concurring and dissenting.
I agree that this conviction must be reversed because of the failure of the trial court to instruct on the statutory definition of the word “deprive” found in Wyo. Stat. § 6-3-^401 (1997). I would not, however, find any error in the failure to give the requested instruction oh the defense of involuntary intoxication.
My understanding of the evidence in the record differs from that described in the majority opinion. The only evidence in the record, from which intoxication might be inferred, is found in the testimony of the victim that he could smell beer in his pickup when he recovered it and in the report of the arresting officer that is summarized in this way:
The suspect had the strong odor of an alcoholic beverage coming from his person and breath, his eyes were watery and bloodshot, and the suspect was a little unsteady on his feet.
While this information is reiterated several times in the record, it is the same information, and its weight is not enhanced by repetition. Even when confronted with the notation in his report, the arresting officer was unequivocal and unwavering in his testimony that, in his opinion, Brett was not intoxicated. This is a subject about which the lay person can give an opinion (State v. Cantrell, 64 Wyo. 132, 186 P.2d 539 (1947)), although the experienced officer well might have qualified as an expert. Brett did not testify.
The evidence upon which the majority relies would serve to establish that Brett had consumed intoxicating beverages, and, in the absence of the opinion of the officer, might suffice for purposes of the instruction. Even in that event, however, it is nothing more than an invitation to the jury to speculate, which is not permissible. See Patterson v. State, 682 P.2d 1049 (Wyo.1984). Given the state of the evidence in this case, the district court did not err in refusing to give the instruction on voluntary intoxication. While the proffered instruction was a correct statement of the law, it was not supported by the evidence.