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 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. Motion for acquittal raises question of sufficiency of the evidence, which matter should have been determined within the sound discretion of the trial court. Montez v. State, 527 P.2d 1330, 1974 Wyo. LEXIS 246 (Wyo. 1974); Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). Prima facie case impregnable against motion for acquittal. — When the state introduces evidence on its case-in-chief from which the jury may properly infer the essential elements of the crime, the state has then made out a prima facie case, impregnable against a motion for acquittal. Russell v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. 1978). Counsel’s failure to renew motion not ineffective where case impregnable against motion for acquittal. — Where an inmate’s motion for judgment of acquittal would have been denied even if it had been renewed after presentation of the defense evidence because, based upon all the evidence, it was not unreasonable for the jury to find the inmate guilty of all the charged offenses, trial counsel was not ineffective for failing to renew the motion, and because trial counsel was not ineffective in that regard, neither was appellate counsel for not raising the issue in the direct appeal. Harlow v. State, 2005 WY 12, 105 P.3d 1049, 2005 Wyo. LEXIS 14 (Wyo.), cert. denied, 546 U.S. 835, 126 S. Ct. 63, 163 L. Ed. 2d 90, 2005 U.S. LEXIS 6229 (U.S. 2005). Counsel’s failure to file motion ineffective. — Defense counsel performed deficiently by waiting 27 days after defendant was convicted of attempted first degree murder and kidnapping before filing a new trial motion under this rule; defendant was prejudiced by the timely motion, because the district court would have granted the motion in the interest of justice as defendant’s conviction for attempted first degree murder was contrary to the weight of the evidence. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011). When ruling on motion for acquittal judge must assume truth of state’s evidence and give the state the benefit of all legitimate inferences to be drawn therefrom. If the evidence, so measured at the point in the prosecution to which the motion is properly addressed, portends to establish guilt beyond a reasonable doubt, it is for the jury to make the decision as to whether it actually does. Russell v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. 1978). Jury decides if evidence establishes guilt. — If the evidence given the view most favorable to the state portends to establish guilt beyond a reasonable doubt, it is for the jury to make the decision as to whether it actually does. Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). Case held from jury if evidence permits conjecture or speculation. — The motion for acquittal must be granted when the evidence, viewed in the light most favorable to the state, is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. If the evidence is such that a reasonable man may have a reasonable doubt as to the defendant’s guilt, the case should go to the jury. On the other hand, the trial judge should not allow the case to go to the jury if the evidence is such as to permit the jury to merely conjecture or to speculate as to defendant’s guilt. Russell v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. 1978); Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). Verdicts of acquittal are properly directed only when trial court determines there is no substantial evidence to sustain the charges. Fresquez v. State, 492 P.2d 197, 1971 Wyo. LEXIS 275 (Wyo. 1971). Verdicts of acquittal are only directed when in the court’s opinion there is no substantial evidence to sustain the material allegations of the information. Heberling v. State, 507 P.2d 1, 1973 Wyo. LEXIS 146 (Wyo.), cert. denied, 414 U.S. 1022, 94 S. Ct. 444, 38 L. Ed. 2d 313, 1973 U.S. LEXIS 1380 (U.S. 1973). Court may only direct entry of judgment of acquittal when it may be said as a matter of law that there is no evidence of guilt whatsoever in the record or where there is no substantial evidence from which reasonable men may say that the defendant is guilty beyond a reasonable doubt. Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime; or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. Wise v. State, 654 P.2d 116, 1982 Wyo. LEXIS 402 (Wyo. 1982). A trial court shall order the entry of a judgment of acquittal upon motion if the evidence is insufficient to sustain a conviction. The trial court must assume that the state’s evidence is true and must give the state the benefit of all legitimate inferences. Dover v. State, 664 P.2d 536, 1983 Wyo. LEXIS 334 (Wyo. 1983). District court did not plainly err in denying an appellant’s motion for judgment of acquittal where the circumstantial evidence was sufficient to allow a jury to conclude beyond a reasonable doubt that the appellant had left his place of employment and thus, the evidence was supported the convictions under Wyo. Stat. Ann. §§ 7-18-112 and § 6-5-206(a)(ii) (2006). Martin v. State, 2007 WY 2, 149 P.3d 707, 2007 Wyo. LEXIS 3 (Wyo. 2007). First degree attempted murder. — In an attempted first degree murder case, the trial court did not err when it denied defendant’s motion for a judgment of acquittal. Taken as a whole, a jury could conclude that the acts that defendant completed before being apprehended by the police, such as having a verbal and physical altercation with the victim, attempting to run over the victim with his car, retrieving his gun, and returning to the scene of the altercation, constituted a substantial step toward the commission of first degree murder. Gentilini v. State, 2010 WY 74, 231 P.3d 1280, 2010 Wyo. LEXIS 75 (Wyo. 2010). Defense counsel performed deficiently under the Sixth Amendment for failing to timely file a new trial motion; defendant was prejudiced because the district court would have granted the motion in the interest of justice as defendant’s conviction for attempted first degree murder was contrary to the weight of the evidence. The State would have had no means to challenge the order, because an order granting a new trial on the grounds of ineffective assistance was not the sort of issue contemplated by a writ of review pursuant to this rule. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011). Introduction of evidence results in waiver of motion. — Following the denial of a motion for acquittal, the introduction of evidence by a defendant results in a waiver of the motion for acquittal on grounds of insufficient evidence, and an appellate court cannot review the sufficiency of the evidence except for plain error. Farbotnik v. State, 850 P.2d 594, 1993 Wyo. LEXIS 70 (Wyo. 1993). Defendant waived the right to challenge the district court’s denial of defendant’s motion for judgment of acquittal because defendant presented evidence after making the motion, on which the court reserved its ruling, as the motion was de facto denied after defendant did not renew the motion and within ten days of the jury being discharged. McEuen v. State, 2017 WY 15, 388 P.3d 779, 2017 Wyo. LEXIS 15 (Wyo. 2017). Supreme Court has same duty as trial court on reviewing motion. — The trial court, when ruling on a motion for judgment of acquittal, is called upon to determine, as a matter of law, whether in its opinion there is sufficient evidence to sustain the charges. On review, the Supreme Court has the same duty. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978). Reviewing court may only direct motion for acquittal on sufficiency of evidence when: (1) it may be said as a matter of law that there exists no evidence of guilt whatsoever upon the record; or (2) where there exists no substantial evidence from which reasonable men may say that the defendant is guilty beyond a reasonable doubt. Russell v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. 1978). A reviewing court can only overrule the denial of a motion for acquittal when there is no substantial evidence from which reasonable persons could say that the defendant is guilty beyond a reasonable doubt. Dover v. State, 664 P.2d 536, 1983 Wyo. LEXIS 334 (Wyo. 1983). Standards on review. — In reviewing the denial of a motion for judgment of acquittal, the Supreme Court examines and accepts as true the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, leaving out entirely the evidence of the defendant in conflict therewith. Wise v. State, 654 P.2d 116, 1982 Wyo. LEXIS 402 (Wyo. 1982). Unrenewed motion not reviewable. — Where the record reveals that, after the close of the state’s case and their motion was denied, appellants introduced evidence without renewing their motion at the close of all the evidence, they will be held to have waived that motion and an appellate court cannot review the sufficiency of the evidence except for plain error. Neilson v. State, 599 P.2d 1326, 1979 Wyo. LEXIS 447 (Wyo. 1979), cert. denied, 444 U.S. 1079, 100 S. Ct. 1031, 62 L. Ed. 2d 763, 1980 U.S. LEXIS 755 (U.S. 1980). Motion precluded by inference of lawful possession. — A person’s description of:

(1) his open and notorious possession of the premises;

(2) the business activities conducted by him therein, including his duties as warehouse manager; and

(3) his seeking of police assistance to maintain exclusive possession of the premises; supports a reasonable inference that he was in lawful possession of the premises and precludes granting a motion for acquittal in a prosecution for burglary. Beane v. State, 596 P.2d 325, 1979 Wyo. LEXIS 419 (Wyo. 1979). Denial proper. — In defendant’s trial on a charge of second-degree sexual abuse of a child under Wyo. Stat. Ann. § 6-2-315(a)(ii), the trial court did not err in denying defendant’s motion for a judgment of acquittal because evidence of his wrongdoing was presented through avenues other than the statement he gave to the investigating detective. Specifically, the seven-year-old victim testified that defendant would get into bed with him while wearing only his underwear and that defendant touched the “front” part of his body that was normally covered by his underwear; further, the victim’s mother testified that she saw defendant lying in bed with her son with his body pressed against that of the young boy. While that evidence may not have risen to the level of proof beyond a reasonable doubt, it was sufficient to satisfy the corpus delicti rule and to justify the denial of defendant’s acquittal motion. Jones v. State, 2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47 (Wyo. 2010). Trial court properly denied defendant’s motions for acquittal during a trial for aggravated assault and battery; even if the jury rejected the victim’s version of events, and accepted defendant’s version, the jury still could have concluded that defendant did not act in self defense or defense of others when defendant unlocked an apartment door, grabbed a pipe, and chased the victim through a door and down two flights of stairs before striking the victim with the pipe. Jones v. State, 2012 WY 82, 278 P.3d 729, 2012 Wyo. LEXIS 88 (Wyo. 2012). Case not to go to jury. — Where the state must prove beyond a reasonable doubt that the victim of first-degree sexual assault was physically helpless and that defendant knew or should reasonably have known that the victim was physically helpless, and it is apparent that the only evidence concerning the intent of defendant is that of a psychiatrist who testified he would have to guess on this issue, it follows that the jury would have to guess or speculate, and the situation is one of the evidentiary situations upon which the trial judge should not permit the case to go to the jury. Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979). Evidence sufficient to sustain conviction of attempted sexual assault felony murder. — See Murray v. State, 671 P.2d 320, 1983 Wyo. LEXIS 378 (Wyo. 1983).