Wyo. R. Crim. P. 29 (2026)

Rule 29. Motion for Judgment of Acquittal. (a) At close of evidence. — Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment, information or citation after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the state is not granted, the defendant may offer evidence without having reserved the right. (b) Reservation of decision. — If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns the verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. (c) After discharge of jury. — If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 10 days after the jury is discharged or within such further time as the court may fix during the 10-day period. If a verdict of guilty is returned, the court may on such motion set aside the verdict and enter judgment of acquittal within 10 days after such motion is filed, and if not so entered shall be deemed denied, unless within such 10 days the determination shall be continued by order of the court, but a continuance shall not extend the time to a day more than 30 days from the date the verdict is

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returned. If no verdict is returned, the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury. (d) Conditional ruling on motion for new trial. — If a motion for judgment of acquittal after verdict of guilty under this rule is granted, the court shall also determine whether any motion for a new trial should be granted if the judgment of acquittal is thereafter vacated or reversed, specifying the grounds for such determination. If the motion for a new trial is granted conditionally, the order thereon does not affect the finality of the judgment. If the motion for a new trial has been granted conditionally and the judgment is reversed on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. If such motion has been denied conditionally, the appellee on appeal may assert error in that denial, and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.

Compare. — Rule 29, Fed. Rules Cr. Proc. judge must assume truth of state’s evi- Motion for acquittal raises question of dence and give the state the benefit of all sufficiency of the evidence, which matter legitimate inferences to be drawn therefrom. If should have been determined within the sound the evidence, so measured at the point in the discretion of the trial court. Montez v. State, prosecution to which the motion is properly 527 P.2d 1330, 1974 Wyo. LEXIS 246 (Wyo. addressed, portends to establish guilt beyond a 1974); Chavez v. State, 601 P.2d 166, 1979 Wyo. reasonable doubt, it is for the jury to make the LEXIS 470 (Wyo. 1979). decision as to whether it actually does. Russell Prima facie case impregnable against v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 motion for acquittal. — When the state in- (Wyo. 1978). troduces evidence on its case-in-chief from Jury decides if evidence establishes which the jury may properly infer the essential guilt. — If the evidence given the view most elements of the crime, the state has then made favorable to the state portends to establish out a prima facie case, impregnable against a guilt beyond a reasonable doubt, it is for the motion for acquittal. Russell v. State, 583 P.2d jury to make the decision as to whether it 690, 1978 Wyo. LEXIS 215 (Wyo. 1978). actually does. Chavez v. State, 601 P.2d 166, Counsel’s failure to renew motion not 1979 Wyo. LEXIS 470 (Wyo. 1979). ineffective where case impregnable Case held from jury if evidence permits against motion for acquittal. — Where an conjecture or speculation. — The motion for inmate’s motion for judgment of acquittal acquittal must be granted when the evidence, would have been denied even if it had been viewed in the light most favorable to the state, renewed after presentation of the defense evi- is such that a reasonable juror must have a dence because, based upon all the evidence, it reasonable doubt as to the existence of any of was not unreasonable for the jury to find the the essential elements of the crime. If the inmate guilty of all the charged offenses, trial evidence is such that a reasonable man may counsel was not ineffective for failing to renew have a reasonable doubt as to the defendant’s the motion, and because trial counsel was not guilt, the case should go to the jury. On the ineffective in that regard, neither was appellate other hand, the trial judge should not allow the counsel for not raising the issue in the direct case to go to the jury if the evidence is such as appeal. Harlow v. State, 2005 WY 12, 105 P.3d to permit the jury to merely conjecture or to 1049, 2005 Wyo. LEXIS 14 (Wyo.), cert. denied, speculate as to defendant’s guilt. Russell v. 546 U.S. 835, 126 S. Ct. 63, 163 L. Ed. 2d 90, State, 583 P.2d 690, 1978 Wyo. LEXIS 215 2005 U.S. LEXIS 6229 (U.S. 2005). (Wyo. 1978); Chavez v. State, 601 P.2d 166, Counsel’s failure to file motion ineffec- 1979 Wyo. LEXIS 470 (Wyo. 1979). tive. — Defense counsel performed deficiently Verdicts of acquittal are properly di- by waiting 27 days after defendant was con- rected only when trial court determines victed of attempted first degree murder and there is no substantial evidence to sustain the kidnapping before filing a new trial motion charges. Fresquez v. State, 492 P.2d 197, 1971 under this rule; defendant was prejudiced by Wyo. LEXIS 275 (Wyo. 1971). the timely motion, because the district court Verdicts of acquittal are only directed when would have granted the motion in the interest in the court’s opinion there is no substantial of justice as defendant’s conviction for at- evidence to sustain the material allegations of tempted first degree murder was contrary to the information. Heberling v. State, 507 P.2d 1, the weight of the evidence. Ken v. State, 2011 1973 Wyo. LEXIS 146 (Wyo.), cert. denied, 414 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 U.S. 1022, 94 S. Ct. 444, 38 L. Ed. 2d 313, 1973 (Wyo. 2011). U.S. LEXIS 1380 (U.S. 1973). When ruling on motion for acquittal Court may only direct entry of judgment

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of acquittal when it may be said as a matter the sufficiency of the evidence except for plain of law that there is no evidence of guilt what- error. Farbotnik v. State, 850 P.2d 594, 1993 soever in the record or where there is no sub- Wyo. LEXIS 70 (Wyo. 1993). stantial evidence from which reasonable men Defendant waived the right to challenge the may say that the defendant is guilty beyond a district court’s denial of defendant’s motion for reasonable doubt. Chavez v. State, 601 P.2d judgment of acquittal because defendant pre- 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). sented evidence after making the motion, on A motion for judgment of acquittal is to be which the court reserved its ruling, as the granted only when the evidence is such that a motion was de facto denied after defendant did reasonable juror must have a reasonable doubt not renew the motion and within ten days of the as to the existence of any of the essential jury being discharged. McEuen v. State, 2017 elements of the crime; or, stated another way, if WY 15, 388 P.3d 779, 2017 Wyo. LEXIS 15 there is substantial evidence to sustain a con- (Wyo. 2017). viction of the crime, the motion should not be Supreme Court has same duty as trial granted. Wise v. State, 654 P.2d 116, 1982 Wyo. court on reviewing motion. — The trial LEXIS 402 (Wyo. 1982). court, when ruling on a motion for judgment of A trial court shall order the entry of a judg- acquittal, is called upon to determine, as a ment of acquittal upon motion if the evidence is matter of law, whether in its opinion there is insufficient to sustain a conviction. The trial sufficient evidence to sustain the charges. On court must assume that the state’s evidence is review, the Supreme Court has the same duty. true and must give the state the benefit of all Cloman v. State, 574 P.2d 410, 1978 Wyo. legitimate inferences. Dover v. State, 664 P.2d LEXIS 262 (Wyo. 1978). 536, 1983 Wyo. LEXIS 334 (Wyo. 1983). Reviewing court may only direct motion District court did not plainly err in denying for acquittal on sufficiency of evidence an appellant’s motion for judgment of acquittal when: (1) it may be said as a matter of law that where the circumstantial evidence was suffi- there exists no evidence of guilt whatsoever cient to allow a jury to conclude beyond a upon the record; or (2) where there exists no reasonable doubt that the appellant had left his substantial evidence from which reasonable place of employment and thus, the evidence men may say that the defendant is guilty was supported the convictions under Wyo. Stat. beyond a reasonable doubt. Russell v. State, Ann. §§ 7-18-112 and § 6-5-206(a)(ii) (2006). 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. Martin v. State, 2007 WY 2, 149 P.3d 707, 2007 1978). Wyo. LEXIS 3 (Wyo. 2007). A reviewing court can only overrule the de- First degree attempted murder. — In an nial of a motion for acquittal when there is no attempted first degree murder case, the trial substantial evidence from which reasonable court did not err when it denied defendant’s persons could say that the defendant is guilty motion for a judgment of acquittal. Taken as a beyond a reasonable doubt. Dover v. State, 664 whole, a jury could conclude that the acts that P.2d 536, 1983 Wyo. LEXIS 334 (Wyo. 1983). defendant completed before being apprehended Standards on review. — In reviewing the by the police, such as having a verbal and denial of a motion for judgment of acquittal, the physical altercation with the victim, attempt- Supreme Court examines and accepts as true ing to run over the victim with his car, retriev- the evidence of the prosecution together with ing his gun, and returning to the scene of the all logical and reasonable inferences to be altercation, constituted a substantial step to- drawn therefrom, leaving out entirely the evi- ward the commission of first degree murder. dence of the defendant in conflict therewith. Gentilini v. State, 2010 WY 74, 231 P.3d 1280, Wise v. State, 654 P.2d 116, 1982 Wyo. LEXIS 2010 Wyo. LEXIS 75 (Wyo. 2010). 402 (Wyo. 1982). Defense counsel performed deficiently under Unrenewed motion not reviewable. — the Sixth Amendment for failing to timely file a Where the record reveals that, after the close of new trial motion; defendant was prejudiced the state’s case and their motion was denied, because the district court would have granted appellants introduced evidence without renew- the motion in the interest of justice as defen- ing their motion at the close of all the evidence, dant’s conviction for attempted first degree they will be held to have waived that motion murder was contrary to the weight of the evi- and an appellate court cannot review the suffi- dence. The State would have had no means to ciency of the evidence except for plain error. challenge the order, because an order granting Neilson v. State, 599 P.2d 1326, 1979 Wyo. a new trial on the grounds of ineffective assis- LEXIS 447 (Wyo. 1979), cert. denied, 444 U.S. tance was not the sort of issue contemplated by 1079, 100 S. Ct. 1031, 62 L. Ed. 2d 763, 1980 a writ of review pursuant to this rule. Ken v. U.S. LEXIS 755 (U.S. 1980). State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. Motion precluded by inference of lawful LEXIS 173 (Wyo. 2011). possession. — A person’s description of: (1) his Introduction of evidence results in open and notorious possession of the premises; waiver of motion. — Following the denial of a (2) the business activities conducted by him motion for acquittal, the introduction of evi- therein, including his duties as warehouse dence by a defendant results in a waiver of the manager; and (3) his seeking of police assis- motion for acquittal on grounds of insufficient tance to maintain exclusive possession of the evidence, and an appellate court cannot review premises; supports a reasonable inference that

Rule 29.1 WYOMING COURT RULES 72

he was in lawful possession of the premises and unlocked an apartment door, grabbed a pipe, precludes granting a motion for acquittal in a and chased the victim through a door and down prosecution for burglary. Beane v. State, 596 two flights of stairs before striking the victim P.2d 325, 1979 Wyo. LEXIS 419 (Wyo. 1979). with the pipe. Jones v. State, 2012 WY 82, 278 Denial proper. — In defendant’s trial on a P.3d 729, 2012 Wyo. LEXIS 88 (Wyo. 2012). charge of second-degree sexual abuse of a child Case not to go to jury. — Where the state under Wyo. Stat. Ann. § 6-2-315(a)(ii), the trial must prove beyond a reasonable doubt that the court did not err in denying defendant’s motion victim of first-degree sexual assault was physi- for a judgment of acquittal because evidence of cally helpless and that defendant knew or his wrongdoing was presented through avenues should reasonably have known that the victim other than the statement he gave to the inves- was physically helpless, and it is apparent that tigating detective. Specifically, the seven-year- the only evidence concerning the intent of de- old victim testified that defendant would get fendant is that of a psychiatrist who testified he into bed with him while wearing only his un- would have to guess on this issue, it follows derwear and that defendant touched the “front” that the jury would have to guess or speculate, part of his body that was normally covered by and the situation is one of the evidentiary his underwear; further, the victim’s mother situations upon which the trial judge should testified that she saw defendant lying in bed not permit the case to go to the jury. Chavez v. with her son with his body pressed against that State, 601 P.2d 166, 1979 Wyo. LEXIS 470 of the young boy. While that evidence may not (Wyo. 1979). have risen to the level of proof beyond a reason- Evidence sufficient to sustain convic- able doubt, it was sufficient to satisfy the cor- tion of attempted sexual assault felony pus delicti rule and to justify the denial of murder. — See Murray v. State, 671 P.2d 320, defendant’s acquittal motion. Jones v. State, 1983 Wyo. LEXIS 378 (Wyo. 1983). 2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47 Law reviews. — For case note, “Receiving (Wyo. 2010). Stolen Property — The Doctrine of Recent Pos- Trial court properly denied defendant’s mo- session and Problems Associated with Defen- tions for acquittal during a trial for aggravated dant’s Testimony, Russell v. State, 583 P.2d 690 assault and battery; even if the jury rejected (Wyo. 1978),” see XIV Land & Water L. Rev. 291 the victim’s version of events, and accepted (1979). defendant’s version, the jury still could have Tyler J. Garrett, Anatomy of a Wyoming concluded that defendant did not act in self Appeal: A Practitioner’s Guide for Civil Cases, defense or defense of others when defendant 16 Wyo. L. Rev. 139 (2016).