Helms v. State - Second-Degree Murder Appeal

THE SUPREME COURT, ST ATE OF WYOM ING 20 26 W Y 24 OC TO BE R TE RM, A. D. 20 25 February 23, 2 026 MARK COLEMAN HELMS, II, Appellant (Defendant), v. THE STATE OF WY OMING, Appellee (Plaintiff). S-25-0104 Appeal from the Distri ct Court of Converse County The Honorable F. Sco tt Peasley, Judge Representing Appellan t: Office of Public Defe nder: Brandon T. Booth, State Public Defe nder; Kirk A. Morgan, Chief Appel late Counsel; Jerem y Meerkreebs, Assist ant Appellate Counsel. Argument by Mr. Meerkreebs. Representing Appellee: Keith G. Kautz, Attorney General: Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senio r Assistant Attor ney General. Arg ument by M s. Jone s. Before BOOMGAARD EN, C.J., and GRAY, FENN, and JAROSH, JJ, and EAMES, DJ. NOTICE: This opinion is subject to formal revision before pu blication in Pacific Reporter Third. Readers are requested to not ify the Cler k of t he Supreme Court, Su preme Court Building, Chey enne, Wy oming 82 002, of any typographical or other formal errors so that correction may be made before final publicat ion in the permanent v olume.

1 FENN, Justice. [¶1] A jury convicted Mark Coleman Helm s, II, of second -degree murder. On appeal, he claims the district court should hav e granted his motion to dismi ss the prosecution on the grounds of self-def ense immunity under Wyoming Statute § 6 -2-602(f) (2023). He also asserts the district court erred in pr oviding an altered presu mption of malice i nstruction and the evidence was insufficient t o support his conviction. We a ffirm. ISSUES [¶2] Mr. Helms raises f our issues, which we re phra se as follo ws: I. Did the district court abuse its discretio n when it precluded Dr. Holmber g from testifying at the motion to dismiss hearing? II. Did the district court e rr when it found Mr. H elms failed to establish a prima facie show ing he was entitled t o immunity from prosec ution un der W yoming Statute § 6 - 2-602? III. Did the district court err when it gave an altered presumption of malice instruction that did not specifically indicate the State had the burden of proving malice beyond a reasonable do ubt? IV. Was the eviden ce su fficient to sup port M r. Helms’s conviction for second - degree murder? FACTS [¶3] At approximately 11:49 p.m. on Septem ber 13, 2023, Mark He lms called 911 to report he had shot someone. Mr. Helms to ld the 911 operator he “misunderstood a [] person,” and he thought this person was breaki ng into his home, so he shot him. Mr. Helms also told the 911 operato r the person he shot was his cous in. [¶4] Officers were dispatched to Mr. Helms’s home in Douglas, W yoming. After Mr. Helms and his wife, Grace, 1 exited the residence, they were secured in separate police vehicles. Officers then entered the home and found the victim, who was later identified as Nicholas Vela zquez, lying on the floor just out side the master bedroo m. Mr. Velaz quez’s arms were elevated above his head, and his shirt was slightly raised. A folded pocketknife 1 We will refer to G race Helms by her first name for c larity.

2 was found approximately a foot above Mr. Vel az quez’s head. It was later determined th is knife belonged to Mr. Helms. Officers also found chewin g tobacco on the floor around Mr. Velaz quez’s head. Mr. Helms informed the officers he had swept the chew out of Mr. Vela z quez’s mouth with his fi ngers while attempting to perform CPR. Officers located an AK -47 rifle lying on a chair in the ma ster bedroom and one bullet casing on the flo or near the window. [¶5] Mr. Hel ms spoke with the o fficers and told t hem he had invited hi s cousin, Mr. Vela zquez, to come to his home to talk about getting his VA benefits sorted out. Mr. Vela zquez brought bee r and a fifth of whiske y. Mr. Helms took Mr. Velazquez on a tour of the home. A lthough Mr. Helms coul d remember going down i nto the basement a nd coming back upstairs, he could not re member what happened from the time t hey got back upstairs until he was pe rforming CPR on Mr. Vela zquez. [¶6] Over the course of the next several hours, Mr. Helms offered multiple theories for what might have happe ned once they reached the top of the stairs. He initially theorized Mr. Velazqu ez may ha ve been suici dal and may have done somethin g that intenti onally led to the shooting. Mr. Helms claimed Mr. Velazquez had a mask or so mething covering his face and charged at him with something in his hand that could have been a weapon. Later, he said Mr. Velazquez was happier than he had been in years, and there was no hostility or negativity between them of any kind. At one point, he theorized it might have been Grace who fire d the sho t. After speaking with Grac e on the phone, Mr. Helms focused on the theory he had seen someone in the house who he did not recognize, and the person he shot turned out to be M r. Vela zquez. [¶7] Mr. Helms also gav e inconsistent de tails about what substances he consumed that night. Although he had previou sly stated h e o nly consumed alcohol, he late r admitted to smoking “legal [] weed” he ha d purchased from a store in town and taking a “gummy” that may have contained synthetic THC 2 just be fore Mr. Velazquez arrived. Mr. Helms agreed to submit to a portable breath test at the scene, which indicated his blood alcohol level was.225. He also agree d to submit a urine sa mple, which tes ted positive for THC. [¶8] The State c harged Mr. Helms with one co unt of first -degree murde r in violation of Wyoming Statute § 6-2-101(a) (2023). Mr. Helms entere d pleas of not guilty and n ot guilty by reason of mental illness (NGMI). The district court ordered the Wyoming State Hospital to examine Mr. Helms pursuant to Wyoming Statute § 7-11-304 (2023). After performing her examination of Mr. Helms, the designated e xaminer, Dr. Elizabeth Donegan, concl uded he did not meet the criteria for an NGMI defense because his “voluntary ingestion of more than one mind and mood alterin g substance .. . in proximity to the a lleged incident would have impacte d his func tioning and contribut ed to behaviors and events during that time.” 2 THC, or tetrahydrocannabinol, is “ the psychoac tive component of the cannabis pl ant....” Wyo. Stat. Ann. § 11-51-101(a)(vii) (2023).

3 Mr. Helms asked the district court to appoint a second evaluator pursuant to Wyoming Statute § 7-11-3 04(g). The district court gra nted this request, an d Mr. Helms’s cho sen designated examiner, D r. Trent Holmberg, concluded Mr. Helms did s atisfy the criteria f or an NGMI defense because Mr. Helm s had a posttraumatic s tress disor der (PTSD) flashback that was “primarily r esponsible for his brief dissociative reaction at the time of th e shooting.” [¶9] Mr. Helms filed a moti on to dismiss t he prose cution on the gr ounds of self -defe nse immunity under Wyo ming Statute § 6 -2-602(f), and he request ed a hearing on his m otion. The district court held a hearing on Mr. Helms’s motion as required by State v. John, 2020 WY 46, ¶ 40, 46 0 P.3d 1122, 1134 (Wyo. 2020) (John Hearing). Mr. Helms asked to call Dr. Hol mberg as a witness at the John He aring to opine Mr. Helms was not “malin gering or making u p the lack of memory.” The dis trict court found Wyo ming Statute § 7-11- 304(h) pro hibited designated examiners fro m testifyin g about anything other than a defendant’s mental con dition, and it preclu ded Dr. Holm berg from tes tifying. [¶10] After hear ing the test imony of the witness called by Mr. Helms, the district court found it had no evi dence “that would demonstrate direct ly or even by inference that there was reasonable fo rce used by [Mr. Helm s].” The district court foun d Mr. Helms failed t o make a prima facie showing of self-defens e and denied his motion to dismiss the prosecution. [¶11] The case proceeded to a five-day jury trial. The district court held a jury instruction conference on the third day of the trial. D uring this conference, the district court asked the parties i f the y o bjected to the proposed infere nce of malice instructi on. This instruction was identical to one pr oposed by Mr. Helms, and it read: You are instr ucted that you may, but are not required to, infer malice from the use of a deadly wea pon. The instruction did not contain the sentence from the pattern jury instruction that informed the jury: The existence of malice, as well as each and every element of the charge of [INSERT NAME OF CRIME CHARGED], must be proven beyond a rea sonable doubt. W.Cr.P.J.I. 21.04C (2 023). Neither party objected to t he district court giving the instruction as propo sed by Mr. H elms. Durin g the jury instruction c onference, both sides also requested lesser i ncluded offe nse instru ctions. The State asked the district c ourt to instruct the jury on the elements of second -degree murder, and Mr. Helms asked for an instruction on the ele ments of voluntary man slaughter. The district c ourt gave both lesser included offense in structions.

4 [¶12] The jury convicted Mr. Helms of second -degree murder. The district court sentenced Mr. Helms to not less than 48 nor more than 62 years in prison with credit for 516 days of presentenc e confinement. This ap peal timely followed. DISCUSSION I. Did the District Court Abuse its Discretio n When it Preclu ded Dr. Holmberg fro m T estifying at the Motio n to Dismiss Hearing? 3 [¶13] Mr. Helms asserts the district cour t wrongly construed Wyoming Statute § 7 -11 - 304(h). He claim s Dr. Holmberg’ s testimony was not out side of an y statutory limits, and the admissibility of his t estimony sho uld have been governed by th e Wyoming Rules of Evidence (W.R.E.) relating to the admission of an expert’s testimony, such as W.R.E. 702, not Wyoming Statute § 7-11-304(h). The State contends the district court correctly ruled Dr. Holmberg’s te sti mony w as precluded by Wyoming Sta tute § 7- 11-304(h), and alternatively, it would have been inappropriate to admit this testimony under W.R.E. 702 because it did not relat e to any issue that was actually in dispute. [¶14] We decline to adopt a blanket rule th at Wy oming Statute § 7 - 11 -304(h) proh ibits a designated examiner from testifying at a John Hearing. However, in this case, the district court correctly found t he statute prohibited Mr. Hel ms from i ntroducing Dr. Ho lmberg’s testimony for the proffered purp ose. Wyomi ng Statute § 7-11-304(h) governs the use of statements made by a defendant dur ing an NG MI evaluation. That subsection sta tes: (h) Except as otherwise provi ded in this subsection, no statement made by the defendant in the course of any examin ation or treatment pursuant to this section and n o information received by any person in the course thereof is admissible in evidence in any criminal proceeding on any issue other tha n that of the mental condition of the defendant. If the defendant testifies in his own behalf, any statement made by him in the course of any examinati on or treatment purs uant to this section may be admitted: (i) For impeachment purp oses; or 3 Although Mr. Helms was evalua ted by two designated exam iners, he did not seek to call Dr. Donegan as a witness at t he John Hea ring. The State subpoena ed Dr. Donegan to testify in th e event Dr. Holmbe rg was allowed to testify, but the district court quash ed t he subpoena to Dr. Donegan after it r uled the examiners were statutorily prohibited from t estifying at the hearing. Mr. Helms only challenges the d istrict court’s decision to exc lude Dr. Holmberg’ s testi mony.

5 (ii) As evidence in a c riminal prosecutio n for perjury. Wyo. Stat. Ann. § 7- 11 -304(h) (emphasis added). A defendant qualifies for an NGMI defense only if he suff ers from one of “those severely abn ormal me ntal con ditions tha t grossly and demo nstrably impair a person’s perception or understanding of reality and that are not at tributable primarily to self-induced i ntoxication as d efined by W.S. 6 -1- 202(b).” Wyo. Stat. Ann. § 7-11-304(a). In this case, Mr. Helms was not seeking to call Dr. Holmberg at the John Hearing to testify that he suffered from such a “severely abnormal mental condi t ion.” Ins tead, his sole purpose for calling Dr. Holmberg was to establish Mr. Helms was not maling ering or making up his lack of memory regarding the shooting. Because Mr. Helms was not calling Dr. Holmberg to testify regarding his “mental condition,” t he district court correctly f ound this testimo ny was impermissible under Wyoming Statute § 7 - 11 -304(h). [¶15] Further, this testimony was irrelevant to the issues in dispute at the John Hearin g. Under W. R.E. 702(a), an expert’s opinion is admissible if it “will help the trier of fact to understand the evidenc e or to determ ine a fact in issue. .. .” Under W.R.E. 401, e vidence is relevant if it has a “t endency to make t he existence of any fac t tha t is of co nsequence t o the determination of th e action more probable or less probable than it would be without the evidence.” In this case, Mr. Helms was tasked with establishing a prima facie case that he was entitled to immunity under Wyoming Stat ute § 6-2-602. See John, 2020 WY 46, ¶ 40, 460 P.3d at 113 4. Under Wyoming Statute § 6 -2-602(a) Mr. Helms had to establish a prima facie showing he used the amount of force that “ a reasonable person in like circumstances would j udge necessary to prevent an inju ry or loss, and no more, ” and that he had an “ honest beli ef ” danger ex ist ed whe ther th at danger was “ real or appare nt. ” [¶16] Dr. Holmberg’s opinion regarding whet her Mr. Helms was making up his loss of memory would not make it more or less probable that Mr. H elms ha d “an honest belief” that danger existed. His testimon y would o nly establish Mr. Helms could not remember what he was feeling or thinking at the time of the shooting. Similarly, Dr. Holmber g’s testimony would not assist the distric t court with det er mining whether the f orce used by Mr. Hel ms was the same that a reaso nable person in like circumsta nces would hav e used. Because Dr. Holmberg’s testimony would not have assis ted t he district court in determining any issues of fact, it would be irrelevant and inadmissib le under W.R.E. 401 and 702. The district court did not abuse its discretion when it exclu ded Dr. Holmberg’ s testimony. II. Did the District Court Err When it Found Mr. Helms Failed to E stablish a Prima Facie Showing He was Entitled to Immunit y fr om Pros ecution Under Wyoming Statute § 6 -2-602?

6 [¶17] In reviewing the district court’s denial of Mr. Helms’s motion to dis miss, we view the record in th e light most favorable to the district court’s decision. John, 2020 WY 46, ¶ 59, 460 P.3d at 1 137 – 38 (citing Dixon v. State, 2019 WY 37, ¶ 17, 438 P.3d 216, 2 26 (Wyo. 2019)). The qu estion of whethe r a defendant is entitled to have his prosecution dismissed under a self - defense immunity statute “is a mixed quest ion of law and fact because to a nswer it one must determine the governing law as stated in the statute, find the operative facts, and apply the law to those fa cts.” Huckelby v. State, 313 So. 3d 861, 865 (Fla. Dist. Ct. App. 2 021) (citation omitted). “We defer to the di strict court’s factu al findings unless they are clearly erroneous.” McCalla v. State, 2026 WY 18, ¶ 15, ___ P.3d _, __ (Wyo. 202 6) (citing Dixon, ¶ 1 7, 438 P.3d at 226). “ A finding of fact i s clearly erroneous when, althou gh there is evidence to support it, the reviewi ng court on the entire evidence is left with the definite and firm c onviction that a mistake has been committed. ” Davis v. State, 2025 W Y 120, ¶ 11, 578 P.3d 805, 809 (Wyo. 2025) (quoting Marquez v. State, 2025 WY 61, ¶ 47, 569 P.3d 356, 369 (Wyo. 2025)). “ We defer to the district court because it had an o pportunity to assess the wit nesses ’ credib ility, weigh the evidence, and make the necessary inf erences, deductions, and conclusions. ” Id. (citing Hanson v. State, 2025 WY 56, ¶ 23, 568 P.3d 1186, 1192 (Wyo. 2025)). “On those issues where the district court has not made specific findings of fact, th is Court will uphold the general ruling of the court below if sup ported by any reasonable view of the evidenc e.” McCalla, ¶ 15, ___ P.3 d. at ___ (citing Di xon, ¶ 17, 438 P. 3d at 226). However, “the ultimate question of w hether the district court pro perly applied the statutory requirements, definitio ns, and presu mptions under Wyoming Statute § 6-2-602 to the unde rlying facts is a quest ion of law we review de novo. ” Id. (citing Jo hn, 2020 WY 46, ¶ 42, 460 P.3d at 1135). [¶18] Mr. Helms asserts his written motion alleged a set of facts which entitled h im t o immunity under Wyo ming Stat ute § 6 -2-602(f). He claims tw o potential theor ies emerge from the circu mstantial facts alleged and documented in his m otion: 1) t he two me n got into an argu ment while in the basement, and the victim chased Mr. Helms up the stairs where he was shot while entering the master be droom; or 2) Mr. Helms was suffering from a PTSD episode an d did not know who he was shooting at the time the victim entered the bedroom. He argues he is immune from prosecution under either theory. The State asserts Mr. Helms offered only speculation in s upport of his motion, and the district court properly concluded M r. Helms failed to present sufficient evidence the distric t court could rely on to determine whethe r each element of self -d efense could be satisfied. [¶19] Mr. Helms had the initial burden of establishing a prima facia case he was entitled to immunity. See John, 2020 WY 46, ¶ 40, 46 0 P.3d at 1134. “Prim a facie means ‘ suc h evidence as is s ufficient to establish a given fa ct, or the group or chai n of facts and which if not rebutted or co ntradicted, will remain sufficient. ’” Schneider v. State, 2022 WY 31, ¶ 15 n.2, 505 P.3d 591, 595 n.2 (Wyo. 202 2) (quoting W yo. Bd of L and Co mm’rs v. Antelope Co al Co., 20 08 WY 60, ¶ 1 2, 185 P.3d 666, 6 69 (Wyo. 2008)). “ We have described a defendant ’ s prima facie showing as a ‘ minimal burden ’ or a ‘ slight burden, ’ but it is a bu rden n onetheless that must be sup ported by some eviden ce to sup port a self-

7 defense theory. ” Johns v. State, 2018 W Y 16, ¶ 14, 409 P.3d 1260, 1265 (Wyo. 2018). We recently clarified “[o]n a pr etrial motion in a criminal prosecu tion, the burden is upon the defendant to place competent and convincing evidence before the court in supp ort of his or her motion.” McCalla, 2026 WY 18, ¶ 19, ___ P.3d. ___ (quoting 75 Am. Jur. 2d Trial § 36 (Nov. 2025 Up date)). “ A motion cannot prove itself; represent ations, arguments of counsel, allegations an d statements mad e in motions a re not evidence, and allegations in motions do not amo unt to any proof of the facts stated. ” Id. (quoting 56 Am. Jur. 2d Motions, Rules, and O rders § 2 (Nov. 2025 Update)). Therefore, Mr. Helms needed to present co mpetent evidence to establish a pr ima facie showing he was entitled to self- defense immu nity under Wyoming Statute § 6 -2-602(f), and he co uld not rely on mere allegations, representations, or arguments of c ounsel. Id. Mr. Helms attached documents to his written motion and he ca lled o ne witness at the heari ng. We will eval uate w hether the documents attache d to Mr. H elms’s written moti on an d the evidence adduced at the hearing, when conside red together, constitut ed such competent evidence as would be sufficient to make the r equired pri ma facie sho wing. A. The Docum ents Atta ched to Mr. Helms’s Motion to Dismiss Were Not Admissible, Compete nt Evidence S ufficient to Mak e a Prim a Facie Showing He Acted in Self - defense. [¶20] Mr. Helms’s motion all eged he was entitled to immunity be cause the “f acts” s howed he either: 1) shot Mr. Vela zquez because the two men had gotten into an argume nt and Mr. Vela zquez had pursued him into the bedroom; or 2) Mr. Helms suffered a PTSD flashback and did not know what he was doing at the ti me he shot his cousi n. In support of his motion to dismiss, Mr. Helms attached thr ee exhib its: a copy of the Co nverse County Sheriff’ s office reports investigating the shooting, Dr. Holmberg’s forens ic evaluation, and Dr. Donegan’s forensic eva luation. [¶21] On appeal, Mr. Hel ms asserts th e district c ourt erred by not considerin g the evidenc e contained in t he Sheriff’s office repor ts, and he contends the relia bility of this exhibit “could no t be reasonably quest ioned by the State....” Although the documents were attached to his motion, Mr. Helms did not se ek to admit the Sher iff’s office reports i nto evidence at the Jo hn Hearing. Further, Mr. H elms did not atte mpt to explain, either in his motion or at the heari ng, how the Sheriff’ s office reports would be ad missible, competent evidence the district court could rely on to find Mr. Helms made his prima facie sh owing he was entitled to imm unity from prosecu tion. [¶22] As discussed ab ove, Mr. Helms has the b u rden of s upporting his motion with competent evi dence. McCalla, 202 6 WY 18, ¶ 19, ___ P.3d. ___ (qu oting 75 Am. Jur. 2d Trial § 36). “‘Compet ent evidence ’ is evi dence that is both ad missible and that tends to establish a fact at issue. ” 31A C.J.S. Eviden ce § 3 (Dec. 2025 Update). Convers ely, incompetent evidence “brings before t he trier of fact eviden ce whic h is un authenticated and theref ore unworthy of belief, an exampl e of which would be hea rsay.” Holm v. State,

8 404 P.2 d 740, 743 (Wy o. 1965). Under W.R.E. 1101 (2025), the Rules of Ev idence “apply to all actions and proce edings in the cour ts of this state[,]” unless the proceeding falls into one of the exception s set out in subsectio n (b) of t he Ru le. While W.R.E. 1101(b)(3) excludes preliminary hearings, sentencing h earings, and certain probation proceedings, it does not exclude John Hearings. Therefor e, the evidence Mr. Helms relied on to meet his prima facie showing needed to comply wit h the Wyomi ng Rules of E vidence. See W. R.E. 1101; see also McDani el v. State, 24 So. 3 d 6 54, 657 (Fla. Dist. Ct. App. 2009) (“[G]iven that the burde n of pro of is on the defendant to establish his entitl ement to im munity, hearsay is not admissib le to prove a material fact for the co urt’s consi deration[.]”). [¶23] Mr. Hel ms attempts to rely on statements made in the Sheriff’ s office reports for the truth of the matter asserted. Therefore, these statements qualify as hearsay under W.R.E. 801(c). Unde r W.R.E. 803(8), poli ce reports are specifically exclu ded from the public records exception t o the hearsay rule. Further, the Sheriff’ s of fice reports conta in statements Mr. H elms and Grace made to the investigating officers, which is considered hearsay within hearsay. See, e.g., Seaton v. State of Wyo. Highway Comm’n, Dist. N o. 1, 784 P.2 d 197, 200 (Wyo. 19 89) (“[T]hose assertions of a witness other than the investigating officer who prepared the report are “hearsay within hearsay.”). For “hearsay included within hearsa y” to be a dmissib le, each part of the c ombined state ments must conform with an exception to the hearsay rule. W.R.E. 805. Mr. Helms seems to asser t his statements contained in the police repor ts should have been admiss ible because the State was allowed to introduce statements the defendant made to the investigating officers in the John case. Althoug h t he admission of a part y opponent is not hear say, this applies only when the statement “is offered against a party,” as it was in the John case, and the rule does not allow the a dmission of self -serving hearsa y statemen ts. W. R.E. 801(d)(2); John, 2020 WY 46, ¶ 17, 460 P.3d at 1129; see also United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir. 1996) (“ The rules do not, however, provide an exception for self - serving, ex culpato ry statements made by a party wh ich ar e bei ng sought f or admission by that same party. ”). Therefore, Mr. Helms could not introduce h is own statements contained in the pol ice reports under the par ty admission ru le. W.R.E. 801(d)(2). Mr. Helms offered no explanation for how Grace’s statements woul d be admissible, other than the fact hearsay statements of other wit nesses were admitted in the John case. How ever, the fact that the district court in the John case may have permitted the introduction of inadmissibl e hearsay does not mean that si milar hearsay is admis sible in future case s, especially in cases li ke this one where the State objected to the ad mission of any hearsay evi dence. Because Mr. Helms ma de no e ffort to explain how these statements are compet ent, admissible evidence, we cann ot say the district court abu sed i ts d iscretion when it decli ned to consi der th e Sheriff’s office repor ts. [¶24] Turning to the designated examiner s’ reports, we have already e stablished the district court did not abuse i ts discretion when it ruled it could not con sider Dr. Holmberg’s proposed testimony for the proffered purpose of establishing Mr. Helms was not faking his lack of memory. Dr. Holmberg’s writte n opi nion on this issue would likewise be irrelevant

9 to the issues at the John Hearing. The reports themselves contain numerous self-servi ng hearsay statements that are inadmissible under W.R.E. 801(c). Just like the Sheriff’s office reports, Mr. Helms m ade no attempt to show how the designated examiners’ reports constitute competent ad missible evidence that would be sufficient to establish a prima facie showing he acted in self-defense. Because Mr. Helms made no effort to explain how these statements are a dmissible, we cannot say the district court abused its discretion when it declined to consider th e designated examin ers’ reports. [¶25] Because th e district court could not consider th e hearsay statemen ts contained in the Sheriff’s office reports or the designated examiners’ reports, the attachments to his mot ion contained no competent evidence that would have been sufficient to establish a prima facie showing that Mr. Helm s acted in se lf -defense when he shot Mr. Velaz quez. B. The Evidence Mr. Helms Presented at t he John Hearing Was Not Sufficient to Establish a Prima Facie Sho wing that Mr. Helm s Acted in Self - Defense. [¶26] Mr. Helms called only one witness at the John Hearing, the inves tigating officer, Lieutenant Ben Peech. Lieutenant Peech te stified as follows: • Mr. Helms was cooperative and gave several statements to law enforcement; • Mr. Helms’s statements about what happened from the time Mr. Vela zquez arrived until just before the s hooting were very cons istent, and it was his statements about the last period of time just before the sh ooting that were inconsiste nt; • Both Mr. Helms and Mr. Vela zquez were in t he military, and Mr. Vela zquez had been a Green Beret; • Mr. Vela zquez was an invited gue st; • Mr. Vela zquez did n ot have permis sion to enter the master bedroom; • Mr. Velaz quez’s bod y was found “partiall y in the threshold of the bedroom door”; • Mr. Helms’s pocketknife was found betwee n Mr. Vel a z quez’s hands, about a foot above his head; • Mr. Helm s did not kn ow how the pocketkni fe got the re, and he said it would have been in his pocket;

10 • Used chewing tobacco was also found near Mr. Vela zquez; • Mr. Helms told the offi cers he had swept the c hew out of Mr. Vela z qu ez’s mouth to perform CPR; • Mr. Helms would have defended G race if he n eeded to; • There was only one way out of t he bedroo m, and it was through the door; • Grace told the officers she heard some bumping noises like someone had bumped off a wall or st air railing; • A mixtur e of Mr. Hel ms’s and Mr. Vela z q uez’s DNA was found o n the pocketknife; and • Mr. Velaz quez’s DNA could have gotten on the knife from Mr. Helms touching the knife after reaching into M r. Vela z quez’s mouth to remove the chewing tobacco. [¶27] After presenting this tes timony, Mr. Helms arg ued he had a reaso nable belief he was in danger of injury or death because Green B erets have a “different t ype of training.” He further asserted the presence of the pocketknife was evidence Mr. Vela zquez was trying to enter the master bedroom without permission for some unlawful reason. The State argued there was no evidence Mr. Helms had been attacked or that Mr. V elazquez intended to commit an unlawful act involvin g force or violence. [¶28] This case requires us to decide whether the district court correctly applied the statutory requirement s, definitions, and presumptions of Wyomin g Statute § 6-2- 602, which states: (a) The use of defensive force whether actual or threatened, is reasonable when it is the defensive force that a reasonable person in like circumstances would judge necessary to prevent an injury or loss, and no more, including deadly force if necessary to pr event i mminent dea th or seri ous bodily injury to the person e mploying the dea dly force or t o another person. As used in this subsect ion, “necessary to prevent” includes a necessity that arises from an honest belief that the dange r exists whether the danger is r eal or apparent. (b) A person is presumed to have held a reasonable fear of

11 imminent peril of death or serious bodily inj ury to himsel f or another when using defensive force, including deadly force if: (i) The intruder again st whom the defensi ve force was used was in the process of unlaw fully and forcefully entering, or had unl awfully and forcibly entered, another ’ s home or ha bitation or, if that intruder had removed or wa s attem pting to remo ve another aga inst his will from his home or habitation; and (ii) The person who uses defensive f orce kne w or had reason to believe that an unlawful and forcible entry or unlawful and forcible a ct was occurring. (c) The presumption set forth in subsection (b) of t his section does not apply if: (i) The person against whom the defensive force is used has a rig ht to be in or is a lawful reside nt of the home or habitation, such as an owner, l essee or titleholder, and there is not an injunction for p rotection from domestic violence or a written pretrial supervision order of no contact a gainst that person; (ii) The person sought to be re moved is a child or grandchild, or is othe rwise in the lawful custody or under the lawf ul guar dianship of, the p erson agains t whom the defensive fo rce is used; or (iii) The person again st whom the defensive force is used is a peace officer or employee of the Wyoming department of corrections who enters or attempts to enter another ’ s home or habitation in the performance of his official duties. (d) A person who unlawfully a nd by force enters or attempt s to enter another ’ s home or habitation is presu med to be doing so with the intent to commit an unlawful act involving force or violence. (e) A person who is attacked in any place where the person is lawfully present sha ll not hav e a duty to retreat before using reasonable defensive f orce pursuant to sub section (a) of this

12 section provided that he is not the initial aggr essor and is not engaged in illegal activ ity. (f) A person who uses reasonable defensive force as defined by subsection (a) of this section shall not be criminally prosecuted for that use of reasonable defensi ve force. (g) As used in this sec tion: (i) “Habit ation” mean s a ny structure which is designed or adapted for overnight accommodation, inclu ding, but not limited to, build ings, modular unit s, trailers, campers and tents, but does not include the inmate housing area of a jail, state penal institution or other secure fac ility under c ontract with the d epartment of corrections to house inmates; (ii) “Home” means any occupied residential dwelling place other than the in mate housing area of a jail, state penal institutio n or oth er secure facility under contract with the de partment of corrections to hous e inmates; (iii) “Deadly force” means for ce that is intended or likely to cause death or serious bo dily injury. [¶29] Applying Wyomi ng Statute § 6 -2-602 to this case, Mr. Helm s woul d be immune from prosecution only if he: • was lawfully present in his home when t he sho oting occurred (subsect ion (e)); • was not the initial aggressor or engaged in illegal activity, and theref ore had no duty to retreat (subsection (e)); • is entitled to the pre sumption hi s fear was reasonable (su bsection (b)); • is entitled to the presumption Mr. Ve la zquez intended to commi t an unlawful ac t involving force or violence because Mr. Vela z quez was unlawfully a nd forcef ully attempti ng to enter a home or habita tion (subsection (d)); and • was otherwise justified in using deadly forc e, and the force used was “necessary to prevent an injury or loss and no more” (subsection (a)).

13 See John, 2020 WY 46, ¶ 42, 460 P.3d at 1135. When viewing th e record in the light most favorable to the district court’s decision, we fin d no error in its conclus ion Mr. Helms failed to satisf y at least two of these requirement s. Beca use his fail ure to satisfy these two requirements is ruinou s to hi s self-defense immunity claim, we will not address whether Mr. Helms satisfie d the other statu tory subsections. 1. Mr. Helms W as Not E ntitled to the Presu mption Mr. Velaz quez Intended to Commit an Unla wful Act. [¶30] Under Wyomi ng Statute § 6-2-602(d), Mr. Helms would hav e been entitled to a presumption Mr. Velazquez intended to comm it an unlawful act involving force or violence if Mr. Velaz quez had entered or attempt ed to enter Mr. Helms’s home or habitation “ unlawfully and by f orce.” Th e district court found Mr. Helms was not en titled to this presumption be cause “the victi m was lawfull y [prese nt] in the ho me.” We agree. Mr. Helms presen ted no evidence showing Mr. Velaz quez was “ unla wfully and by force ” entering or attempting to enter Mr. Helms’s home o r habita tion. To the contrary, the evidence established Mr. Vela z quez was an invited guest in Mr. Hel ms’s home. Although Mr. Helms theoriz ed the two men may have gotten into an argument, he offered only speculation to support this theory. “ Speculation, conjecture, the sugge stion of a possibility, guesses, or even probability, are insuffic ient to establis h an is sue of material fact on any essential element. ” Harnetty v. State, 202 2 WY 68, ¶ 33, 511 P.3d 1 65, 174 (Wyo. 2022) (citation omitted). Therefore, Mr. Helms failed to present any compe tent evidence he was entitled to the presumption found in Wyo ming Statute § 6 -2-602(d). 2. Mr. Helms Failed to Make a Prima Facia Showing He Used “Rea sonable Defensive Force.” [¶31] To qualify for immuni ty under Wyomi ng Sta tute § 6 -2-602(f), Mr. Helms had to make a prima facia showing he used “ reasona ble defensive f orce as defined by subsection (a) [.]” Subsection (a) defines r easonable defensive force as: “ th e d efensive force that a reasonable pe rson in lik e circumstances woul d judge necessary to prev ent an injury or loss, and no more, including deadly force if necessary to prevent imminent death or serio us bodily injury to the per son employing the dea dly force or to another person. ” Wyo. Stat. Ann. § 6 -2-602(a). The district court found Mr. Hel ms faile d to make a prima facie showing he used reaso nable defensive force. While the district cour t recognized “a prima facie showing is a low threshold[,]” it conclu ded Mr. Helms had pr esented no evidence “that w ould demonstra te directl y or even by inference” the force Mr. Helms used was reasonable. [¶32] We agree the record is completely devoid of any evidence showing the force Mr. Helms used that night was reasonable. The only facts in the r ecord show the victi m’s body was found just outsi de t he master bedroom, an d Mr. Helms’s folded p ocketknife was foun d

14 approximately one -foot above Mr. Vela z quez ’s head. No evidence was adduced at the hearing showin g the use of deadly force was necessary to prevent immine nt death or serious bodily injur y. Mr. Helms offered only spec ulation abou t a possible attack by so meone with “a diffe rent type of training,” with no objective evid ence to support this theory. There is noth ing in the record to demonstrate directly o r by inference that a reasonable person in li ke circum stances would have felt it necessary to use deadl y force that night. See Wyo. Stat. Ann. § 6-2-602(a). Therefore, Mr. Helms failed to make a prima facie showing he was entitled to self-def ense immunit y under Wyoming Statute § 6 -2- 602(f). [¶33] Because Mr. Helms failed to make a prim a facia showing he satisfied all the statutory criteria for invoking self -defense immunity under Wyom ing Statute § 6-2-6 02(f), the district court cor rectly denied his motion t o dismiss. III. Did The Dis trict Co urt Err Whe n it Gave an Altered Presump tion of Malice Instruction Tha t Did Not Specifically I ndicate the State Ha d the Burden of Proving Malice Beyon d a Reasonable Doubt? [¶34] Mr. Helm s asserts the district court violated a clear rule of law when it gave the altered malice instructi on because the instruction failed to comply wi th W.R.E. 303, and the erroneous instruction prejudiced Mr. Helms’s substantial rights. W.R.E. 303(c) states: Whenever the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts as sufficient e vidence of the presumed fact but is not required to do so. I n addition, if the presumed fact establishes guilt or is an element of the offense or negatives a defense, the court shall instru ct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt. If the district court had given an instructi on based on Wyomin g Criminal Pattern Jury Instruction 21.04C, it would have complied with W. R.E. 303(c). See W.Cr.P.J.I. 21.04C. Instead, it gave an inst r uction i dentical to the one pro posed by Mr. Helms, which omitte d the portion of the instruction regarding t he burden of proof. The State argues this Court should d ecline to review this issue under the invited error doctrine. Alternativel y, the State asse rts the district court did not commit plain error when it gave this instruction beca use the jury instructions, considered as a whole, gave a correct and complete explanation of the law. [¶35] “ The invited error doctrine ‘ prohibits a party from raising alleged tria l court errors on appeal induced by that party ’ s actions. ’ ” T ownsend v. State, 2025 WY 108, ¶ 13, 576 P.3d 1254, 1258 (Wy o. 2025) (quoting Toth v. State, 2015 WY 86A, ¶ 45, 353 P.3d 696,

15 710 (Wyo. 2015)). “ Invited error applies when a party a ffirmative ly waives a right or objection. ” Id. Waiver is d ifferent fro m forfeiture. Whereas forfeiture is the failure t o ma ke the timely assertion of a ri ght, waiver is the “intentional relinquishment or abandonment of a known right.” Whether a particular right is waivable; wheth er the defendant must p articipate perso nally in the waiver; whether certain procedures are required for waiver; and whether the defendant ’ s choice must be particularly informed or voluntary, all depend on the right at stake. Id. (q uoting Jackson v. State, 2019 WY 8 1, ¶ 9, 445 P.3d 983, 987 (W yo. 2019)). Waiver requires a party to knowingly a nd intelligentl y relinquish a right, rather than merely failing to preser ve it. Id. (quoting Jacks on, ¶ 9, 445 P.3d at 987). If a def endant wa ives his rig ht to specific jury instruct ions, he will be denied review under t he invite d error doctrine. Id. (quoting Jackson, ¶¶ 1 0 – 11, 445 P.3d at 987 – 88). [¶36] In Jackson, we conclud ed the defendant waiv ed his claim of reversi ble error because he offered the instructions the district court ultimately gave and did not correct them when given the opportun ity, thus inviting the er ror. 2019 WY 81, ¶ 11, 445 P.3d 987 – 88. We reached a similar conc lusion in Mackley v. St ate, where defense cou nsel negotiate d with the State to draft an instruction and affirmatively endorsed it twice. 2021 WY 33, ¶ 16, 481 P.3d 639, 643 (Wyo. 2021). We found the defendant “abandoned a known right becau se he offered the instruction jointly with t he State and declined the opportunity t o object or correct any potential confusion it c ould cause.” Id. [¶37] We have recognized there is someti mes a fine line between positive acts and omissions. Va ught v. State, 2016 WY 7, ¶ 35, 366 P.3d 512, 520 (Wyo. 2016). However, just as in Jackson and Mackl ey, that line was crossed in this case. The record indicates Mr. Helms did more than passively agree w ith an instruction propo sed by the State. Instead, Mr. Helms proposed the allegedly erroneous instruction. While it does not appear the district court expressed any concerns regardin g the instruction, Mr. Helms was given an opportunity to o bject to the instruction or propose corr ections, bu t he d id not do so. Because Mr. Helms proposed the allegedly erroneous instruction and did not ob ject or correct the instruction when given the opportunity to do so, he invited the error abo ut which he now complains. See Jackson, ¶ 11, 445 P.3d at 987 – 88; Mackl ey, ¶ 16, 481 P.3d at 643. Accordingly, we will n ot address his argumen t any further. IV. Was the Evidence Suf ficient to Support Mr. Helms’s Conviction for Second - Degree Murder?

16 [¶38] “When rev iewing a claim that the evidence was insufficient to support a jury ’ s verdict in a crimi nal trial, we decide whether the evidence could reasonably support the jury ’s verdict.” Wilson v. State, 2025 WY 11 6, ¶ 11, 578 P.3d 402, 405 – 06 (W yo. 2025) (quoting Huckin s v. State, 202 0 W Y 21, ¶ 10, 457 P.3d 1277, 127 9 (Wyo. 2020)). W e “ assume that the Sta te ’ s evidence is true, disregard any evidence fav oring the defenda nt, and give the State the benefit of every favorable inference that may reasonably be drawn from the evidence.” Id. at ¶ 12, 578 P.3d at 406 (quotin g Hanson v. State, 2025 WY 8 0, ¶ 7, 571 P.3d 1282, 128 5 (Wyo. 2025)). Ultimately, we “defer to the j ury as the fact -finder, and assume th e jury believed only the evidenc e adverse to the defendant since they fo und the defenda nt guilty beyond a rea sonable doubt.” Id. (quoting Hanson, ¶ 7, 571 P. 3d at 1285). The ultimate question this Court must decide is whether the evidence “was enough on which a jury could form a reasonable inference of guilt beyond a reasona ble doubt.” Munoz v. State, 2024 WY 103, ¶ 8, 5 56 P.3d 238, 240 (Wyo. 2024) (quoting Hultberg v. State, 2024 WY 59, ¶ 1 2, 549 P.3d 759, 761 (Wyo. 2024)). [¶39] The jury acquitted Mr. Helms of first-degree murder and convicted him of the le sser included offense of second -degree murder. Although the jury was also given the option to convict Mr. Helms of t he lesser included of fense of volunta ry manslaughter, i t elected not to do so. Mr. Helms a rgues the evi dence was insufficient to show he acted with malice, and this Court should remand this case for an entry of a conv i ction for voluntary manslaughter. [¶40] Wyoming Statute § 6 -2-104 (2023) state s a person is guilty of second- degree murder if he “ purpose ly and maliciously, but witho ut premeditati on, kills a ny human bein g... .” We have held for the p urposes of the sec ond- degree m urder statute, “maliciousl y” m eans “the act constitu ting t he offense was done recklessly under circumstances manifesting an extreme indifferenc e t o the value of human life, and that the act wa s done without legal justification or excu se.” Wilkerson v. State, 2014 WY 1 36, ¶ 27, 336 P.3d 1 188, 12 00 (Wyo. 2014). [¶41] Wyoming Statute § 6 -2-105(a)(i) (2025) states, in relevant part, that a person is guilty of volu ntary manslaughter if “he unlaw fully kills any human being without malice, express or implied, . . . [v]oluntarily, upon a sudden heat of passio n[.]” “Heat of passion” mea ns such passion as nat urally would be aroused in t he mind of an ordinarily reasonab le person in the same or similar circumstances as those in question which would cause him to act rashly, witho ut reflection or deliberation, and from passion rather than from judgment. The heat of passion must b e aroused suddenly, and the act resulting in death must occur w hile the defendant w as acting under the direct and immediate influence of such heat of passion, and

17 before sufficient time has elapsed to permit the heat of passion to cool. Jacobs v. State, 2021 WY 104, ¶ 13, 495 P. 3d 303, 30 8 (Wy o. 2021) (quoting Farro w v. State, 201 9 WY 30, ¶ 35, 437 P. 3d 809, 8 20 (Wyo. 2019)). “ The severe or extreme provocation t hat cause s a heat of passion or l oss of control must ha ve been produced by the victim ’ s actions. ” Id. at ¶ 14, 495 P.3d at 30 9 (citing Krucheck v. State, 702 P.2d 1267, 1270 (Wyo. 1985)). I f a jury finds a defend ant acted in a s udden heat of passi on, it i s precluded from fi nding the defendant acted wi th malice. Schmuck v. State, 2017 WY 140, ¶ 28, 406 P.3d 286, 296 (Wyo. 2017). [¶42] The central fac tual disp utes at trial were Mr. H elms’s ment al res po nsibility and his intent. Mr. Helms did not deny shoo ting Mr. Vela zquez, but he clai med the jury should find him not gui lty by r eason of mental illness or deficiency becaus e t he shootin g was the result of a PTSD flashback. At trial he did not assert he acted in self-defense. Instead, Mr. Helms argued there was no evidence he acted with malice or in a sudden heat of passion. The State asserted the jury should find Mr. H elms guilty of eit her first or second -de gree murder because Mr. Helms killed Mr. Vel az quez “without provocation [an d] wit hout reason.” [¶43] The record supp orts the jury’s verdict of s econd -degree m urder. The evidence established that althou gh Mr. Helms strug gled with depression a nd insomnia for many years, he did not faithfully take his anti depre ssant medicati on, choosing instead to self - medicate with alcohol and controlled substances. Mr. Helms v oluntarily consu med multiple mood -altering substances o n the n ight of the shooting. Mr. H elms was i n possession of a pocket knife and walked past a t least two pistols to get to the rifle. M r. Helms told the officers he went for the rifle instead of the pistol b ecause he is better with the rifle, especially w hen he is not in his right mind, and it is “easier to hit stuff with the rifle.” Mr. Helms b u rst through the locked bedroom do or yelling something like: “I’ m going to kill this moth erf*****!” Mr. Hel ms walked around the b ed, grabb ed the rifle, walked back around the bed, aimed the gun, and fired, eve n though Grace was sc reaming “It’s Nick, it’s Nick.” Grace had never seen Mr. Helms act the way he did that night at any point during their entire 19-year marriage. Mr. Helms knew he was in his home, where his rifle was, he was able to recognize his wife, a nd he understood he ne eded to call 911 afte r the sho oting. His only disconnect from reality appears to have bee n his percepti on of the identity of the in dividual he shot. The jury co uld have believed Dr. Donegan’s te stimony that Mr. Helms shot M r. Vela zquez due to a flashback, blackout, or misper ception caused by his use of alcohol a nd controlled subs tances. [¶44] Further, there is no evidence Mr. Helms acte d out of passio n or a l oss of control caused by M r. Velaz quez’s actions. In his stat ements to police, Mr. Helms repeatedly said there was no bad b lood between the two me n, and they had not gotten into an argument that night. Grac e conf irmed she had not heard any arguments betwe en the two men. In

18 the 911 calls, both Mr. Helms and Grace told dispatch Mr. Helms “ misunderstood” who Mr. Vela zquez was wh en he fired the shot. Contrary to any asser tions that Mr. Vela zquez did something to provoke the shooting, Grace testified Mr. Velazquez was simply walking down the hall to wards the bedroom door yelling “It’s Nick. I t’s me” immediately before Mr. Helms shot him. [¶45] The State pre sented su fficient evide nce to all ow the jury to conclude Mr. Helms acted “recklessly under circumstances manife sting an extre me indifference to the value of human life” when he shot Mr. Vela z quez, and “the act was done without legal justification or excuse.” Wilkerson, 2014 WY 136, ¶ 27, 336 P.3d at 1200. There was no evidence Mr. Helms acted out of “ a heat of passion or loss of control ” that w as produced by Mr. Vela z quez’s action s. See Jacobs, 2021 WY 1 04, ¶ 14, 495 P.3d at 309 (citing Kruc heck v. State, 702 P.2d at 1270). A rational jury could have reasonably concl uded the S tate pro ved each element of the second-degree murder cha rge beyond a reasonable doubt. Munoz, 2024 WY 103, ¶ 13, 556 P.3d at 241 (citation omitted). The State presented sufficient evidence to sustain Mr. Hel ms’s second -degr ee murder conviction. CONCLUSION [¶46] The district court properly exclud ed Dr. H olmberg from testifying at the John Hearing for the purpose of establishing Mr. Helms was not malingering or making up his lack of memory. The d istrict court did not err when it concluded Mr. Helms failed to make a prima facie showing he acted in se lf -defense. Mr. Helms wa ived his right to challenge the inference of malice instruction under the doctrine of invited error. The State presented sufficient evidence t o sustain Mr. Helms’s second -degree murder convictio n. Affirmed.