IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 14

 OCTOBER TERM, A.D. 2013

January 27, 2014

JESUS ANTONIO GONZALEZ-OCHOA,

Appellant

(Defendant),

v.

THE STATE OF WYOMING,

Appellee

(Plaintiff).

No. S-12-0281

Appeal from the District Court of Platte County

The Honorable Keith G. Kautz, Judge

Representing Appellant:

Office of the State Public Defender: Diane M. Lozano, State Public Defender; 

Elisabeth M. W. Trefonas, Assistant Public Defender. Argument by Ms. Trefonas.

Representing Appellee:

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

Jeffrey S. Pope, Assistant Attorney General; Jennifer E. Zissou, Assistant Attorney 

General. Argument by Ms. Zissou.

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 any typographical or other formal errors so that correction may be made before final publication in 

the permanent volume.
1

BURKE, Justice.

[¶1] Appellant, Jesus Antonio Gonzalez-Ochoa, appeals from a judgment and sentence 

following his conviction on one count of first degree murder. He raises issues involving 

assertions of an improper evidentiary ruling, prosecutorial misconduct, and error in 

instructing the jury. We find no error and affirm.

ISSUES

[¶2] Appellant presents these three issues:

I. Did the district court admit evidence of uncharged 

misconduct in violation of Rule 404(b) of the Wyoming Rules 

of Evidence? 

II. Did the prosecutor engage in misconduct during 

closing argument by asserting facts not in evidence?

III. Did the district court err in refusing to give jury 

instructions proposed by the defense?

FACTS

[¶3] On the night of June 18, 2011, Christopher Walker was shot and killed in an alley 

near a bar in Wheatland, Wyoming. The State charged Appellant with the murder. 

Evidence at trial showed that Appellant and Mr. Walker had had an antagonistic 

relationship, at least in part, due to the fact that Mr. Walker’s girlfriend broke up with 

him and began dating Appellant. On several occasions, Mr. Walker had tried to goad 

Appellant into fighting with him.

[¶4] On the night of the shooting, Appellant was at the bar with friends. Mr. Walker 

and his neighbor came into the bar, and despite the hostility between Appellant and 

Mr. Walker, the two groups of men played pool and drank together. Mr. Walker again 

tried to instigate a fight with Appellant, and this time Appellant accepted the challenge. 

They left the bar together but, instead of immediately fighting, went to Appellant’s 

vehicle to talk. Apparently, they were unable to settle their differences. Mr. Walker left 

the vehicle and started walking toward the alley. Appellant grabbed a rifle that was in his 

vehicle, and followed Mr. Walker into the alley. According to the State, Appellant then

shot and killed Mr. Walker. After the shooting, Appellant fled the scene. He was 

arrested later that night at his home. The rifle was found in his vehicle, which was still 

parked near the bar. Testing indicated that the bullets recovered from Mr. Walker’s body 

were fired from this rifle.
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[¶5] Appellant was the only witness to the shooting. He denied shooting Mr. Walker, 

and told the jury that he took his rifle only to “scare” Mr. Walker “so he would leave me 

in peace.” He testified that when he was walking toward the alley behind Mr. Walker, 

another person jumped out from behind a vehicle in the parking lot. According to 

Appellant, “this person came and pushed me away . . . and he took away the gun; and he 

is the one that made all the shots; and I heard him say, ‘I told you I was going to find 

you.’” Appellant did not identify this other person. 

[¶6] The jury apparently rejected Appellant’s version of the events and returned a 

verdict of guilty. Appellant was sentenced to life according to law. He filed this timely 

appeal.

DISCUSSION

404(b) Evidence

[¶7] In his first issue, Appellant contends that the district court admitted evidence of 

uncharged misconduct in violation of Rule 404(b) of the Wyoming Rules of Evidence. 

At trial, the prosecutor questioned Appellant’s former girlfriend about the firearms he 

possessed. She said he got them after Mr. Walker “approached him wanting to fight.” 

Asked next about people who had been “messing with” Appellant, she said Mr. Walker 

“was the main one,” but that he had also mentioned a few other people. Following a few 

questions about Mr. Walker, this exchange occurred:

Q. Did you ever make statements when discussing this 

incident to the effect that [Appellant] had told you people 

wanted to kill him?

A. No. . . .

Q. But were there other conversations about people in 

general that wanted to kill him?

A. Yes.

Q. Did he ever mention anything about the Mafia?

A. Yes.

Q. What did he say?

A. He had said that people from Mexico had called him 

and were threatening him, and they had his father, who is in 
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Mexico; and they had called [him] and told him to go back to 

work for them, or with them, or they were going to take his 

father’s life.

The prosecutor shifted to another topic, asked a few more questions, and indicated he had 

finished examining the witness. At that point, defense counsel asked to approach the 

bench. The court announced a short break, excused the jury, and heard defense counsel’s 

objection.

THE COURT: Counsel, what’s the issue here?

[Defense Counsel]: Judge, we filed a discovery demand at 

the very beginning of this case; and we specifically asked for 

notice of any 404(b) evidence that was going to be offered in 

this case.

THE COURT: Counsel, what do you think was 404(b) 

evidence?

[Defense Counsel]: The question about the Mafia, Judge.

THE COURT: And tell me how that question was 

wrong or an act on the part of the defendant as opposed to 

someone in Mexico.

[Defense Counsel]: I think whether or not the state believes 

that my client was involved in the Mafia in any way is classic 

404(b) evidence, classic evidence of prior wrongs or bad acts.

THE COURT: And you chose not to object when you heard 

the question.

[Defense Counsel]: It happened quickly, Judge. I am 

objecting now.

THE COURT: Okay, thank you. [Mr. Prosecutor?]

[Prosecutor]: Thank you, your Honor. That was elicited by 

me specifically as to the reasons [Appellant] possessed that 

weapon. She was testifying as to whether or not he was 

afraid of [Mr. Walker]. She had previously testified that 

people were trying to get to him. . . . There were plural other 

people, and the report on page 11 that has been provided to 
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the defense references the mafia; and I elicited that because I 

– They are going to go, I believe, even though they reserved 

their opening statement, with some kind of self-defense 

defense, and I think it’s very relevant to know why he 

possessed this firearm, because if there are other reasons, 

other than he was afraid of [Mr.] Walker, I think that’s 

important for the jury to hear, and that’s why I asked the 

question; and I would argue that it certainly isn’t 404(b). 

There was no act elicited. It was in general he had this idea 

that people were after him, and he needed protection, and 

that’s all it was about for me.

THE COURT: In context, the Court did not interpret that 

testimony as implying that because of some threat made 

against the defendant he had any character that would result 

in conduct. The court didn’t interpret it that way.

If you want a limiting instruction, I will think about it; 

but, I mean, you heard some testimony or something like the 

mafia. There isn’t any kind of evidence that he was involved 

in any kind of mafia and you should disregard that. I will be 

glad to do that. But the Court’s impression is that it wasn’t 

that impression given anyway.

So I will overrule your objection, and we can talk 

about a limiting instruction if you want me to give one.

Defense counsel did not ask for a limiting instruction, and the district court did not give 

one.

[¶8] Appellant contends that the quoted testimony should have been excluded pursuant 

to W.R.E. 404(b).1 Our first step in resolving this issue is to determine the proper 

 

1 W.R.E. 404(b) provides as follows:

(b) Other crimes, wrongs, or acts. – Evidence of other crimes, wrongs, 

or acts is not admissible to prove the character of a person in order to 

show that he acted in conformity therewith. It may, however, be 

admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or 

accident, provided that upon request by the accused, the prosecution in a 

criminal case shall provide reasonable notice in advance of trial, or 
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standard of review. “Generally, the standard for review of rulings under W.R.E. 404(b) 

is abuse of discretion. However, where no trial objection occurred, the plain error 

standard applies.” Gleason v. State, 2002 WY 161, ¶ 18, 57 P.3d 332, 340 (Wyo. 2002) 

(internal citations omitted). 

[¶9] Defense counsel did make an objection on Appellant’s behalf, but not immediately 

after the testimony at issue. In an earlier case involving Rule 404(b) evidence, Harrell v. 

State, 2011 WY 129, ¶ 11, 261 P.3d 235, 238 (Wyo. 2011), an objection was made, but 

not until after the witness had completed his testimony and was released from his 

subpoena. We concluded that the objection was not sufficiently contemporaneous with 

the testimony at issue, and therefore applied the plain error standard of review. 

[¶10] Appellant’s case is somewhat different. Although the objection was not timely, it 

was raised only eight questions later. The same witness remained on the stand. The 

district court had a reasonable opportunity to consider the objection, and most 

importantly, ruled on the objection. Because the district court made a decision based on 

Appellant’s objection, we will review that decision for abuse of discretion. Wimbley v. 

State, 2009 WY 72, ¶ 10, 208 P.3d 608, 611 (Wyo. 2009). 

[¶11] In applying this standard of review, we recognize that a “trial court’s rulings on 

the admissibility of evidence are entitled to considerable deference, and, as long as there 

exists a legitimate basis for the trial court’s ruling, that ruling will not be disturbed on 

appeal.” Sanchez v. State, 2006 WY 116, ¶ 20, 142 P.3d 1134, 1140 (Wyo. 2006) (citing 

Billingsley v. State, 2003 WY 61, ¶ 9, 69 P.3d 390, 395 (Wyo. 2003)). In addition, even 

if we conclude that the evidence should not have been admitted, we must ask if the error 

was prejudicial. Solis v. State, 981 P.2d 34, 36 (Wyo. 1999). “Error is prejudicial if there 

is a reasonable possibility that the verdict might have been more favorable to the 

defendant if the error had not been made.” Vigil v. State, 2010 WY 15, ¶ 11, 224 P.3d 31, 

36 (Wyo. 2010) (citing Solis, 981 P.2d at 36).

[¶12] The State contends, as it did in the district court, that this testimony is not the sort 

of evidence covered by Rule 404(b). The rule applies to “[e]vidence of other crimes, 

wrongs, or acts,” or in other words, evidence of conduct reflecting on character. Sanchez, 

¶ 21, 142 P.3d at 1140. In the testimony at issue here, the only part that might indicate 

conduct is the statement that the mafia told Appellant “to go back to work for them, or 

with them.” The district court did not interpret this as evidence of Appellant’s conduct or 

as reflecting on his character. To the extent this is evidence of conduct, it was vague and 

provided no information about what, if anything, Appellant had actually done for or with 

 

during trial if the court excuses pretrial notice on good cause shown, of 

the general nature of any such evidence it intends to introduce at trial.
6

the mafia. The district court could reasonably conclude that the testimony was not 404(b) 

evidence and we find no abuse of discretion in its decision to overrule the objection.

[¶13] Additionally, we are convinced that the verdict would have remained the same if 

the evidence had been excluded. The challenged testimony was a brief, isolated, and 

ambiguous mention in the midst of a three-day trial. The other evidence introduced 

provided compelling evidence of guilt. Appellant admitted having an antagonistic 

relationship with Mr. Walker. He admitted following Mr. Walker into the alley and 

taking his rifle with him. A short time later, Mr. Walker was found in the alley with 

gunshot wounds inflicted by that rifle. Appellant fled the crime scene and provided 

conflicting versions of the incident to police. We find no reasonable possibility that the 

verdict would have been different without this brief and vague reference to the mafia.

Prosecutorial Misconduct

[¶14] As mentioned above, Appellant admitted that he took his rifle into the alley with 

Mr. Walker. The rifle was later found in Appellant’s vehicle. During closing argument, 

the prosecutor said, “I submit to you the evidence shows beyond a reasonable doubt that 

the defendant . . . place[d] the rifle back in [his vehicle].” Defense counsel objected, 

asserting there was “absolutely no evidence of the defendant running back to [his 

vehicle].” The district court did not sustain the objection. On appeal, Appellant asserts 

that the prosecutor’s statement constituted misconduct because it was unsupported by the 

evidence.

[¶15] “Allegations of prosecutorial misconduct are settled by reference to the entire 

record and ‘hinge on whether a defendant’s case has been so prejudiced as to constitute 

denial of a fair trial.’” Schreibvogel v. State, 2010 WY 45, ¶ 39, 228 P.3d 874, 887 

(Wyo. 2010), quoting Mazurek v. State, 10 P.3d 531, 542 (Wyo. 2000). In this case, 

Appellant objected to the prosecutor’s argument. Accordingly, we apply the harmless 

error standard of review. Benjamin v. State, 2011 WY 147, ¶ 50, 264 P.3d 1, 13 (Wyo. 

2011). Before we consider whether the error caused prejudice, we must first find that 

there was an error. Hughes v. State, 658 P.2d 1294, 1296 (Wyo. 1983). Appellant has 

failed to establish that error occurred.

[¶16] A prosecutor commits misconduct if, during closing argument, he intentionally 

misstates the evidence. Dysthe v. State, 2003 WY 20, ¶ 24, 63 P.3d 875, 885 (Wyo. 

2003). However, the prosecution is allowed to argue reasonable inferences from the 

evidence presented. Bustos v. State, 2008 WY 37, ¶ 10, 180 P.3d 904, 908 (Wyo. 2008). 

An inference is “a deduction from the facts given, which is usually less than certain but 

which may be sufficient to support a finding of fact.” Ogden v. State, 2001 WY 109, 

¶ 14, 34 P.3d 271, 275 (Wyo. 2001) (quoting Barron’s Law Dictionary 231 (2d ed. 

1984)).
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[¶17] Appellant is correct that there was no testimony indicating he was the one who put 

his rifle into his vehicle after the shooting. But reasonable inferences may be drawn from 

the evidence that was introduced. Bustos, ¶ 10, 180 P.3d at 908. Appellant admitted that 

he took the rifle from his vehicle and carried it into the alley with Mr. Walker. 

Mr. Walker was shot in the alley with bullets from Appellant’s rifle. The rifle was later 

found in his vehicle. Taken as a whole, the evidence in this case was sufficient to allow 

the prosecutor to make a reasonable inference that it was Appellant who put the rifle in 

the vehicle. The prosecutor did not commit misconduct.

Jury Instructions

[¶18] In his final issue, Appellant challenges the sufficiency of the jury instructions. 

Appellant contends that the district court erred in failing to instruct the jury in accordance 

with our decision in Eagan v. State, 58 Wyo. 167, 198, 128 P.2d 215, 226 (Wyo. 1942). 

The State contends that an Eagan instruction was not appropriate under the facts of this 

case. We review the failure to give a proposed jury instruction for an abuse of discretion. 

Mowery v. State, 2011 WY 38, ¶ 13, 247 P.3d 866, 870 (Wyo. 2011). 

When reviewing questions involving jury instructions, we 

afford significant deference to the trial court’s decisions. 

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

Benjamin, ¶ 37, 264 P.3d at 11.

[¶19] The district court gave this instruction to the jury:

Jury Instruction No. 16

When a defendant testifies he is entitled to have his 

testimony judged by you just like any other witness. You 

may not disregard his testimony just because he is the 

accused defendant. In determining what testimony you 
8

believe you should consider all the circumstances and the 

factors I mentioned in instruction number 1.2

Appellant does not claim that this instruction is erroneous, but he does contend that it 

does not go far enough to satisfy our ruling in Eagan. Appellant offered three alternative 

jury instructions, all of which were aimed at informing the jury of the Eagan rule. The 

first offered instruction was as follows:

When a defendant testifies he is entitled to have his 

testimony judged by you just like any other witness. You 

cannot disregard his testimony just because he is the accused 

defendant. If his testimony regarding an incident or aspect of 

the case is undisputed by other witnesses or evidence you 

should accept it as true but like all other evidence, the weight 

to be given to any particular testimony or evidence is up to 

you and if other evidence is inconsistent with the defendant’s 

testimony you should determine by consideration of all 

evidence whether the defendant’s guilt has been proven 

beyond a reasonable doubt.

The second proposed instruction read:

The Defendant being the sole witness to the 

transaction charged as a crime, his testimony must be 

accepted as true, if not improbable, and if it is not inconsistent 

with the facts and circumstances shown, but is reasonably 

consistent therewith.

The third proposed instruction was this:

Where an accused is the sole witness of a transaction 

charged as a crime, as in the case at bar, his testimony cannot 

be arbitrarily rejected, and if his credibility has not been 

impeached, and his testimony is not improbable, and is not 

inconsistent with the facts and circumstances shown, but is 

 

2 The circumstances and factors mentioned in instruction number 1 included the witnesses’ “conduct, 

attitude, and manner while testifying;” “physical and mental capacity to have heard or seen the event or 

thing they testify about;” “ability to remember and to tell here in Court what they heard or saw;” 

“reputation for honesty and truthfulness or for dishonesty and untruthfulness;” “bias or prejudice, an 

interest in the outcome of the trial, or any other motive for not telling the truth;” and “[w]hether the facts 

related are inherently believable or unbelievable.”
9

reasonably consistent therewith, then his testimony should be 

accepted.

The district court rejected all three of these instructions. 

[¶20] In Eagan, 58 Wyo. at 198, 128 P.2d at 226, we held:

Where an accused is the sole witness of a transaction charged 

as a crime, as in the case at bar, his testimony cannot be 

arbitrarily rejected, and if his credibility has not been 

impeached, and his testimony is not improbable, and is not 

inconsistent with the facts and circumstances shown, but is 

reasonably consistent therewith, then his testimony should be 

accepted.

Based on this language, we have recognized that the Eagan Rule applies only if the 

defendant’s credibility has not been impeached and his testimony is not improbable. See, 

e.g., Benjamin, ¶ 42, 264 P.3d at 11-12.

[¶21] Appellant’s credibility was impeached in this case. For example, he initially told 

the police that he was not at the bar on the night of Mr. Walker’s shooting. At trial, he 

admitted that was a lie. He told the police he had loaned his vehicle to a friend that night, 

but at trial admitted that also was untrue. The record includes other examples. Because 

Appellant’s credibility had been impeached, the Eagan Rule did not apply.

[¶22] The State further contends that an Eagan instruction was inappropriate because 

Appellant’s testimony was improbable. According to the State, his testimony was “that 

an enemy of [Mr.] Walker’s happened to be waiting in the parking lot for an opportunity 

to kill [Mr.] Walker and frame someone else by stealing a loaded weapon.” The State 

characterizes this testimony as “remotely possible” but still “improbable,” and it therefore 

asserts that the Eagan Rule was inapplicable. We agree, and on this basis as well, 

conclude that the district court did not err in refusing to give an “Eagan instruction” to 

the jury.

[¶23] Appellant’s conviction is affirmed.