             been less than 8 feet away.

                   [Prosecutor]: Judge, I’m going to object to that.
             There’s absolutely no evidence in the record to support that.

The district court judge stated that he could not recall the evidence on specific distance
calculations, so he was going to leave that matter to the jury.

[¶31] The prosecutor was correct; there was no such evidence in the record. He pointed
that out in his rebuttal argument: “What counsel says is not evidence, period. Eight foot


                                            8
at one point, talking about how far the car was away. There’s not one witness that said
eight foot. You can’t stand here and say, I think it sounds pretty good so here it comes.”
Thus, not only was there no testimony to support the trajectory analysis and establish the
actual distances, the lack of evidence was emphasized by defense counsel’s improper
argument using her own distance calculations rather than those of an expert.3

[¶32] The State also claims that Mr. Taylor may not have been permitted to testify about
his calculations because he made some assumptions in his analysis. In particular, the
State faults the proposed expert for assuming: 1) Mr. Cooper held the gun with two
hands, when he could have held the gun with a single hand or sideways, resulting in
different height calculations; and 2) the ground on which he was standing was flat.
Experts typically are not fact witnesses in that they did not personally witness the event
about which they are testifying. In that respect, they have to rely upon the observations
of others and data collected at the scene. See Wyoming Rules of Evidence 702 through
705. In making their calculations, expert witnesses may have to make certain
assumptions. The validity of those assumptions is properly tested on cross examination,
but the fact that assumptions are made does not make the opinions inadmissible. See,
e.g., Hermreck v. State, 956 P.2d 335, 340 (Wyo. 1998). Importantly, there is no
indication that either the way Mr. Cooper held the gun or the slope of the ground could
have accounted for the bullet being shot from nearly fourteen feet high.

[¶33] The district court concluded that Mr. Taylor’s testimony would have added little to
the defense theory of self defense. To the extent this is a finding of fact, we conclude it is
clearly erroneous. Expert testimony regarding the distances based upon the bullet
trajectory evidence was available. Defense counsel’s plan to draw the evidence out on
cross examination and through her own internet investigation did not work out and the
jury was left with no explanation of the physical evidence regarding the relative distances
between Mr. Cooper and the car. Mr. Taylor’s testimony would have filled this vital gap.
We also disagree with the district court’s conclusion that defense counsel’s performance
was adequate. Our de novo review leads us to the inexorable conclusion that defense
counsel’s failure to consult an expert was not reasonable trial strategy and amounted to
deficient performance.

[¶34] In accordance with our standard of review, even after showing that counsel did not
reasonably investigate or unreasonably failed to call an expert witness, a defendant still

3
  In Hinton v. Alabama, ___ U.S. ____, ____ S. Ct. _____, 2014 WL 684015 (February 24, 2014), the
United States Supreme Court applied the Strickland analysis and concluded that defense counsel’s
performance was deficient when he failed to determine that more than $1,000 was available to hire an
expert ballistics witness. The only “expert” that defense counsel could locate who was willing to work
for such a low fee was not well qualified, had difficulty operating the microscope, and had only one eye.
Id. at *3-4, 6-7. In comparison, defense counsel in this case did not make any effort to hire an expert and
attempted to rely on her own calculations derived from an internet search.



                                                    9
must show that the deficient performance prejudiced him in order to prevail. Osborne, ¶
20, 285 P.3d at 252. A defendant is prejudiced by deficient attorney performance when
“a reasonable probability exists that, but for counsel’s deficient performance, the
outcome would have been different.” Osborne, ¶ 19, 285 P.3d at 252. The State
presented three reasons why Mr. Cooper was not prejudiced by defense counsel’s actions:
1) the trajectory evidence could not have explained away the three shots Mr. Cooper fired
from under the car; 2) the evidence did not explain why he did not retreat when the car
drove toward him; and 3) it did not explain why he gave inconsistent statements to law
enforcement. The district court agreed that these circumstances demonstrated that Mr.
Cooper was not prejudiced by his defense counsel’s performance.

[¶35] Reviewing the district court’s conclusion de novo, we must disagree; the three
cited circumstances did not cure the prejudice associated with the lack of expert
trajectory evidence. The jury was instructed that the right to self defense ends when the
danger ceases. The State’s argument that he was not justified in firing the last three shots
assumes that the danger had ended once Mr. Cooper was trapped under the car. The
evidence established that Mr. Cooper was pinned between the car and a fence and Kirk
refused to move the car off of him. It was up to the jury to decide whether Mr. Cooper
was justified in feeling he was still in danger and needed to defend himself at that point.

[¶36] The question of whether or not Mr. Cooper should have retreated was, similarly, a
jury question. Under § 6-2-502(a)(iii), a threat to use a drawn deadly weapon is excused
if it is reasonably necessary in defense of his person, property or abode or to prevent
serious bodily injury to another. The issues involved with the reasonableness of Mr.
Cooper’s actions, and his possible obligation to retreat, were distinctly questions of fact.
See Drennen v. State, 2013 WY 118, ¶¶ 40-43, 311 P.3d 116, 130-31 (Wyo. 2013).

[¶37] The jury was also charged with determining Mr. Cooper’s credibility. It is true
that he made inconsistent statements to law enforcement about shooting the gun and it
was up to the jury to determine the significance of those statements. However, the
inconsistent statements would not affect the physical evidence as explained by an expert
witness, and that evidence would have been singularly helpful to his position that he
acted in self defense. Under these circumstances, a reasonable probability exists that, but
for trial counsel’s deficient performance, the outcome would have been different.
Osborne, ¶ 19, 285 P.3d at 252. Mr. Cooper is, therefore, entitled to a new trial.

       3. Self Defense Jury Instructions

[¶38] When this Court reviews jury instructions, they “must be considered as a whole,
and individual instructions, or parts of them, should not be singled out and considered in
isolation.” Farmer v. State, 2005 WY 162, ¶ 20, 124 P.3d 699, 706 (Wyo. 2005), quoting
Giles v. State, 2004 WY 101, ¶ 14, 96 P.3d 1027, 1031 (Wyo. 2004). “As long as the



                                            10
instructions correctly state the law and the entire charge covers the relevant issue,
reversible error will not be found.” Id.

[¶39] Mr. Cooper did not object to the instruction challenged on appeal; consequently,
the plain error standard of review applies to this issue. Bloomfield v. State, 2010 WY 97,
¶ 9, 234 P.3d 366, 369 (Wyo. 2010). Plain error occurs when: “‘1) the record is clear
about the incident alleged as error; 2) there was a transgression of a clear and
unequivocal rule of law; and 3) the party claiming the error was denied a substantial right
which materially prejudiced him.’” Kidwell v. State, 2012 WY 91, ¶ 10, 279 P.3d 540,
543 (Wyo. 2012), quoting Talley v. State, 2007 WY 37, ¶ 9, 153 P.3d 256, 260 (Wyo.
2007).

[¶40] Mr. Cooper takes issue with Jury Instruction No. 18, which stated:

                     Even if the defendant had reasonable ground[s] to
             believe and actually did believe that he was in imminent
             danger of death or serious bodily harm, the defendant was
             justified in using deadly force to repel the danger only if he
             retreated as far as he safely could do before using deadly
             force.

                     The law requires a person to retreat rather than to take
             the life of an adversary if there was a convenient mode of
             retreat without increasing his actual or apparent peril. To
             excuse a failure to retreat, it is necessary that the defendant’s
             peril would be increased, or that it reasonably appeared that it
             would be increased by retreat. If you find that the defendant
             could have safely retreated but failed to do so, the defendant
             cannot rely on the justification of self defense.

[¶41] According to Mr. Cooper, this instruction did not follow the statutory definition of
self defense for threatening to use a drawn deadly weapon set out in § 6-2-205(a)(iii): “A
person is guilty of aggravated assault and battery if he . . . [t]hreatens to use a drawn
deadly weapon on another unless reasonably necessary in defense of his person, property
or abode or to prevent serious bodily injury to another[.]” Consistent with Mr. Cooper’s
position, we stated in Drennen, ¶¶ 40-43, 311 P.3d at 130-31, that the statutory language
governs self defense in an aggravated assault case involving threatening to use a drawn
deadly weapon.

[¶42] The State’s argument on appeal focuses on the plain error standard of review,
particularly that the district court did not violate a clear and unequivocal rule of law.
However, at oral argument, the State seemed to acknowledge that the instruction did not
comply with the law as set out in Drennan, supra, which was decided after the trial in


                                            11
this case. Since we are reversing and remanding for a new trial because Mr. Cooper did
not receive constitutionally effective counsel, we need not decide whether a clear and
unequivocal rule of law was violated. We presume the jury instructions will be revised
on retrial to be consistent with our statements of the law in Drennen.

[¶43] Reversed and remanded for proceedings consistent with this decision.




                                          12
