The alleged victim, a 24-year-old Montana woman, testified that Johnston sexually assaulted her while she spent the night at a friend’s house in Cody last summer. She said a combination of medication, alcohol and tiredness had put her in a dream-like state where she couldn’t say no.
Johnston testified that the intercourse was consensual, saying the woman appeared fully awake and responded to him as though she was enjoying it. Others in the house testified the woman appeared coherent before and after the incident, but also said she burst out of the bedroom hysteric and half-naked after the encounter. Johnston lied to police that morning, denying they’d had sex.
A narrow majority of the 12-member jury, either seven or eight members, voted to acquit Johnston, said a Cody man who served on the panel. The other four or five members, himself included, believed Johnston was guilty. Wyoming requires a unanimous verdict to convict or acquit, and neither side budged.
“It was clearly a hung jury. It was clearly hung from the start (of deliberations),” said the juror, who asked that his name not be used, given the sensitivity of the case.
Deputy Park County Attorney Sam Krone already has filed notice that his office intends to re-try the case.
“I think the overwhelming weight of the evidence is that she was physically helpless (to say no to Johnston),” Krone said in his closing argument to the jury.
Johnston’s attorney, Dion Custis of Cheyenne, noted that — although she said it came in bits and pieces — the woman generally recalled everything that happened that night.
“You can’t say, yes I remember all that and I describe it to you and it just happens to be the same thing Tyler (Johnston) says happened ... but then say I didn’t realize it consciously, that I was going through the motions and doing these things,” he argued in closing. Custis said the woman was making an excuse for a poor decision.
The two had met only once prior to June 10, when the woman recognized Johnston at Cody’s Silver Dollar Bar and approached him. They talked and teased each other and danced together once.
“She’s a very pretty girl, she’s real nice,” said Johnston, and he believed the attraction was mutual.
The woman said she had several drinks — four to five shots of vodka and some beer, according to her initial statement to police; six to seven shots and a few mixed drinks according to her courtroom testimony. Johnston, who also was drinking, said he never saw her with a drink and didn’t think she was drunk.
As the bar prepared to close, the woman mentioned to a group of people, including Johnston, that she and some friends were headed back to a friend’s house for the night.
Johnston ended up coming along.
The woman said after going back to the residence she started feeling sick, threw up and went to bed. She was described by the three other people at the home as appearing mildly intoxicated, but coherent and functioning.
After a couple conversations with the woman, Johnston said he went into her bedroom and laid next to her. He said he asked if she was OK — not because he thought she was sick but “just to see how she was doing.” When she smiled and nodded, he said he began kissing her and was kissed back.
He outlined the rest of the encounter to the jury, describing in explicit detail why he thought she was enjoying it.
“She responded, she knew exactly what was going on,” he said.
Had she said no, “I would have stopped. I’ve had girls tell me no several times,” Johnston said. “It’s not a problem.”
At some point, he bit the woman on the neck, which he said he’s done to several girls.
“I guess it’s just something passionate I do,” he said.
After a few minutes with her, Johnston said he “kind of not necessarily lost interest” but was ready to be done. He asked if she was ready to be done, and it was soon after that she sat up, began making a “whining” noise and left the room, he said.
“I thought to myself, what the eff,” he testified. “I did not understand the situation.”
The woman gave a similar account of what Johnston did, but said she was in a dream-like state and had given no consent.
“My conscious level, I was just so in and out of it from the alcohol and being tired. ... I thought I was dreaming; It felt like I was dreaming,” she said.
She also testified he made an obscene command during the encounter; Johnston denied that, saying he had no reason to cuss at her.
The woman, crying at times during her testimony, said she woke to Johnston pulling on her arm.
“I sat up, I looked around and saw him laying next to me and I realized it wasn’t a dream... and I ran out of the room,” she said.
Custis, during cross examination, noted that she never told Johnston to stop.
“You realize that you did things here that could lead a person to believe that you were intending to have sex with them,” he said. “Do you realize that?”
“Yeah,” she said quietly.
However, on re-direct examination, Krone had her repeat her testimony that she was physically unable to say no to Johnston.
“Did you want to say no?” Krone asked.
“In my dream I did, yeah,” she said, adding that if she had been fully awake she “absolutely” would have said no.
After she came running out of the bedroom crying, her close friend confronted Johnston. The friend testified that Johnston said the woman had “asked for it” — a claim Johnston denied in his testimony.
Johnston was escorted from the residence by another man at the home, while the woman was immediately taken to West Park Hospital, where police were notified.
She still appeared upset when police arrived, curled up in the fetal position on an examination table. She didn’t appear obviously intoxicated.
Cody Police Sgt. Jon Beck testified that when police interviewed Johnston around 4 a.m. that morning, his first statement was “that he was messing around with this girl, she woke up and started screaming rape and ran out of the room.”
However, the video recording of that interview, due to an error on Beck’s part, didn’t start immediately and whatever Johnston said at the outset of the interview didn’t make it onto the tape. In the recorded portion, when Beck asks about her waking up, Johnston says “there was no waking up — she was awake the entire time.”
Beck said Johnston appeared drunk and was slurring his speech.
Johnston admitted to the jury that he lied to police by repeatedly denying having sex with the woman. Later, after being arrested, he reportedly told another officer that “it was bulls—, nothing happened.”
Johnston testified that he was scared and now wishes he’d told police the truth.
“All I did was make things worse, and the truth was the truth,” he said; the later comment that “nothing happened” was a reference to a sexual assault, he said, not sex in general.
Krone argued that Johnston’s testimony didn’t make sense, questioning his testimony that he just decided to stop after several minutes of intercourse.
“Isn’t this more consistent with the fact that he didn’t have a chance to (finish) because (the victim) wakes up?” Krone said.
The woman was drunk, tired, feeling sick and at the end of her menstrual cycle, Krone said.
“Is that consistent with consensual sex or wanting to go to sleep?” he asked the jury.
Krone also said there was no reason for the woman to run from the room in hysterics if the sex had been consensual; Custis suggested she might have been ashamed or had mental problems.
“Alcohol is not an excuse to clear up a poor decision,” Custis argued. “And that’s what we have in this case is an excuse. That’s it.”
He said Johnston, a bull rider, is a nice, respectable young man who had no motive to rape the woman.
At some point after the incident, the woman was contacted by Johnston’s sister via email; she told the sister that all she wanted from Johnston was an apology.
“I didn’t want to see Tyler (Johnston) ... go to prison for this,” the woman testified. “I wanted him to admit to what he had done to me and realize that it happened and he did it and he was wrong.”
Krone noted that the prosecution, and not the woman, was bringing the charges.
Following a court order and a general policy of this newspaper, the Tribune is not using the woman’s name or information reasonably likely to identify her.
A new trial date has not yet been set.
Editor's note: This version of the story corrects the number of jurors the Tribune was told voted to acquit, the date of the incident and the spelling of Sgt. Beck's first name.