IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 1

 OCTOBER TERM, A.D. 2015

January 5, 2016

JOHN HENRY KNOSPLER, JR.,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

S-15-0158

Appeal from the District Court of Natrona County

The Honorable W. Thomas Sullins, Judge

Representing Appellant:

Timothy K. Newcomb, Appellate Consultation, Laramie, Wyoming; Joseph H. Low 

IV, The Law Firm of Joseph H. Low IV, Long Beach, California. Argument by Mr. 

Newcomb.

Representing Appellee:

Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; 

Christyne M. Martens, Senior Assistant Attorney General; Joshua C. Eames, 

Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

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.
1

BURKE, Chief Justice.

[¶1] Appellant, John Henry Knospler, Jr., was convicted of second-degree murder after 

he shot and killed James Baldwin in the parking lot of Racks Gentlemen’s Club in 

Casper, Wyoming. He asserts error in the district court’s evidentiary rulings and in the 

jury instructions. We affirm Appellant’s conviction.

ISSUES

[¶2] Appellant presents five issues, which we restate as follows:

1. Did the district court abuse its discretion in excluding 

evidence relating to the victim’s criminal history? 

2. Did the district court abuse its discretion in excluding 

expert testimony purporting to establish a link between 

viewing depictions of pornography and a character trait 

for aggression? 

3. Did the district court err in denying Appellant’s request to 

instruct the jury regarding self-defense in a home or

habitation?

4. Did the district court err in instructing the jury, in relation 

to Appellant’s claim of self-defense, that it must 

determine whether Appellant or the victim was the first 

aggressor?

5. Did the district court abuse its discretion in permitting the 

State to introduce 404(b) evidence despite the State’s late 

notice of its intent to use the evidence?

FACTS

[¶3] On the night of October 3, 2013, Appellant and the victim, James Baldwin,

separately visited Racks Gentlemen’s Club in Casper. Around 10:30 p.m., Appellant was 

asked to leave after he was observed with marijuana inside the bar. Appellant left and sat 

in his vehicle in the parking lot. Shortly before midnight, bar employees found the victim 

asleep at a bar table and asked him to leave. The employees offered to call a cab for the 

victim, but he stated that his friends were waiting for him in a car parked outside the bar.

The victim exited to the parking lot and approached the vehicle occupied by Appellant. 

The victim pulled on the passenger door handle and knocked on the window. When he 

did not get an answer, the victim walked around to the driver’s side and leaned on the 
2

door. Appellant then shot and killed the victim.

[¶4] After the shooting, Appellant drove away from the scene and bar employees called 

the police. Shortly thereafter, a sheriff’s deputy observed a vehicle matching the 

description of the vehicle that had been reported. The deputy stopped Appellant after he 

observed him driving 20 miles per hour over the speed limit. When the deputy

approached the vehicle, he smelled a strong odor of alcohol and marijuana. The deputy 

also noticed that the driver’s door window was missing and appeared to have been 

broken. Prior to his arrest, Appellant told the officer that he did not know how the 

window had been broken and that he had not been in any altercation that night.

[¶5] As a result of the incident on October 3

rd, the State charged Appellant with one 

count of second-degree murder. Prior to trial, Appellant filed a notice of his intent to 

introduce evidence of the victim’s criminal history to show that he was the first 

aggressor. Appellant sought to introduce evidence of the victim’s arrests for breach of 

the peace, battery and interference with a police officer, and eluding police, as well as his 

arrest for 19 counts of conspiracy to commit vehicular burglary. Ultimately, the district 

court allowed evidence of the victim’s arrest for battery and interference with a police 

officer, but excluded evidence relating to the remaining arrests.

[¶6] Appellant also filed a pretrial motion seeking to introduce evidence of the victim’s

internet search history. Appellant claimed the search history showed that the victim had 

viewed websites depicting pornography and bestiality. Appellant argued that these sites 

showed that the victim was likely to engage in aggressive behavior. The district court 

granted the State’s motion to exclude the evidence, ruling that it was inadmissible under 

W.R.E. 403 because the probative value of the evidence was substantially outweighed by 

the danger of unfair prejudice. 

[¶7] Four days prior to trial, Appellant filed a “Motion for Exception and Offer of 

Proof” which sought admission of the websites as well as expert testimony relating to the 

characteristics of persons who view images depicting child pornography and bestiality.

In his motion, Appellant claimed that two proposed expert witnesses would testify that “it 

is common for those individuals that view bestiality pornography to be aggressive in 

nature and commit violent crimes[.]” The district court addressed the matter during a 

bench conference on the first day of trial. After noting that Appellant had waited until 

four days prior to trial to identify an expert, the district court denied the motion and again 

found that the probative value of the evidence was substantially outweighed by the 

danger for unfair prejudice.

[¶8] On November 19, 2014, the State provided notice of its intent to introduce 

testimony of three witnesses under Rule 404(b). Appellant filed a motion to exclude the 

evidence on the grounds that it was irrelevant and constituted inadmissible hearsay. At 

the pretrial conference, the State noted that the proposed testimony had only been
3

recently discovered after re-interviewing the witnesses and that the evidence had been

immediately disclosed to Appellant. The district court denied the motion. After the 

witnesses testified at trial, Appellant filed a motion to strike the testimony of two of the 

witnesses because the State had violated the district court’s deadline to disclose 404(b) 

evidence. The district court also denied that motion.

[¶9] At trial, Appellant claimed that he had acted in self-defense when he shot and 

killed the victim. According to Appellant, the victim punched out Appellant’s car 

window and assaulted him inside his vehicle before Appellant shot him. In accordance 

with this theory, Appellant proposed jury instructions setting forth rules relating to selfdefense in a home or habitation and specifically included “vehicles” in the definition of

“habitation.” The district court declined to give the requested instructions.

[¶10] The jury found Appellant guilty of second-degree murder and Appellant was 

sentenced to 30 to 50 years in prison. This appeal followed. Additional facts will be set 

forth as necessary in the discussion below. 

DISCUSSION

Issue 1: Exclusion of the victim’s criminal history

[¶11] In his first issue, Appellant claims the district court abused its discretion by 

excluding evidence relating to the victim’s criminal history. Appellant claims the 

evidence should have been admitted because it indicated the victim had an “escalating 

criminal history.” The State responds that the district court did not abuse its discretion in 

excluding the evidence because the victim’s criminal history did not establish that he 

engaged in activity involving life-threatening behavior or behavior which may have 

resulted in serious bodily harm.

[¶12] A district court’s evidentiary rulings are reviewed for an abuse of discretion.

Evidentiary rulings are within the sound discretion of 

the trial court and include determinations of the 

adequacy of foundation and relevancy, competency, 

materiality, and remoteness of the evidence. This 

Court will generally accede to the trial court’s 

determination of the admissibility of evidence unless 

that court clearly abused its discretion.

Lawrence v. State, 2015 WY 97, ¶ 10, 354 P.3d 77, 80 (Wyo. 2015) (quoting Brock v. 

State, 2012 WY 13, ¶ 23, 272 P.3d 933, 939-40 (Wyo. 2012)). “The ultimate issue that 

we decide in determining whether there has been an abuse of discretion is whether or not 

the court could have reasonably concluded as it did.” Lawrence, ¶ 10, 354 P.3d at 80
4

(quoting Edwards v. State, 973 P.2d 41, 45 (Wyo. 1999)).

[¶13] W.R.E. 404 and 405 specifically address the admissibility of evidence of a 

victim’s character. See Taul v. State, 862 P.2d 649, 655 (Wyo. 1993). With certain 

exceptions, evidence of a person’s character is not admissible to prove that the person 

acted in conformity therewith on a particular occasion. W.R.E. 404(a). An accused may, 

however, offer evidence of a pertinent character trait of a victim to show that the victim 

was the first aggressor. W.R.E. 404(a)(2).

[¶14] W.R.E. 405 addresses the methods of proving character:

(a) Reputation or opinion. In all cases in which evidence of 

character or a trait of character of a person is admissible, 

proof may be made by testimony as to reputation or by 

testimony in the form of an opinion. On cross-examination, 

inquiry is allowable into relevant specific instances of 

conduct.

(b) Specific instances of conduct. In cases in which character 

or a trait of character of a person is an essential element of a 

charge, claim, or defense, or is in issue under Rule 404(a)(2), 

proof may also be made of specific instances of his conduct.

The comment accompanying W.R.E. 405 states: “The purpose of the added language in 

subdivision (b) is to [e]nsure that the accused in assault or homicide cases may introduce 

evidence of specific instances of the victim’s conduct to prove that the victim was the 

first aggressor.” 

[¶15] In Edwards, 973 P.2d at 47, we explained that evidence of a victim’s criminal

history is admissible in homicide cases if it shows that the victim “engaged in lifethreatening behavior or in behavior which may have resulted in serious bodily harm:”

In Braley v. State, 741 P.2d 1061 (Wyo. 1987), we 

considered the admissibility of the evidence of a victim’s 

criminal record. The defendant in that case argued that the 

trial court erred by not allowing him to present evidence of 

the victim’s criminal history, which would have supported his 

claim that he killed the victim in self-defense. 741 P.2d at 

1067-69. We considered W.R.E. 401, 402, 403, and 404 and 

determined that a victim’s criminal record may be relevant if 

it illustrates that the victim engaged in life-threatening 

behavior or in behavior which may have resulted in serious 

bodily harm. Id. In the final analysis, however, we concluded 
5

that the trial court did not err when it excluded the evidence 

because, under W.R.E. 403, the probative value of the 

evidence was outweighed by its prejudicial effect.

The evidence at issue in Edwards related to an incident in which the victim held his wife 

hostage and fired a gunshot into the air. We held that evidence of the incident was 

admissible after finding that the victim engaged in life-threatening behavior when he 

fired a gunshot. Id., 973 P.2d at 47. However, we concluded that the defendant was not 

prejudiced by the trial court’s refusal to allow testimony regarding the episode because 

the general nature of the incident had already been presented to the jury. Id.

[¶16] As noted above, the district court admitted evidence of the victim’s arrest for 

battery and interference with a police officer after determining that the incident involved

behavior which may have resulted in serious bodily harm. Appellant contends that all of 

the victim’s arrests should have been admitted because they demonstrated an “escalating” 

criminal history. We do not agree. As noted above, Rule 404 limits admissibility of 

evidence relating to the victim’s character. In a homicide case, the defendant may 

introduce evidence of specific instances of the victim’s conduct to prove the victim was 

the first aggressor only where those instances involve life-threatening behavior or 

behavior which may have resulted in serious bodily harm. Appellant did not produce 

evidence that the victim’s arrest for conspiracy to commit vehicular burglary or his arrest 

for breach of the peace involved life-threatening behavior or behavior which may have 

resulted in serious bodily harm. Accordingly, we are unable to conclude that the district 

court abused its discretion in excluding evidence relating to those arrests.

Issue 2: Exclusion of expert witness testimony

[¶17] In his second issue, Appellant contends the district court abused its discretion in 

excluding Appellant’s proposed expert testimony regarding the character traits of persons 

who view depictions of child pornography and bestiality. The district court concluded 

that the proposed testimony was inadmissible because Appellant did not timely provide 

witness statements as ordered by the court and because the probative value of the 

evidence was outweighed by the danger of unfair prejudice under W.R.E. 403. The 

district court also noted that there had been no case law cited supporting the admissibility 

of the proposed evidence. In light of the delay in disclosing the expert testimony and the 

lack of any legal authority to support its admission, the court concluded that it was left 

without any “clear showing of how this evidence could possibly have application to the 

defense in this case.” We review the district court’s decision to exclude the testimony for 

an abuse of discretion. Lawrence, ¶ 10, 354 P.3d at 80.

[¶18] Appellant does not present pertinent authority or cogent argument in support of 

this issue. Appellant acknowledges that he gave notice of the proposed expert testimony 

after the court’s deadline to exchange witness statements. He claims, however, that the 
6

delay was inconsequential because notice of the specific websites viewed by the victim 

was “sufficient upon which to base an expert opinion.” In making this argument, 

Appellant confuses disclosure of the proposed expert testimony with disclosure of the 

evidence upon which the expert testimony was purported to be based. 

[¶19] Further, as noted above, a victim’s character for aggression may be proven by 

reputation, opinion, or specific instances of conduct pursuant to W.R.E. 405. Expert 

opinion on the link between aggressive behavior and viewing child pornography or 

bestiality does not constitute proof of the victim’s character by one of the methods 

permitted by Rule 405. We note that other courts have also reached the conclusion that 

expert opinion evidence is not the kind of evidence contemplated by Rule 405. See State 

v. Ambrosia, 67 Ohio App. 3d 552, 562, 587 N.E.2d 892, 899 (1990); State v. Jessen, 130 

Ariz. 1, 7, 633 P.2d 410, 416 (1981).

[¶20] The expert testimony at issue is very similar to the kind of profile evidence that we 

have previously determined to be inadmissible. In Ryan v. State, 988 P.2d 46 (Wyo. 

1999), this Court concluded that the district court improperly admitted expert testimony 

on the characteristics of batterers and the conduct they tend to exhibit to show that the 

defendant had acted in conformity with those characteristics:

Finding guilt by reference to common characteristics 

of a class of individuals to which one belongs raises the 

specter of profile evidence. Profile or syndrome evidence is 

developed through expert testimony and tends to classify 

people by their shared physical, emotional, or mental 

characteristics. State v. Percy, 146 Vt. 475, 507 A.2d 955, 

960 (1986) (citing 1 J. Weinstein & M. Berger, Weinstein’s 

Evidence § 401[10], at 88–91 (1985)). In the context of drug 

courier profiles, a profile has been characterized as,

an “informal compilation of characteristics often 

displayed by those trafficking in drugs,” and as an 

“‘abstract of characteristics found to be typical of 

persons transporting illegal drugs.’” Similarly, Chief 

Justice Rehnquist has described the profile as 

essentially an investigative tool involving 

characteristics recognizable to trained officers. “A 

‘profile’ is, in effect the collective or distilled 

experience of narcotics officers concerning 

characteristics repeatedly seen in drug smugglers.”

United States v. Quigley, 890 F.2d 1019, 1021 (8th Cir.1989) 

(citations omitted), cert. denied, 493 U.S. 1091, 110 S.Ct. 
7

1163, 107 L.Ed.2d 1066 (1990). Translated into the battering 

spouse context, a profile is a compilation of characteristics 

repeatedly seen in those who batter their spouses.

While our research has not disclosed any case dealing 

specifically with battering spouses, other jurisdictions in 

different contexts have dealt with similar attempts to 

construct a criminal profile for the purpose of proving 

conduct in conformity therewith. Those jurisdictions that 

have considered profiles of battering parents, pedophiles, 

rapists, and drug couriers unanimously agree that the 

prosecution may not offer such evidence in its case-in-chief 

as substantive evidence of guilt. These cases generally 

articulate three evidentiary bases for excluding evidence 

tending to establish that the defendant fits a particular profile: 

1) relevancy; 2) probative value substantially outweighed by 

prejudicial effect; and 3) impermissible character evidence.

Ryan, 988 P.2d at 55. Evidence attempting to establish a profile of the victim is subject 

to the same limitations as evidence attempting to establish a profile of the accused under 

Rule 405. See Mueller and Kirkpatrick, 3 Federal Evidence, § 351 (2d ed. 1994). We 

find no meaningful distinction between the expert testimony at issue in Ryan and the 

expert testimony excluded in the present case. The district court did not err in excluding 

the evidence.

Issue 3: Exclusion of jury instructions relating to the use of force in defense of 

habitation

[¶21] In his third issue, Appellant claims the district court erred by declining to give his 

proposed instructions relating to self-defense in a home or habitation. Appellant 

proposed the following instructions:

Proposed Jury Instruction No. 16:

A person may defend his home or habitation against anyone

who manifestly intends or endeavors in a violent or riotous

manner, to enter that home or habitation and who appears to

intend violence to any person in that home or habitation. The

amount of force that the person may use in resisting such 

trespass is limited by what would appear to a reasonable 

person, in the same or similar circumstances, necessary to 

resist the violent or unlawful entry. A person is not bound to 

retreat even though a retreat might safely be made. A person 
8

may resist force with force, increasing it in proportion to the 

intruder’s persistence and violence if the circumstances 

apparent to him are such as would excite similar fears and a 

similar belief in a reasonable person. If the person kills under 

the influence of such fear, the homicide is not a felonious 

homicide but is justified.

Proposed Jury Instruction No. 17:

A person who unlawfully and by force enters or attempts to 

enter another’s home or habitation is presumed to be doing so 

with the intent to commit an unlawful act involving force or 

violence.1

The district court declined to give the requested instructions after determining that the 

definition of “habitation” does not apply to vehicles and that the instruction did not fit the 

evidence. 

[¶22] We review the refusal to give a proposed jury instruction for an abuse of 

discretion. Gonzalez-Ochoa v. State, 2014 WY 14, ¶ 18, 317 P.3d 599, 604 (Wyo. 2014).

When reviewing questions involving jury instructions, 

we afford significant deference to the trial court’s 

decisions. Farmer v. State, 2005 WY 162, ¶ 20, 124 

 

1 Appellant claims that his Proposed Jury Instruction No. 17 provided as follows:

“Habitation” means any structure that is designed or adapted for 

overnight accommodation, including, but not limited to, buildings, 

modular units, trailers, campers, tents and vehicles.

However, no such proposed instruction is contained in the record. Appellant also contends the district 

court erred because it did not give his Proposed Jury Instruction No. 18. That instruction provided that 

It is lawful for a person who is being assaulted to defend himself from 

attack if he has reasonable grounds for believing and does believe that 

bodily injury is about to be inflicted upon him. In doing so he may use 

all force that would appear to a reasonable person, in the same or similar 

circumstances, to be necessary to prevent the injury that appears to be 

imminent. 

Appellant’s Proposed Jury Instruction No. 18, however, was given by the district court as Jury Instruction 

No. 26. Accordingly, we do not address Appellant’s claim that the district court erred by declining to 

give this instruction.
9

P.3d 699, 706 (Wyo. 2005). “A trial court is given 

wide latitude in instructing the jury and, as long as the 

instructions correctly state the law and the instructions 

in their entirety sufficiently cover[] the relevant issue, 

reversible error will not be found.” Roden v. State, 

2007 WY 200, ¶ 21, 173 P.3d 369, 375 (Wyo. 2007),

quoting Duke v. State, 2004 WY 120, ¶ 90, 99 P.3d 

928, 954 (Wyo. 2004).

Gonzalez-Ochoa, ¶ 18, 317 P.3d at 605 (quoting Benjamin v. State, 2011 WY 147, ¶ 37, 

264 P.3d 1, 11 (Wyo. 2011)).

[¶23] In Wyoming, a person has a greater right to use self-defense within one’s “home 

or habitation.” Wyo. Stat. Ann. § 6-2-602. A “habitation” is defined as “any structure 

which is designed or adapted for overnight accommodation, including, but not limited to, 

buildings, modular units, trailers, campers and tents[.]” Wyo. Stat. Ann. § 6-2-602(d)(i). 

Appellant contends that his vehicle fell within the statutory definition of habitation 

because he adapted it for overnight accommodation when he chose to sleep in it. 

However, he provides no authority interpreting the statutory definition of “habitation” to 

include vehicles, and no authority supporting his claim that a vehicle may be “adapted” 

for overnight accommodation simply by choosing to sleep in it. Accordingly, we are 

unable to find that the district court abused its discretion when it declined Appellant’s 

request to instruct the jury on self-defense in a home or habitation.

[¶24] Appellant also claims that Wyo. Stat. Ann. § 6-2-602(d)(i) was changed by the 

legislature in 2014 to remove “vehicles” from the definition of “habitation.” As a result, 

he contends that the failure to give the requested instructions violates constitutional 

prohibitions against the enactment of ex post facto laws. We do not agree. Appellant 

incorrectly claims that Wyo. Stat. Ann. § 6-2-602(d)(i) was amended in 2014. The 

legislature added the definition of “habitation” to the statute in 2011. 2011 Wyo. Sess. 

Laws ch. 142, § 1. That definition, which has never included “vehicles,” has remained 

the same since it was included in the statute. Accordingly, we find no merit in this

argument.

Issue 4: Jury instruction relating to first aggressor

[¶25] In his fourth issue, Appellant claims the district court abused its discretion by

giving Jury Instruction No. 27, relating to self-defense. That instruction provided as 

follows:

Jury Instruction No. 27

In considering the claim of self-defense in this case, 
10

you must first determine whether the Defendant was the 

aggressor in this case or whether Mr. Baldwin was the 

aggressor in this case. Some sort of physical aggression or a 

threat of imminent use of deadly force is required before a 

person will be considered an aggressor. Verbal provocation 

without more is generally insufficient to justify an initial 

aggressor. If you find that the Defendant was the aggressor in 

this case, you should consider his duty under Instruction 28. 

If you find that Mr. Baldwin was the aggressor you should 

review the Defendant’s actions under Instruction 29. 

If the jury determined that Appellant was the first aggressor, Jury Instruction No. 28 

instructed that he must first withdraw or retreat before resorting to deadly force. If the 

jury determined, however, that the victim was the first aggressor, Jury Instruction No. 29 

instructed that Appellant must use other reasonable, legal alternatives before resorting to 

deadly force. 2

[¶26] Appellant contends that Instruction No. 27 is contrary to Drennen v. State, 2013 

WY 118, 311 P.3d 116 (Wyo. 2013). He claims that pursuant to Drennen “the jury’s 

duty is not to ‘first determine’ who was the aggressor but, instead, to determine whether 

the defendant reasonably perceived a threat of immediate bodily injury under the 

circumstances and whether he defended himself in a reasonable manner, by evaluating 

 

2

Jury Instruction No. 28 provided as follows:

Even if the defendant had reasonable ground 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.

Jury Instruction No. 29, in turn, provided:

Prior to resorting to deadly force a Defendant has a duty to 

pursue reasonable alternatives under the circumstances. The Defendant 

may use deadly force only if necessary, and must consider reasonable 

alternatives, which may include retreat, before resorting to deadly force.
11

the totality of the circumstances and his options in protecting himself from such a 

perceived threat of harm.” 

[¶27] In Drennen, ¶ 32, 311 P.3d at 127, we stated that “In cases where the 

determination of which party was the aggressor is in dispute, the jury should be 

specifically instructed as to the definition of ‘aggressor’ so it can resolve the factual 

issue.” We then proceeded to set forth the manner in which the jury should be instructed:

When the defendant has met the minimal burden of 

presenting a prima facie case that the deceased was the 

aggressor, the district court must instruct the jury on the legal 

definition of “aggressor.” The jury should be instructed that 

if it determines the defendant was the aggressor, he had a 

duty to withdraw or retreat before he could claim the right 

to self-defense. If, on the other hand, the defendant has not 

made a prima facie case that the deceased was the aggressor, 

the jury should be instructed on the defendant’s absolute duty 

to withdraw or retreat before self-defense will be recognized. 

In cases where the evidence establishes, as a matter of law, 

the defendant was not the aggressor, the jury should not be 

charged that he had an absolute duty to retreat. In all cases, 

the jury should be instructed that the defendant was justified 

in using deadly force only if necessary; consequently, he 

must consider reasonable alternatives, which may include 

retreat, before using deadly force.

Id., ¶ 39, 311 P.3d at 129 (emphasis added). We agree with Appellant that the jury must 

evaluate the totality of the circumstances to determine whether a defendant reasonably 

perceived a threat of immediate bodily injury and whether he defended himself in a 

reasonable manner. Drennen, ¶ 13, 311 P.3d at 122. Considering which party was the 

first aggressor, however, is not inconsistent with an evaluation of the totality of the 

circumstances. Rather, because the parties disputed whether the victim was the first 

aggressor, the jury was required to consider which party was the first aggressor in its 

evaluation of the totality of the circumstances. Jury Instruction No. 27 is consistent with 

the standards set forth in Drennen. We find no abuse of discretion in the district court’s 

decision to give the instruction.

Issue 5: Admission of 404(b) evidence

[¶28] In his final issue, Appellant contends the district court abused its discretion when 

it admitted testimony regarding statements Appellant made to Christopher Syverson and 

Crystal Mize on the night of October 3

rd

. Appellant claims the evidence was 

inadmissible because the testimony was noticed by the State after the court’s deadline for 
12

disclosing 404(b) evidence relating to other crimes, wrongs, or acts. According to 

Appellant “Allowing their testimony, without first following the required [] procedures 

after an allegation of a discovery order violation, was an abuse of discretion that 

prejudiced Mr. Knospler’s defense and was reversible error.” We do not agree. 

Appellant’s argument fails to account for the fact that he did not allege a discovery 

violation until after the witnesses testified at trial.

[¶29] The State filed its original notice of intent to introduce evidence under Rule 404(b) 

on June 23. On November 19, 2014, approximately a month prior to trial, the State filed 

a notice of intent to offer testimony of Westy Guill, Christopher Syverson, and Crystal 

Mize. The State indicated that the witnesses would each give testimony relating to 

conversations they had with Appellant on the night of October 3

rd

: Mr. Guill, an 

employee of Racks bar, would testify that Appellant had asked him to arrange a purchase 

of cocaine; Mr. Syverson, a friend of the victim, would testify that Appellant had 

indicated he wanted to smoke marijuana; Ms. Mize, also an employee of Racks bar, 

would testify that Appellant talked to her about how easy it would be to kill someone and 

told her that “nobody means nothing to me.” The State noted that it had not previously 

disclosed the proposed testimony because the statements were discovered during 

additional interviews of the witnesses conducted on November 17th and 18th.

[¶30] Appellant responded to the State’s notice by filing a motion in limine to exclude 

the proposed testimony. In that motion, Appellant claimed the evidence was inadmissible 

because it was irrelevant under W.R.E. 401 and because the probative value of the 

evidence was outweighed by the danger of unfair prejudice under W.R.E. 403. Appellant 

also asserted that the evidence constituted inadmissible hearsay under W.R.E. 802. 

Notably, Appellant did not object on the basis that the State’s delayed notice constituted a 

violation of the court’s discovery deadline. The district court determined that the 

evidence was relevant and denied Appellant’s motion.3

[¶31] After the witnesses testified at trial, defense counsel stated that he was “going to 

be asking” the Court to strike the testimony of Ms. Mize and Mr. Syverson “as a result of 

two direct discovery violations.” Counsel subsequently filed a motion to strike the 

testimony of Ms. Mize and Mr. Syverson on the grounds that the State had violated the 

court’s June 23, 2014, deadline to disclose 404(b) evidence as well as the court’s

December 8, 2014, deadline to disclose witness statements. The district court denied the

motion.

[¶32] In Seivewright v. State, 7 P.3d 24, 28 (Wyo. 2000), we held that, pursuant to 

 

3 Appellant does not challenge the district court’s determination regarding the relevancy of the evidence.
13

W.R.Cr.P. 26.2,

4

the district court is obligated to pursue the matter when there has been 

an allegation of a discovery violation. See also Willoughby v. State, 2011 WY 92, ¶ 26, 

253 P.3d 157, 165 (Wyo. 2011). We have also held, however, that a defendant must 

timely allege a discovery violation in order for the mandates of W.R.Cr.P. 26.2 to apply. 

In Warner v. State, 2001 WY 67, ¶ 24, 28 P.3d 21, 29 (Wyo. 2001), the prosecution did 

not notify the court that it would present an expert witness until after the defense rested. 

During the expert’s testimony, the defense objected on grounds that the testimony was 

improper rebuttal. Id. The district court overruled the objection. After the expert 

completed her testimony, the defense submitted a motion for mistrial which alleged 

discovery violations. The court denied the defendant’s motion. Id. On appeal, we held 

that the rule of Seivewright did not apply:

The record shows that despite a pretrial order requiring 

the prosecution to provide discovery under W.R.Cr.P. 16 and 

26.2, the expert testified without notice to the defense. In 

Seivewright v. State, 7 P.3d 24 (Wyo. 2000), we held that 

when a defendant alleges that the State has failed to comply 

with W.R.Cr.P. 26.2, the district court is required to hold a 

hearing and determine if any discovery violation has 

occurred, and the failure for the district court to hold a 

hearing is reversible error. Id. at 28. In this case, Warner 

waited until after the expert had testified before moving for a 

mistrial on grounds that he had not received pretrial notice 

that the expert would testify and had not been given her 

curriculum vitae, but he did not specify a W.R.Cr.P. 26.2 

violation. Under these circumstances, Sievewright would not 

apply; instead, we apply an abuse of discretion standard to the 

trial court’s failure to grant a motion for mistrial for violation 

of the pretrial order. See Lawson v. State, 994 P.2d 943, 946-

47 (Wyo. 2000). “[A] mistrial is an extreme and drastic 

 

4 W.R.Cr.P. 26.2 provides, in relevant part, as follows:

(e) Failure to comply with order. -- If a party elects not to comply with 

an order to deliver a statement, the court shall order:

(1) That the witness not be permitted to testify; or

(2) That the testimony of the witness be stricken from the record 

and that the trial proceed; or

(3) If it is the attorney for the state who elects not to comply, 

shall declare a mistrial if required in the interest of justice.
14

remedy which should be resorted to only when there has been 

an error so prejudicial that justice could not be served by 

continuing the trial.” Ramirez v. State, 739 P.2d 1214, 1220 

(Wyo. 1987). The discovery violation did not warrant 

granting a mistrial.

Warner, ¶ 25, 28 P.3d at 29.

[¶33] Appellant notes that, pursuant to this Court’s precedent, the district court must 

determine an appropriate sanction following an allegation of a discovery violation. 

Relying on this rule, Appellant claims that “The Court did not conduct any such inquiry 

before it allowed the State’s new 404(b) evidence, which was an abuse of discretion 

because the absence of such inquiry foreclosed reasonable exercise of discretion.”

However, Appellant did not allege a discovery violation until after all three witnesses had 

testified at trial. As noted above, the State provided notice of its intent to introduce 

testimony from the three witnesses approximately a month prior to trial. Although 

Appellant filed a motion in limine to exclude the testimony, he did not raise an issue with 

respect to any discovery violation. Appellant also did not allege a discovery violation at 

the pretrial conference held a week prior to trial. Indeed, Appellant did not raise the issue 

at trial until after the witnesses had testified. When the issue was raised, counsel 

requested the opportunity to brief the issue and stated “I’m going to be asking the Court 

to strike both witnesses . . . as a result of two direct discovery violations.” Appellant 

filed a motion to strike several days later, after the defense rested.

[¶34] Considering these circumstances, we find no merit in Appellant’s claim that the 

district court’s decision to admit the evidence was an abuse of discretion. No discovery 

violation was alleged by Appellant at any point prior to the witnesses’ testimony. The 

district court did not abuse its discretion in admitting the testimony.

[¶35] Affirmed.