Revision of title. —

Laws 1982, ch. 75, as amended by Laws 1983, ch. 171, revised this title.

Section 1, ch. 75, Laws 1982 renumbered §§ 6-5-302 , 6-8-507, 6-8-509 and 6-9-201 through 6-9-203 as §§ 35-6-116 , 18-4-107 , 18-4-108 and 40-16-101 through 40-16-103 . Section 2 of that act amended three sections of the code outside of Title 6. Section 3 of that act repealed former §§ 6-1-101 through 6-12-109 and created present §§ 6-1-101 through 6-10-203 . Section 4 of that act amended and renumbered former § 31-5-1117 as § 6-2-106 . Section 5 of that act repealed numerous sections throughout the code.

Section 1, ch. 171, Laws 1983, amended many of the sections created by § 3, ch. 75, Laws 1982. Section 2 of that act amended present §§ 6-6-301 through 6-6-307 , amended and renumbered into Title 6 by § 2, ch. 62, Laws 1982. Section 3, ch. 171, Laws 1983, amended § 5, ch. 75, Laws 1982, repealing numerous sections throughout the code. Section 4, ch. 171, Laws 1983, amended § 31-11-102 . Section 5 of that act amended and renumbered § 31-5-1117 as § 6-2-106 and § 37-12-123 as § 6-3-409 . Section 6 of that act repealed § 4, ch. 75, Laws 1982. Section 7, ch. 171, Laws 1983, repealed §§ 6-1-104 and 6-3-803 , as enacted by § 3, ch. 75, Laws 1983.

Section 6, ch. 75, Laws 1982, and § 8, ch. 171, Laws 1983, make the revision of this title effective on July 1, 1983.

No detailed comparison of the changes made by the revision has been made, but, where appropriate, historical citations to former provisions have been added to corresponding sections in this title and annotations from cases decided under former provisions have been placed under comparable sections in this title where it was felt that they would be helpful. For tables of comparative sections, see Volume 11 of the Wyoming Statutes Annotated.

Cross references. —

For constitutional provision that the penal code shall be framed on the humane principles of reformation and prevention, see art. 1, § 15, Wyo. Const.

For provision that a person who has been convicted of a felony or other high crime is not competent to act as juror, see § 1-11-102 .

As to habeas corpus, see §§ 1-27-101 to 1-27-134 .

As to criminal procedure generally, see title 7.

As to the division of criminal investigation of the office of attorney general, see §§ 9-1-611 to 9-1-620 .

As to the criminal identification division of the office of the attorney general, see §§ 9-1-623 to 9-1-627 .

For offenses concerning livestock and other animals, see §§ 11-30-104 , 11-30-106 through 11-30-115 .

For crimes, offenses and penalties as to banks, banking and finance, see §§ 13-10-101 to 13-10-112 .

For provisions as to military courts and crimes, see §§ 19-12-101 et seq.

For offenses and penalties as to elections, see §§ 22-26-101 to 22-26-121 .

For provisions as to enforcement and penalties of game and fish laws generally, see §§ 23-6-101 to 23-6-208 .

For enforcement and penalties under the Uniform Act Regulating Traffic on Highways, see §§ 31-5-1201 to 31-5-1214 .

For crimes and offenses as to public health and safety, see §§ 35-10-101 to 35-10-409 .

For crimes and offenses as to public utilities, see §§ 37-12-101 to 37-12-213 .

As to criminal rules, see Rule 1, W.R.Cr.P. et seq.

As to criminal forms, see Appendix of Forms, W.R. Cr. P.

Am. Jur. 2d, ALR and C.J.S. references. —

Regulation of astrology, clairvoyancy, fortune-telling and the like, 91 ALR3d 766.

Chapter 1 General Provisions

Am. Jur. 2d, ALR and C.J.S. references. —

21 Am. Jur. 2d Criminal Law § 1 et seq.

22 C.J.S. Criminal Law § 1 et seq.

Article 1. In General

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-1-101. Short title; applicability of provisions; conflicting penalties.

  1. This act may be cited as the Wyoming Criminal Code.
  2. This act does not apply to crimes committed prior to the effective date of this act. Prosecutions for a crime shall be governed by the law in effect on the date when the crime occurred. A crime was committed prior to the effective date of this act if any of the elements of the crime occurred prior to the effective date of this act.
  3. In a case pending on or after the effective date of this act, involving a crime committed prior to the effective date, if the penalty under this act for the crime is different from the penalty under prior law, the court shall impose the lesser sentence.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2010, ch. 69, § 207.

The 2010 amendment, effective July 1, 2010, in (a), deleted “of 1982” at the end.

Editor's notes. —

Section 6, ch. 75, Laws 1982 and section 8, ch. 171, Laws 1983 make the act effective on July 1, 1983.

Meaning of “this act.” —

The term “this act,” referred to in this section, means, literally, Laws 1982, ch. 75, as amended by Laws 1983, ch. 171. The reference, however, was probably meant to be to §§ 6-1-101 through 6-10-203 .

Sentencing taking place after July 1, 1983 under provisions of new Criminal Code. —

Although, at the time he pleaded guilty to grand larceny, the defendant was informed that he could receive a sentence of up to 10 years under former law, his sentence, which took place after the effective date of the new Criminal Code, should have been under the provisions of the new code, inasmuch as the legislative intent is to have the law in effect prior to July 1, 1983 control all aspects of the prosecution of a crime in which any of its elements occurred prior to that date, with a single exception — any original sentence imposed after July 1, 1983 must be the lesser of that provided for the crime where the new code and the old code diverge. Attletweedt v. State, 684 P.2d 812, 1984 Wyo. LEXIS 313 (Wyo. 1984).

Conflicting-penalty provision inapplicable to contention that defendant charged with wrong crime. —

The defendant, who was properly charged with, and convicted of, manslaughter, but who contended throughout his trial and appeal that he should have been charged with vehicular homicide, was properly sentenced under the manslaughter statute. Both the previous (§ 6-4-107) and the current (§ 6-2-105 ) statutes proscribing manslaughter provide for a sentence of up to 20 years in the state penitentiary. The defendant's interpretation and application of subsection (c) was inappropriate; he was never charged with or convicted of vehicular homicide. Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986).

Three-to-seven year forgery sentence proper. —

Inasmuch as the defendant's sentence was three to seven years, the sentence was within “the lesser” of the penalties provided for the crime of forgery under the present Criminal Code and the crime of forgery as defined when the crime was committed in 1982. Accordingly, the argument that subsection (c) made improper the sentence was without merit. Binger v. State, 712 P.2d 349, 1986 Wyo. LEXIS 444 (Wyo. 1986).

Applied in

Johnson v. State, 695 P.2d 638, 1985 Wyo. LEXIS 446 (Wyo. 1985); Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985); Lewis v. State, 709 P.2d 1278, 1985 Wyo. LEXIS 619 (Wyo. 1985); Roush v. State, 2014 WY 45, 2014 Wyo. LEXIS 48 (Apr 8, 2014).

Quoted in

Schuler v. State, 771 P.2d 1217, 1989 Wyo. LEXIS 97 (Wyo. 1989).

Cited in

Wright v. State, 718 P.2d 35, 1986 Wyo. LEXIS 532 (Wyo. 1986); Pote v. State, 733 P.2d 1018, 1987 Wyo. LEXIS 406 (Wyo. 1987); Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Sarr v. State, 2007 WY 140, 166 P.3d 891, 2007 Wyo. LEXIS 150 (Aug. 29, 2007).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Dismissal of state criminal charge in furtherance of, or in interest of, justice, 71 ALR5th 1.

§ 6-1-102. Common-law crimes abolished; common-law defenses retained.

  1. Common-law crimes are abolished. No conduct constitutes a crime unless it is described as a crime in this act or in another statute of this state. This section does not limit the power of the court to:
    1. Punish for contempt or to employ any sanction authorized by law for the enforcement of an order lawfully entered or a civil judgment or decree; or
    2. Use case law as an interpretive aid and in the construction of this act.
  2. Common-law defenses are retained unless otherwise provided by this act.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Meaning of “this act.” —

See note following same catchline in notes to § 6-1-101 .

Common-law defense of parental discipline was available to one prosecuted under § 6-2-503 (child abuse). Requiring the defendant to prove this defense was not unconstitutional. Keser v. State, 706 P.2d 263, 1985 Wyo. LEXIS 553 (Wyo. 1985).

Jury instructions. —

Although the district court erred by instructing the jury as to common law parental duties that were not encompassed within the charged crime of felony murder based on child abuse, the error was harmless because the completed verdict form showed juror unanimity as to defendant's guilt on all of the theories properly alleged; the judgment and sentence had to be amended to reflect the fact that only one charge was brought, that defendant was bound over and arraigned and pled to only one charge, and that he was therefore convicted of only one charge. Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Wyo. 2008).

Quoted in

Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Stated in

Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

Cited in

Bush v. State, 908 P.2d 963, 1995 Wyo. LEXIS 230 (Wyo. 1995); Holloman v. State, 2002 WY 117, 51 P.3d 214, 2002 Wyo. LEXIS 123 (Wyo. 2002).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For article, “A Comprehensive Treatise on Contempt of Court in Wyoming,” see 15 Wyo. L. Rev. 1 (2015).

Am. Jur. 2d, ALR and C.J.S. references. —

Automatism or unconsciousness as defense to criminal charge, 27 ALR4th 1067.

Acts in self-defense as within provision of liability insurance policy expressly excluding coverage for damage or injury intended or expected by insured, 34 ALR4th 761.

Entrapment to commit traffic offense, 34 ALR4th 1167.

Public school teacher's self-defense, or defense of another, as justification, in dismissal proceedings, for use or threat of use of force against student, 37 ALR4th 842.

Fact that weapon was acquired for self-defense or to prevent its use against defendant as defense in prosecution for violation of state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying or using firearms or weapons, 39 ALR4th 967.

Truth as defense to state charge of criminal intimidation, extortion, blackmail, threats and the like, based upon threats to disclose information about victim, 39 ALR4th 1011.

Trespass: state prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial or utility premises, 41 ALR4th 773.

Burden of proof as to entrapment defense — state cases, 52 ALR4th 775.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 ALR4th 940.

Defense of necessity, duress or coercion in prosecution for violation of state narcotics laws, 1 ALR5th 938.

“Choice of evils,” necessity, duress, or similar defense to state or local criminal charges based on acts of public protest, 3 ALR5th 521.

Entrapment as defense to charge of selling or supplying narcotics where government agents supplied narcotics to defendant and purchased them from him, 9 ALR5th 464.

Right of criminal defendant to raise entrapment defense based on having dealt with other party who was entrapped, 15 ALR5th 39.

Availability of defense of duress or coercion in prosecution for violation of federal narcotics laws, 75 ALR Fed 722.

§ 6-1-103. Civil recovery for criminal act; conviction as evidence in civil suit.

  1. Nothing in this act prevents a party whose person or property is injured by a criminal act from recovering full damages.
  2. No record of a conviction, unless it was obtained by confession in open court, shall be used as evidence in an action brought to recover damages.

History. Laws 1982, ch. 75, § 3.

Meaning of “this act.” —

See note following same catchline in notes to § 6-1-101 .

Applied in

Haley v. Dreesen, 532 P.2d 399, 1975 Wyo. LEXIS 132 (Wyo. 1975).

Law reviews. —

For note on indirect legal consequences of a conviction for a felony, see 13 Wyo. L.J. 62 (1958).

As to admissibility under Fed. R. Evid. 410 of pleas not withdrawn as evidence in a subsequent civil action, see XII Land & Water L. Rev. 601 (1977).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

§ 6-1-104. Definitions.

  1. As used in this act, unless otherwise defined:
    1. “Bodily injury” means:
      1. A cut, abrasion, burn or temporary disfigurement;
      2. Physical pain; or
      3. Impairment of the function of a bodily member, organ or mental faculty.
    2. “Coin machine” means a mechanical or electronic device or receptacle designed to:
      1. Receive a coin, bill or token made for that purpose; and
      2. Automatically offer, provide or assist in providing or permit the acquisition of property or service in return for the insertion of the coin, bill or token.
    3. “Criminal negligence” is defined as the following conduct: A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results. The risk shall be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation;
    4. “Deadly weapon” means but is not limited to a firearm, explosive or incendiary material, motorized vehicle, an animal or other device, instrument, material or substance, which in the manner it is used or is intended to be used is reasonably capable of producing death or serious bodily injury;
    5. “Occupied structure” means a structure or vehicle whether or not a person is actually present:
      1. Where any person lives or carries on business or other calling;
      2. Where people assemble for purposes of business, government, education, religion, entertainment or public transportation;
      3. Which is used for overnight accommodation of persons; or
      4. In which a person may reasonably be expected to be present.
    6. “Peace officer” includes the following officers assigned to duty in the state of Wyoming:
      1. Any duly authorized sheriff, under sheriff or deputy sheriff;
      2. Any duly authorized member of a municipal police force, a college or university campus police force or the Wyoming highway patrol;
      3. Game and fish law enforcement personnel qualified pursuant to W.S. 9-1-701 through 9-1-707 and:
        1. When enforcing felony statutes following observation or discovery of the commission of a felony which was observed or discovered during the performance of their official duties;
        2. While responding to requests to assist other peace officers performing their official duties or when enforcing a valid arrest warrant for any crime; or
        3. When performing their official duties or enforcing any provision of title 23 and chapter 13 of title 41, any rule and regulation promulgated by the Wyoming game and fish commission or any other statute for which they are granted statutory enforcement authority.
      4. Agents of the division of criminal investigation appointed pursuant to W.S. 9-1-613 who have qualified pursuant to W.S. 9-1-701 through 9-1-707 ;
      5. Any duly authorized arson investigator employed by the state fire marshal;
      6. Investigators and brand inspectors of the Wyoming livestock board who have qualified pursuant to W.S. 9-1-701 through 9-1-707 when:
        1. Enforcing W.S. 6-3-201 , 6-3-401 , 6-3-402 , 6-3-410 , 6-3-601 through 6-3-603 , 6-3-607 , 6-3-610 through 6-3-612 , 6-3-1002 , 6-3-1003 , 6-3-1005 , 6-9-202 , 35-10-101 , 35-10-102 and 35-10-104 , the provisions of title 11 and any laws prohibiting theft or mutilation of livestock or any part thereof and any rule or regulation promulgated by the Wyoming livestock board or any other law for which they are granted statutory enforcement authority;
        2. Responding to a request to assist another peace officer as defined in this paragraph performing his official duty; or
        3. Enforcing a valid arrest warrant for a crime specified in subdivision (F)(I) of this paragraph.
      7. Federal law enforcement agents;
      8. Investigators employed by the Wyoming state board of outfitters and professional guides and qualified pursuant to W.S. 9-1-701 through 9-1-707, when enforcing W.S. 23-2-401 and 23-2-406 through 23-2-418 and board rules and regulations promulgated under W.S. 23-2-410(a)(ii);
      9. Any duly authorized detention officer who has qualified pursuant to W.S. 9-1-701 through 9-1-707, when engaged in the performance of his duties;
      10. Any person employed by the state department of corrections on a full-time basis as a correctional officer to care for, supervise and control persons under the custody of the department, when the person is engaged in the performance of his duties;
      11. Any peace officer certified by another state who has been appointed as a special deputy sheriff of a Wyoming county pursuant to W.S. 18-3-602(c);
      12. Certified law enforcement officers of an adjoining state while responding to a request for assistance from a peace officer in this state pursuant to the “Law Enforcement Interstate Mutual Aid Act” or other lawful request;
      13. The director and full-time staff instructors of the Wyoming law enforcement academy when duly appointed and acting pursuant to W.S. 9-1-633(b);
      14. Any superintendent, assistant superintendent or full-time park ranger of any state park, state recreation area, state archeological site or state historic site who has qualified pursuant to W.S. 9-1-701 through 9-1-707, when acting within the boundaries of the state park, state recreation area, state archeological site or state historic site or when responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction;
      15. Any duly authorized court security officer employed by the Wyoming supreme court who is qualified pursuant to W.S. 9-1-701 through 9-1-707 when:
        1. Enforcing Wyoming statutes or supreme court rules on premises where the supreme court is conducting business;
        2. In fresh pursuit of a person whom the officer has probable cause to believe has committed within the officer’s jurisdiction a violation of a state statute, or for whom an arrest warrant is outstanding for any criminal offense; or
        3. When responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction.
      16. Any person qualified pursuant to W.S. 9-1-701 through 9-1-707 and employed by the Wyoming gaming commission when engaged in the performance of that person’s duties or when responding to a request to assist other peace officers acting within the scope of their official duties in their own jurisdiction.
    7. “Person” includes an individual, partnership, corporation, joint stock company or any other association or entity, public or private;
    8. “Property” means anything of value whether tangible or intangible, real or personal, public or private;
    9. “Recklessly” is defined as the following conduct: A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that the harm he is accused of causing will occur, and the harm results. The risk shall be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation;
    10. “Serious bodily injury” means bodily injury which:
      1. Creates a substantial risk of death;
      2. Causes severe protracted physical pain;
      3. Causes severe disfigurement or protracted loss or impairment of a bodily function;
      4. Causes unconsciousness or a concussion resulting in protracted loss or impairment of the function of a bodily member, organ or mental faculty;
      5. Causes burns of the second or third degree over a significant portion of the body; or
      6. Causes a significant fracture or break of a bone.
    11. “Vehicle” means any device by which persons or property may be moved, carried or transported over land, water or air;
    12. “Violent felony” means murder, manslaughter, kidnapping, sexual assault in the first or second degree, robbery, aggravated assault, strangulation of a household member, aircraft hijacking, arson in the first or second degree, aggravated burglary, a violation of W.S. 6-2-314(a)(i) or 6-2-315(a)(ii) or a third, or subsequent, domestic battery under W.S. 6-2-511 (a) and (b)(iii);
    13. “Torture”, “torment” or “cruelty” means every act, omission or neglect whereby the willful and malicious infliction of pain or suffering is caused, permitted or allowed to continue when there is a reasonable remedy or relief;
    14. “Criminal street gang” means an ongoing formal or informal organization, association or group of five (5) or more persons having as one (1) of its primary activities the commission of one (1) or more of the criminal acts enumerated in paragraph (xv) of this subsection, having a common name or identifying sign or symbol and whose members or associates individually or collectively engage in or have been engaged in a pattern of criminal street gang activity;
    15. “Pattern of criminal street gang activity” means the commission of, conviction or adjudication for or solicitation, conspiracy or attempt to commit two (2) or more of the offenses listed in this paragraph on separate occasions within a three (3) year period. Offenses that form a pattern of criminal street gang activity include:
      1. A violent felony as defined in paragraph (xii) of this subsection;
      2. Promoting prostitution in violation of W.S. 6-4-103 ;
      3. Felony property destruction and defacement in violation of W.S. 6-3-201 and punishable under W.S. 6-3-201(b)(iii);
      4. Theft in violation of W.S. 6-3-402 ;
      5. Repealed by Laws 2020, ch. 90, § 3.
      6. Forgery in violation of W.S. 6-3-602 ;
      7. Influencing, intimidating or impeding jurors, witnesses and officers, or obstructing or impeding justice in violation of W.S. 6-5-305 ;
      8. Possession of a firearm by a person convicted of certain felony offenses in violation of W.S. 6-8-102 ;
      9. Wearing or carrying concealed weapons in violation of W.S. 6-8-104 ;
      10. Possession, manufacture or disposition of a deadly weapon with unlawful intent in violation of W.S. 6-8-103 ;
      11. Blackmail in violation of W.S. 6-2-402 ;
      12. Possession, manufacture, transportation and sale of any explosive, improvised explosive device or incendiary apparatus with unlawful intent in violation of W.S. 6-3-111 ;
      13. Sports bribery in violation of W.S. 6-3-609 ;
      14. Cruelty to animals in violation of W.S. 6-3-1002 (a)(v) through (ix);
      15. The unlawful sale or possession with intent to manufacture, distribute or dispense a controlled substance in violation of W.S. 35-7-1031 ;
      16. Simple assault in violation of W.S. 6-2-501(a) and domestic assault in violation of W.S. 6-2-510 ;
      17. Battery in violation of W.S. 6-2-501(b) and domestic battery in violation of W.S. 6-2-511 .
    16. “Courtroom” means a room in which a judge is presiding over a court of law;
    17. “Female genital mutilation” includes the partial or total removal of the clitoris, prepuce, labia minora, with or without excision of the labia majora, the narrowing of the vaginal opening such as through the creation of a covering seal formed by cutting and repositioning the inner or outer labia, with or without removal of the clitoris, any harmful procedure to the genitalia, including pricking, piercing, incising, scraping or cauterizing or any other actions intended to alter the structure or function of the female genitalia for nonmedical reasons. “Female genital mutilation” does not include a procedure performed by a licensed health care provider that is medically necessary due to a medically recognized condition or medically advisable or necessary to preserve or protect the physical health of the person on whom it is performed;
    18. “Unborn child” means a member of the species homo sapiens, at any state of development, who is carried in a womb;
    19. “This act” means title 6 of the Wyoming statutes.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1985, ch. 43, § 1; ch. 215, § 2; 1994, ch. 47, § 1; 1996, ch. 68, § 1; 1999, ch. 96, § 1; 2000, ch. 61, § 1; ch. 86, § 1; 2001, ch. 45, § 1; ch. 49, § 1; ch. 133, § 1; ch. 177, §§ 1, 2; 2003, ch. 53, § 2; ch. 118, § 1; 2004, ch. 6, § 1; 2006, ch. 114, § 1; 2007, ch. 159, § 2; 2009, ch. 10, § 1; ch. 64, § 1; 2010, ch. 42, § 2; ch. 69, § 207; ch. 73, § 1; 2013, ch. 160, § 1; 2014, ch. 12, § 1; ch. 13, § 2; 2018, ch. 88, § 1; 2020, ch. 90, §§ 1, 3; ch. 105, § 2; ch. 114, § 2; ch. 121, § 1; 2021, ch. 30, § 2; ch. 116, § 1.

Cross references. —

As to the Wyoming livestock board, see § 11-18-101 .

As to sanction levels when a child is adjudicated as delinquent, see § 14-6-246 .

As to the state highway patrol, see § 24-12-101 .

As to state fire marshal, see § 35-9-104 .

The 2004 amendment added (a)(vi)(P).

Laws 2004, ch. 6, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 1, 2004.

The 2006 amendment made a stylistic change in (a)(vi).

The 2007 amendment, effective July 1, 2007, inserted “sexual abuse of a minor” in (a).

The 2009 amendments. —

The first 2009 amendment, by ch. 10, § 1, in (a)(vi)(P), inserted “state recreation area, state archeological site” twice, and inserted “state” preceding “historic site” twice.

Laws 2009, ch. 10, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, § 8, of the Wyo. Const. Approved February 24, 2009.

The second 2009 amendment, by ch. 64, § 1, effective July 1, 2009, deleted “while supervising a detainee who has been convicted as a felon” from the end of (a)(vi)(J), and made a related change.

The 2010 amendments. —

The first 2010 amendment, by ch. 42, § 2, effective July 1, 2010, added (a)(xiv) and (a)(xv).

The second 2010 amendment, by ch. 69, § 207, effective July 1, 2010, in the introductory language of (a), substituted “this act” for “W.S. 6-1-101 through 6-10-203 ”; and added (a)(xvi).

The third 2010 amendment, by ch. 73, § 1, effective July 1, 2010, added (a)(vi)(Q), and made related changes.

No amendment gave effect to the others and this section is set out as reconciled by the legislative service office.

The 2013 amendments. —

The first 2013 amendment, by ch. 160, § 1, effective July 1, 2013, added (xvi), redesignating existing (a)(xvi) as (a)(xvii).

The second 2013 amendment, by ch. 191 § 2, effective July 1, 2013, substituted “Theft” for “Larceny” in (a)(xv)(D).

While neither amendment gave effect to the other, both have been given effect in the section as set out above.

The 2014 amendments. —

The first 2014 amendment, by ch. 12, § 1, effective July 1, 2014, effective July 1, 2014, in the introductory paragraph of (a)(i), deleted “physical pain, illness or any impairment of physical condition”; added (a)(i)(A) through (a)(i)(C); in the introductory paragraph of (x), deleted “creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment o the function of any bodily member or organ”; and added (a)(x)(A) through (a)(x)(F).

The second 2014 amendment, by ch. 13, § 2, effective July 1, 2014, in (a)(xv)(R), added “and domestic assault in violation of W.S. 6-2-510 ”; in (a)(xv)(S), added “and domestic battery in violation of W.S. 6-2-511 .”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2018 amendment, effective July 1, 2018, in (a)(xii), inserted “strangulation of a household member,” added “or a third, or subsequent, domestic battery under W.S. 6-2-511(a) and (b)(iii)” at the end, and made stylistic changes.

The 2020 amendments. — The first 2020 amendment, by ch. 90, §§ 1, 3, effective July 1, 2020, in (a)(vi)(F)(I) substituted “6-3-401, 6-3-402 , 6-3-410 ” for “6-3-401 through 6-3-403 , 6-3-407 , 6-3-410 ”; and repealed (a)(xv)(E), which read “Wrongful taking or disposing of property in violation of W.S. 6-3-403 .”

The second 2020 amendment, by ch. 105, § 2, effective July 1, 2020, added (a)(xvii); and redesignated former (a)(xvii) as (a)(xviii).

The third 2020 amendment, by ch. 114, § 2, added (a)(vi)(R) and made a related change.

Laws 2020, ch. 114, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 17, 2020.

The fourth 2020 amendment, by ch. 121, § 1, effective July 1, 2020, in (a)(vi)(C)(I) substituted “official duties” for “statutory duties”; and in (a)(vi)(C)(III) substituted “When performing their official duties or enforcing” for “When enforcing.”

While none of the amendments gave effect to the others, all have been given effect in this section as set out above.

The 2021 amendments. —

The first 2021 amendment, by ch. 30, § 1, effective July 1, 2021, in (a)(vi)(F)(I), deleted "6-3-203" following "6-3-201" and added "6-3-1002, 6-3-1003 , 6-3-1005 "; in (a)(xv)(P), deleted "Aggravated" at the beginning, substituted "6-3-1002(a)(v) through (ix)" for "6-3-203(c)" and made related changes.

The second 2021 amendment, by ch. 116, § 1, effective July 1, 2021, added (a)(xviii) and redesignated former (a)(xviii) as (a)(xix).

Editor's notes. —

There is no subparagraph (a)(vi)(I), (a)(vi)(L), (a)(xv)(I), or (a)(xv)(L) or subsection (b) in this section as it appears in the printed acts.

Applicability. —

Laws 1996, ch. 68, § 2, effective July 1, 1996, provides that the act applies to capitol police designated and appointed after July 1, 1996. The section further provides that the capitol police employed prior to July 1, 1996 may elect to contribute and receive service retirement benefits under the Wyoming state highway patrol, game and fish warden and criminal investigator retirement program in lieu of contribution under the Wyoming retirement system, provides for the transfer of contributions pursuant to this election, makes these electors subject to certain benefit provisions, provides for the determination by the actuary for the Wyoming retirement system of the financial and actuarial impact of participation in the Wyoming state highway patrol, game and fish warden and criminal investigator retirement program, and provides for payment for the actuary determination by the attorney general.

Conflicting legislation. —

Laws 2006, ch. 3, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

“Recklessly.” —

Evidence was insufficient to convict defendant of aggravated homicide by vehicle as the evidence did not show that she acted recklessly because she never admitted she was fatigued, let alone that she consciously disregarded any fatigue; she told a trooper that she did not think she fell asleep; there was direct evidence that she was not impaired; evidence that she failed to steer and brake both before and after striking the sedan, coupled with her lack of knowledge of what happened might support a reasonable inference she fell asleep, but it did not support the jury’s conclusion that she acted recklessly; and neither trooper testified that defendant ever suggested she was fatigued or not well-rested. Hightower v. State, 2020 WY 152, 477 P.3d 103, 2020 Wyo. LEXIS 177 (Wyo. 2020).

Intangible property.—

Available credit on credit cards was property subject to theft because the value of available credit on the credit cards was intangible property. Fox v. State, 2020 WY 88, 467 P.3d 140, 2020 Wyo. LEXIS 99 (Wyo. 2020).

Evidence sufficient.—

Evidence established that defendant’s wife experienced an impediment to the normal circulation of her blood causing bodily injury, and defendant’s strangulation conviction was affirmed; doctors testified that the wife had symptoms consistent with strangulation, including the petechiae and subconjunctival hemorrhages in both eyes, and while either symptom alone might not establish strangulation, the wife said defendant had choked her, and when she returned for more treatment two days later, she had severe bruising and pain in her neck. Gonzalez-Chavarria v. State, 2019 WY 100, 449 P.3d 1094, 2019 Wyo. LEXIS 102 (Wyo. 2019).

Deadly weapon.—

The State of Wyoming presented sufficient evidence to support defendant’s convictions for aggravated assault and battery by threatening to use a drawn deadly weapon because the victim testified that defendant threatened to use drawn deadly weapons (a beer bottle and a clay art piece) on the victim. Thompson v. State, 2018 WY 3, 408 P.3d 756, 2018 Wyo. LEXIS 3 (Wyo. 2018).

Evidence of serious bodily injury.—

The State of Wyoming presented sufficient evidence to support defendant’s convictions for aggravated assault and battery for causing serious bodily injury because defendant’s assault upon the victim resulted in the victim’s protracted hearing loss. Thompson v. State, 2018 WY 3, 408 P.3d 756, 2018 Wyo. LEXIS 3 (Wyo. 2018).

“Recklessly.” —

In order to demonstrate malicious intent for second-degree murder, the State must show a heightened form of recklessness as compared to that required for manslaughter because the State must show that the defendant acted recklessly under circumstances manifesting an extreme indifference to the value of human life; however, the trial court was not required to define “recklessly” to the jury as the formulation of the heightened standard of recklessness adequately distinguished second-degree murder from manslaughter; thus, the district court’s omission of a definition of “recklessly” or “recklessly under circumstances manifesting an extreme indifference to the value of human life” was not plainly erroneous. Schmuck v. State, 2017 WY 140, 406 P.3d 286, 2017 Wyo. LEXIS 146 (Wyo. 2017).

Violent felony.—

In sentencing for being felon in possession of a firearm, a Wyoming conviction for threatening to use a drawn deadly weapon qualified as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.1 because the Wyoming statute requires that a weapon be “drawn,” meaning in a position for use when the threat was made. United States v. Devries, 708 Fed. Appx. 956, 2017 U.S. App. LEXIS 18335 (10th Cir. 2017).

Vacant structure as “occupied.” —

A structure “in which a person may reasonably be expected to be present” is one that is intended to be occupied and would be perceived by any reasonable person to be an occupied structure, although unoccupied at the time. Barnes v. State, 858 P.2d 522, 1993 Wyo. LEXIS 134 (Wyo. 1993).

“Recklessly.” —

An instruction did not clearly and concisely inform the jury that “recklessly” was an element of involuntary manslaughter, in that it did not advise the jury that in order to find the defendant guilty of involuntary manslaughter, they had to find that he acted with “conscious disregard.” To act with “conscious disregard” implies intentional acts despite knowledge of the risk, while acting with “wanton disregard” (the language used in the instruction) implies acts done without conscious regard or heedlessly. Therefore, the instruction only created confusion in the minds of the jurors as to what actions constituted the crime in question. Vigil v. State, 859 P.2d 659, 1993 Wyo. LEXIS 148 (Wyo. 1993).

Recklessness, as defined for involuntary manslaughter, involves a gross deviation from reasonableness, not a lack of necessity to threaten deadly force; thus, the giving of instructions that threats with a drawn deadly weapon or pointing a firearm at another amounts to recklessness, unless reasonably necessary for self-defense, was reversible error. Olson v. State, 960 P.2d 1019, 1998 Wyo. LEXIS 111 (Wyo. 1998).

Evidence was sufficient to support jury's conclusion that defendant was acting recklessly at time of fatal accident, where he chose to drive his vehicle after being awake for twenty-four hours, smoking marijuana, and drinking beer and rum. Rogers v. State, 971 P.2d 599, 1999 Wyo. LEXIS 3 (Wyo. 1999).

Affirmative defense of self-defense was not available to defendant charged with vehicular homicide, since crime involved a reckless act, rather than an intentional act. Duran v. State, 990 P.2d 1005, 1999 Wyo. LEXIS 170 (Wyo. 1999), overruled, Haire v. State, 2017 WY 48, 393 P.3d 1304, 2017 Wyo. LEXIS 49 (Wyo. 2017).

Considering defendants' repeated failure to accept the remedial parenting advice and services of medical and educational professionals, and the evidence indicating their understanding of their children's needs, there was sufficient evidence to show that defendants acted recklessly through their conscious disregard of a substantial and unjustifiable risk of harm to their children. Gifford v. State, 2017 WY 93, 399 P.3d 1240, 2017 Wyo. LEXIS 92 (Wyo. 2017).

Violent felony. —

The inclusion of involuntary manslaughter in the definition of violent crimes and the exclusion of aggravated vehicular homicide is not an arbitrary and capricious classification in violation of equal protection. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985); Bell v. State, 693 P.2d 769, 1985 Wyo. LEXIS 425 (Wyo. 1985).

Indecent liberties is not a “violent felony” as that phrase is defined by Wyoming law. Cooley v. State, 885 P.2d 875, 1994 Wyo. LEXIS 159 (Wyo. 1994).

The initially imposed sentences following the defendant's conviction for child abuse were illegal as a matter of law given that the habitual criminal statute, § 6-10-201 , applies only to “violent felonies” and that the statutory definition of violent felonies does not include felony child abuse. Rodgriguez v. State, 917 P.2d 172, 1996 Wyo. LEXIS 74 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 88 (Wyo. June 11, 1996).

In a sexual assault case, defendant was properly sentenced to two consecutive life sentences where defendant subjected the victim to both vaginal and anal sexual penetration, as the acts constituted separate, forcible sexual intrusions on the victim. Daniel v. State, 2003 WY 132, 78 P.3d 205, 2003 Wyo. LEXIS 162 (Wyo. 2003), cert. denied, 540 U.S. 1205, 124 S. Ct. 1476, 158 L. Ed. 2d 127, 2004 U.S. LEXIS 1455 (U.S. 2004).

Aggravated robbery is “violent felony” within the meaning of habitual-criminal statute (§ 6-10-201 ). While the legislature, in subsection (a)(xii), has defined “violent felony” to include robbery, and while aggravated robbery is not listed separately, it does not logically follow that the legislature would conclude that robbery is a violent felony while aggravated robbery is not. Oakley v. State, 715 P.2d 1374, 1986 Wyo. LEXIS 512 (Wyo. 1986).

Aggravated battery. —

In an aggravated battery prosecution, the prosecutor's burden was not to show that the defendant knew that the bottle used in the battery would break, only that it could cause death or bodily injury by striking somebody in the back of the head. Arevalo v. State, 939 P.2d 228, 1997 Wyo. LEXIS 72 (Wyo. 1997).

Persons with “violent felony” convictions may not possess firearms. —

Government failed to prove that defendant possessed a rifle in violation of state law because Wyo. Stat. Ann. § 6-1-104(a)(xii) only prohibits persons with prior “violent felony” convictions from possessing firearms, and defendant's criminal history revealed no convictions for any “violent felonies” under Wyoming law. Therefore, the district court erred when it counted the possession of a rifle as relevant conduct under U.S. Sentencing Guidelines Manual § 1B1.3 and then enhanced defendant's base offense level by four levels pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(b)(1)(B) for possessing eight firearms. United States v. Campbell, 372 F.3d 1179, 2004 U.S. App. LEXIS 12069 (10th Cir. Wyo. 2004).

“Deadly weapon.” —

Where defendant was convicted of one count of aggravated assault and battery after he waved a flare gun around during an altercation at a bar, the evidence was sufficient to establish that the flare gun was capable of firing a missile using an explosive charge and was capable of causing death or serious bodily injury where the investigating officer testified that the flare gun was regularly used to scare elk and deer out of haystacks and where he explained that, to use the gun, one placed a bomb or ammunition into the barrel, placed a primer underneath the hammer, and then cocked the hammer and that, when fired, the gun shot the projectile approximately 50 to 60 yards before it explodes like a very large firecracker. Further, the officer stated that, if the projectile were to hit a person, it would absolutely cause severe injury and possibly death; this testimony aptly demonstrates that the flare gun was capable of firing a missile using an explosive charge and was capable of causing death or serious bodily injury. Schaeffer v. State, 2012 WY 9, 268 P.3d 1045, 2012 Wyo. LEXIS 8 (Wyo. 2012).

Vehicle as deadly weapon. —

Defendant charged with aggravated assault and battery was not entitled to jury instruction on lesser-included offenses of simple assault and of battery, since a rational jury could conclude only that defendant was using his vehicle in a manner reasonably capable of producing death or serious bodily injury. Carey v. State, 984 P.2d 1098, 1999 Wyo. LEXIS 137 (Wyo. 1999).

“Deadly weapon” includes unloaded firearm. —

Definition of “deadly weapon” includes an unloaded firearm, and therefore assault with an unloaded gun was properly elevated to offense of aggravated assault. Dike v. State, 990 P.2d 1012, 1999 Wyo. LEXIS 176 (Wyo. 1999), cert. denied, 529 U.S. 1078, 120 S. Ct. 1697, 146 L. Ed. 2d 502, 2000 U.S. LEXIS 2756 (U.S. 2000).

“Deadly weapon” instruction does not necessitate “serious bodily injury” instruction. —

In a prosecution for aggravated assault and battery, it was not error for the court to instruct the jury as to the definition of “deadly weapon,” without instructing the jury as to the definition of “serious bodily injury,” which term is part of the definition of “deadly weapon.” Wilson v. State, 14 P.3d 912, 2000 Wyo. LEXIS 234 (Wyo. 2000).

Evidence of serious bodily injury. —

Where assault charges arose from a taped interview with the victim who died before trial, because the victim's statement regarding her spinal injury and MRI results was not admissible under Wyo. R. Evid. 804(b)(6), proof of serious bodily injury was wanting as to count that defendant beat the victim with a stick across her back, causing multiple lacerations and bruising, and there was insufficient evidence that victim suffered a serious bodily injury despite victim's allegations that defendant beat the victim with a pistol belt full of 41-caliber shells causing multiple lacerations and bruising. Sarr v. State, 2003 WY 42, 65 P.3d 711, 2003 Wyo. LEXIS 52 (Wyo. 2003), aff'd, 2004 WY 20, 85 P.3d 439, 2004 Wyo. LEXIS 26 (Wyo. 2004).

Where the officer testified that after defendant kneed him in the groin, the officer went to the ground for 10 minutes while waiting for pain to subside, the officer suffered bodily injury as defined in this section, and defendant's conviction for felony interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b) was affirmed. Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003).

Victim impact statements presented in defendant's assault case concerned the victim's injuries and, therefore, were properly allowed because, in order to obtain a conviction for aggravated assault and battery, one of the elements the State was required to prove beyond a reasonable doubt was that defendant inflicted ‘serious bodily injury,’ and most of the testimony was relevant and admissible to prove that element of the crime charged. Given the weight of the evidence against defendant, no plain error resulted from the admission of the victim impact statements. Thomas v. State, 2006 WY 34, 131 P.3d 348, 2006 Wyo. LEXIS 37 (Wyo. 2006).

The district court was permitted to infer that the victim had been exposed to a risk of serious bodily injury within the meaning of Wyo. Stat. Ann. § 6-1-104(a)(x) where she was the victim of a restrained, forcible nonconsensual sexual act. Sami v. State, 2004 WY 23, 85 P.3d 1014, 2004 Wyo. LEXIS 29 (Wyo. 2004).

Evidence was sufficient to establish that the victim suffered serous bodily injury under Wyo. Stat. Ann. §§ 6-2-501(a)(1) and 6-1-104(a)(x) (2013) where the jury instruction only served to define one of the terms included in the elements, and there was extensive evidence showing that defendant caused the victim's broken jaw and resulting medical complications. Brown v. State, 2014 WY 104, 332 P.3d 1168, 2014 Wyo. LEXIS 121 (Wyo. 2014).

Definition of term used in definition of element. —

The decision to give or refuse an instruction on the statutory definition of a term used in defining an element of an offense is within the latitude afforded to the district court to tailor the instructions to the circumstances of the case. Wilson v. State, 14 P.3d 912, 2000 Wyo. LEXIS 234 (Wyo. 2000).

Evidence sufficient. —

Evidence sufficient to uphold conviction. DeWitt v. State, 917 P.2d 1144, 1996 Wyo. LEXIS 82 (Wyo. 1996).

Evidence that the victim had extensive petechiae around her neck and ears, complained of a headache to the emergency room nurse, and was diagnosed with asphyxiation, or oxygen deprivation by a doctor, was sufficient to establish that the victim experienced bodily injury as defined by this section, and as required to prove strangulation under Wyo. Stat. Ann. § 6-2-509 . Davis v. State, 2017 WY 147, 406 P.3d 1233, 2017 Wyo. LEXIS 153 (Wyo. 2017).

Applied in

Britt v. State, 734 P.2d 980, 1987 Wyo. LEXIS 416 (Wyo. 1987); Sandy v. State, 870 P.2d 352, 1994 Wyo. LEXIS 29 (Wyo. 1994); Rich v. State, 899 P.2d 1345, 1995 Wyo. LEXIS 132 (Wyo. 1995); Hodges v. State, 904 P.2d 334, 1995 Wyo. LEXIS 185 (Wyo. 1995); Sindelar v. State, 932 P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997); Mueller v. State, 2001 WY 134, 36 P.3d 1151, 2001 Wyo. LEXIS 160 (Wyo. 2001); Orona-Rangal v. State, 2002 WY 134, 53 P.3d 1080, 2002 Wyo. LEXIS 146 (Wyo. 2002).

Quoted in

Naugher v. State, 685 P.2d 37, 1984 Wyo. LEXIS 344 (Wyo. 1984); State v. Sodergren, 686 P.2d 521, 1984 Wyo. LEXIS 300 (Wyo. 1984); Hurst v. State, 698 P.2d 1130, 1985 Wyo. LEXIS 468 (Wyo. 1985); Gates v. Richardson, 719 P.2d 193, 1986 Wyo. LEXIS 549 (Wyo. 1986); Paugh v. State, 9 P.3d 973, 2000 Wyo. LEXIS 173 (Wyo. 2000); Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000); Lucero v. State, 14 P.3d 920, 2000 Wyo. LEXIS 233 (Wyo. 2000); O'Brien v. State, 2002 WY 63, 45 P.3d 225, 2002 Wyo. LEXIS 64 (Wyo. 2002); Van Haele v. State, 2004 WY 59, 90 P.3d 708, 2004 Wyo. LEXIS 72 (2004); Daniel v. State, 2008 WY 87, 189 P.3d 859, 2008 Wyo. LEXIS 90 (July 29, 2008); Fuller v. State, 2010 WY 55, 230 P.3d 309, 2010 Wyo. LEXIS 57 (Apr. 28, 2010); Haire v. State, 2017 WY 48, 393 P.3d 1304, 2017 Wyo. LEXIS 49 (Wyo. 2017).

Stated in

Keats v. State, 2003 WY 19, 64 P.3d 104, 2003 Wyo. LEXIS 21 (Wyo. 2003); Strickland v. State, 2004 WY 91, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (2004).

Cited in

Marker v. State, 748 P.2d 295, 1988 Wyo. LEXIS 2 (Wyo. 1988); Relish v. State, 860 P.2d 455, 1993 Wyo. LEXIS 152 (Wyo. 1993); Bird v. State, 901 P.2d 1123, 1995 Wyo. LEXIS 155 (Wyo. 1995); Mueller v. State, 2001 WY 134, 36 P.3d 1151, 2001 Wyo. LEXIS 160 (Wyo. 2001); Williams v. State, 2002 WY 136, 54 P.3d 248, 2002 Wyo. LEXIS 147 (Wyo. 2002); Young v. State, 2005 WY 136, 121 P.3d 145, 2005 Wyo. LEXIS 163 (2005); Flores v. State, 2017 WY 120, 403 P.3d 993, 2017 Wyo. LEXIS 126 (Wyo. 2017).

Law reviews. —

For article, “The State Attorney General and the Changing Face of Criminal Law,” see 19 Wyo. L.J. 1 (1964).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 ALR4th 1213.

Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying or using firearms, 37 ALR4th 1179.

Corporation's criminal liability for homicide, 45 ALR4th 1021.

Fact that gun was unloaded as affecting criminal responsibility, 68 ALR4th 507.

Stationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 8 ALR5th 775.

Recovery under state law for negligent infliction of emotional distress under rule of 29 A.L.R.3d 1316, or refinements thereof, 96 ALR5th 107.

Cigarette lighter as deadly or dangerous weapon, 22 A.L.R.6th 533.

What constitutes “violent felony” for purpose of sentence enhancement under Armed Career Criminal Act (18 USCS § 924(e)(1)), 119 ALR Fed 319.

Article 2. Liability

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

21 Am. Jur. 2d Criminal Law §§ 34 to 125, 186 to 215.

Modern status of test of criminal responsibility — state cases, 9 ALR4th 526.

Prosecution of female as principal for rape, 67 ALR4th 1127.

22 C.J.S. Criminal Law §§ 96 to 113, 127 to 148.

§ 6-1-201. Accessory before the fact.

  1. A person who knowingly aids or abets in the commission of a felony, or who counsels, encourages, hires, commands or procures a felony to be committed, is an accessory before the fact.
  2. An accessory before the fact:
    1. May be indicted, informed against, tried and convicted as if he were a principal;
    2. May be indicted, informed against, tried and convicted either before or after and whether or not the principal offender is indicted, informed against, tried or convicted; and
    3. Upon conviction, is subject to the same punishment and penalties as are prescribed by law for the punishment of the principal.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Constitutionality.

Wyoming's mandatory identical sentencing structure for accessory and principal actors in felony murder, which imposed a mandatory life sentence, did not violate the Eighth Amendment when applied to juveniles given federal judicial precedent that refrained from extending those protections to accomplices. Cloud v. State, 2014 WY 113, 334 P.3d 132, 2014 Wyo. LEXIS 130 (Wyo. 2014).

This section creates a separate and distinct offense from that of the principal. Linn v. State, 505 P.2d 1270, 1973 Wyo. LEXIS 139 (Wyo.), cert. denied, 411 U.S. 983, 93 S. Ct. 2277, 36 L. Ed. 2d 959, 1973 U.S. LEXIS 2437 (U.S. 1973). See also Goldsmith v. Cheney, 447 F.2d 624, 1971 U.S. App. LEXIS 8271 (10th Cir. Wyo. 1971).

Jurisdiction exists if felony occurs within this state. —

Former statutory language, “may be tried and convicted in the same manner as if he were a principal,” granted Wyoming jurisdiction if the felony occurred here regardless of where the accessorial acts took place. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

The decision in Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982), restricting the holding in Goldsmith v. Cheney, 468 P.2d 813, 1970 Wyo. LEXIS 164 (Wyo. 1970), overruled on other grounds, Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), did not violate the ex posto facto clause of the United States constitution. Hopkinson v. Shillinger, 645 F. Supp. 374, 1986 U.S. Dist. LEXIS 21918 (D. Wyo. 1986).

Or any accessorial acts. —

This state has jurisdiction over an accessory before the fact if any accessorial acts occurred in Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982). See also Goldsmith v. Cheney, 468 P.2d 813, 1970 Wyo. LEXIS 164 (Wyo. 1970).

Elements of aiding and abetting. —

To convict one of aiding and abetting the commission of a substantive offense, it is necessary to prove that the crime in question was committed by someone and that the person charged as an aider and abettor associated himself and participated in the accomplishment and success of the criminal venture. Goldsmith v. Cheney, 447 F.2d 624, 1971 U.S. App. LEXIS 8271 (10th Cir. Wyo. 1971); Hawkes v. State, 626 P.2d 1041, 1981 Wyo. LEXIS 325 (Wyo. 1981); Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982).

Test is whether participant could be charged with principal's offense. —

The test for determining whether the acts of a participant in a crime constitute those of an accomplice is whether or not the participant could also be charged with the identical offense as that committed by the principal. Wheeler v. State, 691 P.2d 599, 1984 Wyo. LEXIS 349 (Wyo. 1984).

Agreement or understanding not required. —

The terms aiding, abetting and counseling do not presuppose the existence of an agreement. Goldsmith v. Cheney, 447 F.2d 624, 1971 U.S. App. LEXIS 8271 (10th Cir. Wyo. 1971).

If two persons engaged in a crime are aiding or abetting each other in what they do, a previous understanding is not necessary to be shown in order to render each of them accountable for the other's acts. Espy v. State, 54 Wyo. 291, 92 P.2d 549, 1939 Wyo. LEXIS 18 (Wyo. 1939); Lujan v. State, 423 P.2d 388, 1967 Wyo. LEXIS 138 (Wyo. 1967).

A “concert of action” does not necessitate actual words or written compact. Borrego v. State, 423 P.2d 393, 1967 Wyo. LEXIS 139 (Wyo. 1967).

Accomplice and principal need not have identical intents. —

A defendant must share the criminal intent of the principal if he is to be found guilty as an aider and abettor, but the law does not require that the defendant possess the identical intent as the principal. Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

And may be charged and convicted of different degrees of offense. —

One who aids and abets in a homicide can be charged with and convicted of a greater or a lesser degree of offense than the principal, depending upon the mental set established at trial. Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

Criminal intent provable by relationship of parties and by joint conduct. —

Although a defendant's presence at the time and place of the crime does not establish guilt as an aider, abettor or principal, an intent to engage in the criminal venture may be shown by the relationship of the parties and by their conduct before and after the offense. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982).

Showing of defendants' association in acts comprising each element of offense sufficient. —

It is not necessary to prove that each defendant did that which was necessary to establish each element of an offense: it is sufficient to show that they were associated together in doing that which comprises each element of the offense. Edge v. State, 647 P.2d 557, 1982 Wyo. LEXIS 350 (Wyo. 1982).

Thief as accessory to receiving stolen property. —

A thief stealing property may, under a proper state of facts, be an accessory of the person charged with receiving that stolen property. State v. Callaway, 72 Wyo. 509, 267 P.2d 970, 1954 Wyo. LEXIS 8 (Wyo. 1954).

Homicide during commission of robbery by two or more persons. —

If two or more persons are jointly engaged in the perpetration of or an attempt to perpetrate a robbery, and a human being is killed during its commission by any one of the persons so jointly engaged, then each of the offenders are equally guilty of the homicide. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977).

Duties as lookout constitute one aider and abettor. —

Keeping watch while a crime is being perpetrated so as to facilitate the escape of a party actually committing it or to prevent the party from being interrupted is an aiding and abetting which constitutes a defendant/lookout a principal. Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982).

Arranging transaction constituted aiding and abetting of delivery. —

Although third party actually accomplished delivery of controlled substance when she gave bag of marijuana to undercover agent, defendant aided and abetted the delivery by taking the money from the agent and arranging the transaction. Simmons v. State, 687 P.2d 255, 1984 Wyo. LEXIS 345 (Wyo. 1984).

Purchaser of narcotics is not accomplice of defendant charged with selling such narcotics. Wheeler v. State, 691 P.2d 599, 1984 Wyo. LEXIS 349 (Wyo. 1984).

Counseling and encouraging sufficient to prove offense. —

Where victim testified that mother counseled and encouraged victim to have sexual relations with mother's boyfriend, evidence was clear that mother aided and abetted boyfriend in the commission of his crime. Kavanaugh v. State, 769 P.2d 908, 1989 Wyo. LEXIS 60 (Wyo. 1989).

Lesser-included offenses. —

The offense of aiding and abetting voluntary manslaughter is a lesser included offense of aiding and abetting first degree murder. Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

Offense of conspiracy not identical. —

The offense of conspiracy and of accessory before the fact are not identical in law or in fact. Goldsmith v. Cheney, 447 F.2d 624, 1971 U.S. App. LEXIS 8271 (10th Cir. Wyo. 1971).

Offense described in § 12-6-101 distinguished. —

The “minor in possession” offense described in subsection (b) of § 12-6-101 is not the same offense as “accessory before the fact” to larceny of whiskey under this section and § 6-3-402 , nor does it merge into or become an included offense. Mullin v. State, 505 P.2d 305, 1973 Wyo. LEXIS 134 (Wyo.), cert. denied, 414 U.S. 940, 94 S. Ct. 245, 38 L. Ed. 2d 166, 1973 U.S. LEXIS 1063 (U.S. 1973).

Misdemeanors. —

This section does not cover misdemeanors, and under common-law rule there are no accessories to misdemeanors. State v. Weekley, 40 Wyo. 162, 275 P. 122, 1929 Wyo. LEXIS 28 (Wyo. 1929).

Mental disorders, absent reduced capacity, no excuse. —

A showing that the defendant was suffering from bipolar affective disorder, schizoaffective disorder and other maladies was insufficient to excuse him from the crime of accessory to first-degree murder, where he did not show that, because of this mental condition, he lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law. Miller v. State, 755 P.2d 855, 1988 Wyo. LEXIS 56 (Wyo. 1988), cert. denied, 806 P.2d 1308, 1991 Wyo. LEXIS 35 (Wyo. 1991).

Information need not refer to this section. —

Proof of participation as an aider and abettor is sufficient to convict a defendant as a principal and it is not necessary for a conviction that the information upon which the defendant is charged refer to this section. Hawkes v. State, 626 P.2d 1041, 1981 Wyo. LEXIS 325 (Wyo. 1981).

Indictment adequately charged aiding and abetting. —

See 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).

Instructions. —

Where evidence justified inference that defendants, who were together, acted in pursuance of design, instruction that if deceased was assaulted by defendants in pursuance of design or understanding to kill or seriously injure deceased, each is responsible for acts of the other in carrying out such design, was not error. Espy v. State, 54 Wyo. 291, 92 P.2d 549, 1939 Wyo. LEXIS 18 (Wyo. 1939).

Instruction on aiding and abetting, that it is not possible for a defendant to ever participate in a mere attempt to commit a crime and to do so knowingly and willfully with a specific intent, has no merit. Martinez v. State, 511 P.2d 105, 1973 Wyo. LEXIS 167 (Wyo. 1973).

Evidence sufficient for conviction. —

Sufficient evidence supported defendant's conviction for accessory before the fact to burglary of junior high school. See Fales v. State, 908 P.2d 404, 1995 Wyo. LEXIS 214 (Wyo. 1995).

Death penalty for accessory to murder. —

The moral guilt and personal responsibility of one who commands another to commit murder, and is therefore an accessory before the fact, justifies the death penalty. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Conditional guilty plea not permissible, although admissible in trial of aider and abettor. —

A plea of guilty to possession with intent to deliver a controlled substance, with the express reservation of the right to appeal the constitutional issues arising from the search of the defendant's premises, was not permissible. Because of this, the case was reversed and remanded to the district court for the taking of a proper plea. However, since the parties intended the defendant's stipulation to be a waiver of the necessity for the prosecution, in the trial of another charged with aiding and abetting, to establish the elements of the substantive offense, or to be an admission of the violation and to be so considered as part of the evidence, the conditional guilty plea did not alter the status or aspect of what occurred at the trial of the aider and abettor, where, although no evidence, other than the guilty plea, was introduced as to a link between the substance seized and the defendant's intent, the aider and abettor was properly convicted. Tompkins v. State, 705 P.2d 836, 1985 Wyo. LEXIS 538 (Wyo. 1985), cert. denied, 475 U.S. 1052, 106 S. Ct. 1277, 89 L. Ed. 2d 585, 1986 U.S. LEXIS 659 (U.S. 1986).

Applied in

Fullmer v. Meacham, 387 P.2d 1007, 1964 Wyo. LEXIS 71 (Wyo. 1964); Linn v. State, 505 P.2d 1270, 1973 Wyo. LEXIS 139 (Wyo. 1973); Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976); Jacobs v. State, 641 P.2d 197, 1982 Wyo. LEXIS 305 (Wyo. 1982); Eaton v. State, 660 P.2d 803, 1983 Wyo. LEXIS 294 (Wyo. 1983); Black v. State, 2002 WY 72, 46 P.3d 298, 2002 Wyo. LEXIS 77 (Wyo. 2002).

Quoted in

Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983); Smith v. State, 880 P.2d 573, 1994 Wyo. LEXIS 91 (Wyo. 1994); Paugh v. State, 9 P.3d 973, 2000 Wyo. LEXIS 173 (Wyo. 2000)Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Jan. 14, 2008).

Stated in

State v. Vines, 49 Wyo. 212, 54 P.2d 826, 1936 Wyo. LEXIS 46 (1936); Lozano v. State, 751 P.2d 1326, 1988 Wyo. LEXIS 36 (Wyo. 1988).

Cited in

CSC v. State, 2005 WY 106, 118 P.3d 970, 2005 Wyo. LEXIS 130 (Aug 30, 2005)Berry v. State, 51 Wyo. 249, 65 P.2d 1097, 1937 Wyo. LEXIS 17 (1937); Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974); Evans v. State, 653 P.2d 308, 1982 Wyo. LEXIS 399 (Wyo. 1982); Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986); Reynoldson v. State, 737 P.2d 1331, 1987 Wyo. LEXIS 456 (Wyo. 1987); Birr v. State, 744 P.2d 1117, 1987 Wyo. LEXIS 528 (Wyo. 1987); Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987); Duffy v. State, 837 P.2d 1047, 1992 Wyo. LEXIS 100 (Wyo. 1992); Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995); Vlahos v. State, 2003 WY 103, 75 P.3d 628, 2003 Wyo. LEXIS 124 (Wyo. 2003); Cureton v. State, 2007 WY 168, 169 P.3d 549, 2007 Wyo. LEXIS 180 (Oct. 24, 2007); Patterson v. State, 2013 WY 153, 314 P.3d 759, 2013 Wyo. LEXIS 159 , 2013 WL 6665023 (Dec 18, 2013).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Constitutional Law—Double Jeopardy—A Constitutional Protection or a Formality to Sidestep in Successive Prosecutions? Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 661 (1993).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Accessory before fact in manslaughter, 95 ALR2d 175.

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 ALR4th 972.

Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 ALR4th 702.

Sufficiency of evidence of instigating or assisting escape from federal custody, under 18 USCS § 752(a), 74 ALR Fed 816.

§ 6-1-202. Being under the influence not a defense; effect upon intent; “self-induced.”

  1. Self-induced intoxication of the defendant is not a defense to a criminal charge except to the extent that in any prosecution evidence of self-induced intoxication of the defendant may be offered when it is relevant to negate the existence of a specific intent which is an element of the crime.
  2. Intoxication is self-induced if it is caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he knowingly and voluntarily introduced or allowed to be introduced into his body unless they were introduced pursuant to medical advice. The fact that the defendant is dependent upon the intoxicating substance is not relevant in determining whether his intoxication is self-induced.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

To claim insanity on account of drunkenness is equivalent to claiming absence of intent on account of drunkenness. Rice v. State, 500 P.2d 675, 1972 Wyo. LEXIS 295 (Wyo. 1972).

Voluntary intoxication not negating specific intent. —

Evidence was sufficient to support the jury's findings that there was a conspiracy to commit aggravated assault and battery and that defendant acted with specific intent; although the plan to beat up a third person may have been crude and ill-conceived and entered into only after a long drinking bout, there was evidence that the “plan” to beat up a business owner using an axe handle rose to the level of a conspiracy, and that defendant acted with specific intent to further the plan. Hankinson v. State, 2002 WY 86, 47 P.3d 623, 2002 Wyo. LEXIS 91 (Wyo. 2002).

District court properly convicted defendant of first-degree arson because, while he claimed that his intoxication excused his actions, he intentionally set fire in a store while it was occupied by customers and employees, he admitted to police that he started the fire because he was angry about the store's customer service, he had to make decisions and take actions that required some presence of mind, witnesses who spoke to him stated that he spoke clearly before and after he started the fire, he told his mother to say he was drunk when he started the fire, and the State presented evidence that he was not intoxicated to a level that prevented him from knowing what he was doing. Harnden v. State, 2016 WY 92, 378 P.3d 611, 2016 Wyo. LEXIS 101 (Wyo. 2016).

Voluntary intoxication negating specific intent. —

Intoxication is no excuse for crime, but should be considered as affecting defendant's mental condition, with reference to his capability of a specific intent. Cook v. Territory, 3 Wyo. 110, 4 P. 887, 1884 Wyo. LEXIS 4 (Wyo. 1884).

Where specific intent is a necessary element of the crime in question, the defendant is entitled to instructions that evidence of voluntary intoxication may be considered for the purpose of negativing the state of mind necessary to commit a specific intent crime. Brown v. State, 590 P.2d 1312, 1979 Wyo. LEXIS 364 (Wyo. 1979).

But voluntary intoxication no defense to general intent crime.—

Voluntary intoxication is not a defense to a crime requiring only a general intent. Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

During defendant's trial for felony interference with a peace officer, in violation of Wyo. Stat. Ann. § 6-5-204(b), the court did not err in refusing to instruct the jury on a self-induced intoxication defense because the completed offense described in § 6-5-204(b) was a general intent crime and thus the self-induced intoxication defense was not available. Mowery v. State, 2011 WY 38, 247 P.3d 866, 2011 Wyo. LEXIS 42 (Wyo. 2011).

Thus in first-degree murder, voluntary intoxication is defense as its effects bear upon the ability of the accused to formulate the premeditated malice requisite to the commission of the crime. Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Unless evidence of preexisting premeditation. —

Where at the time of the homicide accused was so drunk as to be incapable of forming a deliberate intent, murder in the first degree would not be proven without evidence of his having premeditated the crime prior to his becoming intoxicated. Gustavenson v. State, 10 Wyo. 300, 68 P. 1006, 1902 Wyo. LEXIS 13 (Wyo. 1902).

But voluntary intoxication no defense to second degree murder.—

Voluntary intoxication, though producing temporary insanity, is no defense to a charge of murder in the second degree. Gustavenson v. State, 10 Wyo. 300, 68 P. 1006, 1902 Wyo. LEXIS 13 (Wyo. 1902).

Nor to assault with dangerous weapon. —

Since the crime of assault with a dangerous weapon, defined in § 6-2-502(a), is a general intent crime, voluntary intoxication is not a defense to such crime. Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982); Simmons v. State, 674 P.2d 1294, 1984 Wyo. LEXIS 248 (Wyo. 1984).

The question of the effect of defendant's intoxication upon his ability to form a specific intent was properly submitted to the jury where record included evidence both of intoxication and of sufficient presence of mind. Westwood v. State, 693 P.2d 763, 1985 Wyo. LEXIS 426 (Wyo. 1985).

Nor to former offense of drawing dangerous weapon. —

Voluntary intoxication was not a defense to the offense of drawing a dangerous weapon, since that offense was a general intent crime. Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

Voluntaryintoxication no defense to indecent liberties with a minor. —

Self-induced intoxication is not a defense to the charge of taking immodest, immoral, or indecent liberties with a minor. Montez v. State, 2009 WY 17, 201 P.3d 434, 2009 Wyo. LEXIS 17 (Wyo. 2009).

Jury question. —

If a defendant is to stand on a claim that he, because of drunkenness, could not have intended the consequences of his acts, that fact would first have to be proven to the jury as provided for in this section. Rice v. State, 500 P.2d 675, 1972 Wyo. LEXIS 295 (Wyo. 1972); Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Lay witness testimony regarding defendant's intoxication. —

In a case where defendant asserted a defense of self-induced intoxication under this section to the offense of unlawful possession with intent to deliver, the testimony of two bartenders, including their observations of defendant and specifically that he was not too intoxicated to be served alcohol, was helpful to the fact-finder's determination of whether defendant had the requisite intent to commit the crime; thus, the trial court did not err in admitting their testimony. Mickelson v. State, 2012 WY 137, 287 P.3d 750, 2012 Wyo. LEXIS 142 (Wyo. 2012).

Evidence of drinking prior to crime's commission insufficientto justify intoxication instruction. —

Evidence that the defendant may have been drinking prior to the commission of an aggravated robbery, but not showing how much he drank, what period of time was involved, or what effect, if any, the drinking had on him, was insufficient to justify the giving of an instruction advising the jury of the effect of intoxication upon the element of specific intent. Naugher v. State, 685 P.2d 37, 1984 Wyo. LEXIS 344 (Wyo. 1984).

Finding of premeditated malice factually supported. —

Although intoxication may operate as a defense to first-degree murder to the extent that it negates a finding of premeditated malice, where the defendant, at his arraignment, made the statement that he “went drinking and went to kill both of us,” and clearly stated that he intended to kill his ex-wife if she did not agree to resume their relationship, the court's finding that the defendant attempted, with premeditated malice, to kill his former wife was supported by a factual basis. Barron v. State, 819 P.2d 412, 1991 Wyo. LEXIS 161 (Wyo. 1991).

Failure to instruct on self-induced intoxication. —

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, the trial court erred in refusing to give his proposed instruction on self-induced intoxication, since there was competent evidence to support the instruction. Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

Applied in

Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977); Armijo v. State, 678 P.2d 864, 1984 Wyo. LEXIS 268 (Wyo. 1984); Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984); Matlack v. State, 695 P.2d 635, 1985 Wyo. LEXIS 448 (Wyo. 1985); Eatherton v. State, 761 P.2d 91, 1988 Wyo. LEXIS 116 (Wyo. 1988).

Quoted in

Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978); Poitra v. State, 2012 WY 58, 275 P.3d 478, 2012 Wyo. LEXIS 61 (Apr. 12, 2012).

Stated in

Dryden v. State, 535 P.2d 483, 1975 Wyo. LEXIS 141 (Wyo. 1975).

Cited in

Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981); McGinn v. State, 928 P.2d 1157, 1996 Wyo. LEXIS 166 (Wyo. 1996).

Law reviews. —

For comment, “Drugs and Alcohol — Their Effect on Criminal Intent and Responsibility,” see V Land & Water L. Rev. 201 (1970).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Coercion, compulsion or duress as defense to criminal prosecution, 40 ALR2d 903.

Voluntary intoxication as defense to criminal charge, 8 ALR3d 1236.

Adequacy of defense counsel's representation of criminal client — conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 ALR5th 197.

Adequacy of defense counsel's representation of criminal client — pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 ALR5th 419.

§ 6-1-203. Battered woman syndrome.

  1. The “battered woman syndrome” is defined as a subset under the diagnosis of Post-Traumatic Stress Disorder established in the Diagnostic and Statistical Manual of Mental Disorders III — Revised of the American Psychiatric Association.
  2. If a person is charged with a crime involving the use of force against another, and the person raises the affirmative defense of self-defense, the person may introduce expert testimony that the person suffered from the syndrome, to establish the necessary requisite belief of an imminent danger of death or great bodily harm as an element of the affirmative defense, to justify the person’s use of force.

History. Laws 1993, ch. 66, § 1.

Applicability. —

Laws 1993, ch. 66, § 2, provides: “This act shall apply to all actions pending on or after the effective date of this act.”

Laws 1993, ch. 66, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 1993.

Section does not create separate defense; it permits the introduction of expert testimony on the battered woman syndrome when the affirmative defense of self-defense is raised. Witt v. State, 892 P.2d 132, 1995 Wyo. LEXIS 49 (Wyo. 1995).

Applicability of defense. —

Trial court did not err in refusing to admit expert testimony concerning battered woman syndrome, since self-defense was not an appropriate defense in case involving vehicular homicide by reckless conduct. Duran v. State, 990 P.2d 1005, 1999 Wyo. LEXIS 170 (Wyo. 1999), overruled, Haire v. State, 2017 WY 48, 393 P.3d 1304, 2017 Wyo. LEXIS 49 (Wyo. 2017).

Testimony on state of mind not permitted. —

The plain language of this section does not permit expert testimony on the ultimate issue of the accused's state of mind at the time the crime was committed. Witt v. State, 892 P.2d 132, 1995 Wyo. LEXIS 49 (Wyo. 1995).

Quoted in

Campbell v. State, 999 P.2d 649, 2000 Wyo. LEXIS 55 (Wyo. 2000); Benjamin v. State, 2011 WY 147, — P.3d —, 2011 Wyo. LEXIS 152 (Oct. 25, 2011).

Stated in

Trujillo v. State, 953 P.2d 1182, 1998 Wyo. LEXIS 14 (Wyo. 1998).

Cited in

Chapman v. State, 2001 WY 25, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001); James v. State, 2015 WY 83, 2015 Wyo. LEXIS 95 (June 11, 2015).

Law reviews. —

For case note, “Criminal Law — Wyoming's Battered Woman Syndrome Statute — How Far Can an Expert go to Support a Battered Woman's Self-Defense Claim? Witt v. State, 892 P.2d 132, 1995 Wyo. LEXIS 49 (Wyo. 1995),” see XXXI Land & Water 249 (1996).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For note, “Criminal Law/Self-Defense — Should a Defendant be Denied the Affirmative Defense of Self Defense if the Criminal Act was not Intentional? Self Defense or Defense for Self? Duran v. State, 990 P.2d 1005, 1999 Wyo. LEXIS 170 (Wyo. 1999),” see 1 Wyo. L. Rev. 695 (2001).

Am. Jur. 2d, ALR and C.J.S. references. —

Ineffective assistance of counsel: Battered spouse syndrome as defense to homicide or other criminal offense, 11 ALR5th 871.

Admissibility of evidence of battered child syndrome on issue of self-defense, 22 ALR5th 787.

Admissibility of expert or opinion evidence of battered woman syndrome on issue of self-defense, 58 ALR5th 749.

Parents' criminal liability for failure to provide medical attention to their children,118 ALR 5th 253.

§ 6-1-204. Immunity from civil action for justifiable use of force; attorney fees.

  1. Except as provided by W.S. 6-1-103(a), a person who uses reasonable defensive force pursuant to W.S. 6-2-602 is immune from civil action for the use of the force.
  2. In a civil action filed against a person related to the person’s use of defensive force, the person may file a motion with the court asserting that the person used reasonable defensive force under W.S. 6-2-602 . Upon the filing of the motion the court shall hold a hearing prior to trial and shall grant the person’s motion if he proves by a preponderance of the evidence that he used reasonable defensive force under W.S. 6-2-602 .
  3. A court shall award reasonable attorney fees, court costs, compensation for any loss of income and all other expenses incurred by a person in defense of any civil action arising from the person’s use of reasonable defensive force pursuant to W.S. 6-2-602 if the court finds that the defendant is immune from civil action under subsection (a) of this section.

History. Laws 2008, ch. 109, § 1; 2018, ch. 135, § 1.

The 2018 amendment, effective July 1, 2018, in (a), substituted “uses reasonable defensive force pursuant to W.S. 6-2-602 is” for “uses force as reasonably necessary in defense of his person, property or abode or to prevent injury to another is”; and added (b) and (c).

Effective dates. —

Laws 2008, ch. 109, § 3, makes the act effective July 1, 2008.

§ 6-1-205. Limitations on criminal liability for digital expression.

  1. A digital expression that does not otherwise constitute a crime or subject the person responsible for creating the digital expression to criminal liability under the Wyoming Criminal Code shall not serve as the sole basis for any criminal liability based on the use of that digital expression by another person.
  2. Hosting or storing a digital expression on a computer, computer network or computer system in Wyoming in a manner that does not otherwise constitute a crime or subject the person hosting or storing the digital expression to criminal liability under the Wyoming Criminal Code shall not serve as the sole basis for any criminal liability based on the use of that digital expression by another person.
  3. Nothing in this section shall be construed to limit or prohibit liability for criminal activity merely because the conduct was in part initiated or carried out by means of a digital expression.
  4. As used in this section:
    1. “Digital expression” means an expression that is communicated through source code or a computer program;
    2. “Computer” means as defined in W.S. 6-3-501(a)(ii);
    3. “Computer network” means as defined in W.S. 6-3-501(a)(iii);
    4. “Computer program” means as defined in W.S. 6-3-501(a)(iv);
    5. “Computer software” mean as defined by W.S. 6-3-501(a)(v);
    6. “Computer system” means as defined in W.S. 6-3-501(a)(vi);
    7. “Source code” means any form of work used to create or modify a computer program. “Source code” includes:
      1. Instructions and statements expressed in a computer programming language;
      2. Computer programming comments, notes and memoranda;
      3. Design documents and functional specifications for a computer program.

History. Laws 2020, ch. 16, § 1.

Effective date. — Laws 2020, ch. 16, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. March 9, 2020.

Article 3. Inchoate Offenses

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For case notes, “Constitutional Law—Double Jeopardy—A Constitutional Protection or a Formality to Sidestep in Successive Prosecutions? Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 661 (1993).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

21 Am. Jur. 2d Criminal Law §§ 174 to 185.

22 C.J.S. Criminal Law §§ 114 to 126.

§ 6-1-301. Attempt; renunciation of criminal intention.

  1. A person is guilty of an attempt to commit a crime if:
    1. With the intent to commit the crime, he does any act which is a substantial step towards commission of the crime. A “substantial step” is conduct which is strongly corroborative of the firmness of the person’s intention to complete the commission of the crime; or
    2. He intentionally engages in conduct which would constitute the crime had the attendant circumstances been as the person believes them to be.
  2. A person is not liable under this section if, under circumstances manifesting a voluntary and complete renunciation of his criminal intention, he avoided the commission of the crime attempted by abandoning his criminal effort. Within the meaning of this subsection, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the person’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal intention. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Constitutionality.

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because defendant failed to demonstrate that the statutes for aggravated assault and battery and for attempted second-degree murder were unconstitutionally vague, either on their face or as applied to the facts of defendant's case. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

No double jeopardy violation. —

Defendant's convictions for aggravated assault and battery with a deadly weapon and attempted second degree murder—which were both premised upon defendant driving a vehicle through a yard and almost striking the victim—did not violate the prohibition against double jeopardy in that malice, an element of attempted second degree murder, did not necessarily include proof of the use of a deadly weapon, an element of aggravated assault and battery with a deadly weapon. Webb v. State, 2017 WY 108, 401 P.3d 914, 2017 Wyo. LEXIS 114 (Wyo. 2017).

Intent to Kill. —

Defendant set a fire with an accelerant in the middle of the night directly outside of the victim's motel room, from which she had no clear means of escape. That combined with evidence that defendant was angry at the victim and left town immediately after starting the fire was sufficient for a reasonable jury to conclude that defendant intended to kill the victim. Pearson v. State, 2017 WY 19, 389 P.3d 794, 2017 Wyo. LEXIS 19 (Wyo. 2017).

No mistrial required.—

Denial of mistrial was proper; although officer’s use of the word “meth” violated the order in limine, a curative instruction was given and there was no reasonable possibility the verdict would have been more favorable to defendant had “meth” not been mentioned, as the jury carefully analyzed the evidence and convicted defendant of attempted aggravated robbery based on evidence that he pointed a gun at the victim and demanded his keys. Langley v. State, 2020 WY 135, 474 P.3d 1130, 2020 Wyo. LEXIS 158 (Wyo. 2020).

Consecutive sentences for attempted voluntary manslaughter. —

In a case in which defendant pleaded guilty to two counts of attempted voluntary manslaughter pursuant to a plea agreement, the district court did not err in sentencing defendant to two consecutive counts of 17 to 20 years of incarceration; while defendant's lack of prior criminal history, reports of his good character, alcohol dependence and abuse at the time of the crimes, and history of mental health issues were valid considerations in determining the reasonableness and proportionality of an appropriate sentence, so, too, were the aggravating factors presented by the prosecutor and the seriousness of defendant's conduct. Noel v. State, 2013 Wyo. LEXIS 170 (Wyo. Feb. 25, 2013).

Evidence sufficient to sustain conviction.—

District court did not err when it denied defendant’s motion for acquittal on attempted second-degree murder, where police officers testified that as soon as defendant heard the window break, there began a rapid succession of gunshots, and it sounded as if the defendant was rapidly moving in the officers’ direction firing. Pickering v. State, 2020 WY 66, 464 P.3d 236, 2020 Wyo. LEXIS 74 (Wyo. 2020).

Specific attempt statute not repealed. —

Enactment of general attempt statute did not effect repeal of former specific statute relating to attempted sexual assault, and the specific statute constituted an exception to the general statute. Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984).

Not logically impossible for person to attempt a general intent crime. —

In trying defendant, who had robbed victim, tried to kill her, and left her for dead, the court held that it was not legally or logically impossible for a person to attempt a general intent crime; thus, the elements of an attempt and second-degree murder were not mutually exclusive. Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002).

Actual victim not required for attempted sexual exploitation and solicitation crimes. —

Where defendant engaged in conversation with an undercover detective in an internet chatroom and agreed to meet the person in an agreed-upon location for sexual activity, convictions for attempted sexual exploitation of a child and attempted solicitation to engage in illicit sexual relations in violation of Wyo. Stat. Ann. §§ 6-4-303(b)(ii) and 14-3-104 (repealed) were upheld; the State was not required to produce an actual child victim for crimes of attempt. Adams v. State, 2005 WY 94, 117 P.3d 1210, 2005 Wyo. LEXIS 117 (Wyo. 2005).

Defendant's attempt to commit second-degree murder was complete when he stabbed victim with the ice pick; that he stabbed her eight more times leaves little doubt but that he had attempted to kill her. If calling an ambulance saved her life, it also saved defendant from being convicted of the crime of murder and perhaps a more severe sentence, but, with respect to the attempt, that crime was complete, as he had passed beyond the point at which abandonment was legally possible. Accordingly, he was not entitled to an instruction on that defense. Ramirez v. State, 739 P.2d 1214, 1987 Wyo. LEXIS 470 (Wyo. 1987).

Elements of attempted sexual assault are different from sexual assault in first degree because of the requirement of a specific intent in the attempt statute. Sexual assault in the first degree is a general intent crime, and if the lesser offense has elements not included in the greater offense, no lesser included offense instruction is warranted. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Defendant, who attempted sexual intrusion without success, properly charged with attempted second-degree assault. —

Fourth-degree sexual assault (§ 6-2-305 (repealed)) may be committed in numerous ways without committing sexual intrusion, required by § 6-2-303(a) (second-degree sexual assault). Because there is no statute specifically making attempted sexual intrusion a crime, the general attempt statute applies, and the defendant, who attempted sexual intrusion without success, was properly charged with attempted second-degree sexual assault. Bueno-Hernandez v. State, 724 P.2d 1132, 1986 Wyo. LEXIS 612 (Wyo. 1986), cert. denied, 480 U.S. 907, 107 S. Ct. 1353, 94 L. Ed. 2d 523, 1987 U.S. LEXIS 1004 (U.S. 1987).

Legal impossibility is not a defense to attempt. —

Defendant did not show plain error under W.R.Cr.P. 52(b) based on prosecutorial misconduct where the prosecutor did not inform the trial court that two counts in the information did not constitute crimes. Although defendant did not, in fact, solicit a “minor” because an undercover agent was posing as the minor, defendant could have been prosecuted for attempted solicitation of a minor under Wyo. Stat. Ann. §§ 14-3-104 (repealed) and 6-1-301(a)(ii). Legal impossibility is not a defense to attempt. Rutti v. State, 2004 WY 133, 100 P.3d 394, 2004 Wyo. LEXIS 177 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 215 (Wyo. Dec. 14, 2004), cert. denied, 544 U.S. 1019, 125 S. Ct. 1990, 161 L. Ed. 2d 858, 2005 U.S. LEXIS 3781 (U.S. 2005).

Defendant properly charged with forgery and attempted forgery, not credit card fraud. —

See Alonso v. State, 712 P.2d 355, 1986 Wyo. LEXIS 446 (Wyo. 1986).

Admissibility of evidence. —

In a trial for defendant's attempt to kidnap his estranged fiancée, defendant was not entitled to present evidence of the victim's past sexual conduct at times that she was intoxicated. The trial court properly found the evidence was not relevant, despite defendant's argument that it showed his intent to protect, not harm, the victim; further, other evidence of the victim's self-endangering proclivities was before the jury. Silva v. State, 2012 WY 37, 271 P.3d 443, 2012 Wyo. LEXIS 38 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 63 (Wyo. Apr. 10, 2012).

Evidence sufficient to sustain conviction. —

The court did not abuse its discretion by denying the defendant's motion for a judgment of acquittal, where a jury could infer that the victim had not consented to a sexual intrusion, and that the defendant abandoned his attempt to commit first-degree sexual assault because the victim refused to open her mouth or because he heard the police entering the victim's apartment. Cardenas v. State, 811 P.2d 989, 1991 Wyo. LEXIS 94 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 107 (Wyo. June 14, 1991).

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).

Sufficient evidence supported an inmate's convictions for first-degree premeditated murder, first-degree felony murder, attempt to escape from official detention, and conspiracy to escape from official detention where evidence showed the inmate (1) participated in the concerted attack upon a penitentiary's shift command center and the murder of a prison guard, (2) exultantly cried thereafter that “we got one of them,” and (3) attempted, along with two other inmates, to scale the razor wire fencing surrounding the penitentiary. Moreover, appropriate inferences from all the evidence were that the inmate intended that an escape would occur and intended that the guard be killed during the attempted escape. 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).

Evidence was sufficient to sustain an attempted first-degree murder conviction where defendant accosted the victim, engaged him in a violent argument, challenged the victim to go outside and fight; once outside, defendant again brandished a gun and, while so armed, chased the victim back into the house and shot him through the mouth and jaw. Mattern v. State, 2007 WY 24, 151 P.3d 1116, 2007 Wyo. LEXIS 27 (Wyo.), cert. denied, 551 U.S. 1153, 127 S. Ct. 3021, 168 L. Ed. 2d 741, 2007 U.S. LEXIS 8451 (U.S. 2007).

Evidence was sufficient to convict defendant of attempted second degree murder where the fact of the stabbing, together with testimony from the victim and other witnesses regarding defendant's confrontational behavior made it reasonable to infer that defendant stabbed the victim and did so purposely and with malice. Guy v. State, 2008 WY 56, 184 P.3d 687, 2008 Wyo. LEXIS 59 (Wyo. 2008), reh'g denied, 2008 Wyo. LEXIS 78 (Wyo. June 19, 2008).

Evidence which included resisting arrest, having already injured one officer, being involved in a high speed car chase, giving false information, refusing to obey a second officer's instructions, trying to move his hand to retrieve a loaded and ready to fire handgun while involved in an altercation with the second officer and even after being told to stop, and later admitting that he was trying to kill the officer, was sufficient for a reasonable jury to find that defendant engaged in substantial conduct strongly corroborative of his intention to murder the second officer. Cohen v. State, 2008 WY 78, 191 P.3d 956, 2008 Wyo. LEXIS 83 (Wyo. 2008).

Evidence was sufficient to convict defendant of attempted sexual abuse of a minor in the second degree because he sent messages to the victim on a social media website that stated in extremely graphic detail about his desire to have sexual intercourse and oral sex with the victim; and he took a substantial step to complete the crime as the jury could reasonably infer that defendant was driving to the apartments where he and the victim agreed to meet to pick the victim up and inflict sexual intrusion upon her. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

Insufficient evidence. —

Defendant's conviction for attempted first degree murder in violation of this section was against the weight of the evidence which showed that he got a gun from his car during a confrontation with the victim, pointed it at the victim, and fired twice; additional evidence regarding the victim's prior involvement as the aggressor in a bar fight was relevant to defendant's self-defense claim. Therefore, defense counsel was ineffective for failing to timely file a motion for new trial, because the district court would have granted the motion in the interests of justice. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011).

Motion for judgment of acquittal. —

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).

Jury instructions. —

In a prosecution for attempted first-degree sexual assault, the trial court did not commit error in combining the elements of first-degree sexual assault and attempt into one jury instruction where the instruction left no doubt as to under what circumstances the crime could be found to have been committed. Compton v. State, 931 P.2d 936, 1997 Wyo. LEXIS 5 (Wyo. 1997).

In a prosecution for attempted first-degree sexual assault, the trial court's failure to instruct the jury on the statutory definition of “substantial step towards commission of the crime” was error, but not plain error, where the state's proof showed that the defendant attempted to force penetration on his sleeping victim. Compton v. State, 931 P.2d 936, 1997 Wyo. LEXIS 5 (Wyo. 1997).

In instructing the jury, the trial court did not err by combining the attempt elements with the second-degree sexual assault elements; the instruction clearly set out all of the elements that the jury needed to find in order to convict. Rigler v. State, 941 P.2d 734, 1997 Wyo. LEXIS 89 (Wyo. 1997).

Trial court did not commit plain error in instructing the jury on the elements of attempted first degree murder, where it adequately informed the jury of the elements of each crime and the circumstances that had to exist in order to find defendant guilty of those crimes. Gentilini v. State, 2010 WY 74, 231 P.3d 1280, 2010 Wyo. LEXIS 75 (Wyo. 2010).

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).

In a trial for attempted kidnapping by removal, defendant was not entitled to an instruction on the lesser-included misdemeanor offense of attempted false imprisonment because attempted false imprisonment is not a lesser-included offense to attempt to commit kidnapping where the purported criminal conduct involved only an attempted removal of the victim with the intent to inflict bodily injury on or to terrorize her. Silva v. State, 2012 WY 37, 271 P.3d 443, 2012 Wyo. LEXIS 38 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 63 (Wyo. Apr. 10, 2012).

Although the trial court erred in deriving the jury instruction defining attempt from Wyo. Stat. Ann. § 6-1-301 rather than Wyo. Stat. Ann. § 6-2-502(a)(i), it did not commit plain error where the instruction was not inconsistent with the ordinary meaning of attempt, and the instructions fairly and adequately covered the relevant issues and correctly stated the law. Cecil v. State, 2015 WY 158, 364 P.3d 1086, 2015 Wyo. LEXIS 174 (Wyo. 2015).

In a case in which defendant was charged with aggravated assault, defendant failed to establish that either plain error or an abuse of discretion occurred when the district court did not give an instruction defining attempt. Sam v. State, 2017 WY 98, 401 P.3d 834, 2017 Wyo. LEXIS 99 (Wyo. 2017), cert. denied, 138 S. Ct. 1988, 201 L. Ed. 2d 248, 2018 U.S. LEXIS 3049 (U.S. 2018).

Although the district court erred by failing to define substantial step for the jury and by including the concept of attempt in the elements of second-degree sexual abuse of a minor when instructing the jury, counsel was not ineffective in failing to object to the instructions as defendant was not prejudiced by the failure to object because the evidence against him was overwhelming as defendant’s statements over several weeks confirmed he had the specific intent to inflict sexual intrusion upon the victim and his actions were strongly corroborative of the firmness of his intention to complete the crime of second-degree sexual abuse of a minor. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

Whether or not the malice instruction given in defendant's case constituted plain error, defendant was not materially prejudiced by the malice instruction given in defendant's trial for attempted first degree murder because defendant could not show that defendant was materially prejudiced in that the evidence presented was more than sufficient to persuade a reasonable jury that defendant acted with the intent to kill, without legal justification or excuse, and in a manner indicating hatred, ill will, or hostility. Johnson v. State, 2015 WY 118, 356 P.3d 767, 2015 Wyo. LEXIS 133 (Wyo. 2015).

Specific intent instruction. —

Wyoming does not require that particular words be used to properly instruct on the specific intent element of the crime of attempt. Compton v. State, 931 P.2d 936, 1997 Wyo. LEXIS 5 (Wyo. 1997).

On plain error review, defendant was entitled to reversal of his conviction for attempted second degree murder because the trial court violated Wyo. R. Evid. 303(b) and the Fourteenth Amendment when it failed to instruct the jury that presumptions of malice and specific intent raised from the use of a deadly weapon were not mandatory presumptions. Hernandez v. State, 2007 WY 105, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).

In a case where defendant was charged with attempted second degree sexual abuse of a minor in Count III of the information, after being questioned by the jury regarding what act defendant was accused of attempting to commit in Count III, the district court did not err in providing a supplemental jury instruction consistent with the information that the act alleged in Count III was the attempted touching of the victim's vaginal area. Brown v. State, 2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2 (Wyo. 2015).

Sentence for both attempt, completed crime unconstitutional. —

Where the defendant was convicted and sentenced for both attempted sexual assault in the third degree and completed sexual assault in the third degree, entry of judgment on both charges was barred by double jeopardy. A person may not be convicted and sentenced for both the attempt and the completed crime. Craney v. State, 798 P.2d 1202, 1990 Wyo. LEXIS 121 (Wyo. 1990).

Renunciation and abandonment are not available as defenses after actor has injured victim. — SeeApodaca v. State, 796 P.2d 806, 1990 Wyo. LEXIS 96 (Wyo. 1990); Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

The existence of the victim's injuries consisting of a number of bruises and abrasions and a broken nose, together with defendant's admission that he hit her, was sufficient to negate defendant's renunciation defense. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Renunciation not available as defense where victim resists. —

Defendant did not completely and voluntarily renounce his criminal intentions in accordance with this section by shoving his victim out of his vehicle after the victim resisted defendant's attempts to sexually assault her. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Sentencing Ranges. —

In defendant's attempted second degree murder case, the court's error in failing to properly advise defendant pursuant to Wyo. R. Crim. P. 11 was not harmless because, had the court recited the minimum and maximum penalties at the change of plea hearing, the fact that the State could not recommend a maximum sentence of 20 years would have become obvious. Thus, the court's acceptance of a plea agreement which included an illegal sentence recommendation further undermined the validity of defendant's no contest pleas. Thomas v. State, 2007 WY 186, 170 P.3d 1254, 2007 Wyo. LEXIS 198 (Wyo. 2007).

No double jeopardy violation. —

Defendant's prosecution for attempted kidnapping, in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-2-201 , was not barred by the doctrine of double jeopardy due to defendant's earlier guilty plea to battery because battery, in violation of Wyo. Stat. Ann. § 6-2-501(b), was not a lesser-included offense of attempted kidnapping under the same-elements test. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because there was no double jeopardy violation in that aggravated assault and battery was not the same offense as attempted second-degree murder pursuant to the same-elements test. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

Jury Instructions. —

Defendant's conviction for attempted second-degree murder was proper because the jury instructions, as a whole, adequately informed the jury that it had to find that defendant acted purposely and maliciously; the instructions were not in clear and obvious violation of an established and unequivocal rule of law. Burnett v. State, 2011 WY 169, 267 P.3d 1083, 2011 Wyo. LEXIS 175 (Wyo. 2011).

Applied in

Shepard v. State, 720 P.2d 904, 1986 Wyo. LEXIS 571 (Wyo. 1986); Barron v. State, 819 P.2d 412, 1991 Wyo. LEXIS 161 (Wyo. 1991).

Quoted in

Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983); Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985); Jones v. State, 735 P.2d 699, 1987 Wyo. LEXIS 440 (Wyo. 1987); Horton v. State, 764 P.2d 674, 1988 Wyo. LEXIS 154 (Wyo. 1988); Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991); Bilderback v. State, 13 P.3d 249 2000 Wyo. LEXIS 218 (Wyo. 2000); Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003); Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003).

Stated in

Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982); Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985).

Cited in

Evans v. State, 653 P.2d 308, 1982 Wyo. LEXIS 399 (Wyo. 1982); State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); Stice v. State, 799 P.2d 1204, 1990 Wyo. LEXIS 127 (Wyo. 1990); Dichard v. State, 844 P.2d 484, 1992 Wyo. LEXIS 207 (Wyo. 1992); Hansen v. State, 904 P.2d 811, 1995 Wyo. LEXIS 194 (Wyo. 1995); McAdams v. State, 2003 WY 104, 75 P.3d 665, 2003 Wyo. LEXIS 125 (Wyo. 2003); Beck v. State, 2005 WY 56, 110 P.3d 898, 2005 Wyo. LEXIS 64 (2005); Thomas v. State, 2009 WY 92, 211 P.3d 509, 2009 Wyo. LEXIS 102 (July 15, 2009); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “CRIMINAL LAW — Wyoming Limits the Availability of Abandonment as a Defense to Criminal Attempt. Ramirez v. State, 739 P.2d 1214, 1987 Wyo. LEXIS 470 (Wyo. 1987),” see XXIV Land & Water L. Rev. 219 (1989).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and application of state statute governing impossibility of consummation as defense to prosecution for attempt to commit crime, 41 ALR4th 588.

Attempt to commit assault as criminal offense, 93 ALR5th 683.

§ 6-1-302. Solicitation to commit felony; renunciation of criminal intention.

  1. A person is guilty of solicitation to commit a felony if, with intent that a felony be committed, he commands, encourages or facilitates the commission of that crime under circumstances strongly corroborative of the intention that the crime be committed but the solicited crime is not attempted or committed.
  2. A person is not liable under this section if, after soliciting another person to commit a crime, he persuaded the other person not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a voluntary and complete renunciation of his criminal intention.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Stated in

Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985).

Cited in

State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and effect of statute making solicitation to commit crime a substantive offense, 51 ALR2d 953.

Solicitation to commit crime against more than one person or property, made in single conversation, as single or multiple crimes, 24 ALR4th 1324.

Sufficiency of evidence of instigating or assisting escape from federal custody, under 18 USC § 752(a), 74 ALR Fed 816.

§ 6-1-303. Conspiracy; renunciation of criminal intention; venue.

  1. A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a crime and one (1) or more of them does an overt act to effect the objective of the agreement.
  2. A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under circumstances manifesting voluntary and complete renunciation of his criminal intention.
  3. A conspiracy may be prosecuted in the county where the agreement was entered into, or in any county where any act evidencing the conspiracy or furthering the purpose took place.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Harmless error. —

Where defendant and three others were found by police in a vehicle that matched the description of a vehicle that was parked outside a building and defendant's co-conspirators testified that they had planned to take TVs and metal from the building, he was convicted of conspiracy to commit burglary. The district court's error in denying defendant's request to subpoena handwriting exemplars from a co-conspirator's statement was harmless as the uncontradicted evidence established that the co-conspirator had written notes encouraging others to implicate defendant. West v. State, 2013 WY 128, 311 P.3d 157, 2013 Wyo. LEXIS 133 (Wyo. 2013).

Jurisdiction. —

Where defendant was convicted of conspiracy in Wyoming in connection with methamphetamine manufacturing in Colorado and asserted that the only thing that occurred in Wyoming was the purchase of cold tablets, which was not a crime, and all other actions transpired in Colorado, the Wyoming courts still had jurisdiction because the conspiracy continued and was reaffirmed in Wyoming, and the overt act, which was central to the purpose of the conspiracy, occurred in Wyoming. Innis v. State, 2003 WY 66, 69 P.3d 413, 2003 Wyo. LEXIS 83 (Wyo. 2003).

Not necessary for overt act to be substantive crime charged. —

All that is necessary to prove a prima facie case of conspiracy is any overt act that establishes the criminal agreement was acted upon in some way; it is not necessary that an overt act be the substantive crime charged. Burk v. State, 848 P.2d 225, 1993 Wyo. LEXIS 45 (Wyo. 1993).

Evidence from uncharged co-conspirator not precluded. —

A conspiracy need not be charged for a joint venturer to be considered a co-conspirator, and evidence from persons not charged is not precluded from consideration as to the individuals charged with conspiracy. Bigelow v. State, 768 P.2d 558, 1989 Wyo. LEXIS 25 (Wyo. 1989).

Bragging of co-conspirator admissible. —

While mere bragging does not satisfy the “in furtherance” requirement for establishing a conspiracy, the boasts can be admissible under the co-conspirator exception to the hearsay rule when the declarant uses the information to obtain the confidence of the co-conspirator. Bigelow v. State, 768 P.2d 558, 1989 Wyo. LEXIS 25 (Wyo. 1989).

Sufficient evidence to permit court to reasonably infer that conspiracy existed, such as to admit statements of co-conspirator. —

See Burke v. State, 746 P.2d 852, 1987 Wyo. LEXIS 550 (Wyo. 1987).

Evidence sufficient to sustain conviction for conspiracy to commit first-degree murder. —

See Rands v. State, 818 P.2d 44, 1991 Wyo. LEXIS 150 (Wyo. 1991).

Evidence sufficient to sustain conviction for conspiracy to escape from official detention. —

Sufficient evidence supported an inmate's convictions for first-degree premeditated murder, first-degree felony murder, attempt to escape from official detention, and conspiracy to escape from official detention where evidence showed the inmate (1) participated in the concerted attack upon a penitentiary's shift command center and the murder of a prison guard, (2) exultantly cried thereafter that “we got one of them,” and (3) attempted, along with two other inmates, to scale the razor wire fencing surrounding the penitentiary. Moreover, appropriate inferences from all the evidence were that the inmate intended that an escape would occur and intended that the guard be killed during the attempted escape. 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).

Evidence sufficient to sustain conviction for conspiracy. —

Evidence was sufficient to convict defendant of conspiracy to commit aggravated burglary, aggravated robbery, and aggravated assault and battery as the State presented evidence that defendant and the accomplice agreed to use the gun during the incident at the golf course because the golf course’s manager testified that after he hit defendant in the head with the flashlight, defendant turned and ran away; the manager then heard someone saying to shoot him; seconds later, the manager heard a gunshot and saw a muzzle flash; and it was reasonable for the jury to infer that the accomplice would have only said to shoot the manager if he knew defendant had a gun in his possession. Jordin v. State, 2018 WY 64, 419 P.3d 527, 2018 Wyo. LEXIS 68 (Wyo. 2018).

Evidence sufficient to sustain conviction for conspiracy to commit aggravated assault and battery. —

Evidence was sufficient to support the jury's findings that there was a conspiracy to commit aggravated assault and battery and that defendant acted with specific intent; although the plan to beat up a third person may have been crude and ill-conceived and entered into only after a long drinking bout, there was evidence that the “plan” to beat up a business owner using an axe handle rose to the level of a conspiracy, and that defendant acted with specific intent to further the plan. Hankinson v. State, 2002 WY 86, 47 P.3d 623, 2002 Wyo. LEXIS 91 (Wyo. 2002).

Sufficient evidence for conviction of conspiracy to commit robbery. —

See Porth v. State, 868 P.2d 236, 1994 Wyo. LEXIS 11 (Wyo. 1994).

Evidence was sufficient to sustain defendant's conviction for conspiracy to commit aggravated robbery where five coconspirators and/or accomplices testified that defendant was the leader of the plan to rob the bank and did most of the talking during the planning discussions. Vlahos v. State, 2003 WY 103, 75 P.3d 628, 2003 Wyo. LEXIS 124 (Wyo. 2003).

Evidence was sufficient to sustain defendant's conspiracy to commit aggravated robbery because defendant confessed that he and others agreed to contact the victim to arrange a meeting with the victim to rob him, the group obtained knives to use as leverage in the proposed robbery, and after meeting with the victim, the robbery plan was executed. The conspiracy included a contingency plan that if the victim resisted, they would kill him; that circumstance came to pass. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007).

There was sufficient evidence to support a conviction for conspiracy to commit robbery because, even though the case was circumstantial, the jury was justified to believe that the circumstances pointed toward the fact that defendant was in agreement with his brother to snatch a purse in a parking lot. Defendant was in the parking lot with his brother when the victim was robbed, a police chase ensued, defendant and his brother ran from police, and two guns, the purse, and a bandana were found where defendant and his brother ran. Oldman v. State, 2015 WY 121, 359 P.3d 964, 2015 Wyo. LEXIS 139 (Wyo. 2015).

Evidence sufficient to sustain conviction for conspiracy to commit larceny by a bailee. —

Sufficient evidence supported defendant's conviction for six counts of receiving stolen property and conspiracy to commit larceny by a bailee, because she received funds from an unauthorized account based on checks issued by her mother. It was reasonable to infer that they had the kind of agreement necessary to sustain a conspiracy charge under this section. Remmick v. State, 2012 WY 57, 275 P.3d 467, 2012 Wyo. LEXIS 56 (Wyo. 2012).

Insufficient evidence. —

Where the State presented no evidence of an agreement between one or more persons to commit a crime, defendant's conspiracy to engage in a clandestine laboratory was reversed. Holzheuser v. State, 2007 WY 160, 169 P.3d 68, 2007 Wyo. LEXIS 172 (Wyo. 2007).

Instructions as to object crime must be in same manner as crime charged. —

The trial court should instruct the jury about the object crime in a conspiracy prosecution in the same manner as it would instruct on the crime charged. Miller v. State, 904 P.2d 344, 1995 Wyo. LEXIS 188 (Wyo. 1995).

Jury should be instructed on relevant law. —

Where the law of the case established that the jury needed to determine whether and when a co-conspirator was a government agent, the jury should have been instructed adequately on the general principles of the relevant law which they were to apply to the factual issues. Miller v. State, 904 P.2d 344, 1995 Wyo. LEXIS 188 (Wyo. 1995).

Consistency of case theories in jury instructions. —

Even though the bilateral theory of conspiracy was given to the jury in defendant's first trial, Wyoming follows the majority of states in applying the unilateral theory to the crime of conspiracy, and the court correctly instructed the jury on that theory in defendant's second trial. Miller v. State, 955 P.2d 892, 1998 Wyo. LEXIS 49 (Wyo. 1998).

Consecutive sentences constitutional. —

Consecutive sentences for felony murder and conspiracy to commit aggravated robbery did not violate the double jeopardy clauses of the United States and Wyoming constitutions, where the evidence necessary to support the conspiracy charge was not the same as the evidence necessary to support the felony murder charge. Garcia v. State, 774 P.2d 623, 1989 Wyo. LEXIS 132 (Wyo. 1989).

Evidence sufficient to sustain conviction for conspiracy to commit aggravated burglary.—

Sufficient evidence was presented to support defendant's conviction for conspiracy to commit aggravated burglary because the evidence established that defendant and an accomplice tacitly agreed to enter the victim's apartment without authority to commit a felony, were armed with a deadly weapon, and inflicted bodily injury on the victim by stabbing the victim numerous times. Johnson v. State, 2015 WY 118, 356 P.3d 767, 2015 Wyo. LEXIS 133 (Wyo. 2015).

Punishment for felony murder and underlying felony unconstitutional. —

The imposition of multiple punishments for felony murder and the underlying felony violates the double jeopardy clauses of the United States and Wyoming constitutions. Cook v. State, 841 P.2d 1345, 1992 Wyo. LEXIS 164 (Wyo. 1992).

Condition of probation. —

Where a defendant entered Alford guilty pleas to violating Wyo. Stat. Ann. §§ 6-2-502 , 6-4-103 , 6-1-303 , and 6-2-302 , the district court did not abuse its discretion by imposing as a condition of his probation following his term of incarceration that he have no contact with his minor children. A no contact condition was reasonably related to the violent sexual crimes for which he was convicted and for which he was charged, and the provision did not impermissibly encroach on his fundamental right as a parent to raise his children. Perkins v. State, 2014 WY 11, 317 P.3d 584, 2014 Wyo. LEXIS 12 (Wyo. 2014).

Applied in

Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995); Nelson v. State, 934 P.2d 1238, 1997 Wyo. LEXIS 55 (Wyo. 1997); Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002).

Quoted in

Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983); Jahnke v. State, 682 P.2d 991, 1984 Wyo. LEXIS 292 (Wyo. 1984); Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984); Schultz v. State, 751 P.2d 367, 1988 Wyo. LEXIS 20 (Wyo. 1988); Goettl v. State, 842 P.2d 549, 1992 Wyo. LEXIS 174 (Wyo. 1992); KAA v. State, 2001 WY 24, 18 P.3d 1159, 2001 Wyo. LEXIS 27 (Wyo. 2001); Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Feb. 28, 2008).

Stated in

Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985); Dorador v. State, 711 P.2d 417, 1985 Wyo. LEXIS 626 (Wyo. 1985); Collins v. State, 712 P.2d 368, 1986 Wyo. LEXIS 451 (Wyo. 1986); Hobbs v. State, 757 P.2d 1008, 1988 Wyo. LEXIS 101 (Wyo. 1988); Brown v. State, 2002 WY 61, 44 P.3d 97, 2002 Wyo. LEXIS 61 (Wyo. 2002).

Cited in

Lee v. State, 653 P.2d 1388, 1982 Wyo. LEXIS 409 (Wyo. 1982); State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); Duffy v. State, 730 P.2d 754, 1986 Wyo. LEXIS 655 (Wyo. 1986); Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990); Duffy v. State, 837 P.2d 1047, 1992 Wyo. LEXIS 100 (Wyo. 1992); Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995); Brown v. State, 953 P.2d 1170, 1998 Wyo. LEXIS 15 (Wyo. 1998); Palato v. State, 988 P.2d 512, 1999 Wyo. LEXIS 154 (Wyo. 1999); Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000); Bush v. State, 2003 WY 156, 79 P.3d 1178, 2003 Wyo. LEXIS 186 (Wyo. 2003); Sinning v. State, 2007 WY 193, 172 P.3d 388, 2007 Wyo. LEXIS 209 (Dec. 11, 2007); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Jones v. State, 2012 WY 82, 278 P.3d 729, 2012 Wyo. LEXIS 88 (June 14, 2012); Jacobsen v. State, 2012 WY 105, 2012 Wyo. LEXIS 111 (Aug 1, 2012); Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014); Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 Wyo. LEXIS 30 (Wyo. 2017).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Prosecution or conviction of one conspirator as affected by disposition of case against coconspirators, 19 ALR4th 192.

What constitutes “series of acts or transactions” for purposes of Rule 8(b) of Federal Rules of Criminal Procedure, providing for joinder of defendants who are alleged to have participated in same series of acts or transactions, 62 ALR Fed 106.

Statute of limitations in prosecution under 18 USC § 371 for conspiracy to commit offense against or to defraud United States, 68 ALR Fed 628.

Federal criminal liability of narcotics conspirator for different substantive crime of other conspirator, 77 ALR Fed 661.

When is conspiracy continuing offense for purposes of statute of limitations under 18 USC § 3282, 109 ALR Fed 616.

§ 6-1-304. Grading.

The penalty for attempt, solicitation or conspiracy is the same as the penalty for the most serious crime which is attempted, solicited or is an object of the conspiracy except that an attempt, solicitation or conspiracy to commit a capital crime is not punishable by the death penalty if the capital crime is not committed.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

No mitigating circumstances for attempted kidnapping. —

Trial court properly applied the appropriate penalty range in sentencing defendant to life in prison after defendant was convicted of attempted kidnapping because where there was not a completed kidnapping, but instead an attempted kidnapping, the mitigating circumstances described in Wyo. Stat. Ann. § 6-2-201(c) could not occur. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).

Applied in

Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984).

Quoted in

Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983).

Stated in

Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982); Brown v. State, 2002 WY 61, 44 P.3d 97, 2002 Wyo. LEXIS 61 (Wyo. 2002).

Cited in

Schultz v. State, 751 P.2d 367, 1988 Wyo. LEXIS 20 (Wyo. 1988).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For case note, “CRIMINAL LAW — Wyoming Limits the Availability of Abandonment as a Defense to Criminal Attempt. Ramirez v. State, 739 P.2d 1214, 1987 Wyo. LEXIS 470 (Wyo. 1987),” see XXIV Land & Water L. Rev. 219 (1989).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Chapter 2 Offenses Against the Person

Article 1. Homicide

Cross references. —

As to aggravated assault and battery on pregnant woman, see § 6-2-502 .

As to civil action for wrongful death when the death shall have been caused under such circumstances as amounts in law to murder in the first or second degree or manslaughter, see § 1-38-101 .

For provision that felonious taking of life precludes inheritance or insurance benefits, see § 2-14-101 .

As to penalty if death results from willful destruction, etc., of railroad tracks or fixtures, see § 37-12-103 .

Law reviews. —

For comment, “Wyoming Fetal Rights—Why the Abortion “Albatross” Is a Bird of a Different Color: The Case for Fetal-Federalism,” see XXVIII Land & Water L. Rev. 627 (1993).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Corporation's criminal liability for homicide, 45 ALR4th 1021.

Homicide: cremation of victim's body as violation of accused's rights, 70 ALR4th 1091.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467.

§ 6-2-101. Murder in the first degree; penalty.

  1. Whoever purposely and with premeditated  malice, or in the perpetration of, or attempt to perpetrate, any sexual  assault, sexual abuse of a minor, arson, robbery, burglary, escape,  resisting arrest, kidnapping or abuse of a child under the age of  sixteen (16) years, kills any human being is guilty of murder in the  first degree.
  2. A person convicted of murder in the first degree shall be punished by death, life imprisonment without parole or life imprisonment according to law, except that a person convicted of murder in the first degree who was under the age of eighteen (18) years at the time of the offense shall be punished by life imprisonment.
  3. A person convicted of murder in the first  degree in a case in which the state seeks the death penalty shall  be sentenced in accordance with the provisions of W.S. 6-2-102 . In all other cases, including any case in which the  state has determined not to seek the death penalty at any stage of  the proceeding, the judge shall determine the sentence of life imprisonment  without parole or life imprisonment taking into consideration any  negotiated plea agreement and any evidence relevant to a determination  of sentence which the court deems to have probative value.
  4. A person is guilty of murder in the first degree of an unborn child, punishable as provided for other convictions of murder in the first degree, if:
    1. The person purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate, any sexual assault, sexual abuse of a minor, arson, robbery, burglary, escape, resisting arrest, kidnapping or abuse of a child under the age of sixteen (16) years, kills or attempts to kill any human being;
    2. The human being was pregnant with an unborn child; and
    3. The unborn child dies as a result of the person’s actions.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1989, ch. 171, § 1; 1994, ch. 22, § 1; 2001, ch. 96, § 2; 2004, ch. 29, § 1; 2007, ch. 159, § 2; 2013, ch. 18, § 1; 2021, ch. 116, § 1.

Cited in

Osborne v. State, 2012 WY 123, 2012 Wyo. LEXIS 129 (Sept 13, 2012); Chapman v. State, 2013 WY 57, 2013 Wyo. LEXIS 62 (May 10, 2013); Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014); Nicodemus v. Lampert, 2014 WY 135, 2014 Wyo. LEXIS 150 (Oct. 30, 2014).

Cross references. —

As to commutation of a death sentence once it has been commuted to a sentence of life imprisonment without parole, see § 7-13-807 .

The 2004 amendment, effective July 1, 2004, in (b), substituted “eighteen (18) years ” for “sixteen (16) years.”

The 2007 amendment, effective July 1, 2007, inserted “sexual abuse of a minor” in (a).

The 2013 amendment , effective July 1, 2013, rewrote (b).

The 2021 amendment , effective July 1, 2021, added (d).

Applicability. —

Laws 2004, ch. 29, § 2, provides: “The penalty of death shall not be imposed in a case pending on or after the effective date of this act, involving a crime committed prior to the effective date of this act, if the murder was committed before the defendant attained the age of eighteen (18) years.”

I.General Consideration.

Death penalty constitutional. —

The death penalty, if administered in a humane fashion, is constitutional. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Constitutionality of former statute imposing mandatory death penalty for murder when its commission involved certain aggravating circumstances. —

See Kennedy v. State, 559 P.2d 1014, 1977 Wyo. LEXIS 226 (Wyo. 1977).

Constitutionality of life sentence without parole. —

In defendant's murder case, this section was not unconstitutional as applied to defendant, where the record clearly showed that defendant was well aware of the trial court's ability to impose either life or life without parole. Defendant had a meaningful opportunity to argue to the trial court that life without parole was inappropriate and, in fact, did so at sentencing. Teniente v. State, 2007 WY 165, 169 P.3d 512, 2007 Wyo. LEXIS 177 (Wyo. 2007).

District court properly denied defendant's motion to correct an illegal sentence because he did not met his burden of proving that the statute under which he was sentence was cruel or unusual where he was 18 at the time he committed a double homicide, his sentence to two consecutive life sentences for first-degree murder was effectively a sentence of life without the possibility of parole, and the defining the age of majority as 19 did not do so for purposes of determining criminal culpability. Nicodemus v. State, 2017 WY 34, 392 P.3d 408, 2017 Wyo. LEXIS 34 (Wyo. 2017).

Wyoming's mandatory identical sentencing structure for accessory and principal actors in felony murder, which imposed a mandatory life sentence, did not violate the Eighth Amendment when applied to juveniles given federal judicial precedent that refrained from extending those protections to accomplices. Cloud v. State, 2014 WY 113, 334 P.3d 132, 2014 Wyo. LEXIS 130 (Wyo. 2014).

Second-degree murder may be lesser included offense. —

The elements of the lesser offense of murder in the second degree are identical to part of the elements of murder in the first degree; both contain the elements of the killing of a human being with malice and purpose. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981).

On information charging all elements of murder in the first degree as well as elements of second degree and on a plea of guilty defendant could be sentenced for second-degree murder. Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1905 Wyo. LEXIS 10 (Wyo. 1905).

Where indictment charges assault with intent to commit murder in the first degree, defendant may be convicted of assault with intent to commit murder in the second degree, as the latter is an included offense. Brantley v. State, 9 Wyo. 102, 61 P. 139, 1900 Wyo. LEXIS 7 (Wyo. 1900).

But felony murder is not divisible into lesser degrees of homicide since the necessary elements of first degree murder — premeditation, deliberation and malice aforethought — are imputed in felony murder by a conclusive presumption. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh'g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977).

Manslaughter is not an offense necessarily included in robbery and therefore is not a lesser included offense of the crime of felony murder. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh'g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977).

Differences in first degree murder and second degree murder. —

The real difference between first degree murder and second degree murder must be that the accused must have formed a decision to kill the victim to be guilty of first degree murder; for the defendant to be guilty of second degree murder, he must only have acted purposely with the consequence of his purposeful action being the death of the victim. Young v. State, 849 P.2d 754, 1993 Wyo. LEXIS 65 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 81 (Wyo. Apr. 21, 1993).

The differences in the offenses of first degree murder and second degree murder are the element of premeditation and the nature of the criminal intent; first degree murder is a specific intent crime, requiring proof the defendant killed purposely and with premeditation, while second degree murder is a crime of general intent, requiring proof only of acting purposely or voluntarily. Young v. State, 849 P.2d 754, 1993 Wyo. LEXIS 65 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 81 (Wyo. Apr. 21, 1993).

Aiding and abetting voluntary manslaughter is lesser included offense of aiding and abetting first degree murder. See Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

Immunity does not ipso facto extend to other offenses. —

The fact that a defendant may have been granted immunity with respect to the offense of conspiracy to commit first-degree murder would not ipso facto encompass a grant of immunity for the offense of aiding and abetting first-degree murder. Hall v. State, 851 P.2d 1262, 1993 Wyo. LEXIS 88 (Wyo. 1993).

Motive as probative factor. —

While motive, defined as that which leads or tempts the mind to indulge in a criminal act, is not an element of a crime and proof of it is not essential to sustain a conviction, it does have great probative force in determining guilt, especially in cases which depend on circumstantial evidence. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977).

The absence of motive is an important fact in determining the degree of guilt, particularly when the claim is of an accidental shooting. Buckles v. State, 500 P.2d 518, 1972 Wyo. LEXIS 274 (Wyo.), cert. denied, 409 U.S. 1026, 93 S. Ct. 475, 34 L. Ed. 2d 320, 1972 U.S. LEXIS 589 (U.S. 1972).

Consent is not defense. —

The defendant could not show that he was legally justified in killing the victim on the basis that the victim stated that he wanted to die and asked the defendant to kill him. Sanders v. State, 7 P.3d 891, 2000 Wyo. LEXIS 150 (Wyo.), cert. denied, 531 U.S. 1024, 121 S. Ct. 594, 148 L. Ed. 2d 508, 2000 U.S. LEXIS 7997 (U.S. 2000).

Information held sufficient. —

An information charging murder purposely and with premeditated malice, under this section, will sustain conviction for murder upon proof showing murder was committed during attempted robbery, notwithstanding art. 1, § 10, Wyo. Const., giving accused right to demand nature and cause of accusation. Harris v. State, 34 Wyo. 175, 242 P. 411, 1926 Wyo. LEXIS 33 (Wyo. 1926).

Admission of uncharged misconduct. —

Trial court did not abuse its discretion in admitting evidence in defendant's trial for murder and kidnapping of prior uncharged misconduct evidence from his former wife and a friend of his. Their evidence showing the course of conduct between defendant and both victims was relevant to rebut defendant's defenses to the charge and to tell the jury the entire sequence of events that led to the kidnapping and murder. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Instructions as to burden of proving lack of self-defense. —

When self-defense is properly raised, the jury should be specifically instructed that the state has the burden to prove absence of self-defense beyond a reasonable doubt. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985).

Effect of guilty plea. —

The effect of a plea of guilty was tantamount to a conviction and it waived the state's need to convict. Pixley v. State, 406 P.2d 662, 1965 Wyo. LEXIS 165 (Wyo. 1965).

On prosecution for murder in perpetration of rape, plea of guilty dispenses with proof of corpus delicti and venue. State v. Brown, 60 Wyo. 379, 151 P.2d 950, 1944 Wyo. LEXIS 17 (Wyo. 1944).

Plea of self-defense. —

The obvious nature or quality of the plea of self-defense is that of justification or excuse for an otherwise unlawful homicide or aggravated assault and battery. Mewes v. State, 517 P.2d 487, 1973 Wyo. LEXIS 194 (Wyo. 1973).

Objection of juror to death penalty. —

An unwillingness on the part of a juror to inflict the death penalty under any circumstance would be an unwillingness to properly execute the laws of this state. Pixley v. State, 406 P.2d 662, 1965 Wyo. LEXIS 165 (Wyo. 1965).

Disjunctive verdict. —

As supplemented by an instruction, a disjunctive verdict, to wit that defendants were guilty of killing two persons purposefully and with premeditated malice or in the commission of, or in an attempt to commit, a robbery, causes no ambiguity or uncertainty when the facts, circumstances and legitimate inference substantially support all of the essential elements of both offenses. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978).

Sufficient evidence to sustain conviction. —

See Smizer v. State, 752 P.2d 406, 1988 Wyo. LEXIS 37 (Wyo. 1988).

Evidence was sufficient to sustain an attempted first-degree murder conviction where defendant accosted the victim, engaged him in a violent argument, challenged the victim to go outside and fight, once outside, defendant again brandished a gun and, while so armed, chased the victim back into the house and shot him through the mouth and jaw. Mattern v. State, 2007 WY 24, 151 P.3d 1116, 2007 Wyo. LEXIS 27 (Wyo.), cert. denied, 551 U.S. 1153, 127 S. Ct. 3021, 168 L. Ed. 2d 741, 2007 U.S. LEXIS 8451 (U.S. 2007).

Evidence supporting alternative grounds for conviction. —

If each alternative ground for a defendant's first-degree murder conviction is supported by substantial evidence, the supreme court will not set aside the conviction solely because it is unable to determine which ground served as the basis for the jury's decision. Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991).

Evidence sufficient to sustain conviction for conspiracy to commit first-degree murder. —

See Rands v. State, 818 P.2d 44, 1991 Wyo. LEXIS 150 (Wyo. 1991).

In a prosecution for felony murder based on child abuse, trial court did not err in giving instructions that allowed the jury to convict defendant under either the theory that his acts were intentional or that his acts were reckless where the State produced sufficient evidence to allow the jury to convict him under either theory. Johnson v. State, 2003 WY 9, 61 P.3d 1234, 2003 Wyo. LEXIS 11 (Wyo., cert. denied, 540 U.S. 841, 124 S. Ct. 108, 157 L. Ed. 2d 74, 2003 U.S. LEXIS 5710 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 29 (Wyo. Feb. 18, 2003).

Insufficient evidence to sustain conviction. —

Defendant's conviction for attempted first degree murder in violation of this section was against the weight of the evidence which showed that he got a gun from his car during a confrontation with the victim, pointed it at the victim, and fired twice; additional evidence regarding the victim's prior involvement as the aggressor in a bar fight was relevant to defendant's self-defense claim. Therefore, defense counsel was ineffective for failing to timely file a motion for new trial, because the district court would have granted the motion in the interests of justice. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011).

Life without parole does not require further factfinding. —

Statutory penalty of life without parole is one of three punishments for which no further factfinding is required once a jury has determined that the crime of first degree murder has been proved. Because Wyo. Stat. Ann. § 6-2-101(c) does not require the finding of additional facts independent of those proving the underlying offense, the constitutional concerns addressed in Apprendi are not implicated. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

No double jeopardy violation in sentencing. —

Under the Blockburger analysis, first-degree premeditated murder requires proof of premeditated malice, while aggravated robbery does not require proof of malice, and the jury expressly found defendant guilty of first-degree premeditated murder and aggravated robbery; therefore, merger of the sentences of life imprisonment on defendant's first-degree murder conviction and the sentence to a term of years on defendant's aggravated robbery conviction was not required. Sincock v. State, 2003 WY 115, 76 P.3d 323, 2003 Wyo. LEXIS 135 (Wyo. 2003).

Sentencing statute does not violate due process. —

In a trial for first degree murder, defendant's right to due process was not violated where notice and an opportunity to be heard were provided to defendant when, before trial, the state amended the information to incorporate the penalty of life without parole and after trial, it filed a notice of intent to seek that penalty with adequate time for defendant to prepare for his sentencing hearing. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Sufficient evidence to sustain conviction. —

Evidence which included resisting arrest, having already injured one officer, being involved in a high speed car chase, giving false information, refusing to obey a second officer's instructions, trying to move his hand to retrieve a loaded and ready to fire handgun while involved in an altercation with the second officer and even after being told to stop, and later admitting that he was trying to kill the officer, was sufficient for a reasonable jury to find that defendant engaged in substantial conduct strongly corroborative of his intention to murder the second officer. Cohen v. State, 2008 WY 78, 191 P.3d 956, 2008 Wyo. LEXIS 83 (Wyo. 2008).

Codefendants equally guilty. —

Where the 16-year-old defendant and two co-defendants committed a burglary of a home and where one of the co-defendants shot and killed one of the home's residents and defendant was convicted of felony murder/first-degree murder, the imposition of a life sentence without the possibility of parole did not constitute cruel and unusual punishment and was not disproportionate even though defendant himself did not commit the killing. Society was entitled to impose severe sanctions on a juvenile offender to express its condemnation of his crimes and to seek restoration of the moral imbalance caused by the offense. Bear Cloud v. State, 2012 WY 16, 275 P.3d 377, 2012 Wyo. LEXIS 15 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 39 (Wyo. Mar. 6, 2012).

Applied in

State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (1956); Simms v. State, 492 P.2d 516, 1972 Wyo. LEXIS 213 (Wyo. 1972); Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Flores v. State, 572 P.2d 746, 1977 Wyo. LEXIS 287 (Wyo. 1977); Smith v. State, 574 P.2d 1227, 1978 Wyo. LEXIS 269 (Wyo. 1978); Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 , 31 A.L.R.4th 166 (Wyo. 1982); Alberts v. State, 642 P.2d 447, 1982 Wyo. LEXIS 315 (Wyo. 1982); Summers v. State, 725 P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986).

Quoted in

Jahnke v. State, 682 P.2d 991, 1984 Wyo. LEXIS 292 (Wyo. 1984); Schmunk v. State, 714 P.2d 724, 1986 Wyo. LEXIS 482 (Wyo. 1986); Schultz v. State, 751 P.2d 367, 1988 Wyo. LEXIS 20 (Wyo. 1988); Horton v. State, 764 P.2d 674, 1988 Wyo. LEXIS 154 (Wyo. 1988); Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003); Bhutto v. State, 2005 WY 78, 114 P.3d 1252, 2005 Wyo. LEXIS 92 (2005).

Stated in

Ryan v. State, 988 P.2d 46, 1999 Wyo. LEXIS 153 (Wyo. 1999); Norgaard v. State, 2014 WY 157, 2014 Wyo. LEXIS 181 (Dec. 9, 2014).

Cited in

Palmer v. State, 24 Wyo. 218, 157 P. 695, 1916 Wyo. LEXIS 27 (1916); State v. Carroll, 52 Wyo. 29, 69 P.2d 542, 1937 Wyo. LEXIS 39 (1937); Kirk v. State, 421 P.2d 487, 1966 Wyo. LEXIS 186 (Wyo. 1966); Gerard v. State, 511 P.2d 99, 1973 Wyo. LEXIS 166 (Wyo.); Jaramillo v. State, 517 P.2d 490, 1974 Wyo. LEXIS 171 (Wyo. 1974); Doe v. State, 569 P.2d 1276, 1977 Wyo. LEXIS 290 (Wyo. 1977); Henriksen v. State, 575 P.2d 754, 1978 Wyo. LEXIS 271 (Wyo. 1978); Nisonger v. State, 581 P.2d 1094, 1978 Wyo. LEXIS 204 (Wyo. 1978); Turner v. State, 624 P.2d 774, 1981 Wyo. LEXIS 300 (Wyo. 1981); Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981); Kimbley v. City of Green River, 663 P.2d 871, 1983 Wyo. LEXIS 317 (Wyo. 1983); Dichard v. State, 844 P.2d 484, 1992 Wyo. LEXIS 207 (Wyo. 1992); Osborn v. Shillinger, 997 F.2d 1324, 1993 U.S. App. LEXIS 17069 (10th Cir. 1993); Hansen v. State, 904 P.2d 811, 1995 Wyo. LEXIS 194 (Wyo. 1995); Johnson v. State, 930 P.2d 358, 1996 Wyo. LEXIS 178 (Wyo. 1996); Kolb v. State, 930 P.2d 1238, 1996 Wyo. LEXIS 185 (Wyo. 1996); Brown v. State, 953 P.2d 1170, 1998 Wyo. LEXIS 15 (Wyo. 1998); McAdams v. State, 2003 WY 104, 75 P.3d 665, 2003 Wyo. LEXIS 125 (Wyo. 2003); Janpol v. State, 2008 WY 21, 2008 Wyo. LEXIS 22 (Feb. 28, 2008); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008); Thomas v. State, 2009 WY 92, 211 P.3d 509, 2009 Wyo. LEXIS 102 (July 15, 2009); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Jones v. State, 2012 WY 82, 278 P.3d 729, 2012 Wyo. LEXIS 88 (June 14, 2012).

Law reviews. —

For note on the evidence which should be submitted to the jury when a defendant pleads guilty to first-degree murder, see 10 Wyo. L.J. 82.

For note, “Proving Live Birth in Infanticide,” see 17 Wyo. L.J. 237 (1963).

For comment, “Bastard or Legitimate Child of Furman? An Analysis of Wyoming's New Capital Punishment Law,” see IX Land & Water L. Rev. 209 (1974).

See article, “The Evolution of Capital Punishment in Wyoming: A Reconciliation of Social Retribution and Humane Concern?” XIII Land & Water L. Rev. 865 (1978).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For case note, “Is the Current Test of the Constitutionality of Capital Punishment Proper? Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982),” see XVII Land & Water L. Rev. 681 (1982).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Constitutional Law — Double Jeopardy — The New Role of Double Jeopardy in Capital Sentencing. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983),” see XIX Land & Water L. Rev. 743 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For article, "Getting Away With Murder? Abolition of the EaganRule in Wyoming Domestic Violence/Murder Cases” , see 12 Wyo. L. Rev. 49 (2012).

Am. Jur. 2d, ALR and C.J.S. references. —

Malice or intent to kill where killing is by blow without weapon, 22 ALR2d 854.

Criminal responsibility for shooting one mistaken for animal, 23 ALR2d 1401.

Concurrent acts of negligence as affecting criminal responsibility for death resulting from hunting accident, 23 ALR2d 1401.

Causing one, by threats or fright, to leap or fall to his death, 25 ALR2d 1186.

Instruction as to presumption of continuing insanity in criminal case, 27 ALR2d 121.

Right of prosecution, in homicide case, to introduce evidence in rebuttal to show good, quiet and peaceable character of the deceased, 34 ALR2d 451.

Pregnancy as element of homicide based on abortion, 46 ALR2d 1393.

Homicide by fright or shock, 47 ALR2d 1072.

Extent of premises which may be defended without retreat under right of self-defense, 52 ALR2d 1458.

Druggist's criminal liability for death resulting from mistake, 55 ALR2d 714.

Duty of trial court to instruct on self-defense, in the absence of a request from the defendant, 56 ALR2d 1170.

Admissibility of opinion evidence that death was or was not self-inflicted, 56 ALR2d 1447.

Necessity and materiality of statement of place of death in indictment or information charging homicide, 59 ALR2d 901.

Murder in connection with offense under Federal Bank Robbery Act, 59 ALR2d 946.

Admissibility, on behalf of defendant, that killing was committed at victim's request, 71 ALR2d 617.

Necessity that trial court charge upon motive in homicide case, 71 ALR2d 1025.

Corporation's criminal liability for homicide, 83 ALR2d 1117.

Admissibility of tests to determine distance from gun to victim when gun was fired, 86 ALR2d 611.

Presumption of deliberation or premeditation from the fact of killing, 86 ALR2d 656.

Identification of victim as person named in indictment or information, 86 ALR2d 722.

Dying declarations as to motive for killing, 86 ALR2d 905.

Homicide by excessive or improper punishment of child by parent or one in loco parentis, 89 ALR2d 396.

Criminal liability of parent, teacher or one in loco parentis for homicide by excessive or improper punishment inflicted on child, 89 ALR2d 396.

Admissibility of statement of victim exculpating defendant, 95 ALR2d 637.

Presumption of deliberation or premeditation from the circumstances attending the killing, 96 ALR2d 1435.

Admissibility of evidence of uncommunicated threats on issue of self-defense, 98 ALR2d 6.

Failure to provide medical or surgical attention as homicide, 100 ALR2d 483.

Religious belief as defense to prosecution for homicide because of failure to apply medical or surgical attention, 100 ALR2d 483.

Criminal liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 ALR2d 769.

Physician's or surgeon's negligence, mistake or lack of skill as affecting liability of one causing personal injury, 100 ALR2d 808.

Admissibility of evidence of the victim's character or reputation for turbulence on question of self-defense, 1 ALR3d 571.

Insulting words as provocation of homicide or as reducing the degree thereof, 2 ALR3d 1292.

Admissibility, as part of res gestae, of accusatory utterances made by homicide victim after act, 4 ALR3d 149.

Defendant's right to inspection or disclosure of prosecution evidence and to inspection of statement of prosecution's witness for purposes of cross-examination or impeachment, 7 ALR3d 8, 7 ALR3d 181.

Voluntary intoxication as defense to criminal charge, 8 ALR3d 1236.

Relationship with assailant's wife as provocation depriving defendant of right of self-defense, 9 ALR3d 933.

Earlier prosecution for offense during which homicide was committed as bar to prosecution for homicide, 11 ALR3d 834.

Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259.

Mental or emotional condition as diminishing responsibility for crime, 22 ALR3d 1228.

Criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 ALR3d 589.

Private person's right, in making arrest for felony, to kill alleged felon, 32 ALR3d 1078.

Beliefs regarding capital punishment as disqualifying juror in capital case, 39 ALR3d 550.

Duty to retreat as condition of self-defense when one is attacked at his office, business or place of employment, 41 ALR3d 584.

Burden and quantum of proof to show self-defense in homicide, 43 ALR3d 221.

Homicide resulting from improper treatment of disease or injury, 45 ALR3d 114.

Admissibility of dying declarations in homicide prosecutions, 53 ALR3d 785.

What constitutes attempted murder, 54 ALR3d 612.

Unintentional killing of third person during attempted self-defense, 55 ALR3d 620.

Withdrawal, after provocation of conflict, as reviving right of self-defense, 55 ALR3d 1000.

Criminal liability of one engaged in felonious or other unlawful act for killing done by one resisting the unlawful act, 56 ALR3d 239.

What constitutes termination of felony for purpose of felony murder rule, 58 ALR3d 851.

Time elapsing between wound and death as affecting homicide, 60 ALR3d 1316.

Homicide as affected by lapse of time between injury and death, 60 ALR3d 1323.

Withholding food, clothing or shelter as homicide, 61 ALR3d 1207.

Burden of proof on defense that killing was accidental, 63 ALR3d 936.

Necessity and effect, in homicide prosecution, of expert medical testimony as to cause of death, 65 ALR3d 283.

Proof of live birth in prosecution for killing newborn child, 65 ALR3d 413.

Admissibility of testimony of coroner or mortician as to cause of death in homicide prosecution, 71 ALR3d 1265.

Addiction or related mental state as defense to criminal charge, 73 ALR3d 16.

When intoxication deemed involuntary so as to constitute a defense to criminal charge, 73 ALR3d 195.

Admissibility, as res gestae, of accusatory utterances made by homicide victim before the act, 74 ALR3d 963.

What constitutes murder by torture, 83 ALR3d 1222.

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 ALR3d 925.

Duty to retreat where assailant is social guest on premises, 100 ALR3d 532.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 ALR4th 960.

Negligent entrustment: bailor's liability to bailee injured through his own negligence or incompetence, 12 ALR4th 1062.

Judicial abrogation of felony murder doctrine, 13 ALR4th 1226.

Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 ALR4th 983.

Admissibility of expert testimony as to whether accused had specific intent necessary for conviction, 16 ALR4th 666.

Modern status of the rules requiring malice “aforethought,” “deliberation,” or “premeditation,” as elements of murder in the first degree, 18 ALR4th 961.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Criminal liability for death of another as result of accused's attempt to kill self or assist another's suicide, 40 ALR4th 702.

Homicide: sufficiency of evidence of mother's neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 ALR4th 724.

Homicide by causing victim's brain-dead condition, 42 ALR4th 742.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 ALR4th 660.

Application of felony murder doctrine where person killed was co-felon, 89 ALR4th 683.

Validity and construction of “extreme indifference” murder statute, 7 ALR5th 758.

Propriety of questioning expert witness regarding specific incidents or allegations of expert's unprofessional conduct or professional negligence, 11 ALR5th 1.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 ALR5th 497.

Ineffective assistance of counsel: Battered spouse syndrome as defense to homicide or other criminal offense, 11 ALR5th 871.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 ALR5th 449.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 ALR5th 637.

II.Purpose, Premeditation and Malice.

Premeditation separates first-degree from second-degree murder. —

The element which makes first-degree murder a specific-intent crime, and separates it from the general-intent crime of second-degree murder, is the element of premeditation. Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986), overruled, Wilkerson v. State, 2014 WY 136, 336 P.3d 1188, 2014 Wyo. LEXIS 158 (Wyo. 2014).

First degree murder is a specific intent crime, requiring proof of the element of intent, while second degree murder is a general intent crime, requiring only proof of the element of voluntariness. Premeditation is the specific intent element which distinguishes the two types of murder. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Premeditation defined. —

Premeditation, or premeditated malice, should be accorded its ordinary meaning. It is the “thinking over, deliberating upon, weighing in the mind beforehand, resulting in a deliberate intention to kill” which constitutes the killing murder in the first degree. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992); Hightower v. State, 901 P.2d 397, 1995 Wyo. LEXIS 153 (Wyo. 1995).

Premeditation implies interval between formation of intent and act. —

The word “premeditated” when used in reference to first-degree murder implies an interval, however brief, between the formation of the intent or design and the commission of the act. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Intent to Kill. —

Defendant set a fire with an accelerant in the middle of the night directly outside of the victim's motel room, from which she had no clear means of escape. That combined with evidence that defendant was angry at the victim and left town immediately after starting the fire was sufficient for a reasonable jury to conclude that defendant intended to kill the victim. Pearson v. State, 2017 WY 19, 389 P.3d 794, 2017 Wyo. LEXIS 19 (Wyo. 2017).

Evidence of cool calculation required. —

While it is true that no specific or substantive time period is required for a killing to be “premeditated”, there must be evidence of cool calculation beyond the mere opportunity to deliberate, such as a demonstrated motive, or leaving an altercation to arm oneself. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Spoken threats before shootings denote premeditation. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Brutality of fatal attack. —

The brutality of a fatal attack, in itself, cannot support an inference of premeditation. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Where the defendant had the motive to rob the murder victim, his exacting application of repeated, severe blows across the victim's face supported the inference of premeditation. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Motive and nature of killings supported finding of premeditation. —

Where defendant walked into a bar, went into the restroom to see if any customers were inside, returned to the bar area, ordered the two male customers to the floor, robbed the bar, ordered the bartender to lay down on the floor and, stepping on the back of one victim, fired three shots from close range into the backs of the victims' heads and fired one shot at point blank range into the back of the bartender's head, the murders took place in an exacting manner from which the jury could infer premeditation. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Deliberation and premeditation may be inferred from circumstances. —

Deliberation and premeditation as the basis for a conviction of murder may be inferred from the facts and circumstances surrounding the killing. Buckles v. State, 500 P.2d 518, 1972 Wyo. LEXIS 274 (Wyo.), cert. denied, 409 U.S. 1026, 93 S. Ct. 475, 34 L. Ed. 2d 320, 1972 U.S. LEXIS 589 (U.S. 1972); Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Evidence of defendants' premeditation in the death of the victims could be inferred from the use and availability of the knife in stabbing them many times in a brutal manner; from their expressed motive of obtaining transportation; from a whispered dialogue between the defendants in the presence of witnesses; from the time lapse of stabbing one victim to the time of stabbing the second victim which, of itself, would provide the necessary element of time for second thoughts and deliberation. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978).

Premeditation may be inferred. —

Deliberation and premeditation as the basis for conviction of murder may be inferred from the facts and circumstances surrounding the killing; this rule applies to both a jury's finding of deliberation and premeditation and a judge's determination of the factual basis for a plea of guilty to first-degree murder. Rude v. State, 851 P.2d 15, 1993 Wyo. LEXIS 83 (Wyo. 1993).

As may intent to kill. —

Intent to kill, as well as premeditation, may be ascertained or deduced from the facts and circumstances of the killing, such as use of a weapon calculated to produce death, the manner of use, and the attendant circumstances. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978).

And malice. —

Malice may be inferred from the use of a deadly weapon in a dangerous and deadly manner if the facts and circumstances so allow. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978).

Malice can be presumed from use of a firearm. Collins v. State, 589 P.2d 1283, 1979 Wyo. LEXIS 355 (Wyo. 1979).

Malice is a general-intent element. See Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986), overruled, Wilkerson v. State, 2014 WY 136, 336 P.3d 1188, 2014 Wyo. LEXIS 158 (Wyo. 2014).

Pushing wife and child over cliff showed premeditated malice. —

Evidence was sufficient to sustain defendant's murder convictions where the evidence showed that defendant intentionally took his wife and son to a cliff, which was located in an isolated area miles from the nearest town, pushed them over the edge of the cliff, and made sure they were dead before notifying the authorities. There was evidence from which the jury could reasonably infer that defendant purposely and with premeditated malice killed his wife and child. Duke v. State, 2004 WY 120, 99 P.3d 928, 2004 Wyo. LEXIS 157 (Wyo. 2004), cert. denied, 544 U.S. 1062, 125 S. Ct. 2513, 161 L. Ed. 2d 1113, 2005 U.S. LEXIS 4397 (U.S. 2005).

Obtaining shotgun from vehicle exhibits malice and premeditation. —

The jury was entitled to determine that the use of shotgun by the defendant, together with the other circumstances surrounding its use, exhibited malice. Likewise, the jury was entitled to conclude that the element of premeditation was satisfied, considering that the defendant went from a bar to his vehicle and obtained a shotgun, and that he returned to the bar and called another person out of the bar. There was a minimum of two or three minutes to deliberate before the defendant, with whom the victim had just had an altercation, fired the gun. Murry v. State, 713 P.2d 202, 1986 Wyo. LEXIS 459 (Wyo. 1986).

Retrieving shotgun after argument supported premeditation. —

Evidence was sufficient to sustain defendant's first degree murder conviction where he had been arguing with his wife for hours, he retrieved his rifle and loaded it, he threatened to kill his wife, he carried his gun with him as he followed her for over half an hour, she decided to leave, and defendant shot her twice in the back. It was a reasonable inference that defendant thought about and considered the idea of killing his wife before he actually did kill her. Pena v. State, 2004 WY 115, 98 P.3d 857, 2004 Wyo. LEXIS 150 (Wyo. 2004).

No prejudice in prosecutor's use of term “malice.” —

Prosecutor's use in closing argument of term “malice,” which may have legal meaning and common meaning, did not create automatic prejudice. See Armstrong v. State, 826 P.2d 1106, 1992 Wyo. LEXIS 28 (Wyo. 1992).

Jury instruction as to implied malice. —

Though there was no premeditation, a charge that “malice is implied from any deliberate and cool act done against another, however sudden, which shows an abandoned and malignant heart, and where one person assaults another with a deadly weapon in such a manner as is likely to cause death, although he had no previous malice or ill will against the party assaulted, yet he is presumed, in law, to have such malice at the moment of the assault, and, if death result therefrom, it is murder,” was not erroneous, as authorizing a conviction of murder in the first degree. Ross v. State, 8 Wyo. 351, 57 P. 924, 1899 Wyo. LEXIS 17 (Wyo. 1899).

In first-degree murder in Wyoming, voluntary intoxication is defense as its effects bear upon the ability of the accused to formulate the premeditated malice requisite to the commission of the crime. Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

And burden of proof is on state. —

In the context that voluntary intoxication is a temporary insanity issue, where the specific intent crime of first-degree murder requiring premeditated malice is charged, the question of temporary insanity through voluntary intoxication is for the jury and the burden of proving sanity beyond a reasonable doubt remains with the state. Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977). But see § 7-11-305 .

It is the burden of the state to prove premeditated malice beyond a reasonable doubt to sustain a conviction of first-degree murder. Buckles v. State, 500 P.2d 518, 1972 Wyo. LEXIS 274 (Wyo.), cert. denied, 409 U.S. 1026, 93 S. Ct. 475, 34 L. Ed. 2d 320, 1972 U.S. LEXIS 589 (U.S. 1972); Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Jury instructions. —

In a first degree murder case, a court did not err in its jury instruction on the elements of the crime where the jury was instructed that defendant was required to have “thought about and considered the idea of killing before the act which caused death was committed, that the act which caused death was done with intent to kill and without legal justification or excuse, and that premeditation implies an interval, however brief, between the formation of the intent or design to kill and the commission of the act which results in death.” In addition, defendant did not sufficiently articulate how the evidence, when viewed according to the jury instructions given, was susceptible to the kind of jury confusion alleged by defendant. Siler v. State, 2005 WY 73, 115 P.3d 14, 2005 Wyo. LEXIS 88 (Wyo. 2005).

Trial court did not commit plain error in instructing the jury on the elements of attempted first degree murder, where it adequately informed the jury of the elements of each crime and the circumstances that had to exist in order to find defendant guilty of those crimes. Gentilini v. State, 2010 WY 74, 231 P.3d 1280, 2010 Wyo. LEXIS 75 (Wyo. 2010).

Whether or not the malice instruction given in defendant's case constituted plain error, defendant was not materially prejudiced by the malice instruction given in defendant's trial for attempted first degree murder because defendant could not show that defendant was materially prejudiced in that the evidence presented was more than sufficient to persuade a reasonable jury that defendant acted with the intent to kill, without legal justification or excuse, and in a manner indicating hatred, ill will, or hostility. Johnson v. State, 2015 WY 118, 356 P.3d 767, 2015 Wyo. LEXIS 133 (Wyo. 2015).

It is for jury to weigh all evidence of premeditated malice. —

direct and circumstantial. Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Finding of premeditated malice factually supported. —

Although intoxication may operate as a defense to first-degree murder to the extent that it negates a finding of premeditated malice, where the defendant, at his arraignment, made the statement that he “went drinking and went to kill both of us,” and clearly stated that he intended to kill his ex-wife if she did not agree to resume their relationship, the court's finding that the defendant attempted, with premeditated malice, to kill his former wife was supported by a factual basis. Barron v. State, 819 P.2d 412, 1991 Wyo. LEXIS 161 (Wyo. 1991).

Finding of premeditation factually supported. —

Sufficient evidence supported an inmate's convictions for first-degree premeditated murder, first-degree felony murder, attempt to escape from official detention, and conspiracy to escape from official detention where evidence showed the inmate (1) participated in the concerted attack upon a penitentiary's shift command center and the murder of a prison guard, (2) exultantly cried thereafter that “we got one of them,” and (3) attempted, along with two other inmates, to scale the razor wire fencing surrounding the penitentiary. Moreover, appropriate inferences from all the evidence were that the inmate intended that an escape would occur and intended that the guard be killed during the attempted escape. 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).

III.Felony Murder.

Purpose of felony murder rule. —

See Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh'g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977).

The purpose of the felony murder rule is to deter individuals from committing negligent or accidental killings during the perpetration of an underlying felony. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Intent to kill irrelevant. —

Felony murder is an unusual offense in that the death arising out of the robbery is purely an incident of the basic offense. It makes no difference whether or not there was an intent to kill. The statutory law implies all of the malevolence found and necessary in the crime of first-degree murder alone. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978).

The state is not required to prove that the defendant intended to kill the victim in order for the jury to convict the defendant of felony murder; instead, a person is punished for committing felony murder if the killing results during the commission of a felony. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Under subdivision (a) of this section, when a killing arises out of one of the enumerated felonies, it makes no difference whether or not there was an intent to kill. Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

This section imposes a form of strict responsibility on those perpetrating the underlying felony for killings occurring during the commission of that felony; the intent to kill is not an element of the crime. Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

Child abuse.—

Trial court did not plainly err by allowing the State to elicit testimony from its medical experts that child abuse had been proven because under the court’s decision in Sanchez it was impossible to conclude that the testimony violated a clear and obvious rule of law. The medical experts did not tailor their testimony specifically to this section but drew their language from medical diagnoses arrived at from observation and interpretation of the victim’s injuries. Nielsen v. State, 2018 WY 132, 430 P.3d 740, 2018 Wyo. LEXIS 136 (Wyo. 2018).

Relationship to criminally negligent homicide. —

A defendant may be convicted for both felony murder under subsection (a) of this section and criminally negligent homicide under § 6-2-107(a); these crimes are not mutually exclusive. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Intent must be associated with felony, not homicide. —

Where a homicide is perpetrated during the course of an attempted robbery, the basic offense is the attempted robbery and not the death which occurred during its commission. Thus, the necessary intent to convict a person of felony murder, under such a circumstance, must be associated with the attempted robbery, not the homicide whose necessary elements are implied by the statute. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977).

Afterthought following killing not in perpetration of felony. —

If the felony occurred as an afterthought that followed the killing, the killing cannot have been “in the perpetration of the felony,” and the homicide may not be elevated to murder in the first degree by application of the felony murder rule. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Proof of felony obviates necessity of proving premeditation. —

The perpetration of a statutory felony is regarded as standing in the place of, or as the legal equivalent of, the willfulness, deliberation, and premeditation necessary under this section as to other first-degree killings and dispenses with the necessity of the proof thereof. Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726, 1984 U.S. LEXIS 194 (U.S. 1984).

Time sequence is not important in felony murder as long as the evidence, including the inferences, point to one continuous transaction. Whether the homicide preceded, followed or was contemporaneous with the robbery is immaterial. Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978); Hightower v. State, 901 P.2d 397, 1995 Wyo. LEXIS 153 (Wyo. 1995).

Unbroken chain of events. —

A killing amounts to felony murder when it occurs within the unbroken chain of events that comprise the felony; the homicide and the underlying felony must be part of one continuous transaction. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Part of res gestae. —

To occur in the perpetration of a felony the killing must occur in the unbroken chain of events comprising the felony. This means that, for a finding of felony murder, the killing must occur as part of the res gestae or “things done to commit” the felony. If the felony was not conceived of before the victim's death but occurs after the murder, the chain is broken, and the murder is a separate act which cannot have occurred “in the perpetration of” the underlying felony. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Child abuse. —

Defendant's prosecution for felony murder under this section, based on his abuse of a child under 16, rather than for child abuse under Wyo. Stat. Ann. § 6-2-503 , did not violate equal protection, under Wyo. Const. art. I, §§ 2 or 34, as the provision of this section allowing a first degree murder prosecution for child abuse gave fair notice that possible penalties were life imprisonment or execution. Johnson v. State, 2003 WY 9, 61 P.3d 1234, 2003 Wyo. LEXIS 11 (Wyo., cert. denied, 540 U.S. 841, 124 S. Ct. 108, 157 L. Ed. 2d 74, 2003 U.S. LEXIS 5710 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 29 (Wyo. Feb. 18, 2003).

Fact that pistol was discharged in struggle for its possession during robbery made no difference in the degree of murder. State v. Best, 44 Wyo. 383, 12 P.2d 1110, 1932 Wyo. LEXIS 30 (Wyo. 1932).

Codefendants equally guilty. —

If two or more persons are jointly engaged in the perpetration of or an attempt to perpetrate a robbery, and a human being is killed during its commission by any one of the persons so jointly engaged, then each of the offenders is equally guilty of the homicide. Jones v. State, 568 P.2d 837, 1977 Wyo. LEXIS 279 (Wyo. 1977). See also Clay v. State, 15 Wyo. 42, 86 P. 17, 1906 Wyo. LEXIS 4 (Wyo.), reh'g denied, 15 Wyo. 42, 86 P. 544, 1906 Wyo. LEXIS 5 (Wyo. 1906).

Underlying felony not used as aggravating factor. —

Where an underlying felony is used to convict a defendant of felony murder only, elements of the underlying felony may not again be used as an aggravating factor in the sentencing phase. Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991) (decided under facts existing prior to 1989 amendment of § 6-2-102 ) (overruling Engberg v. State).

Prior bad acts evidence properly admitted. —

In a premeditated murder prosecution, defendant claimed he killed his wife's lover in the sudden heat of passion. Evidence of his prior assault on his wife's ex-husband and his threat against her other boyfriend was properly admitted under Wyo. R. Evid. 404(b), as it was relevant to rebut defendant's claims and to show motive--jealousy--and intent. Taylor v. State, 2009 WY 31, 203 P.3d 408, 2009 Wyo. LEXIS 30 (Wyo. 2009).

Defenses. —

Supreme Court of Wyoming agrees with the majority of jurisdictions that have addressed the issue and concludes that self-defense is not available to a defendant who kills while engaged in the perpetration of an enumerated felony. The Wyoming legislature has determined that burglary is an offense which carries a significant prospect of violence and that, as such, it is a crime which supports a charge of felony murder when a killing results during the perpetration of the burglary. Allowing a defendant to assert a defense of self-defense to felony murder in instances in which burglary is the underlying felony would be inconsistent with Wyo. Stat. Ann. § 6-2-101(a) (2015). Schnitker v. State, 2017 WY 96, 401 P.3d 39, 2017 Wyo. LEXIS 97 (Wyo. 2017).

District court did not err in refusing to instruct the jury that self-defense could have been raised as a defense to the charge of felony murder as self-defense was not available to a defendant who killed while engaged in the perpetration of an enumerated felony. Schnitker v. State, 2017 WY 96, 401 P.3d 39, 2017 Wyo. LEXIS 97 (Wyo. 2017).

District court did not abuse its discretion in refusing to give defendant's proposed instruction on the meaning of “in the perpetration of,” as used in Wyo. Stat. Ann. § 6-2-101 (2015) where the relevant issue was whether defendant killed the victim while engaged in the underlying burglary, not whether the felony occurred before or after defendant killed the victim. Schnitker v. State, 2017 WY 96, 401 P.3d 39, 2017 Wyo. LEXIS 97 (Wyo. 2017).

The “no-culpability defense” to a felony murder charge is not a recognized defense in Wyoming. Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

The determination of whether the felony murder doctrine should be further limited in Wyoming and, if so, the appropriate manner of so doing, are matters for the legislature; consequently, the courts have declined to judicially adopt affirmative defenses to felony murder. Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

Evidence held sufficient. —

Evidence that defendant shot deceased after having unsuccessfully attempted an entrance through locked door of truck owned by deceased with intent to pilfer same is sufficient to sustain conviction of murder in the first degree. State v. Lindsay, 77 Wyo. 410, 317 P.2d 506, 1957 Wyo. LEXIS 30 (Wyo. 1957).

Defendant's conviction for first degree premeditated murder was affirmed, where there was ample evidence to support the conclusion that the victim's death was a direct result of bullets defendant discharged into the victim's head, even though neither of the two eyewitnesses testifying at trial stated they actually saw defendant fire the bullets into the victim's head. Both witnesses testified that defendant was the last person to handle the gun prior to the shooting. Magallanes v. State, 2006 WY 119, 142 P.3d 1147, 2006 Wyo. LEXIS 123 (Wyo. 2006).

Evidence was sufficient to find the defendant guilty of felony murder where it was clear he participated in the underlying robbery of the victim; he had possession of property stolen from the victim, he was present during the robbery, and the victim was killed in the course of the robbery. Jansen v. State, 892 P.2d 1131, 1995 Wyo. LEXIS 52 (Wyo. 1995).

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).

Jury instructions. —

Although the district court erred by instructing the jury as to common law parental duties that were not encompassed within the charged crime of felony murder based on child abuse, the error was harmless because the completed verdict form showed juror unanimity as to defendant's guilt on all of the theories properly alleged; the judgment and sentence had to be amended to reflect the fact that only one charge was brought, that defendant was bound over and arraigned and pled to only one charge, and that he was therefore convicted of only one charge. Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Wyo. 2008).

Sentence. —

A life sentence without possibility of parole did not give rise to an inference of gross disproportionality when the sentence was compared to defendant's crimes of conspiracy to commit burglary and murder committed in the course of that burglary. Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

Defendant's sentence of life without the possibility of parole for first-degree felony murder was vacated because (1) defendant was 15 years old when the murder was committed, and (2) the sentence was imposed pursuant to a statutory scheme which effectively mandated imposition of the sentence. Sen v. State, 2013 WY 47, 301 P.3d 106, 2013 Wyo. LEXIS 51 (Wyo. 2013).

Defendant's aggregate sentence, which would require defendant to serve at least 35 years before he became parole eligible, was not a de facto life sentence and did not violate the Eighth Amendment because defendant would be eligible for parole when he was approximately 50 years old; defendant failed to establish that the sentence did not provide him a meaningful opportunity for release. Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 Wyo. LEXIS 30 (Wyo.), cert. denied, 138 S. Ct. 225, 199 L. Ed. 2d 146, 2017 U.S. LEXIS 4668 (U.S. 2017).

Consecutive sentences for felony murder, conspiracy, constitutional. —

Consecutive sentences for felony murder and conspiracy to commit aggravated robbery did not violate the double jeopardy clauses of the United States and Wyoming constitutions, where the evidence necessary to support the conspiracy charge was not the same as the evidence necessary to support the felony murder charge. Garcia v. State, 774 P.2d 623, 1989 Wyo. LEXIS 132 (Wyo. 1989).

Punishment for felony murder and underlying felony unconstitutional. —

The imposition of multiple punishments for felony murder and the underlying felony violates the double jeopardy clauses of the United States and Wyoming constitutions. Cook v. State, 841 P.2d 1345, 1992 Wyo. LEXIS 164 (Wyo. 1992).

Multiple punishments for felony murder and the underlying felony are impermissible and such a sentence is error. Roderick v. State, 858 P.2d 538, 1993 Wyo. LEXIS 138 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 145 (Wyo. Sept. 16, 1993); Mares v. State, 939 P.2d 724, 1997 Wyo. LEXIS 82 (Wyo. 1997).

Jury instructions.—

When defendant was convicted of first-degree felony murder on the underlying offense of aggravated child abuse or child abuse, the denial of defendant’s request for lesser-included offense instructions of criminally negligent homicide and involuntary manslaughter was appropriate because the State of Wyoming had to prove the elements of either child abuse or aggravated child abuse and that the victim’s death occurred during the perpetration of that crime. Criminally negligent homicide and involuntary manslaughter contained different elements. Hartley v. State, 2020 WY 40, 460 P.3d 716, 2020 Wyo. LEXIS 41 (Wyo. 2020).

Sentence.—

District court erred when it sentenced defendant to life in prison with the opportunity for parole for felony murder because, as the State of Wyoming did not seek the death penalty, defendant could have been sentenced to either life imprisonment without parole or life imprisonment according to law. Hartley v. State, 2020 WY 40, 460 P.3d 716, 2020 Wyo. LEXIS 41 (Wyo. 2020).

§ 6-2-102. Presentence hearing for murder in the first degree; mitigating and aggravating circumstances; effect of error in hearing.

  1. Upon conviction of a person for murder in the first degree in a case in which the state seeks the death penalty, the judge shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death, life imprisonment without parole or life imprisonment. The hearing shall be conducted before the judge alone if:
    1. The defendant was convicted by a judge sitting without a jury;
    2. The defendant has pled guilty; or
    3. The defendant waives a jury with respect to the sentence.
  2. In all other cases the sentencing hearing shall be conducted before the jury which determined the defendant’s guilt or, if the judge for good cause shown discharges that jury, with a new jury impaneled for that purpose. The jury shall be instructed that if the jury does not unanimously determine that the defendant should be sentenced to death, then the defendant shall be sentenced to life imprisonment without parole or life imprisonment.
  3. The judge or jury shall hear evidence as to any matter that the court deems relevant to a determination of the sentence, and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in subsections (h) and (j) of this section. Any evidence which the court deems to have probative value may be received regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements, and provided further that only such evidence in aggravation as the state has made known to the defendant or his counsel prior to his trial shall be admissible.
  4. Upon conclusion of the evidence and arguments the judge shall give the jury appropriate instructions, including instructions as to any aggravating or mitigating circumstances, as defined in subsections (h) and (j) of this section, or proceed as provided by paragraph (iii) of this subsection:
    1. After hearing all the evidence, the jury shall deliberate and render a sentence based upon the following:
      1. Whether one (1) or more aggravating circumstances exist beyond a reasonable doubt as set forth in subsection (h) of this section;
      2. Whether, by a preponderance of the evidence, mitigating circumstances exist as set forth in subsection (j) of this section; and
      3. The mere number of aggravating or mitigating circumstances found shall have no independent significance.
    2. The jury shall consider aggravating and mitigating circumstances unanimously found to exist, and each individual juror may also consider any mitigating circumstances found by that juror to exist. If the jury reports unanimous agreement to impose the sentence of death, the court shall discharge the jury and shall impose the sentence of death. If the jury is unable to reach a unanimous verdict imposing the sentence of death within a reasonable time, the court shall instruct the jury to determine by a unanimous vote whether the penalty of life imprisonment without parole shall be imposed. If the jury is unable to reach a unanimous verdict imposing the penalty of life imprisonment without parole within a reasonable time, the court shall discharge the jury and impose the sentence of life imprisonment;
    3. In nonjury cases, the judge shall determine if any aggravating or mitigating circumstances exist and impose sentence within the limits prescribed by law, based upon the considerations enumerated in subparagraphs (A), (B) and (C) of paragraph (i) of this subsection.
  5. The death penalty shall not be imposed unless at least one (1) of the aggravating circumstances set forth in subsection (h) of this section is found. In nonjury cases the judge shall make such designation. The jury, if its verdict is a sentence of death, shall designate in writing signed by the foreman of the jury:
    1. The aggravating circumstance or circumstances which it unanimously found beyond a reasonable doubt;
    2. The mitigating circumstance or circumstances which it unanimously found by a preponderance of the evidence; and
    3. The mitigating circumstance or circumstances which any individual juror found by a preponderance of the evidence.
  6. Repealed by Laws 2001, ch. 96, § 3.
  7. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment.
  8. Aggravating circumstances are limited to the following:
    1. The murder was committed by a person:
      1. Confined in a jail or correctional facility;
      2. On parole or on probation for a felony;
      3. After escaping detention or incarceration; or
      4. Released on bail pending appeal of his conviction.
    2. The defendant was previously convicted of another murder in the first degree or a felony involving the use or threat of violence to the person;
    3. The defendant knowingly created a great risk of death to two (2) or more persons;
    4. The murder was committed while the defendant was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any aircraft piracy or the unlawful throwing, placing or discharging of a destructive device or bomb;
    5. The murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody;
    6. The murder was committed for compensation, the collection of insurance benefits or other similar pecuniary gain;
    7. The murder was especially atrocious or cruel, being unnecessarily torturous to the victim;
    8. The murder of a judicial officer, former judicial officer, district attorney, former district attorney, defending attorney, peace officer, juror or witness, during or because of the exercise of his official duty or because of the victim’s former or present official status;
    9. The defendant knew or reasonably should have known the victim was less than seventeen (17) years of age or older than sixty-five (65) years of age;
    10. The defendant knew or reasonably should have known the victim was especially vulnerable due to significant mental or physical disability;
    11. The defendant poses a substantial and continuing threat of future dangerousness or is likely to commit continued acts of criminal violence;
    12. The defendant killed another human being purposely and with premeditated malice and while engaged in, or as an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit, any robbery, sexual assault, arson, burglary, kidnapping or abuse of a child under the age of sixteen (16) years.
  9. Mitigating circumstances shall include the following:
    1. The defendant has no significant history of prior criminal activity;
    2. The murder was committed while the defendant was under the influence of extreme mental or emotional disturbance;
    3. The victim was a participant in the defendant’s conduct or consented to the act;
    4. The defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor;
    5. The defendant acted under extreme duress or under the substantial domination of another person;
    6. The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired;
    7. The age of the defendant at the time of the crime;
    8. Any other fact or circumstance of the defendant’s character or prior record or matter surrounding his offense which serves to mitigate his culpability.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1989, ch. 171, § 1; 1999, ch. 134, § 1; 2001, ch. 96, §§ 2, 3; ch. 98, § 1.

Cross references. —

As to sentence and judgment generally, see Rule 33, W.R. Cr. P.

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Many of the cases below were decided under prior law.

Constitutionality. —

The death penalty provisions as set forth in this section and § 6-2-103 are not unconstitutional on their face. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

The Wyoming death penalty provisions are constitutional. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983); Hopkinson v. Shillinger, 645 F. Supp. 374, 1986 U.S. Dist. LEXIS 21918 (D. Wyo. 1986).

The Wyoming death penalty provisions are not unconstitutional; they do not usurp the supervisory and rule-making power of the supreme court nor expand its jurisdiction in violation of the Wyoming constitution. Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726, 1984 U.S. LEXIS 194 (U.S. 1984).

Wyoming's death penalty statute is a constitutional, weighing statute, despite the absence of weighing language, because the Wyoming statute permits the sentencer to consider only those aggravating circumstances enumerated in the statute and does not permit the jury to consider nonstatutory aggravating evidence as aggravating circumstances. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Each defendant sentenced separately. —

Each specific individual convicted of a capital offense must be separately dealt with in the decision to impose the death penalty; leniency in one case does not invalidate the death penalty in others. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

To justify death penalty for one who does not do actual killing, there must be present an intent that a killing will take place or that lethal force will be employed. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Instruction on defendant's due process rights not necessary. —

An instruction in a death penalty case, requiring the jury to determine that the defendant's constitutionally guaranteed right to due process of law has been adequately protected throughout the course of the proceedings, is not necessary. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Defendant cannot challenge death penalty provisions where he is given life sentence. See Alberts v. State, 642 P.2d 447, 1982 Wyo. LEXIS 315 (Wyo. 1982).

Jury right upon retrial after remand. —

After an appeal and remand for new sentencing trial, if the previous conviction had been by jury, then there must now be a sentencing trial with a new jury impaneled for that purpose, unless the defendant exercises his right to waive a jury in the resentencing phase. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Appellate review of finding of aggravating circumstances. —

All aggravating circumstances are, on review, measured as to the sufficiency of the evidence beyond a reasonable doubt according to the standard set by Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, 1979 U.S. LEXIS 10 (1979). The question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Underlying felony not used as aggravating factor. —

Where an underlying felony is used to convict a defendant of felony murder only, elements of the underlying felony may not again be used as an aggravating factor in the sentencing phase. Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991) (decided under facts existing prior to 1989 amendment) (overruling Engberg v. State).

Use of underlying felony where defendant convicted of first-degree murder. —

Where defendant, charged with committing premeditated first-degree murder and felony murder, was convicted of both, the court properly instructed the jury that it could consider that defendant was engaged in a robbery when deciding whether or not to impose the death penalty. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Previous convictions within subsection (h)(ii) may occur contemporaneously in same prosecution in which the death penalty is recommended by the jury. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

Unnecessarily torturous. —

Wyo. Stat. Ann. § 6-2-102 has eliminated the use of “heinous” and limited those first degree murders deserving the death penalty to those “especially atrocious and cruel, being unnecessarily torturous to the victim.” The language is not unconstitutionally vague. Plainly the second phrase describes the first phrase and is deliberately joined to mean that the murder is “especially atrocious and cruel” because it is “unnecessarily torturous to the victim.” Torture is established as a core element of this particular aggravating factor; strictly construed, the standard set by this aggravating fact will be met by those murders which are accompanied by intentionally inflicted torture, either physical or mental, distinguishable from the usual, the ordinary, the normal sort of homicide in the typical murder case. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

To prevent lawful arrest. —

Sufficient evidence supported the finding that the aggravating circumstance of committing murder for the purpose of avoiding lawful arrest existed where the defendant stated that none of the victims resisted him during the robbery and the robbery was accomplished before he shot them, and that he shot the victims because they could identify him. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

“Heinous” murder. —

A murder, to be classified as heinous under subsection (h)(vii), must demonstrate that the consciencelessness of the defendant is not only an outrage but also a dangerous and unrestrainable threat to society. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

“Atrocious” and “cruel.” —

To be classified as “atrocious” and “cruel” under subsection (h)(vii), a murder must be a conscienceless or pitiless crime which is unnecessarily torturous to the victim. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

Great risk of harm to others. —

The court improperly applied the aggravating factor of knowingly creating a great risk of death to two or more persons where the State did not present any evidence or suggest that there were other bystanders involved who were threatened with grave harm as defendant shot his intended victims while committing a bar robbery; the statute shows no evidence of a legislative intent that all multiple homicides be subject to the death penalty. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

“Extreme mental or emotional disturbance.” —

Mental distress, depression, suicidal tendencies, along with previous alcohol and drug abuse, can hardly be considered to be “extreme,” as required by paragraph (j)(ii), such as to mitigate the seriousness of the crime; these reasons cannot excuse the defendant from the death penalty, where they seem to be the result of the sort of life the defendant has elected to lead. Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726, 1984 U.S. LEXIS 194 (U.S. 1984).

Consideration of mitigating factors. —

In the appellate review process, it must be apparent that the jury, through the verdict form, considered any constitutionally relevant mitigating evidence; in the selection phase, the sentencer may not be precluded from considering, and may not refuse to consider, any constitutionally relevant mitigating evidence. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Inadmissibility of victim impact statements in death penalty cases. —

Neither the Wyo. Stat. Ann. § 6-2-102 death penalty statute nor Wyo. Stat. Ann. §§ 7-21-101 through 103 general victim impact statutes authorize the introduction of victim impact evidence during capital sentencing, and the trial court errs in allowing its introduction; such error, however, is subject to harmless error analysis. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Jury is free to consider mitigating factors other than those specifically enumerated in subsection (j). Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

Mitigating circumstances need not be found unanimously. —

The jury must be told by the trial court in a death sentence case that mitigating circumstances need not be found unanimously by the jury, but that mitigating circumstances may be found by individual jurors and weighed by them individually in deciding the life or death question. Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991) (decided under facts existing prior to 1989 amendment).

Erroneous jury instructions. —

Where in a capital murder case the jury received inconsistent instruction in the steps of the statutory process it was to engage in and no useful instruction in how it was to engage in this statutory process, the case was remanded. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

District judge had no jurisdiction to reduce death sentence, supported by sufficient evidence, to life imprisonment under Rule 35, W.R.Cr.P., because to have done so would have been in direct conflict with the legislative mandate of this section. Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo.), cert. denied, 474 U.S. 1026, 106 S. Ct. 582, 88 L. Ed. 2d 564, 1985 U.S. LEXIS 4837 (U.S. 1985).

Stated in

Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984).

Cited in

Turner v. State, 624 P.2d 774, 1981 Wyo. LEXIS 300 (Wyo. 1981); Osborn v. Schillinger, 639 F. Supp. 610, 1986 U.S. Dist. LEXIS 23167 (D. Wyo. 1986); Harlow v. State, 2003 WY 69, — P.3d —, 2003 Wyo. LEXIS 86 (Wyo. May 29, 2003).

Law reviews. —

See article, “The Evolution of Capital Punishment in Wyoming: A Reconciliation of Social Retribution and Humane Concern?” XIII Land & Water L. Rev. 865 (1978).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For case note, “Is the Current Test of the Constitutionality of Capital Punishment Proper? Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982),” see XVII Land & Water L. Rev. 681 (1982).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Constitutional Law — Double Jeopardy — The New Role of Double Jeopardy in Capital Sentencing. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983),” see XIX Land & Water L. Rev. 743 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For case note, “Constitutional Law — Does the New Death Qualification Standard Ensure a Biased Jury? Wainwright v. Witt, 469 U.S. 412, 83 L. Ed. 2d 841, 105 S. Ct. 844, 1985 U.S. LEXIS 43 (1985),” see XXI Land & Water L. Rev. 579 (1986).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of imposition of death sentence by state court following jury's recommendation of life imprisonment or lesser sentence, 8 ALR4th 1028.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Homicide: physician's withdrawal of life supports from comatose patient, 47 ALR4th 18.

Admissibility of expert testimony as to appropriate punishment for convicted defendant, 47 ALR4th 1069.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was heinous, cruel, depraved or the like — post-Gregg cases, 63 ALR4th 478.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed to avoid arrest or prosecution, to effect escape from custody, to hinder governmental function or enforcement of law and the like — post-Gregg cases, 64 ALR4th 755.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that in committing murder, defendant created risk of death or injury to more than one person, to many persons and the like — post-Gregg cases, 64 ALR4th 837.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant was previously convicted of or committed other violent offense, had history of violent conduct, posed continuing threat to society and the like — post-Gregg cases, 65 ALR4th 838.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed for pecuniary gain, as consideration or in expectation of receiving something of monetary value and the like — post-Gregg cases, 66 ALR4th 417.

Sufficiency of evidence, for death penalty purposes, to establish statutory aggravating circumstance that murder was committed in course of committing, attempting or fleeing from other offense, and the like — post-Gregg cases, 67 ALR4th 887.

Sufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that defendant committed murder while under sentence of imprisonment, in confinement or correctional custody, and the like — post-Gregg cases, 67 ALR4th 942.

Validity and construction of “extreme indifference” murder statute, 7 ALR5th 758.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 ALR5th 831.

Propriety, under federal constitution, of evidence or argument concerning deterrent effect of death penalty, 78 ALR Fed 553.

What constitutes unusually “vulnerable” victim under sentencing guideline § 3A1.1 permitting increase in offense level, 114 ALR Fed 355.

Propriety of carrying out death sentences against mentally ill individual, 111 ALR5th 491.

§ 6-2-103. Review of death sentences; notice from clerk of trial court; factors to be considered by supreme court; disposition of appeal.

  1. The judgment of conviction and sentence of death is subject to automatic review by the supreme court of Wyoming within one hundred twenty (120) days after certification by the sentencing court of the entire record, unless the time is extended for an additional period not to exceed sixty (60) days by the supreme court for good cause shown. Such review by the supreme court shall have priority over all other cases.
  2. Within ten (10) days after receiving the transcript, the clerk of the trial court shall transmit the entire record and transcript to the supreme court of Wyoming together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title and docket number of the case, the name of the defendant and the name and address of his attorney, a statement of the judgment, the crime and punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the supreme court of Wyoming.
  3. The supreme court of Wyoming shall consider the punishment as well as any errors enumerated by way of appeal.
  4. With regard to the sentence, the court shall determine if:
    1. The sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;
    2. The evidence supports the jury’s or judge’s finding of an aggravating circumstance as enumerated in W.S. 6-2-102 and mitigating circumstances.
    3. Repealed by Laws 1989, ch. 171, § 2.
  5. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, may:
    1. Affirm the sentence of death;
    2. Set the sentence aside and impose a sentence of life imprisonment without parole, or life imprisonment; or
    3. Set the sentence aside and remand the case for resentencing.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1989, ch. 171, §§ 1, 2; 2001, ch. 96, § 2.

Cross references. —

As to stay of execution and relief pending appeal, see Rule 5.01, W.R.A.P.

Constitutionality. —

The death penalty provisions as set forth in § 6-2-102 and this section are not unconstitutional on their face. Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (U.S. 1982).

The Wyoming death penalty provisions are not unconstitutional; they do not usurp the supervisory and rule-making power of the supreme court nor expand its jurisdiction in violation of the Wyoming constitution. Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726, 1984 U.S. LEXIS 194 (U.S. 1984).

Limitation of considerations in postconviction proceedingsnot unconstitutional because of this section. —

Limiting capital defendant's post-conviction relief to non-sentencing matters did not deny him his Eight Amendment right to be free from cruel and unusual punishment. Every criminal defendant has the right to address any and all sentencing issues in his or her direct appeal, including the question of cruel and unusual punishment. This section specifically directs the state supreme court to consider sentencing issues in the automatic review of capital sentences, and the inmate received the benefit of just such a review in his 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).

Automatic supreme court review. —

Wyoming Supreme Court customarily considers the requirements imposed by Wyo. Stat. Ann. § 6-2-103 in death penalty cases even when review is sought by the defendant and that review is not simply the automatic review contemplated by § 6-2-103 .Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo., cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003).

Speculation. —

To hold that a defendant's death sentence is disproportionate to the defendant's codefendants' life sentences would require an appeals court to speculate about the aggravating circumstances and the mitigating circumstances that may have been determined in order to make the codefendants' situations truly analogous to the defendant's; an appeals court cannot engage in speculation as to facts not presented in the record. Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo., cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003).

Appellate review of finding of aggravating circumstances. —

All aggravating circumstances are, on review, measured as to the sufficiency of the evidence beyond a reasonable doubt according to the standard set by Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560, 1979 U.S. LEXIS 10 (1979). The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo.), cert. denied, 464 U.S. 908, 104 S. Ct. 262, 78 L. Ed. 2d 246 (U.S. 1983).

Death penalty imposed for felony murder during armed robberynot excessive or disproportionate. —

See Engberg v. State, 686 P.2d 541, 1984 Wyo. LEXIS 301 (Wyo.), cert. denied, 469 U.S. 1077, 105 S. Ct. 577, 83 L. Ed. 2d 516, 1984 U.S. LEXIS 4708 (U.S. 1984).

Accomplices in crime need not be sentenced alike, as a sentence should be patterned to the individual defendant. Leniency in one case does not invalidate the death penalty in others. Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1331, 79 L. Ed. 2d 726, 1984 U.S. LEXIS 194 (U.S. 1984).

Quoted in

Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo. 1985).

Cited in

Turner v. State, 624 P.2d 774, 1981 Wyo. LEXIS 300 (Wyo. 1981).

Law reviews. —

See article, “The Evolution of Capital Punishment in Wyoming: A Reconciliation of Social Retribution and Humane Concern?” XIII Land & Water L. Rev. 865 (1978).

For case note, “Is the Current Test of the Constitutionality of Capital Punishment Proper? Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981), cert. denied, 455 U.S. 922, 102 S. Ct. 1280, 71 L. Ed. 2d 463, 1982 U.S. LEXIS 698 (1982),” see XVII Land & Water L. Rev. 681 (1982).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For case note, “Constitutional Law — Double Jeopardy — The New Role of Double Jeopardy in Capital Sentencing. Hopkinson v. State, 664 P.2d 43, 1983 Wyo. LEXIS 325 (Wyo. 1983),” see XIX Land & Water L. Rev. 743 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

§ 6-2-104. Murder in the second degree; penalty.

  1. Except as provided in W.S. 6-2-109 , whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree, and shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life.
  2. A person is guilty of murder in the second degree of an unborn child if:
    1. The person purposely and maliciously, but without premeditation, kills or attempts to kill any human being;
    2. The human being was pregnant with an unborn child; and
    3. The unborn child dies as a result of the person’s actions.
  3. A person guilty of murder in the second degree of an unborn child shall be imprisoned in the penitentiary for any term not less than twenty (20) years, or during life.

History. Laws 1982, ch. 75, § 3; 2010, ch. 54, § 2; 2021, ch. 116, § 1.

The 2010 amendment, effective July 1, 2010, added “Except as provided in W.S. 6-2-109 .”

The 2021 amendment, effective July 1, 2021, designated the existing provision as (a); and added (b) and (c).

I.General Consideration.

Constitutionality. —

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because defendant failed to demonstrate that the statutes for aggravated assault and battery and for attempted second-degree murder were unconstitutionally vague, either on their face or as applied to the facts of defendant's case. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

Proof necessary to sustain conviction. —

In order to sustain a conviction of second-degree murder, the state must prove beyond a reasonable doubt that the defendant killed the victim purposely, meaning intentionally or deliberately, and maliciously. Kennedy v. State, 422 P.2d 88, 1967 Wyo. LEXIS 132 (Wyo. 1967). See also State v. Bruner, 78 Wyo. 111, 319 P.2d 863, 1958 Wyo. LEXIS 1 (Wyo. 1958); Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963); Reeder v. State, 515 P.2d 969, 1973 Wyo. LEXIS 187 (Wyo. 1973).

Generally, evidence that death caused by an open hand slap without more is insufficient evidence of malice and, therefore, is not murder. Lopez v. State, 2004 WY 28, 86 P.3d 851, 2004 Wyo. LEXIS 35 (Wyo. 2004).

Evidence sufficient for conviction.—

District court did not err when it denied defendant’s motion for acquittal on attempted second-degree murder, where police officers testified that as soon as defendant heard the window break, there began a rapid succession of gunshots, and it sounded as if the defendant was rapidly moving in the officers’ direction firing. Pickering v. State, 2020 WY 66, 464 P.3d 236, 2020 Wyo. LEXIS 74 (Wyo. 2020).

Prosecutor need not disprove heat-of-passion theory. —

The prosecutor need not disprove a heat-of-passion theory in a second-degree murder case because proof that the defendant acted maliciously nullifies that theory. Yung v. State, 906 P.2d 1028, 1995 Wyo. LEXIS 200 (Wyo. 1995), reh'g denied, 1995 Wyo. LEXIS 219 (Wyo. Dec. 5, 1995).

And there is no constitutional infirmity in requiring defendant to establish heat-of-passion theory. — Yung v. State, 906 P.2d 1028, 1995 Wyo. LEXIS 200 (Wyo. 1995), reh'g denied, 1995 Wyo. LEXIS 219 (Wyo. Dec. 5, 1995).

Conviction supported by evidence of deliberate action. —

Because second-degree murder is a general intent crime, a conviction murder must be supported by evidence that the defendant acted with deliberation, but it does not require evidence that he deliberately killed. Ramos v. State, 806 P.2d 822, 1991 Wyo. LEXIS 22 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 41 (Wyo. Mar. 15, 1991).

Evidence was sufficient to support defendant's second-degree murder conviction because it showed that the victim went to the home where defendant lived to buy drugs, that the victim was seen getting into a truck similar to that owned by defendant shortly before her body was discovered, that defendant's semen was found inside the victim's body, and that sexual intercourse occurred shortly before the victim's death; although evidence that defendant had committed the murder was circumstantial, the jury was permitted to make reasonable inferences, and it was logical to infer based upon the evidence presented that defendant killed the victim. Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Wyo. 2009).

Elements of first- and second-degree murder identical in part. —

The elements of the lesser offense of murder in the second degree are identical to part of the elements of murder in the first degree, as both contain the elements of the killing of a human being with malice and purpose. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981).

Premeditation separates first-degree murder from second-degree murder. —

First degree murder is a specific intent crime, requiring proof of the element of intent, while second degree murder is a general intent crime, requiring only proof of the element of voluntariness. Premeditation is the specific intent element which distinguishes the two types of murder. Bouwkamp v. State, 833 P.2d 486, 1992 Wyo. LEXIS 73 (Wyo. 1992).

Sentencing court's discussion of premeditation amounted to harmless error, where defendant's sentence fell within statutorily prescribed range for second-degree murder and outside range for first-degree murder. Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).

Differences in first degree murder and second degree murder. —

The real difference between first degree murder and second degree murder must be that the accused must have formed a decision to kill the victim to be guilty of first degree murder; for the defendant to be guilty of second degree murder, he must only have acted purposely with the consequence of his purposeful action being the death of the victim. Young v. State, 849 P.2d 754, 1993 Wyo. LEXIS 65 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 81 (Wyo. Apr. 21, 1993).

The differences in the offenses of first degree murder and second degree murder are the element of premeditation and the nature of the criminal intent; first degree murder is a specific intent crime, requiring proof the defendant killed purposely and with premeditation, while second degree murder is a crime of general intent, requiring proof only of acting purposely or voluntarily. Young v. State, 849 P.2d 754, 1993 Wyo. LEXIS 65 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 81 (Wyo. Apr. 21, 1993).

Defendant's attempt to commit second-degree murder was complete when he stabbed victim with the ice pick; that he stabbed her eight more times leaves little doubt but that he had attempted to kill her. If calling an ambulance saved her life, it also saved defendant from being convicted of the crime of murder and perhaps a more severe sentence, but, with respect to the attempt, that crime was complete, as he had passed beyond the point at which abandonment was legally possible. Accordingly, he was not entitled to an instruction on that defense. Ramirez v. State, 739 P.2d 1214, 1987 Wyo. LEXIS 470 (Wyo. 1987).

Reversal denied when evidence of malice and intent present to counter defendant's testimony. —

Reversal will be denied, despite the Eagan Rule which holds that, when the defendant is the sole witness of an alleged crime, his testimony, if not impeached, nor improbable, nor inconsistent with other facts shown, must be accepted, where there is other and sufficient evidence of malice and intent, as the jury will not be held to have arbitrarily rejected the defendant's testimony in explanation of his actions. Leitel v. State, 579 P.2d 421, 1978 Wyo. LEXIS 295 (Wyo. 1978). See also Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 1942 Wyo. LEXIS 19 (Wyo. 1942).

Whether purpose and malice or sudden heat of passion question of fact. —

Whether a homicide is committed upon a sudden heat of passion or purposely and maliciously depends upon circumstances and conditions which the trier of fact is entitled to interpret. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

If an “uncontrollable passion” is found, it is again for the jury to decide whether that passion brought about the purpose to kill or the purpose to kill brought about the uncontrollable passion. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

Proof of corpus delicti. —

With respect to homicide cases which do not involve the death of a newborn infant, proof of the corpus delicti consists of proof of the fact of death by the criminal agency of another. Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

Proof of defendant's connection with the crime as the operative agent, although essential for conviction, is not part of the corpus delicti. Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

To establish the corpus delicti in a prosecution for the killing of a newborn child these elements must concur: (a) the infant was born alive; and (b) death was caused by the criminal agency of the accused. Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

Best proof of corpus delicti is finding and inspection of the dead body. See Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

Criminal agency causing death may be proved by circumstantial evidence and the reasonable inferences to be drawn therefrom. Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

Sufficient evidence of criminal agency. —

Where probable cause of death was asphyxia (not necessarily caused by criminal agency), but there was a rather elaborate attempt to conceal the body by wrapping it and tying a cement block to it and depositing it in a lake, there was sufficient evidence to warrant a conclusion that death was caused by criminal agency. Alcala v. State, 487 P.2d 448, 1971 Wyo. LEXIS 233 (Wyo. 1971).

Bad act testimony admissible. —

In prosecution for second-degree murder, prior bad act testimony admissible as proof of identity, intent and malice. See Suliber v. State, 866 P.2d 85, 1993 Wyo. LEXIS 205 (Wyo. 1993).

Not logically impossible for person to attempt a general intent crime. —

In trying defendant, who had robbed victim, tried to kill her, and left her for dead, the court held that it was not legally or logically impossible for a person to attempt a general intent crime; thus, the elements of an attempt and second-degree murder were not mutually exclusive. Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002).

Included offenses. —

Where information contained all the elements of both first- and second-degree murder, defendant who pleaded guilty to second-degree murder could be sentenced for that degree. Hollibaugh v. Hehn, 13 Wyo. 269, 79 P. 1044, 1905 Wyo. LEXIS 10 (Wyo. 1905).

Information charging first-degree murder includes charge of murder in second degree, and treating additional allegations for first-degree murder as surplusage or as not confessed, court has jurisdiction to pass sentence on defendant's plea of guilty of second-degree murder. Smith v. Roach, 56 Wyo. 205, 106 P.2d 536, 1940 Wyo. LEXIS 36 (Wyo. 1940).

One charged with assault and battery with intent to commit murder in the second degree may be convicted of assault and battery with intent to commit voluntary manslaughter, the latter being included in the offense of murder in second degree. Ivey v. State, 24 Wyo. 1, 154 P. 589, 1916 Wyo. LEXIS 6 (Wyo. 1916).

Aggravated assault and battery instruction not warranted by facts. —

In a prosecution for attempted second-degree murder, defendant was not entitled to an instruction on aggravated assault and battery, as the latter does not include any elements of the former. Bilderback v. State, 13 P.3d 249, 2000 Wyo. LEXIS 218 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 221 (Wyo. Dec. 5, 2000), modified, 2000 Wyo. LEXIS 231 (Wyo. Dec. 15, 2000), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Voluntary manslaughter instruction not warranted by facts. —

In a prosecution for attempted second-degree murder, defendant was not entitled to an instruction on voluntary manslaughter, which would have been appropriate only if he had claimed some other reason for his actions other than the malicious action contained within the attempted second-degree murder elements; his claim that he was frightened by unknown persons in Nebraska could not provide justification for shooting a law enforcement officer who stopped him for speeding. Bilderback v. State, 13 P.3d 249, 2000 Wyo. LEXIS 218 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 221 (Wyo. Dec. 5, 2000), modified, 2000 Wyo. LEXIS 231 (Wyo. Dec. 15, 2000), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Crime of voluntary manslaughter is lesser included offense of crime of second-degree murder. State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993).

Veto of lesser included offense instructions. —

Trial court erred in refusing to give the lesser included offense instructions on the ground that Eckert v. State, 680 P.2d 478, 1984 Wyo. LEXIS 281 (Wyo. 1984) afforded the defendant the right to waive them and the state would be bound by such a waiver. Properly applied, Eckert does not extend to affording a defendant in a criminal case the right of veto of lesser included offense instructions. State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993).

Provocation by victim, not third person, reduces murder to manslaughter. —

In a prosecution for second-degree murder, an instruction was a correct statement of the law in providing that to reduce murder to manslaughter, the defendant's heat of passion must have resulted from provocation by the victim, not by a third person. Krucheck v. State, 702 P.2d 1267, 1985 Wyo. LEXIS 514 (Wyo. 1985).

Court need not instruct on manslaughter where defendant objects. —

The trial court does not have a duty to instruct on manslaughter in the face of the defendant's objection to such an instruction at trial. Eckert v. State, 680 P.2d 478, 1984 Wyo. LEXIS 281 (Wyo. 1984).

Duty to retreat. —

Prior to resorting to deadly force, a defendant has a duty to pursue reasonable alternatives under the circumstances. Among those reasonable alternatives may be the duty to retreat. Garcia v. State, 667 P.2d 1148, 1983 Wyo. LEXIS 347 (Wyo. 1983).

Voluntary intoxication is no defense to a charge of murder in the second degree. Teton v. State, 482 P.2d 123, 1971 Wyo. LEXIS 204 (Wyo. 1971).

Second-degree murder is a general-intent crime to which intoxication is no defense, and any contrary language in Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978), overruled on other grounds, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986), is superceded. Crozier v. State, 723 P.2d 42, 1986 Wyo. LEXIS 595 (Wyo. 1986), overruled, Wilkerson v. State, 2014 WY 136, 336 P.3d 1188, 2014 Wyo. LEXIS 158 (Wyo. 2014).

Self-defense. —

To justify a homicide on the ground of self-defense, it must appear the defendant was in great peril of death or serious bodily harm, or had reasonable ground for believing and did believe he was in such peril, and the killing was necessary to avert such peril, and no other reasonable means of avoiding it was open to him. Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963).

The obvious nature or quality of the plea of self-defense is that of justification or excuse for an otherwise unlawful homicide or aggravated assault and battery. Mewes v. State, 517 P.2d 487, 1973 Wyo. LEXIS 194 (Wyo. 1973).

In defendant's trial on charges of aggravated assault and battery and attempted second-degree murder following an altercation with a romantic rival, the trial court did not err in instructing the jury that the right of self-defense was not available to one who was the aggressor or provoked the conflict because the evidence supported the giving of this instruction where the victim testified that defendant had been the aggressor. Although defendant presented a contradictory version of the incident, the district court was not charged with resolving that conflict, which was within the jury's province. Causey v. State, 2009 WY 111, 215 P.3d 287, 2009 Wyo. LEXIS 119 (Wyo. 2009), reh'g denied, 2009 Wyo. LEXIS 134 (Wyo. Sept. 29, 2009).

Court properly refused defendant's requested instruction on self-defense, where the only evidence to support the defendant's theory was his own testimony, and the evidence simply did not indicate that the defendant could reasonably believe that he was in immediate danger of losing his life or of suffering serious bodily injury. Ramos v. State, 806 P.2d 822, 1991 Wyo. LEXIS 22 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 41 (Wyo. Mar. 15, 1991).

Evidence sufficient to show purpose and malice. —

In defendant's trial on a charge of second-degree murder, evidence was sufficient to establish that defendant acted purposely because, as used in this section, “purposely” meant “intentionally,” and evidence that the victim had been hit on the head more than once, that she had been run over more than once, that she suffered significant head trauma, and that her body was found 50 feet off the road was sufficient to support the jury's conclusion that the homicide was committed purposely and with malice. Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Wyo. 2009).

See Cutbirth v. State, 663 P.2d 888, 1983 Wyo. LEXIS 329 (Wyo. 1983).

Evidence sufficient for conviction. —

See Suliber v. State, 866 P.2d 85, 1993 Wyo. LEXIS 205 (Wyo. 1993).

Evidence was sufficient to support defendant's conviction of second-degree murder under the definition of malice provided at trial where defendant blindsided the victim with a closed-fist punch and after the victim was knocked to the ground defendant stomped or kicked in his direction and delivered a taunting statement. Wilkerson v. State, 2014 WY 136, 336 P.3d 1188, 2014 Wyo. LEXIS 158 (Wyo. 2014).

Sentence of life imprisonment not invalid. —

Even though this section provides that one guilty be imprisoned “for any term not less than 20 years, or during life,” a sentence of life imprisonment was not invalid because there was no maximum nor minimum term set by the court. Jaramillo v. State, 517 P.2d 490, 1974 Wyo. LEXIS 171 (Wyo. 1974).

Life sentence with no minimum term imposed on defendant convicted of second degree murder was not invalid. Ryan v. State, 988 P.2d 46, 1999 Wyo. LEXIS 153 (Wyo. 1999).

Sentence held not abuse of discretion. —

See Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

Sentence of minor defendant to a term of not less than 20 nor more than 40 years in the Wyoming state penitentiary based upon a guilty plea to the charge of second-degree murder in violation of this section was not an abuse of the trial court's discretion. Apodaca v. State, 571 P.2d 603, 1977 Wyo. LEXIS 299 (Wyo. 1977).

The sentencing judge did not abuse his discretion in imposing a sentence of not less than 28 years nor more than life. This section provides for a sentence of not less than 20 years or during life, and the sentence imposed was within the statutory limits. Holmes v. State, 715 P.2d 196, 1986 Wyo. LEXIS 506 (Wyo. 1986), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Sentence a violation of double jeopardy. —

Even though the offense of use of a firearm while committing a felony has different elements than the offense of attempted second-degree murder, and the state was entitled to charge defendant with both offenses, where the jury convicted defendant on both offenses, the charges merged and only one sentence should have been imposed. Bilderback v. State, 13 P.3d 249, 2000 Wyo. LEXIS 218 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 221 (Wyo. Dec. 5, 2000), modified, 2000 Wyo. LEXIS 231 (Wyo. Dec. 15, 2000), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Consecutive sentences for aggravated assault and attempted second degree murder.—

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because there was no double jeopardy violation in that aggravated assault and battery was not the same offense as attempted second-degree murder pursuant to the same-elements test. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

Sentencing ranges. —

In defendant's attempted second degree murder case, the court's error in failing to properly advise defendant pursuant to Wyo. R. Crim. P. 11 was not harmless because, had the court recited the minimum and maximum penalties at the change of plea hearing, the fact that the State could not recommend a maximum sentence of 20 years would have become obvious. Thus, the court's acceptance of a plea agreement which included an illegal sentence recommendation further undermined the validity of defendant's no contest pleas. Thomas v. State, 2007 WY 186, 170 P.3d 1254, 2007 Wyo. LEXIS 198 (Wyo. 2007).

Defendant's sentence was illegal as it violated the statutory requirement that the minimum term may not be more than ninety percent of the maximum term, Wyo. Stat. Ann. § 6-2-104 ; because of defendant's motion to correct the illegal sentence, Wyo. R. Crim. P. 35(a), the district court correctly increased the maximum term and did not violate the double jeopardy provisions of Wyo. Const. art. I, § 11 or U.S. Const. amend. V. Moronese v. State, 2012 WY 34, 271 P.3d 1011, 2012 Wyo. LEXIS 35 (Wyo. 2012).

Appellant's sentence of 20-22 years under this section for accessory to second degree murder was illegal, because it violated the requirement of Wyo. Stat. Ann. § 7-13-201 that the minimum sentence be no more than 90% of the maximum sentence. Patterson v. State, 2012 WY 90, 279 P.3d 535, 2012 Wyo. LEXIS 95 (Wyo. 2012).

Jury instructions. —

Defendant's conviction for attempted second-degree murder was proper because the jury instructions, as a whole, adequately informed the jury that it had to find that defendant acted purposely and maliciously; the instructions were not in clear and obvious violation of an established and unequivocal rule of law. Burnett v. State, 2011 WY 169, 267 P.3d 1083, 2011 Wyo. LEXIS 175 (Wyo. 2011).

Applied in

Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Raigosa v. State, 562 P.2d 1009, 1977 Wyo. LEXIS 246 (Wyo. 1977); Ortega v. State, 669 P.2d 935, 1983 Wyo. LEXIS 367 (Wyo. 1983); Krucheck v. State, 671 P.2d 1222, 1983 Wyo. LEXIS 372 (Wyo. 1983); Summers v. State, 725 P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986); Johnson v. State, 2015 WY 118, 2015 Wyo. LEXIS 133 (Sept. 3, 2015); Sanchez v. State, 2017 WY 70, 397 P.3d 180, 2017 Wyo. LEXIS 71 (Wyo. 2017).

Quoted in

McDaniel v. State, 632 P.2d 534, 1981 Wyo. LEXIS 367 (Wyo. 1981); Spilman v. State, 633 P.2d 183, 1981 Wyo. LEXIS 372 (Wyo. 1981); Williams v. State, 692 P.2d 233, 1984 Wyo. LEXIS 352 (Wyo. 1984); Sanchez v. State, 694 P.2d 726, 1985 Wyo. LEXIS 440 (Wyo. 1985); Murry v. State, 713 P.2d 202, 1986 Wyo. LEXIS 459 (Wyo. 1986); Fondren v. State, 724 P.2d 461, 1986 Wyo. LEXIS 608 (Wyo. 1986); Flores v. State, 822 P.2d 369, 1991 Wyo. LEXIS 188 (Wyo. 1991); Johnson v. State, 930 P.2d 358, 1996 Wyo. LEXIS 178 (Wyo. 1996).

Cited in

Brantley v. State, 9 Wyo. 102, 61 P. 139, 1900 Wyo. LEXIS 7 (1900); Nisonger v. State, 581 P.2d 1094, 1978 Wyo. LEXIS 204 (Wyo. 1978); Peterson v. State, 586 P.2d 144, 1978 Wyo. LEXIS 238 (Wyo. 1978); Dichard v. State, 844 P.2d 484, 1992 Wyo. LEXIS 207 (Wyo. 1992); Vigil v. State, 859 P.2d 659, 1993 Wyo. LEXIS 148 (Wyo. 1993); Beck v. State, 2005 WY 56, 110 P.3d 898, 2005 Wyo. LEXIS 64 (2005); Patterson v. State, 2013 WY 153, 314 P.3d 759, 2013 Wyo. LEXIS 159 , 2013 WL 6665023 (Dec 18, 2013).

Law reviews. —

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For article, “The Crime That Wasn't There: Wyoming's Elusive Second-Degree Murder Statute”, see 7 Wyo. L. Rev. 1 (2008).

Am. Jur. 2d, ALR and C.J.S. references. —

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 ALR3d 925.

Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 ALR4th 983.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 ALR5th 449.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 ALR5th 637.

II.Purpose.

Meaning of “purposely.” —

By definition the word “purposely” means intentionally or deliberately. Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963).

“Purposely” denotes intent. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977) (commented on in XIII Land & Water L. Rev. 613 (1978)). Cullin v. State, 565 P.2d 445, 1977 Wyo. LEXIS 262 (Wyo. 1977).

Intent not presumed. —

In the absence of concrete evidence on the part of the state to show intent, and in the absence of anything to contradict or impeach the testimony of defendant and his wife, there can be no presumption of law on intent. Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963).

And the specific intent to kill must be proven as any other fact in a case. Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963).

But use of deadly weapon gives rise to presumption of intent to kill. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

Instructions held not to relieve state of proving intent beyond reasonable doubt as essential element of second-degree murder. —

See Cullin v. State, 565 P.2d 445, 1977 Wyo. LEXIS 262 (Wyo. 1977) (commented on in XIII Land & Water L. Rev. 613 (1978)).

III.Malice.

Meaning of “malice.” —

The term “malice,” as used in the law of homicide, has often been defined as the intentional killing of a human being by another, without legal justification or excuse and under circumstances which are insufficient to reduce the crime to manslaughter. Nunez v. State, 383 P.2d 726, 1963 Wyo. LEXIS 95 (Wyo. 1963).

Use of deadly weapon in a deadly and dangerous manner raises presumption of malice. Reeder v. State, 515 P.2d 969, 1973 Wyo. LEXIS 187 (Wyo. 1973).

However, use must be willful, intentional, deliberate or wanton for implication of malice to arise. State v. Bruner, 78 Wyo. 111, 319 P.2d 863, 1958 Wyo. LEXIS 1 (Wyo. 1958); Kennedy v. State, 422 P.2d 88, 1967 Wyo. LEXIS 132 (Wyo. 1967).

Jury instructions.—

Even though the jury instruction provided two correct statements of the law relating the second-degree murder, as it provided the correct definition of maliciously and stated that the act constituting the offense had to be done intentionally but without premeditation, by joining the two statements by the disjunctive “or” the instruction incorrectly gave the jury a choice between two definitions of malice, one of which omitted the necessary concept of reckless indifference. Widdison v. State, 2018 WY 18, 410 P.3d 1205, 2018 Wyo. LEXIS 18 (Wyo. 2018).

For purposes of second degree murder, although “malice” is simply the substantive form of the adverb, “maliciously,” it is preferable to define a term in the same form that it is used in the instruction and the statute; however, the district court did not abuse its discretion when it instructed the jury on the definitions of both “malice” and “maliciously” as its definition of “malice” correctly stated the law; and, while the district court incorrectly used the term “malice” - a different form of “maliciously” - substituting a noun for the adverb form of the same root word was not prejudicially confusing or misleading as either form would convey the same underlying meaning. Schmuck v. State, 2017 WY 140, 406 P.3d 286, 2017 Wyo. LEXIS 146 (Wyo. 2017).

District court did not err in instructing the jury, or when it did err, the error was not prejudicial to defendant regarding the court’s refusal to give defendant’s proposed instruction explaining defendant’s right to be armed; regarding the issue of self-defense, including the requirement to retreat or withdraw; regarding the State of Wyoming’s burden of proof as to sudden heat of passion; and regarding the definition of malice. Farrow v. State, 2019 WY 30, 437 P.3d 809, 2019 Wyo. LEXIS 30 (Wyo. 2019).

Double jeopardy violation not found. —

Defendant's convictions for aggravated assault and battery with a deadly weapon and attempted second degree murder—which were both premised upon defendant driving a vehicle through a yard and almost striking the victim—did not violate the prohibition against double jeopardy in that malice, an element of attempted second degree murder, did not necessarily include proof of the use of a deadly weapon, an element of aggravated assault and battery with a deadly weapon. Webb v. State, 2017 WY 108, 401 P.3d 914, 2017 Wyo. LEXIS 114 (Wyo. 2017).

Presumption of malice not mandatory. —

On plain error review, defendant was entitled to reversal of his conviction for attempted second degree murder because the trial court violated Wyo. R. Evid. 303(b) and the Fourteenth Amendment when it failed to instruct the jury that presumptions of malice and specific intent raised from the use of a deadly weapon were not mandatory presumptions. Hernandez v. State, 2007 WY 105, 162 P.3d 472, 2007 Wyo. LEXIS 115 (Wyo. 2007).

Evidence was sufficient to show the commission of a wanton act in the shooting of victim by accused. See Kennedy v. State, 422 P.2d 88, 1967 Wyo. LEXIS 132 (Wyo. 1967).

There was sufficient evidence to prove malice and to convict defendant of second-degree murder: he walked into his apartment and loaded his rifle with three bullets selected from a box of shells; after coming out of the apartment, he fired one shot in the air; he then pointed the rifle at the victim and fired the second shot about 14 seconds after the first; the wound was horizontal; he then put the third bullet in the chamber and walked to the dying victim and pointed the rifle at his head. Braley v. State, 741 P.2d 1061, 1987 Wyo. LEXIS 484 (Wyo. 1987).

Malice inferred from facts and circumstances. —

Malice may be inferred from the use of a deadly weapon in a dangerous and deadly manner if the facts and circumstances so allow. Malice may also be inferred from all the other facts and circumstances. Doe v. State, 569 P.2d 1276, 1977 Wyo. LEXIS 290 (Wyo. 1977); Leitel v. State, 579 P.2d 421, 1978 Wyo. LEXIS 295 (Wyo. 1978).

Evidence was sufficient to sustain a second degree murder conviction where defendant armed himself and instigated the confrontation with the victim, voiced hostile thoughts about the victim immediately before the slaying, and used a deadly weapon in a deadly manner, from which an inference of malice could be drawn. Butcher v. State, 2005 WY 146, 123 P.3d 543, 2005 Wyo. LEXIS 176 (Wyo. 2005), overruled, Wilkerson v. State, 2014 WY 136, 336 P.3d 1188, 2014 Wyo. LEXIS 158 (Wyo. 2014).

Evidence was sufficient to convict defendant of attempted second degree murder where the fact of the stabbing, together with testimony from the victim and other witnesses regarding defendant's confrontational behavior made it reasonable to infer that defendant stabbed the victim and did so purposely and with malice. Guy v. State, 2008 WY 56, 184 P.3d 687, 2008 Wyo. LEXIS 59 (Wyo. 2008), reh'g denied, 2008 Wyo. LEXIS 78 (Wyo. June 19, 2008).

Instruction that the jury could presume malice from the use of a deadly weapon was appropriate because the facts and circumstances allowed an instruction that malice could be permissively presumed or inferred from defendant's use of a pistol to kill the victim; the instruction properly explained that the jury could infer malice from the use of a deadly weapon, although it was not required to do so. Hereford v. State, 2015 WY 17, 342 P.3d 1201, 2015 Wyo. LEXIS 18 (Wyo. 2015).

District court did not err in instructing the jury that it could presume malice from the use of a deadly weapon because the instruction complied with the Fourteenth Amendment, controlling case law, and the requirements set out in the rule since it was not mandatory and did not shift the burden of proof; the presumption contained in the instruction was one that a reasonable juror could only view as permissive when it was read with all of the other instructions. Hereford v. State, 2015 WY 17, 342 P.3d 1201, 2015 Wyo. LEXIS 18 (Wyo. 2015).

Malice could not be inferred. —

Evidence of malice was insufficient to sustain a second degree murder conviction where defendant slapped the victim on the head with an open hand and then pushed him down on a couch; malice could not be inferred from those acts. Lopez v. State, 2004 WY 28, 86 P.3d 851, 2004 Wyo. LEXIS 35 (Wyo. 2004).

Vehicular homicide cases. —

It is difficult to define the line of demarcation between criminal negligence and recklessness in vehicular homicide cases in which the driver causing the accident fell asleep at the wheel, and the distinction is whether the defendant consciously disregarded a substantial and unjustifiable risk, or whether he failed, through negligence, to perceive that risk; what distinguishes the felony from the misdemeanor is the level of awareness of a substantial and unjustifiable risk, and the degree of conscious disregard or perception depends upon the facts of each case. Barrowes v. State, 2017 WY 23, 390 P.3d 1126, 2017 Wyo. LEXIS 23 (Wyo. 2017).

Recklessness found where defendant fell asleep at wheel.—

Where defendant fell asleep at the wheel of his double trailer rig and caused a fatal crash, the jury could have found he consciously disregarded a substantial risk because he knew he was tired but continued to drive, he admitted he consciously put his schedule ahead of tiredness, and the risk of death from a crash involving his vehicle was substantial; the jury could have gone either way, but it was the jury's decision to make, and the evidence was sufficient to support the conviction of aggravated homicide by vehicle. Barrowes v. State, 2017 WY 23, 390 P.3d 1126, 2017 Wyo. LEXIS 23 (Wyo. 2017).

Consecutive sentences for attempted voluntary manslaughter. —

In a case in which defendant pleaded guilty to two counts of attempted voluntary manslaughter pursuant to a plea agreement, the district court did not err in sentencing defendant to two consecutive counts of 17 to 20 years of incarceration; while defendant's lack of prior criminal history, reports of his good character, alcohol dependence and abuse at the time of the crimes, and history of mental health issues were valid considerations in determining the reasonableness and proportionality of an appropriate sentence, so, too, were the aggravating factors presented by the prosecutor and the seriousness of defendant's conduct. Noel v. State, 2013 Wyo. LEXIS 170 (Wyo. Feb. 25, 2013).

§ 6-2-105. Manslaughter; penalty.

  1. A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, either:
    1. Voluntarily, upon a sudden heat of passion; or
    2. Involuntarily, but recklessly except under circumstances constituting a violation of W.S. 6-2-106(b).
  2. Except as provided in W.S. 6-2-109 , manslaughter is a felony punishable by imprisonment in the penitentiary for not more than twenty (20) years.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1985, ch. 215, § 2; 2010, ch. 54, § 2.

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

The 2010 amendment, effective July 1, 2010, in (b), added “Except as provided in W.S. 6-2-109 .”

Constitutionality. —

The terms “unlawful act,” “culpable neglect” and “criminal carelessness” in former manslaughter statute were not unconstitutionally vague and ambiguous. State v. Wilson, 76 Wyo. 297, 301 P.2d 1056, 1956 Wyo. LEXIS 43 (Wyo. 1956).

A sentence of 19 to 20 years for the offense of involuntary manslaughter does not violate federal and state bans on cruel and unusual punishment. Daniel v. State, 644 P.2d 172, 1982 Wyo. LEXIS 327 (Wyo. 1982).

Prosecution for homicide of fetus and assault on or killing of pregnant woman not double jeopardy. —

A defendant may be prosecuted both for the act of killing an unborn child during an assault and battery on a pregnant woman and for the assault and battery on the pregnant woman (or her killing) without violating the rule against double jeopardy. Goodman v. State, 601 P.2d 178, 1979 Wyo. LEXIS 473 (Wyo. 1979).

Former vehicular homicide provision unconstitutional. —

Former § 31-5-1117(b) (see now § 6-2-106(a)), as it existed prior to the 1983 revision of this title, was unconstitutional and inoperative, due to ambiguity and internal inconsistency; therefore, the defendant, who was involved in a vehicular homicide, could only be prosecuted under former § 6-4-107 (see now this section). State v. Sodergren, 686 P.2d 521, 1984 Wyo. LEXIS 300 (Wyo. 1984).

Construction with vehicular homicide statute. —

Equal protection argument that the involuntary manslaughter and aggravated vehicular homicide statutes govern the same conduct fails because the involuntary manslaughter and the vehicular homicide statutes do not govern identical or even substantially similar conduct; that both statutes proscribe an unintentional killing is not sufficient identity of the elements. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985).

Vehicular homicide statute (former § 31-5-1117(a)) did not bar conviction for manslaughter (former § 6-4-107). See Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Judicial decision as to charging defendant with manslaughter, not vehicular homicide, not unforeseeable. —

The decision in State v. Sodergren, 686 P.2d 521, 1984 Wyo. LEXIS 300 (Wyo. 1984), that manslaughter, under former § 6-4-107, was the appropriate charge, rather than vehicular homicide under former § 31-5-1117(a), (b), did not effect an unforeseeable expansion of narrow and precise statutory language by judicial interpretation, nor did it depart from the position taken by the supreme court in previous cases. The court was interpreting the vehicular homicide statute for the first time, so there was no prior interpretation upon which to rely. Furthermore, conduct such as the defendant's had long been recognized as falling within the ambit of the manslaughter statute. Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Conflicting-penalty provision inapplicable to contention that defendant charged with wrong crime. —

The defendant, who was properly charged with, and convicted of, manslaughter, but who contended throughout his trial and appeal that he should have been charged with vehicular homicide, was properly sentenced under this section. Both the previous and the current statutes proscribing manslaughter provide for a sentence of up to 20 years in the state penitentiary. The defendant's interpretation and application of § 6-1-101(c) (conflicting penalties) was inappropriate; he was never charged with or convicted of vehicular homicide. Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Elements of manslaughter, first- and second-degree murder identical in part. —

The elements of the lesser offense of manslaughter are identical to part of the elements of murder in the second degree and to part of those of murder in the first degree, as all three crimes contain the element of killing of a human being. State v. Selig, 635 P.2d 786, 1981 Wyo. LEXIS 383 (Wyo. 1981).

Not necessary to establish specific intent. —

To prove the crime of manslaughter, it is not necessary to establish a deliberate intent to kill or any other specific intent. Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977).

Nor malice. —

Where state showed that accused, in conversation with his brother, had threatened to kill decedent, refusal to permit accused to show the entire conversation and that he had told his brother that decedent ought to be disarmed, was not prejudicial to accused, his conviction being only for manslaughter, since part of conversation proved by the state was directed to point of malice and intent to kill on issue of murder in the first and second degrees. Hollywood v. State, 19 Wyo. 493, 120 P. 471, 1912 Wyo. LEXIS 7 (Wyo.), reh'g denied, 19 Wyo. 493, 122 P. 588, 1912 Wyo. LEXIS 8 (Wyo. 1912).

Heat of passion distinguishes manslaughter from murder. —

If a defendant maliciously kills another human being, he may be convicted of second-degree murder. If, however, the defendant kills in a heat of passion, the crime is voluntary manslaughter, not second-degree murder. Thus, the two elements, malice and heat of passion, constitute the distinguishing factors that differentiate between second-degree murder and voluntary manslaughter. Yung v. State, 906 P.2d 1028, 1995 Wyo. LEXIS 200 (Wyo. 1995), reh'g denied, 1995 Wyo. LEXIS 219 (Wyo. Dec. 5, 1995).

Proximate cause is not an element of the crime of involuntary manslaughter. See Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Nor absence of malice. —

The words “without malice” were adopted to distinguish involuntary manslaughter from the more serious crimes of homicide. They do not have the effect of making absence of malice an essential element of the crime. Cheatham v. State, 719 P.2d 612, 1986 Wyo. LEXIS 553 (Wyo. 1986).

“Upon a sudden heat of passion” construed. —

The descriptive phrase “upon a sudden heat of passion” is simply a way of saying that the element of malice required for murder in the second degree and also murder in the first degree is not required; consequently said phrase is not a true element of the offense of voluntary manslaughter and cannot be used to argue that the elements of the lesser offense of manslaughter are not identical to part of the elements of the greater offense of murder in the first degree. Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984) (majority opinion by Thomas, J.).

“Provocation” necessary to reduce homicide to manslaughter must be sufficient to produce a state of mind incapable of cool reflection in a person of ordinary temper. State v. Lantzer, 55 Wyo. 230, 99 P.2d 73, 1940 Wyo. LEXIS 6 (Wyo. 1940); Searles v. State, 589 P.2d 386, 1979 Wyo. LEXIS 351 (Wyo. 1979).

In prosecution for murder of his wife by defendant, evidence did not justify instructions as to manslaughter, where provocation relied on, at time of the shooting, consisted only in wife's refusal to return home with defendant, which was not sufficient to cause a person of ordinary temper to be incapable of cool reflection. State v. Lantzer, 55 Wyo. 230, 99 P.2d 73, 1940 Wyo. LEXIS 6 (Wyo. 1940).

Provocation of victim, not third person, reduces murder to manslaughter. —

In a prosecution for second-degree murder, an instruction was a correct statement of the law in providing that to reduce murder to manslaughter, the defendant's heat of passion must have resulted from provocation by the victim, not by a third person. Krucheck v. State, 702 P.2d 1267, 1985 Wyo. LEXIS 514 (Wyo. 1985).

Degree of homicide held factual matter for jury. —

Whether a homicide is committed upon a sudden heat of passion or purposely and maliciously depends upon circumstances and conditions which the trier of fact is entitled to interpret. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

If an “uncontrollable passion” is found, it is again for the jury to decide whether that passion brought about the purpose to kill or the purpose to kill brought about the uncontrollable passion. Smith v. State, 564 P.2d 1194, 1977 Wyo. LEXIS 260 (Wyo. 1977).

Accidental killing is not voluntary manslaughter. See Searles v. State, 589 P.2d 386, 1979 Wyo. LEXIS 351 (Wyo. 1979).

Burden of proving absence of sudden heat of passion is on the State. —

Instruction in defendant's case allocating the burden of proving a sudden heat of passion to the State, which understandably had no inclination or motivation to prove it, and every reason to disprove it, as it negated the element of malice needed to convict defendant of first degree murder, effectively allowed the State to control the jury's consideration of the mitigator that defendant relied upon for a voluntary manslaughter conviction; thus, the error was more than a simple instructional error as it created one of those rare cases in which an instructional error was structural, and defendant's first degree murder conviction was reversed due to the structural error. Shull v. State, 2017 WY 14, 388 P.3d 763, 2017 Wyo. LEXIS 14 (Wyo.), overruled in part, Schmuck v. State, 2017 WY 140, 406 P.3d 286, 2017 Wyo. LEXIS 14 6 (Wyo. 2017).

For purposes of a voluntary manslaughter conviction, the State has the burden to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue was properly presented in a homicide case; the State does not have the burden of proving the sudden heat of passion mitigator. Shull v. State, 2017 WY 14, 388 P.3d 763, 2017 Wyo. LEXIS 14 (Wyo.), overruled in part, Schmuck v. State, 2017 WY 140, 406 P.3d 286, 2017 Wyo. LEXIS 14 6 (Wyo. 2017).

Distinguished from involuntary manslaughter. —

The principal distinction between criminally negligent homicide (§ 6-2-107(a)) and involuntary manslaughter (§ 6-2-105(a)(ii)) is whether the defendant consciously disregarded a substantial and unjustifiable risk or whether he failed, through criminal negligence, to perceive that risk. Murray v. State, 855 P.2d 350, 1993 Wyo. LEXIS 110 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 129 (Wyo. July 20, 1993), cert. denied, 510 U.S. 1045, 114 S. Ct. 693, 126 L. Ed. 2d 660, 1994 U.S. LEXIS 129 (U.S. 1994).

Who may be guilty of involuntary manslaughter. —

Any person, no matter in what capacity he acted, was guilty under former manslaughter statute if he involuntarily killed a person with criminal negligence. State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (Wyo. 1947).

Sufficient evidence to sustain involuntary manslaughter conviction against mother in death of her child. —

Evidence was sufficient to convict mother for involuntary manslaughter for the death of her premature daughter, finding that the child died of hyperthermia and not Sudden Infant Death Syndrome, because (1) only in the scenario in which the child was wrapped in the red electric blanket was the heating of her body adequately explained; and (2) it would account for the marks on the child's body whether they were caused by thermal blistering or sloughing of skin owing to accelerated decomposition associated with high temperatures. Michaelis v. State, 2005 WY 80, 115 P.3d 1098, 2005 Wyo. LEXIS 94 (Wyo. 2005).

Evidence was sufficient to find that defendant acted recklessly because (1) defendant was an experienced methamphetamine user who was well aware that her actions in consuming methamphetamine were reckless but deliberately placed herself in a condition which she knew could render her unable to properly care for her infant daughter, and (2) despite knowing that the electric blanket that defendant wrapped the child in got very hot, she elected to wrap her prematurely born child in the blanket at a time when she had rendered herself incapable of properly caring for the child due to her drug consumption. Michaelis v. State, 2005 WY 80, 115 P.3d 1098, 2005 Wyo. LEXIS 94 (Wyo. 2005).

In order to sustain involuntary manslaughter conviction premised on “unlawful act” of speeding, there had to be an additional showing equivalent to criminal negligence and a showing that death had resulted as a proximate cause thereof. Bartlett v. State, 569 P.2d 1235, 1977 Wyo. LEXIS 285 (Wyo. 1977), overruled on other grounds, Nowack v. State, 774 P.2d 561, 1989 Wyo. LEXIS 120 (Wyo. 1989) (decided before vehicular homicide cases excepted from involuntary manslaughter).

A finding of recklessness is inconsistent with, and precludes a finding of, self-defense. See Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985).

For construction of former statutory terms “culpable neglect,” “criminal carelessness,” and “criminal negligence.” —

See State v. McComb, 33 Wyo. 346, 239 P. 526, 1925 Wyo. LEXIS 41 (Wyo. 1925); State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (Wyo. 1947); Jeschke v. State, 642 P.2d 1298, 1982 Wyo. LEXIS 323 (Wyo. 1982); Brown v. State, 661 P.2d 1024, 1983 Wyo. LEXIS 303 (Wyo. 1983).

Expert testimony sufficient to find cause of death. —

The expert testimony presented at the trial provided a sufficient basis for the jury to find beyond a reasonable doubt that the defendant's act of picking up an infant and shaking her was the cause of the infant's death. Rinehart v. State, 641 P.2d 192, 1982 Wyo. LEXIS 303 (Wyo. 1982).

Voluntary intoxication. —

A claim of voluntary intoxication does not require a manslaughter instruction in a murder prosecution. Sanders v. State, 7 P.3d 891, 2000 Wyo. LEXIS 150 (Wyo.), cert. denied, 531 U.S. 1024, 121 S. Ct. 594, 148 L. Ed. 2d 508, 2000 U.S. LEXIS 7997 (U.S. 2000).

Included offenses. —

One indicted for assault with intent to commit murder in the first degree may be convicted for an assault with intent to commit manslaughter. Brantley v. State, 9 Wyo. 102, 61 P. 139, 1900 Wyo. LEXIS 7 (Wyo. 1900).

Where serious doubt existed of defendant's guilt of second-degree murder but evidence was ample supporting conviction of manslaughter on grounds of criminal carelessness, jury verdict for second-degree murder was set aside, and sustained as to manslaughter, included in former. Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 1942 Wyo. LEXIS 19 (Wyo. 1942).

Manslaughter is not an offense necessarily included in robbery and therefore not included in the crime of felony murder. Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976), reh'g denied, 558 P.2d 509, 1977 Wyo. LEXIS 323 (Wyo. 1977).

The offense of aiding and abetting voluntary manslaughter is a lesser included offense of aiding and abetting first degree murder. Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

The elements of aggravated assault with a deadly weapon are not always necessarily includable in the crime of involuntary manslaughter perpetrated during the commission of an unlawful act. Stamper v. State, 662 P.2d 82, 1983 Wyo. LEXIS 301 (Wyo. 1983).

Crime of voluntary manslaughter is lesser included offense of crime of second-degree murder. State v. Keffer, 860 P.2d 1118, 1993 Wyo. LEXIS 154 (Wyo. 1993).

Information held sufficient. —

An information charging the commission of the crime of manslaughter in the words of this section is sufficient and proper. Shoemaker v. State, 444 P.2d 309, 1968 Wyo. LEXIS 186 (Wyo. 1968).

Information for manslaughter which charges that defendant did unlawfully kill the deceased, a human being, contrary to the form of this section, is sufficient without setting out the facts by which the unlawful killing was accomplished. State v. Cantrell, 64 Wyo. 132, 186 P.2d 539, 1947 Wyo. LEXIS 26 (Wyo. 1947).

Information which stated that the killing was done in the commission of an unlawful act or by culpable neglect or criminal carelessness was not too indefinite because statement was in the disjunctive, for the information may, in a single count, charge the commission of an offense in any or all of the ways specified in the manslaughter statute. State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (Wyo. 1947).

Instructions proper. —

Under plain error review, instructions given in a voluntary manslaughter case were sufficient to capture the specific nuances of a unique crime where a victim died after defendant struck him in the face during an argument over drinking; the jury was given an elements instructions, definitions of voluntary and heat of passion, and a lesser-included instruction on criminally negligent homicide. Lopez v. State, 2006 WY 97, 139 P.3d 445, 2006 Wyo. LEXIS 96 (Wyo. 2006).

Entitlement to instruction. —

The defendant in a murder prosecution was not entitled to a jury instruction on manslaughter because there was no evidence that the defendant killed without malice in the heat of passion where he alleged that the victim stated that he wanted to die and asked the defendant to kill him. Sanders v. State, 7 P.3d 891, 2000 Wyo. LEXIS 150 (Wyo.), cert. denied, 531 U.S. 1024, 121 S. Ct. 594, 148 L. Ed. 2d 508, 2000 U.S. LEXIS 7997 (U.S. 2000).

Instruction concerning intent. —

Instruction telling jury that if act was not committed intentionally, they could not convict defendant of murder, instead of telling jury that in such event they should acquit, was not erroneous where it did not follow under the evidence that, because homicide was not intentional, defendant was entitled to acquittal. Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 1942 Wyo. LEXIS 19 (Wyo. 1942).

In a case where defendant was convicted of first degree murder, but sought a conviction for voluntary manslaughter based on the sudden heat of passion mitigator, because there is ample authority that a sudden heat of passion killing not only can be, but often is, intentional, on retrial, it would be improper to instruct or suggest that a killing under a sudden heat of passion could not include a case in which defendant had the subjective intent to kill. Shull v. State, 2017 WY 14, 388 P.3d 763, 2017 Wyo. LEXIS 14 (Wyo.), overruled in part, Schmuck v. State, 2017 WY 140, 406 P.3d 286, 2017 Wyo. LEXIS 14 6 (Wyo. 2017).

Instructions accurately presented defense of accidental killing. —

Under instructions that state must prove homicide was not committed accidentally, and that unless jury found beyond reasonable doubt that it was committed intentionally or by criminal carelessness, they should acquit, defendant was not deprived of defense of accidental killing. Eagan v. State, 58 Wyo. 167, 128 P.2d 215, 1942 Wyo. LEXIS 19 (Wyo. 1942).

Issue of mental responsibility not submitted by instruction on mental capacity. —

Where the jury was advised that it could consider the mental capacity of the defendant in considering whether there was culpable neglect or criminal carelessness, but where the jury instruction did not in any way require proof of the additional element of mental responsibility by the prosecution, the latter issue was not submitted. Kind v. State, 595 P.2d 960, 1979 Wyo. LEXIS 425 (Wyo. 1979).

Instruction based on previous statute fundamentally defective. —

A jury instruction concerning the offense of manslaughter was fundamentally defective and, therefore, plain error, where the instruction was based on the previous version of the manslaughter statute which used the terms “culpable neglect” and “criminal carelessness” instead of the present term “recklessly.” This amounted to an obvious transgression of the requirement that the trial judge must instruct the jury on the necessary elements of the crime charged. Vigil v. State, 859 P.2d 659, 1993 Wyo. LEXIS 148 (Wyo. 1993).

Instruction on “recklessly.” —

An instruction did not clearly and concisely inform the jury that “recklessly” was an element of involuntary manslaughter, in that it did not advise the jury that in order to find the defendant guilty of involuntary manslaughter, they had to find that he acted with “conscious disregard.” To act with “conscious disregard” implies intentional acts despite knowledge of the risk, while acting with “wanton disregard” (the language used in the instruction) implies acts done without conscious regard or heedlessly. Therefore, the instruction only created confusion in the minds of the jurors as to what actions constituted the crime in question. Vigil v. State, 859 P.2d 659, 1993 Wyo. LEXIS 148 (Wyo. 1993).

Recklessness, as defined for involuntary manslaughter, involves a gross deviation from reasonableness, not a lack of necessity to threaten deadly force; thus, the giving of instructions that threats with a drawn deadly weapon or pointing a firearm at another amounts to recklessness, unless reasonably necessary for self-defense, was reversible error. Olson v. State, 960 P.2d 1019, 1998 Wyo. LEXIS 111 (Wyo. 1998).

Sufficient evidence to sustain appellant's voluntary manslaughter conviction. —

See Griffin v. State, 749 P.2d 246, 1988 Wyo. LEXIS 7 (Wyo. 1988).

Evidence that defendant struck a friend in the face with considerable force during an argument over drinking and evidence that the cause of death was blunt force trauma to the head was sufficient to support a conviction for voluntary manslaughter under this section. Lopez v. State, 2006 WY 97, 139 P.3d 445, 2006 Wyo. LEXIS 96 (Wyo. 2006).

Evidence was sufficient to support defendant's manslaughter conviction where it showed that he entered the victim's home, struck the victim and his wife with a beer bottle, which blunt force trauma caused the victim's death from a subdural hematoma, and he had been upset most of the day because of his concern that the victim and his wife were reconciling. Bruce v. State, 2015 WY 46, 346 P.3d 909, 2015 Wyo. LEXIS 52 (Wyo. 2015).

Other crimes evidence admissible to negate “sudden heat of passion” claim. —

Where question facing the jury was whether defendant killed his wife's lover in a sudden heat of passion, and thus was guilty of voluntary manslaughter, or whether he acted with malice, and thus was guilty of premeditated murder, evidence of defendant's prior assault on his wife's ex-husband, and his threat against her other boyfriend, was admissible to prove motive and intent as those concepts related to malice. Taylor v. State, 2009 WY 31, 203 P.3d 408, 2009 Wyo. LEXIS 30 (Wyo. 2009).

Sentence not abuse of court's discretion. —

The imposition of a sentence of 5 to 15 years for manslaughter was not an abuse of the trial court's discretion. Bentley v. State, 502 P.2d 203, 1972 Wyo. LEXIS 279 (Wyo. 1972).

Reduction of homicide to manslaughter by supreme court. —

Supreme court is authorized to reverse conviction for murder in second degree and to order defendant resentenced for manslaughter, while permitting verdict originally of conviction for murder in second degree to stand as to manslaughter, such order not amounting to infringement of due process or right to jury trial. State v. Sorrentino, 36 Wyo. 111, 253 P. 14, 1927 Wyo. LEXIS 14 (Wyo. 1927).

The supreme court may reduce a homicide to manslaughter if committed under circumstances sufficiently mitigating or extenuating, such as fear or terror of such a character or degree as to render the accused incapable of cool reflection. Doe v. State, 569 P.2d 1276, 1977 Wyo. LEXIS 290 (Wyo. 1977).

Bail pending appeal. —

Where appellate court reduced conviction for murder in second degree to manslaughter, accused was not admissible to bail upon an appeal from sentence pronounced for manslaughter, where no questions were raised that had not or could not have been passed upon on the first appeal. State v. Sorrentino, 32 Wyo. 410, 233 P. 142, 1925 Wyo. LEXIS 11 (Wyo. 1925).

Applied in

State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (1947); Goich v. State, 80 Wyo. 179, 339 P.2d 119, 1959 Wyo. LEXIS 27 (1959); State v. Rideout, 450 P.2d 452, 1969 Wyo. LEXIS 116 (Wyo. 1969); Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Thomas v. State, 562 P.2d 1287, 1977 Wyo. LEXIS 249 (Wyo. 1977); Henriksen v. State, 575 P.2d 754, 1978 Wyo. LEXIS 271 (Wyo. 1978); Shepard v. State, 720 P.2d 904, 1986 Wyo. LEXIS 571 (Wyo. 1986).

Quoted in

Dowdell v. Bell, 477 P.2d 170, 1970 Wyo. LEXIS 205 (Wyo. 1970); Romo v. State, 500 P.2d 678, 1972 Wyo. LEXIS 296 (Wyo. 1972); Gore v. State, 627 P.2d 1384, 1981 Wyo. LEXIS 340 (Wyo. 1981); Bell v. State, 693 P.2d 769, 1985 Wyo. LEXIS 425 (Wyo. 1985); Murry v. State, 713 P.2d 202, 1986 Wyo. LEXIS 459 (Wyo. 1986); Longfellow v. State, 803 P.2d 848, 1990 Wyo. LEXIS 162 (Wyo. 1990); Suliber v. State, 866 P.2d 85, 1993 Wyo. LEXIS 205 (Wyo. 1993); Britton v. State, 2009 WY 91, 211 P.3d 514, 2009 Wyo. LEXIS 103 (July 15, 2009); Haire v. State, 2017 WY 48, 393 P.3d 1304, 2017 Wyo. LEXIS 49 (Wyo. 2017).

Cited in

Ivey v. State, 24 Wyo. 1, 154 P. 589, 1916 Wyo. LEXIS 6 (1916); State v. Dobbs, 70 Wyo. 26, 244 P.2d 280, 1952 Wyo. LEXIS 18 (1952); Hildebrand v. State, 491 P.2d 741, 1971 Wyo. LEXIS 271 (Wyo. 1971); Booth v. State, 517 P.2d 1034, 1974 Wyo. LEXIS 173 (Wyo. 1974); Thomas v. Justice Court, 538 P.2d 42, 1975 Wyo. LEXIS 151 (Wyo. 1975); City of Casper v. Cheatham, 739 P.2d 1222, 1987 Wyo. LEXIS 471 (Wyo. 1987); Miller v. State, 755 P.2d 855, 1988 Wyo. LEXIS 56 (Wyo. 1988); Stice v. State, 799 P.2d 1204, 1990 Wyo. LEXIS 127 (Wyo. 1990); Cook v. State, 841 P.2d 1345, 1992 Wyo. LEXIS 164 (Wyo. 1992); Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002); Noel v. State, 2014 WY 30, 2013 Wyo. LEXIS 170 (Feb 25, 2013).

Stated in

Shoemaker v. State, 444 P.2d 309, 1968 Wyo. LEXIS 186 (Wyo. 1968); Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985).

Law reviews. —

For article, “Criminal Liability for Death Caused by Operation of Motor Vehicles in Wyoming,” see 18 Wyo. L.J. 213 (1964).

For article, “The Greatest Lawyer in the World (The Maturing of Janice Walker),” see XIV Land & Water L. Rev. 135 (1979).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Fetal Equality?: The Equality State's Response to the Challenge of Protecting Unborn Children,” see XXXII Land & Water L. Rev. 193 (1997).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Persons, other than actor, liable for manslaughter, 95 ALR2d 175.

Insulting words as reducing degree of homicide, 2 ALR3d 1292.

Propriety of predicating manslaughter conviction on violation of local ordinance or regulation not dealing with motor vehicles, 85 ALR3d 1072.

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 ALR3d 925.

Accused's right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense, 15 ALR4th 983.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 ALR4th 861.

Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary — modern cases, 73 ALR4th 993.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467.

Homicide based on killing of unborn child, 64 ALR5th 671.

Propriety of lesser included offense charge of voluntary manslaughter to jury in state murder prosecution—Twenty-first century cases, 3 A.L.R.6th 543.

§ 6-2-106. Homicide by vehicle; aggravated homicide by vehicle; penalties.

  1. Except as provided in subsection (b) of  this section, a person is guilty of homicide by vehicle and shall  be fined not more than two thousand dollars ($2,000.00) or imprisoned  in the county jail for not more than one (1) year, or both, if he  operates or drives a vehicle in a criminally negligent manner, and  his conduct is the proximate cause of the death of another person.  Evidence of a violation of any state law or ordinance applying to  the operation or use of a vehicle or to the regulation of traffic,  except for evidence of a violation of W.S. 10-6-103 , 31-5-233 and 41-13-206 , is admissible in any prosecution under this subsection.
  2. A person is guilty of aggravated homicide  by vehicle and shall be punished by imprisonment in the penitentiary  for not more than twenty (20) years, if:
    1. While operating or driving a vehicle in  violation of W.S. 10-6-103 , 31-5-233 or 41-13-206 , he causes the death of another person and the violation  is the proximate cause of the death; or
    2. He operates or drives a vehicle in a reckless  manner, and his conduct is the proximate cause of the death of another  person.
  3. The department of transportation shall  revoke the license or permit to drive and the nonresident operating  privilege of any person convicted of aggravated homicide by vehicle  or of homicide by vehicle.
  4. Any person convicted of aggravated homicide  by vehicle for causing the death of another person while operating  or driving a vehicle in violation of W.S. 31-5-233 shall not be issued an ignition interlock restricted  license under W.S. 31-5-233 or 31-7-401 through 31-7-404 .

History. Laws 1979, ch. 139, § 1; W.S. 1977, § 31-5-1117; Laws 1980, ch. 50, § 1; 1982, ch. 75, § 4; 1983, ch. 171, § 5; 1984, ch. 44, § 2; 1985, ch. 215, § 2; 1987, ch. 92, § 1; 1991, ch. 241, § 3; 2009, ch. 160, § 1.

Cross references. —

For definition of “criminal negligence” and “vehicle,” see § 6-1-104 .

As to revocation of driver's license or operating privilege on conviction under this section, see § 31-7-127 .

The 2009 amendment, effective July 1, 2009, added (d).

Former provision unconstitutional. —

Former § 31-5-1117(b) (see now subsection (a) of this section), as it existed prior to the 1983 revision of this title, was unconstitutional and inoperative, due to ambiguity and internal inconsistency; therefore, the defendant, who was involved in a vehicular homicide, could only be prosecuted under former § 6-4-107 (see now § 6-2-105 ). State v. Sodergren, 686 P.2d 521, 1984 Wyo. LEXIS 300 (Wyo. 1984).

Section is not unconstitutionally vague. See Armijo v. State, 678 P.2d 864, 1984 Wyo. LEXIS 268 (Wyo. 1984).

Subsection (b) was not unconstitutionally vague, in that it gave the defendant notice of the proscribed conduct, and in that the defendant — who was intoxicated and who failed to stop at a stop sign, striking another vehicle and killing its occupants — indicated he understood the hazard of the criminal sanction for his behavior when he repeatedly asked a witness to the accident not to tell the authorities that he had been driving the vehicle. Felske v. State, 706 P.2d 257, 1985 Wyo. LEXIS 558 (Wyo. 1985).

Subsection (b) is not void for vagueness, in that: (1) it gives notice to a reasonable person of the conduct prohibited, evidenced, in the case at hand, by the defendant's attempt to remove empty beer bottles from his vehicle following an accident; (2) it imports a general criminal intent; and (3) it encompasses an element of causation, i.e, there cannot be a violation unless the proximate cause of death was drinking and driving under the influence to a degree which renders the defendant incapable of safely operating the vehicle. Hodgins v. State, 706 P.2d 655, 1985 Wyo. LEXIS 555 (Wyo. 1985) (decided under facts existing prior to 1983 revision of this title).

This section is clear enough for the man of ordinary intelligence to understand and, thus, is not unconstitutionally vague. Caton v. State, 709 P.2d 1260, 1985 Wyo. LEXIS 621 (Wyo. 1985).

Subsection (b) is not unconstitutional on equal protection grounds. —

The legislature recognized the seriousness of the harm caused when death results from a violation of § 31-5-233 (driving under the influence) and provided for a correspondingly stiffer penalty. Hodgins v. State, 706 P.2d 655, 1985 Wyo. LEXIS 555 (Wyo. 1985).

Section imports only a general criminal intent. Armijo v. State, 678 P.2d 864, 1984 Wyo. LEXIS 268 (Wyo. 1984).

Evidence sufficient. —

Evidence was insufficient to convict defendant of aggravated homicide by vehicle as the evidence did not show that she acted recklessly because she never admitted she was fatigued, let alone that she consciously disregarded any fatigue; she told a trooper that she did not think she fell asleep; there was direct evidence that she was not impaired; evidence that she failed to steer and brake both before and after striking the sedan, coupled with her lack of knowledge of what happened might support a reasonable inference she fell asleep, but it did not support the jury’s conclusion that she acted recklessly; and neither trooper testified that defendant ever suggested she was fatigued or not well-rested. Hightower v. State, 2020 WY 152, 477 P.3d 103, 2020 Wyo. LEXIS 177 (Wyo. 2020).

Conviction proper despite incomplete complaint. —

The state's failure to specifically tailor its indictment and complaint under a particular subsection does not preclude it from specifically asserting one particular provision, (b)(i) or (b)(ii), as violated according to the evidence presented. Glazier v. State, 843 P.2d 1200, 1992 Wyo. LEXIS 197 (Wyo. 1992).

Distinction between aggravated and misdemeanor vehicular homicide.—

It is difficult to define the line of demarcation between criminal negligence and recklessness in vehicular homicide cases in which the driver causing the accident fell asleep at the wheel, and the distinction is whether the defendant consciously disregarded a substantial and unjustifiable risk, or whether he failed, through negligence, to perceive that risk; what distinguishes the felony from the misdemeanor is the level of awareness of a substantial and unjustifiable risk, and the degree of conscious disregard or perception depends upon the facts of each case. Barrowes v. State, 2017 WY 23, 390 P.3d 1126, 2017 Wyo. LEXIS 23 (Wyo. 2017).

Aggravated homicide conviction where defendant fell asleep at wheel.—

Where defendant fell asleep at the wheel of his double trailer rig and caused a fatal crash, the jury could have found he consciously disregarded a substantial risk because he knew he was tired but continued to drive, he admitted he consciously put his schedule ahead of tiredness, and the risk of death from a crash involving his vehicle was substantial; the jury could have gone either way, but it was the jury's decision to make, and the evidence was sufficient to support the conviction of aggravated homicide by vehicle. Barrowes v. State, 2017 WY 23, 390 P.3d 1126, 2017 Wyo. LEXIS 23 (Wyo. 2017).

State need not prove voluntary intoxication. —

Aggravated vehicular homicide (subsection (b)(i)) is a general intent crime. The act which the state must prove is voluntary operation of the vehicle, but voluntary intoxication is not an element which the state must prove. Felske v. State, 706 P.2d 257, 1985 Wyo. LEXIS 558 (Wyo. 1985).

Death must be proximately caused by driving under influence. —

Subsection (b) requires that the death be proximately caused by the proscribed conduct of driving under the influence. Felske v. State, 706 P.2d 257, 1985 Wyo. LEXIS 558 (Wyo. 1985) (decided under facts existing prior to 1983 revision of this title).

Death caused by driving vehicle while so intoxicated, driver incapable of driving safely. —

See Felske v. State, 706 P.2d 257, 1985 Wyo. LEXIS 558 (Wyo. 1985).

Victim's conduct and causation. —

Evidence of cocaine metabolites found in victim driver's urine was relevant on the issue of actual cause of death in a prosecution for aggravated vehicular homicide arising out of an intersection collision. Buckles v. State, 830 P.2d 702, 1992 Wyo. LEXIS 44 (Wyo. 1992).

Where cocaine metabolites were found in the victim driver's blood, and the victim was driving very slowly, proceeding into a controlled intersection on a yellow light that turned red and was looking away from the approaching vehicle, the trial court, in a prosecution for aggravated vehicular homicide, should have instructed the jury that the victim's negligence could be considered when determining the defendant's conduct and the proximate cause of the collision at the intersection. Buckles v. State, 830 P.2d 702, 1992 Wyo. LEXIS 44 (Wyo. 1992).

In an aggravated vehicular homicide case, the trial court abused its discretion in excluding evidence relevant to defense, where the excluded evidence, which pertained to defendant's claim that the victim caused the accident by grabbing the steering wheel of the car defendant was driving, was crucial to defendant's theory that his conduct was not the proximate cause of the accident and the victim's death. Edwards v. State, 2007 WY 146, 167 P.3d 636, 2007 Wyo. LEXIS 159 (Wyo. 2007).

Evidence which showed that defendant's blood contained traces of marijuana was relevant where the prosecution had presented evidence which indicated that the presence of marijuana in the defendant's blood could have impaired his driving ability, and evidence which demonstrated that the defendant's driving ability was impaired could lend support to the conclusion that he was driving his vehicle in a reckless manner pursuant to subsection (b)(ii). Candelaria v. State, 895 P.2d 434, 1995 Wyo. LEXIS 74 (Wyo. 1995), overruled in part, Allen v. State, 2002 WY 48, 43 P.3d 551, 2002 Wyo. LEXIS 65 (Wyo. 2002).

Subsection (b) applied to situation in which victim was passenger in defendant-driver's vehicle, and not another driver. Meadows v. State, 708 P.2d 1250, 1985 Wyo. LEXIS 610 (Wyo. 1985).

And in which victim was pedestrian. —

The legislature intended that subsection (b)(i) (aggravated vehicular homicide) would apply to a case in which a drunk driver killed a pedestrian. The status of the victim, whether he is a pedestrian or the driver of another vehicle, is irrelevant. Caton v. State, 709 P.2d 1260, 1985 Wyo. LEXIS 621 (Wyo. 1985) (decided under facts existing prior to 1984 amendment).

Construction with manslaughter statute. —

Equal protection argument that the involuntary manslaughter and aggravated vehicular homicide statutes govern the same conduct fails because the involuntary manslaughter and the vehicular homicide statutes do not govern identical or even substantially similar conduct; that both statutes proscribe an unintentional killing is not sufficient identity of the elements. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985).

Vehicular homicide statute (former § 31-5-1117(a)) did not bar conviction for manslaughter (former § 6-4-107). See Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Judicial decision as to charging defendant with manslaughter, not vehicular homicide, not unforeseeable. —

The decision in State v. Sodergren, 686 P.2d 521, 1984 Wyo. LEXIS 300 (Wyo. 1984), that manslaughter, under former § 6-4-107, was the appropriate charge, rather than vehicular homicide under former § 31-5-1117(a), (b), did not effect an unforeseeable expansion of narrow and precise statutory language by judicial interpretation, nor did it depart from the position taken by the supreme court in previous cases. The court was interpreting the vehicular homicide statute for the first time, so there was no prior interpretation upon which to rely. Furthermore, conduct such as the defendant's had long been recognized as falling within the ambit of the manslaughter statute. Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986) (plurality opinion).

Conflicting-penalty provision inapplicable to contention that defendant charged with wrong crime. —

The defendant, who was properly charged with, and convicted of, manslaughter, but who contended throughout his trial and appeal that he should have been charged with vehicular homicide, was properly sentenced under the manslaughter statute. Both the previous (§ 6-4-107) and the current (§ 6-2-105 ) statutes proscribing manslaughter provide for a sentence of up to 20 years in the state penitentiary. The defendant's interpretation and application of § 6-1-101(c) (conflicting penalties) was inappropriate; he was never charged with or convicted of vehicular homicide. Sodergren v. State, 715 P.2d 170, 1986 Wyo. LEXIS 485 (Wyo. 1986).

Defense of self-defense not available. —

Affirmative defense of self-defense was not available to defendant charged with vehicular homicide, since crime involved a reckless act, rather than an intentional act. Duran v. State, 990 P.2d 1005, 1999 Wyo. LEXIS 170 (Wyo. 1999), overruled, Haire v. State, 2017 WY 48, 393 P.3d 1304, 2017 Wyo. LEXIS 49 (Wyo. 2017).

For construction of term “criminal negligence” in former manslaughter statute. —

See State v. Catellier, 63 Wyo. 123, 179 P.2d 203, 1947 Wyo. LEXIS 8 (Wyo. 1947); Bartlett v. State, 569 P.2d 1235, 1977 Wyo. LEXIS 285 (Wyo. 1977), overruled, Nowack v. State, 774 P.2d 561, 1989 Wyo. LEXIS 120 (Wyo. 1989).

Essentials of “reckless disregard of the safety of others.” —

The term “reckless disregard of the safety of others” of course implies a much greater dereliction in hazarding the safety of others than ordinary negligence. However, it does not require any intent to do harm either generally, or to the victim in particular. What is essential is that it be shown beyond a reasonable doubt that the defendant drove in a manner that he knew, or should have known was highly dangerous to others, and that he did so intentionally, or heedlessly, with a careless indifference to the consequences. State v. Rideout, 450 P.2d 452, 1969 Wyo. LEXIS 116 (Wyo. 1969) (decided under prior law).

Facts that a person who had been drinking to such an extent that it impaired his driving ability, drove his vehicle at 60 to 65 miles per hour on a dark night upon the wrong portion of the highway for no apparent reason, and collided with a motorcycle with an operating headlight would constitute sufficient evidence to sustain the finding that he was driving a motor vehicle in reckless disregard of others. Booth v. State, 517 P.2d 1034, 1974 Wyo. LEXIS 173 (Wyo. 1974)(decided under prior law).

Homicide by vehicle is not “necessarily included” within crime of aggravated vehicular homicide. See Balsley v. State, 668 P.2d 1324, 1983 Wyo. LEXIS 355 (Wyo. 1983).

Criminally negligent vehicular homicide is not a lesser included offense of under the influence aggravated vehicular homicide. —

The elements of Wyo. Stat. Ann. § 6-2-106(a) (criminally negligent vehicular homicide) are not sufficiently identical to part of the elements of Wyo. Stat. Ann. § 6-2-106(b)(i) (“under the influence” aggravated vehicular homicide) to qualify it as a lesser-included offense of Wyo. Stat. Ann. § 6-2-106(b)(i). Allen v. State, 2002 WY 48, 43 P.3d 551, 2002 Wyo. LEXIS 65 (Wyo.), cert. denied, Allen v. Wyoming, 537 U.S. 899, 123 S. Ct. 201, 154 L. Ed. 2d 170, 2002 U.S. LEXIS 6736 (U.S. 2002).

Evidence sufficient. —

Evidence was sufficient to support a reasonable inference of proof beyond a reasonable doubt that the defendant was operating his truck in a reckless manner where the defendant was driving at a minimum speed of 45 miles per hour and perhaps as high as 60 miles per hour during a snow storm, the safe speed for the weather conditions was 20 miles per hour, the defendant appeared unconcerned about being in a collision, the defendant drove his truck completely off the paved portion of the interstate and slammed into a parked car with its hazard lights on, and defendant continued down the interstate one mile until his truck would go no further. Relish v. State, 860 P.2d 455, 1993 Wyo. LEXIS 152 (Wyo. 1993). See Bloomquist v. State, 914 P.2d 812, 1996 Wyo. LEXIS 55 (Wyo. 1996).

The evidence was sufficient to sustain defendant's conviction for aggravated homicide by vehicle; defendant's girlfriend's father, who was chasing defendant in another car, was not the proximate cause of the death resulting from defendant's accident as there was no evidence the father brandished a weapon or in any other way forced defendant to flee. Orona-Rangal v. State, 2002 WY 134, 53 P.3d 1080, 2002 Wyo. LEXIS 146 (Wyo. 2002), limited, Kite v. State, 2018 WY 94, 424 P.3d 255, 2018 Wyo. LEXIS 99 (Wyo. 2018).

There was sufficient evidence under either of two theories to support the verdicts of guilty returned by the jury. The jury clearly could have found criminal negligence because of the defendant's failure to stop his truck at an intersection or, if it concluded that there had been a brake failure, it could have found knowledge that the brakes were not functioning properly and criminal negligence in continuing to operate the truck with defective brakes. Dangel v. State, 724 P.2d 1145, 1986 Wyo. LEXIS 610 (Wyo. 1986).

Probation given appropriate consideration, despite court's comments on “legislative mandate” regarding drunk drivers. —

Despite the trial court's comments on the “legislative mandate” regarding drunk drivers who kill, the facts surrounding the sentencing for aggravated homicide by vehicle reflected that probation was given appropriate consideration and, therefore, there was no error in sentencing the defendant to confinement. Volz v. State, 707 P.2d 179, 1985 Wyo. LEXIS 581 (Wyo. 1985).

Sentence. —

A criminal sentence imposing a term of not less than 18 years nor more than 20 for aggravated vehicular homicide was not an abuse of discretion given the particular set of facts. Smith v. State, 922 P.2d 846, 1996 Wyo. LEXIS 114 (Wyo. 1996).

The imposition of consecutive sentences of six to ten years's imprisonment for two counts of aggravated vehicular homicide was proper as the maximum punishment was 20 years and the court focused on the willfulness of the defendant's conduct in driving his vehicle while intoxicated. Sampsell v. State, 2001 WY 12, 17 P.3d 724, 2001 Wyo. LEXIS 11 (Wyo. 2001).

Sentence of two to five years for aggravated homicide by vehicle was appropriate since it was within the statutory guidelines. Volz v. State, 707 P.2d 179, 1985 Wyo. LEXIS 581 (Wyo. 1985).

Sentence of incarceration for 36 to 72 months for aggravated vehicular homicide was not an abuse of discretion. —

Where defendant, who was 83 years of age, was convicted of aggravated vehicular homicide, the entry of his second guilty plea acted as a waiver of his right to appeal the district court's rejection of an earlier plea agreement, allowing for a suspended prison sentence, and of his right to appeal the limitation of the reconsideration hearing to 15 minutes. Moreover, despite defendant's age and medical condition, his sentence to the custody of the Wyoming Department of Corrections for incarceration for a period of not less than 36 months and not more than 72 months, based on factors such as deprecating the seriousness of aggravated homicide by vehicle, was not an abuse of discretion. Cohee v. State, 2005 WY 50, 110 P.3d 267, 2005 Wyo. LEXIS 56 (Wyo. 2005).

Applied in

Harvey v. State, 596 P.2d 1386, 1979 Wyo. LEXIS 428 (Wyo. 1979); Ellifritz v. State, 704 P.2d 1300, 1985 Wyo. LEXIS 531 (Wyo. 1985); McLaughlin v. State, 780 P.2d 964, 1989 Wyo. LEXIS 204 (Wyo. 1989).

Quoted in

Elliott v. State, 626 P.2d 1044, 1981 Wyo. LEXIS 326 (Wyo. 1981); Bell v. State, 693 P.2d 769, 1985 Wyo. LEXIS 425 (Wyo. 1985); Whitfield v. State, 781 P.2d 913, 1989 Wyo. LEXIS 215 (Wyo. 1989); Cummings v. State, 2009 WY 130, 218 P.3d 257, 2009 Wyo. LEXIS 142 (Oct. 23, 2009).

Cited in

Redland v. State, 766 P.2d 1173, 1989 Wyo. LEXIS 6 (Wyo. 1989); Whitney v. State, 2004 WY 118, 99 P.3d 457, 2004 Wyo. LEXIS 154 (2004).

Law reviews. —

For an article, “Criminal Liability for Death Caused by Operation of Motor Vehicles in Wyoming,” see 18 Wyo. L.J. 213 (1964).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Victim Compensation and Restitution: Legislative Alternatives,” see XX Land & Water L. Rev. 681 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For article, "Getting Away With Murder? Abolition of the EaganRule in Wyoming Domestic Violence/Murder Cases” , see 12 Wyo. L. Rev. 49 (2012).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal responsibility for injury or death in operation of mechanically defective motor vehicle, 88 ALR2d 1165.

What amounts to negligence within meaning of statutes penalizing negligent homicide by operation of a motor vehicle, 20 ALR3d 473.

Homicide by automobile as murder, 21 ALR3d 116.

Criminal liability for injury or death caused by operation of pleasure boat, 8 ALR4th 886.

Alcohol-related vehicular homicide: nature and elements of offense, 64 ALR4th 166.

§ 6-2-107. Criminally negligent homicide.

  1. Except under circumstances constituting a violation of W.S. 6-2-106 , a person is guilty of criminally negligent homicide if he causes the death of another person by conduct amounting to criminal negligence.
  2. Criminally negligent homicide is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than two thousand dollars ($2,000.00), or both.

History. Laws 1985, ch. 215, § 1.

The principal distinction between criminally negligent homicide (§ 6-2-107(a)) and involuntary manslaughter (§ 6-2-105(a)(ii)) is whether the defendant consciously disregarded a substantial and unjustifiable risk or whether he failed, through criminal negligence, to perceive that risk. Murray v. State, 855 P.2d 350, 1993 Wyo. LEXIS 110 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 129 (Wyo. July 20, 1993), cert. denied, 510 U.S. 1045, 114 S. Ct. 693, 126 L. Ed. 2d 660, 1994 U.S. LEXIS 129 (U.S. 1994).

Relationship to felony murder. —

A defendant may be convicted for both felony murder under § 6-2-101(a) and criminally negligent homicide under subsection (a) of this section; these crimes are not mutually exclusive. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Instructions proper. —

Under plain error review, instructions given in a voluntary manslaughter case were sufficient to capture the specific nuances of a unique crime where a victim died after defendant struck him in the face during an argument over drinking; the jury was given an elements instructions, definitions of voluntary and heat of passion, and a lesser-included instruction on criminally negligent homicide. Lopez v. State, 2006 WY 97, 139 P.3d 445, 2006 Wyo. LEXIS 96 (Wyo. 2006).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 50 ALR5th 467.

§ 6-2-108. Drug induced homicide; penalty.

  1. A person is guilty of drug induced homicide if:
    1. He is an adult or is at least four (4) years older than the victim; and
    2. He violates W.S. 35-7-1031(a)(i) or (ii) or (b)(i) or (ii) by unlawfully delivering a controlled substance to a minor and that minor dies as a result of the injection, inhalation, ingestion or administration by any other means of any amount of that controlled substance.
  2. Except as provided in W.S. 6-2-109 , drug induced homicide is a felony punishable by imprisonment in the penitentiary for not more than twenty (20) years.

History. Laws 1995, ch. 119, § 1; 2010, ch. 54, § 2.

The 2010 amendment, effective July 1, 2010, in (b), added “Except as provided in W.S. 6-2-109 .”

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-2-109. Sentencing enhancement for the homicide of a pregnant woman.

  1. Upon sentencing of a defendant who is convicted of an offense pursuant to W.S. 6-2-104(a), 6-2-105 or 6-2-108 , if the jury has found that the victim was pregnant at the time of the commission of the offense and that the defendant knew that the victim was pregnant at the time of the commission of the offense, the court shall impose a sentence as follows:
    1. For a conviction of W.S. 6-2-104(a), imprisonment in the penitentiary for any term not less than forty (40) years, or during life; or
    2. For a conviction of W.S. 6-2-105 or 6-2-108 , imprisonment in the penitentiary for any term not less than ten (10) years and not more than thirty (30) years.

History. Laws 2010, ch. 54, § 1; 2021, ch. 116, § 1.

The 2021 amendment , effective July 1, 2021, deleted "causing the involuntary termination of the pregnancy" at the end of the section heading; and substituted "6-2-104(a)" for "6-2-104" in (a) and (a)(i).

Effective date. —

Laws 2010, ch. 54, § 3, makes the act effective July 1, 2010.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Cited in

Webb v. State, 2017 WY 108, 401 P.3d 914, 2017 Wyo. LEXIS 114 (Wyo. 2017).

Article 2. Kidnapping and Related Offenses

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-2-201. Kidnapping; penalties; effect of release of victim.

  1. A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business or from the vicinity where he was at the time of the removal, or if he unlawfully confines another person, with the intent to:
    1. Hold for ransom or reward, or as a shield or hostage;
    2. Facilitate the commission of a felony; or
    3. Inflict bodily injury on or to terrorize the victim or another.
  2. A removal or confinement is unlawful if it is accomplished:
    1. By force, threat or deception; or
    2. Without the consent of a parent, guardian or other person responsible for the general supervision of an individual who is under the age of fourteen (14) or who is adjudicated incompetent.
  3. If the defendant voluntarily releases the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not more than twenty (20) years.
  4. If the defendant does not voluntarily release the victim substantially unharmed and in a safe place prior to trial, kidnapping is a felony punishable by imprisonment for not less than twenty (20) years or for life except as provided in W.S. 6-2-101 .

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Removal.—

Nothing in the plain meaning of the word “remove” or the kidnapping statute itself requires physical contact for purposes of establishing “removal;” the statute also deems a removal unlawful if accomplished without the consent of a parent, which was the State’s theory that was adequately proven, as the child victim was five at the time and his mother testified she did not know defendant and did not give him permission to take the child. Winters v. State, 2019 WY 76, 446 P.3d 191, 2019 Wyo. LEXIS 77 (Wyo. 2019).

Crimes not required to be merged for sentencing.—

Kidnapping and first-degree sexual abuse of a minor each require an element the other does not, as the former requires sexual intrusion, whereas the latter does not, and that the kidnapping charge referred to the sexual abuse charge was of no moment, as the jury was not required to find every element of sexual abuse to convict defendant of kidnapping, and the jury had to find only that defendant removed the child victim with the intent to commit sexual abuse. Double jeopardy did not require the sentences to be merged. Winters v. State, 2019 WY 76, 446 P.3d 191, 2019 Wyo. LEXIS 77 (Wyo. 2019).

“Removal from vicinity” cannot refer to locational changes within victim's residence or business. See Keene v. State, 812 P.2d 147, 1991 Wyo. LEXIS 101 (Wyo. 1991).

Lawful removal. —

A father, taking his child out of the state with the child's and the child's mother's consent in order that the child may not be present in a criminal trial in which it had been subpoenaed as a witness, is not guilty of kidnapping. John v. State, 6 Wyo. 203, 44 P. 51, 1896 Wyo. LEXIS 6 (Wyo. 1896).

Where husband had abandoned his wife and family and made no objection, though knowing that she was sending their child into another state, wife is not guilty of kidnapping; he having abandoned the child and given an implied consent to the child's removal. Biggs v. State, 13 Wyo. 94, 77 P. 901, 1904 Wyo. LEXIS 25 (Wyo. 1904).

No durational requirement for confinement period. —

There is no durational requirement for the period of confinement for purposes of this section, and where the evidence showed that defendant forcibly intercepted his ex-wife in her truck, confined her within the vehicle and removed her to his house, the time spent in the truck or in the house sufficiently constituted confinement. Doud v. State, 845 P.2d 402, 1993 Wyo. LEXIS 12 (Wyo. 1993).

Kidnapping conviction was proper, even though the victims were, at various times, out in the community and therefore not confined; no specific time period is required to satisfy the element of confinement. Moore v. State, 2003 WY 153, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).

Sentence.—

Because the amended kidnapping sentence that defendant challenged was not a statute, it was not an improper ex post facto law. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Double jeopardy violation.—

Defendant’s convictions and sentences for two counts of kidnapping violated double jeopardy because the evidence was insufficient to show that two kidnappings occurred, as the evidence did not support the State’s position that the victim regained her liberty when she was allowed to clean her mouth in the kitchen before defendant removed the victim from the home and put her in the backseat of her car. Volpi v. State, 2018 WY 66, 419 P.3d 884, 2018 Wyo. LEXIS 70 (Wyo. 2018).

Use of expert to explain behavior. —

Expert on battered women's testimony was admissible in trial for battery and kidnapping where the expert's testimony was an explanation for the victim's irrational behavior in answer to defendant's specific defenses that her behavior proved he had not battered or kidnapped her. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Reward. —

The reward requirement of this section as an element of the crime of kidnapping can consist of freedom from arrest, obtaining prescription drugs, publicity or any other benefaction to defendant. Edge v. State, 647 P.2d 557, 1982 Wyo. LEXIS 350 (Wyo. 1982).

Evidence sufficient—

Where the evidence showed that defendant abducted a victim at gunpoint, handcuffed the victim inside of a car, committed nonconsensual sexual acts upon the victim, and transported the victim without consent, there was sufficient evidence to convict defendant of kidnapping, first-degree sexual assault, and third-degree sexual assault. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Evidence was sufficient to sustain defendant's aggravated burglary and kidnapping convictions because the victim testified that defendant was “jealous,” and if he got into the house, “he was going to be very upset,” and defendant violently broke in through the back door, smashing glass, and breaking parts of the door jamb; he carried a knife. He pursued the victim when she escaped, he forcibly returned her to the house, and held her in her basement bedroom. Counts v. State, 2012 WY 70, 277 P.3d 94, 2012 Wyo. LEXIS 75 (Wyo. 2012).

Sufficient evidence supported defendant’s kidnapping conviction; defendant moved the child victim from the bowling alley and then across the river, and the two did not simply spontaneously arrive at the river, but defendant lured the child there and then carried him across the river. Defendant gained the child’s trust at the bowling alley, lured him to the river by telling him he would show him his camp, and deliberately carried him across the river to a secluded area to sexually abuse him. Winters v. State, 2019 WY 76, 446 P.3d 191, 2019 Wyo. LEXIS 77 (Wyo. 2019).

Evidence was sufficient to convict defendant of kidnapping because defendant confined the victim in her home, forcing her to remain there in several locations - the bathroom, the bedroom, and eventually the living room; during the entire time, he had his hands around her neck or her body, rendering her unable to seek the usual protections of society; defendant ended the confinement only when he became aware that the victim had called the police; there was no evidence suggesting that the confinement would have ended had the victim not been able to contact law enforcement; and defendant intended to inflict bodily injury on or to terrorize the victim, as he did so by choking, body-slamming and punching her. Dockter v. State, 2017 WY 63, 396 P.3d 405, 2017 Wyo. LEXIS 64 (Wyo. 2017).

False imprisonment is a lesser-included offense of kidnapping. —

False imprisonment is a lesser-included offense of kidnapping; however, a trial court did not err by refusing to give such an instruction where the evidence did not support a conviction for false imprisonment. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Assault, battery and reckless endangering not lesser included offenses. —

According to the strict test of “element identity” in Balsley v. State, 668 P.2d 1324, 1983 Wyo. LEXIS 355 (Wyo. 1983) simple assault, battery and reckless endangering are not lesser included offenses of the crimes of aggravated robbery or kidnapping. Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985).

Defendant's prosecution for attempted kidnapping, in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-2-201 , was not barred by the doctrine of double jeopardy due to defendant's earlier guilty plea to battery because battery, in violation of Wyo. Stat. Ann. § 6-2-501(b), was not a lesser-included offense of attempted kidnapping under the same-elements test. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).

Kidnapping and sexual assault did not merge. —

The force used to accomplish the kidnapping was sufficient justification to enhance the penalty for aggravated kidnapping where it was separate and distinct from the force and confinement the defendant imposed upon the victim, and where there were repeated sexual assaults in his vehicle, this was not an instance that would demand merger of the sexual assaults with the independent crime of aggravated kidnapping. McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Crimes not required to be merged for sentencing. —

Where appellant pointed pistol at victims and exhibited shotgun in course of kidnapping victims and appropriating their truck and trailer rig, crimes of aggravated assault and battery, aggravated robbery, and kidnapping were not required to be merged for sentencing purposes. Rouse v. State, 966 P.2d 967, 1998 Wyo. LEXIS 150 (Wyo. 1998), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Subsection (c) does not create lesser included offense, but describes mitigating circumstances rather than elements of the offense. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Subsection (c) provides for lesser sentence if four conditions are established: (1) the defendant voluntarily releases the victim, (2) substantially unharmed, (3) in a safe place, (4) prior to trial. If any of these four conditions are not met, the lesser-sentence provision is not applicable. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

And burden on defendant to present evidence. —

The defendant has the burden of going forward with evidence to show that he voluntarily released the victim unharmed in a safe place. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Once evidence presented, issue submitted to jury. —

In light of the express factual conditions set out in this section, the legislature apparently intended that the discretion of the sentencing court be limited. Therefore, the question of whether the defendant voluntarily released the victim unharmed in a safe place should be submitted to the jury when the evidence presented raises the issue. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Defendants, charged with kidnapping prison officials, could not claim duress or coercion because they presented no evidence that: (1) they were faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there was not time for complaint to the authorities, or that such a complaint would have been futile; and (3) there was no opportunity to resort to the courts to redress their grievances. Amin v. State, 811 P.2d 255, 1991 Wyo. LEXIS 72 (Wyo. 1991).

Admission of uncharged misconduct. —

Trial court did not abuse its discretion in admitting evidence in defendant's trial for murder and kidnapping of prior uncharged misconduct evidence from his former wife and a friend of his. Their evidence showing the course of conduct between defendant and both victims was relevant to rebut defendant's defenses to the charge and to tell the jury the entire sequence of events that led to the kidnapping and murder. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Erroneous instruction, shifting burden of proof, harmless. —

A jury instruction placing with the state the burden of proving that the defendant did not voluntarily release the victim unharmed in a safe place was harmless error, since the instruction, as given, could only have been of benefit to the defendant. Loomer v. State, 768 P.2d 1042, 1989 Wyo. LEXIS 35 (Wyo. 1989), limited, Snyder v. State, 912 P.2d 1127, 1996 Wyo. LEXIS 37 (Wyo. 1996).

Jury instruction erroneous. —

Kidnapping convictions under this section were reversed because a district court failed to instruct the jury that the larceny committed had to be a felony. Gabbert v. State, 2006 WY 108, 141 P.3d 690, 2006 Wyo. LEXIS 108 (Wyo. 2006), reh'g denied, 2006 Wyo. LEXIS 122 (Wyo. Sept. 26, 2006).

Consistency of case theories in jury instructions. —

Even though the bilateral theory of conspiracy was given to the jury in defendant's first trial, Wyoming follows the majority of states in applying the unilateral theory to the crime of conspiracy, and the court correctly instructed the jury on that theory in defendant's second trial. Miller v. State, 955 P.2d 892, 1998 Wyo. LEXIS 49 (Wyo. 1998).

No double jeopardy violation in prosecution for conspiracy to commit rape since the conduct constituting the crime of conspiracy is separate and apart from the conduct that makes up the substantive offenses of rape and kidnapping. Phillips v. State, 835 P.2d 1062, 1992 Wyo. LEXIS 76 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 84 (Wyo. July 8, 1992).

A substantive crime, and a conspiracy to commit that crime, are not the same offense for double jeopardy purposes, and the fact that there is a mere overlap of proof between two prosecutions does not establish a double jeopardy violation. Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo., cert. denied, 506 U.S. 1022, 113 S. Ct. 661, 121 L. Ed. 2d 586, 1992 U.S. LEXIS 7732 (U.S. 1992), reh'g denied, 1992 Wyo. LEXIS 85 (Wyo. July 8, 1992).

Prosecutor may make argument about victim's level of fear. —

Prosecutorial argument that victim had been kidnapped for the entire time she was in a relationship with defendant because of his control over her was not misconduct where the victim had not left the apartment during the kidnapping although the doors had been unlocked, and in attempting to explain this behavior, the prosecutor made such argument as an attempt to assist the jury in understanding the victim's level of fear and resulting behavior. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Confinement of victim during robbery and burglary constitutes kidnapping. —

The defendant's actions constituted kidnapping where he confined the victim to the bedroom of her home to facilitate his escape from the commission of a robbery and burglary. The gravamen of the crime of kidnapping is the unlawful confinement of the victim and the confinement in this case could not be considered incident and integral to the other crimes and, therefore, was a separate crime. Darrow v. State, 824 P.2d 1269, 1992 Wyo. LEXIS 12 (Wyo. 1992).

Verbal threats sufficient to terrorize. —

Defendant's verbal threats to kill his ex-wife after removing her from her truck and restraining her in his home constituted terrorizing, regardless of whether he was wielding a gun at the time. Doud v. State, 845 P.2d 402, 1993 Wyo. LEXIS 12 (Wyo. 1993).

The legislature intended separate punishments for the crime of aggravated kidnapping and for the crime of sexual assault in the first degree because, once the sexual assault is inflicted, the victim has been harmed and cannot be released “substantially unharmed.” McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

No mitigating circumstances for attempted kidnapping. —

Trial court properly applied the appropriate penalty range in sentencing defendant to life in prison after defendant was convicted of attempted kidnapping because where there was not a completed kidnapping, but instead an attempted kidnapping, the mitigating circumstances described in Wyo. Stat. Ann. § 6-2-201(c) could not occur. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).

Kidnapping statute was not unconstitutionally vague. —

Where the kidnapping statute, Wyo. Stat. Ann. § 6-2-201 , prohibited the unlawful removal of a person from the area in which the person was occupied and the unlawful holding of a person within a location, the statute was not unconstitutionally vague, because any individual of ordinary intelligence would be on notice that the individual's acts were illegal under the statute. Alcalde v. State, 2003 WY 99, 74 P.3d 1253, 2003 Wyo. LEXIS 120 (Wyo. 2003).

Admissibility of evidence. —

In a trial for defendant's attempt to kidnap his estranged fiancée, defendant was not entitled to present evidence of the victim's past sexual conduct at times that she was intoxicated. The trial court properly found the evidence was not relevant, despite defendant's argument that it showed his intent to protect, not harm, the victim; further, other evidence of the victim's self-endangering proclivities was before the jury. Silva v. State, 2012 WY 37, 271 P.3d 443, 2012 Wyo. LEXIS 38 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 63 (Wyo. Apr. 10, 2012).

Voluntary release not shown.—

Defendant was not entitled to mitigation in relation to a kidnapping conviction because he did not voluntarily release a victim when she cut her own feet free and ran from the house with defendant in pursuit. Hawes v. State, 2014 WY 127, 335 P.3d 1073, 2014 Wyo. LEXIS 144 (Wyo. 2014), cert. denied, 576 U.S. 1025, 135 S. Ct. 2846, 192 L. Ed. 2d 882, 2015 U.S. LEXIS 3929 (U.S. 2015).

False imprisonment not a lesser-included offense of kidnapping. —

In a trial for attempted kidnapping by removal, defendant was not entitled to an instruction on the lesser-included misdemeanor offense of attempted false imprisonment because attempted false imprisonment is not a lesser-included offense to attempt to commit kidnapping where the purported criminal conduct involved only an attempted removal of the victim with the intent to inflict bodily injury on or to terrorize her. Silva v. State, 2012 WY 37, 271 P.3d 443, 2012 Wyo. LEXIS 38 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 63 (Wyo. Apr. 10, 2012).

Jury instruction not erroneous. —

District court did not violate a clear and unequivocal rule of law by failing to instruct the jury on defendant's belatedly proposed incidental rule as neither Wyo. Stat. Ann. § 6-2-201 (2015) nor case law clearly established a rule beyond the elements of the kidnapping statute. Vaught v. State, 2016 WY 7, 366 P.3d 512, 2016 Wyo. LEXIS 6 (Wyo. 2016).

Applied in

Stinehart v. State, 727 P.2d 1010, 1986 Wyo. LEXIS 637 (Wyo. 1986).

Quoted in

Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003).

Stated in

Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985).

Cited in

Daniel v. State, 644 P.2d 172, 1982 Wyo. LEXIS 327 (Wyo. 1982); Aguilar v. State, 764 P.2d 684, 1988 Wyo. LEXIS 161 (Wyo. 1988); Eustice v. State, 871 P.2d 682, 1994 Wyo. LEXIS 42 (Wyo. 1994); Kolb v. State, 930 P.2d 1238, 1996 Wyo. LEXIS 185 (Wyo. 1996); Williams v. State, 2002 WY 136, 54 P.3d 248, 2002 Wyo. LEXIS 147 (Wyo. 2002); Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002); Major v. State, 2004 WY 4, 83 P.3d 468, 2004 Wyo. LEXIS 8 (Wyo. 2004); Gorseth v. State, 2006 WY 109, 141 P.3d 698, 2006 Wyo. LEXIS 114 (2006); Royball v. State, 2009 WY 79, 210 P.3d 1073, 2009 Wyo. LEXIS 82 (June 17, 2009).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case notes, “Constitutional Law—Double Jeopardy—A Constitutional Protection or a Formality to Sidestep in Successive Prosecutions? Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 661 (1993).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Kidnapping by fraud or false pretenses, 95 ALR2d 450.

Meaning of “harm” in regard to statutes increasing penalty for kidnapping where victim suffers harm, 11 ALR3d 1053.

Seizure of prison official by inmates as kidnapping, 59 ALR3d 1306.

False imprisonment as included offense with charge of kidnapping, 68 ALR3d 828.

Necessity and sufficiency of showing, in kidnapping prosecution, that detention was with intent to “secretly” confine victim, 98 ALR3d 733.

Coercion, compulsion or duress as defense to charge of kidnapping, 69 ALR4th 1005.

Validity, construction and application of “hold to service” provision of kidnapping statute, 28 ALR5th 754.

Seizure or detention for purpose of committing rape, robbery, or other offense as constituting separate crime of kidnapping, 39 ALR5th 283.

Requirement, under Federal Kidnapping Act (18 USC § 1201 (a)), that person be held “for ransom or reward or otherwise,” 71 ALR Fed 687.

§ 6-2-202. Felonious restraint; penalty.

  1. A person is guilty of felonious restraint if he knowingly:
    1. Restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or
    2. Holds another in a condition of involuntary servitude.
  2. Felonious restraint is a felony punishable by imprisonment for not more than five (5) years.

History. Laws 1982, ch. 75, § 3.

Evidence sufficient.—

Evidence was sufficient to sustain defendant's felonious restraint conviction where it showed that defendant unlawfully restrained the victim in a motel room by locking the door and directing an associate to stand in front of the door to prevent the victim from leaving, and that unlawful restraint exposed the victim to being beaten up by defendant and his associate. Hurley v. State, 2017 WY 95, 401 P.3d 827, 2017 Wyo. LEXIS 98 (Wyo. 2017).

Serious bodily injury. —

The district court was permitted to infer that the victim had been exposed to a risk of serious bodily injury within the meaning of Wyo. Stat. Ann. § 6-1-104(a)(x) where she was the victim of a restrained, forcible nonconsensual sexual act. Sami v. State, 2004 WY 23, 85 P.3d 1014, 2004 Wyo. LEXIS 29 (Wyo. 2004).

Jury instructions. —

Wyoming's felonious restraint statute, Wyo. Stat. Ann. § 6-2-202 , requires proof that the accused acted knowingly, meaning not only that he must have been aware that he was restraining his victim, but also that the restraint exposed the victim to physical danger, and that such was unlawful; thus the court committed plain error when it did not properly instruct the jury on the “knowingly” element and omitted the term “unlawfully” when instructing the jury. Williams v. State, 2002 WY 136, 54 P.3d 248, 2002 Wyo. LEXIS 147 (Wyo. 2002).

District court did not abuse its discretion in refusing defendant's request for a jury instruction defining bodily injury where its instruction was sufficiently clear that serious bodily injury was more than just a scrape, cut, or physical pain, and defendant failed to explain how such an instruction equated to his purported defense that the injury was only a battery. Hurley v. State, 2017 WY 95, 401 P.3d 827, 2017 Wyo. LEXIS 98 (Wyo. 2017).

Cited in

Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-2-203. False imprisonment; penalties.

  1. A person is guilty of false imprisonment if he knowingly and unlawfully restrains another so as to interfere substantially with his liberty.
  2. False imprisonment is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to reasonable detention and interrogation of persons suspected of shoplifting, see § 6-3-405 .

As to limitation of action for false imprisonment, see § 1-3-105 .

As to recovery of costs in actions for false imprisonment, see § 1-14-125 .

As to habeas corpus generally, see §§ 1-27-101 to 1-27-134 .

False imprisonment as a lesser-included offense of kidnapping.—

False imprisonment is a lesser-included offense of kidnapping; however, a trial court did not err by refusing to give such an instruction where the evidence did not support a conviction for false imprisonment. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

In a trial for attempted kidnapping by removal, defendant was not entitled to an instruction on the lesser-included misdemeanor offense of attempted false imprisonment because attempted false imprisonment is not a lesser-included offense to attempt to commit kidnapping where the purported criminal conduct involved only an attempted removal of the victim with the intent to inflict bodily injury on or to terrorize her. Silva v. State, 2012 WY 37, 271 P.3d 443, 2012 Wyo. LEXIS 38 (Wyo. 2012), reh'g denied, 2012 Wyo. LEXIS 63 (Wyo. Apr. 10, 2012).

Cited in

Six Feathers v. State, 611 P.2d 857, 1980 Wyo. LEXIS 276 (Wyo. 1980).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and application of state statute providing compensation for wrongful conviction and incarceration, 34 ALR4th 648.

Liability for false arrest or imprisonment under warrant as affected by mistake as to identity of person arrested, 39 ALR4th 705.

Penalties for common-law criminal offense of false imprisonment, 67 ALR4th 1103.

§ 6-2-204. Interference with custody; presumption of knowledge of child's age; affirmative defenses; penalties.

  1. A person is guilty of interference with custody if, having no privilege to do so, he knowingly:
    1. Takes or entices a minor from the custody of the minor’s parent, guardian or other lawful custodian; or
    2. Fails or refuses to return a minor to the person entitled to custody.
  2. Proof that the child was under the age of majority gives rise to an inference that the person knew the child’s age.
  3. It is an affirmative defense to a prosecution under this section that:
    1. The action was necessary to preserve the child from an immediate danger to his welfare; or
    2. The child was not less than fourteen (14) years old and the child was taken away or was not returned:
      1. At his own instigation; and
      2. Without intent to commit a criminal offense with or against the child.
  4. Interference with custody is a felony punishable by imprisonment for not more than five (5) years if:
    1. The defendant is not a parent or person in equivalent relation to the child; or
    2. The defendant knowingly conceals and harbors the child or refuses to reveal the location of the child to the parent, guardian or lawful custodian.
  5. Interference with custody which is not punishable under subsection (d) of this section is a felony punishable by imprisonment for not more than two (2) years.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 2002 Sp. Sess., ch. 77, § 1.

Cross references. —

As to age of majority, see § 14-1-101 .

For provisions relative to the protection of children generally, see §§ 14-3-107 through 14-3-440 .

As to child abuse, see §§ 14-3-205 through 14-3-208 .

For Uniform Child Custody Jurisdiction and Enforcement Act, see § 20-5-201 et seq.

State possesses jurisdiction to prosecute out-of-state parent. —

The state had jurisdiction to prosecute a father for interfering with child custody by failing or refusing to return the child to the custodial parent in Wyoming, even though at the time the crime was committed neither the child nor the father ever had been in the state, in view of the fact that the father's extraterritorial acts had an adverse result in Wyoming. Rios v. State, 733 P.2d 242, 1987 Wyo. LEXIS 402 (Wyo.), cert. denied, 484 U.S. 833, 108 S. Ct. 108, 98 L. Ed. 2d 68, 1987 U.S. LEXIS 3773 (U.S. 1987).

Enhanced penalty does not effect whether crime of interference with custody was committed. —

The elements of the crime of interference with custody are identical under either Wyo. Stat. Ann. § 6-2-204 (d) or § 6-2-204 (e), the only difference being the additional element under § 6-2-204(d), which, if proved, provides an enhanced penalty for the crime; although defendant was charged by information with a violation of § 6-2-204(d) and the jury was instructed on interference with custody in violation of § 6-2-204(e), the absence of the additional element in § 6-2-204(d) in the jury instruction did not affect whether or not the crime of interference with custody itself was committed under Wyo. Stat. Ann. § 6-2-204. Weidt v. State, 2002 WY 74, 46 P.3d 846, 2002 Wyo. LEXIS 79 (Wyo. 2002).

Cited in

Alberts v. State, 642 P.2d 447, 1982 Wyo. LEXIS 315 (Wyo. 1982).

Law reviews. —

For note on kidnapping by spouse of natural child in physical custody of other spouse, see 10 Wyo. L.J. 225.

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability of legal or natural parent, or one who aids and abets, for damages resulting from abduction of own child, 49 ALR4th 7.

Article 3. Sexual Assault

Sexual assault offenses require general criminal intent or a mens rea. Chavez v. State, 601 P.2d 166, 1979 Wyo. LEXIS 470 (Wyo. 1979).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Entrapment defense in sex offense prosecutions, 12 ALR4th 413.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 ALR4th 105.

Admissibility, at criminal prosecution, of expert testimony on rape trauma syndrome, 42 ALR4th 879.

Admissibility of expert testimony as to criminal defendant's propensity toward sexual deviation, 42 ALR4th 937.

Sexual child abuser's civil liability to child's parent, 54 ALR4th 93.

Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation — post-New York Times cases, 57 ALR4th 404.

Prosecution of female as principal for rape, 67 ALR4th 1127.

Admissibility, in prosecution for sex-related offense, of results of tests on semen or seminal fluids, 75 ALR4th 897.

Fact that murder-rape victim was dead at time of penetration as affecting conviction for rape, 76 ALR4th 1147.

Admissibility in prosecution for sex offense of evidence of victim's sexual activity after the offense, 81 ALR4th 1076.

Liability of church or religious society for sexual misconduct of clergy, 5 ALR5th 530.

Failure of state or local government entity to protect child abuse victim as violation of federal constitutional right, 79 ALR Fed 514.

§ 6-2-301. Definitions.

  1. As used in this article:
    1. “Actor” means the person accused of criminal assault;
    2. “Intimate parts” means the external genitalia, perineum, anus or pubes of any person or the breast of a female person;
    3. “Physically helpless” means unconscious, asleep or otherwise physically unable to communicate unwillingness to act;
    4. “Position  of authority” means that position occupied by a parent, guardian,  relative, household member, teacher, employer, custodian, health care provider or any other person  who, by reason of his position, is able to exercise significant influence  over a person;
    5. “Sexual assault” means any act made criminal pursuant to W.S. 6-2-302 through 6-2-319 ;
    6. “Sexual  contact” means touching, with the intention of sexual arousal,  gratification or abuse, of the victim’s intimate parts by the actor,  or of the actor’s intimate parts by the victim, or of the clothing  covering the immediate area of the victim’s or actor’s intimate parts;
    7. “Sexual intrusion” means:
      1. Any intrusion, however slight, by any object or any part of a person’s body, except the mouth, tongue or penis, into the genital or anal opening of another person’s body if that sexual intrusion can reasonably be construed as being for the purposes of sexual arousal, gratification or abuse; or
      2. Sexual intercourse, cunnilingus, fellatio, analingus or anal intercourse with or without emission.
    8. “Victim” means the person alleged to have been subjected to sexual assault;
    9. “Health care provider” means an individual who is licensed, certified or otherwise authorized or permitted by the laws of this state to provide care, treatment, services or procedures to maintain, diagnose or otherwise treat a patient’s physical or mental condition;
    10. Repealed by Laws 2019, ch. 186, §  2.

History. Laws 1982, ch. 75,§ 3; 1983, ch. 171, § 1; 1997, ch. 135, § 1; 2001, ch. 41, § 2; 2007, ch. 159, § 2; 2010, ch. 82, § 1; ch. 87, § 2; 2018, ch. 80, § 2; 2019, ch. 186, § 2.

The 2007 amendment, effective July 1, 2007, substituted “6-2-319” for “6-2-313” in (a)(ix).

The 2010 amendments. —

The first 2010 amendment, by ch. 82, § 1, in (a)(v), substituted “6-2-319” for “6-2-304.”

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

The second 2010 amendment, by ch. 87, § 2, effective July 1, 2010, in (a)(ix), substituted “6-2-320” for “6-2-319.”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2018 amendment, effective July 1, 2018, in (a)(iv), inserted “health care provider”; added (a)(ix); and redesignated former (a)(ix) as (a)(x).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Sexual intrusion.—

Evidence was sufficient to prove sexual intrusion on the alleged seven-year-old victim by sexual intercourse because (1) the victim testified that defendant put defendant’s privates to the victim’s private parts; (2) the SANE nurse testified that the victim told the nurse that defendant laid the victim down, spread the victim’s legs apart, and that defendant’s private parts touched the victim’s private parts in and out; and (3) the victim’s parent testified that defendant was then 29 years old. Jackson v. State, 2019 WY 81, 445 P.3d 983, 2019 Wyo. LEXIS 83 (Wyo. 2019).

Jury instructions. —

Although the district court erred by failing to define substantial step for the jury and by including the concept of attempt in the elements of second-degree sexual abuse of a minor when instructing the jury, counsel was not ineffective in failing to object to the instructions as defendant was not prejudiced by the failure to object because the evidence against him was overwhelming as defendant’s statements over several weeks confirmed he had the specific intent to inflict sexual intrusion upon the victim and his actions were strongly corroborative of the firmness of his intention to complete the crime of second-degree sexual abuse of a minor. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

Sexual arousal, gratification element of charged crime.—

District court did not err by denying defendant’s motion to judgment of acquittal because the victim’s testimony alone was sufficient to support the jury’s finding that defendant sexually assaulted the victim as the victim described, and rational jurors could reasonably conclude that defendant touched the victim for sexual arousal or gratification, given that the victim testified that when the two were alone in the bathroom and the victim was only partially clothed, defendant rubbed the victim’s right breast/chest area with her hand and then placed defendant’s penis in the victim’s genitalia repeatedly, and thereafter, defendant told the victim to keep it a secret. Martinez v. State, 2018 WY 147, 432 P.3d 493, 2018 Wyo. LEXIS 152 (Wyo. 2018).

There was sufficient evidence to support defendant’s convictions for second-degree sexual abuse of a minor because his effort to mask his actions by placing a blanket over himself and the girls, his repeated touchings of the girls in virtually identical ways, and his instructions to keep the touchings secret supported a finding of intent of sexual gratification. Jones v. State, 2019 WY 45, 439 P.3d 753, 2019 Wyo. LEXIS 4 5 (Wyo. 2019); Pier v. State, 2019 WY 3, 432 P.3d 890, 2019 Wyo. LEXIS 4 (Wyo. 2019).

Sexual contact.—

There was sufficient evidence to support defendant’s convictions for second-degree sexual abuse of a minor because the victim’s testimony that defendant touched her “a little over her privates” provided sufficient evidence to permit a rational trier of fact to find that he had engaged in sexual contact with the victim’s intimate parts beyond a reasonable doubt. Jones v. State, 2019 WY 45, 439 P.3d 753, 2019 Wyo. LEXIS 45 (Wyo. 2019).

Position of authority.

Defendant could not claim on appeal that the crime of second degree sexual assault by a person in a position of authority did not apply to a psychologist because defendant’s no contest plea waived this non-jurisdictional issue, as (1) defendant could have raised the issue in the trial court in a motion to dismiss or argued the issue to a jury, and (2) neither the underlying legal or factual issues barred the State from charging defendant. Popkin v. State, 2018 WY 121, 429 P.3d 53, 2018 Wyo. LEXIS 125 (Wyo. 2018).

Defendant was properly convicted of third-degree sexual abuse of a minor because he was serving in a position of authority over the victim; defendant was left in charge of the victim while her father went to collect a paycheck, and it did not matter for how long defendant was left with the victim or whether he was paid because he occupied the role as the victim's babysitter and was in a position of authority over the victim. Rogers v. State, 2015 WY 48, 346 P.3d 934, 2015 Wyo. LEXIS 54 (Wyo. 2015).

Evidence was sufficient to convict defendant of second-degree sexual abuse of a minor, his niece, because he was connected with the victim by affinity as defendant was the victim's uncle by marriage, and, thus, he occupied a position of authority in relation to the victim; and because the State was not required to demonstrate that defendant was able to exercise significant influence over the victim as he was tried and convicted based on his position as the victim's relative. Butler v. State, 2015 WY 119, 358 P.3d 1259, 2015 Wyo. LEXIS 136 (Wyo. 2015).

Sufficient evidence demonstrated that defendant was in a “position of authority” as to a victim because defendant's massage therapist-client relationship with the victim contained the required power differential. Solis v. State, 2013 WY 152, 315 P.3d 622, 2013 Wyo. LEXIS 155 (Wyo. 2013).

Separate and distinct crimes. —

The legislature intended, in subsection (a)(vii)(B), to define sexual intercourse, cunnilingus, fellatio, analingus and anal intercourse as separate and distinct crimes. Padilla v. State, 601 P.2d 189, 1979 Wyo. LEXIS 468 (Wyo. 1979).

Incest does not merge into second-degree sexual assault. —

The incest statute requires that the sexual contact or intrusion be committed upon a relative of the accused. This family relationship element prevents the incest conviction from merging into the second-degree sexual assault conviction since a family relationship was not a necessary element for the sexual assault. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Separate sexual acts. —

Where defendant performed fellatio upon the victim and then made the victim reciprocate, two distinct acts of fellatio were committed and two separate sentences proper. Baum v. State, 745 P.2d 877, 1987 Wyo. LEXIS 534 (Wyo. 1987).

In a sexual assault case, defendant was properly sentenced to two consecutive life sentences where defendant subjected the victim to both vaginal and anal sexual penetration, as the acts constituted separate, forcible sexual intrusions on the victim. Daniel v. State, 2003 WY 132, 78 P.3d 205, 2003 Wyo. LEXIS 162 (Wyo. 2003), cert. denied, 540 U.S. 1205, 124 S. Ct. 1476, 158 L. Ed. 2d 127, 2004 U.S. LEXIS 1455 (U.S. 2004).

Merger of sexual assault offense and indecent liberties offense.—

For purposes of sentencing, a merger of a sexual assault offense and an indecent liberties offense may occur when the facts which have been proven at trial establish that the defendant committed only one criminal act. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Penetration necessary for sexual intercourse. —

There must be penetration of the genital organs of the female in order to constitute sexual intercourse. Rhodes v. State, 462 P.2d 722, 1969 Wyo. LEXIS 170 (Wyo. 1969). See also State v. Wilson, 32 Wyo. 37, 228 P. 803, 1924 Wyo. LEXIS 47 (Wyo. 1924).

“Sexual contact” amounts to “abuse” for purposes of child protection provisions. —

“Sexual contact,” as defined by subsection (a)(vi), obviously poses a serious danger to the physical and mental well-being of a child and amounts to “abuse” within the meaning of § 14-3-202(a)(ii) (definitions — child protective services). In re Matter of GP, 679 P.2d 976, 1984 Wyo. LEXIS 269 (Wyo. 1984).

Sexual intrusion. —

Victim's testimony that defendant attempted to have sexual intercourse with her by force but could not complete vaginal penetration because she resisted, along with medical evidence of injuries to the inner portions of her genitalia, provided sufficient evidence to convict defendant of first degree sexual assault; sexual intrusion occurred when defendant penetrated the victim's labia or vulva. Pryor v. State, 2009 WY 95, 212 P.3d 635, 2009 Wyo. LEXIS 105 (Wyo. 2009).

On plain error review, defendant showed jury instruction errors alleged were clearly set forth in the record and transgressed a clear and unequivocal rule of law by including fondling or touching the victim's vagina in the definition of sexual intrusion, contrary to the statute, but defendant was entitled to no relief because the instruction also required finding sexual intrusion by inserting a finger in the victim's vagina, so the State had to prove more than the statute required, giving defendant more protection, to prove sexual abuse of a minor in the first degree. Nunamaker v. State, 2017 WY 100, 401 P.3d 863, 2017 Wyo. LEXIS 105 (Wyo. 2017).

Evidence was sufficient to convict defendant of attempted sexual abuse of a minor in the second degree because he sent messages to the victim on a social media website that stated in extremely graphic detail about his desire to have sexual intercourse and oral sex with the victim; and he took a substantial step to complete the crime as the jury could reasonably infer that defendant was driving to the apartments where he and the victim agreed to meet to pick the victim up and inflict sexual intrusion upon her. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

Sexual arousal, gratification element of charged crime. —

The defendant's assertion that his sexual arousal or gratification was not an element of the charged crime of second-degree sexual assault was incorrect; quite clearly, the language of subsection (a)(vii) requires that the intrusion be “for the purposes of sexual arousal, gratification, or abuse.” Mitchell v. State, 865 P.2d 591, 1993 Wyo. LEXIS 188 (Wyo. 1993).

Defendant was convicted of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) (repealed) involving his 10-year-old daughter based upon his daughter's testimony that defendant “massaged” her by touching her legs, arms, breasts, buttocks, and genitals; on appeal, the court rejected defendant's argument that the evidence was insufficient to support his conviction because it failed to establish the necessary element that, in touching his daughter, he acted with the intent of sexual arousal, gratification, or abuse as defined in Wyo. Stat. Ann. § 6-2-301(a)(vi). An oral express of intent was not required; rather, intent of sexual gratification could be inferred from defendant's touching of the victim on more than one occasion and his commission of the acts when alone with the victim. Trumbull v. State, 2009 WY 103, 214 P.3d 978, 2009 Wyo. LEXIS 111 (Wyo. 2009).

Evidence was sufficient to support defendant's conviction of second-degree sexual abuse of a child under Wyo. Stat. Ann. § 6-2-315(a)(ii) and was sufficient to support the jury's conclusion that defendant touched his victim, a seven-year-old boy, with the intent of sexual arousal, gratification, or abuse because the jury heard the testimony of the victim and the victim's mother, who was defendant's former girlfriend, that defendant would spook with the victim while lying with him in bed and the jury also heard the testimony of the investigating detective that defendant admitted to having an erection when he cuddled with the boy. Although there was no direct testimony that defendant touched the victim's genitals while lying in bed with him, the fact that defendant frequently would lay with the victim knowing that he would be aroused could have led the jury to reasonably infer that, when defendant did touch the boy's genitals on other occasions, he did so with the intent of becoming sexually aroused. Jones v. State, 2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47 (Wyo. 2010).

In a case involving two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor, a district court properly admitted evidence of defendant's prior conviction for third-degree sexual abuse of a minor because it was relevant to show that act was committed for sexual arousal, gratification, or abuse, it was offered for the proper purposes of intent, plan, course of conduct, and motive, and the probative value of the prior conviction was not substantially outweighed by the potential for unfair prejudice. Moreover, defendant presented no authority suggesting why the prosecutor should have been prohibited from referring to this properly-admitted evidence when questioning the various witnesses. Carroll v. State, 2015 WY 87, 352 P.3d 251, 2015 Wyo. LEXIS 98 (Wyo. 2015).

“Position of authority.” —

Defendant's status as the stepfather of the 17-year-old victim and as a household member satisfied the statutory definition of “position of authority” required for conviction under § 6-2-303 .Blake v. State, 933 P.2d 474, 1997 Wyo. LEXIS 42 (Wyo. 1997).

“Authority” is defined as: jurisdiction, legal power, legitimacy, prerogative, right to adjudicate, right to command, right to determine, right to settle issues, and rightful power. “Authority” is also defined as: permission; right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge; control over; and jurisdiction. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Term “authority” under this section is synonymous with power. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Where patients testified that they were victims of a chiropractor who touched their breasts and pubic areas and made inappropriate remarks during chiropractic treatment, the Supreme Court of Wyoming held that defendant's conduct was third degree sexual assault because he was in a “position of authority” over his patients for purposes of this section. While not engaged in the practice of medicine, chiropractors govern themselves by ethical codes advising practitioners not to take physical advantage of any patient; therefore, the sexual contact that defendant had with his patients was prohibited. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Defendant's convictions for third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-303(a)(vi) were supported by the evidence because the State proved that defendant, a certified nursing assistant, stood in a “position of authority” with respect to the victim, as contemplated by Wyo. Stat. Ann. § 6-2-301(a)(iv); the victim, a man who suffered from a progressive muscle-weakening disease, sought and needed specific nursing services. Baldes v. State, 2012 WY 67, 267 P.3d 386, 2012 Wyo. LEXIS 71 (May 15, 2012).

“Physically helpless.” —

Jury could reasonably conclude that victim was asleep and therefore physically helpless as required under Wyo. Stat. Ann. § 6-2-301(a)(iii). Haynes v. State, 2008 WY 75, 186 P.3d 1204, 2008 Wyo. LEXIS 77 (Wyo. 2008).

While a court erred during defendant's sexual assault trial in admitting hearsay, defendant was not materially prejudiced by the error; defendant admitted to all of the elements of the crime other than the victim's physical helplessness, as defined in Wyo. Stat. Ann. § 6-2-301(a)(iii), and on that point he provided the jury with sufficient testimony to convict. Maier v. State, 2012 WY 50, 273 P.3d 1084, 2012 Wyo. LEXIS 52 (Wyo. 2012).

Instruction on Self-Defense. —

In defendant's trial on charges of aggravated assault and battery and attempted second-degree murder following an altercation with a romantic rival, the trial court did not err in instructing the jury that the right of self-defense was not available to one who was the aggressor or provoked the conflict because the evidence supported the giving of this instruction where the victim testified that defendant had been the aggressor. Although defendant presented a contradictory version of the incident, the district court was not charged with resolving that conflict, which was within the jury's province. Causey v. State, 2009 WY 111, 215 P.3d 287, 2009 Wyo. LEXIS 119 (Wyo. 2009), reh'g denied, 2009 Wyo. LEXIS 134 (Wyo. Sept. 29, 2009).

Applied in

Elliott v. State, 600 P.2d 1044, 1979 Wyo. LEXIS 460 (Wyo. 1979); State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo. 1985); Bueno-Hernandez v. State, 724 P.2d 1132, 1986 Wyo. LEXIS 612 (Wyo. 1986); Bryan v. State, 745 P.2d 905, 1987 Wyo. LEXIS 546 (Wyo. 1987); Lee v. State, 2001 WY 129, 36 P.3d 1133, 2001 Wyo. LEXIS 152 (Wyo. 2001); Giles v. State, 2004 WY 101, 96 P.3d 1027, 2004 Wyo. LEXIS 129 (2004); Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Oct. 22, 2009).

Quoted in

Sears v. State, 632 P.2d 946, 1981 Wyo. LEXIS 368 (Wyo. 1981); Sanchez v. State, 751 P.2d 1300, 1988 Wyo. LEXIS 29 (Wyo. 1988); Righter v. State, 752 P.2d 416, 1988 Wyo. LEXIS 39 (Wyo. 1988); Cardenas v. State, 811 P.2d 989, 1991 Wyo. LEXIS 94 (Wyo. 1991); Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003); Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Sept. 19, 2007); Norgaard v. State, 2014 WY 157, 2014 Wyo. LEXIS 181 (Dec. 9, 2014); Hathaway v. State, 2017 WY 92, 399 P.3d 625, 2017 Wyo. LEXIS 91 (Wyo. 2017).

Cited in

Hirsch v. State, 2006 WY 66, 135 P.3d 586, 2006 Wyo. LEXIS 71 (Wyo. May 31, 2006); Heywood v. State, 2009 WY 70, 208 P.3d 71, 2009 Wyo. LEXIS 77 (May 29, 2009); Jones v. State, 2017 WY 44, 393 P.3d 1257, 2017 Wyo. LEXIS 44 (Wyo. 2017); Carrier v. State, 2017 WY 88, 400 P.3d 358, 2017 Wyo. LEXIS 96 (Wyo. 2017).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Rape by husband as a crime against wife within statute relating to competency of husband or wife as witness against the other, 11 ALR2d 646.

Liability of parent or person in loco parentis for rape of minor child, 19 ALR2d 423.

Blood-grouping tests on issue of identity in rape prosecution, 46 ALR2d 1000.

Entrapment to commit offense of sodomy, 52 ALR2d 1194.

Admissibility and propriety, in rape prosecution, of evidence that defendant is married, has children and the like, 62 ALR2d 1067.

Admissibility, in nonstatutory rape prosecution, of evidence of pregnancy, 62 ALR2d 1083.

Consent of minor as defense to assault with intent to commit unnatural sex act upon minor, 65 ALR2d 748.

Intercourse accomplished under pretext of medical treatment as rape, 70 ALR2d 824.

Applicability of rape statute covering child of a specified age with respect to a child who has passed the anniversary date of such age, 73 ALR2d 874.

Admissibility of prior consistent statements of prosecutrix testifying as witness, where her testimony is impeached, 75 ALR2d 909.

Incest as included within charge of rape, 76 ALR2d 484.

Cautionary instructions as to evidence of other similar offense, 77 ALR2d 841.

Intercourse under promise of marriage with girl below the age of consent as statutory rape, 84 ALR2d 1017.

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 84 ALR2d 1017.

Rape by fraud or impersonation, 91 ALR2d 591.

Mistake or lack of information as to victim's age as defense to statutory rape, 8 ALR3d 1100.

Impotency as defense to charge of rape, attempt to commit rape or assault with intent to commit rape, 23 ALR3d 1351.

When woman deemed to be within class contemplated by statute denouncing offense of carnal knowledge of female who is feeble-minded or imbecile, 31 ALR3d 1227.

Statutory rape of female who is, or has been, married, 32 ALR3d 1030.

Mistake or lack of information as to victim's chastity as defense to statutory rape, 44 ALR3d 1434.

Recantation by prosecuting witness in sex crime as ground for new trial, 51 ALR3d 907.

What constitutes penetration in prosecution for rape or statutory rape, 76 ALR3d 163.

Fact that rape victim's complaint or statement was made in response to questions as affecting res gestae character, 80 ALR3d 369.

Multiple instances of forcible intercourse involving same defendant and same victim as constituting multiple crimes of rape, 81 ALR3d 1228.

What constitutes offense of “sexual battery,” 87 ALR3d 1250.

Constitutionality of “rape shield” statute restricting use of evidence of victim's sexual experiences, 1 ALR4th 283.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 ALR4th 330.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 ALR4th 1009.

Sufficiency of allegations or evidence of serious bodily injury to support charge of aggravated degree of rape, sodomy, or other sexual abuse, 25 ALR4th 1213.

Conviction of rape or related sexual offense on basis of intercourse accomplished under the pretext of, or in the course of, medical treatment, 65 ALR4th 1064.

§ 6-2-302. Sexual assault in the first degree.

  1. Any actor who inflicts sexual intrusion on a victim commits a sexual assault in the first degree if:
    1. The actor causes submission of the victim through the actual application, reasonably calculated to cause submission of the victim, of physical force or forcible confinement;
    2. The actor causes submission of the victim by threat of death, serious bodily injury, extreme physical pain or kidnapping to be inflicted on anyone and the victim reasonably believes that the actor has the present ability to execute these threats;
    3. The victim is physically helpless, and the actor knows or reasonably should know that the victim is physically helpless and that the victim has not consented; or
    4. The actor knows or reasonably should know that the victim through a mental illness, mental deficiency or developmental disability is incapable of appraising the nature of the victim’s conduct.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to sexual battery, see § 6-2-313 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Subsection (a) is not unconstitutionally vague. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980).

Because an ordinary intelligent person applying common sense to subsection (a)(iv) would not have to guess at its meaning to understand that to avoid punishment, one must refrain from performing a sex act with a person who the actor knows, or should have known, is mentally incapable of understanding the nature and possible consequences of sexual activity, subsection (a)(iv) is not unconstitutionally vague. Righter v. State, 752 P.2d 416, 1988 Wyo. LEXIS 39 (Wyo. 1988).

General intent crime. —

First-degree sexual assault is a general intent crime, and therefore, the trial court must only find that the act was done voluntarily before accepting defendant's guilty plea. If the facts and circumstances of the offense presented at the plea hearing can reasonably be construed to be for sexual abuse, that is sufficient although the actor's subjective intent may, according to his statement, have been something else. Bryan v. State, 745 P.2d 905, 1987 Wyo. LEXIS 546 (Wyo. 1987).

Hierarchical framework. —

A review of the sexual assault statutes, §§ 6-2-302 to 6-2-304 , readily indicates that the legislature intended them to operate as an integrated whole; the statutory scheme evidences a hierarchical framework that shows the seriousness attached to each crime. Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716, 2002 U.S. LEXIS 18 (U.S. 2002).

Habitual offender. —

District court properly sentenced defendant to life in prison because a rational trier of fact could have concluded that he committed a felony offense in Ohio and that he was the individual who committed first-degree sexual assault and third-degree sexual abuse of a minor; the testimony of a court clerk from Ohio showed that defendant was convicted of a felony in Ohio, and the State proved that defendant committed all three crimes being used against him to prove he was a habitual offender. Rogers v. State, 2015 WY 48, 346 P.3d 934, 2015 Wyo. LEXIS 54 (Wyo. 2015).

No merger of first degree sexual assault and third degree sexual abuse of a minor.—

Each conviction and sentence passed the dispositive Blockburger test because each the charged offenses, first-degree sexual assault and third-degree sexual abuse of a minor in violation of Wyo. Stat. Ann. §§ 6-2-302(a)(i) and 6-2-316(a)(ii) and (a)(iv), required proof of at least one additional element that the others did not, evidencing the legislature's intent to make the crimes separate offenses and to impose separate punishments. Rogers v. State, 2015 WY 48, 346 P.3d 934, 2015 Wyo. LEXIS 54 (Wyo. 2015).

In reading of Wyo. Stat. Ann.§§ 6-2-302(a)(i) and 6-2-316(a)(ii) and (a)(iv), each is quite distinct from the other; the first statute focuses on submission of the victim, and the second statute, § 6-2-316(a)(ii), involves sexual intrusion, while the third charging statute, § 6-2-316316(a)(iv), involves indecent liberties. Rogers v. State, 2015 WY 48, 346 P.3d 934, 2015 Wyo. LEXIS 54 (Wyo. 2015).

Comparison with other law. —

The sexual assault statutes protect all persons; the indecent liberties statute, § 14-3-105 (repealed), only offers protection to those less than 18 years of age. Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716, 2002 U.S. LEXIS 18 (U.S. 2002).

Violation of victim's person gravamen of offense. —

The actor is not to be punished because he has gratified or attempted to gratify his sexual desires but rather because he has violated the person of the victim. Hamill v. State, 602 P.2d 1212, 1979 Wyo. LEXIS 483 (Wyo. 1979).

Resistance is not always necessary to establish lack of consent. Gonzales v. State, 516 P.2d 592, 1973 Wyo. LEXIS 191 (Wyo. 1973).

Resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, and where she is overcome by superior strength or paralyzed by fear. Gonzales v. State, 516 P.2d 592, 1973 Wyo. LEXIS 191 (Wyo. 1973).

“Lack of consent” is element specified in this section and may exist without resistance, e.g., through fear. Morris v. State, 644 P.2d 170, 1982 Wyo. LEXIS 325 (Wyo. 1982).

Forcible rape can be established without proof of violence to the victim and that the victim need not always resist the assault. The gravamen of sexual assault in the first degree is lack of consent to the sexual penetration or intrusion, which can be shown by resistance. Resistance by a victim is not required, however, when: (1) resistance would be futile; (2) the victim is “overcome by superior strength”; or (3) the victim is “paralyzed by fear.” Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

The evidence was sufficient to support a conviction although it allegedly failed to establish that the victim earnestly resisted the assault. The evidence proved that the victim was overcome by superior strength and that resistance on her part would have been futile. Sanchez v. State, 751 P.2d 1300, 1988 Wyo. LEXIS 29 (Wyo. 1988), overruled in part, Bean v. State, 2016 WY 48, 373 P.3d 372, 2016 Wyo. LEXIS 52 (Wyo. 2016).

“Threat” against victim can be expressed by acts or conduct. Richter v. State, 642 P.2d 1269, 1982 Wyo. LEXIS 313 (Wyo. 1982), overruled, Westmark v. State, 693 P.2d 220, 1984 Wyo. LEXIS 354 (Wyo. 1984).

There is difference between submission and consent, and submission does not necessarily involve consent: acquiescence is not consent if induced by fear or reasonable apprehension of bodily harm. Brown v. State, 581 P.2d 189, 1978 Wyo. LEXIS 205 (Wyo. 1978).

And consent may be limited. —

There is nothing inconsistent in one's consent to engage in sexual intercourse and in his or her refusal to engage in fellatio. Padilla v. State, 601 P.2d 189, 1979 Wyo. LEXIS 468 (Wyo. 1979).

Determination of reasonableness rests with fact finder. —

The necessary element of reasonable apprehension and reasonable ground for fear of her safety is not a determination solely in the judgment of the prosecutrix, but the reasonableness must rest with the fact finder. Gonzales v. State, 516 P.2d 592, 1973 Wyo. LEXIS 191 (Wyo. 1973).

And resistance or consent in sexual assault case is jury question. See Brown v. State, 581 P.2d 189, 1978 Wyo. LEXIS 205 (Wyo. 1978).

Marriage to victim not complete defense. —

The phrase “not by itself a defense” contained in § 6-2-307 is not vague because no objective standard is provided by which a person can measure contemplated conduct, because the standard by which conduct is to be measured is clearly outlined in subsection (a)(i). Section 6-2-307 clearly puts an assailant on notice that marriage to the victim of a sexual assault is not a complete defense, but may be considered along with other evidence in deciding the guilt of the defendant. Shunn v. State, 742 P.2d 775, 1987 Wyo. LEXIS 508 (Wyo. 1987).

Evidence sufficient to sustain finding of consent by victim to sexual intercourse. — See Padilla v. State, 601 P.2d 189, 1979 Wyo. LEXIS 468 (Wyo. 1979).

Sufficiency of evidence. —

Evidence was sufficient to sustain defendant's conviction for sexual assault of developmentally disabled victim where he had prior experience with people who had Down's syndrome, he could observe that victim looked different, and he talked to victim. Saiz v. State, 2001 WY 76, 30 P.3d 21, 2001 Wyo. LEXIS 92 (Wyo. 2001).

Evidence was sufficient to sustain defendant's convictions for first-degree sexual assault where physical evidence, including pictures and testimony that the victim suffered injuries from physical restraint and battery and medical tests indicating the presence of fluids consistent with defendant's blood type found on the victim's clothing, corroborated the victim's version of events that her injuries were received when sexually assaulted by defendant. Daniel v. State, 2003 WY 132, 78 P.3d 205, 2003 Wyo. LEXIS 162 (Wyo. 2003), cert. denied, 540 U.S. 1205, 124 S. Ct. 1476, 158 L. Ed. 2d 127, 2004 U.S. LEXIS 1455 (U.S. 2004).

Because victim's bruising was consistent with a sexual assault, and a reasonable jury could have inferred that the victim likely did not consent to having sex with the defendant because, had she consented, she would have removed her tampon, the jury could also reasonably find evidence sufficient to convict the defendant, notwithstanding defendant's assertion that because he was 69 years old, allegedly infirm, four inches shorter, and 20 pounds lighter than the 27-year-old victim, it would have been impossible to force the victim to have sexual intercourse and that since the victim had received training from a self-defense standpoint as a correction officer, she would have known how to avoid any such advance. Lujan v. State, 2004 WY 122, 99 P.3d 979, 2004 Wyo. LEXIS 159 (Wyo. 2004).

Jury could reasonably conclude that victim was asleep and therefore physically helpless as required under Wyo. Stat. Ann. § 6-2-301(a)(iii). Haynes v. State, 2008 WY 75, 186 P.3d 1204, 2008 Wyo. LEXIS 77 (Wyo. 2008).

Victim's testimony that defendant attempted to have sexual intercourse with her by force but could not complete vaginal penetration because she resisted, along with medical evidence of injuries to the inner portions of her genitalia, provided sufficient evidence to convict defendant of first degree sexual assault; sexual intrusion occurred when defendant penetrated the victim's labia or vulva. Pryor v. State, 2009 WY 95, 212 P.3d 635, 2009 Wyo. LEXIS 105 (Wyo. 2009).

Evidence was sufficient to convict defendant of first degree sexual assault under Wyo. Stat. Ann. § 6-2-302(a)(iv) because the victim had a disability which made her incapable of appraising the nature of her conduct, and defendant was aware of both the disability and its effect upon the victim. Tombroek v. State, 2009 WY 126, 217 P.3d 806, 2009 Wyo. LEXIS 138 (Wyo. 2009), reh'g denied, 2009 Wyo. LEXIS 159 (Wyo. Nov. 17, 2009).

Evidence was sufficient to convict defendant of first degree sexual assault under Wyo. Stat. Ann. § 6-2-302(a)(i) by either physical force or forcible confinement because (1) after the victim refused to have sex with defendant, defendant got into bed, forced the victim's legs apart, and inserted his fist into her privates; (2) the victim tried to fight off defendant but he held her down with “his force,” and she was unable to escape; (3) the sexual assault nurse stated that of the approximately 200 exams she had performed during her career, the victim's injuries were the most serious she had seen; (4) he restrained her by placing one hand over her chest and another over her legs; and (5) she did not report the assault immediately as defendant was still in the house and, based on prior abuse, she feared his reaction if he found out that she had reported the incident. Masias v. State, 2010 WY 81, 233 P.3d 944, 2010 Wyo. LEXIS 86 (Wyo. 2010).

Wyo. Stat. Ann. § 6-2-302(a)(ii) simply required the State to prove that defendant threatened serious bodily injury or death to “anyone” and the victim reasonably believed he had the present ability to execute those threats, and the State was not obligated to prove that the threat was directed toward a specific person; as the victim described the events which took place throughout the night, it was clear that defendant threatened to kill her and, considering that he aimed the gun at her multiple times, she reasonably believed he had the ability to carry through with that threat. Daves v. State, 2011 WY 47, 249 P.3d 250, 2011 Wyo. LEXIS 50 (Wyo. 2011).

Evidence was sufficient to convict defendant of third degree sexual assault and intentional abuse of a vulnerable adult because his continued contact after the victim said “no” and his grabbing her hand and placing it on his genitals constituted physical force reasonably calculated to cause submission; he knew or reasonably should have known that the victim through a mental deficiency or developmental disability was incapable of appraising the nature of her conduct as several witnesses testified that the victim’s physical characteristics and speech made her disability apparent; and, despite his intoxication, defendant was capable of forming the intent to abuse a vulnerable adult as he appeared coherent and oriented to time and place. Brown v. State, 2019 WY 102, 450 P.3d 208, 2019 Wyo. LEXIS 104 (Wyo. 2019).

Evidence was sufficient to support defendant’s conviction for first degree sexual assault, as the record was replete with evidence from which a reasonable jury could conclude that defendant caused submission of the victim by threat of serious bodily injury or extreme physical pain, and that she reasonably believed he had the present ability to execute those threats when he assaulted her, causing her to bleed from her rectum after the assault. Neidlinger v. State, 2021 WY 39, 482 P.3d 337, 2021 Wyo. LEXIS 47 (Wyo. 2021).

Evidence sufficient to convict on multiple charges. —

Where the evidence showed that defendant abducted a victim at gunpoint, handcuffed the victim inside of a car, committed nonconsensual sexual acts upon the victim, and transported the victim without consent, there was sufficient evidence to convict defendant of kidnapping, first-degree sexual assault, and third-degree sexual assault. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Proof actor knew of victim's physical helplessness must not be speculation. —

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 on defendant's intent, and that 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).

There was sufficient evidence concerning mental and developmental deficiencies of male victims of a sexual assault to support the trial court's determination that they were incapable of appraising the nature of their conduct and that the defendant, who was also a male, “[knew] or reasonably should [have known]” of such deficiencies, as required by subsection (a)(iv). While both victims were determined to understand the difference between having sexual intercourse with a woman as opposed to a man, and to some degree the social stigma often associated with homosexual relations, neither victim was considered to be capable of making adult rationalizations or decisions about the activity itself, or to understand the ramifications of adult relationships which include sexual activity. Righter v. State, 752 P.2d 416, 1988 Wyo. LEXIS 39 (Wyo. 1988).

Expert witness testimony as to behavior of child sexual abuse victim. —

Where the expert witness discussed the typical behavior tendencies of a child sexual abuse victim and then related them to the victim, without directly vouching for the victim's credibility or using any synonymous terms like “fabricate” and where the expert did not state that he concluded that the victim had been abused, but instead stated that she fit the mold of behavior for sexual abuse, the expert's testimony did not violate the rule against vouching for credibility. Frenzel v. State, 849 P.2d 741, 1993 Wyo. LEXIS 64 (Wyo. 1993).

Expert's testimony that most rape victims ask assailants not to tell was admissible, where such testimony was intended to assist the jury to understand one aspect of the evidence and did not constitute testimony with respect to the veracity of the victim. Lessard v. State, 719 P.2d 227, 1986 Wyo. LEXIS 558 (Wyo. 1986).

Kidnapping and sexual assault did not merge. —

The force used to accomplish the kidnapping was sufficient justification to enhance the penalty for aggravated kidnapping where it was separate and distinct from the force and confinement the defendant imposed upon the victim, and where there were repeated sexual assaults in his vehicle, this was not an instance that would demand merger of the sexual assaults with the independent crime of aggravated kidnapping. McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Distinct incidents of sexual assault constitute separate offenses. —

Where separate and distinct incidents of sexual assault occur in different ways, each in a different time period or where the same type of sexual assault occurs more than once on the same victim in different time periods, each incident constitutes a separate definable criminal offense which can be prosecuted individually. Hamill v. State, 602 P.2d 1212, 1979 Wyo. LEXIS 483 (Wyo. 1979).

Elements of attempted sexual assault are different from those of sexual assault in the first degree because of the requirement of a specific intent in the attempt statute. Sexual assault in the first degree is a general intent crime, and if the lesser offense has elements not included in the greater offense, no lesser included offense instruction is warranted. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Second-degree sexual assault is not lesser included offense of first-degree sexual assault. — The elements found in second-degree sexual assault of causing submission of the victim by threatening to retaliate by being in a position of authority over the victim and using this position of authority to cause the victim to submit require elements different from those found in first-degree sexual assault. Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995).

Attempted first-degree sexual assault and attempted second-degree sexual assault mutually exclusive. —

A person cannot commit both attempted first-degree sexual assault and attempted second-degree sexual assault in the same criminal incident; these crimes are mutually exclusive. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Third-degree sexual assault not lesser included offense. —

It was plain error for the trial judge to instruct the jury that third-degree sexual assault is a lesser included offense of first-degree sexual assault. Third-degree sexual assault cannot be a lesser included offense to first-degree sexual assault because its elements are not contained within the set of elements for first-degree sexual assault. Craney v. State, 798 P.2d 1202, 1990 Wyo. LEXIS 121 (Wyo. 1990).

Battery not lesser included offense. —

Since battery requires proof of an element not required for proof of first-degree sexual assault, a lesser included offense instruction need not be given. Battery requires the intentional, knowing and reckless causing of bodily injury to another or an unlawful touching in a rude, insolent or angry manner. These are not elements of first-degree sexual assault. Sandy v. State, 870 P.2d 352, 1994 Wyo. LEXIS 29 (Wyo. 1994).

Jury instructions for attempted sexual assault. —

In a prosecution for attempted first-degree sexual assault, the trial court did not commit error in combining the elements of first-degree sexual assault and attempt into one jury instruction where the instruction left no doubt as to under what circumstances the crime could be found to have been committed. Compton v. State, 931 P.2d 936, 1997 Wyo. LEXIS 5 (Wyo. 1997).

In a prosecution for attempted first-degree sexual assault, the trial court's failure to instruct the jury on the statutory definition of substantial step towards commission of the crime was error, but not plain error, where the state's proof showed that the defendant attempted to force penetration on his sleeping victim. Compton v. State, 931 P.2d 936, 1997 Wyo. LEXIS 5 (Wyo. 1997).

Lesser-included offense instructions for second-degree and third-degree sexual assault not warranted. —

The manner of committing sexual assault in the second degree and sexual assault in the third degree not only is differentiated under the statutory language, but obviously these offenses can be committed by acts or conduct different from that proscribed by the statute forbidding sexual assault in the first degree. Because of this, every element of the claimed lesser included offenses of sexual assault in the second degree and sexual assault in the third degree was not necessarily encompassed within the commission of the greater offense of sexual assault in the first degree, and the lesser included offense instructions were not required. Also, with respect to the claimed lesser included offense of sexual assault in the third degree, the evidence justified a conclusion of penetration or nothing and an instruction relating to “sexual contact” would not have been appropriate. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Lesser-included offense instruction of sexual battery not applicable. —

Although an appellate court did not decide whether sexual battery was a lesser-included offense of first-degree sexual assault and third-degree sexual assault, a trial court did not err by refusing to give a lesser-included offense instruction because the defendant admitted that sexual contact had occurred and the theory of the defense, consent, only allowed a jury to find defendant guilty or not guilty of the greater offense. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Assault and battery instruction inappropriate where defendant claims no contact with victim. —

In light of the rule that a lesser included offense instruction need be given only when the trial court determines that the evidence before the jury warrants the giving of such an instruction, a proffered instruction relating to assault and battery clearly was inappropriate. The trial theory of the defendant was that he had no contact with the victim, and the testimony of the victim was that of sexual assault. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Defendant not necessarily guilty of all alleged sexual assaults occurring within same transaction. —

Divergent findings in the jury's verdict, which found defendant guilty of one count of sexual assault and one count of aggravated burglary but not guilty with respect to two other counts of sexual assault alleged to be based upon the same transaction, were not a basis for any claim of error on appeal. Lessard v. State, 719 P.2d 227, 1986 Wyo. LEXIS 558 (Wyo. 1986).

Intent. —

In the former crime of rape no intent was requisite other than that evidenced by the doing of the acts constituting the offense charged. Rhodes v. State, 462 P.2d 722, 1969 Wyo. LEXIS 170 (Wyo. 1969).

Evidence sustained defendant's conviction where the victim testified that defendant took her to a location outside of town against her will, dropped his pants, grabbed her by the hair and forced her to perform oral sex upon him. Rathbun v. State, 802 P.2d 881, 1990 Wyo. LEXIS 154 (Wyo. 1990).

The evidence was sufficient to sustain defendant's conviction for first degree sexual assault, although the victim was unable to identify defendant and the circumstantial evidence, including a hat, fuel records, phone records, and body fluids, was somewhat ambivalent in terms of inculpating defendant; it was for the jury to decide issues of credibility. Hadden v. State, 2002 WY 41, 42 P.3d 495, 2002 Wyo. LEXIS 42 (Wyo.), cert. denied, 537 U.S. 868, 123 S. Ct. 272, 154 L. Ed. 2d 114, 2002 U.S. LEXIS 5881 (U.S. 2002).

Evidence sufficient to sustain attempt conviction. —

The court did not abuse its discretion by denying the defendant's motion for a judgment of acquittal, where a jury could infer that the victim had not consented to a sexual intrusion, and that the defendant abandoned his attempt to commit first-degree sexual assault because the victim refused to open her mouth or because he heard the police entering the victim's apartment. Cardenas v. State, 811 P.2d 989, 1991 Wyo. LEXIS 94 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 107 (Wyo. June 14, 1991).

Minimum term not required. —

Former Section 6-63(A) provided that a person who had been convicted of first-degree rape could be sentenced to life in prison and because the district court determined that a life sentence was appropriate, it was not bound to set a minimum term under former Section 7-313 (Section 7-13-201 ). Dolence v. State, 921 P.2d 1103, 1996 Wyo. LEXIS 117 (Wyo. 1996).

Double jeopardy. —

Separate and distinct acts of sexual intrusion, even those separated in time only by a matter of seconds, can properly be punished as separate crimes without violating double jeopardy protections. Frenzel v. State, 938 P.2d 867, 1997 Wyo. LEXIS 86 (Wyo.), cert. denied, 522 U.S. 959, 118 S. Ct. 388, 139 L. Ed. 2d 303, 1997 U.S. LEXIS 6635 (U.S. 1997).

No double jeopardy violation in prosecution for conspiracy to commit rape since the conduct constituting the crime of conspiracy is separate and apart from the conduct that makes up the substantive offenses of rape and kidnapping. Phillips v. State, 835 P.2d 1062, 1992 Wyo. LEXIS 76 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 84 (Wyo. July 8, 1992).

A substantive crime, and a conspiracy to commit that crime, are not the same offense for double jeopardy purposes, and the fact that there is a mere overlap of proof between two prosecutions does not establish a double jeopardy violation. Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo., cert. denied, 506 U.S. 1022, 113 S. Ct. 661, 121 L. Ed. 2d 586, 1992 U.S. LEXIS 7732 (U.S. 1992), reh'g denied, 1992 Wyo. LEXIS 85 (Wyo. July 8, 1992).

Each act of intrusion prohibited. —

This section prohibits individual acts of sexual intrusion. Frenzel v. State, 938 P.2d 867, 1997 Wyo. LEXIS 86 (Wyo.), cert. denied, 522 U.S. 959, 118 S. Ct. 388, 139 L. Ed. 2d 303, 1997 U.S. LEXIS 6635 (U.S. 1997).

Even though defendant's sexual intrusions occurred on the same date, and may have been separated in time by only a matter of minutes, each sexual intrusion by intercourse, fellatio, or other act was a separate and distinct crime and could be punished separately. Frenzel v. State, 938 P.2d 867, 1997 Wyo. LEXIS 86 (Wyo.), cert. denied, 522 U.S. 959, 118 S. Ct. 388, 139 L. Ed. 2d 303, 1997 U.S. LEXIS 6635 (U.S. 1997).

The legislature intended separate punishments for the crime of aggravated kidnapping and for the crime of sexual assault in the first degree because, once the sexual assault is inflicted, the victim has been harmed and cannot be released “substantially unharmed.” McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Double jeopardy.—

After defendant was acquitted of first- and second-degree sexual assault, and a jury hung as to third-degree sexual assault, a retrial on third-degree sexual assault did not violate double jeopardy because a bill of particulars included conduct other than cunnilingus for which defendant was acquitted, which the crime excluded. Cercy v. State, 2019 WY 131, 455 P.3d 678, 2019 Wyo. LEXIS 133 (Wyo. 2019).

Defendant's claims sentencing barred by res judicata. —

Since defendant's original consolidated sentence for multiple convictions was clearly within the statutory parameters of former § 6-4-306 and he could show no good cause why he failed to challenge his consolidated sentence in two earlier proceedings, the district court did not err in finding defendant's claims barred by the doctrine of res judicata. Hamill v. State, 948 P.2d 1356, 1997 Wyo. LEXIS 144 (Wyo. 1997).

Victim impact testimony permissible to bolster credibility. —

Where defendant was charged with first-degree sexual assault after drugging his victim and subsequently raping her, the trial court did not err in permitting the victim and her husband to testify regarding the impact that the sexual assault had upon the victim because defendant attacked the victim's credibility by claiming that the sexual encounter was consensual and it was not error to utilize victim impact testimony to bolster the credibility of the victim after defendant's attack upon her credibility. Schreibvogel v. State, 2010 WY 45, 228 P.3d 874, 2010 Wyo. LEXIS 48 (Wyo. 2010).

Evidentiary errors required reversal. —

A defendant's conviction under this section for sexual assault was reversed, where, among other evidentiary errors, (1) even though the trial court had ordered that witnesses not be asked to vouch for the credibility of the child who was the alleged victim, the prosecutor continued to do so, despite admonitions and sustained objections; and (2) the improper introduction of a volume of evidence of the defendant's “lifestyle” or character permeated the trial. Wilde v. State, 2003 WY 93, 74 P.3d 699, 2003 Wyo. LEXIS 114 (Wyo. 2003).

Applied in

Strand v. State, 36 Wyo. 78, 252 P. 1030, 1927 Wyo. LEXIS 11 (1927); State v. Thomas, 38 Wyo. 72, 264 P. 1017, 1928 Wyo. LEXIS 27 (1928); State v. Quirk, 38 Wyo. 462, 268 P. 189, 1928 Wyo. LEXIS 65 (1928); State v. Mau, 41 Wyo. 365, 285 P. 992, 1930 Wyo. LEXIS 15 (1930); State v. Holm, 67 Wyo. 360, 224 P.2d 500, 1950 Wyo. LEXIS 18 (1950); Elmer v. State, 463 P.2d 14, 1969 Wyo. LEXIS 171 (Wyo. 1969); Stambaugh v. State, 613 P.2d 1237, 1980 Wyo. LEXIS 291 (Wyo. 1980); Heinrich v. State, 638 P.2d 641, 1981 Wyo. LEXIS 405 (Wyo. 1981); Taylor v. State, 642 P.2d 1294, 1982 Wyo. LEXIS 320 (Wyo. 1982); Britton v. State, 643 P.2d 935, 1982 Wyo. LEXIS 332 (Wyo. 1982); Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982); Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984); Martin v. State, 720 P.2d 894, 1986 Wyo. LEXIS 570 (Wyo. 1986); Stinehart v. State, 727 P.2d 1010, 1986 Wyo. LEXIS 637 (Wyo. 1986); Dean v. State, 931 P.2d 942, 1997 Wyo. LEXIS 3 (Wyo. 1997).

Quoted in

Sanchez v. State, 592 P.2d 1130, 1979 Wyo. LEXIS 386 (Wyo. 1979); Sears v. State, 632 P.2d 946, 1981 Wyo. LEXIS 368 (Wyo. 1981); Browder v. State, 639 P.2d 889, 1982 Wyo. LEXIS 289 (Wyo. 1982); Amin v. State, 686 P.2d 593, 1984 Wyo. LEXIS 331 (Wyo. 1984); Campbell v. State, 728 P.2d 628, 1986 Wyo. LEXIS 640 (Wyo. 1986); Herdt v. State, 816 P.2d 1299, 1991 Wyo. LEXIS 145 (Wyo. 1991); Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000); McGarvey v. State, 2014 WY 66, 2014 Wyo. LEXIS 71 (May 28, 2014).

Stated in

Vasquez v. State, 623 P.2d 1205, 1981 Wyo. LEXIS 296 (Wyo. 1981); Price v. State, 716 P.2d 324, 1986 Wyo. LEXIS 508 (Wyo. 1986); Velos v. State, 752 P.2d 411, 1988 Wyo. LEXIS 33 (Wyo. 1988).

Cited in

Evans v. State, 653 P.2d 308, 1982 Wyo. LEXIS 399 (Wyo. 1982); Freeze v. State, 662 P.2d 415, 1983 Wyo. LEXIS 315 (Wyo. 1983); Schmidt v. State, 668 P.2d 656, 1983 Wyo. LEXIS 356 (Wyo. 1983); Stogner v. State, 792 P.2d 1358, 1990 Wyo. LEXIS 58 (Wyo. 1990); Dichard v. State, 844 P.2d 484, 1992 Wyo. LEXIS 207 (Wyo. 1992); Vigil v. State, 859 P.2d 659, 1993 Wyo. LEXIS 148 (Wyo. 1993); Hansen v. State, 904 P.2d 811, 1995 Wyo. LEXIS 194 (Wyo. 1995); Wilkening v. State, 922 P.2d 1381, 1996 Wyo. LEXIS 124 (Wyo. 1996); Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000); Chapman v. State, 2001 WY 25, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001); Ford v. State, 2003 WY 65, 69 P.3d 407, 2003 Wyo. LEXIS 80 (Wyo. 2003); Giles v. State, 2004 WY 101, 96 P.3d 1027, 2004 Wyo. LEXIS 129 (2004); Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Sept. 19, 2007); Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012);Hirsch v. State, 2006 WY 66, 135 P.3d 586, 2006 Wyo. LEXIS 71 (Wyo. May 31, 2006); Norgaard v. State, 2014 WY 157, 2014 Wyo. LEXIS 181 (Dec. 9, 2014); Lindstrom v. State, 2015 WY 28, 2015 Wyo. LEXIS 32 (Feb. 25, 2015); Hamilton v. State, 2017 WY 72, 396 P.3d 1009, 2017 Wyo. LEXIS 72 (Wyo. 2017).

Condition of probation. —

Where a defendant entered Alford guilty pleas to violating Wyo. Stat. Ann. §§ 6-2-502 , 6-4-103 , 6-1-303 , and 6-2-302 , the district court did not abuse its discretion by imposing as a condition of his probation following his term of incarceration that he have no contact with his minor children. A no contact condition was reasonably related to the violent sexual crimes for which he was convicted and for which he was charged, and the provision did not impermissibly encroach on his fundamental right as a parent to raise his children. Perkins v. State, 2014 WY 11, 317 P.3d 584, 2014 Wyo. LEXIS 12 (Wyo. 2014).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For case notes, “Constitutional Law—Double Jeopardy—A Constitutional Protection or a Formality to Sidestep in Successive Prosecutions? Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 661 (1993).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status of admissibility in forcible rape prosecution of complainant's general reputation for unchastity, 95 ALR3d 1181.

Standard of proof required under statute providing for commitment of sexual offenders or sexual psychopaths, 96 ALR3d 840.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 ALR4th 1009.

Admissibility of expert testimony as to whether accused had specific intent necessary for conviction, 16 ALR4th 666.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 ALR4th 660.

Defense of mistake of fact as to victim's consent in rape prosecution, 102 ALR5th 447.

§ 6-2-303. Sexual assault in the second degree.

  1. Any actor who inflicts sexual intrusion on a victim commits sexual assault in the second degree if, under circumstances not constituting sexual assault in the first degree:
    1. The actor causes submission of the victim by threatening to retaliate in the future against the victim or the victim’s spouse, parents, brothers, sisters or children, and the victim reasonably believes the actor will execute this threat. “To retaliate” includes threats of kidnapping, death, serious bodily injury or extreme physical pain;
    2. The actor causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution;
    3. The actor administers, or knows that someone else administered to the victim, without the prior knowledge or consent of the victim, any substance which substantially impairs the victim’s power to appraise or control his conduct;
    4. The actor knows or should reasonably know that the victim submits erroneously believing the actor to be the victim’s spouse;
    5. Repealed by Laws 2007, ch. 159, § 3.
    6. The actor is in a position of authority over the victim and uses this position of authority to cause the victim to submit;
    7. The actor is an employee, independent contractor or volunteer of a state, county, city or town, or privately operated adult or juvenile correctional system, including but not limited to jails, penal institutions, detention centers, juvenile residential or rehabilitative facilities, adult community correctional facilities or secure treatment facilities and the victim is known or should be known by the actor to be a resident of such facility or under supervision of the correctional system;
    8. Repealed by Laws 2018, ch. 80, §  3
    9. The actor is an employee or volunteer of an elementary or secondary public or private school who, by virtue of the actor’s employment or volunteer relationship with the school, has interaction with the victim who is a student or participant in the activities of the school and is more than four (4) years older than the victim.
  2. A person is guilty of sexual assault in the second degree if he subjects another person to:
    1. Sexual contact or sexual intrusion in the person’s capacity as a health care provider in the course of providing care, treatment, services or procedures to maintain, diagnose or otherwise treat a patient’s physical or mental condition;
    2. Sexual contact and causes serious bodily injury to the victim under any of the circumstances listed in W.S. 6-2-302(a)(i) through (iv) or paragraphs (a)(i) through (vii) and (ix) of this section.
  3. Repealed by Laws 1997, ch. 135, § 2.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1997, ch. 135, § 2; 2007, ch. 7, § 1; ch. 159, § 3; 2014, ch. 117, § 1; 2017, ch. 199, § 1; 2018, ch. 80, §§ 2, 3.

Cross references. —

As to sexual battery, see § 6-2-313 .

The 2007 amendments.

The first 2007 amendment, by ch. 7, § 1, effective July 1, 2007, in (a), added (vii) and redesignated former (vii) as (viii), substituted “(vii)” for “(vi)” in (b); and made a related change.

The second 2007 amendment, by ch. 159, § 3, effective July 1, 2007, in (a), repealed former (a)(v), which read: “At the time of the commission of the act the victim is less than twelve (12) years of age and the actor is at least four (4) years older than the victim.”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

The 2014 amendment, in (a)(vii), deleted “or work release facilities” and made stylistic changes.

The 2017 amendment , effective July 1, 2017, added (a)(ix); in (b) added “and (ix)” preceding “of this section,” and made related changes.

The 2018 amendments. — The first 2018 amendment, by ch. 80, § 2, effective July 1, 2018, in (b), redesignated former ending text as (b)(ii); added (b)(i); and made a stylistic change.

The second 2018 amendment, by ch. 80, § 3, effective July 1, 2018, repealed former (a)(viii), which read: “The actor inflicts sexual intrusion in treatment or examination of a victim for purposes or in a manner substantially inconsistent with reasonable medical practices; or.”

Constitutionality.—

Defendant’s conviction for sexual contact with a resident of a correctional facility did not violate her due process rights under either the state or federal constitutions because the statutes at issue clearly proscribed her conduct, the State had an undeniable interest in ensuring the relationship of state prisoners and the state officers who supervised their confinement was not undermined by sexual contact, consensual or otherwise, and, although defendant raised the Wyoming constitutional argument below and on appeal, her argument largely echoed her argument under the federal constitution and she provided no analysis of any of the requisite factors or legal reasons justifying resort to independent state grounds. Sheesley v. State, 2019 WY 32, 437 P.3d 830, 2019 Wyo. LEXIS 32 (Wyo. 2019).

Guilty plea. —

Defendant's plea was entered knowingly and voluntarily because defendant had sufficient information to understand the nature of the charge against him; defendant was present at the hearing on his motion for a bill of particulars, at which the State clarified it would be charging him with sexual assault, and at the plea hearing, defendant asserted that he discussed his plea with counsel and was satisfied with the advice his was given. Williams v. State, 2015 WY 100, 354 P.3d 954, 2015 Wyo. LEXIS 115 (Wyo. 2015), reh'g denied, 2015 Wyo. LEXIS 134 (Wyo. Aug. 26, 2015).

District court failed to establish a factual basis for the third-degree sexual assault charge prior to accepting defendant's guilty plea because none of the facts supported the element of causes submission of the victim by any means that would prevent resistance by a victim of ordinary resolution; defendant provided no facts showing that he took any action that would have prevented a victim of ordinary resolution from resisting. Williams v. State, 2015 WY 100, 354 P.3d 954, 2015 Wyo. LEXIS 115 (Wyo. 2015), reh'g denied, 2015 Wyo. LEXIS 134 (Wyo. Aug. 26, 2015).

Although the district court failed to establish a factual basis for the third-degree sexual assault charge prior to accepting defendant's guilty plea, there was no plain error because the record revealed sufficient support for the plea, and defendant was not materially prejudiced by the district court's failure to establish a sufficient factual basis at the plea hearing; there were sufficient facts in the record to support the elements of third-degree sexual assault. Williams v. State, 2015 WY 100, 354 P.3d 954, 2015 Wyo. LEXIS 115 (Wyo. 2015), reh'g denied, 2015 Wyo. LEXIS 134 (Wyo. Aug. 26, 2015).

Position of authority. —

Defendant could not claim on appeal that the crime of second degree sexual assault by a person in a position of authority did not apply to a psychologist because defendant’s no contest plea waived this non-jurisdictional issue, as (1) defendant could have raised the issue in the trial court in a motion to dismiss or argued the issue to a jury, and (2) neither the underlying legal or factual issues barred the State from charging defendant. Popkin v. State, 2018 WY 121, 429 P.3d 53, 2018 Wyo. LEXIS 125 (Wyo. 2018).

Sufficient evidence demonstrated that defendant was in a “position of authority” as to a victim because defendant's massage therapist-client relationship with the victim contained the required power differential. Solis v. State, 2013 WY 152, 315 P.3d 622, 2013 Wyo. LEXIS 155 (Wyo. 2013).

Evidence was sufficient to convict defendant, an OB/GYN, of second-degree sexual assault of two patients based on his position of authority because medical providers could hold a position of authority based on the type of relationship they had with their patients; and an OB/GYN held a position of authority over a patient. Harnetty v. State, 2019 WY 21, 435 P.3d 368, 2019 Wyo. LEXIS 21 (Wyo. 2019).

Double jeopardy. —

When defendant was convicted under Wyo. Stat. Ann. § 6-2-303(a)(vi) and (viii), one of the convictions had to be vacated because (1) the convictions resulted from disjunctive charges under the same statute and were based on a single criminal act, so (2) the legislature presumably intended only one conviction. Solis v. State, 2013 WY 152, 315 P.3d 622, 2013 Wyo. LEXIS 155 (Wyo. 2013).

Subsection (a)(vi) is neither unreasonable nor arbitrary, and is within the police power of the state to enact laws for the general welfare of the people. Scadden v. State, 732 P.2d 1036, 1987 Wyo. LEXIS 393 (Wyo. 1987).

“Position of authority.” —

“Authority” is defined as: jurisdiction, legal power, legitimacy, prerogative, right to adjudicate, right to command, right to determine, right to settle issues, and rightful power. “Authority” is also defined as: permission; right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge; control over; and jurisdiction. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Defendant's convictions for third-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-303(a)(vi) were supported by the evidence because the State proved that defendant, a certified nursing assistant, stood in a “position of authority” with respect to the victim, as contemplated by Wyo. Stat. Ann. § 6-2-301(a)(iv); the victim, a man who suffered from a progressive muscle-weakening disease, sought and needed specific nursing services. Baldes v. State, 2012 WY 67, 267 P.3d 386, 2012 Wyo. LEXIS 71 (May 15, 2012).

Victim's stepfather in “position of authority.” —

Where the defendant's role as a stepfather gave him both access and influence over the victim, the jury properly found, under the standard of beyond a reasonable doubt, that he invoked his “position of authority” to commit sexual assault against the victim. Brown v. State, 817 P.2d 429, 1991 Wyo. LEXIS 138 (Wyo. 1991).

Defendant's status as the stepfather of the 17-year-old victim and as a household member satisfied the statutory definition of “position of authority” required for conviction under this section. Blake v. State, 933 P.2d 474, 1997 Wyo. LEXIS 42 (Wyo. 1997).

Teacher or coach deemed “authority.” —

The legislature used the word “authority” in subsection (a)(vi) to mean an externally granted power, not a self-generated control. A teacher or coach, for example, is vested with such power by a grant from society. Scadden v. State, 732 P.2d 1036, 1987 Wyo. LEXIS 393 (Wyo. 1987).

Chiropractor in “position of authority.” —

Where patients testified that they were victims of a chiropractor who touched their breasts and pubic areas and made inappropriate remarks during chiropractic treatment, the Supreme Court of Wyoming held that defendant's conduct was third degree sexual assault because he was in a “position of authority” over his patients for purposes of this section. While not engaged in the practice of medicine, chiropractors govern themselves by ethical codes advising practitioners not to take physical advantage of any patient; therefore, the sexual contact that defendant had with his patients was prohibited. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Child witness. —

Defendant's conviction of second-degree sexual assault, third degree sexual assault, and indecent liberties with a minor was upheld where the trial court held a hearing to determine the competency of the five-year old child victim to testify as to the sexual assault; no separate taint hearing was required because defendant did not come forward with some evidence that taint was present, and the competency inquiry, the five-part test to determine the competency of child witnesses, included the question of pretrial taint. Morganflash v. State, 2003 WY 120, 76 P.3d 830, 2003 Wyo. LEXIS 146 (Wyo. 2003).

Establishing exact date of child abuse unnecessary. —

In the case of sexual abuse of a child, it is sufficient to establish the transaction rather than the exact date or dates in question. Brown v. State, 817 P.2d 429, 1991 Wyo. LEXIS 138 (Wyo. 1991).

Double jeopardy.—

After defendant was acquitted of first- and second-degree sexual assault, and a jury hung as to third-degree sexual assault, a retrial on third-degree sexual assault did not violate double jeopardy because a bill of particulars included conduct other than cunnilingus for which defendant was acquitted, which the crime excluded. Cercy v. State, 2019 WY 131, 455 P.3d 678, 2019 Wyo. LEXIS 133 (Wyo. 2019).

Physician who inflicts sexual intrusion may be charged years after events occur. —

Physician who inflicted sexual intrusion during pelvic examinations was found guilty of forcible rape of two patients under former § 6-63, W.S. 1957, assault and battery with intent to rape two patients under former § 6-64, W.S. 1957, and second-degree sexual assault on another patient under former § 6-4-303(a)(vii). Though the period of time between the occurrence of the incidents and the charges ranged from 20 months to 17 years, Wyoming has no statute of limitations for any criminal case; the delay in criminal charges was not attributable to the state of Wyoming; there was no indication of bad faith; there was no evidence of specific prejudice; and, as a matter of law, there was no denial of due process or a fair trial. Story v. State, 721 P.2d 1020, 1986 Wyo. LEXIS 577 (Wyo.), cert. denied, 479 U.S. 962, 107 S. Ct. 459, 93 L. Ed. 2d 405, 1986 U.S. LEXIS 4771 (U.S. 1986).

Defendant's conviction of sexually assaulting daughters not barred under § 6-4-402 (incest). —

This section and §§ 6-4-402 (incest) and 14-3-105 (taking indecent liberties with a minor) all concern sexual activities, but one cannot be said to be more specific than the others. Therefore, the defendant's convictions under this section and former § 14-3-105 were not barred under § 6-4-402 , even though the victims of his acts were his daughters, ages four and six years. Kallas v. State, 704 P.2d 693, 1985 Wyo. LEXIS 525 (Wyo. 1985).

Incest does not merge into sexual assault. —

The incest statute requires that the sexual contact or intrusion be committed upon a relative of the accused. This family relationship element prevents the incest conviction from merging into the second-degree sexual assault conviction since a family relationship was not a necessary element for the sexual assault. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

For purposes of sentencing incest charges merged into the sexual assault because all sexual assault charges required either sexual intrusion or sexual contact, and so did the incest charges. In short, it would be impossible for defendant to commit second- or third-degree sexual assault based upon the use of his position of authority as father of the victims without also committing incest. Najera v. State, 2009 WY 105, 214 P.3d 990, 2009 Wyo. LEXIS 114 (Wyo. 2009), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Separate sexual acts. —

Where defendant performed fellatio upon the victim and then made the victim reciprocate, two distinct acts of fellatio were committed and two separate sentences proper. Baum v. State, 745 P.2d 877, 1987 Wyo. LEXIS 534 (Wyo. 1987).

Defendant, who attempted sexual intrusion without success, properly charged with attempted second-degree assault. —

Fourth-degree sexual assault may be committed in numerous ways without committing sexual intrusion, required by subsection (a). Because there is no statute specifically making attempted sexual intrusion a crime, the general attempt statute applies, and the defendant, who attempted sexual intrusion without success, was properly charged with attempted second-degree sexual assault. Bueno-Hernandez v. State, 724 P.2d 1132, 1986 Wyo. LEXIS 612 (Wyo. 1986), cert. denied, 480 U.S. 907, 107 S. Ct. 1353, 94 L. Ed. 2d 523, 1987 U.S. LEXIS 1004 (U.S. 1987).

It was within the prosecutor's discretion to charge attempted second-degree sexual assault, instead of taking indecent liberties with a minor. Bueno-Hernandez v. State, 724 P.2d 1132, 1986 Wyo. LEXIS 612 (Wyo. 1986), cert. denied, 480 U.S. 907, 107 S. Ct. 1353, 94 L. Ed. 2d 523, 1987 U.S. LEXIS 1004 (U.S. 1987).

Immodest liberties not lesser included offense of sexual assault. —

Jury instruction that taking of immodest, immoral or indecent liberties with a child (former § 14-3-105 ) was a lesser included offense under this section was reversible error. Derksen v. State, 845 P.2d 1383, 1993 Wyo. LEXIS 25 (Wyo. 1993).

Merger of sexual assault offense and indecent liberties offense. —

For purposes of sentencing, a merger of a sexual assault offense and an indecent liberties offense may occur when the facts which have been proven at trial establish that the defendant committed only one criminal act. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Second-degree sexual assault is not lesser included offense of first-degree sexual assault. — The elements found in second-degree sexual assault of causing submission of the victim by threatening to retaliate by being in a position of authority over the victim and using this position of authority to cause the victim to submit require elements different from those found in first-degree sexual assault. Jackson v. State, 891 P.2d 70, 1995 Wyo. LEXIS 36 (Wyo. 1995).

Attempted first-degree sexual assault and attempted second-degree sexual assault mutually exclusive. —

A person cannot commit both attempted first-degree sexual assault and attempted second-degree sexual assault in the same criminal incident; these crimes are mutually exclusive. Harris v. State, 933 P.2d 1114, 1997 Wyo. LEXIS 48 (Wyo. 1997).

Jury instructions. —

District court properly, upon a jury verdict, convicted defendant, a former corrections employee, of second-degree sexual assault because defendant did not show that she was prejudiced by any alleged failure by the district court to provide a voluntariness instruction to the jury, the district court’s failure to instruct the jury on voluntariness did not violate a clear and unequivocal rule of law, defendant did not claim, and the evidence did not suggest, her actions were not voluntary, and while she provided excuses for her actions, she nevertheless admitted that they were “consensual.” Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 .

In instructing the jury, the trial court did not err by combining the attempt elements with the second-degree sexual assault elements; the instruction clearly set out all of the elements that the jury needed to find in order to convict. Rigler v. State, 941 P.2d 734, 1997 Wyo. LEXIS 89 (Wyo. 1997).

In a second-degree sexual assault based on a position of authority case, defendant’s proposed jury instruction was not a proper theory of defense instruction, and the district court did not err when it rejected the instruction because, instead, it was a request that the State prove an element that was not included within the position of authority subsection charged; and defendant did not have a due process right to have the court instruct the jury on a crime for which he was not charged under and was not otherwise a lesser-included offense. Harnetty v. State, 2019 WY 21, 435 P.3d 368, 2019 Wyo. LEXIS 21 (Wyo. 2019).

Lesser-included offense instructions not required. —

The manner of committing sexual assault in the second degree and sexual assault in the third degree not only is differentiated under the statutory language, but obviously these offenses can be committed by acts or conduct different from that proscribed by the statute forbidding sexual assault in the first degree. Because of this, every element of the claimed lesser included offenses of sexual assault in the second degree and sexual assault in the third degree was not necessarily encompassed within the commission of the greater offense of sexual assault in the first degree, and the lesser included offense instructions were not required. Also, with respect to the claimed lesser included offense of sexual assault in the third degree, the evidence justified a conclusion of penetration or nothing and an instruction relating to “sexual contact” would not have been appropriate. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

In a case involving second-degree sexual assault under this section, a trial court did not err by denying a request for lesser-included jury instructions for third-degree sexual assault or sexual battery under the circumstances of the case due to the fact that different elements were required. Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Wyo. 2007).

Court did not abuse its discretion in allowing five-year-old victim to testify in trial for second degree sexual assault. Baum v. State, 745 P.2d 877, 1987 Wyo. LEXIS 534 (Wyo. 1987).

Corroboration of defendant's confession. —

Testimony and statements of child victims of sexual abuse establishing that sexual contact occurred between children and defendant sufficiently corroborated defendant's confession. Simmers v. State, 943 P.2d 1189, 1997 Wyo. LEXIS 113 (Wyo. 1997).

Evidence sufficient for conviction. —

The court could not hold that the evidence was insufficient to support a guilty finding. See Baum v. State, 745 P.2d 877, 1987 Wyo. LEXIS 534 (Wyo. 1987).

Where the testimony of the victim was sufficient to establish the element of sexual intrusion with respect to the charge against the defendant, and where the circumstances surrounding the lifestyle in the house justified the finding that the victim's submission was the product of means that would have prevented resistance in a person of ordinary resolution, the evidence was sufficient to sustain the defendant's conviction. Kavanaugh v. State, 769 P.2d 908, 1989 Wyo. LEXIS 60 (Wyo. 1989).

There was sufficient evidence to convict defendant of both second degree sexual assault and indecent liberties, and defendant failed to demonstrate how the district court abused its discretion during his trial in admitting expert testimony and prior bad acts evidence. Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200 (Wyo. 1999).

In defendant's trial for sexual assault and incest, evidence was sufficient to sustain the convictions, pursuant to Wyo. Stat. Ann. § 6-2-303 and Wyo. Stat. Ann. § 6-4-402(a), because it was uncontested that defendant, as the victims' father, occupied a position of authority over the victims, and defendant committed the sexual acts. Najera v. State, 2009 WY 105, 214 P.3d 990, 2009 Wyo. LEXIS 114 (Wyo. 2009), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Applied in

Elliott v. State, 600 P.2d 1044, 1979 Wyo. LEXIS 460 (Wyo. 1979); Young v. State, 678 P.2d 880, 1984 Wyo. LEXIS 272 (Wyo. 1984); Watters v. State, 2004 WY 155, 101 P.3d 908, 2004 Wyo. LEXIS 202 (2004).

Quoted in

Sanchez v. State, 592 P.2d 1130, 1979 Wyo. LEXIS 386 (Wyo. 1979); Connolly v. State, 610 P.2d 1008, 1980 Wyo. LEXIS 265 (Wyo. 1980); Sears v. State, 632 P.2d 946, 1981 Wyo. LEXIS 368 (Wyo. 1981); In re Matter of GP, 679 P.2d 976, 1984 Wyo. LEXIS 269 (Wyo. 1984); McGinn v. State, 928 P.2d 1157, 1996 Wyo. LEXIS 166 (Wyo. 1996); Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001); DeLoge v. State, 2002 WY 155, 55 P.3d 1233, 2002 Wyo. LEXIS 175 (Wyo. 2002); Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Feb. 28, 2008); Garza v. State, 2010 WY 64, 231 P.3d 884, 2010 Wyo. LEXIS 67 (May 19, 2010).

Stated in

State v. District Court, 715 P.2d 191, 1986 Wyo. LEXIS 501 (Wyo. 1986).

Cited in

Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980); Betzle v. State, 847 P.2d 1010, 1993 Wyo. LEXIS 40 (Wyo. 1993); Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993); Brown v. State, 894 P.2d 597, 1995 Wyo. LEXIS 62 (Wyo. 1995); Curl v. State, 898 P.2d 369, 1995 Wyo. LEXIS 90 (Wyo. 1995); Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995); Vernier v. State, 909 P.2d 1344, 1996 Wyo. LEXIS 11 (Wyo. 1996); BW v. State, 12 P.3d 675, 2000 Wyo. LEXIS 208 (Wyo. 2000); Chapman v. State, 2001 WY 25, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001); BW v. State, 12 P.3d 675, 2000 Wyo. LEXIS 208 (Wyo. 2000); McCard v. State, 2003 WY 142, 78 P.3d 1040, 2003 Wyo. LEXIS 172 (Wyo. 2003); Hirsch v. State, 2006 WY 66, 135 P.3d 586, 2006 Wyo. LEXIS 71 (Wyo. May 31, 2006); Jackson v. State, 2012 WY 56, 273 P.3d 1105, 2012 Wyo. LEXIS 59 (Apr. 11, 2012).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Use of Videotaping to Avoid Traumatization of Child Sexual Abuse Victim-Witnesses,” see XXI Land & Water L. Rev. 565 (1986).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 ALR4th 1009.

Running of limitations against action for civil damages for sexual abuse of child, 9 ALR5th 321.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 ALR5th 856.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 ALR5th 499.

§ 6-2-304. Sexual assault in the third degree.

  1. An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault in the first or second degree:
    1. and (ii) Repealed by Laws 2007, ch. 159 § 3.
    2. The actor subjects a victim to sexual contact under any of the circumstances of W.S. 6-2-302(a)(i) through (iv) or 6-2-303(a)(i) through (vii) and (ix) without inflicting sexual intrusion on the victim and without causing serious bodily injury to the victim.

History. Laws 1982, ch. 75, § 3; 1984, ch. 44, § 2; 1997, ch. 135, § 1; 2007, ch. 159, § 3; 2009, ch. 87, § 1; 2017, ch. 199, § 1.

Cross references. —

As to sexual battery, see § 6-2-313 .

As to assault upon child under 16, see § 6-2-503 .

The 2007 amendment, effective July 1, 2007, repealed former (a)(i) and (a)(ii), which pertained to the age of the actor and victim.

The 2009 amendment, effective July 1, 2009, substituted “(viii)” for “(vi)” following “6-2-303(a)(i) through” in (a)(iii).

The 2017 amendment , effective July 1, 2017, in (a)(iii) added “and (ix)” preceding “without inflicting.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Section not unconstitutionally overbroad.—

Defendant’s conviction for sexual contact with a resident of a correctional facility did not violate her due process rights under either the state or federal constitutions because the statutes at issue clearly proscribed her conduct, the State had an undeniable interest in ensuring the relationship of state prisoners and the state officers who supervised their confinement was not undermined by sexual contact, consensual or otherwise, and, although defendant raised the Wyoming constitutional argument below and on appeal, her argument largely echoed her argument under the federal constitution and she provided no analysis of any of the requisite factors or legal reasons justifying resort to independent state grounds. Sheesley v. State, 2019 WY 32, 437 P.3d 830, 2019 Wyo. LEXIS 32 (Wyo. 2019).

Construction with other law. —

The legislature intended criminal liability under former W.S. § 14-3-105 to entail conduct which is more culpable than the conduct which constitutes guilt under this section. Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

The indecent liberties statute as applied to the facts of defendant's case was not unconstitutionally vague. The statutory language provided sufficient notice that consensual intercourse with a 16 year-old is criminal behavior even though that conduct does not offend the third degree sexual assault statute, Wyo. Stat. Ann. § 6-2-304(a)(i) (repealed), because of the extreme age difference (defendant was 34) and the fact that consent of a minor is not a complete defense to the charge of taking indecent liberties. Moe v. State, 2005 WY 58, 110 P.3d 1206, 2005 Wyo. LEXIS 67 (Wyo. 2005).

Section not unconstitutionally vague. —

Inasmuch as this section gives a man of ordinary intelligence fair notice that his contemplated conduct will fall within that forbidden by this section, it is not unconstitutionally vague. Sears v. State, 632 P.2d 946, 1981 Wyo. LEXIS 368 (Wyo. 1981).

Child witness. —

Defendant's conviction of second-degree sexual assault, third degree sexual assault, and indecent liberties with a minor was upheld where the trial court held a hearing to determine the competency of the five-year old child victim to testify as to the sexual assault; no separate taint hearing was required because defendant did not come forward with some evidence that taint was present, and competency inquiry, the five-part test to determine the competency of child witnesses, included the question of pretrial taint. Morganflash v. State, 2003 WY 120, 76 P.3d 830, 2003 Wyo. LEXIS 146 (Wyo. 2003).

District court did not err in ruling that an 8-year-old sexual assault victim was competent to testify at trial against defendant. Although the district court recognized her testimony was not perfect, on the whole, the child seemed to understand her obligation to tell the truth and although she may not have been a particularly effective witness because she occasionally did not follow the line of questioning, she had the mental capacity to receive an accurate impression of the charged events and a memory sufficient to retain an independent recollection of those events. Sisneros v. State, 2005 WY 139, 121 P.3d 790, 2005 Wyo. LEXIS 164 (Wyo. 2005), reh'g denied, 2005 Wyo. LEXIS 172 (Wyo. Nov. 15, 2005).

Section not applicable when age difference not met. —

The defendant's actions did not constitute a crime under this section because the defendant was less than four years older than his victim. Lovato v. State, 901 P.2d 408, 1995 Wyo. LEXIS 151 (Wyo. 1995).

Section applied to chiropractor's conduct with patients. —

Where patients testified that they were victims of a chiropractor who touched their breasts and pubic areas and made inappropriate remarks during chiropractic treatment, the Supreme Court of Wyoming held that the evidence was sufficient to sustain defendant's conviction for ten counts of third degree sexual assault in violation of this section because he was in a position of authority over his patients. While not engaged in the practice of medicine, chiropractors governed themselves by ethical codes advising practitioners not to take physical advantage of any patient. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Consent as a defense. —

The consent of the minor is not a complete defense to the charge of taking indecent liberties. Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

Sentence for both attempt, completed crime, unconstitutional. —

Where a defendant was convicted and sentenced for both attempted sexual assault in the third degree and completed sexual assault in the third degree, entry of judgment on both charges was barred by double jeopardy. A person may not be convicted and sentenced for both the attempt and the completed crime. Craney v. State, 798 P.2d 1202, 1990 Wyo. LEXIS 121 (Wyo. 1990).

Sentence was lenient. —

Defendant's sentence on two counts of third-degree sexual assault of two concurrent prison terms of 4 to 5 years was upheld as remarkably lenient, where defendant admitted to engaging in a sexual relationship with two 14-year-old girls, had used his position as a teacher to establish a trusting relationship with them and then sexually abused them; fact that he had escaped detection for over 30 years did not diminish in any way his heinous criminal conduct. Monjaras v. State, 2006 WY 71, 136 P.3d 162, 2006 Wyo. LEXIS 77 (Wyo. 2006).

Sentence upheld. —

Sentence of 17 to 25 years in a case where guilty pleas were entered to third-degree sexual assault and one count of immodest, immoral, or indecent acts with a minor was not disproportionate to the crimes where defendant was accused of touching teenage girls inappropriately for his own sexual gratification; moreover, he was acting like a sexual predator when he groomed the girls. Hubbard v. State, 2008 WY 12, 175 P.3d 625, 2008 Wyo. LEXIS 13 (Wyo. 2008).

When defendant was convicted of third-degree sexual assault and incest, the two offenses had different elements and did not merge for purposes of sentencing. Najera v. State, 2009 WY 105, 214 P.3d 990, 2009 Wyo. LEXIS 114 (Wyo. 2009), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Third-degree sexual assault not lesser included offense. —

It was plain error for the trial judge to instruct the jury that third-degree sexual assault is a lesser included offense of first-degree sexual assault. Third-degree sexual assault cannot be a lesser included offense to first-degree sexual assault because its elements are not contained within the set of elements for first-degree sexual assault. Craney v. State, 798 P.2d 1202, 1990 Wyo. LEXIS 121 (Wyo. 1990).

Double jeopardy.—

After defendant was acquitted of first- and second-degree sexual assault, and a jury hung as to third-degree sexual assault, a retrial on third-degree sexual assault did not violate double jeopardy because a bill of particulars included conduct other than cunnilingus for which defendant was acquitted, which the crime excluded. Cercy v. State, 2019 WY 131, 455 P.3d 678, 2019 Wyo. LEXIS 133 (Wyo. 2019).

Lesser-included offense instructions not required. —

The manner of committing sexual assault in the second degree and sexual assault in the third degree not only is differentiated under the statutory language, but obviously these offenses can be committed by acts or conduct different from that proscribed by the statute forbidding sexual assault in the first degree. Because of this, every element of the claimed lesser included offenses of sexual assault in the second degree and sexual assault in the third degree was not necessarily encompassed within the commission of the greater offense of sexual assault in the first degree, and the lesser included offense instructions were not required. Also, with respect to the claimed lesser included offense of sexual assault in the third degree, the evidence justified a conclusion of penetration or nothing and an instruction relating to “sexual contact” would not have been appropriate. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Although an appellate court did not decide whether sexual battery was a lesser-included offense of first-degree sexual assault and third-degree sexual assault, a trial court did not err by refusing to give a lesser-included offense instruction because the defendant admitted that sexual contact had occurred and the theory of the defense, consent, only allowed a jury to find defendant guilty or not guilty of the greater offense. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Improper jury instruction was harmless error. —

In defendant's prosecution for third-degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304 the district court erred when it instructed the jury on a statutory defense to the crime defined in Wyo. Stat. Ann. § 14-3-104 (repealed), but the error was harmless because (1) the jury did receive an instruction that it was an affirmative defense to third-degree sexual assault if defendant believed that the victim was over 16 years of age, which instruction was based upon Wyo. Stat. Ann. § 6-2-308(a) and applied to third-degree sexual assault; (2) the jury was instructed that the elements of third-degree sexual assault had to be proved beyond a reasonable doubt, that consent of a victim under the age of 16 was not a defense, and that a reasonable belief that the victim was 16 or older was a defense; (3) while facts concerning consent were presented to the jury by both sides, the case did not turn on that question, but rather, the case turned upon the question of whether defendant reasonably believed that the victim was 16 years old; and (4) a correct instruction that consent was no defense could have been, and should have been, given. Phillips v. State, 2007 WY 25, 151 P.3d 1131, 2007 Wyo. LEXIS 24 (Wyo. 2007).

Prosecutorial misconduct was harmless error. —

Prosecutor's misconduct in referring to defendant as a pedophile during rebuttal closing argument in a prosecution charging defendant with third-degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304 , was harmless error under Wyo. R. App. P. 9.04 because defendant had admitted to having sexual intercourse with the victim, and given the evidence at trial regarding whether he knew her age at the time, which was the only real issue at trial, it was doubtful that the prosecutor's use of the word “pedophile” affected the outcome of the case. Phillips v. State, 2007 WY 25, 151 P.3d 1131, 2007 Wyo. LEXIS 24 (Wyo. 2007).

Evidence sufficient to convict. —

See Trujillo v. State, 880 P.2d 575, 1994 Wyo. LEXIS 92 (Wyo. 1994).

Defendant was convicted of two counts of third-degree sexual assault under Wyo. Stat. Ann. § 6-2-304(a)(ii) involving his 10-year-old daughter based upon his daughter's testimony that defendant “massaged” her by touching her legs, arms, breasts, buttocks, and genitals; on appeal, the court rejected defendant's argument that the evidence was insufficient to support his conviction because it failed to establish the necessary element that, in touching his daughter, he acted with the intent of sexual arousal, gratification, or abuse as defined in Wyo. Stat. Ann. § 6-2-301(a)(vi). An oral express of intent was not required; rather, intent of sexual gratification could be inferred from defendant's touching of the victim on more than one occasion and his commission of the acts when alone with the victim. Trumbull v. State, 2009 WY 103, 214 P.3d 978, 2009 Wyo. LEXIS 111 (Wyo. 2009).

Where the evidence showed that defendant abducted a victim at gunpoint, handcuffed the victim inside of a car, committed nonconsensual sexual acts upon the victim, and transported the victim without consent, there was sufficient evidence to convict defendant of kidnapping, first-degree sexual assault, and third-degree sexual assault. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

Defendant's convictions for third-degree sexual assault, in violation of Wyo. Stat. Ann. § 6-2-304(a), were supported by the evidence because the victim testified that defendant, a certified nursing assistant, massaged the tip of his penis in a circular motion with his thumb while he was bathing him; defendant also quit wearing gloves and began contacting the victim's penis with his bare hands. Baldes v. State, 2012 WY 67, 267 P.3d 386, 2012 Wyo. LEXIS 71 (May 15, 2012).

Evidence was sufficient to convict defendant of third degree sexual assault and intentional abuse of a vulnerable adult because his continued contact after the victim said “no” and his grabbing her hand and placing it on his genitals constituted physical force reasonably calculated to cause submission; he knew or reasonably should have known that the victim through a mental deficiency or developmental disability was incapable of appraising the nature of her conduct as several witnesses testified that the victim’s physical characteristics and speech made her disability apparent; and, despite his intoxication, defendant was capable of forming the intent to abuse a vulnerable adult as he appeared coherent and oriented to time and place. Brown v. State, 2019 WY 102, 450 P.3d 208, 2019 Wyo. LEXIS 104 (Wyo. 2019).

Evidence sufficient for guilty plea. —

Factual basis for defendant's guilty plea was sufficient where defendant admitted to engaging in oral sex with the victim, and because the victim was under 16 years old, she could not have legally consented under Wyo. Stat. Ann. § 6-2-304(a)(i) (repealed). Hirsch v. State, 2006 WY 66, 135 P.3d 586, 2006 Wyo. LEXIS 71 (Wyo. 2006).

Court adequately considered probation. —

Court adequately considered and did not err in rejecting the option of placing defendant on probation after his guilty plea to two counts of third-degree sexual assault because, in its written judgment, the court stated that it found that probation was inappropriate, the issue of probation was also brought to the attention of the district court by witnesses who testified on defendant's behalf, and the PSI discussed probation as a sentencing option and provided a detailed probation plan. Monjaras v. State, 2006 WY 71, 136 P.3d 162, 2006 Wyo. LEXIS 77 (Wyo. 2006).

Sex offender registration. —

Potential sex offender registrant's duty to register was improperly terminated under a 10-year provision because he pled guilty to fourth degree sexual assault, which was akin to third degree sexual assault, an offense to which a 25-year termination provision applied; moreover, the state did not waive its right to appeal the termination decision by failing to attend two hearings. Office of the AG, Division of Criminal Investigation v. Thomason, 2008 WY 143, 197 P.3d 144, 2008 Wyo. LEXIS 145 (Wyo. 2008).

Construction with other law. —

Elements of sexual assault in the third degree are the same as the elements of sexual assault in the fourth degree. Office of the AG, Division of Criminal Investigation v. Thomason, 2008 WY 143, 197 P.3d 144, 2008 Wyo. LEXIS 145 (Wyo. 2008).

Applied in

In re Matter of GP, 679 P.2d 976, 1984 Wyo. LEXIS 269 (Wyo. 1984); Lee v. State, 2001 WY 129, 36 P.3d 1133, 2001 Wyo. LEXIS 152 (Wyo. 2001); Duke v. State, 2009 WY 74, 209 P.3d 563, 2009 Wyo. LEXIS 76 (June 3, 2009).

Quoted in

Chapman v. State, 2001 WY 25, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001); Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001); Giles v. State, 2004 WY 101, 96 P.3d 1027, 2004 Wyo. LEXIS 129 (2004); Rutti v. State, 2004 WY 133, 100 P.3d 394, 2004 Wyo. LEXIS 177 (2004); Rogers v. State, 2008 WY 90, 189 P.3d 265, 2008 Wyo. LEXIS 94 (July 31, 2008); Garza v. State, 2010 WY 64, 231 P.3d 884, 2010 Wyo. LEXIS 67 (May 19, 2010).

Cited in

Betzle v. State, 847 P.2d 1010, 1993 Wyo. LEXIS 40 (Wyo. 1993); Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993); James v. State, 998 P.2d 389, 2000 Wyo. LEXIS 41 (Wyo. 2000); Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000); Seward v. State, 2003 WY 116, 76 P.3d 805, 2003 Wyo. LEXIS 142 (Wyo. 2003); McCard v. State, 2003 WY 142, 78 P.3d 1040, 2003 Wyo. LEXIS 172 (Wyo. 2003); Wilkins v. State, 2005 WY 2, 104 P.3d 85, 2005 Wyo. LEXIS 4 (2005); Miller v. State, 2006 WY 92, 138 P.3d 688, 2006 Wyo. LEXIS 95 (2006); Jackson v. State, 2012 WY 56, 273 P.3d 1105, 2012 Wyo. LEXIS 59 (Apr. 11, 2012).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Use of Videotaping to Avoid Traumatization of Child Sexual Abuse Victim-Witnesses,” see XXI Land & Water L. Rev. 565 (1986).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 ALR4th 1009.

Statute protecting minors in a specified age range from rape or other sexual activity as applicable to defendant minor within protected age group, 18 ALR5th 856.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 ALR5th 499.

§ 6-2-305. [Repealed.]

Repealed by Laws 1997, ch. 135, § 2.

Editor's notes. —

This section, which derived from Laws 1982, ch. 75, § 3, related to sexual assault in the fourth degree.

Prospective operation. —

Laws 1997, ch. 135, § 3, provides: “This act does not apply to crimes committed prior to the effective date of this act. Prosecutions for a crime shall be governed by the law in effect on the date when the crime occurred. A crime was committed prior to the effective date of this act if any of the elements of the crime occurred prior to the effective date of this act.”

Laws 1997, ch. 135, § 4, makes the act effective on July 1, 1997.

§ 6-2-306. Penalties for sexual assault.

  1. An actor convicted of sexual assault under W.S. 6-2-302 through 6-2-304 who does not qualify under the criteria of subsection (b) or (d) of this section shall be punished as follows:
    1. Sexual assault in the first degree under W.S. 6-2-302 is a felony punishable by imprisonment for not less than five (5) years nor more than fifty (50) years;
    2. Sexual assault in the second degree under W.S. 6-2-303 is a felony punishable by imprisonment for not less than two (2) years nor more than twenty (20) years;
    3. Sexual assault in the third degree under W.S. 6-2-304 is a felony punishable by imprisonment for not more than fifteen (15) years;
    4. Repealed by Laws 1997, ch. 135, § 2.
  2. An actor who is convicted of sexual assault under W.S. 6-2-302 through 6-2-304 , who has previously been convicted of any crime containing the same or similar elements as the crimes defined in W.S. 6-2-302 through 6-2-304 and who does not qualify under the criteria of subsection (d) of this section shall be punished as follows:
    1. and (ii) Repealed by Laws 2007, ch. 159, § 3.
    2. Sexual assault in the first or second degree under W.S. 6-2-302 or 6-2-303 is a felony punishable by imprisonment for not less than twenty-five (25) years or for life; or
    3. Sexual assault in the third degree under W.S. 6-2-304 is a felony punishable by imprisonment for not more than twenty (20) years.
  3. Repealed by Laws 2007, ch. 159, § 3.
    1. and (ii) Repealed by Laws 2007, ch. 159, § 3.
    2. Repealed by Laws 1997, ch. 135, § 2.
  4. An actor who is convicted of sexual assault under W.S. 6-2-302 through 6-2-304 , or sexual abuse of a minor under W.S. 6-2-316 through 6-2-317 , shall be punished by life imprisonment without parole if the actor has two (2) or more previous convictions for any of the following designated offenses, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere and which convictions were for offenses committed after the actor reached the age of eighteen (18) years of age:
    1. A crime defined in W.S. 6-2-302 through 6-2-304 or a criminal statute from another jurisdiction containing the same or similar elements as a crime defined by W.S. 6-2-302 through 6-2-304.
    2. Repealed by Laws 1997, ch. 135, § 2.
    3. Repealed by Laws 2007, ch. 159, § 3.
  5. An actor who is convicted of sexual abuse of a minor under W.S. 6-2-314 or 6-2-315 shall be punished by life imprisonment without parole if the actor has one (1) or more previous convictions for a violation of W.S. 6-2-302 through 6-2-304 , 6-2-314 or 6-2-315 , or a criminal statute containing the same or similar elements as the crimes defined by W.S. 6-2-302 through 6-2-304 , 6-2-314 or 6-2-315, which convictions resulted from charges separately brought and which arose out of separate occurrences in this state or elsewhere and which convictions were for offenses committed after the actor reached the age of eighteen (18) years of age.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1996, ch. 73, § 2; 1997, ch. 135, §§ 1, 2; 2000, ch. 48, § 1; 2007, ch. 159, §§ 2, 3; 2013, ch. 18, § 1.

The 2007 amendment, effective July 1, 2007, repealed former (b)(i) through (b)(ii), (c) intro through (c)(ii) and (d)(iii), which pertained to penalties of an actor who does not qualify under the criteria of subsection (d) and penalties of an actor who does qualify under the criteria of subsection (b); added (e); in (a), inserted the internal references, and inserted “less than two (2) years nor” in (ii); in (b), rewrote the introductory language in part, inserting internal references, and inserted (iii) and (iv); in (d), inserted “under W.S. 6 2 302 through 6 2 304, or sexual abuse of a minor under W.S. 6 2 316 through 6 2 317” in the introductory language, and inserted “from another jurisdiction” in (i); added (e); and made related and stylistic changes.

The 2013 amendment , effective July 1, 2013, added “and which convictions were for offenses committed after the actor reached the age of eighteen (18) years of age” at the end of (d) and (e).

Constitutionality of life sentence for repeat sex offender. —

Defendant was not subjected to cruel and/or unusual punishment, under the United States and Wyoming Constitutions, when defendant was sentenced to life in prison without the possibility of parole, upon defendant's second conviction for sexual abuse of a minor. Norgaard v. State, 2014 WY 157, 339 P.3d 267, 2014 Wyo. LEXIS 181 (Wyo. 2014).

Legislative intent of section. —

The language of this section reflects an intention to establish minimum and maximum incarceration limits under designated conditions and to enact a form of a habitual criminal act. Stambaugh v. State, 613 P.2d 1237, 1980 Wyo. LEXIS 291 (Wyo. 1980).

The plain language of Wyo. Stat. Ann. § 6-2-306(b)(i) (repealed) only speaks in terms of “being sentenced for two or more separate acts of sexual assault in the second degree”; there is no requirement that the convictions be “previous,” as is the case with Wyo. Stat. Ann. § 6-10-201 , the habitual criminal statute, and the legislative intent is clear that a defendant who is being sentenced for two or more separate acts of sexual assault in the second degree may be sentenced to a life sentence for each separate act. DeLoge v. State, 2002 WY 155, 55 P.3d 1233, 2002 Wyo. LEXIS 175 (Wyo. 2002).

Wyo. Stat. Ann. § 6-2-306 does not impermissibly allow the trial court, rather than the jury, to make findings of fact as to whether the enhanced sentence allowed by statute should be imposed. The existence of a prior conviction and the existence of a contemporaneous conviction are viewed as resting on the same quality of evidence and neither is required to be determined by a jury under the beyond-a-reasonable-doubt standard, unless the applicable statute, by its wording, imposes such a requirement. Brown v. State, 2004 WY 119, 99 P.3d 489, 2004 Wyo. LEXIS 156 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 182 (Wyo. Nov. 16, 2004), cert. denied, 544 U.S. 966, 125 S. Ct. 1743, 161 L. Ed. 2d 612, 2005 U.S. LEXIS 3057 (U.S. 2005).

Double jeopardy claim res judicata. —

Motion to correct illegal sentence under Wyo. R. Crim. P. 35(a) was properly denied because appellant's constitutional claims, including one that this section violated double jeopardy, were res judicata as they had either been decided or should have been raised on a prior direct appeal. The fact that this section was amended in 2007 did not change the nature of appellant's double jeopardy claim, which had been decided against him on direct appeal. Deloge v. State, 2012 WY 128, 2012 Wyo. LEXIS 134 (Wyo. P-12).

Court may consider probation for third-degree sexual assault, even though a mandatory sentence is prescribed. Sanchez v. State, 592 P.2d 1130, 1979 Wyo. LEXIS 386 (Wyo. 1979).

Ten-to-12 year sentence for first-degree sexual assault did not constitute error of law, as it was within the statutory parameters, and did not exceed the bounds of reason under the circumstances. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Proper sentence imposed where defendant abused his developmentally delayed foster daughter. —

In defendant's sexual assault case, a court's sentence was proper where the sentence imposed was entirely consistent with the crime, its attendant circumstances, and his character. Defendant ignored the position of trust he held with the victim, his developmentally delayed foster daughter, and he subsequently abused that position, and as the victim's foster parent and guardian, defendant did not take any responsibility for his actions and their harmful effects on a particularly vulnerable victim, nor did he express any remorse. Watters v. State, 2004 WY 155, 101 P.3d 908, 2004 Wyo. LEXIS 202 (Wyo. 2004).

Sentence was lenient. —

Defendant's sentence on two counts of third-degree sexual assault of two concurrent prison terms of 4 to 5 years was upheld as remarkably lenient, where defendant admitted to engaging in a sexual relationship with two 14-year-old girls, had used his position as a teacher to establish a trusting relationship with them and then sexually abused them; fact that he had escaped detection for over 30 years did not diminish in any way his heinous criminal conduct. Monjaras v. State, 2006 WY 71, 136 P.3d 162, 2006 Wyo. LEXIS 77 (Wyo. 2006).

Consolidated sentence for 2 counts of sexual assault inappropriate. —

A single, consolidated sentence for conviction of two counts of sexual assault is inappropriate. Stambaugh v. State, 613 P.2d 1237, 1980 Wyo. LEXIS 291 (Wyo. 1980).

Consecutive life sentences. —

In a sexual assault case, defendant was properly sentenced to two consecutive life sentences where defendant subjected the victim to both vaginal and anal sexual penetration, as the acts constituted separate, forcible sexual intrusions on the victim, and, in light of the legislative goal of halting recidivism, the sentences were proper. Daniel v. State, 2003 WY 132, 78 P.3d 205, 2003 Wyo. LEXIS 162 (Wyo. 2003), cert. denied, 540 U.S. 1205, 124 S. Ct. 1476, 158 L. Ed. 2d 127, 2004 U.S. LEXIS 1455 (U.S. 2004).

Sentence enhancement. —

Attempted first-degree sexual assault is a qualifying prior offense for purposes of sentence enhancement under subsection (d). Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000), cert. denied, 532 U.S. 934, 121 S. Ct. 1386, 149 L. Ed. 2d 310, 2001 U.S. LEXIS 2396 (U.S. 2001).

Notice to the defendant that the state would seek an enhanced sentence is not required under the statute. Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000), cert. denied, 532 U.S. 934, 121 S. Ct. 1386, 149 L. Ed. 2d 310, 2001 U.S. LEXIS 2396 (U.S. 2001).

District court did not abuse its discretion in sentencing defendant to serve six consecutive prison sentences of 30 years to life and properly applied the enhancement provisions where the defendant committed six counts of sexual assault against his two daughters over a period of time from when the daughters were approximately four years of age until their late teenage years; defendant's crimes were so egregious that the relative lengths of his sentences were not extreme. Blakeman v. State, 2002 WY 177, 59 P.3d 140, 2002 Wyo. LEXIS 206 (Wyo. 2002).

Sentence within range. —

Defendant's combined prison sentence of 21 to 27 years for two counts of second-degree sexual assault of a child was not improper because the sentence was well within the range proscribed by Wyo. Stat. Ann. § 6-2-306(c)(i). Garza v. State, 2010 WY 64, 231 P.3d 884, 2010 Wyo. LEXIS 67 (Wyo. 2010).

Multiple assaults by defendant supported greater sentence than co-defendant. —

The defendant and his co-defendant were both found guilty of one count of sexual assault in the first degree, but the co-defendant only assaulted the victim once, while the defendant assaulted her twice. The record also demonstrated that it was the defendant who actually applied the significant force in bringing about the sexual assault, so the culpability of the two defendants was different. These factors rationally supported the imposition of a 20 to 25 year sentence, less than half the maximum term of 50 years, for a first conviction of a violent felony, even though the co-defendant received a lesser sentence, and demonstrated that the trial court did not impose a longer sentence on the defendant simply because of his race. Carey v. State, 715 P.2d 244, 1986 Wyo. LEXIS 502 (Wyo.), cert. denied, 479 U.S. 882, 107 S. Ct. 270, 93 L. Ed. 2d 247, 1986 U.S. LEXIS 4218 (U.S. 1986).

Illegal sentence. —

In defendant's third degree sexual assault case, sentence of not less than ten nor more than fifteen years was illegal, because the crime occurred between April 1, 1994, and October 1, 1996, and at that time, this section carried a maximum penalty of not more than five years. Wease v. State, 2007 WY 176, 170 P.3d 94, 2007 Wyo. LEXIS 188 (Wyo. 2007).

Increased penalty due to amendment. —

A guilty plea which included a time frame for the commission of sexual assaults on a minor after July 1, 1997, the effective date of the amendment increasing the maximum penalty from five to 15 years, justified the imposition of the new increased sentence. Lee v. State, 2001 WY 129, 36 P.3d 1133, 2001 Wyo. LEXIS 152 (Wyo. 2001), cert. denied, 535 U.S. 1103, 122 S. Ct. 2307, 152 L. Ed. 2d 1062, 2002 U.S. LEXIS 3947 (U.S. 2002).

Confinement in state psychiatric hospital. —

Court did not have jurisdiction to sentence defendant to state psychiatric hospital as part of his sentence under this section. Sanchez v. State, 982 P.2d 149, 1999 Wyo. LEXIS 104 (Wyo.), cert. denied, 528 U.S. 978, 120 S. Ct. 431, 145 L. Ed. 2d 337, 1999 U.S. LEXIS 7299 (U.S. 1999).

Standard of review. —

Absent due process defects, sentences imposed by the court that fall within the statutory limits will not be disturbed on appeal. Mehring v. State, 860 P.2d 1101, 1993 Wyo. LEXIS 151 (Wyo. 1993).

Resentencing required. —

Case was remanded for resentencing because sentence of imprisonment for three to seven years was not permissible under law in effect at time of offense. Crawford v. State, 2 P.3d 1055, 2000 Wyo. LEXIS 112 (Wyo. 2000).

Applied in

Hamill v. State, 602 P.2d 1212, 1979 Wyo. LEXIS 483 (Wyo. 1979); Young v. State, 678 P.2d 880, 1984 Wyo. LEXIS 272 (Wyo. 1984); Capwell v. State, 686 P.2d 1148, 1984 Wyo. LEXIS 322 (Wyo. 1984); Martin v. State, 720 P.2d 894, 1986 Wyo. LEXIS 570 (Wyo. 1986); Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Oct. 22, 2009).

Quoted in

Herdt v. State, 816 P.2d 1299, 1991 Wyo. LEXIS 145 (Wyo. 1991); Frenzel v. State, 938 P.2d 867, 1997 Wyo. LEXIS 86 (Wyo. 1997); Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001); Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Stated in

Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982); Crawford v. State, 701 P.2d 1150, 1985 Wyo. LEXIS 497 (Wyo. 1985); Cardenas v. State, 925 P.2d 239, 1996 Wyo. LEXIS 151 (Wyo. 1996); McGarvey v. State, 2014 WY 66, 2014 Wyo. LEXIS 71 (May 28, 2014).

Cited in

Freeze v. State, 662 P.2d 415, 1983 Wyo. LEXIS 315 (Wyo. 1983); Schmidt v. State, 668 P.2d 656, 1983 Wyo. LEXIS 356 (Wyo. 1983); Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200 (Wyo. 1999); Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (2004); Mercer v. State, 2012 WY 54, 273 P.3d 1100, 2012 Wyo. LEXIS 57 (Apr. 11, 2012); Nicodemus v. Lampert, 2014 WY 135, 2014 Wyo. LEXIS 150 (Oct. 30, 2014); Reifer v. State, 2014 WY 139, 2014 Wyo. LEXIS 160 (Nov. 5, 2014); Hamilton v. State, 2017 WY 72, 396 P.3d 1009, 2017 Wyo. LEXIS 72 (Wyo. 2017).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For comment, “Victim Compensation and Restitution: Legislative Alternatives,” see XX Land & Water L. Rev. 681 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Standard of proof required under statute providing for commitment of sexual offenders or sexual psychopaths, 96 ALR3d 840.

Validity and construction of statute defining crime of rape to include activity traditionally punishable as sodomy or the like, 3 ALR4th 1009.

§ 6-2-307. Evidence of marriage as defense.

  1. The fact that the actor and the victim are married to each other is not by itself a defense to a violation of W.S. 6-2-302(a)(i), (ii) or (iii) or 6-2-303(a)(i), (ii), (iii), (vi) or (vii).
  2. Consent of the victim is not a defense to a violation of W.S. 6-2-303(a)(vii) or 6-2-304(a)(iii).

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2007, ch. 7, § 1; 2009, ch. 87, § 1.

The 2007 amendment, effective July 1, 2007, added (b).

The 2009 amendment, effective July 1, 2009, added “or (vii)” in (a); added “or 6-2-304(a)(iii)” in (b).

Phrase “not by itself a defense” is not vague because no objective standard is provided by which a person can measure contemplated conduct, because the standard by which conduct is to be measured is clearly outlined in § 6-2-302(a)(i). This section clearly puts an assailant on notice that marriage to the victim of a sexual assault is not a complete defense, but may be considered along with other evidence in deciding the guilt of the defendant. Shunn v. State, 742 P.2d 775, 1987 Wyo. LEXIS 508 (Wyo. 1987).

Common-law spousal exception removed. —

When the legislature enacted this section and repealed the statutory spousal exception allowed by the 1977 statutes, it removed the common-law spousal exception to rape in Wyoming. Shunn v. State, 742 P.2d 775, 1987 Wyo. LEXIS 508 (Wyo. 1987).

Quoted in

Vasquez v. State, 623 P.2d 1205, 1981 Wyo. LEXIS 296 (Wyo. 1981).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal responsibility of husband for rape, or assault to commit rape, on wife, 24 ALR4th 105.

Library References.

Family Law and Practice § 64.21 (Matthew Bender).

§ 6-2-308. Criminality of conduct; victim's age.

  1. Except as provided by subsection (b) of this section, if criminality of conduct in this article depends on a victim being under sixteen (16) years of age, it is an affirmative defense that the actor reasonably believed that the victim was sixteen (16) years of age or older.
  2. If criminality of conduct in this article depends upon a victim being under twelve (12) years or under fourteen (14) years, it is no defense that the actor did not know the victim’s age, or that he reasonably believed that the victim was twelve (12) years or fourteen (14) years of age or older, as applicable.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1997, ch. 135, § 1; 1997, Sp. Sess., ch. 2, § 2.

Applicability.—

District court did not abuse its discretion when it denied defendant's motion to withdraw his guilty plea because counsel's performance was not deficient for failure to advise defendant of the affirmative defense set forth in the statute; because defendant pleaded guilty to third-degree sexual abuse of a minor, in which criminality depended on a victim who is less than 17)years of age, the affirmative defense did not apply. Berger v. State, 2017 WY 90, 399 P.3d 621, 2017 Wyo. LEXIS 88 (Wyo. 2017).

Improper jury instruction was harmless error. —

Prosecutor's misconduct in referring to defendant as a pedophile during rebuttal closing argument in a prosecution charging defendant with third-degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304 , was harmless error under Wyo. R. App. P. 9.04 because defendant had admitted to having sexual intercourse with the victim, and given the evidence at trial regarding whether he knew her age at the time, which was the only real issue at trial, it was doubtful that the prosecutor's use of the word “pedophile” affected the outcome of the case. Phillips v. State, 2007 WY 25, 151 P.3d 1131, 2007 Wyo. LEXIS 24 (Wyo. 2007).

Quoted in

Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013); Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Mistake or lack of information as to victim's age as defense to statutory rape, 46 ALR5th 499.

§ 6-2-309. Medical examination of victim; costs; use of report; minors; rights of victims; reimbursement.

  1. A law enforcement agency receiving a report of a sexual assault may, with the victim’s consent, arrange for an examination of the victim by a licensed health care provider acting within the scope of the provider’s practice. The examination may include a medical examination and treatment, evidence collection and evaluation, and appropriate referrals for follow-up treatment and services. Upon consent of the victim to release of the results of the examination, the evidence, record and reports shall be delivered to the law enforcement agency.
  2. Repealed by Laws 2006, ch. 77, § 2.
  3. Repealed by Laws 1991, ch. 130, § 2.
  4. Repealed by Laws 2006, ch. 77, § 2.
  5. If a report of a sexual assault is received from a minor victim, and the parents or guardian of the minor cannot be located promptly with diligent effort, the examination provided for by subsection (a) of this section may be conducted with the minor’s consent. If a report of a sexual assault is received alleging a minor as the victim and a parent or guardian is the suspected perpetrator, the parent or guardian who is the suspected perpetrator shall not be notified pursuant to this section.
  6. Repealed by Laws 2006, ch. 77, § 2.
  7. Except as  provided by subsection (j) of this section, the costs of any examination  relating to the investigation or prosecution of a sexual assault shall  be billed to and paid by the victim services  division of the office of the attorney general contingent upon available funding. The victim services division shall promulgate any rules necessary  to effectuate payments required under this subsection. If victim services  division funds are no longer available to meet the purposes of this  subsection, the cost of any examination relating to the investigation  or prosecution of sexual assault shall be billed to and paid by the investigating law enforcement agency. These examination costs shall  include the following:
    1. The cost of gathering evidence; and
    2. Any other examinations authorized by law enforcement to aid in the investigation and prosecution of the sexual assault.
  8. Except as provided by subsection (j) of this section, any examination costs directly incurred by a sexual assault victim that are not covered by subsection (g) of this section, or other collateral source, shall be submitted to the victim services division within the office of the attorney general for determination of eligibility for payment from the crime victims compensation account established by W.S. 1-40-114 . All requests for compensation from the account shall be subject to the eligibility guidelines set forth in the Crime Victims Compensation Act, W.S. 1-40-101 through 1-40-119 .
  9. A convicted offender of a sexual assault shall be ordered to reimburse any costs incurred under subsections (g) and (h) of this section and any other costs incurred as a direct result of the sexual assault.
  10. Each victim reporting a sexual assault shall be informed of the rights enumerated in this section, the victim’s rights to informed consent and the victim’s rights as a victim of crime. The victim shall also be informed of available medical, legal and advocacy services.
  11. The examinations authorized by this section shall remain confidential healthcare information unless the victim or the victim’s parent or legal guardian executes a release of medical information for the purpose of prosecution to the county attorney, the state of Wyoming or any relevant court. However, if the report of sexual assault described in subsection (a) of this section results in the filing against any person of a criminal charge, or the filing of a petition alleging a delinquent act which would be a felony if committed by an adult, the written report disclosing the results of an examination made pursuant to this section shall be made available to the person charged or his counsel upon demand.
  12. No evidence collected under subsection (a) of this  section shall be destroyed until all applicable statutes of limitation have expired or a court orders the destruction.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1991, ch. 130, §§ 1, 2; 1994, ch. 61, § 2; 1998, ch. 81, § 2; 2006, ch. 77, §§ 1, 2; 2019, ch. 76, § 2.

Cross references. —

As to reimbursement of costs incurred by crime victim for medical examination, see § 1-40-104 .

As to age of majority, see § 14-1-101 .

The 2006 amendment, effective July 1, 2006, rewrote (a) to clarify the procedure for reporting a sexual assault; repealed former (b) pertaining to the rights of the patient being waived after medical examination; repealed former (d) pertaining to the medical examination report shall be available to the actor or counsel; in (e), substituted “a sexual assault” for “an alleged sexual assault,” inserted “victim,” inserted “or guardian,” substituted “the examination provided for” for “then medical examination required,” and added the last sentence; repealed former (f) pertaining to the time limitations on the delivery of the medical examination report, rewrote the introductory language of (g), to clarify the billing and reimbursement of examination costs, deleted “as outlined in the Wyoming sexual assault evidence kit” in (g)(i); deleted “medical” preceding “examination” in (h); inserted “the victim's rights to informed consent and the victim's rights as a victim of crime” in (k); added (m); and made stylistic changes.

The 2019 amendment, effective July 1, 2019, in the introductory language of (g), added "victim services division of the office of the attorney general contingent upon available funding. The victim services division shall promulgate any rules necessary to effectuate payments required under this subsection. If victim services division funds are no longer available to meet the purposes of this subsection, the cost of any examination relating to the investigation or prosecution of sexual assault shall be billed to and paid by the" preceding "investigating law enforcement agency"; and added (n).

Editor's notes. —

There is no subsection (i) or ( l ) in this section as it appears in the printed acts.

Appropriations. —

Laws 2004, ch. 95, § 308, appropriates $200,000 from the general fund to the attorney general for contracting for the provision of a legal assistance clinic in Laramie, Wyoming for victims of domestic violence or sexual assault for the period beginning July 1, 2004 and ending June 30, 2006. Should federal funding become available for this purpose, any unexpended general fund appropriations are to revert to the general fund upon receipt of federal funds.

Section does not serve as bar to accused pursuing exoneratingevidence. —

This section simply identifies the time limitations beyond which medical evidence from the usual rape victim becomes remote and thus so speculative that it no longer accomplishes the purpose for which it was designed. This doctrine is intended to protect the rape defendant from testimony which is elicited through unreliable medical evidence and it can hardly be said that it is calculated to serve as a bar to the citizen accused from pursuing exonerating evidence which, in turn, insures his receiving such a fair trial as is contemplated by the due process clauses of the federal and state constitutions. In re Matter of GP, 679 P.2d 976, 1984 Wyo. LEXIS 269 (Wyo. 1984).

Failure of state to obtain medical report of sexual assault victim for trial does not rise to the level of a due process violation. Sanchez v. State, 751 P.2d 1300, 1988 Wyo. LEXIS 29 (Wyo. 1988), overruled in part, Bean v. State, 2016 WY 48, 373 P.3d 372, 2016 Wyo. LEXIS 52 (Wyo. 2016); Vernier v. State, 909 P.2d 1344, 1996 Wyo. LEXIS 11 (Wyo. 1996).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 ALR4th 395.

Necessity or permissibility of mental examination to determine competency or credibility of complainant in sexual offense prosecution, 45 ALR4th 310.

Sufficiency of allegations or evidence of victim's mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 ALR5th 651.

§ 6-2-310. [Repealed.]

Repealed by Laws 2009, ch. 18, § 2.

Editor's notes. —

This section, which derived from Laws 1982, ch. 75, § 3, related to restrictions on disclosure or publication of information regarding a sexual assault.

Laws 2009, ch. 18, § 3, makes the act effective July 1, 2009.

§ 6-2-311. Corroboration unnecessary.

Corroboration of a victim’s testimony is not necessary to obtain a conviction for sexual assault.

History. Laws 1982, ch. 75, § 3.

Jury should view with caution uncorroborated testimony of young child who is prosecutrix in sexual assault case. Strand v. State, 36 Wyo. 78, 252 P. 1030, 1927 Wyo. LEXIS 11 (Wyo. 1927).

Credibility deemed jury question. —

The credibility and weight of the testimony of the prosecutrix in a rape case is for the determination of the jury. Brown v. State, 581 P.2d 189, 1978 Wyo. LEXIS 205 (Wyo. 1978).

Corroboration of child sexual assault victims' testimony was not necessary to convict defendant of sexual assault; it was the jurors' task to weigh the evidence and determine whether they found the victims or defendant more credible. Tilley v. State, 2011 WY 153, 267 P.3d 552, 2011 Wyo. LEXIS 158 (Wyo. 2011).

Complaint considered as to credibility of prosecutrix. —

While an immediate complaint does not corroborate the facts of a rape, that evidence may be considered in connection with the consistency and credibility of the prosecutrix. Brown v. State, 581 P.2d 189, 1978 Wyo. LEXIS 205 (Wyo. 1978).

Quoted in

Young v. State, 678 P.2d 880, 1984 Wyo. LEXIS 272 (Wyo. 1984).

Stated in

Tway v. State, 7 Wyo. 74, 50 P. 188, 1897 Wyo. LEXIS 11 (1897); Strand v. State, 36 Wyo. 78, 252 P. 1030, 1927 Wyo. LEXIS 11 (1927); Brown v. State, 581 P.2d 189, 1978 Wyo. LEXIS 205 (Wyo. 1978).

Cited in

Muniz v. State, 783 P.2d 141, 1989 Wyo. LEXIS 231 (Wyo. 1989).

Am. Jur. 2d, ALR and C.J.S. references. —

Instruction in prosecution for rape or other sexual offense, as to ease of making or difficulty of defending against such a charge, 92 ALR3d 866.

Modern status of rule regarding necessity for corroboration of victim's testimony in prosecution for sexual offense, 31 ALR4th 120.

Instructions to jury as to credibility of child's testimony in criminal case, 32 ALR4th 1196.

Witnesses: child competency statute, 60 ALR4th 369.

Sufficiency of allegations or evidence of victim's mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 ALR5th 651.

§ 6-2-312. Evidence of victim's prior sexual conduct or reputation; procedure for introduction.

  1. In any prosecution under this article or for any lesser included offense, if evidence of the prior sexual conduct of the victim, reputation evidence or opinion evidence as to the character of the victim is to be offered the following procedure shall be used:
    1. A written motion shall be made by the defendant to the court at least ten (10) days prior to the trial stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the victim and its relevancy to the defense;
    2. The written motion shall be accompanied by affidavits in which the offer of proof is stated;
    3. If the court finds the offer of proof sufficient, the court shall order a hearing in chambers, and at the hearing allow the questioning of the victim regarding the offer of proof made by the defendant and other pertinent evidence;
    4. At the conclusion of the hearing, if the court finds that the probative value of the evidence substantially outweighs the probability that its admission will create prejudice, the evidence shall be admissible pursuant to this section. The court may make an order stating what evidence may be introduced by the defendant, which order may include the nature of the questions to be permitted.
  2. This section does not limit the introduction of evidence as to prior sexual conduct of the victim with the actor.
  3. Any motion or affidavit submitted pursuant to this section is privileged information and shall not be released or made available for public use or scrutiny in any manner, including posttrial proceedings.

History. Laws 1982, ch. 75, § 3; 2004, ch. 130, § 1; 2007, ch. 159, § 2.

The 2004 amendment, in (a), substituted “6-2-304” for “6-2-305.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

The 2007 amendment, effective July 1, 2007, substituted “this article” for “W.S. 6-2-302 through 6-2-304 ” in the introductory language in (a).

Editor's notes. —

For the definition of “this article” as used in this section, see § 6-2-301(a)(ix).

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Purpose of section. —

Rape-shield statutes, such as this section, are designed to protect the victim from embarrassment and abuse at trial and to encourage the reporting of sexual assaults to the authorities; they are not enacted for the protection of the accused. Heinrich v. State, 638 P.2d 641, 1981 Wyo. LEXIS 405 (Wyo. 1981).

Procedures mandatory. —

By using the word “shall” in the introductory paragraph in subsection (a), the legislature has indicated a mandatory intent that cannot be ignored. Heinrich v. State, 638 P.2d 641, 1981 Wyo. LEXIS 405 (Wyo. 1981).

But noncompliance harmless, absent prejudice. —

Failure to comply with the requirements of this section is harmless error, absent a showing of prejudice to the defendant. Heinrich v. State, 638 P.2d 641, 1981 Wyo. LEXIS 405 (Wyo. 1981).

Probative value of victim's character deemed questionable. —

This section indicates the questionable probative value in offering the victim's character into evidence. Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980).

Evidence found inadmissible.—

District court did not abuse its discretion in applying the rape shield statute to restrict defendant’s cross-examination of one of the alleged student victim’s on the victim’s prior history as a sexual assault victim when defendant, a middle school teacher, was accused of multiple counts of sexual assault of a minor. Moser v. State, 2018 WY 12, 409 P.3d 1236, 2018 Wyo. LEXIS 15 (Wyo. 2018).

Evidence properly prohibited. —

In defendant's sexual assault case, a court properly prohibited evidence of the victim's prior sexual history where the record showed that defendant never attempted to comply with the requirements of Wyo. Stat. Ann. § 6-2-312 prior to seeking admission of the evidence. Watters v. State, 2004 WY 155, 101 P.3d 908, 2004 Wyo. LEXIS 202 (Wyo. 2004).

Evidence found inadmissible. —

Evidence of murder defendant's sexual activity with boyfriend after killing of husband was not prohibited by this section, because first-degree murder was not one of the crimes enumerated in subsection (a), and defendant was the perpetrator, rather than the victim, of offense at issue. Trusky v. State, 7 P.3d 5, 2000 Wyo. LEXIS 130 (Wyo. 2000).

In a case involving two counts of first-degree sexual abuse of a minor and one count of second-degree sexual abuse of a minor, evidence of a victim's alleged “sexualized behavior” and “sexual sophistication” was inadmissible because it was covered by the rape shield statute. Carroll v. State, 2015 WY 87, 352 P.3d 251, 2015 Wyo. LEXIS 98 (Wyo. 2015).

Previous false sexual-assault report properly excluded.

It was not an abuse of discretion to exclude a victim’s alleged prior false accusation of sexual assault because (1) the limited probative value of the evidence was outweighed by a risk of unfair prejudice, and, (2) due to the victim’s inability to recall the prior accusation, extensive, potentially inadmissible, evidence would have been required to admit the prior accusation. Sparks v. State, 2019 WY 50, 440 P.3d 1095, 2019 Wyo. LEXIS 5 0 (Wyo. 2019); Booth v. Booth, 2019 WY 5, 432 P.3d 902, 2019 Wyo. LEXIS 5 (Wyo. 2019).

A sexual-assault defendant's proffered evidence that the victim had falsely reported a previous sexual assault was properly excluded, where the evidence would have only served to attack the credibility of the victim. Johnson v. State, 806 P.2d 1282, 1991 Wyo. LEXIS 29 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 45 (Wyo. Mar. 27, 1991).

Evidence of prostitution several years before sexual assault properly excluded. —

See Stogner v. State, 674 P.2d 1298, 1984 Wyo. LEXIS 247 (Wyo. 1984).

Counsel not ineffective where sexual-conduct evidence inadmissible. —

Where prior-sexual-conduct evidence was held inadmissible due to remoteness as well as untimeliness, and the defendant's counsel stated an experienced investigator had been used to inquire into the victim's background but was unable to uncover any evidence of prostitution, evidence that the defendant claimed existed, the defendant failed to demonstrate facts which occurred at his trial that supported his claim of ineffective assistance of counsel, or that counsel improperly failed to raise errors made at trial. Stogner v. State, 792 P.2d 1358, 1990 Wyo. LEXIS 58 (Wyo. 1990).

Defendant failed to show that defendant's trial attorney was constitutionally ineffective in regard to a rape shield evidence motion or the use of DNA evidence when counsel sought to argue that proffered evidence was relevant to the victim's credibility. Additionally, counsel was not entitled instead to have argued that evidence was relevant to the issue of consent. McGarvey v. State, 2014 WY 66, 325 P.3d 450, 2014 Wyo. LEXIS 71 (Wyo. 2014).

Applied in

Velos v. State, 752 P.2d 411, 1988 Wyo. LEXIS 33 (Wyo. 1988); Dean v. State, 931 P.2d 942, 1997 Wyo. LEXIS 3 (Wyo. 1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Modern status of admissibility, in statutory rape prosecution, of complainant's prior sexual acts or general reputation for unchastity, 90 ALR3d 1300.

Modern status of admissibility, in forcible rape prosecution, of complainant's prior sexual acts, 94 ALR3d 257.

Modern status of admissibility in forcible rape prosecution of complainant's general reputation for unchastity, 95 ALR3d 1181.

Constitutionality of “rape shield” statute restricting use of evidence of victim's sexual experiences, 1 ALR4th 283.

Admissibility, in rape case, of evidence that accused raped or attempted to rape person other than prosecutrix, 2 ALR4th 330.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that prosecuting witness threatened to make similar charges against other persons, 71 ALR4th 448.

Impeachment or cross-examination of prosecuting witness in sexual offense trial by showing that similar charges were made against other persons, 71 ALR4th 469.

Admissibility of evidence that juvenile prosecuting witness in sex offense case had prior sexual experience for purposes of showing alternative source of child's ability to describe sex acts, 83 ALR4th 685.

Sufficiency of allegations or evidence of victim's mental injury or emotional distress to support charge of aggravated degree of rape, sodomy, or other sexual offense, 44 ALR5th 651.

Discoverability and admissibility of plaintiff's past sexual behavior in title VII sexual harassment action, 73 ALR Fed 748.

Admissibility in sex offense case, under Rule 412 of Federal Rules of Evidence, of evidence of victim's past sexual behavior, 166 ALR Fed 639.

§ 6-2-313. Sexual battery.

  1. Except under circumstances constituting a violation of W.S. 6-2-302 through 6-2-304 , 6-2-314 through 6-2-317 or 6-2-502 , an actor who unlawfully subjects another person to any sexual contact is guilty of sexual battery.
  2. Sexual battery is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.

History. Laws 2001, ch. 41, § 1; 2007, ch. 159, § 2.

The 2007 amendment, effective July 1, 2007, in (a), inserted “6-2-314 through 6-2-317 or,” and deleted “or 14-3-105 ” preceding “an actor who unlawfully.”

Error to exclude witness testimony. —

In a juvenile proceeding, the trial court erred in excluding two of defendant's proposed witnesses from testifying for violating its oral exclusionary order where there was no evidence presented nor was it claimed that one witness spoke to the other witness with the knowledge or consent of defendant or his counsel and reasonable confusion remained on the part of defendant and his counsel regarding the extent of the oral order entered by the court. KC v. State, 2004 WY 74, 92 P.3d 805, 2004 Wyo. LEXIS 94 (Wyo. 2004).

Lesser-included offense instruction not required. —

Although an appellate court did not decide whether sexual battery was a lesser-included offense of first-degree sexual assault and third-degree sexual assault, a trial court did not err by refusing to give a lesser-included offense instruction because the defendant admitted that sexual contact had occurred and the theory of the defense, consent, only allowed a jury to find defendant guilty or not guilty of the greater offense. Dean v. State, 2003 WY 128, 77 P.3d 692, 2003 Wyo. LEXIS 155 (Wyo. 2003).

In a case involving second-degree sexual assault, a trial court did not err by denying a request for lesser-included jury instructions for third-degree sexual assault or sexual battery under the circumstances of the case due to the fact that different elements were required. Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Wyo. 2007).

When defendant was convicted of ten counts of third degree sexual assault based on inappropriate sexual contact with his chiropractic patients, the district court did not err in failing to sua sponte consider his conduct as a lesser included offense of sexual battery. Faubion v. State, 2010 WY 79, 233 P.3d 926, 2010 Wyo. LEXIS 82 (Wyo. 2010).

Cited in

Reifer v. State, 2014 WY 139, 2014 Wyo. LEXIS 160 (Nov. 5, 2014).

§ 6-2-314. Sexual abuse of a minor in the first degree; penalties.

  1. An actor commits the crime of sexual abuse of a minor in the first degree if:
    1. Being sixteen (16) years of age or older, the actor inflicts sexual intrusion on a victim who is less than thirteen (13) years of age;
    2. Being eighteen (18) years of age or older, the actor inflicts sexual intrusion on a victim who is less than eighteen (18) years of age, and the actor is the victim’s legal guardian or an individual specified in W.S. 6-4-402 ;
    3. Being eighteen (18) years of age or older, the actor inflicts sexual intrusion on a victim who is less than sixteen (16) years of age and the actor occupies a position of authority in relation to the victim.
  2. Except as provided in subsection (c) of this section, a person convicted under subsection (a) of this section is subject to imprisonment for not more than fifty (50) years, unless the person convicted qualifies under W.S. 6-2-306(e).
  3. A person convicted under paragraph (a)(i) of this section, where the actor is at least twenty-one (21) years of age, is subject to imprisonment for not less than twenty-five (25) years nor more than fifty (50) years, unless the person convicted qualified under W.S. 6-2-306(e).

History. Laws 2007, ch. 159, § 1; 2010, ch. 110, § 1.

The 2010 amendment, effective July 1, 2010, in (b), added “Except as provided in subsection (c) of this section”; and added (c).

Effective date. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

Evidence Sufficient. —

Evidence was sufficient to sustain defendant's conviction for sexual abuse of a minor in the first degree because the sexual assault nurse examiner's testimony explained that the victim said, “Daddy puts his peepee in my butt hole, and it itches, and it scratches, and it hurts.” The nurse also testified that, during her examination, the victim's anus dilated instantly and she found a healing area on the anus. Mersereau v. State, 2012 WY 125, 286 P.3d 97, 2012 Wyo. LEXIS 132 (Wyo. 2012).

Evidence sufficient.—

Evidence was sufficient to prove sexual intrusion on the alleged seven-year-old victim by sexual intercourse because (1) the victim testified that defendant put defendant’s privates to the victim’s private parts; (2) the SANE nurse testified that the victim told the nurse that defendant laid the victim down, spread the victim’s legs apart, and that defendant’s private parts touched the victim’s private parts in and out; and (3) the victim’s parent testified that defendant was then 29 years old. Jackson v. State, 2019 WY 81, 445 P.3d 983, 2019 Wyo. LEXIS 83 (Wyo. 2019).

Crimes not required to be merged for sentencing.—

Kidnapping and first-degree sexual abuse of a minor each require an element the other does not, as the former requires sexual intrusion, whereas the latter does not, and that the kidnapping charge referred to the sexual abuse charge was of no moment, as the jury was not required to find every element of sexual abuse to convict defendant of kidnapping, and the jury had to find only that defendant removed the child victim with the intent to commit sexual abuse. Double jeopardy did not require the sentences to be merged. Winters v. State, 2019 WY 76, 446 P.3d 191, 2019 Wyo. LEXIS 77 (Wyo. 2019).

Incest is lesser-included offense of first-degree sexual abuse. —

Defendant's conviction for incest, in violation of Wyo. Stat. Ann. § 6-4-402(a)(iii), was a lesser-included offense of the crime of first-degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii), and constituted the “same offense” under a double jeopardy analysis. Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Wyo. 2013).

No breach of plea agreement. —

State did not breach the plea agreement by stating defendant pleaded guilty to three felony counts of sexual abuse of a minor when in fact he pleaded no contest; the statements were harmless, because there was no sentencing agreement and the district court was not misled by the statements. The district court sentenced defendant to consecutive terms of 20 to 35 years in prison on each of the two second degree offenses under this section. Mercer v. State, 2012 WY 54, 273 P.3d 1100, 2012 Wyo. LEXIS 57 (Wyo. 2012).

Rejection of sentencing recommendation. —

Trial court did not commit plain error by rejecting defendant's sentencing recommendation and instead imposing a sentence of 22 to 24 years in prison after he entered an Alford plea to three counts of first degree sexual abuse of a minor and one count of third degree sexual abuse of a minor because defendant failed to establish that the trial court found a lack of remorse based solely on his silence; even though he entered an Alford plea and remained silent as to the factual basis for his guilty plea, he did not maintain that silence during his sentencing and his statement to the trial court included an apology of sorts. The trial court also identified a number of factors that it relied on in reaching its sentencing decision, including the victim impact statement and the chronic sexual abuse defendant perpetrated on his daughter. Joreski v. State, 2012 WY 143, 288 P.3d 413, 2012 Wyo. LEXIS 151 (Wyo. 2012).

Jury instructions. —

On plain error review, defendant showed jury instruction errors alleged were clearly set forth in the record and transgressed a clear and unequivocal rule of law by including fondling or touching the victim's vagina in the definition of sexual intrusion, contrary to the statute, but defendant was entitled to no relief because the instruction also required finding sexual intrusion by inserting a finger in the victim's vagina, so the State had to prove more than the statute required, giving defendant more protection, to prove sexual abuse of a minor in the first degree. Nunamaker v. State, 2017 WY 100, 401 P.3d 863, 2017 Wyo. LEXIS 105 (Wyo. 2017).

Cited in

Deeds v. State, 2014 WY 124, 2014 Wyo. LEXIS 141 (Oct. 3, 2014); Hodge v. State, 2015 WY 103, 2015 Wyo. LEXIS 118 (Aug. 12, 2015); McGill v. State, 2015 WY 132, 2015 Wyo. LEXIS 149 (Sept. 28, 2015); Hamilton v. State, 2017 WY 72, 396 P.3d 1009, 2017 Wyo. LEXIS 72 (Wyo. 2017).

Haynes v. State, 2012 WY 151; 2012 Wyo. LEXIS 158 (Nov 29, 2012).

Other acts evidence admissible. —

In a case in which defendant was convicted of two counts of sexual intrusion on the victim, the district court did not abuse its discretion when it allowed testimony alleging earlier acts of sexual abuse of defendant’s nieces when they were children because the evidence was probative and relevant to motive, and the trial court gave a limiting instruction to the jury prior to the nieces’ testimony. LaJeunesse v. State, 2020 WY 29, 458 P.3d 1213, 2020 Wyo. LEXIS 30 (Wyo. 2020).

Prior consistent statements admissible. —

In a case in which defendant was convicted of two counts of sexual intrusion on the victim, although the defense did not directly maintain the victim was fabricating her accusations or had been improperly influenced, because the jury was invited to consider that possibility, the district court did not abuse its discretion in allowing the victim’s prior consistent statements identifying her father as the perpetrator. LaJeunesse v. State, 2020 WY 29, 458 P.3d 1213, 2020 Wyo. LEXIS 30 (Wyo. 2020).

Applied in

Duke v. State, 2009 WY 74, 209 P.3d 563, 2009 Wyo. LEXIS 76 (June 3, 2009); Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Oct. 22, 2009); Craft v. State, 2013 WY 41, 2013 Wyo. LEXIS 45 (Apr 9, 2013).

Quoted in

Wimbley v. State, 2009 WY 72, 208 P.3d 608, 2009 Wyo. LEXIS 71 (June 2, 2009); Norgaard v. State, 2014 WY 157, 2014 Wyo. LEXIS 181 (Dec. 9, 2014); Hathaway v. State, 2017 WY 92, 399 P.3d 625, 2017 Wyo. LEXIS 91 (Wyo. 2017); Carrier v. State, 2017 WY 88, 400 P.3d 358, 2017 Wyo. LEXIS 96 (Wyo. 2017).

§ 6-2-315. Sexual abuse of a minor in the second degree; penalties.

  1. Except under circumstance constituting sexual abuse of a minor in the first degree as defined by W.S. 6-2-314 , an actor commits the crime of sexual abuse of a minor in the second degree if:
    1. Being seventeen (17) years of age or older, the actor inflicts sexual intrusion on a victim who is thirteen (13) through fifteen (15) years of age, and the victim is at least four (4) years younger than the actor;
    2. Being sixteen (16) years of age or older, the actor engages in sexual contact of a victim who is less than thirteen (13) years of age;
    3. Being eighteen (18) years of age or older, the actor engages in sexual contact with a victim who is less than eighteen (18) years of age and the actor is the victim’s legal guardian or an individual specified in W.S. 6-4-402 ; or
    4. Being eighteen (18) years of age or older, the actor engages in sexual contact with a victim who is less than sixteen (16) years of age and the actor occupies a position of authority in relation to the victim.
  2. A person convicted under subsection (a) of this section is subject to imprisonment for not more than twenty (20) years, unless the person convicted qualifies under W.S. 6-2-306(e).

History. Laws 2007, ch. 159, § 1.

Effective dates. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

Requirements.—

It was not enough for the State to establish that defendant caused or allowed the minor victim to touch the clothing immediately covering his intimate parts; the State also had to establish that he did so with the intent of sexual arousal, gratification, or abuse. Armajo v. State, 2020 WY 153, 478 P.3d 184, 2020 Wyo. LEXIS 180 (Wyo. 2020).

Evidence sufficient.—

Evidence permitted a reasonable jury to conclude that defendant caused or allowed the touching to occur for the purpose of sexual gratification, as he had previously touched the victim while telling her how to perform a ritual and been warned not to do so, and during a trip three days before the charged incident, he told the victim that he had a dream about her having his child and warned her not to tell her mother. Armajo v. State, 2020 WY 153, 478 P.3d 184, 2020 Wyo. LEXIS 180 (Wyo. 2020).

Constitutionality. —

Defendants' convictions for violating Wyo. Stat. Ann. §§ 6-2-315(a)(i) and 6-2-316 after they had consensual sexual intercourse with 15-year-old victims were proper because the statutes were not ambiguous and their meaning and scope could be readily determined by reading the sexual assault statutes in pari materia; the appellate court rejected defendants' statutory construction contentions, as well as their unconstitutionally vague as applied challenges. Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Wyo. 2009).

Defendant was not subjected to cruel and/or unusual punishment, under the United States and Wyoming Constitutions, when defendant was sentenced to life in prison without the possibility of parole, upon defendant's second conviction for sexual abuse of a minor. Norgaard v. State, 2014 WY 157, 339 P.3d 267, 2014 Wyo. LEXIS 181 (Wyo. 2014).

Admissibility of evidence.—

In a case in which a jury convicted defendant of three counts of sexual abuse of a minor in the second degree, the district court did not abuse its discretion in admitting evidence that defendant was in violation of his parole at the time of the offenses. Testimony concerning defendant's parole status and prohibition of association with minors was relevant to defendant's motive for lying to his parole agent. Vasquez v. State, 2016 WY 129, 386 P.3d 350, 2016 Wyo. LEXIS 143 (Wyo. 2016).

Evidence Sufficient.

There was sufficient evidence to support defendant’s convictions for second-degree sexual abuse of a minor because his effort to mask his actions by placing a blanket over himself and the girls, his repeated touchings of the girls in virtually identical ways, and his instructions to keep the touchings secret supported a finding of intent of sexual gratification. Jones v. State, 2019 WY 45, 439 P.3d 753, 2019 Wyo. LEXIS 4 5 (Wyo. 2019); Pier v. State, 2019 WY 3, 432 P.3d 890, 2019 Wyo. LEXIS 4 (Wyo. 2019).

There was sufficient evidence to support defendant’s convictions for second-degree sexual abuse of a minor because the victim’s testimony that defendant touched her “a little over her privates” provided sufficient evidence to permit a rational trier of fact to find that he had engaged in sexual contact with the victim’s intimate parts beyond a reasonable doubt. Jones v. State, 2019 WY 45, 439 P.3d 753, 2019 Wyo. LEXIS 4 5 (Wyo. 2019); 2019 Wyo. LEXIS 4 (April 23, 2019).

Jury instructions. —

In a case where defendant was charged with attempted second degree sexual abuse of a minor in Count III of the information, after being questioned by the jury regarding what act defendant was accused of attempting to commit in Count III, the district court did not err in providing a supplemental jury instruction consistent with the information that the act alleged in Count III was the attempted touching of the victim's vaginal area. Brown v. State, 2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2 (Wyo. 2015).

Although the district court erred by failing to define substantial step for the jury and by including the concept of attempt in the elements of second-degree sexual abuse of a minor when instructing the jury, counsel was not ineffective in failing to object to the instructions as defendant was not prejudiced by the failure to object because the evidence against him was overwhelming as defendant’s statements over several weeks confirmed he had the specific intent to inflict sexual intrusion upon the victim and his actions were strongly corroborative of the firmness of his intention to complete the crime of second-degree sexual abuse of a minor. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

No Breach of Plea Agreement. —

State did not breach the plea agreement by stating defendant pleaded guilty to three felony counts of sexual abuse of a minor when in fact he pleaded no contest; the statements were harmless, because there was no sentencing agreement and the district court was not misled by the statements. The district court sentenced defendant 10 to 15 years in prison for the second degree offense under this section, suspended for 10 years of supervised probation. Mercer v. State, 2012 WY 54, 273 P.3d 1100, 2012 Wyo. LEXIS 57 (Wyo. 2012).

Evidence Sufficient. —

Evidence was sufficient to support defendant's conviction of second-degree sexual abuse of a child under Wyo. Stat. Ann. § 6-2-315(a)(ii) and was sufficient to support the jury's conclusion that defendant touched his victim, a seven-year-old boy, with the intent of sexual arousal, gratification, or abuse because the jury heard the testimony of the victim and the victim's mother, who was defendant's former girlfriend, that defendant would spook with the victim while lying with him in bed and the jury also heard the testimony of the investigating detective that defendant admitted to having an erection when he cuddled with the boy. Although there was no direct testimony that defendant touched the victim's genitals while lying in bed with him, the fact that defendant frequently would lay with the victim knowing that he would be aroused could have led the jury to reasonably infer that, when defendant did touch the boy's genitals on other occasions, he did so with the intent of becoming sexually aroused. Jones v. State, 2010 WY 44, 228 P.3d 867, 2010 Wyo. LEXIS 47 (Wyo. 2010).

Evidence was sufficient to convict defendant of second-degree sexual abuse of a minor, his niece, because he was connected with the victim by affinity as defendant was the victim's uncle by marriage, and, thus, he occupied a position of authority in relation to the victim; and because the State was not required to demonstrate that defendant was able to exercise significant influence over the victim as he was tried and convicted based on his position as the victim's relative. Butler v. State, 2015 WY 119, 358 P.3d 1259, 2015 Wyo. LEXIS 136 (Wyo. 2015).

Victim's statement that defendant placed her hand on his penis suggested sexual intent, and that inference was enhanced by defendant's effort to mask his actions by placing a blanket over his midsection and the victim's statement that his reaction to the touching was to “just smile,” supporting a conviction for second-degree sexual abuse of a minor. Jones v. State, 2017 WY 44, 393 P.3d 1257, 2017 Wyo. LEXIS 44 (Wyo. 2017).

Evidence was sufficient to convict defendant of attempted sexual abuse of a minor in the second degree because he sent messages to the victim on a social media website that stated in extremely graphic detail about his desire to have sexual intercourse and oral sex with the victim; and he took a substantial step to complete the crime as the jury could reasonably infer that defendant was driving to the apartments where he and the victim agreed to meet to pick the victim up and inflict sexual intrusion upon her. Weston v. State, 2019 WY 113, 451 P.3d 758, 2019 Wyo. LEXIS 115 (Wyo. 2019).

Evidence Insufficient. —

Evidence was insufficient to sustain defendant's conviction for sexual abuse of a minor in the second degree because defendant's statements, on their own, were insufficient to uphold his convictions for second-degree sexual abuse. There was never an allegation made by the victim or his mother at trial, or to any of the multiple medical care providers or the forensic interviewer, that defendant engaged in sexual contact with the victim. Mersereau v. State, 2012 WY 125, 286 P.3d 97, 2012 Wyo. LEXIS 132 (Wyo. 2012).

Cited in

Rogers v. State, 2008 WY 90, 189 P.3d 265, 2008 Wyo. LEXIS 94 (July 31, 2008); McDowell v. State, 2014 WY 21, 2014 Wyo. LEXIS 22 , 2014 WL 547499 (Feb 11, 2014); Deeds v. State, 2014 WY 124, 2014 Wyo. LEXIS 141 (Oct. 3, 2014); Galbreath v. State, 2015 WY 49, 2015 Wyo. LEXIS 53 (Mar. 27, 2015); Lindstrom v. State, 2015 WY 28, 2015 Wyo. LEXIS 32 (Feb. 25, 2015); Miller v. State, 2015 WY 72, 2015 Wyo. LEXIS 80 (May 15, 2015); Hamilton v. State, 2017 WY 72, 396 P.3d 1009, 2017 Wyo. LEXIS 72 (Wyo. 2017).

Quoted in

DRW v. DLP (In re ARW), 2015 WY 25, 2015 Wyo. LEXIS 24 (Feb. 19, 2015); Hathaway v. State, 2017 WY 92, 399 P.3d 625, 2017 Wyo. LEXIS 91 (Wyo. 2017); Carrier v. State, 2017 WY 88, 400 P.3d 358, 2017 Wyo. LEXIS 96 (Wyo. 2017).

§ 6-2-316. Sexual abuse of a minor in the third degree.

  1. Except under circumstance constituting sexual abuse of a minor in the first or second degree as defined by W.S. 6-2-314 and 6-2-315 , an actor commits the crime of sexual abuse of a minor in the third degree if:
    1. Being seventeen (17) years of age or older, the actor engages in sexual contact with a victim who is thirteen (13) through fifteen (15) years of age, and the victim is at least four (4) years younger than the actor;
    2. Being twenty (20) years of age or older, the actor engages in sexual intrusion with a victim who is either sixteen (16) or seventeen (17) years of age, and the victim is at least four (4) years younger than the actor, and the actor occupies a position of authority in relation to the victim;
    3. Being less than sixteen (16) years of age, the actor inflicts sexual intrusion on a victim who is less than thirteen (13) years of age, and the victim is at least three (3) years younger than the actor; or
    4. Being seventeen (17) years of age or older, the actor knowingly takes immodest, immoral or indecent liberties with a victim who is less than seventeen (17) years of age and the victim is at least four (4) years younger than the actor.
  2. A person convicted under subsection (a) of this section is subject to imprisonment for not more than fifteen (15) years.
  3. A person charged with violating the provisions of paragraph (a)(iii) of this section shall be subject to the original jurisdiction of the juvenile court, except the matter may be transferred to the district court having jurisdiction of the offense as provided in W.S. 14-6-237 .

History. Laws 2007, ch. 159, § 1.

Effective dates. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

Statute not unconstitutionally vague. —

Because the words “indecent liberties” have a definite meaning and because a person of ordinary intelligence can weigh his contemplated conduct against a prohibition of taking immodest, immoral or indecent liberties or assault against a child and know whether or not such contemplated conduct is proscribed by it, this section is not unconstitutionally vague. Sorenson v. State, 604 P.2d 1031, 1979 Wyo. LEXIS 504 (Wyo. 1979).

Defendants' convictions for violating Wyo. Stat. Ann. §§ 6-2-315(a)(i) and 6-2-316 after they had consensual sexual intercourse with 15-year-old victims were proper because the statutes were not ambiguous and their meaning and scope could be readily determined by reading the sexual assault statutes in pari materia; the appellate court rejected defendants' statutory construction contentions, as well as their unconstitutionally vague as applied challenges. Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Wyo. 2009).

This section was not unconstitutionally vague as applied to the defendant, convicted of taking immodest, immoral and indecent liberties with two minors. A person of ordinary intelligence would have known that fondling the genitals of two teenage boys was clearly conduct which was forbidden under this section. Britt v. State, 752 P.2d 426, 1988 Wyo. LEXIS 44 (Wyo. 1988).

Wyoming's indecent liberty statute is not unconstitutionally vague; the statute applies, without question, to certain activities, one of which is sexual intercourse with a minor. Ochoa v. State, 848 P.2d 1359, 1993 Wyo. LEXIS 67 (Wyo. 1993).

Section is not unconstitutional as violative of principle of vagueness. See Moore v. State, 912 P.2d 1113, 1996 Wyo. LEXIS 35 (Wyo. 1996).

Defendant's constitutional challenge of vagueness failed where defendant had fair notice that a sexual relationship with an inexperienced sixteen year old child, consummated in deliberate disregard of her parents' interdiction and while still legally married, is prohibited conduct in Wyoming, and there was no evidence that the statute was enforced in a discriminatory manner. Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

The statute was not unconstitutionally vague as applied to the prosecution of a 17-year-old male who had consensual sexual intercourse with a 13-year-old female; the statute was not only intended to apply to acts committed by an adult with a minor, and a reasonably intelligent 17-year-old could determine that sexual intercourse with a 13-year-old was conduct forbidden by the statute. Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716, 2002 U.S. LEXIS 18 (U.S. 2002).

The indecent liberties statute as applied to the facts of defendant's case was not unconstitutionally vague. The statutory language provided sufficient notice that consensual intercourse with a 16 year-old is criminal behavior even though that conduct does not offend the third degree sexual assault statute, Wyo. Stat. Ann. § 6-2-304(a)(i) (repealed), because of the extreme age difference (defendant was 34) and the fact that consent of a minor is not a complete defense to the charge of taking indecent liberties. Moe v. State, 2005 WY 58, 110 P.3d 1206, 2005 Wyo. LEXIS 67 (Wyo. 2005).

This section was not unconstitutionally vague as applied to defendant's conduct, common sense of society would regard the videotaping of sexual acts with a seven-year-old child as a violation of the statute, and a person of ordinary intelligence has sufficient notice that such conduct is illegal. Ruby v. State, 2006 WY 133, 144 P.3d 425, 2006 Wyo. LEXIS 140 (Wyo. 2006).

Wyo. Stat. Ann. § 14-3-105(a) (repealed) was not unconstitutional as applied to defendant who engaged in clandestine efforts to video tape victims in their bedroom in an attempt to obtain nude or partially nude images of them; defendant obtained and preserved those images, and his attempts to mislead the investigating officer and dispose of the camera and video tapes provided evidentiary support indicating that he knew his conduct was unlawful. Rabuck v. State, 2006 WY 25, 129 P.3d 861, 2006 Wyo. LEXIS 28 (Wyo. 2006).

Statute of taking immoral liberties with a child under 18, Wyo. Stat. Ann. § 14-3-105 (repealed), was not unconstitutional as facially vague, and was not unconstitutionally vague as applied to 21-year-old defendant convicted of consensual sex with a 16-year-old, since such conduct had previously been determined to violate the statute; moreover, although defendant briefly mentioned the lack of an extreme age difference as a mitigating factor, he admitted that he understood that his conduct was wrong and that he should have waited until the 16-year-old victim was 18 years old before having sex with her. Stokes v. State, 2006 WY 134, 144 P.3d 421, 2006 Wyo. LEXIS 141 (Wyo. 2006).

Issue of facial vagueness settled under the doctrine of stare decisis. —

Applying the doctrine of stare decisis, the court held that Wyo. Stat. Ann. § 14-3-105 (repealed) is not facially unconstitutional. The analysis and conclusions in Giles v. State, 2004 WY 101, 96 P.3d 1027, 2004 Wyo. LEXIS 129 (2004) on the issue of facial vagueness have settled the issue. Moe v. State, 2005 WY 58, 110 P.3d 1206, 2005 Wyo. LEXIS 67 (Wyo. 2005).

Construction with other law. —

The legislature intended criminal liability under this section to entail conduct which is more culpable than the conduct which constitutes guilt under W.S. § 6-2-304 . Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

The sexual assault statutes, § 6-2-301 et seq., protect all persons while the indecent liberties statute, § 14-3-105 (repealed), only offers protection to those less than 18 years of age and is also limited in that it is applicable only in those circumstances not constituting first, second or third degree sexual assault. Thus, § 14-3-105 (repealed) criminalizes activities that are otherwise permissible between consenting adults when one of the parties is under the age of 18 years. Giles v. State, 2004 WY 101, 96 P.3d 1027, 2004 Wyo. LEXIS 129 (Wyo. 2004).

Department of Homeland Security did not err in ordering an alien’s expedited removal under 8 U.S.C.S. § 1227(a)(2)(A)(iii) due to his Wyoming conviction of third-degree sexual abuse of a minor because a person convicted under this section necessarily committed sexual abuse of a minor under the Immigration and Nationality Act. Bedolla-Zarate v. Sessions, 892 F.3d 1137, 2018 U.S. App. LEXIS 16250 (10th Cir. 2018).

Equal protection rights of defendant not violated. —

There was no violation of the equal protection rights of the defendant 17-year-old male when he, but not the 13-year-old female with whom he had consensual sex, was charged with a violation of the statute. Misenheimer v. State, 2001 WY 65, 27 P.3d 273, 2001 Wyo. LEXIS 76 (Wyo. 2001), cert. denied, 534 U.S. 1092, 122 S. Ct. 836, 151 L. Ed. 2d 716, 2002 U.S. LEXIS 18 (U.S. 2002).

Section is not unconstitutional as violative of the principles of separation of church and state, equal protection or vagueness. Moore v. State, 912 P.2d 1113, 1996 Wyo. LEXIS 35 (Wyo. 1996).

Right of privacy in sexual relations. —

The sexual conduct protected by the fundamental right to privacy extends only to sexual relations between adults. Ochoa v. State, 848 P.2d 1359, 1993 Wyo. LEXIS 67 (Wyo. 1993).

Prosecutorial discretion warranted second-degree sexual assault charge. —

It was within the prosecutor's discretion to charge attempted second-degree sexual assault, instead of taking indecent liberties with a minor. Bueno-Hernandez v. State, 724 P.2d 1132, 1986 Wyo. LEXIS 612 (Wyo. 1986), cert. denied, 480 U.S. 907, 107 S. Ct. 1353, 94 L. Ed. 2d 523, 1987 U.S. LEXIS 1004 (U.S. 1987).

Alleging general time period in information and bill of particulars sufficient. —

Since a specific date is not essential to the commission of indecent liberties with a minor, an information supplemented by a bill of particulars which stated that “on or about April 9, 1985, the defendant had sexual relations with JF” was sufficient to give defendant notice and allow him to adequately prepare a defense. Stewart v. State, 724 P.2d 439, 1986 Wyo. LEXIS 605 (Wyo. 1986).

Information was sufficient. —

An information gave sufficient notice to the defendant in a prosecution for committing an immoral act with a minor where the defendant admitted that he was in the bathtub with his young son and had an erection, notwithstanding that he testified that this event occurred in June of 1988, rather than June of 1989 or 1990 as the information and amended information alleged. Baumgartner v. State, 7 P.3d 912, 2000 Wyo. LEXIS 162 (Wyo. 2000).

Specific intent is not element of crime. There is no requisite intent other than that evidenced by the doing of the act constituting the offense, that is: knowingly taking immodest, immoral and indecent liberties with any child. Britt v. State, 752 P.2d 426, 1988 Wyo. LEXIS 44 (Wyo. 1988).

Defendant appropriately charged with indecent liberties. —

Where defendant exposed himself to both children, but forced only one to perform fellatio while the other child watched, it was appropriate to charge defendant with indecent liberties upon the child who was forced to watch but suffered no sexual contact or intrusion and thus did not fall within the exclusionary language of this section. Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200 (Wyo. 1999).

Defendant's conviction of taking indecent liberties with daughters not barred under § 6-4-402 (incest). —

Sections 6-2-303 (sexual assault) and 6-4-402 (incest) and this section all concern sexual activities, but one cannot be said to be more specific than the others. Therefore, the defendant's convictions under § 6-2-303 and this section were not barred under § 6-4-402 , even though the victims of his acts were his daughters, ages four and six years. Kallas v. State, 704 P.2d 693, 1985 Wyo. LEXIS 525 (Wyo. 1985).

Pertinent age of victim, prior to 1978, was set at under 18 years. See McArtor v. State, 699 P.2d 288, 1985 Wyo. LEXIS 481 (Wyo. 1985).

And, after 1978, 19 years. —

Reading the provisions of this title in pari materia, and giving full effect to § 14-1-101 (age of majority), a reference to “child” or “minor” in this title, other than when a specific age is set, is to an individual under the age of 19 years. This section does not set another specific age. Therefore, the word “child” in this section refers to one under the age of 19 years. Campbell v. State, 709 P.2d 425, 1985 Wyo. LEXIS 608 (Wyo. 1985) (decided prior to 1993 amendment).

Evidence sufficient to support revocation of probation. See Roberts v. State, 912 P.2d 1110, 1996 Wyo. LEXIS 36 (Wyo. 1996).

District court did not err in revoking defendant's probation, where a probation officer found a woman and her minor son hiding in defendant's hotel room. Although defendant was clearly instructed that having the child in his room was violation of his probation, the mother and child were again in the room when the probation officer returned with law enforcement. Forbes v. State, 2009 WY 146, 220 P.3d 510, 2009 Wyo. LEXIS 162 (Wyo. 2009).

Evidence sufficient to support a conviction for sexual abuse of a minor in the third degree. —

Evidence supported a conviction for sexual abuse of a minor in the third degree, as the jury could reasonably have concluded that defendant took “immodest, immoral or indecent liberties” with the victim based on the victim's testimony that he pulled down her shirt to expose her breasts and grabbed her breasts from behind and pushed her to floor, and testimony from the victim's mother that she participated in sexual abuse of the victim by putting a sleeping pill in the victim's milkshake. Rhodes v. State, 2015 WY 60, 348 P.3d 404, 2015 Wyo. LEXIS 68 (Wyo. 2015).

Evidence of other sexual misconduct admissible. —

Testimony of the victim's older sister, relating a course of sexual misconduct occurring between herself and the defendant, was admissible, where such testimony was particularly relevant for the purpose of corroborating the witness's tesimony. Gezzi v. State, 780 P.2d 972, 1989 Wyo. LEXIS 205 (Wyo. 1989).

The court did not commit prejudicial error in a child sexual assault case by admitting into evidence the defendant's statement to Utah social worker that he had fondled a 10-year-old girl in Utah in July of 1984. The evidence proved intent, identity, and motive. Johnson v. State, 872 P.2d 93, 1994 Wyo. LEXIS 45 (Wyo. 1994).

Evidence of prior conviction harmless. —

Where the only additional information presented to the jury besides the fact, nature, and date of defendant's prior felony conviction was the length and date of imprisonment, it was unlikely that such information had any impact upon the verdict. Moe v. State, 2005 WY 149, 123 P.3d 148, 2005 Wyo. LEXIS 178 (Wyo. 2005), cert. denied, 547 U.S. 1046, 126 S. Ct. 1633, 164 L. Ed. 2d 345, 2006 U.S. LEXIS 2609 (U.S. 2006).

Evidence sufficient to support conviction on second degree sexual assault and indecent liberties charges. —

There was sufficient evidence to convict defendant of both second degree sexual assault and indecent liberties, and defendant failed to demonstrate how the district court abused its discretion during his trial in admitting expert testimony and prior bad acts evidence. Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200 (Wyo. 1999).

Child witness. —

Defendant's conviction of second-degree sexual assault, third degree sexual assault, and indecent liberties with a minor was upheld where the trial court held a hearing to determine the competency of the five-year old child victim to testify as to the sexual assault; no separate taint hearing was required because defendant did not come forward with some evidence that taint was present, and the competency inquiry, the five-part test to determine the competency of child witnesses, included the question of pretrial taint. Morganflash v. State, 2003 WY 120, 76 P.3d 830, 2003 Wyo. LEXIS 146 (Wyo. 2003).

Expert's opinion on defendant's guilt requires reversal. —

Permitting expert witnesses to offer opinions that the defendant was guilty of sexually abusing his son, and allowing one of the expert witnesses to vouch for the credibility of the victim, was plain error, requiring reversal of the defendant's conviction. Stephens v. State, 774 P.2d 60, 1989 Wyo. LEXIS 108 (Wyo. 1989), overruled in part, Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Jury instructions prejudicial. —

Where the jury instructions did not properly inform the jury of the circumstances under which defendant could be convicted of the crime of taking indecent liberties, the jury instructions were prejudicial to defendant and reversal was necessary. Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

In child sexual assault case, following instruction, proposed by defendant, was properly refused: “The crime with which the defendant is charged is likely to create a strong prejudice against an accused. Thus, you should bear in mind the difficulty of defending against such a charge and consider carefully all the evidence and instructions of the court.” Johnson v. State, 872 P.2d 93, 1994 Wyo. LEXIS 45 (Wyo. 1994).

Impermissible closing argument. —

Indecent liberties statute punishes inappropriate sexual conduct with children; consequently, a statement suggesting that providing drugs to children violates § 14-3-105 (repealed) would be incorrect. Burton v. State, 2002 WY 71, 46 P.3d 309, 2002 Wyo. LEXIS 76 (Wyo. 2002), reh'g denied, 2002 Wyo. LEXIS 99 (Wyo. June 18, 2002).

Immodest liberties not lesser included offense of sexual assault. —

Jury instruction that taking of immodest, immoral or indecent liberties with a child was a lesser included offense of second-degree sexual assault (§ 6-2-303 ) was reversible error. Derksen v. State, 845 P.2d 1383, 1993 Wyo. LEXIS 25 (Wyo. 1993).

Merger of sexual assault offense and indecent liberties offense. —

For purposes of sentencing, a merger of a sexual assault offense and an indecent liberties offense may occur when the facts which have been proven at trial establish that the defendant committed only one criminal act. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Consent as a defense. —

The consent of the minor is not a complete defense to the charge of taking indecent liberties. Pierson v. State, 956 P.2d 1119, 1998 Wyo. LEXIS 36 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 66 (Wyo. Apr. 22, 1998).

Indecent liberties is not a “violent felony” as that phrase is defined by Wyoming law. See Cooley v. State, 885 P.2d 875, 1994 Wyo. LEXIS 159 (Wyo. 1994).

Sentencing. —

The trial court abused its discretion in relying on a presentence investigation report without making a record or a finding as to the reliability of the information and in relying on a purported victim impact statement made by someone other than the victim, and thus the defendant's sentence under this section was reversed and resentencing was ordered. Bitz v. State, 2003 WY 140, 78 P.3d 257, 2003 Wyo. LEXIS 170 (Wyo. 2003).

No abuse in sentencing. —

There was no abuse of discretion, under the following facts, in sentencing the defendant to consecutive sentences of six to 10 years and eight to 10 years: (1) the victims were not only young but also of limited mentality and (2) the mother of the victims was also “functioning subnormal.” Munden v. State, 698 P.2d 621, 1985 Wyo. LEXIS 473 (Wyo. 1985).

No abuse of discretion in sentencing defendant to seven-to-10 years. See MJP v. State, 706 P.2d 1108, 1985 Wyo. LEXIS 569 (Wyo. 1985), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Although defendant's maximum term of imprisonment for two convictions under this section was 10 years, his original sentence was imprisonment for not less than 18 months or more than 60 months. However, defendant was placed on probation for a period of eight years, but five months after the original sentencing hearing had been held, the district court revoked defendant's probation and reinstated his original sentence. Because neither appellant's period of probation nor his term of incarceration exceeded the maximum term of imprisonment, his sentence was legal. Leyba v. State, 882 P.2d 863, 1994 Wyo. LEXIS 118 (Wyo. 1994).

Sentence of 17 to 25 years in a case where guilty pleas were entered to third-degree sexual assault and one count of immodest, immoral, or indecent acts with a minor was not disproportionate to the crimes where defendant was accused of touching teenage girls inappropriately for his own sexual gratification; moreover, he was acting like a sexual predator when he groomed the girls. Hubbard v. State, 2008 WY 12, 175 P.3d 625, 2008 Wyo. LEXIS 13 (Wyo. 2008).

Rejection of sentencing recommendation. —

Trial court did not commit plain error by rejecting defendant's sentencing recommendation and instead imposing a sentence of 22 to 24 years in prison after he entered an Alford plea to three counts of first degree sexual abuse of a minor and one count of third degree sexual abuse of a minor because defendant failed to establish that the trial court found a lack of remorse based solely on his silence; even though he entered an Alford plea and remained silent as to the factual basis for his guilty plea, he did not maintain that silence during his sentencing and his statement to the trial court included an apology of sorts. The trial court also identified a number of factors that it relied on in reaching its sentencing decision, including the victim impact statement and the chronic sexual abuse defendant perpetrated on his daughter. Joreski v. State, 2012 WY 143, 288 P.3d 413, 2012 Wyo. LEXIS 151 (Wyo. 2012).

Sentence for guilty plea within reason. —

Where defendant was sentenced to 16-20 years after pleading guilty to 3 counts under this section and considering the whole picture presented to the district court, the court's sentencing decision did not exceed the bounds of reason under the circumstances. Dodge v. State, 951 P.2d 383, 1997 Wyo. LEXIS 172 (Wyo. 1997).

New trial not required. —

The defendant was not entitled to a new trial in a prosecution for his commission of an immoral act with his then one-and-a-half-year-old son, notwithstanding his assertion of newly discovered evidence consisting of a calendar containing notations made by the defendant's wife and evidence which he alleged showed that his wife testified falsely with respect to a guardian ad litem report. Baumgartner v. State, 7 P.3d 912, 2000 Wyo. LEXIS 162 (Wyo. 2000).

Motion to withdraw guilty plea denied.—

District court did not abuse its discretion when it denied defendant's motion to withdraw his guilty plea because counsel's performance was not deficient for failure to advise defendant of the affirmative defense that applied if criminality of conduct depended on a victim being under 16 years of age; because defendant pleaded guilty to third-degree sexual abuse of a minor, in which criminality depended on a victim who is less than 17)years of age, the affirmative defense did not apply. Berger v. State, 2017 WY 90, 399 P.3d 621, 2017 Wyo. LEXIS 88 (Wyo. 2017).

Effect of amendments. —

Where amendment to this section became effective March 19, 1996, and crimes were alleged to have been committed between March 1, 1996, and May 31, 1996, this section was to be applied as it appeared on March 1, 1996. Metzger v. State, 4 P.3d 901, 2000 Wyo. LEXIS 103 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 141 (Wyo. June 12, 2000).

Error to exclude witness testimony. —

In a juvenile proceeding, the trial court erred in excluding two of defendant's proposed witnesses from testifying for violating its oral exclusionary order where there was no evidence presented nor was it claimed that one witness spoke to the other witness with the knowledge or consent of defendant or his counsel and reasonable confusion remained on the part of defendant and his counsel regarding the extent of the oral order entered by the court. KC v. State, 2004 WY 74, 92 P.3d 805, 2004 Wyo. LEXIS 94 (Wyo. 2004).

Applied in

Boggs v. State, 589 P.2d 839, 1979 Wyo. LEXIS 347 (Wyo. 1979); Ketcham v. State, 618 P.2d 1356, 1980 Wyo. LEXIS 320 (Wyo. 1980); Larsen v. State, 686 P.2d 583, 1984 Wyo. LEXIS 326 (Wyo. 1984); In re Adoption of RHA, 702 P.2d 1259, 1985 Wyo. LEXIS 516 (Wyo. 1985); Schwenke v. State, 768 P.2d 1031, 1989 Wyo. LEXIS 32 (Wyo. 1989); Gale v. State, 792 P.2d 570, 1990 Wyo. LEXIS 48 (Wyo. 1990); Brown v. State, 817 P.2d 429, 1991 Wyo. LEXIS 138 (Wyo. 1991); Daniel v. State, 923 P.2d 728, 1996 Wyo. LEXIS 119 (Wyo. 1996); Hayes v. State, 935 P.2d 700, 1997 Wyo. LEXIS 60 (Wyo. 1997).

Quoted in

Triplett v. State, 802 P.2d 162, 1990 Wyo. LEXIS 146 (Wyo. 1990); Lovato v. State, 901 P.2d 408, 1995 Wyo. LEXIS 151 (Wyo. 1995); Cook v. State, 7 P.3d 53, 2000 Wyo. LEXIS 139 (Wyo. 2000); Chapman v. State, 2001 WY 25, 18 P.3d 1164, 2001 Wyo. LEXIS 32 (Wyo. 2001); Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003); DRW v. DLP (In re ARW), 2015 WY 25, 2015 Wyo. LEXIS 24 (Feb. 19, 2015).

Stated in

Zabel v. State, 765 P.2d 357, 1988 Wyo. LEXIS 144 (Wyo. 1988).

Cited in

Fortin v. State, 622 P.2d 418, 1981 Wyo. LEXIS 276 (Wyo. 1981); Auclair v. State, 660 P.2d 1156, 1983 Wyo. LEXIS 298 (Wyo. 1983); Smallwood v. State, 748 P.2d 1141, 1988 Wyo. LEXIS 13 (Wyo. 1988); Krow v. State, 840 P.2d 261, 1992 Wyo. LEXIS 153 (Wyo. 1992); Britton v. State, 845 P.2d 1374, 1992 Wyo. LEXIS 104 (Wyo. 1992); Brown v. State, 894 P.2d 597, 1995 Wyo. LEXIS 62 (Wyo. 1995); Vernier v. State, 909 P.2d 1344, 1996 Wyo. LEXIS 11 (Wyo. 1996); Johnson v. State, 922 P.2d 1384, 1996 Wyo. LEXIS 128 (Wyo. 1996); Brock v. State, 967 P.2d 26, 1998 Wyo. LEXIS 159 (Wyo. 1998); Hornecker v. State, 977 P.2d 1289, 1999 Wyo. LEXIS 76 (Wyo. 1999); James v. State, 998 P.2d 389, 2000 Wyo. LEXIS 41 (Wyo. 2000); Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000); Moehr v. State, 13 P.3d 1114, 2000 Wyo. LEXIS 224 (Wyo. 2000); Reagan v. State, 14 P.3d 925, 2000 Wyo. LEXIS 232 (Wyo. 2000); Clingman v. State, 2001 WY 46, 23 P.3d 27, 2001 Wyo. LEXIS 55 (Wyo. 2001); Goulart v. State, 2003 WY 108, 76 P.3d 1230, 2003 Wyo. LEXIS 132 (Wyo. 2003); Hirsch v. State, 2006 WY 66, 135 P.3d 586, 2006 Wyo. LEXIS 71 (Wyo. May 31, 2006); Montez v. State, 2009 WY 17, 201 P.3d 434, 2009 Wyo. LEXIS 17 (Feb. 12, 2009); Palmer v. State, 2009 WY 129, 218 P.3d 941, 2009 Wyo. LEXIS 139 (Oct. 22, 2009); McDowell v. State, 2014 WY 21, 2014 Wyo. LEXIS 22 , 2014 WL 547499 (Feb 11, 2014); Woods v. State, 2017 WY 111, 401 P.3d 962, 2017 Wyo. LEXIS 117 (Wyo. 2017).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For case note, “Wyoming's Indecent Liberties Statute — Victim Consent is Now a ‘Relevant Fact for Jury Deliberation’; Did Pierson Put a Bandage on Wyoming's Criminal Code Bullet Wound?,” see XXXIV Land & Water L. Rev. 187 (1999).

For comment, “An Examination of Wyoming's Indecent Liberties Statute and Proposals for Reform,” see 2 Wyo. L. Rev. 529 (2002).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child, 42 ALR5th 291.

§ 6-2-317. Sexual abuse of a minor in the fourth degree.

  1. Except under circumstance constituting sexual abuse of a minor in the first, second or third degree as defined by W.S. 6-2-314 through 6-2-316 , an actor commits the crime of sexual abuse of a minor in the fourth degree if:
    1. Being less than sixteen (16) years of age, the actor engages in sexual contact with a victim who is less than thirteen (13) years of age, and the victim is at least three (3) years younger than the actor; or
    2. Being twenty (20) years of age or older, the actor engages in sexual contact with a victim who is either sixteen (16) or seventeen (17) years of age, and the victim is at least four (4) years younger than the actor, and the actor occupies a position of authority in relation to the victim.
  2. A person convicted under subsection (a) of this section is subject to imprisonment for not more than five (5) years.
  3. A person charged with violating the provisions of paragraph (a)(i) of this section shall be subject to the original jurisdiction of the juvenile court, except the matter may be transferred to the district court having jurisdiction of the offense as provided in W.S. 14-6-237 .

History. Laws 2007, ch. 159, § 1.

Effective dates. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

Applied in

Crain v. State, 2009 WY 128, 218 P.3d 934, 2009 Wyo. LEXIS 140 (Oct. 22, 2009).

§ 6-2-318. Soliciting to engage in illicit sexual relations; penalty.

Except under circumstances constituting sexual assault in the first, second or third degree as defined by W.S. 6-2-302 through 6-2-304 , or sexual abuse of a minor in the first, second, third or fourth degree as defined by W.S. 6-2-314 through 6-2-317 , anyone who has reached the age of majority and who solicits, procures or knowingly encourages anyone less than the age of fourteen (14) years, or a person purported to be less than the age of fourteen (14) years, to engage in sexual intrusion as defined in W.S. 6-2-301 is guilty of a felony, and upon conviction shall be imprisoned for a term of not more than five (5) years.

History. Laws 2007, ch. 159, § 1; 2010, ch. 82, § 1.

The 2010 amendment, made a stylistic change.

Laws 2010, ch. 82, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 9, 2010.

Effective dates. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

“Solicit” not unconstitutionally vague. —

Court rejected defendant's claim that Wyo. Stat. Ann. § 14-3-104 (repealed), the statute under which he was convicted on two alternative theories of soliciting or knowingly encouraging a person under the age of 16 to engage in illicit sexual intrusion, violates due process guaranteed by the U.S. Const. amend. XIV and Wyo. Const. art. I, § 6 because it is unconstitutionally vague in that it does not define the term “solicit” or provide fair notice of the prohibited conduct. Defendant failed to sufficiently brief the issue by presenting pertinent authority and cogent argument in favor of his position; the term “solicit” is used in numerous Wyoming statutes without being separately defined; and the plain meaning of the term is clear from its dictionary definitions and is routinely used by other jurisdictions. Blakeman v. State, 2004 WY 139, 100 P.3d 1229, 2004 Wyo. LEXIS 179 (Wyo. 2004) (decided under prior law).

Meaning of “procure” not restricted. —

There is no indication that the legislature intended to restrict the word “procure” to any one of its meanings. Stambaugh v. State, 613 P.2d 1237, 1980 Wyo. LEXIS 291 (Wyo. 1980) (decided under prior law).

Omission of victims' names error. —

Omission of the victims' names from the criminal complaint, the criminal warrant and the information, rendered the documents fatally defective, deprived the lower courts of jurisdiction and warranted reversal of conviction. Walker v. State, 847 P.2d 542, 1993 Wyo. LEXIS 27 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 56 (Wyo. Mar. 16, 1993) (decided under prior law).

Legal impossibility is not a defense to attempt. —

Defendant did not show plain error under W.R.Cr.P. 52(b) based on prosecutorial misconduct where the prosecutor did not inform the trial court that two counts in the information did not constitute crimes. Although defendant did not, in fact, solicit a “minor” because an undercover agent was posing as the minor, defendant could have been prosecuted for attempted solicitation of a minor under Wyo. Stat. Ann. §§ 14-3-104 (repealed) and 6-1-301(a)(ii). Legal impossibility is not a defense to attempt. Rutti v. State, 2004 WY 133, 100 P.3d 394, 2004 Wyo. LEXIS 177 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 215 (Wyo. Dec. 14, 2004), cert. denied, 544 U.S. 1019, 125 S. Ct. 1990, 161 L. Ed. 2d 858, 2005 U.S. LEXIS 3781 (U.S. 2005) (decided under prior law).

Actual victim not required for conviction of attempt to engagein illicit sexual relations with a minor. —

Where defendant engaged in conversation with an undercover detective in an internet chatroom and agreed to meet the person in an agreed-upon location for sexual activity, convictions for attempted sexual exploitation of a child and attempted solicitation to engage in illicit sexual relations in violation of Wyo. Stat. Ann. §§ 6-4-303(b)(ii) and 14-3-104 (repealed) were upheld; the State was not required to produce an actual child victim for crimes of attempt. Adams v. State, 2005 WY 94, 117 P.3d 1210, 2005 Wyo. LEXIS 117 (Wyo. 2005) (decided under prior law).

Applied in

In re Adoption of RHA, 702 P.2d 1259, 1985 Wyo. LEXIS 516 (Wyo. 1985); Campbell v. State, 709 P.2d 425, 1985 Wyo. LEXIS 608 (Wyo. 1985) (decided under prior law).

Stated in

Michael v. Hertzler, 900 P.2d 1144, 1995 Wyo. LEXIS 136 (Wyo. 1995) (decided under prior law).

Cited in

State in Interest of C., 638 P.2d 165, 1981 Wyo. LEXIS 410 (Wyo. 1981); Auclair v. State, 660 P.2d 1156, 1983 Wyo. LEXIS 298 (Wyo. 1983); Reagan v. State, 14 P.3d 925, 2000 Wyo. LEXIS 232 (Wyo. 2000); White v. State, 2003 WY 163, 80 P.3d 642, 2003 Wyo. LEXIS 200 (Wyo. 2003) (decided under prior law).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Standard of proof required under statute providing for commitment of sexual offenders or sexual psychopaths, 96 ALR3d 840.

Mistake or lack of information as to victim's age as defense to statutory rape, 46 ALR5th 499.

§ 6-2-319. Names not to be released; restrictions on disclosures or publication of information; violations; penalties.

  1. Prior to the filing of an information or indictment in district court charging a violation of an offense under this article, neither the names of the alleged actor or the victim of the charged offense nor any other information reasonably likely to disclose the identities of the parties shall be released or negligently allowed to be released to the public by any public employee except as authorized by the judge with jurisdiction over the criminal charges. The actor’s name may be released to the public to aid or facilitate an arrest. This subsection shall not apply if release of the name or information is necessary to enforce an order for protection against the alleged actor.
  2. After the filing of an information or indictment in district court and absent a request to release the identity of a minor victim by the minor or another acting on behalf of a minor victim, the trial court shall, to the extent necessary to protect the welfare of the minor victim, restrict the disclosure of the name of the minor victim, unless the name has been publicly disclosed by the parent or legal guardian of the minor or by law enforcement in an effort to find the victim. The trial court may, to the extent necessary to protect the welfare of the minor victim, restrict disclosure of the information reasonably likely to identify the minor victim.
  3. Any person who willfully violates subsection (a) of this section is guilty of a misdemeanor and upon conviction shall be fined not more than seven hundred fifty dollars ($750.00) or be imprisoned in the county jail not more than ninety (90) days, or both.
  4. A release of a name or other information to the public in violation of the proscriptions of this section shall not stand as a bar to the prosecution of a defendant nor be grounds for dismissal of any charges against a defendant.
  5. As used in this section “minor victim” means a person less than the age of eighteen (18) years.

History. Laws 2007, ch. 159, § 1; 2009, ch. 18, § 1; 2015, ch. 144, § 2.

The 2009 amendment, effective July 1, 2009, in (a), substituted “an offense under this article” for “W.S. 6-2-314 through 6-2-318 ,” “alleged actor” for “person accused” and “actor's name” for “name of the person accused”; and inserted “and absent a request to release the identity of a minor victim by the minor or another acting on behalf of a minor victim” in (b).

The 2015 amendment, effective July 1, 2015, in (a), substituted “identities of the parties” for “identity of the victim,” and added the last sentence.

Effective dates. —

Laws 2007, ch. 159, § 4, makes the act effective July 1, 2007.

Open proceedings.

Circuit court violated the First Amendment when it closed the proceedings in a juvenile sexual assault case and sealed the court records purportedly in accordance with this section. Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101, 332 P.3d 523, 2014 Wyo. LEXIS 117 (Wyo. 2014).

Proceedings in sexual assault cases, like judicial documents, must generally remain open to the public. To avoid revealing the name of the defendant during a hearing, the circuit court judge or magistrate may use initials in the place of the name when required to name the defendant in open court. Circuit Court of the Eighth Judicial Dist. v. Lee Newspapers, 2014 WY 101, 332 P.3d 523, 2014 Wyo. LEXIS 117 (Wyo. 2014).

§ 6-2-320. Prohibited access to school facilities by adult sex offenders; exceptions; penalties; definitions.

  1. Except as provided in subsection (b) of this section, no person who is eighteen (18) years of age or older who is required to register as a sex offender pursuant to W.S. 7-19-302 shall:
    1. Be upon or remain on the premises of any school building or school grounds in this state, or upon other properties owned or leased by a school when the registered offender has reason to believe children under the age of eighteen (18) years are present and are involved in a school activity or when children are present within thirty (30) minutes before or after a scheduled school activity;
    2. Knowingly loiter on a public way within one thousand (1,000) feet from the property line of school grounds in this state, including other properties owned or leased by a school when children under the age of eighteen (18) years are present and are involved in a school activity or when children are present within thirty (30) minutes before or after a scheduled school activity;
    3. Be in any vehicle owned or leased by a school to transport students to or from school or a school related activity when children under the age of eighteen (18) years are present in the vehicle;
    4. Reside within one thousand (1,000) feet of the property on which a school is located, measured from the nearest point of the exterior wall of the registered offender’s dwelling unit to the school’s property line, except that this paragraph shall not apply if the registered offender’s residence was established prior to July 1, 2010.
  2. The provisions of paragraphs (a)(i) and (ii) shall not apply to the extent the registered offender:
    1. Is a student in attendance at the school;
    2. With the written permission of the school principal, vice-principal or person with equivalent authority, is attending an academic conference or other scheduled extracurricular school event with school officials present when the registered offender is a parent or legal guardian of a child who is participating in the conference or extracurricular event;
    3. Resides at a state licensed or certified facility for incarceration, health or convalescent care that is within one thousand (1,000) feet from the property on which a school is located;
    4. Is dropping off or picking up a child and the registered offender is the child’s parent or legal guardian;
    5. Is temporarily on school grounds during school hours for the purpose of making a mail, food or other delivery;
    6. Is exercising his right to vote in a public election;
    7. Is taking delivery of his mail through an official post office located on school grounds;
    8. Has written permission from the school principal, vice-principal, or person with equivalent authority, to be on the school grounds or upon other property that is used by a school; or
    9. Stays at a homeless shelter or resides at a recovery facility that is within one thousand (1,000) feet from the property on which a school is located if such shelter or facility has been approved for sex offenders by the sheriff or police chief.
  3. Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and upon conviction, shall be punished by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  4. Nothing in this section shall prevent a school district from adopting more stringent safety and security requirements for employees and nonemployees while they are in district facilities or on district properties.
  5. As used in this section:
    1. “Extracurricular event” means any school sponsored activity that is outside the regular curriculum, occurring during or outside regular school hours, including academic, artistic, athletic or recreational activities;
    2. “Registered offender” means a person who is eighteen (18) years of age or older who is required to register as a sex offender pursuant to W.S. 7-19-302 .

History. Laws 2010, ch. 87, § 1; 2020, ch. 151, § 1.

Effective date. —

Laws 2010, ch. 87, § 3, makes the act effective July 1, 2010.

The 2020 amendment, effective July 1, 2020, in (b)(ii), added “With the written permission of the school principal, vice-principal or person with equivalent authority” at the beginning.

Article 4. Robbery and Blackmail

Am. Jur. 2d, ALR and C.J.S. references. —

Use of force or intimidation in retaining property or in attempting to escape, rather than in taking property, as element of robbery, 93 ALR3d 643.

§ 6-2-401. Robbery; aggravated robbery; penalties.

  1. A person is guilty of robbery if in the course of committing a crime defined by W.S. 6-3-402 , he:
    1. Inflicts bodily injury upon another; or
    2. Threatens another with or intentionally puts him in fear of immediate bodily injury.
  2. Except as provided in subsection (c) of this section, robbery is a felony punishable by imprisonment for not more than ten (10) years.
  3. Aggravated robbery is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of robbery the person:
    1. Intentionally inflicts or attempts to inflict serious bodily injury; or
    2. Uses or exhibits a deadly weapon or a simulated deadly weapon.
  4. As used in this section “in the course of committing the crime” includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2013, ch. 191, § 2; 2020, ch. 90, § 1.

The 2013 amendment , effective July 1, 2013, added “6-3-412 or 6-3-413 ” in (a).

The 2020 amendment, effective July 1, 2020, in the introductory language of (a) substituted “W.S. 6-3-402 , he” for “W.S. 6-3-402 , 6-3-412 or 6-3-413 he.”

At common law robbery was defined as the felonious and forcible taking from the person of another of goods by violence or by putting in fear. McGinnis v. State, 16 Wyo. 72, 91 P. 936, 1907 Wyo. LEXIS 37 (Wyo. 1907), overruled, Elliott v. State, 47 Wyo. 36, 30 P.2d 791, 1931 Wyo. LEXIS 1 (Wyo. 1931).

Actual fear of victim need not be shown. —

Although placing the victim in fear is one of the essential elements of robbery, actual fear need not be shown. Daellenbach v. State, 562 P.2d 679, 1977 Wyo. LEXIS 245 (Wyo. 1977).

Degree of force used immaterial. —

The degree of force used by a person committing a robbery is immaterial, so long as it is sufficient to compel the victim to part with his property. Daellenbach v. State, 562 P.2d 679, 1977 Wyo. LEXIS 245 (Wyo. 1977).

Assault, battery and reckless endangering not lesser included offenses. —

According to the strict test of “element identity” in Balsley v. State, 668 P.2d 1324, 1983 Wyo. LEXIS 355 (Wyo. 1983), simple assault, battery, and reckless endangering are not lesser included offenses of the crimes of aggravated robbery or kidnapping. Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985).

Instruction on lesser included offense not given where no supporting evidence. —

Although larceny and robbery may be lesser included offenses of aggravated robbery, an instruction on a lesser included offense need not be given where there is no evidence to support a verdict other than guilty or not guilty of the greater offense. Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985).

Sufficiency of evidence. —

The evidence was insufficient to show that the defendant took a motel's property by threatening a desk clerk with immediate bodily harm or by intentionally putting her in fear of immediate bodily injury, where the defendant made no demand for money, uttered no words conveying a threat of bodily harm, made no physical gestures conveying a threat of bodily harm, displayed no weapon and made no attempt to disguise or conceal his facial features. Goodwine v. State, 764 P.2d 680, 1988 Wyo. LEXIS 163 (Wyo. 1988).

Defendant's conviction for aggravated robbery, in violation of Wyo. Stat. Ann. § 6-2-401(c), was supported by the evidence because the reasonable inference was that defendant, intentionally and with premeditation, demanded money from the victim at a party, shot and killed the victim, then took the money from the victim's pocket or off the floor, and fled; this was done in the presence of eye witnesses. Jones v. State, 2012 WY 82, 278 P.3d 729, 2012 Wyo. LEXIS 88 (Wyo. 2012).

Evidence was sufficient to convict defendant of conspiracy to commit aggravated burglary, aggravated robbery, and aggravated assault and battery as the State presented evidence that defendant and the accomplice agreed to use the gun during the incident at the golf course because the golf course’s manager testified that after he hit defendant in the head with the flashlight, defendant turned and ran away; the manager then heard someone saying to shoot him; seconds later, the manager heard a gunshot and saw a muzzle flash; and it was reasonable for the jury to infer that the accomplice would have only said to shoot the manager if he knew defendant had a gun in his possession. Jordin v. State, 2018 WY 64, 419 P.3d 527, 2018 Wyo. LEXIS 68 (Wyo. 2018).

Sufficient evidence for conviction of conspiracy to commit aggravated robbery. —

See Porth v. State, 868 P.2d 236, 1994 Wyo. LEXIS 11 (Wyo. 1994).

Evidence was sufficient to sustain defendant's conviction for conspiracy to commit aggravated robbery where five coconspirators and/or accomplices testified that defendant was the leader of the plan to rob the bank and did most of the talking during the planning discussions. Vlahos v. State, 2003 WY 103, 75 P.3d 628, 2003 Wyo. LEXIS 124 (Wyo. 2003).

Other bad acts evidence. —

Because Wyo. R. Evid. 404(b) prohibited evidence of other crimes or wrongs in order to show that defendant acted in conformity therewith, the trial court did not err in admitting evidence that defendant was behind in his child support payments at defendant's trial on charges of sexual assault and robbery because it was not the kind of evidence that would naturally lead the jury to believe that he would commit a sexual assault and robbery. Even if the evidence was 404(b) evidence, however, it was properly admissible to establish defendant's motive for the robbery. Schreibvogel v. State, 2010 WY 45, 228 P.3d 874, 2010 Wyo. LEXIS 48 (Wyo. 2010).

Sentence upheld. —

A four-to-six year sentence was proper where (1) a coperpetrator invited the victim back to her home and then told the victim that he would have to pay for her time, and (2) when the victim attempted to leave, the defendant took the victim's wallet and removed $ 200 in twenty-dollar bills from it and then struck the victim in the face, knocking him to the floor; the sentence was less than the maximum of 10 years allowable by law and was proper in light of the defendant's significant criminal history along with the role he played in the crime at issue. Mack v. State, 7 P.3d 899, 2000 Wyo. LEXIS 159 (Wyo. 2000).

Duress defense. —

Defendant was denied his right to a fair trial when the district court refused to give the jury an instruction on the defense of duress after defendant testified and admitted the elements of the crime of aiding and abetting aggravated robbery where he was unarmed and alone in a different town with a man whom he had seen behave violently, who was armed with a gun, and who a week earlier had held the gun to his head and threatened his family if he did not do what he was told. The court did not agree that a reasonable alternative on the night of the robbery was to walk away. James v. State, 2015 WY 83, 2015 WY 83A, 357 P.3d 101, 2015 Wyo. LEXIS 106 (Wyo. 2015).

Exclusion of alibi testimony was harmless error. —

Where defendant made inculpatory statements to the police on two occasions indicating that he had been present during the robbery, the error in excluding possible alibi testimony was harmless beyond a reasonable doubt. Lawson v. State, 994 P.2d 943, 2000 Wyo. LEXIS 6 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 13 (Wyo. Feb. 8, 2000).

Separate sentences for aggravated assault and aggravated robbery. —

Aggravated assault and aggravated robbery each require an element not necessary to the other, and one may commit two separate and distinct crimes by threateningly pointing a pistol at someone and exhibiting that same pistol to facilitate a robbery; separate sentences for appellant's separate crimes were therefore permissible. Rouse v. State, 966 P.2d 967, 1998 Wyo. LEXIS 150 (Wyo. 1998), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Punishment for felony murder and underlying felony unconstitutional. —

The imposition of multiple punishments for felony murder and the underlying felony violates the double jeopardy clauses of the United States and Wyoming constitutions. Cook v. State, 841 P.2d 1345, 1992 Wyo. LEXIS 164 (Wyo. 1992).

Crimes not required to be merged for sentencing. —

Where appellant pointed pistol at victims and exhibited shotgun in course of kidnapping victims and appropriating their truck and trailer rig, crimes of aggravated assault and battery, aggravated robbery, and kidnapping were not required to be merged for sentencing purposes. Rouse v. State, 966 P.2d 967, 1998 Wyo. LEXIS 150 (Wyo. 1998), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Under the Blockburger analysis, first-degree premeditated murder requires proof of premeditated malice, while aggravated robbery does not require proof of malice, and the jury expressly found defendant guilty of first-degree premeditated murder and aggravated robbery; therefore, merger of the sentence to life imprisonment on defendant's first-degree murder conviction and the sentence to a term of years on defendant's aggravated robbery conviction was not required. Sincock v. State, 2003 WY 115, 76 P.3d 323, 2003 Wyo. LEXIS 135 (Wyo. 2003).

Prior forgery conviction admissible. —

Defendant's convictions for robbery and misdemeanor credit card fraud in violation of Wyo. Stat. Ann. §§ 6-2-401(a)(i) and 63-802(a)(i) and (b)(iii) were appropriate because defendant's prior forgery conviction was admissible under Wyo. R. Evid. 404(b) to show that his use of the credit card was intentional and not the result of mistake or accident. The prior crime was also committed less than a year before the instant crime and defendant intended to deny any knowledge that the credit card was stolen or that he was otherwise involved in any of the crimes for which he was charged. Temen v. State, 2009 WY 25, 201 P.3d 1139, 2009 Wyo. LEXIS 24 (Wyo. 2009).

Instruction on defense of duress. —

In a conviction for accessory before the fact to aggravated robbery, the district court denied defendant his right to due process in not giving a jury instruction on duress because defendant testified that a week before the robbery, after he told co-defendant he wanted nothing to do with him, co-defendant held a gun to his head and told him that he would do what co-defendant wanted him to do or co-defendant would harm his family; after driving to an unknown location in Laramie rather than to the liquor store as he had said, co-defendant retrieved a gun, told defendant to follow his lead, and robbed a hotel; and, by the time the court ruled that it would not give the duress instruction, defendant had admitted the elements of the crime. James v. State, 2015 WY 83, 351 P.3d 279, 2015 Wyo. LEXIS 95 (Wyo.), sub. op., 2015 WY 83, 357 P.3d 101, 2015 Wyo. LEXIS 106 (Wyo. 2015).

Applied in

Hukoveh v. Alston, 25 Wyo. 122, 165 P. 988, 1917 Wyo. LEXIS 12 (1917); Johnson v. State, 562 P.2d 1294, 1977 Wyo. LEXIS 250 (Wyo. 1977); Cloman v. State, 574 P.2d 410, 1978 Wyo. LEXIS 262 (Wyo. 1978); Burns v. State, 574 P.2d 422, 1978 Wyo. LEXIS 264 (Wyo. 1978); McCarty v. State, 616 P.2d 782, 1980 Wyo. LEXIS 303 (Wyo. 1980); Aragon v. State, 627 P.2d 599, 1981 Wyo. LEXIS 332 (Wyo. 1981); Osborn v. State, 672 P.2d 777, 1983 Wyo. LEXIS 376 (Wyo. 1983); Oakley v. State, 715 P.2d 1374, 1986 Wyo. LEXIS 512 (Wyo. 1986); Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991); Darrow v. State, 824 P.2d 1269, 1992 Wyo. LEXIS 12 (Wyo. 1992); Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002); Broussard v. State, 2017 WY 73, 396 P.3d 1016, 2017 Wyo. LEXIS 73 (Wyo. 2017).

Quoted in

Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977); Campbell v. State, 589 P.2d 358, 1979 Wyo. LEXIS 344 (Wyo. 1979); Cook v. State, 631 P.2d 5, 1981 Wyo. LEXIS 358 (Wyo. 1981); Alberts v. State, 642 P.2d 447, 1982 Wyo. LEXIS 315 (Wyo. 1982); Naugher v. State, 685 P.2d 37, 1984 Wyo. LEXIS 344 (Wyo. 1984); Engberg v. State, 686 P.2d 541, 1984 Wyo. LEXIS 301 (Wyo. 1984); Williams v. State, 692 P.2d 233, 1984 Wyo. LEXIS 352 (Wyo. 1984); Jones v. State, 735 P.2d 699, 1987 Wyo. LEXIS 440 (Wyo. 1987); Schultz v. State, 751 P.2d 367, 1988 Wyo. LEXIS 20 (Wyo. 1988); Justice v. State, 775 P.2d 1002, 1989 Wyo. LEXIS 145 (Wyo. 1989); Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991); Burk v. State, 848 P.2d 225, 1993 Wyo. LEXIS 45 (Wyo. 1993).

Stated in

Irvin v. State, 584 P.2d 1068, 1978 Wyo. LEXIS 235 (Wyo. 1978).

Cited in

Miller v. State, 508 P.2d 1207, 1973 Wyo. LEXIS 154 (Wyo. 1973); Johnson v. State, 592 P.2d 285, 1979 Wyo. LEXIS 383 (Wyo.); Hubbard v. State, 618 P.2d 553, 1980 Wyo. LEXIS 315 (Wyo. 1980); Lee v. State, 653 P.2d 1388, 1982 Wyo. LEXIS 409 (Wyo. 1982); Duffy v. State, 837 P.2d 1047, 1992 Wyo. LEXIS 100 (Wyo. 1992); Smith v. State, 880 P.2d 573, 1994 Wyo. LEXIS 91 (Wyo. 1994); Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995); Wilkening v. State, 922 P.2d 1381, 1996 Wyo. LEXIS 124 (Wyo. 1996); Major v. State, 2004 WY 4, 83 P.3d 468, 2004 Wyo. LEXIS 8 (Wyo. 2004).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility of evidence of other robberies, 42 ALR2d 854.

Robbery as affected by intent to collect or secure debt or claim, 46 ALR2d 1227.

Gambling or lottery paraphernalia as subject of robbery, 51 ALR2d 1396.

Robbery by means of toy or simulated gun or pistol, 61 ALR2d 996.

Fact that gun was unloaded as affecting criminal responsibility for robbery, 79 ALR2d 1412.

Stolen money or property as subject of robbery, 89 ALR2d 1435.

Purse snatching as robbery or theft, 42 ALR3d 1381.

Prosecution for robbery of one person as bar to subsequent prosecution for robbery of another committed at the same time, 51 ALR3d 693.

What constitutes “exclusive possession” of stolen goods to support inference of robbery, 51 ALR3d 727.

Retaking of money lost at gambling as robbery or larceny, 75 ALR3d 1000.

Robbery by means of toy or simulated gun or pistol, 81 ALR3d 1006.

Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 ALR3d 1309.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 ALR3d 287.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 ALR4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses, 8 ALR4th 1268.

Fact that gun was unloaded as affecting criminal responsibility, 68 ALR4th 507.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 ALR4th 660.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 124 ALR5th 657.

Robbery: Identification of victim as person named in indictment or information, 4 ALR6th 577.

Cigarette lighter as deadly or dangerous weapon, 22 ALR6th 533.

“Intimidation” as element of bank robbery under 18 U.S.C. § 2113(a), 163 ALRFed 225.

§ 6-2-402. Blackmail; aggravated blackmail; penalties.

  1. A person commits blackmail if, with the intent to obtain property of another or to compel action or inaction by any person against his will, the person:
    1. Threatens bodily injury or injury to the property of another person; or
    2. Accuses or threatens to accuse a person of a crime or immoral conduct which would tend to degrade or disgrace the person or subject him to the ridicule or contempt of society.
  2. Except as provided in subsection (c) of this section, blackmail is a felony punishable by imprisonment for not more than ten (10) years.
  3. A person commits aggravated blackmail, a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years if in the course of committing the crime of blackmail the person causes bodily injury to another person.
  4. As used in this section “in the course of committing the crime” includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred.
  5. Conduct denoted blackmail in this section constitutes a single offense embracing the separate crimes formerly known as blackmail and extortion.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2.

Cross references. —

As to intimidation of an election official or elector, see § 22-26-111 .

Communication of threat to intended victim is necessary element of the crime of blackmail under this section. Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

Such threat need not be communicated directly. —

The threat involved in the crime of blackmail need not be communicated directly; it can be communicated by any number of third persons so long as it is given and received as a threat. Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

But threat must strike fear in ordinary man. —

A threat must be made in such circumstances as would be expected to strike fear in the heart of the ordinary man or woman. Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

Debts cannot be collected by duress or threat of imprisonment. United States Fidelity & Guar. Co. v. Cook, 43 Wyo. 356, 5 P.2d 294, 1931 Wyo. LEXIS 39 (Wyo. 1931).

RICO claim. —

Where plaintiff landowner accused defendant Bureau of Land Management officials of harassment and intimidation aimed at extracting an easement, and filed a claim under 18 U.S.C.S. § 1962(c), 1964(c), of the Racketeer Influenced and Corrupt Organizations Act (RICO), alleging Wyo. Stat. Ann. § 6-2-402 extortion as the predicate offense, the claim failed because the Wyoming blackmail statute could not qualify as a predicate offense, as it could not be generically classified as extortionate and the conduct alleged did not fit the traditional definition of extortion. Wilkie v. Robbins, 551 U.S. 537, 127 S. Ct. 2588, 168 L. Ed. 2d 389, 2007 U.S. LEXIS 8513 (U.S. 2007).

Cited in

Coleman v. State, 741 P.2d 99, 1987 Wyo. LEXIS 489 (Wyo. 1987); Andrews v. State, 2002 WY 28, 40 P.3d 708, 2002 Wyo. LEXIS 47 (Wyo. 2002); Williams v. State, 2002 WY 136, 54 P.3d 248, 2002 Wyo. LEXIS 147 (Wyo. 2002).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability of corporation for extortion, 49 ALR3d 820.

What constitutes “property” obtained within extortion statute, 67 ALR3d 1021.

What constitutes taking of money or other thing of value under color of office, 70 ALR3d 1153.

Truth as defense to state charge of criminal intimidation, extortion, blackmail, threats and the like, based upon threats to disclose information about victim, 39 ALR4th 1011.

As to courts generally, see title 5.

When is act of extortion performed “under color of official right” so as to be in violation of Hobbs Act (18 USCS § 1951), 74 ALR Fed 199.

Construction and application of § 2C1.1 of United States Sentencing Guidelines (18 USC APPX § 2C1.1) pertaining to offenses involving public officials offering, giving, soliciting, or receiving bribes, or extortion under color of official right, 144 ALR Fed 615.

§ 6-2-403. Intimidation in furtherance of the interests of a criminal street gang.

  1. A person is guilty of intimidation in furtherance of the interests of a criminal street gang if he threatens or intimidates by word or conduct to cause physical injury to another person or damage to the property of another in order to promote, further or assist in the interests of or to cause, induce or solicit another person to participate in a criminal street gang.
  2. Intimidation in furtherance of the interests of a criminal street gang is a high misdemeanor punishable by imprisonment of up to one (1) year, a fine of up to one thousand dollars ($1,000.00), or both.

History. Laws 2010, ch. 42, § 1.

Effective date. —

Laws 2010, ch. 42, § 3, makes the act effective July 1, 2010.

Evidence held sufficient. —

Sufficient evidence supported defendant's conviction for six counts of receiving stolen property under this section because she received funds from an unauthorized account based on checks issued by her mother. Remmick v. State, 2012 WY 57, 275 P.3d 467, 2012 Wyo. LEXIS 56 (Wyo. 2012).

Article 5. Assault and Battery

Cross references. —

As to sexual assault, see §§ 6-2-302 to 6-2-306 .

As to assaulting peace officer in the performance of his duties, see § 6-5-204 .

As to escape or attempt to escape of prisoners by assault, see § 6-5-207 .

As to carrying dangerous weapons with intent to commit assault, see § 6-8-103 .

As to limitation of action for assault, see § 1-3-105 .

As to abatement of action for assault upon death of the parties, see § 1-4-102 .

As to physical examination and treatment by a registered physician upon a minor who has consented to treatment for venereal disease as not constituting an assault or assault and battery, see § 35-4-131 .

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

53 Am. Jur. 2d Mayhem and Related Offenses § 1 et seq.

Admissibility of evidence of character or reputation of party in civil action for assault on issues other than impeachment, 91 ALR3d 718.

Liability of hotel or motel operator for injury to guest resulting from assault by third party, 28 ALR4th 80.

Recovery by patient on whom surgery or other treatment was performed by one other than physician who patient believed would perform it, 39 ALR4th 1034.

Injury or death caused by assault as within coverage of no-fault motor vehicle insurance, 44 ALR4th 1010.

Liability for injury to martial arts participant, 47 ALR4th 403.

Franchisor's tort liability for injuries allegedly caused by assault or other criminal activity on or near franchise premises, 2 ALR5th 369.

Liability of private operator of “halfway house” or group home housing convicted prisoners before final release for injury to third person caused by inmate, 9 ALR5th 969.

Liability of vendor for food or beverage spilled on customer, 64 ALR5th 205.

§ 6-2-501. Simple assault; battery; penalties.

  1. A person is guilty of simple assault if, having the present ability to do so, he unlawfully attempts to cause bodily injury to another.
  2. A person is guilty of battery if he intentionally, knowingly or recklessly causes bodily injury to another person by use of physical force.
  3. Simple assault is a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).
  4. Battery is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. Notwithstanding any other provision of law, the term of probation imposed by a judge under this subsection may exceed the maximum term of imprisonment established for the offense under this subsection provided the term of probation, together with any extension thereof, shall in no case exceed one (1) year.
  5. and (f) Repealed by Laws 2014, ch. 13, § 3.
  6. A person is guilty of unlawful contact if he:
    1. Touches another person in a rude, insolent or angry manner without intentionally using sufficient physical force to cause bodily injury to another; or
    2. Recklessly causes bodily injury to another person.
  7. An unlawful contact under subsection (g) of this section is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00) or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1996, ch. 75, § 1; 1996, ch. 91, § 1; 2000, ch. 11, § 1; 2004, ch. 99, § 1; 2009, ch. 124, § 1, ch. 169, § 4; 2014, ch. 13, § 3; 2017, ch. 41, § 1.

The 2004 amendment, effective July 1, 2004, added the last sentence in (f)(i), and in (f)(ii) substituted “five (5) years” for “two (2) years.”

The 2009 amendment, effective July 1, 2009, in (b), deleted “unlawfully touches another in a rude, insolent or angry manner or” preceding “intentionally” and added “person by use of physical force” at the end.

The 2014 amendment, effective July 1, 2014, repealed former (e) and (f) which read: “(e) A household member as defined by W.S. 35-21-102 who is convicted upon a plea of guilty or no contest or found guilty of simple assault against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) or (f), 6-2-502 , 6-2-503 , 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member, is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. (f) A household member as defined by W.S. 35-21-102 who commits a second or subsequent battery against any other household member shall be punished as follows: (i) A person convicted upon a plea of guilty or no contest or found guilty of a second offense under this subsection against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) through (g), 6-2-502 , 6-2-503 , 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member within the previous five (5) years is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both. Notwithstanding any other provision of law, the term of probation imposed by a court under this paragraph may exceed the maximum term of imprisonment established for this offense under this paragraph provided the term of probation, together with any extension thereof, shall in no case exceed two (2) years; A person convicted upon a plea of guilty or no contest or found guilty of a third or subsequent offense under this subsection against any other household member, after having been convicted upon a plea of guilty or no contest or found guilty of a violation of W.S. 6-2-501(a), (b), (e) through (g), 6-2-502, 6-2-503, 6-2-504 or other substantially similar law of this or any other state, tribe or territory against any other household member within the previous ten (10) years is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than two thousand dollars ($2,000.00), or both.”

The 2017 amendment , effective July 1, 2017, in the beginning of (c), deleted “Except as provided by subsection (e) of this section”; and in the beginning of (d), deleted “Except as provided by subsection (f) of this section.”

Editor's notes. —

The Revisor's Bill, Laws 2009, ch 169 § 4, stated in relevant part:

“(a) Notwithstanding section 2 of this act, if 2009 House Enrolled Act 75, being original House Bill 0297, is enacted into law, the amendment of W.S. 6-2-501(b) made by that act shall not be effective.”

House Bill 0297 was enacted into law as Chapter 124. The effective amendment to this section was therefore made by Chapter 169.

Laws 2009, ch 124, § 2 provides: “The Wyoming legislature, cognizant of the decision of the United State Court of Appeals for the 10thCircuit in United States v. Hays, 526 F.3d 674, (10 th Cir., 2008), creates the offense of unlawful contact in W.S. 6-2-501(g), to clarify the elements of the offense of simple battery for purposes of federal law, as addressed in the court's decision.”

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

As to recovery of costs in actions for assault and battery, see § 1-14-125 .

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

As to recovery of costs in actions for assault and battery, see § 1-14-125 .

Enhancement of charges.—

District court properly enhanced the penalties for defendant’s aggravated assault and battery convictions because defendant had been convicted of two prior felonies separately brought and tried even though they were resolved in a single plea agreement and judgment and sentence. Thompson v. State, 2018 WY 3, 408 P.3d 756, 2018 Wyo. LEXIS 3 (Wyo. 2018).

Evidence insufficient. —

Evidence was insufficient to support the battery conviction where there was no evidence regarding the victim's bodily injury resulting from defendant punching him in the face. Villarreal v. State, 2017 WY 81, 398 P.3d 512, 2017 Wyo. LEXIS 81 (Wyo. 2017).

Battery lesser included offense of strangulation of a household member. —

Battery is a lesser included offense of strangulation of a household member because (1) the crimes share the same mental element and require bodily injury by some type of physical force, and (2) strangulation also requires proof that the victim was a household member and the defendant caused bodily injury by impeding the victim's normal breathing with the specific physical force of pressure to the throat or neck, so the elements of the lesser crime (battery) are a subset of the greater crime (strangulation). Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

“Apparent ability” is necessary element of crime of assault. Settle v. State, 619 P.2d 387, 1980 Wyo. LEXIS 319 (Wyo. 1980).

Section changes common-law definitions. —

Assault and battery, as defined at common law, were changed by the provisions of this section, which require a present ability to cause bodily harm for an assault and do not require a showing of lack of consent as an element of a battery. Ross v. State, 16 Wyo. 285, 93 P. 299, 1908 Wyo. LEXIS 22 (Wyo.), reh'g denied, 16 Wyo. 285, 93 P. 299, 1908 Wyo. LEXIS 23 (Wyo. 1908).

Use of expert to explain behavior. —

Expert on battered women's testimony was admissible in trial for battery and kidnapping, where the expert's testimony was an explanation for the victim's irrational behavior in answer to defendant's specific defenses that her behavior proved he had not battered or kidnapped her. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Defendant's conviction for battery was not subject to reversal based on admission of expert's testimony concerning domestic violence, to the effect that victims were often motivated to shift blame from the abuser to themselves and to recant when the batterer was facing criminal charges, since testimony did not purport to vouch for the credibility of defendant's wife, and did not impugn the character of defendant, and therefore was properly admitted under Wyo. R. Evid. 702.. Dean v. State, 2008 WY 124, 194 P.3d 299, 2008 Wyo. LEXIS 127 (Wyo. 2008).

Enhancement of charges. —

Although defendant pleaded guilty and received probation for the first conviction, where the statute under which defendant was convicted exposed him to a maximum incarceration term of six months, and where defendant was not provided counsel for his first conviction, that uncounseled conviction cannot be used to enhance a subsequent charge to a felony. Brisson v. State, 955 P.2d 888, 1998 Wyo. LEXIS 33 (Wyo. 1998).

In a case in which defendant was convicted of unlawfully touching a household member for a third or subsequent time in the past ten years, the trial court, which sentenced defendant to consecutive 2 to 5-year terms of imprisonment, imposed an illegal sentence and thereby committed reversible error. The trial court mistakenly determined that there was an available enhancement under the statute with which defendant was charged. Garnica v. State, 2011 WY 85, 253 P.3d 489, 2011 Wyo. LEXIS 86 (Wyo. 2011).

Assault against sleeping family member. —

There was sufficient evidence to find defendant guilty on both alternatives of: (1) unlawfully touching a household member in a rude, insolent or angry manner and (2) intentionally, knowingly or recklessly causing bodily injury to a household member where the victim was awakened from sleeping on the couch at the residence where she and defendant were temporarily living by defendant punching her in the face. Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (Wyo. 2004).

Due process required for enhancement. —

Defendant was entitled to reasonable notice and an opportunity to be heard regarding the possibility of an enhanced sentence for recidivism which was satisfied where he was notified in the original charging documents that a conviction on the current charge would constitute his third conviction under the Family Violence Protection Act, and at his arraignment, defendant was notified of the prior convictions upon which the state later relied for enhanced sentencing. Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (Wyo. 2004).

Subject matter jurisdiction determined from the face of the charging documents. —

Where the charging documents alleged that offense was defendant's third family violence offense, making the offense a felony and bringing into play the enhancement provision of Wyo. Stat. Ann. § 6-2-501(f)(ii), applying the rule that subject matter jurisdiction is determined from the face of the charging documents, the district court had subject matter jurisdiction over the felony offense because the charging documents alleged elements constituting a felony. Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (Wyo. 2004).

Assault as lesser included offense of battery. —

The crime of battery includes the lesser offense of assault, but the court is not required to give a charge to that effect, unless justified by the evidence. State v. Franklin, 70 Wyo. 306, 249 P.2d 520, 1952 Wyo. LEXIS 35 (Wyo. 1952).

Evidence sufficient. —

Evidence was sufficient to establish that the victim suffered serous bodily injury under Wyo. Stat. Ann. §§ 6-2-501(a)(1) and 6-1-104(a)(x) (2013) where the jury instruction only served to define one of the terms included in the elements, and there was extensive evidence showing that defendant caused the victim's broken jaw and resulting medical complications. Brown v. State, 2014 WY 104, 332 P.3d 1168, 2014 Wyo. LEXIS 121 (Wyo. 2014).

State presented sufficient evidence that defendant caused his wife's bodily injury. Defendant committed various acts that caused his wife bodily injury, and which of those particular acts the individual jurors relied upon was irrelevant. Worley v. State, 2017 WY 3, 386 P.3d 765, 2017 Wyo. LEXIS 3 (Wyo. 2017).

Battery not lesser included offense of sexual assault. —

Since battery requires proof of an element not required for proof of first-degree sexual assault, a lesser included offense instruction need not be given. Battery requires the intentional, knowing and reckless causing of bodily injury to another or an unlawful touching in a rude, insolent or angry manner. These are not elements of first-degree sexual assault. Sandy v. State, 870 P.2d 352, 1994 Wyo. LEXIS 29 (Wyo. 1994).

Battery not lesser-included offense of attempted kidnapping. —

Defendant's prosecution for attempted kidnapping, in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-2-201 , was not barred by the doctrine of double jeopardy due to defendant's earlier guilty plea to battery because battery, in violation of Wyo. Stat. Ann. § 6-2-501(b), was not a lesser-included offense of attempted kidnapping under the same-elements test. Rathbun v. State, 2011 WY 116, 257 P.3d 29, 2011 Wyo. LEXIS 120 (Wyo. 2011).

Conviction of misdemeanor battery did not prevent prosecution for aggravated assault and battery. —

Prosecution of defendant for aggravated assault and battery was not barred by the double jeopardy provision of the Wyoming and U.S. Constitutions even though defendant had already been convicted of misdemeanor battery in violation of Wyo. Stat. Ann. § 6-2-501(b) based on the same attack because although evidence of the greater offense existed at the time of the original conviction, the state was unable to discover such evidence despite the exercise of due diligence. Daniel v. State, 2008 WY 87, 189 P.3d 859, 2008 Wyo. LEXIS 90 (Wyo. 2008).

Battery not lesser included offense of interference with a peace officer. —

The crime of battery was not a lesser included offense of the crime of felony interference with a peace officer, because the elements of battery did not require that the person be a peace officer. Mueller v. State, 2001 WY 134, 36 P.3d 1151, 2001 Wyo. LEXIS 160 (Wyo. 2001).

Convictions for burglary and battery not inconsistent. —

Verdict was not inconsistent, where the jury found the defendant guilty of burglary under Wyo. Stat. Ann. § 6-3-301 , acquitted him of aggravated assault under Wyo. Stat. Ann. § 6-2-502 , but found him guilty of the lesser included charge of battery under Wyo. Stat. Ann. § 6-2-501 ; in order to find defendant guilty of burglary, the jury only had to determine that defendant entered the residence with the intent to commit the felony of aggravated assault. Moore v. State, 2003 WY 153, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).

Sentence enhancement provision. —

Subsection (f) of this section is merely a sentence enhancement provision rather than being a new independent “battery against a household member” offense. Fall v. State, 963 P.2d 981, 1998 Wyo. LEXIS 102 (Wyo. 1998).

When defendant convicted of battery against a household member did not rebut presentence information confirming that the victim of his prior battery and aggravated assault was the mother of his child, the district court was permitted to impose felony punishment under this section for a third offense of battery against a household member. Romero v. State, 2010 WY 84, 233 P.3d 951, 2010 Wyo. LEXIS 84 (Wyo. 2010), reh'g denied, 2010 Wyo. LEXIS 109 (Wyo. July 20, 2010), cert. denied, 562 U.S. 1073, 131 S. Ct. 670, 178 L. Ed. 2d 499, 2010 U.S. LEXIS 9322 (U.S. 2010).

Penalty provisions of Wyo. Stat. Ann. § 6-2-501 were not ambiguous or unconstitutionally vague as a plain language interpretation of Wyo. Stat. Ann. § 6-2-501 (f)(ii) suggested that the term “after” was used as a conjunction to introduce the phrase “having been convicted within the previous 10 years”; under that interpretation, the statute simply required that a third battery offense must have occurred within 10 years of a previous battery or other enumerated crime. Further, the penalty portion of the statute set forth a clear and logical progression from a first battery as set forth in § 6-2-501(d), to a second battery as set forth in § 6-2-501(f)(i), to a third or subsequent battery as set forth in § 6-2-501(f)(ii), and the lead-in paragraph to Wyo. Stat. Ann. § 6-2-501(f)(i) and (f)(ii) indicated that the penalty prescribed in subsection (f)(ii) applied to a third battery. Jones v. State, 2011 WY 115, 256 P.3d 536, 2011 Wyo. LEXIS 118 (Wyo. 2011).

Banishment inappropriate sentence. —

Trial court erred when it banished defendant from the county as part of his sentence for battery against a household member, his third offense felony under Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii); absent extraordinary circumstances, banishment is never appropriate as having no role in the rehabilitative purposes of sentencing and is against public policy. Crabtree v. State, 2005 WY 62, 112 P.3d 618, 2005 Wyo. LEXIS 72 (Wyo. 2005).

Violent felony under Armed Career Criminal Act. —

District court did not commit plain error when it determined that defendant's battery/domestic violence conviction under either prong of Wyoming's battery statute, Wyo. Stat. Ann. § 6-2-501(b), qualified as a violent felony under 18 U.S.C.S. § 924(e) because defendant's conviction could have been a violent felony if it fell under two scenarios: (1) if it fell under the second prong of Wyoming's battery statute and it met 18 U.S.C.S. § 924(e)'s first definition, having as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) if it fell under either prong of the Wyoming battery statute and it otherwise involved conduct that presented a serious potential risk of physical injury to another, 18 U.S.C.S. § 924(e)(2)(B). United States v. Gonzales, 558 F.3d 1193, 2009 U.S. App. LEXIS 5371 (10th Cir. Wyo.), cert. denied, 558 U.S. 864, 130 S. Ct. 169, 175 L. Ed. 2d 107, 2009 U.S. LEXIS 5563 (U.S. 2009).

Court not required to give instruction on assault where evidence shows battery. —

Evidence on behalf of the state that the defendant snatched dark eyeglasses from the prosecuting witness and threw them on the ground is sufficient showing that a battery was committed, and it is not necessary to give an instruction on simple assault. State v. Franklin, 70 Wyo. 306, 249 P.2d 520, 1952 Wyo. LEXIS 35 (Wyo. 1952).

Instruction regarding “unlawful touching.” —

Where the trial judge clearly explained to the jury that “unlawful touching” was an element of the crime of battery and that in the “touching” process the defendant could justifiably go only so far and no further, the instruction was adequate, proper and sufficient to explain what “unlawfully touching” was within the context of the facts of the case and the law of battery. Horn v. State, 554 P.2d 1141, 1976 Wyo. LEXIS 214 (Wyo. 1976).

Trial court did not err when it failed to further instruct the jury in light of the jury's question regarding the term “unlawfully” as used in an instruction because, while the jury's question evidenced some initial confusion about the term, the plain language of the instruction clearly indicated that “unlawful” modified “touching.” The court referred the jury back to that proper and unambiguous instruction and the jury undoubtedly noted the plain language of that instruction and realized that it was the touching that had to be unlawful. Crabtree v. State, 2005 WY 62, 112 P.3d 618, 2005 Wyo. LEXIS 72 (Wyo. 2005).

Instruction inappropriate in sexual assault prosecution where defendant claims no contact with victim. —

In light of the rule that a lesser included offense instruction need be given only when the trial court determines that the evidence before the jury warrants the giving of such an instruction, a proffered instruction relating to assault and battery clearly was inappropriate. The trial theory of the defendant was that he had no contact with the victim, and the testimony of the victim was that of sexual assault. Seeley v. State, 715 P.2d 232, 1986 Wyo. LEXIS 503 (Wyo. 1986).

Instruction on lesser-included offenses. —

Defendant charged with aggravated assault and battery was not entitled to jury instruction on lesser-included offenses of simple assault and of battery, since a rational jury could conclude only that defendant was using his vehicle in a manner reasonably capable of producing death or serious bodily injury. Carey v. State, 984 P.2d 1098, 1999 Wyo. LEXIS 137 (Wyo. 1999).

Defendant, charged with strangulation of a household member, under Wyo. Stat. Ann. § 6-2-509 , was not entitled to a lesser included offense instruction on battery, under Wyo. Stat. Ann. § 6-2-501(b), because nothing showed defendant attacked the victim other than by applying pressure to the victim's neck or throat or that the pressure applied caused pain without impeding the victim's breathing, so a jury could not rationally find defendant battered the victim without strangling the victim. Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

District court erred in instructing the jury that assault was a lesser included offense of aggravated assault and battery where assault did not require a threat to use a drawn deadly weapon, and aggravated assault and battery did not require an attempt to cause bodily injury to another. Cecil v. State, 2015 WY 158, 364 P.3d 1086, 2015 Wyo. LEXIS 174 (Wyo. 2015).

Information held sufficient to charge battery. —

See State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1952 Wyo. LEXIS 5 (Wyo. 1952).

Amendment of information. —

In a case in which defendant was convicted of unlawfully touching a household member for a third or subsequent time in the past ten years, the trial court did not abuse its discretion by permitting the State to amend the information after the case was submitted to the jury. The State was simply correcting a mechanical error. Garnica v. State, 2011 WY 85, 253 P.3d 489, 2011 Wyo. LEXIS 86 (Wyo. 2011).

Applied in

Yount v. Strickland, 17 Wyo. 526, 101 P. 942, 1909 Wyo. LEXIS 16 (1909); Wolfe v. State, 38 Wyo. 135, 264 P. 1033, 1928 Wyo. LEXIS 32 (1928); Elliott v. State, 47 Wyo. 36, 30 P.2d 791, 1931 Wyo. LEXIS 1 (1934); Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985); United States v. Marroquin, 2000 U.S. App. LEXIS 12029 (10th Cir. 2000).

Quoted in

Mainville v. State, 607 P.2d 339, 1980 Wyo. LEXIS 242 (Wyo. 1980); Warren v. State, 835 P.2d 304, 1992 Wyo. LEXIS 70 (Wyo. 1992); Anderson v. State, 2002 WY 46, 43 P.3d 108, 2002 Wyo. LEXIS 50 (Wyo. 2002); Masias v. State, 2010 WY 81, 233 P.3d 944, 2010 Wyo. LEXIS 86 (June 23, 2010).

Cited in

Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 1957 Wyo. LEXIS 6 , 65 A.L.R.2d 839 (1957); Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Richmond v. State, 554 P.2d 1217, 1976 Wyo. LEXIS 215 (Wyo. 1976); Jessen v. State, 622 P.2d 1374, 1981 Wyo. LEXIS 283 (Wyo. 1981); Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981); Smallwood v. State, 748 P.2d 1141, 1988 Wyo. LEXIS 13 (Wyo. 1988); Cambio v. State, 800 P.2d 482, 1990 Wyo. LEXIS 114 (Wyo. 1990); Eustice v. State, 871 P.2d 682, 1994 Wyo. LEXIS 42 (Wyo. 1994); Cundy v. State, 897 P.2d 1302, 1995 Wyo. LEXIS 104 (Wyo. 1995); McCulloh v. Drake, 2001 WY 56, 24 P.3d 1162, 2001 Wyo. LEXIS 65 , 110 A.L.R.5th 741 (Wyo. 2001); Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002); Spinner v. State, 2003 WY 106, 75 P.3d 1016, 2003 Wyo. LEXIS 133 (Wyo. 2003); Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003); Sami v. State, 2004 WY 23, 85 P.3d 1014, 2004 Wyo. LEXIS 29 (2004); Young v. State, 2005 WY 136, 121 P.3d 145, 2005 Wyo. LEXIS 163 (2005); Sarr v. State, 2007 WY 140, 166 P.3d 891, 2007 Wyo. LEXIS 150 (Aug. 29, 2007); Kelley v. State, 2009 WY 3, 199 P.3d 521, 2009 Wyo. LEXIS 3 (Jan. 14, 2009); Taylor v. State, 2009 WY 31, 203 P.3d 408, 2009 Wyo. LEXIS 3 0 (Mar. 6, 2009); Swain v. State, 2009 WY 142, 220 P.3d 504, 2009 Wyo. LEXIS 154 (Nov. 19, 2009); Craft v. State, 2011 WY 142, 262 P.3d 1253, 2011 Wyo. LEXIS 148 (Oct. 14, 2011); Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012); Balderson v. State, 2013 WY 107, 309 P.3d 809, 2013 Wyo. LEXIS 112 (Sept 17, 2013); Andersen v. State, 2014 WY 88, 2014 Wyo. LEXIS 100 (Jul 11, 2014); Brown v. State, 2014 WY 104, 2014 Wyo. LEXIS 121 , 2014 WL 4071977 (Aug 19, 2014).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Victim Compensation and Restitution: Legislative Alternatives,” see XX Land & Water L. Rev. 681 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For case note, “Wyoming Recidivist Statutes: Leniency for Criminals?,” see XXXIV Land & Water L. Rev. 161 (1999).

Am. Jur. 2d, ALR and C.J.S. references. —

Indecent proposal to woman as criminal assault, 12 ALR2d 971.

Malice or intent to kill where killing is by blow without weapon, 22 ALR2d 854.

Criminal responsibility for injury resulting from hunting accident, 23 ALR2d 1401.

Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, 37 ALR2d 1068.

Consent of the minor as a defense to assault with intent to commit unnatural sex act upon a minor, 65 ALR2d 748.

Attempt to commit assault as criminal offense, 79 ALR2d 597.

Fact that gun was unloaded as affecting criminal responsibility for assault, 79 ALR2d 1412.

Admissibility of extent and effect of victim's injuries, 87 ALR2d 926.

Criminal liability for excessive or improper punishment of child by parent, teacher or one in loco parentis, 89 ALR2d 396.

Intent to do physical harm as essential element of crime of assault with deadly or dangerous weapon, 92 ALR2d 635.

Admissibility of evidence of uncommunicated threats on issue of self-defense, 98 ALR2d 195.

Admissibility of evidence of victim's character or reputation for turbulence on question of self-defense, 1 ALR3d 571.

Relationship with assailant's wife as provocation depriving defendant of right of self-defense, 9 ALR3d 933.

Kicking as aggravated assault or assault with dangerous or deadly weapon, 33 ALR3d 922.

Unintentional injury to third person during attempted self-defense, 55 ALR3d 620.

Consent as defense to charge of assault and battery, 58 ALR3d 662.

Sexual nature of physical contact as aggravating offense, 63 ALR3d 225.

Constitutionality of assault and battery laws limited to protection of females only or which provide greater penalties for males than for females, 5 ALR4th 708.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 ALR4th 960.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Provocation as basis for mitigation of compensatory damages in action for assault and battery, 35 ALR4th 947.

Ineffective assistance of counsel: Battered spouse syndrome as defense to homicide or other criminal offense, 11 ALR5th 871.

Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 ALR5th 217.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 ALR5th 449.

Attempt to commit assault as criminal offense, 93 ALR5th 683.

§ 6-2-502. Aggravated assault and battery; female genital mutilation; penalty.

  1. A person is guilty of aggravated assault and battery if he engages in any of the following:
    1. Causes or attempts to cause serious bodily injury to another intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
    2. Attempts to cause, or intentionally or knowingly causes bodily injury to another with a deadly weapon;
    3. Threatens to use a drawn deadly weapon on another unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another;
    4. Intentionally, knowingly or recklessly causes bodily injury to a woman whom he knows is pregnant;
    5. Intentionally, knowingly or recklessly causes female genital mutilation to be performed on a person who has not attained the age of eighteen (18) years.
  2. Aggravated assault and battery is a felony punishable by imprisonment:
    1. For not more than ten (10) years for violations of paragraphs (a)(i) through (iv) of this section;
    2. For not less than five (5) years and not more than twenty-five (25) years for violations of paragraph (a)(v) of this section.
  3. It is not a defense in a prosecution under paragraph (a)(v) of this section that a female under eighteen (18) years of age or the parent, guardian or custodian of the female under eighteen (18) years of age consented to the female genital mutilation. Religion, ritual, custom or standard practice shall not be a defense to the offense of female genital mutilation.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 2009, ch. 195, § 1; 2020, ch. 105, § 2.

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

As to sexual battery, see § 6-2-313 .

As to weapons offenses, see chapter 8 of this title.

The 2009 amendment, inserted “or attempts to cause” in (a)(i).

Laws 2009, ch. 195, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 12, 2009.

The 2020 amendment, effective July 1, 2020, in the introductory language of (a) added “engages in any of the following” at the end; added (a)(v) and made a related change; designated (b) as the introductory language of (b) and (b)(i); in (b)(i) added “for violations of paragraphs (a)(i) through (iv) of this section” at the end and made related changes; added (b)(ii) and (c).

Construction. —

Legislature's use of the word “or” in Wyo. Stat. Ann. § 6-2-502(a)(i) indicates that any one of the three states of mind is sufficient to support a conviction. Burnett v. State, 2011 WY 169, 267 P.3d 1083, 2011 Wyo. LEXIS 175 (Wyo. 2011).

Knowingly element did not require the State to prove that defendant purposefully hit the victim’s vehicle, and the evidence was sufficient to support his conviction because it showed that despite defendant’s knowledge of the effects of inhalants, he chose to huff and drive himself to work, he admitted that he possibly inhaled more along the way, a witness saw the air duster can in his lap as he was driving, and defendant lost consciousness, hit another vehicle, and injured the other driver. Hopkins v. State, 2019 WY 77, 445 P.3d 582, 2019 Wyo. LEXIS 7 9 (Wyo. 2019); Wyo. Jet Ctr., LLC v. Jackson Hole Airport Bd., 2019 WY 6, 432 P.3d 910, 2019 Wyo. LEXIS 7 (Wyo. 2019).

Testimony of officers prejudicial. —

Even though the trial court abused its discretion when it permitted evidence of the law enforcement officers' reactions to defendant's fired shot, because their perception of threat was not an element of aggravated assault and because it was unduly prejudicial, as it was possible that the jury would sympathize with the officers, the error was not prejudicial because the other evidence against defendant was overwhelming. Hill v. State, 2016 WY 27, 371 P.3d 553, 2016 Wyo. LEXIS 30 (Wyo. 2016).

Instruction on reckless under circumstances manifesting extreme indifference to the value of human life. —

In an aggravated assault and battery trial pursuant to § 6-2-502(a)(i) the jury should be given an instruction defining “reckless under circumstances manifesting extreme indifference to the value of human life” rather than just “reckless”; that is, the instruction must include language explaining that if the jury determines the defendant acted recklessly, the jury must then determine whether that recklessness rose to the level of “extreme indifference to the value of human life.” O'Brien v. State, 2002 WY 63, 45 P.3d 225, 2002 Wyo. LEXIS 64 (Wyo. 2002).

Testimony of victim not error. —

Testimony of stabbing victim as to pain and problems he had suffered was properly allowed, because one element of crime of aggravated assault was infliction of bodily injury with a deadly weapon. Hernandez v. State, 976 P.2d 672, 1999 Wyo. LEXIS 40 (Wyo. 1999).

Victim's testimony admissible to show deadly weapon. —

Testimony of the victim and his wife, taken in their totality, was not victim-impact testimony, but was relevant and admissible because the context in which the testimony was given showed that it related to the victim's injury which was caused by a deadly weapon, and in order to convict the defendant for aggravated assault and battery, the state had to prove he used a deadly weapon. Baier v. State, 891 P.2d 754, 1995 Wyo. LEXIS 38 (Wyo. 1995).

Weapons considered deadly. —

A weapon capable of producing and likely to produce death or great bodily injury is a deadly weapon. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981).

Unloaded firearm. —

Definition of “deadly weapon” includes an unloaded firearm, and therefore assault with an unloaded gun was properly elevated to offense of aggravated assault. Dike v. State, 990 P.2d 1012, 1999 Wyo. LEXIS 176 (Wyo. 1999), cert. denied, 529 U.S. 1078, 120 S. Ct. 1697, 146 L. Ed. 2d 502, 2000 U.S. LEXIS 2756 (U.S. 2000).

Mere presence of weapon, without threat, insufficient. —

Subsection (a)(iii) requires proof of an actual threat of physical injury during the act of employing a deadly weapon. It was error for the trial judge to insinuate that factual circumstances would govern in determining if the (mere) presence of a weapon in hand could constitute a threat to use. It cannot. Johnston v. State, 747 P.2d 1132, 1987 Wyo. LEXIS 571 (Wyo. 1987).

Proof of the mere presence of a weapon is insufficient to satisfy the “threatens to use” element of aggravated assault and battery; instead, that element requires proof of an actual threat of physical injury while employing the deadly weapon. Gunderson v. State, 925 P.2d 1300, 1996 Wyo. LEXIS 149 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 157 (Wyo. Oct. 29, 1996).

Pointing loaded pistol at another constitutes aggravated assault and battery, even though it fails to fire when the trigger is pulled. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976).

As does holding knife in threatening manner. —

When a knife is held in a threatening manner only inches from a person's body, an aggravated assault and battery with a deadly weapon has occurred. Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981).

Meaning of “threaten.” —

Trial court did not err in refusing defendant's proposed jury instruction, since definition of phrase “threatens to use” found in subdivision (a)(iii) of this section was not different from its ordinary meaning, and there was no meaningful distinction between “threaten” and “actually threaten.” Streitmatter v. State, 981 P.2d 921, 1999 Wyo. LEXIS 94 (Wyo. 1999).

Unconditional threat not required. —

The court did not err by denying the defendant's motion to dismiss counts of aggravated assault and battery because his threats were allegedly conditioned upon his wife's attempt to leave their home with the children; this section does not require an unconditional threat. Thom v. State, 792 P.2d 192, 1990 Wyo. LEXIS 53 (Wyo. 1990).

Infliction of actual injury not required. —

In order to commit an aggravated assault and battery with a deadly weapon, actual injury need not be inflicted. Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981).

Assaulting a household member. —

There was sufficient evidence to find defendant guilty on both alternatives of: (1) unlawfully touching a household member in a rude, insolent or angry manner and (2) intentionally, knowingly or recklessly causing bodily injury to a household member where the victim was awakened from sleeping on the couch at the residence where she and defendant were temporarily living by defendant punching her in the face. Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (Wyo. 2004).

No variance in alleging serious bodily injury. —

In a prosecution for aggravated assault and battery after defendant bit off a piece of the victim's ear, and the charging documents had consistently stated that defendant was alleged to have caused serious bodily injury to the victim and did not indicate the prosecution was limiting its theory of the case to a showing of severe disfigurement, where a physician testified to the victim's hearing loss, it was not a case where the evidence presented at trial was different from the crime charged, and where defendant had failed to file a motion for a bill of particulars, the trial court properly denied her motion for a continuance so that she could consult with an audiologist. Young v. State, 2005 WY 136, 121 P.3d 145, 2005 Wyo. LEXIS 163 (Wyo. 2005).

Seriousness of bodily harm question for jury. —

What constitutes serious bodily harm under subsection (a) is ordinarily a question for the jury. State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1952 Wyo. LEXIS 5 (Wyo. 1952).

But it would have been sheer speculation to conclude that defendant could have presented a competent witness at trial to testify that child would have suffered less than serious bodily injury had he been wearing a protective helmet, therefore, defendant cannot claim she was prejudiced by the court's ruling or establish that it amounted to an abuse of discretion. Hermreck v. State, 956 P.2d 335, 1998 Wyo. LEXIS 41 (Wyo. 1998).

As is question whether weapon dangerous or deadly. —

Whether an automatic pistol in which fully loaded cartridge clip may not have been inserted into a locked position is a dangerous or deadly weapon for prosecution for aggravated assault and battery while armed with a dangerous or deadly weapon is a jury question. Shafsky v. State, 526 P.2d 60, 1974 Wyo. LEXIS 229 (Wyo. 1974).

It is for the jury to decide whether or not a weapon is dangerous or deadly upon the evidence as it appears in the record. Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976).

Jury instructions, when read together, were adequate and appropriate for the purpose of informing the jury that the deadly weapon the state alleged to have been used by the defendant was his shoes and, even though shoes might not generally be considered a deadly weapon, the jury could find they could be so characterized under the circumstances of the case. See Warren v. State, 835 P.2d 304, 1992 Wyo. LEXIS 70 (Wyo. 1992).

Evidence sufficient on threat.—

Evidence was sufficient to sustain defendant’s aggravated assault and battery conviction where several officers testified that he fired shots at three officers, and the shots ricocheted past the locations of other officers. Pickering v. State, 2020 WY 66, 464 P.3d 236, 2020 Wyo. LEXIS 74 (Wyo. 2020).

Not error to fail to instruct jury that firearm operability essential element of offense. —

Absent the introduction of some evidence that the firearm in question was inoperable, it is not error to fail to instruct the jury that operability is an essential element of the offense of being a felon in possession of a firearm. Benson v. State, 640 P.2d 83, 1982 Wyo. LEXIS 296 (Wyo.), cert. denied, 456 U.S. 1006, 102 S. Ct. 2297, 73 L. Ed. 2d 1301, 1982 U.S. LEXIS 2339 (U.S. 1982).

Sadomasochistic materials admissible. —

In a prosecution for aggravated assault with a deadly weapon, involving the defendant cutting the penis of his three-year-old son, the court did not err in admitting evidence of sadomasochistic materials to show “motive and/or identification.” Marker v. State, 748 P.2d 295, 1988 Wyo. LEXIS 2 (Wyo. 1988).

Consecutive sentences for aggravated assault and attempted second degree murder.—

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because there was no double jeopardy violation in that aggravated assault and battery was not the same offense as attempted second-degree murder pursuant to the same-elements test. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

Constitutionality.—

Defendant was properly sentenced consecutively for the crimes for which defendant was convicted because defendant failed to demonstrate that the statutes for aggravated assault and battery and for attempted second-degree murder were unconstitutionally vague, either on their face or as applied to the facts of defendant's case. Jones v. State, 2016 WY 110, 384 P.3d 260, 2016 Wyo. LEXIS 123 (Wyo. 2016).

Aggravated assault with a dangerous or deadly weapon is a general intent crime. Simmons v. State, 674 P.2d 1294, 1984 Wyo. LEXIS 248 (Wyo. 1984); Cox v. State, 829 P.2d 1183, 1992 Wyo. LEXIS 54 (Wyo. 1992).

Subdivision (a)(iii) of this section is not unconstitutionally vague; aggravated assault is a general intent crime, which requires only that intent which can be inferred from commission of the proscribed act. Streitmatter v. State, 981 P.2d 921, 1999 Wyo. LEXIS 94 (Wyo. 1999).

Requisite intent. —

As a general intent crime, aggravated assault requires only that intent which may be inferred from doing the act which constitutes the offense charged. Cox v. State, 829 P.2d 1183, 1992 Wyo. LEXIS 54 (Wyo. 1992).

Intent may be inferred from conduct of defendant and from circumstantial evidence. Fuller v. State, 568 P.2d 900, 1977 Wyo. LEXIS 310 (Wyo. 1977); Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981); Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

The specifics of a defendant's conduct and other circumstantial evidence may permit the jury to infer that he acted with the specific intent to cause bodily injury. Garcia v. State, 777 P.2d 1091, 1989 Wyo. LEXIS 177 (Wyo. 1989).

Intent to injure a driver may be inferred from firing a shotgun at a moving vehicle. Simmons v. State, 674 P.2d 1294, 1984 Wyo. LEXIS 248 (Wyo. 1984).

Evidence sufficient on threat. —

There was sufficient evidence to sustain a conviction under this section for aggravated assault and battery because, even though defendant did not point a knife directly at a victim, a factfinder could have reasonably concluded that he made an actual threat to use the knife on the victim where he was slashing, puncturing, and prying at a bedroom door. Levengood v. State, 2014 WY 138, 336 P.3d 1201, 2014 Wyo. LEXIS 163 (Wyo. 2014).

Evidence was sufficient to prove that defendant threatened to use the weapon he was carrying on law enforcement officers where the officers had been in pursuit of defendant, he defied their orders, and he was carrying a deadly weapon and firing it as he ran away from the officers. Hill v. State, 2016 WY 27, 371 P.3d 553, 2016 Wyo. LEXIS 30 (Wyo. 2016).

Knowingly driving automobile at another infers intent. —

One who knowingly drives an automobile directly at another person can reasonably be found to have intended to do bodily injury to that person. Walter v. State, 811 P.2d 716, 1991 Wyo. LEXIS 89 (Wyo. 1991).

Evidence sufficient on issue of intent. —

The evidence, viewed in a light most favorable to the state, showed: defendant was a 43-year old, 6'3” man, weighing 245 pounds, towering over his victim, a 19 year-old, 5'11” boy, weighing 155 pounds; “working,” i.e., opening and closing, a butterfly knife as he approached within inches of the victim's throat; nicking the victim; only to be interrupted in the further employment of the knife by the advent of the victim's mother onto the scene. Under these circumstances, not only could the jury properly have inferred a threatening employment of the drawn knife as an expression of an intention to inflict pain and injury, meeting the requirements of subsection (a)(iii), but also as an accomplishment of that expression as manifested by the nicked and bloodied throat. Johnston v. State, 747 P.2d 1132, 1987 Wyo. LEXIS 571 (Wyo. 1987).

Defendant was convicted of aggravated assault in violation of this section based on evidence that he got a gun from his car, pointed it at the victims, and fired twice. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011).

Evidence sufficient on issue of intent so as to impose a four-level enhancement. —

District court properly understood the intent element of aggravated assault and properly applied the correct definition of “aggravated assault” under Wyo. Stat. Ann. § 6-2-502(a)(iii) when it imposed a four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) in sentencing defendant to 120 months incarceration after he pled guilty to a charge of being a felon in possession of a firearm in violation of 18 U.S.C.S. §§ 922(g)(1) and 924(a)(2); a preponderance of the evidence supported the district court's conclusion that defendant's shooting of his girlfriend was intentional and the product of domestic violence rather than accidental as claimed by defendant. United States v. Mozee, 405 F.3d 1082, 2005 U.S. App. LEXIS 7188 (10th Cir. Wyo.), cert. denied, 546 U.S. 905, 126 S. Ct. 253, 163 L. Ed. 2d 230, 2005 U.S. LEXIS 6629 (U.S. 2005).

No requirement of specific intent for conviction under subsection (a)(iv). —

There is no requirement that an assailant purposely kill an unborn child for a conviction under subsection (a)(iv), nor is any other requirement of specific intent disclosed; all that is required is the causing of bodily injury to a woman whom the assailant knows to be pregnant. Goodman v. State, 573 P.2d 400, 1977 Wyo. LEXIS 322 (Wyo. 1977).

Aggravated assault with deadly weapon not always includable offense in involuntary manslaughter. —

The elements of aggravated assault with a deadly weapon are not always necessarily includable in the crime of involuntary manslaughter perpetrated during the commission of an unlawful act. Stamper v. State, 662 P.2d 82, 1983 Wyo. LEXIS 301 (Wyo. 1983).

Self-defense is justification or excuse for otherwise unlawful aggravated assault and battery. Mewes v. State, 517 P.2d 487, 1973 Wyo. LEXIS 194 (Wyo. 1973).

Instruction on right to arm oneself. —

It was within the court's discretion whether or not to specifically instruct the jury of the accused's right to arm himself, where no special circumstances as such required the court to give such an instruction, and the court properly instructed the jury on self-defense without any limitation as to provoking the difficulty. Baier v. State, 891 P.2d 754, 1995 Wyo. LEXIS 38 (Wyo. 1995).

Defense of others as justification for infliction of harm on another is applicable not only to an actual assailant, but also to those acting in concert with the assailant, to the extent the defensive force used is necessary and reasonable. Duckett v. State, 966 P.2d 941, 1998 Wyo. LEXIS 130 (Wyo. 1998).

Burden is on defendant charged with aggravated assault to establish a prima facie case on every element of his alleged legal justification; once defendant does so, court must instruct jury on state's burden to negate this defense beyond a reasonable doubt. Duckett v. State, 966 P.2d 941, 1998 Wyo. LEXIS 130 (Wyo. 1998).

Reversal of conviction for speedy trial violation. —

Defendant's conviction for two counts of aggravated assault with a deadly weapon was reversed on appeal due to a speedy trial violation. The 720-day delay in bringing him was due largely to the district court's erroneous refusal to accept defendant's nolo contendere plea because he was unwilling to concede that he committed the crime without provocation; this is contrary to Wyoming law. Berry v. State, 2004 WY 81, 93 P.3d 222, 2004 Wyo. LEXIS 106 (Wyo. 2004).

Evidence sufficient to show aggravated assault and battery. —

See State v. Schloredt, 57 Wyo. 1, 111 P.2d 128, 1941 Wyo. LEXIS 14 (Wyo. 1941); State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1952 Wyo. LEXIS 5 (Wyo. 1952); Shafsky v. State, 526 P.2d 60, 1974 Wyo. LEXIS 229 (Wyo. 1974); Hampton v. State, 558 P.2d 504, 1977 Wyo. LEXIS 221 (Wyo. 1977); Trujillo v. State, 750 P.2d 1334, 1988 Wyo. LEXIS 57 (Wyo. 1988).

The following evidence was sufficient to sustain a conviction of two counts of aggravated assault and battery: (1) the victim was stabbed in the back; (2) a witness saw the defendant hit the victim in the back with a stab-like punch; (3) the victim felt pain and, when he turned around, saw a blade in the defendant's hand; (4) the defendant then slashed the victim with a knife; (5) no other nearby party had a knife; and (6) after the defendant was felled with a pool stick, he procured a machete, ran back into the bar where the altercation started and threatened to lop off heads. Abeyta v. State, 705 P.2d 330, 1985 Wyo. LEXIS 539 (Wyo. 1985).

The jury reasonably inferred that a criminal defendant's actions with a gun constituted an actual threat to physically injure the victim where the victim testified that the defendant pointed the gun at her and stated that he was going to blow her head off. Gunderson v. State, 925 P.2d 1300, 1996 Wyo. LEXIS 149 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 157 (Wyo. Oct. 29, 1996).

Evidence was sufficient to establish that the defendant caused bodily injury to the victim by kicking him with steel-toed boots where (1) the state presented several photographs that graphically depicted the victim's injuries; (2) a physician testified that those injuries “corresponded” with a report he received that the victim had been struck and kicked multiple times about the face and head; (3) witnesses testified that the defendant kicked the victim in the head and chest; (4) the defendant initially told police that he had kicked the victim once in the head and once in the chest; and (5) blood and skin were found on the toes of the defendant's boots, and some of the blood matched the victim's blood type. Lucero v. State, 14 P.3d 920, 2000 Wyo. LEXIS 233 (Wyo. 2000).

Where the defendant went to the front door of the complainant's home and told her to let him in the home and where, to reinforce that demand, he held up a handgun, a jury could rationally conclude that defendant made an actual threat to use a drawn deadly weapon on the complainant, and there was sufficient evidence to support defendant's conviction under Wyo. Stat. Ann. § 6-2-502(a)(iii). Hart v. State, 2003 WY 12, 62 P.3d 566, 2003 Wyo. LEXIS 13 (Wyo. 2003).

Evidence was sufficient to convict defendant of assault and battery where the jury could have determined that it was not reasonably necessary for defendant to defend herself by arming herself, pointing the weapon at the victim and cocking the hammer; although there was conflicting evidence as to whether defendant threatened to shoot the victim, defendant's actions met the definition of “threatens to use” under Wyo. Stat. Ann. § 6-2-502 . Miller v. State, 2003 WY 55, 67 P.3d 1191, 2003 Wyo. LEXIS 66 (Wyo. 2003).

Jury Instruction Proper.— Sufficient evidence supported defendant's conviction for aggravated assault and battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(ii) when (1) defendant admitted that he pulled out a knife and that someone in a white shirt might have come in contact with the knife; (2) defendant's knife was the only knife found at the scene; (3) the victim wore a white shirt and was in fact stabbed; and (4) the wound was consistent with a stabbing rather than an accidental cutting. Mendoza v. State, 2007 WY 26, 151 P.3d 1112, 2007 Wyo. LEXIS 29 (Wyo. 2007).

Defendant minor, who took a loaded firearm to a park, was behind a cluster of trees, and when a group of teenagers appeared, defendant emerged from the trees and began firing in their direction, striking two of them. Taking these facts in the light most favorable to the State, there was sufficient evidence that a reasonable jury could infer that defendant acted with the intent to cause bodily injury to the members of the group of teenagers. Sam v. State, 2017 WY 98, 401 P.3d 834, 2017 Wyo. LEXIS 99 (Wyo. 2017), cert. denied, 138 S. Ct. 1988, 201 L. Ed. 2d 248, 2018 U.S. LEXIS 3049 (U.S. 2018).

Evidence was sufficient to convict defendant of aggravated assault and battery as it showed that defendant threatened to use a drawn deadly weapon against the victims because the jury heard approximately 32 minutes of defendant calling the victims names while taunting and threatening to shoot or kill them when the State played the victim’s cell phone recording at trial; and the victims saw defendant outside, discharging his firearm. Birch v. State, 2018 WY 73, 421 P.3d 528, 2018 Wyo. LEXIS 77 (Wyo. 2018).

Evidence was sufficient to convict defendant of conspiracy to commit aggravated burglary, aggravated robbery, and aggravated assault and battery as the State presented evidence that defendant and the accomplice agreed to use the gun during the incident at the golf course because the golf course’s manager testified that after he hit defendant in the head with the flashlight, defendant turned and ran away; the manager then heard someone saying to shoot him; seconds later, the manager heard a gunshot and saw a muzzle flash; and it was reasonable for the jury to infer that the accomplice would have only said to shoot the manager if he knew defendant had a gun in his possession. Jordin v. State, 2018 WY 64, 419 P.3d 527, 2018 Wyo. LEXIS 68 (Wyo. 2018).

Court upheld defendant's conviction for assault and battery where (1) an officer's testimony concerning defendant's refusal to talk to him did not reflect an intent to cast guilt upon defendant in violation of her constitutional right to remain silent; (2) the district court did not err in admitting evidence of uncharged misconduct under Wyo. R. Evid. 404(b) because the challenged evidence served as impeachment under Wyo. R. Evid. 607; (3) an officer's rebuttal testimony was permissible under Wyo. R. Evid. 613(b) to introduce a prior inconsistent statement; (4) in rebuttal, the State was entitled to counter defendant's characterizations by offering opinion evidence, under Wyo. R. Evid. 405(a), of character contradicting the traits that defendant had described in the victim and denied in herself; and (5) and the evidence was sufficient to support the conviction. Cazier v. State, 2006 WY 153, 148 P.3d 23, 2006 Wyo. LEXIS 168 (Wyo. 2006).

Evidence insufficient. —

Where assault charges arose from a taped interview with the victim who died before trial, because the victim's statement regarding her spinal injury and MRI results was not admissible under Wyo. R. Evid. 804(b)(6), proof of serious bodily injury was wanting as to count that defendant beat the victim with a stick across her back, causing multiple lacerations and bruising, and there was insufficient evidence that victim suffered a serious bodily injury despite victim's allegations that defendant beat the victim with a pistol belt full of 41-caliber shells causing multiple lacerations and bruising. Sarr v. State, 2003 WY 42, 65 P.3d 711, 2003 Wyo. LEXIS 52 (Wyo. 2003), aff'd, 2004 WY 20, 85 P.3d 439, 2004 Wyo. LEXIS 26 (Wyo. 2004).

Evidence sufficient to show aggravated assault and pregnancy. —

In a prosecution for aggravated assault on a pregnant woman, evidence was sufficient to permit the jury to draw the conclusion that the victim in the case was pregnant at the time of the assault based on her testimony, despite the fact that no medical evidence of her pregnancy was provided, and to conclude that the defendant assaulted the victim, based on the testimony of witnesses, even though the victim did not specifically testify that the defendant injured her. Glenn v. State, 2003 WY 4, 61 P.3d 389, 2003 Wyo. LEXIS 5 (Wyo. 2003).

Testimony of officer not prejudicial. —

There was no material prejudice and reversal was not warranted, where failure of officer to include the word “allegedly” in one sentence did not alert the jury to the point that it relied on this statement in reaching its verdict. Dudley v. State, 951 P.2d 1176, 1998 Wyo. LEXIS 6 (Wyo. 1998).

Admission of irrelevant evidence was harmless. —

Even though a physician's testimony concerning his treatment of a witness after the fight should not have been admitted because it was not relevant under Wyo. R. Evid. 401, as defendant was not charged with assaulting the witness, and the evidence was not admissible to rehabilitate the witness's credibility, the error was harmless because the witness made it clear that defendant did not attack him or cause his injuries, and therefore testimony about the extent of his injuries could not reflect badly on defendant or unfairly turn the jury against him. Evenson v. State, 2008 WY 24, 177 P.3d 819, 2008 Wyo. LEXIS 25 (Wyo. 2008).

Instruction on extreme indifference to the value of human life. —

Where in answering jury's question concerning the meaning of the phrase “extreme indifference to the value of human life” the judge responded that the State was not required to prove the defendant had an intent to kill in order to convict the defendant of aggravated assault and battery, and that the “value of human life” phrase was broad enough to include quality of life in addition to whether someone lives or dies, the given instruction, by confirming that intent to kill need not be proved and that the jury could consider the effect on “quality of life,” sufficiently indicated that the jury could consider the nature of the act itself and the severity of any resulting injury, and defendant's conviction for aggravated assault and battery was therefore affirmed. Williams v. State, 2002 WY 136, 54 P.3d 248, 2002 Wyo. LEXIS 147 (Wyo. 2002).

Instruction on “deadly weapon.” —

In a prosecution for aggravated assault and battery, it was not error for the court to instruct the jury as to the definition of “deadly weapon,” without instructing the jury as to the definition of “serious bodily injury,” which term is part of the definition of “deadly weapon.” Wilson v. State, 14 P.3d 912, 2000 Wyo. LEXIS 234 (Wyo. 2000).

Elements of former assault with deadly weapon. —

See Brown v. State, 590 P.2d 1312, 1979 Wyo. LEXIS 364 (Wyo. 1979); Brightwell v. State, 631 P.2d 1048, 1981 Wyo. LEXIS 362 (Wyo. 1981); Edge v. State, 647 P.2d 557, 1982 Wyo. LEXIS 350 (Wyo. 1982), See also, Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976); Fuller v. State, 568 P.2d 900, 1977 Wyo. LEXIS 310 (Wyo. 1977).

Substantial evidence supporting conviction of mayhem (former § 6-4-601 ). —

See Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984).

Effectiveness of counsel upheld. —

The failure to object to the Wyoming Evidence Rule 404(b) evidence may well have been a trial tactic where the record supported possible reasons why appellant's defense may have been enhanced by the admission of the prior bad acts, including the opportunity to impeach the victim since appellant denied the “prior bad acts” occurred. Dudley v. State, 951 P.2d 1176, 1998 Wyo. LEXIS 6 (Wyo. 1998).

Prosecution for both homicide of fetus and assault on pregnant woman not double jeopardy. —

A defendant may be prosecuted both for the act of killing an unborn child during an assault and battery on a pregnant woman and for the aggravated assault and battery on the pregnant woman (or her killing) without violating the rule against double jeopardy. Goodman v. State, 601 P.2d 178, 1979 Wyo. LEXIS 473 (Wyo. 1979).

Prosecution not barred by double jeopardy. —

Prosecution of defendant for aggravated assault and battery was not barred by the double jeopardy provision of the Wyoming and U.S. Constitutions even though defendant had already been convicted of misdemeanor battery in violation of Wyo. Stat. Ann. § 6-2-501(b) based on the same attack because although evidence of the greater offense existed at the time of the original conviction, the state was unable to discover such evidence despite the exercise of due diligence. Daniel v. State, 2008 WY 87, 189 P.3d 859, 2008 Wyo. LEXIS 90 (Wyo. 2008).

Defendant's convictions for aggravated assault and battery with a deadly weapon and attempted second degree murder—which were both premised upon defendant driving a vehicle through a yard and almost striking the victim—did not violate the prohibition against double jeopardy in that malice, an element of attempted second degree murder, did not necessarily include proof of the use of a deadly weapon, an element of aggravated assault and battery with a deadly weapon. Webb v. State, 2017 WY 108, 401 P.3d 914, 2017 Wyo. LEXIS 114 (Wyo. 2017).

Prosecutorial misconduct.—

In a case in which defendant was convicted of aggravated assault and battery, the prosecutor's statement in closing argument that the presumption of innocence “no longer exists” and his attempt to define “reasonable doubt” constituted prosecutorial misconduct. However, because defendant was not prejudiced by the prosecutor's improper statements, his cumulative error claim failed. Watts v. State, 2016 WY 40, 370 P.3d 104, 2016 Wyo. LEXIS 42 (Wyo. 2016).

Prosecution for aggravated assault, DUI injury, constitutional. —

The prosecution and conviction of the defendant for aggravated assault and battery after he pled guilty to causing serious bodily injury to another as a result of driving while under the influence of intoxicating liquor did not violate the constitutional prohibition against double jeopardy, since each offense required proof of an element not necessary for proof of the other. Nowack v. State, 774 P.2d 561, 1989 Wyo. LEXIS 120 (Wyo. 1989).

Consistency of verdict. —

Because the jury found that defendant both attempted to cause and intentionally caused bodily injury to the victim with a deadly weapon, its special findings were consistent with the verdict against defendant for aggravated assault and battery. Secrest v. State, 2013 WY 102, 310 P.3d 882, 2013 Wyo. LEXIS 108 (Wyo. 2013).

Sentencing.—

In sentencing for being felon in possession of a firearm, a Wyoming conviction for threatening to use a drawn deadly weapon qualified as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.1 because the Wyoming statute requires that a weapon be “drawn,” meaning in a position for use when the threat was made. United States v. Devries, 708 Fed. Appx. 956, 2017 U.S. App. LEXIS 18335 (10th Cir. 2017).

Trial judge fully understood lawful sentencing alternatives, including probation. —

See Cook v. State, 710 P.2d 824, 1985 Wyo. LEXIS 616 (Wyo. 1985).

Refusal to allow withdrawal of nolo contendere plea not an issue of discretion. —

Defendant was not allowed to withdraw his nolo contendere plea to aggravated assault because (1) he originally pled not guilty; (2) a plea withdrawal would prejudice the government, as the crime occurred almost a year and a half earlier; (3) defendant delayed moving to withdraw the plea for nearly two months after entering it; (4) the delay caused by withdrawing the plea would substantially inconvenience the court; (5) nothing showed defense counsel provided ineffective assistance; (6) the plea was knowing and voluntary; and (7) withdrawing the plea would squander judicial resources, as well as the prosecutor's and defense attorney's time. Van Haele v. State, 2004 WY 59, 90 P.3d 708, 2004 Wyo. LEXIS 72 (Wyo. 2004).

Court, in sentencing defendant to state hospital, acts beyond jurisdiction. —

The court acted beyond its jurisdiction in including a mandate that the last three months of the defendant's sentence for mayhem be served at the state hospital. Polston v. State, 685 P.2d 1, 1984 Wyo. LEXIS 297 (Wyo. 1984) (decided under prior law).

Consecutive sentences for assaulting two victims constitutional. —

Imposition of consecutive sentences upon conviction of two counts of aggravated assault and battery involving two victims did not violate the double jeopardy clause, where the defendant committed two separate acts against two different individuals, each of which violated a single criminal statute. Tuggle v. State, 733 P.2d 610, 1987 Wyo. LEXIS 417 (Wyo. 1987).

Lesser included offenses. —

The offense of reckless endangering as defined in § 6-2-504 is not a lesser included offense of aggravated assault and battery because reckless endangering encompasses an additional element not included in the elements of aggravated assault and battery. Sindelar v. State, 932 P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997).

Misdemeanor of reckless endangerment, Wyo. Stat. Ann. § 6-2-504 , is not a lesser-included offense of aggravated assault and battery; the offense of reckless endangerment encompasses an additional element, that the act was done recklessly, which is not included in the elements of aggravated assault and battery. Miller v. State, 2003 WY 55, 67 P.3d 1191, 2003 Wyo. LEXIS 66 (Wyo. 2003).

Jury instruction proper. —

Where the evidence supported a finding that defendant intentionally and knowingly inflicted serious injury upon the victim, then it no less established that he acted recklessly under circumstances manifesting extreme indifference to the value of human life; therefore, it was not plain error for the district court to instruct the jury that it could base its verdict on any and all proven theories of guilt. Jealous v. State, 2011 WY 171, 267 P.3d 1101, 2011 Wyo. LEXIS 177 (Wyo. 2011).

Defendant's convictions for two counts of aggravated assault and battery, in violation of Wyo. Stat. Ann. § 6-2-502(a)(i), were proper because the jury was adequately instructed on the element of “recklessly under circumstances manifesting extreme indifference to the value of human life.” Burnett v. State, 2011 WY 169, 267 P.3d 1083, 2011 Wyo. LEXIS 175 (Wyo. 2011).

Although the trial court erred in deriving the jury instruction defining attempt from Wyo. Stat. Ann. § 6-1-301 rather than Wyo. Stat. Ann. § 6-2-502(a)(i), it did not commit plain error where the instruction was not inconsistent with the ordinary meaning of attempt, and the instructions fairly and adequately covered the relevant issues and correctly stated the law. Cecil v. State, 2015 WY 158, 364 P.3d 1086, 2015 Wyo. LEXIS 174 (Wyo. 2015).

District court erred in instructing the jury that assault was a lesser included offense of aggravated assault and battery where assault did not require a threat to use a drawn deadly weapon, and aggravated assault and battery did not require an attempt to cause bodily injury to another. Cecil v. State, 2015 WY 158, 364 P.3d 1086, 2015 Wyo. LEXIS 174 (Wyo. 2015).

In a case in which defendant was charged with aggravated assault, defendant failed to establish that either plain error or an abuse of discretion occurred when the district court did not give an instruction defining attempt. Sam v. State, 2017 WY 98, 401 P.3d 834, 2017 Wyo. LEXIS 99 (Wyo. 2017), cert. denied, 138 S. Ct. 1988, 201 L. Ed. 2d 248, 2018 U.S. LEXIS 3049 (U.S. 2018).

Instruction on self-defense. —

Self-defense instruction regarding the aggravated assault charge could have been read by the jury to require that defendant was actually being physically assaulted before he could defend himself, which the statute did not require. Drennen v. State, 2013 WY 118, 311 P.3d 116, 2013 Wyo. LEXIS 123 (Wyo. 2013).

Jury should have been more clearly informed that it was sufficient for a claim of self-defense to the aggravated assault charge that defendant reasonably perceived danger, even if such danger was not real. Drennen v. State, 2013 WY 118, 311 P.3d 116, 2013 Wyo. LEXIS 123 (Wyo. 2013).

Jury instruction proper. —

Trial court did not err in denying defendant's motion for a new trial because under the plain language of Wyo. Stat. Ann. § 6-2-502(a)(iii), the jury was required to determine whether defendant's threat to use a drawn deadly weapon was reasonably necessary; the jury was properly instructed and the instructions were consistent with the law propounded by defendant. Mendoza v. State, 2013 WY 55, 300 P.3d 487, 2013 Wyo. LEXIS 59 (Wyo. 2013).

Instruction on lesser-included offenses. —

Defendant charged with aggravated assault and battery was not entitled to jury instruction on lesser-included offenses of simple assault and of battery, since a rational jury could conclude only that defendant was using his vehicle in a manner reasonably capable of producing death or serious bodily injury. Carey v. State, 984 P.2d 1098, 1999 Wyo. LEXIS 137 (Wyo. 1999).

Instruction on aggravated assault and battery as lesser-included offense of attempted second-degree murder. —

In a prosecution for attempted second-degree murder, defendant was not entitled to an instruction on aggravated assault and battery, as the latter does not include any of the elements of the former. Bilderback v. State, 13 P.3d 249, 2000 Wyo. LEXIS 218 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 221 (Wyo. Dec. 5, 2000), modified, 2000 Wyo. LEXIS 231 (Wyo. Dec. 15, 2000), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Aggravated burglary (§ 6-3-301 ) and aggravated assault and battery statutes do not proscribe same offense, and multiple punishments therefor do not violate the constitutional double jeopardy prohibition. Lauthern v. State, 769 P.2d 350, 1989 Wyo. LEXIS 37 (Wyo. 1989).

Conviction for burglary and acquittal for aggravated assault not inconsistent. —

Verdict was not inconsistent, where the jury found the defendant guilty of burglary under Wyo. Stat. Ann. § 6-3-301 , acquitted him of aggravated assault under Wyo. Stat. Ann. § 6-2-502 , but found him guilty of the lesser included offense of battery under Wyo. Stat. Ann. § 6-2-501 ; in order to find the defendant guilty of burglary, the jury only had to determine that the defendant entered the residence with the intent to commit the felony of aggravated assault. Moore v. State, 2003 WY 153, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).

Separate sentences for aggravated assault and aggravated robbery. —

Aggravated assault and aggravated robbery each require an element not necessary to the other, and one may commit two separate and distinct crimes by threateningly pointing a pistol at someone and exhibiting that same pistol to facilitate a robbery; separate sentences for appellant's separate crimes were therefore permissible. Rouse v. State, 966 P.2d 967, 1998 Wyo. LEXIS 150 (Wyo. 1998), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Sentencing error was harmless. —

Although defendant was sentenced under an incorrect version of Wyo. Stat. Ann. § 6-2-502(f)(ii) on an assault and battery charge, and not the version of the statute in effect at the time defendant committed the crime, the error was harmless under Wyo. R. Crim. P. 52(a) where defendant had already served more time than either version of the statute allowed. Sarr v. State, 2007 WY 140, 166 P.3d 891, 2007 Wyo. LEXIS 150 (Wyo. 2007).

Kidnapping and sexual assault did not merge. —

The force used to accomplish the kidnapping was sufficient justification to enhance the penalty for aggravated kidnapping where it was separate and distinct from the force and confinement the defendant imposed upon the victim, and where there were repeated sexual assaults in his vehicle, this was not an instance that would demand merger of the sexual assaults with the independent crime of aggravated kidnapping. McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Dual sentences for aggravated assault and escape. —

The imposition of dual and consecutive sentences for aggravated assault and attempted escape (§§ 6-5-206 and 6-1-304 ), for a single violent escape attempt, which could have resulted in a single sentence under § 6-5-207 (escape by violence), did not violate double jeopardy constitutional provisions. Under the applicable statutory elements test, clearly different offenses were demonstrated, while the prosecutor had the requisite discretion to elect the charge or charges which could be brought based on the specific facts of the case. DeSpain v. State, 865 P.2d 584, 1993 Wyo. LEXIS 185 (Wyo. 1993).

Crimes not required to be merged for sentencing. —

Where appellant pointed pistol at victims and exhibited shotgun in course of kidnapping victims and appropriating their truck and trailer rig, crimes of aggravated assault and battery, aggravated robbery, and kidnapping were not required to be merged for sentencing purposes. Rouse v. State, 966 P.2d 967, 1998 Wyo. LEXIS 150 (Wyo. 1998), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

The legislature intended separate punishments for the crime of aggravated kidnapping and for the crime of sexual assault in the first degree because, once the sexual assault is inflicted, the victim has been harmed and cannot be released “substantially unharmed.” McDermott v. State, 870 P.2d 339, 1994 Wyo. LEXIS 26 (Wyo. 1994), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

Evidence sufficient to show aggravated assault and battery. —

Evidence which included resisting arrest, having already injured one officer, being involved in a high speed car chase, giving false information, refusing to obey a second officer's instructions, trying to move his hand to retrieve a loaded and ready to fire handgun while involved in an altercation with the second officer and even after being told to stop, and later admitting that he was trying to kill the officer, was sufficient for a reasonable jury to find that defendant engaged in substantial conduct strongly corroborative of his intention to murder the second officer. Cohen v. State, 2008 WY 78, 191 P.3d 956, 2008 Wyo. LEXIS 83 (Wyo. 2008).

Evidence of aggravated assault.

Defendant was convicted of aggravated assault in violation of this section based on evidence that he got a gun from his car, pointed it at the victims, and fired twice. Ken v. State, 2011 WY 167, 267 P.3d 567, 2011 Wyo. LEXIS 173 (Wyo. 2011).

Right of self-defense not available to aggressor. —

In defendant's trial on charges of aggravated assault and battery and attempted second-degree murder following an altercation with a romantic rival, the trial court did not err in instructing the jury that the right of self-defense was not available to one who was the aggressor or provoked the conflict because the evidence supported the giving of this instruction where the victim testified that defendant had been the aggressor. Although defendant presented a contradictory version of the incident, the district court was not charged with resolving that conflict, which was within the jury's province. Causey v. State, 2009 WY 111, 215 P.3d 287, 2009 Wyo. LEXIS 119 (Wyo. 2009), reh'g denied, 2009 Wyo. LEXIS 134 (Wyo. Sept. 29, 2009).

Condition of probation. —

Where a defendant entered Alford guilty pleas to violating Wyo. Stat. Ann. §§ 6-2-502 , 6-4-103 , 6-1-303 , and 6-2-302 , the district court did not abuse its discretion by imposing as a condition of his probation following his term of incarceration that he have no contact with his minor children. A no contact condition was reasonably related to the violent sexual crimes for which he was convicted and for which he was charged, and the provision did not impermissibly encroach on his fundamental right as a parent to raise his children. Perkins v. State, 2014 WY 11, 317 P.3d 584, 2014 Wyo. LEXIS 12 (Wyo. 2014).

Applied in

Elliott v. State, 47 Wyo. 36, 30 P.2d 791, 1931 Wyo. LEXIS 1 (1934); Porter v. State, 440 P.2d 249, 1968 Wyo. LEXIS 168 (Wyo. 1968); Gabrielson v. State, 510 P.2d 534, 1973 Wyo. LEXIS 161 (Wyo. 1973); Duran v. State, 546 P.2d 434, 1976 Wyo. LEXIS 174 (Wyo. 1976); Hampton v. State, 558 P.2d 504, 1977 Wyo. LEXIS 221 (Wyo. 1977); Dodge v. State, 562 P.2d 303, 1977 Wyo. LEXIS 243 (Wyo. 1977); Hurst v. State, 563 P.2d 232, 1977 Wyo. LEXIS 251 (Wyo. 1977); Vigil v. State, 563 P.2d 1344, 1977 Wyo. LEXIS 252 (Wyo. 1977); Fuller v. State, 568 P.2d 900, 1977 Wyo. LEXIS 310 (Wyo. 1977); Stambaugh v. State, 613 P.2d 1237, 1980 Wyo. LEXIS 291 (Wyo. 1980); Barnes v. State, 670 P.2d 302, 1983 Wyo. LEXIS 368 (Wyo. 1983); Fife v. State, 676 P.2d 565, 1984 Wyo. LEXIS 255 (Wyo. 1984); Phillips v. State, 760 P.2d 388, 1988 Wyo. LEXIS 106 (Wyo. 1988); Garcia v. State, 908 P.2d 413, 1995 Wyo. LEXIS 223 (Wyo. 1995); Sturgis v. State, 932 P.2d 199, 1997 Wyo. LEXIS 13 (Wyo. 1997); Hankinson v. State, 2002 WY 86, 47 P.3d 623, 2002 Wyo. LEXIS 91 (Wyo. 2002); Johnson v. State, 2015 WY 118, 2015 Wyo. LEXIS 133 (Sept. 3, 2015).

Quoted in

Horn v. State, 554 P.2d 1141, 1976 Wyo. LEXIS 214 (Wyo. 1976); Furtado v. State, 623 P.2d 770, 1981 Wyo. LEXIS 292 (Wyo. 1981); Fulcher v. State, 633 P.2d 142, 1981 Wyo. LEXIS 369 (Wyo. 1981); Westwood v. State, 693 P.2d 763, 1985 Wyo. LEXIS 426 (Wyo. 1985); Maupin v. State, 694 P.2d 720, 1985 Wyo. LEXIS 437 (Wyo. 1985); Cardenas v. State, 811 P.2d 989, 1991 Wyo. LEXIS 94 (Wyo. 1991); Barron v. State, 819 P.2d 412, 1991 Wyo. LEXIS 161 (Wyo. 1991); Flores v. State, 822 P.2d 369, 1991 Wyo. LEXIS 188 (Wyo. 1991); Haworth v. State, 840 P.2d 912, 1992 Wyo. LEXIS 185 (Wyo. 1992); Smith v. State, 922 P.2d 846, 1996 Wyo. LEXIS 114 (Wyo. 1996); Eustice v. State, 11 P.3d 897, 2000 Wyo. LEXIS 203 (Wyo. 2000); Peitsmeyer v. State, 2001 WY 38, 21 P.3d 733, 2001 Wyo. LEXIS 45 (Wyo. 2001); Skinner v. State, 2001 WY 102, 33 P.3d 758, 2001 Wyo. LEXIS 124 (Wyo. 2001); Anderson v. State, 2002 WY 46, 43 P.3d 108, 2002 Wyo. LEXIS 50 (Wyo. 2002); Allen v. State, 2002 WY 48, 43 P.3d 551, 2002 Wyo. LEXIS 65 (Wyo. 2002); Trujillo v. State, 2002 WY 51, 44 P.3d 22, 2002 Wyo. LEXIS 48 (Wyo. 2002); Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003); Vigil v. State, 2004 WY 110, 98 P.3d 172, 2004 Wyo. LEXIS 142 (2004); Winsted v. State, 2010 WY 139, 241 P.3d 497, 2010 Wyo. LEXIS 148 (Oct. 26, 2010).

Stated in

Brooks v. State, 706 P.2d 664, 1985 Wyo. LEXIS 564 (Wyo. 1985); Laing v. State, 746 P.2d 1247, 1987 Wyo. LEXIS 554 (Wyo. 1987); Cardenas v. State, 925 P.2d 239, 1996 Wyo. LEXIS 151 (Wyo. 1996).

Cited in

Williams v. Campbell, 22 Wyo. 1, 133 P. 1071, 1913 Wyo. LEXIS 33 (1913); Wilson v. Hall, 34 Wyo. 465, 244 P. 1002, 1926 Wyo. LEXIS 53 (1926); Hurst v. State, 519 P.2d 971, 1974 Wyo. LEXIS 189 (Wyo. 1974); Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974); Hicklin v. State, 535 P.2d 743, 1975 Wyo. LEXIS 142 , 79 A.L.R.3d 1050 (Wyo. 1975); Kwallek v. State, 596 P.2d 1372, 1979 Wyo. LEXIS 379 (Wyo. 1979); Snyder v. State, 599 P.2d 1338, 1979 Wyo. LEXIS 448 (Wyo. 1979); Weddle v. State, 621 P.2d 231, 1980 Wyo. LEXIS 327 (Wyo. 1980); Schmidt v. State, 668 P.2d 656, 1983 Wyo. LEXIS 356 (Wyo. 1983); Bibbins v. State, 741 P.2d 115, 1987 Wyo. LEXIS 492 (Wyo. 1987); Aguilar v. State, 764 P.2d 684, 1988 Wyo. LEXIS 161 (Wyo. 1988); Wlodarczyk v. State, 836 P.2d 279, 1992 Wyo. LEXIS 80 (Wyo. 1992); Coleman v. State, 843 P.2d 558, 1992 Wyo. LEXIS 183 (Wyo. 1992); Doud v. State, 845 P.2d 402, 1993 Wyo. LEXIS 12 (Wyo. 1993); Scott v. State, 856 P.2d 447, 1993 Wyo. LEXIS 12 0 (Wyo. 1993); Olson v. State, 960 P.2d 1019, 1998 Wyo. LEXIS 111 (Wyo. 1998); Ramirez v. State, 994 P.2d 970, 2000 Wyo. LEXIS 12 (Wyo. 2000); Oldman v. State, 998 P.2d 957, 2000 Wyo. LEXIS 46 (Wyo. 2000); Terry v. State, 2002 WY 162, 56 P.3d 636, 2002 Wyo. LEXIS 183 (Wyo. 2002); Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003); Gomez v. State, 2003 WY 58, 68 P.3d 1177, 2003 Wyo. LEXIS 73 (Wyo. 2003); Jensen v. State, 2005 WY 85, 116 P.3d 1088, 2005 Wyo. LEXIS 101 (2005); Miller v. State, 2006 WY 92, 138 P.3d 688, 2006 Wyo. LEXIS 95 (2006); Jones v. State, 2009 WY 33, 203 P.3d 1091, 2009 Wyo. LEXIS 32 (Mar. 9, 2009); Creecy v. State, 2009 WY 89, 210 P.3d 1089, 2009 Wyo. LEXIS 97 (July 10, 2009); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012); Lindstrom v. State, 2015 WY 28, 2015 Wyo. LEXIS 32 (Feb. 25, 2015).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Wyoming Fetal Rights—Why the Abortion “Albatross” Is a Bird of a Different Color: The Case for Fetal-Federalism,” see XXVIII Land & Water L. Rev. 627 (1993).

For comment, “Fetal Equality?: The Equality State's Response to the Challenge of Protecting Unborn Children,” see XXXII Land & Water L. Rev. 193 (1997).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Homicide based on killing of unborn child, 40 ALR3d 444.

Right to maintain action or to recover damages for death of unborn child, 84 ALR3d 411.

Automobile as dangerous or deadly weapon within meaning of assault and battery statute, 89 ALR3d 1026.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 ALR3d 287.

Admissibility, in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 ALR4th 1072.

Walking cane as deadly or dangerous weapon for purpose of statutes aggravating offenses such as assault and robbery, 8 ALR4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses, 8 ALR4th 1268.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 ALR4th 1153.

Criminal assault or battery statutes making attack on elderly person a special or aggravated offense, 73 ALR4th 1123.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 ALR4th 660.

Sufficiency of bodily injury to support charge of aggravated assault, 5 ALR5th 243.

Employer's liability for assault, theft, or similar intentional wrong committed by employee at home or business of customer, 13 ALR5th 217.

Kicking as aggravated assault, or assault with dangerous or deadly weapon, 19 ALR5th 823.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 ALR5th 449.

Prosecution of mother for prenatal substance abuse based on endangerment of or delivery of controlled substance to child, 70 ALR5th 461.

Attempt to commit assault as criminal offense, 93 ALR5th 683.

Dog as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 124 ALR5th 657.

Cigarette lighter as deadly or dangerous weapon, 22 ALR6th 533.

What constitutes “otherwise using” weapon under sentencing guideline § 2A2.2(b)(2), providing enhancement of sentence for aggravated assault, 120 ALR Fed 589.

§ 6-2-503. Child abuse; penalty.

  1. A person who is not responsible for a child’s welfare as defined by W.S. 14-3-202(a)(i), is guilty of child abuse, a felony punishable by imprisonment for not more than ten (10) years, if:
    1. The actor is an adult or is at least six (6) years older than the victim; and
    2. The actor intentionally or recklessly inflicts upon a child under the age of sixteen (16) years:
      1. Physical injury as defined in W.S. 14-3-202(a)(ii)(B);
      2. Mental injury as defined in W.S. 14-3-202(a)(ii)(A); or
      3. Torture or cruel confinement.
  2. A person is guilty of child abuse, a felony punishable by imprisonment for not more than ten (10) years, if a person responsible for a child’s welfare as defined in W.S. 14-3-202(a)(i) intentionally or recklessly inflicts upon a child under the age of eighteen (18) years:
    1. Physical injury as defined in W.S. 14-3-202(a)(ii)(B), excluding reasonable corporal punishment;
    2. Mental injury as defined in W.S. 14-3-202(a)(ii)(A); or
    3. Torture or cruel confinement.
  3. Aggravated child abuse is a felony punishable by imprisonment for not more than twenty-five (25) years if in the course of committing the crime of child abuse, as defined in subsection (a) or (b) of this section, the person intentionally or recklessly inflicts serious bodily injury upon the victim or the person intentionally inflicts substantial mental or emotional injury upon the victim by the torture or cruel confinement of the victim.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 1998, ch. 93, § 1; 2009, ch. 41, § 1; 2015, ch. 185, § 1.

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

The 2009 amendment, effective July 1, 2009, deleted “Except under circumstances constituting a violation of W.S. 6-2-502 ” at the beginning of (a) and (b); and added (c).

The 2015 amendment, effective July 1, 2015, in (a) and (b), substituted “ten (10)” for “five (5)” in the introductory language and made stylistic changes; added (C) to (a)(ii), and (iii) to (b); added “or the person intentionally inflicts substantial mental or emotional injury upon the victim by the torture or cruel confinement of the victim” at the end of (c).

Intent. —

Child abuse is a crime requiring only general intent, not specific intent. Rowe v. State, 974 P.2d 937, 1999 Wyo. LEXIS 19 (Wyo. 1999), reh'g denied, 1999 Wyo. LEXIS 34 (Wyo. Mar. 25, 1999).

Applicability to habitual criminal statute. —

The initially imposed sentences following the defendant's conviction for child abuse were illegal as a matter of law given that the habitual criminal statute, § 6-10-201 , applies only to “violent felonies” and that the statutory definition of violent felonies does not include felony child abuse. Rodgriguez v. State, 917 P.2d 172, 1996 Wyo. LEXIS 74 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 88 (Wyo. June 11, 1996).

Prosecution for felony murder based on child abuse. —

Defendant's prosecution for felony murder under Wyo. Stat. Ann. § 6-2-101 , based on his abuse of a child under 16, rather than for child abuse, under this section, did not violate equal protection under Wyo. Const. art. I, §§ 2 or 34, as the provision of Wyo. Stat. Ann. § 6-2-101 allowing a first degree murder prosecution for child abuse gave fair notice that life imprisonment or execution were possible penalties. Johnson v. State, 2003 WY 9, 61 P.3d 1234, 2003 Wyo. LEXIS 11 (Wyo., cert. denied, 540 U.S. 841, 124 S. Ct. 108, 157 L. Ed. 2d 74, 2003 U.S. LEXIS 5710 (U.S. 2003), reh'g denied, 2003 Wyo. LEXIS 29 (Wyo. Feb. 18, 2003).

Although the district court erred by instructing the jury as to common law parental duties that were not encompassed within the charged crime of felony murder based on child abuse, the error was harmless because the completed verdict form showed juror unanimity as to defendant's guilt on all of the theories properly alleged; the judgment and sentence had to be amended to reflect the fact that only one charge was brought, that defendant was bound over and arraigned and pled to only one charge, and that he was therefore convicted of only one charge. Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Wyo. 2008).

Stepfather, prosecuted for child abuse, had standing to contest constitutionality of this section. Keser v. State, 706 P.2d 263, 1985 Wyo. LEXIS 553 (Wyo. 1985).

Section not void for vagueness. —

This section, which, prior to the 1984 amendment, stated that “…any adult who intentionally or in reckless disregard of the consequences causes physical injury or mental trauma to a child …,” was not void for vagueness. Keser v. State, 706 P.2d 263, 1985 Wyo. LEXIS 553 (Wyo. 1985).

Common-law defense of parental discipline was available to one prosecuted under this section. — Requiring the defendant to prove this defense was not unconstitutional. Keser v. State, 706 P.2d 263, 1985 Wyo. LEXIS 553 (Wyo. 1985).

Evidence sufficient. —

Evidence was sufficient to support defendants’ convictions for physically abusing the victim because the victim testified that defendant would sometimes use the black belt as punishment if the victim did not complete his chores, the belt would leave bruises on his bottom, back, and legs, and his three siblings testified that both defendants used a backscratcher to beat the victim. Larkins v. State, 2018 WY 122, 429 P.3d 28, 2018 Wyo. LEXIS 126 (Wyo. 2018).

Evidence sufficient to uphold conviction. DeWitt v. State, 917 P.2d 1144, 1996 Wyo. LEXIS 82 (Wyo. 1996).

Trial court did not abuse its discretion by denying a motion for judgment of acquittal because the evidence was sufficient to support a conviction for felony child abuse; defendant used wood to spank the victim, which left abrasions, bruises, and lacerations. Defendant's argument that the injuries were not serious and that he acted reasonably was misplaced; because the State was entitled to all favorable inferences that could have been drawn from the evidence, the jury was free to reject defendant's proffered justifications for the abuse. Swan v. State, 2014 WY 38, 320 P.3d 235, 2014 Wyo. LEXIS 41 (Wyo. 2014).

Evidence was sufficient for jury to conclude that defendant was an adult, or in any event was at least six years older than his five-year-old victim. Rowe v. State, 974 P.2d 937, 1999 Wyo. LEXIS 19 (Wyo. 1999), reh'g denied, 1999 Wyo. LEXIS 34 (Wyo. Mar. 25, 1999).

Mental injury.—

Defendants did not dispute at their trial for multiple counts of child abuse that their children suffered mental injury because each of their children was found to have significant deficits in their social and behavioral development and two of their children were diagnosed with attention deficit disorders. Gifford v. State, 2017 WY 93, 399 P.3d 1240, 2017 Wyo. LEXIS 92 (Wyo. 2017).

Recklessly.—

Considering defendants' repeated failure to accept the remedial parenting advice and services of medical and educational professionals, and the evidence indicating their understanding of their children's needs, there was sufficient evidence to show that defendants acted recklessly through their conscious disregard of a substantial and unjustifiable risk of harm to their children. Gifford v. State, 2017 WY 93, 399 P.3d 1240, 2017 Wyo. LEXIS 92 (Wyo. 2017).

Jury instruction.—

When defendant was convicted of first-degree felony murder on the underlying offense of aggravated child abuse or child abuse, the denial of defendant’s request for lesser-included offense instructions of criminally negligent homicide and involuntary manslaughter was appropriate because the State of Wyoming had to prove the elements of either child abuse or aggravated child abuse and that the victim’s death occurred during the perpetration of that crime. Criminally negligent homicide and involuntary manslaughter contained different elements. Hartley v. State, 2020 WY 40, 460 P.3d 716, 2020 Wyo. LEXIS 41 (Wyo. 2020).

In a felony child abuse case, a district court erred when it failed to instruct the jury in the elements instruction of the count relating to the victim that physical injury excluded “reasonable corporal punishment”; the error was plain because the instructions were confusing as to the burden of proof. However, the State was entitled to retry defendant because it presented sufficient evidence to support a verdict finding that the victim's physical injuries due to getting hit in the ribs and slapped in the face were not the result of reasonable corporal punishment. Andersen v. State, 2014 WY 88, 330 P.3d 256, 2014 Wyo. LEXIS 100 (Wyo. 2014).

Sentence upheld. —

Record amply supported sentencing judge's exercise of discretion in imposing sentence of not less than four nor more than five years. See Smallwood v. State, 771 P.2d 798, 1989 Wyo. LEXIS 92 (Wyo. 1989).

Expert testimony. —

Trial court did not err in allowing an expert to testify as to child abuse because that term had a medical meaning, as well as a legal meaning. The jury's role was to determine whether the elements in this section were met. Sanchez v. State, 2006 WY 116, 142 P.3d 1134, 2006 Wyo. LEXIS 121 (Wyo. 2006).

Applied in

Coleman v. State, 827 P.2d 385, 1992 Wyo. LEXIS 35 (Wyo. 1992).

Stated in

In re Adoption of RHA, 702 P.2d 1259, 1985 Wyo. LEXIS 516 (Wyo. 1985).

Cited in

Smallwood v. State, 748 P.2d 1141, 1988 Wyo. LEXIS 13 (Wyo. 1988); Longfellow v. State, 803 P.2d 848, 1990 Wyo. LEXIS 162 (Wyo. 1990); Coleman v. State, 843 P.2d 558, 1992 Wyo. LEXIS 183 (Wyo. 1992); Ross v. State, 930 P.2d 965, 1996 Wyo. LEXIS 181 (Wyo. 1996); Taylor v. Wyoming Bd. of Medicine, 930 P.2d 973, 1997 Wyo. LEXIS 11 (Wyo. 1996); King v. State, 2002 WY 27, 40 P.3d 700, 2002 Wyo. LEXIS 28 (Wyo. 2002); Sarr v. State, 2007 WY 140, 166 P.3d 891, 2007 Wyo. LEXIS 150 (Aug. 29, 2007); Kruger v. State, 2012 WY 2, 268 P.3d 248, 2012 Wyo. LEXIS 2 (Jan. 5, 2012); Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012); Rhodes v. State, 2015 WY 60, 2015 Wyo. LEXIS 68 (Apr. 27, 2015); State v. Bridger, 2014 Wyo. LEXIS 193 (Wyo. June 17, 2014).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Fetal Equality?: The Equality State's Response to the Challenge of Protecting Unborn Children,” see XXXII Land & Water L. Rev. 193 (1997).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Failure of state or local government entity to protect child abuse victim as violation of federal constitutional right, 79 ALR Fed 514.

§ 6-2-504. Reckless endangering; penalty.

  1. A person is guilty of reckless endangering if he recklessly engages in conduct which places another person in danger of death or serious bodily injury.
  2. Any person who knowingly points a firearm at or in the direction of another, whether or not the person believes the firearm is loaded, is guilty of reckless endangering unless reasonably necessary in defense of his person, property or abode or to prevent serious bodily injury to another or as provided for under W.S. 6-2-602 .
  3. Reckless endangering is a misdemeanor punishable by imprisonment for not more than one (1) year.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2008, ch. 109, § 2.

Cross references. —

For definition of “recklessly,” see § 6-1-104 .

The 2008 amendment, effective July 1, 2008, added “or as provided for under W.S. 6-2-602 ” in (b).

Harm. —

The “harm” contemplated in the definition of “recklessly,” Wyo. Stat. Ann. § 6-1-104(a)(ix), in the context of the reckless endangerment statute, Wyo. Stat. Ann. § 6-2-504(a), is not death or serious bodily injury, and neither death nor serious bodily injury must result before a person can be convicted of reckless endangerment; rather, the term “harm” in the definition of “recklessly” refers to engaging in conduct which places another person in danger of death or serious bodily injury. Orona-Rangal v. State, 2002 WY 134, 53 P.3d 1080, 2002 Wyo. LEXIS 146 (Wyo. 2002), limited, Kite v. State, 2018 WY 94, 424 P.3d 255, 2018 Wyo. LEXIS 99 (Wyo. 2018).

Actor's belief as to loaded or unloaded nature of gun irrelevant. —

Subsection (b) of this section means that, whenever an actor knowingly points a firearm at another, whether the firearm is loaded or not, he is guilty of reckless endangering, provided the firearm was not pointed for defensive purposes; the second clause of subsection (b) merely makes irrelevant the actor's belief as to the loaded or unloaded nature of the gun. In re Interests of ALJ, 836 P.2d 307, 1992 Wyo. LEXIS 83 (Wyo. 1992).

Relationship to aggravated assault and battery. —

The offense of reckless endangering is not a lesser included offense of aggravated assault and battery as defined in § 6-2-502 because reckless endangering encompasses an additional element not included in the elements of aggravated assault and battery. Sindelar v. State, 932 P.2d 730, 1997 Wyo. LEXIS 10 (Wyo. 1997).

Misdemeanor of reckless endangerment, Wyo. Stat. Ann. § 6-2-504 , is not a lesser-included offense of aggravated assault and battery; the offense of reckless endangerment encompasses an additional element, that the act was done recklessly, which is not included in the elements of aggravated assault and battery. Miller v. State, 2003 WY 55, 67 P.3d 1191, 2003 Wyo. LEXIS 66 (Wyo. 2003).

Sufficient evidence. —

Evidence was sufficient to find defendant guilty of reckless endangering because the State presented evidence that a teenager was holding a dog while defendant shot the dog and that he gave no warning before he fired; thus, the jury could conclude that defendant consciously disregarded a substantial risk that his conduct placed the teenager in danger of death or serious bodily injury and that his conduct was a gross deviation from the standard of conduct a reasonable person would observe. Mackley v. State, 2021 WY 33, 481 P.3d 639, 2021 Wyo. LEXIS 40 (Wyo. 2021); .

Evidence was sufficient to sustain defendant's conviction under § 6-2-504(a) where there was ample evidence of defendant's excessive speed, disregard for traffic laws, and erratic driving that resulted in a collision of such force that the deceased's vehicle was propelled across the intersection and collided with a third vehicle, injuring both the passenger in defendant's own vehicle and the driver of the third vehicle; on these facts more than sufficient evidence existed to prove defendant placed his passenger and an unsuspecting third party in danger of death or serious bodily injury. Orona-Rangal v. State, 2002 WY 134, 53 P.3d 1080, 2002 Wyo. LEXIS 146 (Wyo. 2002), limited, Kite v. State, 2018 WY 94, 424 P.3d 255, 2018 Wyo. LEXIS 99 (Wyo. 2018).

Applied in

Amin v. State, 694 P.2d 119, 1985 Wyo. LEXIS 438 (Wyo. 1985); Lindsey v. State, 725 P.2d 649, 1986 Wyo. LEXIS 611 (Wyo. 1986); Hodges v. State, 904 P.2d 334, 1995 Wyo. LEXIS 185 (Wyo. 1995).

Cited in

Olson v. State, 960 P.2d 1019, 1998 Wyo. LEXIS 111 (Wyo. 1998); Abeyta v. State, 2002 WY 44, 42 P.3d 1009, 2002 Wyo. LEXIS 45 (Wyo. 2002); Messer v. State, 2004 WY 98, 96 P.3d 12, 2004 Wyo. LEXIS 123 (2004); Sarr v. State, 2007 WY 140, 166 P.3d 891, 2007 Wyo. LEXIS 150 (Aug. 29, 2007); Cohen v. State, 2008 WY 78, 2008 Wyo. LEXIS 83 (July 14, 2008).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

§ 6-2-505. Terroristic threats; penalty.

  1. A person is guilty of a terroristic threat if he threatens to commit any violent felony with the intent to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such inconvenience.
  2. A terroristic threat is a felony punishable by imprisonment for not more than three (3) years.

History. Laws 1982, ch. 75, § 3.

Constitutionally protected conduct not reached by section.—

A statute may be challenged “facially” for vagueness only if it reaches a substantial amount of constitutionally protected conduct. Subsection (a) of this section (terrorist threats) does not reach a substantial amount of constitutionally protected speech, such as “practical jokes and groundless threats.” Clearly, what the legislature intended to prohibit through subsection (a) of this section were violent threats which subject society to clear and present danger. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Threatening nursing home not constitutionally protected. —

This section was not unconstitutionally vague as it applied to the defendant's conduct. Although the phrase “serious public inconvenience” is not specifically defined, the statute provides an example — evacuation of a building, etc. In the case of the defendants charged conduct — an imminent bomb threat directed at a nursing home facility — a person of ordinary intelligence would have been aware that a serious public inconvenience, such as evacuation of the nursing home's elderly patients, could have occurred and therefore also understood that his or her conduct violated this section. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Threatening felony, risking evacuation, deemed terrorist threat.—

One who threatens to commit a violent felony in reckless disregard of the risk of causing evacuation of a building is guilty of a terroristic threat. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Prior harassment, threats, admissible to prove identity. —

In a prosecution for making terrorist threats over the telephone, the court did not err in admitting testimony by the victim alleging that the defendant continually harassed her for months before the phone calls in question, and in admitting a tape recording of the defendant allegedly threatening the victim over the phone several months prior to the present incident. The tape and the testimony were offered to prove identity, and identity was a material issue at trial. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Testimony on impact of threats relevant. —

In a prosecution for terrorist threats to a nursing home, the court neither abused its discretion nor violated a clear rule of law when it admitted testimony concerning the impact of the threatening phone calls on the individuals at home. This testimony was relevant because it was probative of the risk of serious public inconvenience, and was not unduly prejudicial. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Testimony that recipient of terroristic threat purchased a pistol and began practicing with it was properly admitted, as it demonstrated that defendant's threats were perceived as serious. Ellison v. State, 3 P.3d 845, 2000 Wyo. LEXIS 83 (Wyo. 2000).

Threatening telephone calls not lesser-included crime. —

Section 6-6-103 (threatening telephone calls) is not a lesser-included crime of this section (terrorist threats). For example, if the state proves that a person threatened a violent felony in reckless disregard of the risk of causing an evacuation, they have proved the elements of this section but not the elements of § 6-6-103 , because there is no proof that the threat was telephoned. Therefore, the elements of § 6-6-103 are not identical to, nor a subset of, the elements of this section, and § 6-6-103 is not a lesser-included crime. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Jury instructions. —

Instruction which directed jury to consider inconvenience caused by summoning of police and fire agencies did not create a mandatory presumption that summoning of such agencies constituted a “serious public inconvenience”; moreover, state was not required to prove that a serious public inconvenience occurred, but only that defendant made his threats with intent to cause or in reckless disregard of causing one. Ellison v. State, 3 P.3d 845, 2000 Wyo. LEXIS 83 (Wyo. 2000).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of terroristic threat statutes, 45 ALR4th 949.

Imposition of state or local penalties for threatening to use explosive devices at schools or other buildings, 79 ALR5th 1.

Validity, construction, and application of 18 U.S.C. § 844(e), prohibiting use of mail, telephone, telegraph, or other instrument of commerce to convey bomb threat, 160 ALR Fed 625.

§ 6-2-506. Stalking; penalty.

  1. As used in this section:
    1. “Course of conduct” means a pattern of conduct composed of a series of acts over any period of time evidencing a continuity of purpose;
    2. “Harass”  means to engage in a course of conduct, including but not limited  to verbal threats, written threats, lewd or obscene statements or  images, vandalism or nonconsensual physical contact, directed at a  specific person that the defendant knew or should have known would cause:
      1. A reasonable person to suffer substantial  emotional distress;
      2. A reasonable person to suffer substantial fear for  their safety or the safety of another person; or
      3. A reasonable person to suffer substantial fear for  the destruction of their property.
  2. Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following:
    1. Communicating, anonymously or otherwise, or causing a communication with another person by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses;
    2. Following a person, other than within the residence of the defendant;
    3. Placing a person under surveillance by remaining present outside his or her school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant; or
    4. Otherwise engaging in a course of conduct that harasses another person.
  3. This section does not apply to an otherwise lawful demonstration, assembly or picketing.
  4. Except as  provided under subsection (e) of this section, stalking is a misdemeanor  punishable by imprisonment for not more than one (1) year, a fine of not more than seven hundred  fifty dollars ($750.00), or both. If a  person sentenced under this subsection is placed on probation, the  court may, notwithstanding any other provision of law, impose a term  of probation exceeding the maximum one (1) year imprisonment, provided  the term of probation, including extensions, shall not exceed three  (3) years.
  5. A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:
    1. The act or  acts leading to the conviction occurred within five (5) years of the completion of the sentence, including all periods  of incarceration, parole and probation, of a prior conviction  under this subsection, or under subsection (b) of this section, or  under a substantially similar law of another jurisdiction;
    2. The defendant caused serious bodily harm to the victim or another person in conjunction with committing the offense of stalking;
    3. The defendant committed the offense of stalking in violation of any condition of probation, parole or bail; or
    4. The defendant  committed the offense of stalking in violation of a temporary or permanent  order of protection issued pursuant to W.S. 7-3-508 , 7-3-509 , 35-21-104 or 35-21-105 or pursuant to a substantially similar law of another jurisdiction.
  6. An offense under this section may be deemed to have  been committed at the place where any:
    1. Act within the course of conduct that constitutes stalking  was initiated; or
    2. Communication within the course of conduct that constitutes  stalking was received by the victim then present in Wyoming; or
    3. Act within the course of conduct that constitutes stalking  caused an effect on the victim then present in Wyoming.
  7. An act that indicates a course of conduct but occurs  in more than one (1) jurisdiction may be used by any jurisdiction  in which the act occurred as evidence of a continuing course of conduct.

History. Laws 1993, ch. 92, § 1; 2007, ch. 161, § 1; 2018, ch. 63, § 1; ch. 97, § 1.

The 2007 amendment, effective July 1, 2007, inserted “lewd or obscene statements or images” in (a)(ii).

The 2018 amendments. — The first 2018 amendment, by ch. 63, § 1, effective July 1, 2018, in (a)(ii), substituted “person that the defendant” for “person or the family of a specific person, which the defendant” and redesignated former ending text as (a)(ii)(A); in (a)(ii)(A), deleted “and which does in fact seriously alarm the person toward whom it is directed” at the end; added (a)(ii)(B) and (C); in (d), substituted “more than one (1) year, a” for “more than six (6) months, a” in the first sentence and added the second sentence; in (e)(i), inserted “of the completion of the sentence, including all periods of incarceration, parole and probation” following “five (5) years”; in (e)(iv), inserted “35-21-104 or 35-21-105 ” following “7-3-509”; added (f) and (g); and made stylistic changes.

The second 2018 amendment, by ch. 97, § 1, effective July 1, 2018, in (e)(iv), substituted “W.S. 7-3-508 , 7-3-509 , 35-21-104 or 35-21-105 ” for “W.S. 7-3-508 or 7-3-509 .” While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Editor’s notes. —

Laws 2018, ch. 97, § 3, provides: "This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act."

Statute is constitutional. —

Statute is constitutional on its face; the fact that the statute identifies “lewd or obscene statements” in the definition of harass does not make it a content-based regulation on speech rather than a regulation of conduct without a significant impact on protected speech. Dugan v. State, 2019 WY 112, 451 P.3d 731, 2019 Wyo. LEXIS 114 (Wyo. 2019), cert. denied, 140 S. Ct. 1298, 206 L. Ed. 2d 377, 2020 U.S. LEXIS 1610 (U.S. 2020).

Statute bears all the hallmarks of a statute that criminalizes conduct without reaching a substantial amount of protected speech; it requires proof that the defendant acted with the specific intent to harass the victim, and subsections (a)(ii) and (b) incorporate the concept of repeated communications to the victim by requiring the State to prove the defendant engaged in a “course of conduct.”Dugan v. State, 2019 WY 112.

District court’s refusal to require proof that defendant’s statements met the definition of “obscene” under Wyo. Stat. Ann. § 6-4-301 did not render Wyo. Stat. Ann. § 6-2-506 unconstitutional as applied to him; the punishment of obscenity under laws that regulate pure speech is much different than the punishment of harassing conduct which includes obscene statements. Dugan v. State, 2019 WY 112, 451 P.3d 731, 2019 Wyo. LEXIS 114 (Wyo. 2019), cert. denied, 140 S. Ct. 1298, 206 L. Ed. 2d 377, 2020 U.S. LEXIS 1610 (U.S. 2020).

District court correctly rejected defendant’s proposed instruction because it did not state a proper defense to the stalking charge; defendant’s proposed instruction stated the State had to prove his speech fell within one of the listed categories of unprotected speech to convict him of criminal stalking, but the statute complied with the First Amendment because it punished conduct, not a substantial amount of protected speech. Dugan v. State, 2019 WY 112, 451 P.3d 731, 2019 Wyo. LEXIS 114 (Wyo. 2019), cert. denied, 140 S. Ct. 1298, 206 L. Ed. 2d 377, 2020 U.S. LEXIS 1610 (U.S. 2020).

The statute does satisfy the requirement that there be a standard of conduct; the definition in paragraph (a)(i) is an appropriately clear statement of what constitutes a course of conduct. Luplow v. State, 897 P.2d 463, 1995 Wyo. LEXIS 101 (Wyo. 1995).

Subsection (c) of this section, which excludes “otherwise lawful demonstration, assembly or picketing,” substantially disposes of any contention that the statute affects constitutionally protected conduct. Luplow v. State, 897 P.2d 463, 1995 Wyo. LEXIS 101 (Wyo. 1995).

Sufficient specificity exists defining the conduct proscribed to meet the test of vagueness. Luplow v. State, 897 P.2d 463, 1995 Wyo. LEXIS 101 (Wyo. 1995).

The Wyoming stalking statute is not void for vagueness, nor is it subject to constitutional attack as being overbroad. Luplow v. State, 897 P.2d 463, 1995 Wyo. LEXIS 101 (Wyo. 1995).

The specific provision making stalking a felony if committed in violation of any condition of probation, parole, or bail is not unconstitutionally vague and does not violate the defendant's right to equal protection. Garton v. State, 910 P.2d 1348, 1996 Wyo. LEXIS 16 (Wyo. 1996).

Due process. —

Defendant who was convicted of stalking based on a protective order issued while defendant was in a locked psychiatric ward was not afforded due process because defendant did not have a meaningful opportunity to be heard. Joyner v. State, 2002 WY 174, 58 P.3d 331, 2002 Wyo. LEXIS 201 (Wyo. 2002).

Sentence Not Illegal. —

District court properly denied defendant's motions to correct an illegal sentence because there was no increase in punishment and no violation of his double jeopardy protections; all of the fees imposed upon defendant's conviction were mandated by statute, and thus, it was unnecessary for the district court to attach the fees to the stalking charge in the initial sentence. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Evidence held sufficient. —

Evidence was sufficient to sustain the stalking conviction under Wyo. Stat. Ann. § 6-2-506 (2018 Supp.) where a rational trier of fact could have inferred from the menacing content of the text messages that defendant intended to cause the victim substantial emotional distress and substantial fear. Bittleston v. State, 2019 WY 64, 442 P.3d 1287, 2019 Wyo. LEXIS 64 (Wyo. 2019).

“Course of conduct”. —

“Course of conduct” necessary for a felony stalking conviction under Wyo. Stat. Ann. § 6-2-506(e)(iii) or (iv) may encompass acts of harassment occurring prior to the issuance of an order proscribing contact with the victim. The State is not required to demonstrate violations of multiple protection orders in order to establish the course of conduct. Walker v. State, 2013 WY 58, 302 P.3d 182, 2013 Wyo. LEXIS 61 (Wyo. 2013).

Evidence was insufficient to demonstrate that defendant engaged in a course of conduct necessary to support a stalking conviction under this section because no intent to harass was shown by defendant's act of watching the victim during a chance encounter in a small town. Hawes v. State, 2014 WY 127, 335 P.3d 1073, 2014 Wyo. LEXIS 144 (Wyo. 2014), cert. denied, 576 U.S. 1025, 135 S. Ct. 2846, 192 L. Ed. 2d 882, 2015 U.S. LEXIS 3929 (U.S. 2015).

Conditional probation. —

One year delay in imposing a sentence for felony stalking of a year's probation conditioned on defendant's staying away from the victim was unreasonable, where he had complied with this same condition for the year prior to sentencing. Detheridge v. State, 963 P.2d 233, 1998 Wyo. LEXIS 117 (Wyo. 1998).

Relation to violation of protection order. —

Crime of violating a protection order as defined by Wyo. Stat. Ann. § 6-4-404 is not a lesser-included offense of the crime of stalking as defined by Wyo. Stat. Ann. § 6-2-506(b) because the elements of the former simply are not a subset of the elements of the latter. Snow v. State, 2009 WY 117, 216 P.3d 505, 2009 Wyo. LEXIS 128 (Wyo. 2009).

Jury instructions. —

Defendant's conviction for felony stalking of his ex-wife was improper because while defendant had been charged under Wyo. Stat. Ann. § 6-2-506(b) with engaging in a course of conduct of harassment, the trial court gave the jury conflicting instructions as to the State's burden of proof in regard to that course of conduct. Walker v. State, 2012 WY 1, 267 P.3d 1107, 2012 Wyo. LEXIS 1 (Wyo. 2012).

Defendant did not establish that plain error occurred in the jury instruction because the district court's failure to instruct on the examples of course of conduct element of the crime of stalking enumerated in the statute did not transgress a clear and unequivocal rule of law. Dean v. State, 2014 WY 158, 339 P.3d 509, 2014 Wyo. LEXIS 180 (Wyo. 2014).

Quoted in

Veile v. Martinson, 258 F.3d 1180, 2001 U.S. App. LEXIS 17097 (10th Cir. 2001).

Stated in

GWJ v. MH, 930 P.2d 371, 1996 Wyo. LEXIS 187 (Wyo. 1996); Law v. State, 2004 WY 111, 98 P.3d 181, 2004 Wyo. LEXIS 139 (2004); Salinas v. State, 2016 WY 97, 380 P.3d 647, 2016 Wyo. LEXIS 107 (Wyo. 2016).

Cited in

Basolo v. Basolo, 907 P.2d 348, 1995 Wyo. LEXIS 213 (Wyo. 1995); Vit v. State, 909 P.2d 953, 1996 Wyo. LEXIS 1 (Wyo. 1996); Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219, 2002 Wyo. LEXIS 173 (Wyo. 2002); Gibbs v. State, 2008 WY 79, 187 P.3d 862, 2008 Wyo. LEXIS 82 (July 14, 2008).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

For comment, “Utilizing the Tools: Successfully Implementing the Stalking Statutes,” see XXXV Land & Water L. Rev. 521 (2000).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and application of stalking statutes, 29 ALR5th 487.

§ 6-2-507. Abuse, neglect, abandonment, intimidation or exploitation of a vulnerable adult; penalties.

  1. Except under circumstances constituting a violation of W.S. 6-2-502 , a person is guilty of abuse, neglect, abandonment or exploitation of a vulnerable adult if the person intentionally or recklessly abuses, neglects, abandons, intimidates or exploits a vulnerable adult.
  2. Reckless abuse, neglect, abandonment, intimidation or exploitation of a vulnerable adult is a misdemeanor, punishable by not more than one (1) year in jail, a fine of one thousand dollars ($1,000.00), or both, and registration of the offender’s name on the central registry.
  3. Intentional abuse, neglect or abandonment of a vulnerable adult is a felony punishable by not more than ten (10) years in prison, a fine of not more than ten thousand dollars ($10,000.00), or both, and registration of the offender’s name on the central registry.
  4. Exploitation of a vulnerable adult is a felony punishable by not more than ten (10) years in prison, a fine of not more than ten thousand dollars ($10,000.00), or both, and registration of the offender’s name on the central registry.
  5. As used in this section:
    1. “Abandonment” means as defined in W.S. 35-20-102(a)(i);
    2. “Abuse” means as defined in W.S. 35-20-102(a)(ii);
    3. Repealed by Laws 2020, ch. 87, § 3.
    4. “Central registry” means the registry established under W.S. 35-20-115 ;
    5. “Exploitation” means as defined in W.S. 35-20-102(a)(ix);
    6. “Neglect” means as defined in W.S. 35-20-102(a)(xi);
    7. “Vulnerable adult” means as defined in W.S. 35-20-102(a)(xviii).

History. Laws 2002, Sp. Sess., ch. 86, § 1; 2007, ch. 209, § 1; 2020, ch. 87, § 3.

The 2007 amendment, effective July 1, 2007, in (a) substituted “person” for “caregiver” twice and inserted “intimidates”; inserted “intimidation or exploitation” in (b); and made related and stylistic changes.

The 2020 amendment, effective July 1, 2020, repealed (e)(iii), which read “‘Caregiver’ means as defined in W.S. 35-20-102(a)(iv).”

Vulnerable adult. —

Restitution. —

Nolo Contendere. —

Vulnerable adult.—

Vulnerable adult. —

Evidence was sufficient to convict defendant of third degree sexual assault and intentional abuse of a vulnerable adult because his continued contact after the victim said “no” and his grabbing her hand and placing it on his genitals constituted physical force reasonably calculated to cause submission; he knew or reasonably should have known that the victim through a mental deficiency or developmental disability was incapable of appraising the nature of her conduct as several witnesses testified that the victim’s physical characteristics and speech made her disability apparent; and, despite his intoxication, defendant was capable of forming the intent to abuse a vulnerable adult as he appeared coherent and oriented to time and place. Brown v. State, 2019 WY 102, 450 P.3d 208, 2019 Wyo. LEXIS 104 (Wyo. 2019).

Restitution. —

In a case in which defendant pled guilty to intentionally exploiting a vulnerable adult, and was ordered to pay restitution, the evidence provided a reasonable basis for calculating the amount of restitution because, given the victim’s impairment, a person had to view defendant’s suggestion that the victim’s generosity was independent of her exploitation with suspicion; defendant made a post-arrest admission to her adult children that she took advantage of her knowledge that the victim would give her anything she asked for, and that she should have stopped before he ran out of money; and the victim did not have the computer equipment or skills to set up online payments to charitable organizations. Voelker v. State, 2018 WY 72, 420 P.3d 1098, 2018 Wyo. LEXIS 75 (Wyo. 2018).

Nolo Contendere. —

District court adequately described the nature of the abuse of a vulnerable adult charge, and because it accurately and completely recited the elements of the charge, no factual basis was necessary; because defendant pleaded nolo contendere to the abuse of a vulnerable adult charge, the district court was only required to ensure that the Information contained an accurate and complete statement of all the elements of the crime charged. Williams v. State, 2015 WY 100, 354 P.3d 954, 2015 Wyo. LEXIS 115 (Wyo. 2015), reh'g denied, 2015 Wyo. LEXIS 134 (Wyo. Aug. 26, 2015).

Vulnerable adult.—

There was sufficient evidence to establish that the victim was a vulnerable adult, including his daughter's testimony that the victim suffered form memory loss, alcoholism, and other mental problems, and defendant's acknowledgement that she knew about the victim's problems with alcohol, PTSD, and memory from personal observation and access to his medical records. Blevins v. State, 2017 WY 43, 393 P.3d 1249, 2017 Wyo. LEXIS 42 (Wyo. 2017).

§ 6-2-508. Assault and battery on corrections or detention officer; penalties; definitions.

  1. A person is guilty of assault and battery on a corrections or detention officer if he recklessly:
    1. Propels any dangerous substance at the corrections officer, detention officer or staff member while the corrections officer, detention officer or staff member is acting in the course of his official duty, or as a result of the corrections officer’s, detention officer’s or staff member’s official duties; or
    2. Tampers with or alters any item by contaminating the item with any dangerous substance, if the item may be handled or consumed by the corrections officer, detention officer or staff member while the corrections officer, detention officer or staff member is acting in the course of his official duty, or as a result of the corrections officer’s, detention officer’s or staff member’s official duties.
  2. A person is guilty of aggravated assault and battery on a corrections or detention officer if he intentionally or knowingly:
    1. Propels any dangerous substance at the corrections officer, detention officer or staff member while the corrections officer, detention officer or staff member is acting in the course of his official duty, or as a result of the corrections officer’s, detention officer’s or staff member’s official duties; or
    2. Tampers with or alters any item by contaminating the item with any dangerous substance, if the item may be handled or consumed by the corrections officer, detention officer or staff member while the corrections officer, detention officer or staff member is acting in the course of his official duty, or as a result of the corrections officer’s, detention officer’s or staff member’s official duties.
  3. A violation of subsection (a) of this section is a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment for not more than six (6) months, or both.
  4. A violation of subsection (b) of this section is a felony punishable by a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than five (5) years, or both.
  5. A violation of subsection (b) of this section, by a person who knows he has a contagious life threatening disease and who commits the violation with the intent to infect a corrections officer, detention officer or staff member with the contagious life threatening disease, shall result in the enhancement of the sentence entered under subsection (d) of this section by a period of imprisonment for not more than ten (10) years.
  6. As used in this section:
    1. “Dangerous substance” includes, but is not limited to, blood, urine, saliva, vomitus, semen and feces;
    2. “Corrections officer” means a person who is employed by the department of corrections and works at a department of corrections facility to care for, supervise and control persons in the custody of the department of corrections;
    3. “Detention officer” means a person who is employed by a county or municipality to care for, supervise and control persons detained in a jail or holding facility and includes a peace officer in the detention setting;
    4. “Staff member” means:
      1. A department of corrections staff member, or a person employed pursuant to a contract with the department of corrections, who works with, or in the vicinity of, inmates; and
      2. A volunteer authorized by the department of corrections or other entity in charge of a corrections facility to work with, or in the vicinity of, inmates.

History. Laws 2005, ch. 177, § 1.

Effective dates. —

Laws 2005, ch. 177, § 2, makes the act effective July 1, 2005.

§ 6-2-509. Strangulation of a household member; penalty.

  1. A person is guilty of strangulation of a household member if he intentionally and knowingly or recklessly causes or attempts to cause bodily injury to a household member by impeding the normal breathing or circulation of blood by:
    1. Applying pressure on the throat or neck of the household member; or
    2. Blocking the nose and mouth of the household member.
  2. Strangulation of a household member is a felony punishable by imprisonment for not more than ten (10) years.
  3. For purposes of this section, “household member” means as defined in W.S. 35-21-102(a)(iv)(A) through (D), (G) and (H).

History. Laws 2011, ch. 136, § 1; 2018, ch. 88, § 1.

The 2018 amendment, effective July 1, 2018, in (b), substituted “than ten (10) years” for “than five (5) years.”

Effective date. —

Laws 2011, ch. 136, § 2, makes the act effective July 1, 2011.

Evidence sufficient. —

Double jeopardy.—

Guilty Plea. —

Lesser included offense instructions. —

Evidence sufficient. —

Battery lesser included offense of strangulation of a household member. —

Evidence sufficient. —

There was sufficient evidence to support the jury’s guilty verdict for strangulation of a household member because in addition to the testimony of a Sexual Assault Nurse Examiner, an emergency room physician who saw the victim testified as an expert about strangulation and opined that the victim was strangulated; in addition to the doctor’s testimony, the State introduced dozens of photos documenting the victim’s injuries Morones v. State, 2020 WY 85, 2020 Wyo. LEXIS 93 (June 24, 2020).

Evidence established that defendant’s wife experienced an impediment to the normal circulation of her blood causing bodily injury, and defendant’s strangulation conviction was affirmed; doctors testified that the wife had symptoms consistent with strangulation, including the petechiae and subconjunctival hemorrhages in both eyes, and while either symptom alone might not establish strangulation, the wife said defendant had choked her, and when she returned for more treatment two days later, she had severe bruising and pain in her neck. Gonzalez-Chavarria v. State, 2019 WY 100, 449 P.3d 1094, 2019 Wyo. LEXIS 102 (Wyo. 2019).

Double jeopardy.—

It was not plain error to convict defendant of both strangulation of a household member and the lesser-included offense of domestic battery because the convictions did not violate a clear and unequivocal rule of law, as the convictions did not violate double jeopardy since the crimes arose from separate and distinct acts, as the underlying acts occurred in different rooms and were separated by some amount of time and resulted in separate injuries to the victim. Drakeford v. State, 2017 WY 115, 402 P.3d 980, 2017 Wyo. LEXIS 121 (Wyo. 2017).

Guilty Plea. —

District court abused its discretion in denying defendant's motion to withdraw his guilty plea because there a reasonable probability that defendant would have rejected the plea had counsel advised him of his almost assured deportation; as a result of defendant's felony conviction for strangling a household member, defendant became an “aggravated felon” under the Immigration and Nationality Act, and thus, also became a Level 1 offender, which was the highest priority for deportation. Ortega-Araiza v. State, 2014 WY 99, 331 P.3d 1189, 2014 Wyo. LEXIS 115 (Wyo. 2014).

Lesser included offense instructions. —

Defendant, charged with strangulation of a household member, under Wyo. Stat. Ann. § 6-2-509 , was not entitled to a lesser included offense instruction on domestic battery, under Wyo. Stat. Ann. § 6-2-511 , because the domestic battery statute did not exist when defendant committed the crime. Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

Defendant, charged with strangulation of a household member, under Wyo. Stat. Ann. § 6-2-509 , was not entitled to a lesser included offense instruction on battery, under Wyo. Stat. Ann. § 6-2-501(b), because nothing showed defendant attacked the victim other than by applying pressure to the victim's neck or throat or that the pressure applied caused pain without impeding the victim's breathing, so a jury could not rationally find defendant battered the victim without strangling the victim. Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

When defendant was charged with strangulation of a household member, an alleged factual dispute about whether defendant and the victim were household members, under Wyo. Stat. Ann. § Wyo. Stat. Ann. § 35-21-102(a)(iv)(B), (D) and (H), did not entitle defendant to a lesser included offense instruction because there was no evidentiary support for the notion that they were not household members, since, at least, they were involved in a dating relationship. Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

Evidence sufficient. —

Evidence that the victim had extensive petechiae around her neck and ears, complained of a headache to the emergency room nurse, and was diagnosed with asphyxiation, or oxygen deprivation by a doctor, was sufficient to establish that the victim experienced bodily injury as defined by Wyo. Stat. Ann. § 6-1-104 , and as required to prove strangulation. Davis v. State, 2017 WY 147, 406 P.3d 1233, 2017 Wyo. LEXIS 153 (Wyo. 2017).

Battery lesser included offense of strangulation of a household member. —

Battery is a lesser included offense of strangulation of a household member because (1) the crimes share the same mental element and require bodily injury by some type of physical force, and (2) strangulation also requires proof that the victim was a household member and the defendant caused bodily injury by impeding the victim's normal breathing with the specific physical force of pressure to the throat or neck, so the elements of the lesser crime (battery) are a subset of the greater crime (strangulation). Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

Quoted in

Cecil v. State, 2015 WY 158, 2015 Wyo. LEXIS 174 (Dec. 29, 2015).

§ 6-2-510. Domestic assault.

  1. A household member is guilty of domestic assault if, having the present ability to do so, he unlawfully attempts to cause bodily injury to another household member.
  2. Domestic assault is punishable as follows:
    1. By imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both;
    2. By imprisonment  for not more than one (1) year, a fine of  not more than seven hundred fifty dollars ($750.00), or both, if the  person has previously been convicted of domestic assault or if the  person has previously been convicted of the following or similar offense  against another household member:
      1. Domestic battery under W.S. 6-2-511 ;
      2. Simple assault under W.S. 6-2-501(a);
      3. Battery under W.S. 6-2-501(b);
      4. Aggravated assault and battery under W.S. 6-2-502 ;
      5. Child abuse  under W.S. 6-2-503 ;
      6. Reckless endangering under W.S. 6-2-504 ;
      7. Unlawful contact under W.S. 6-2-501(g);
      8. Strangulation of a household member under W.S. 6-2-509 ;
      9. Kidnapping under W.S. 6-2-201 ;
      10. Felonious restraint under W.S. 6-2-202 ;  or
      11. False imprisonment under W.S. 6-2-203 .
  3. If a person  sentenced under paragraph (b)(i) or (ii) of this section is placed on probation, the court may, notwithstanding  any other provision of law, impose a term of probation exceeding the  maximum one (1) year imprisonment,  provided the term of probation, including extensions, shall not exceed three (3) years.
  4. As used in this section:
    1. “Convicted” means a person has been convicted upon a plea of guilty or no contest or has been found guilty;
    2. “Household member” means as defined in W.S. 35-21-102 ;
    3. “Similar offense” means a substantially similar law of this or any other state, tribe or territory.

History. Laws 2014, ch. 13, § 1; 2017, ch. 172, § 1; 2018, ch. 88, § 1.

The 2017 amendment , effective July 1, 2017, substituted “term of probation” for “term or probation” near the end.

The 2018 amendment, effective July 1, 2018, in (b)(i), inserted “imprisonment for not more than six (6) months” and added “or both” at the end; in (b)(ii), substituted “than one (1) year” for “than six (6) months”; added (b)(ii)(G) through (M); in (c), substituted “paragraph (b)(i) or (ii) of this” for “paragraph (b)(ii) of this,” “maximum one (1) year imprisonment” for “maximum six (6) months imprisonment,” and “exceed three (3) years” for “exceed one (1) year”; and made a stylistic change.

Effective dates. —

Laws 2014, ch. 13, § 4, makes the act effective July 1, 2014.

§ 6-2-511. Domestic battery.

  1. A household member is guilty of domestic battery if he knowingly or recklessly causes bodily injury to another household member by use of physical force.
  2. Domestic battery is punishable as follows:
    1. By imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both;
    2. By imprisonment  for not more than one (1) year, a fine of not more than one thousand  dollars ($1,000.00), or both, if within the previous five (5) years,  the person has been convicted of domestic battery or any of the following or similar offenses against another household member:
      1. Domestic assault under W.S. 6-2-510 ;
      2. Simple assault under W.S. 6-2-501(a);
      3. Battery under W.S. 6-2-501(b);
      4. Aggravated assault and battery under W.S. 6-2-502 ;
      5. Child abuse  under W.S. 6-2-503 ;
      6. Reckless endangering under W.S. 6-2-504 ;
      7. Unlawful contact under W.S. 6-2-501(g);
      8. Strangulation of a household member under W.S. 6-2-509 ;
      9. Kidnapping under W.S. 6-2-201 ;
      10. Felonious restraint under W.S. 6-2-202 ;  or
      11. False imprisonment under W.S. 6-2-203 .
    3. By imprisonment  for not more than ten (10) years, a fine  of not more than ten thousand  dollars ($10,000.00), or both, if within the previous  ten (10) years, the person has been convicted of domestic battery  two (2) or more times or has been convicted of domestic battery and any of the following or similar offense  against another household member:
      1. Domestic assault under W.S. 6-2-510 ;
      2. Simple assault under W.S. 6-2-501(a);
      3. Battery under W.S. 6-2-501(b);
      4. Aggravated assault and battery under W.S. 6-2-502 ;
      5. Child abuse  under W.S. 6-2-503 ;
      6. Reckless endangering under W.S. 6-2-504 ;
      7. Unlawful contact under W.S. 6-2-501(g);
      8. Strangulation of a household member under W.S. 6-2-509 ;
      9. Kidnapping under W.S. 6-2-201 ;
      10. Felonious restraint under W.S. 6-2-202 ;  or
      11. False imprisonment under W.S. 6-2-203 .
  3. If a person  sentenced under paragraph (b) (i) or (ii) of this section is placed on probation, the court may, notwithstanding  any other provision of law, impose a term of probation exceeding the  maximum imprisonment of one (1) year, provided the term of probation,  including extensions, shall not exceed three (3) years.
  4. As used in this section:
    1. “Convicted” means a person has been convicted upon a plea of guilty or no contest or has been found guilty;
    2. “Household member” means as defined in W.S. 35-21-102 ;
    3. “Similar offense” means a substantially similar law of this or any other state, tribe or territory.

History. Laws 2014, ch. 13, § 1; 2017, ch. 172, § 1; 2018, ch. 88, § 1.

The 2017 amendment , effective July 1, 2017, substituted “term of probation” for “term or probation” near the end.

The 2018 amendment, effective July 1, 2018, added (b)(ii)(G) through (M); in (b)(iii), substituted “ten (10) years” for “five (5) years” and “ten thousand dollars ($10,000.00)” for “two thousand dollars ($2,000.00)”; added (b)(iii)(G) through (M); in (c), substituted “paragraph (b)(i) or (ii) of this section” for “paragraph (b)(ii) of this section” and “exceed three (3) years” for “exceed two (2) years”; and made stylistic changes.

Effective dates. —

Laws 2014, ch. 13, § 4, makes the act effective July 1, 2014.

Victim impact evidence relevant.—

Double jeopardy.—

Lesser included offense instructions. —

Victim impact evidence relevant.—

In connection with defendant’s conviction of strangulation of a household member and domestic battery, because victim impact evidence was relevant, defendant failed to establish plain error; the challenged testimony regarding a description of the shelter and apartment where the victim stayed was not likely to arouse the jury’s passions, plus the defense raised the prospect that the availability of free services from the agency provided a motive for the victim to make a false report, which was directly related to the victim’s credibility. Dumas v. State, 2018 WY 120, 428 P.3d 449, 2018 Wyo. LEXIS 124 (Wyo. 2018).

Double jeopardy.—

It was not plain error to convict defendant of both strangulation of a household member and the lesser-included offense of domestic battery because the convictions did not violate a clear and unequivocal rule of law, as the convictions did not violate double jeopardy since the crimes arose from separate and distinct acts, as the underlying acts occurred in different rooms and were separated by some amount of time and resulted in separate injuries to the victim. Drakeford v. State, 2017 WY 115, 402 P.3d 980, 2017 Wyo. LEXIS 121 (Wyo. 2017).

Lesser included offense instructions. —

Defendant, charged with strangulation of a household member, under Wyo. Stat. Ann. § 6-2-509 , was not entitled to a lesser included offense instruction on domestic battery, under Wyo. Stat. Ann. § 6-2-511 , because the domestic battery statute did not exist when defendant committed the crime. Nickels v. State, 2015 WY 85, 351 P.3d 288, 2015 Wyo. LEXIS 96 (Wyo. 2015).

Article 6. Justification

Effective dates. —

Laws 2008, ch. 109, § 3, makes the act effective July 1, 2008.

§ 6-2-601. Applicability of article.

The common law shall govern in all cases not governed by this article.

History. Laws 2008, ch. 109, § 1.

Effective dates. —

Laws 2008, ch. 109, § 3, makes the act effective July 1, 2008.

§ 6-2-602. Use of force in self defense; no duty to retreat.

  1. 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 prevent imminent death or serious bodily injury to the person employing the deadly force or to another person. As used in this subsection, “necessary to prevent” includes a necessity that arises from an honest belief that the danger exists whether the danger is real or apparent.
  2. A person is presumed to have held a reasonable fear of imminent peril of death or serious bodily injury to himself or another when using defensive force, including deadly force if:
    1. The intruder against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, another’s home or habitation or, if that intruder had removed or was attempting to remove another against his will from his home or habitation; and
    2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring.
  3. The presumption set forth in subsection (b) of this section does not apply if:
    1. The person against whom the defensive force is used has a right to be in or is a lawful resident of the home or habitation, such as an owner, lessee or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
    2. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
    3. The person against 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.
  4. A person who unlawfully and by force enters or attempts to enter another’s home or habitation is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
  5. A person who is attacked in any place where the person is lawfully present shall not have a duty to retreat before using reasonable defensive force pursuant to subsection (a) of this section provided that he is not the initial aggressor and is not engaged in illegal activity.
  6. 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 defensive force.
  7. As used in this section:
    1. “Habitation”  means any structure which is designed or adapted for overnight accommodation,  including, but not limited to, buildings, modular units, trailers,  campers and tents, but does not include  the inmate housing area of a jail, state penal institution or other  secure facility under contract with the department of corrections  to house inmates;
    2. “Home” means any occupied residential dwelling place other than the inmate housing area of a jail, state  penal institution or other secure facility under contract with the  department of corrections to house inmates;
    3. “Deadly force” means force that is intended or likely to cause death or serious bodily injury.

History. Laws 2008, ch. 109, § 1; 2011, ch. 142, § 1; 2018, ch. 26, § 1; ch. 135, § 1.

The 2011 amendment, effective July 1, 2011, in (b)(i), substituted “home or habitation” for “occupied structure”; and added (d).

The 2018 amendments. — The first 2018 amendment, by ch. 26, § 1, effective July 1, 2018, in (b)(iii), inserted “or employee of the Wyoming department of corrections”; in (d)(i), added “but does not include the inmate housing area of a jail, state penal institution or other secure facility under contract with the department of corrections to house inmates” at the end; and in (d)(ii), added “other than the inmate housing area of a jail, state penal institution or other secure facility under contract with the department of corrections to house inmates” at the end.

The second 2018 amendment, by ch. 135, § 1, effective July 1, 2018, added (a); redesignated former (a) through (c) as (b) through (d); in (b), substituted “force, including deadly force if” for “force that is intended or likely to cause death or serious bodily injury to another if”; in (c)(iii), inserted “or employee of the Wyoming department of corrections” following “peace officer”; added (e) and (f); redesignated former (d) as (g); added (g)(iii); and made related changes.

This section is set out as reconciled by the Wyoming legislative service office.

Effective dates. —

Laws 2008, ch. 109, § 3, makes the act effective July 1, 2008.

Charges properly dismissed.—

Construction.—

Jury instructions.—

Charges properly dismissed.—

Trial court did not err by dismissing the first-degree murder charge against defendant because an eyewitness stated that defendant stepped back into his home when the victim charged up the steps, another eyewitness stated that the victim sprinted straight for defendant, defendant told the officers he closed the door and the victim opened it and entered his home, and defendant said that the victim rushed him and he shot the victim. Because defendant was not the initial aggressor he did not have a duty to retreat. State v. John, 2020 WY 46, 460 P.3d 1122, 2020 Wyo. LEXIS 48 (Wyo. 2020).

Construction.—

Subsection (f) is a mandatory immunity provision carrying with it a judicial gatekeeping function following the preliminary hearing. The accused must present a prima facie showing that subsection (f) applies; if the accused satisfies this minimal burden, the burden shifts to the State to establish by a preponderance of the evidence that subsection (f) does not apply. State v. John, 2020 WY 46, 460 P.3d 1122, 2020 Wyo. LEXIS 48 (Wyo. 2020).

Subsection (f) immunity claim does not constitute an objection based on defects in the institution of the prosecution, which the accused must raise before trial. The broad language at the beginning of Wyo. R. Crim. P. 12(b), however, permits the court to hear any defense, objection, or request capable of determination without trial; an accused may raise his subsection (f) immunity claim in reliance on that broad language. State v. John, 2020 WY 46, 460 P.3d 1122, 2020 Wyo. LEXIS 48 (Wyo. 2020).

Jury instructions.—

Trial court did not abuse its discretion by declining defendant's request to instruct the jury on self-defense in a home or habitation where he provided no authority interpreting the definition of “habitation” to include vehicles and no authority supporting his claim that a vehicle may be “adapted” for overnight accommodation simply by choosing to sleep in it. 2016 WY 1, 2016 Wyo. LEXIS 1 .

Article 7. Human Trafficking

Editor's notes. —

Laws 2013, ch. 91, § 3, directs: “(a) The division of victim services shall continue to provide training regarding provisions of this act to be used for presentation to law enforcement agencies, the law enforcement academy, prosecutors, public defenders, judges and others involved in the juvenile and criminal justice systems. The training may include:

“(i) State and federal laws on human trafficking;

“(ii) Methods used to identify United States citizen and foreign national victims of human trafficking;

“(iii) Methods of prosecuting human traffickers; and

“(iv) Methods of protecting the rights of victims of human trafficking, including collaboration with nongovernmental and other social service agencies in the course of investigating and prosecuting human trafficking cases.”

Effective dates. —

Laws 2013, ch. 91, § 4, makes the act effective July 1, 2013.

§ 6-2-701. Definitions.

  1. As used in this article:
    1. “Benefit” means anything of value;
    2. “Coercion” means any one (1) or more of the following:
      1. The use or threat of force, abduction, serious harm to or physical restraint against any individual;
      2. The use of a scheme, plan, pattern or fraudulent statement with intent to cause an individual to believe that failure to perform an act will result in serious harm to or physical restraint against any individual;
      3. The abuse or threatened abuse of the law or legal process;
      4. The abuse of a position of power or taking advantage of a position of vulnerability;
      5. Providing a controlled substance to an individual for the purpose of controlling the person’s behavior;
      6. Interfering with lawful custody of or access to an individual’s children;
      7. The destruction of, taking of or the threat to destroy or take an individual’s identification document;
      8. The use of an individual’s personal services as security payment or satisfaction for a real or purported debt if:
        1. The reasonable value of the services is not applied toward the liquidation of the debt;
        2. The length of the services is not limited and their nature is not defined;
        3. The principal amount of the debt does not reasonably reflect the value of the items or services for which the debt was incurred; or
        4. The individual is prevented from acquiring accurate and timely information about the disposition of the debt.
    3. “Commercial sex act” means any sexual act for which anything of value is given to, promised or received by a person in exchange for the sexual act;
    4. “Deception” means:
      1. A person’s creation or confirmation of an individual’s impression of material fact or event which is false and which the person knows or has reason to believe is false, including:
        1. The nature of labor or services to be provided;
        2. The fundamental conditions of labor; or
        3. The extent to which the individual will be free to leave the individual’s place of residence or workplace; and
      2. The promise of a benefit to or performance of a service to an individual which the person does not intend to be delivered or performed.
    5. “Financial harm” means a detrimental position in relation to wealth, property or other monetary benefits that occurs as a result of another person’s illegal act including, but not limited to, blackmail, promoting of prostitution or illegal employment contracts;
    6. “Forced services” means services performed or provided by a person that are obtained or maintained by another person who:
      1. Causes or threatens to cause serious harm to any person;
      2. Physically restrains or threatens to physically restrain another person;
      3. Abuses or threatens to abuse the law or legal process;
      4. Knowingly destroys, conceals, removes or confiscates any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person;
      5. Engages in blackmail; or
      6. Causes or threatens to cause financial harm to any person.
    7. “Identification document” includes a passport, driver’s license, immigration document, travel document and any other government issued identification document;
    8. “Labor” means work of economic or financial value;
    9. “Minor” means any natural person younger than eighteen (18) years of age;
    10. “Pecuniary damage” means all damages which a victim could recover against the defendant in a civil action arising out of the same facts or event, including damages for wrongful death. It does not include punitive damages and damages for pain, suffering, mental anguish and loss of consortium;
    11. “Person” means an individual, partnership, corporation, joint stock company or any other association or entity, public or private;
    12. “Restitution” means full or partial payment of pecuniary damage to a victim;
    13. “Serious harm” means physical or nonphysical harm or property damage, including, but not limited to, bodily injury as defined in W.S. 6-1-104(a)(i), economic loss as defined in W.S. 1-40-102(a)(v), personal injury as defined in W.S. 1-40-102(a)(vii) or reputational harm sufficient to compel a reasonable person of the same background and in the same circumstance of the victim, to perform or to continue performing labor, a service or a commercial sex act in order to avoid incurring that harm;
    14. “Services” means activities resulting from a relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor. Commercial sexual activity is “services” in this article. Nothing in this definition may be construed to legitimize or legalize prostitution;
    15. “Victim” means the person alleged to have been subjected to human trafficking;
    16. “This act” means W.S. 6-2-701 through 6-2-710 .

History. Laws 2013, ch. 91, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 6-2-702. Human trafficking in the first degree; penalty.

  1. A person is guilty of human trafficking in the first degree when the person intentionally or knowingly recruits, transports, transfers, harbors, receives, provides, obtains, isolates, maintains or entices an individual for the purpose of:
    1. Forced labor or servitude in violation of W.S. 6-2-704 ;
    2. Sexual servitude in violation of W.S. 6-2-705 ; or
    3. Sexual servitude of a minor in violation of W.S. 6-2-706 .
  2. Except as provided in W.S. 6-2-712(a), human trafficking in the first degree is a felony punishable by imprisonment for not less than five (5) nor more than fifty (50) years unless the victim is a minor in which case it is a felony punishable by imprisonment for not less than twenty-five (25) nor more than fifty (50) years and a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 2013, ch. 91, § 1; 2020, ch. 1, § 2.

The 2020 amendment, effective July 1, 2020, added “Except as provided in W.S. 6-2-712(a)” in the beginning of (b).

§ 6-2-703. Human trafficking in the second degree; penalty.

  1. A person is guilty of human trafficking in the second degree when the person recklessly recruits, transports, transfers, harbors, receives, provides, obtains, isolates, maintains or entices an individual for the purpose of:
    1. Forced labor or servitude in violation of W.S. 6-2-704 ;
    2. Sexual servitude in violation of W.S. 6-2-705 ;
    3. Sexual servitude of a minor in violation of W.S. 6-2-706 .
  2. Except as provided in W.S. 6-2-712(a), human trafficking in the second degree is a felony punishable by imprisonment for not less than two (2) nor more than twenty (20) years and a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 2013, ch. 91, § 1; 2020, ch. 1, § 2.

The 2020 amendment, effective July 1, 2020, added “Except as provided in W.S. 6-2-712(a)” in the beginning of (b).

§ 6-2-704. Forced labor or servitude; penalty.

  1. A person is guilty of forced labor or servitude when the person intentionally, knowingly or recklessly uses coercion, deception or fraud to compel an individual to provide forced services.
  2. Intentionally, knowingly or recklessly compelling forced labor or servitude is a felony punishable by imprisonment for not more than fifteen (15) years and a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 2013, ch. 91, § 1.

§ 6-2-705. Sexual servitude of adult.

  1. A person is guilty of sexual servitude of an adult when the person intentionally, knowingly or recklessly uses coercion, deception or fraud to compel an individual eighteen (18) years of age or older to engage in commercial sexual services.
  2. Intentionally, knowingly or recklessly compelling the sexual servitude of an adult is a felony punishable by imprisonment for not more than three (3) years and a fine of not more than three thousand dollars ($3,000.00), or both.

History. Laws 2013, ch. 91, § 1.

§ 6-2-706. Sexual servitude of a minor.

  1. A person is guilty of sexual servitude of a minor when the person intentionally, knowingly or recklessly offers, obtains, procures or provides an individual less than eighteen (18) years of age to engage in commercial sexual services.
  2. Intentionally, knowingly or recklessly compelling the sexual servitude of a minor is a felony punishable by imprisonment for not more than five (5) years and a fine of not more than five thousand dollars ($5,000.00), or both.
  3. It is not a defense in a prosecution under this section that the individual consented to engage in commercial sexual services or that the defendant reasonably believed the individual was at least eighteen (18) years of age.

History. Laws 2013, ch. 91, § 1.

§ 6-2-707. Patronizing a victim of sexual servitude.

  1. A person is guilty of patronizing a victim of sexual servitude when the person pays, agrees to pay or offers to pay anything of value so that the person or another may engage in sexual activity with an individual when the person knows that the individual is a victim of sexual servitude in violation of W.S. 6-2-705 or 6-2-706 .
  2. Patronizing a victim of sexual servitude is a felony punishable by a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than three (3) years, or both.

History. Laws 2013, ch. 91, § 1.

§ 6-2-708. Victim defenses; vacating convictions.

  1. A victim of human trafficking is not criminally liable for any commercial sex act or other criminal acts committed as a direct result of, or incident to, being a victim of human trafficking in violation of W.S. 6-2-702 through 6-2-707 .
  2. A victim of human trafficking who is a minor shall be deemed a child in need of supervision in accordance with the Children in Need of Supervision Act or a neglected child in accordance with the Child Protection Act.
  3. At any time after the entry of a conviction, the court in which it was entered may vacate the conviction if the defendant’s participation in the offense is found to have been the result of having been a victim. Official documentation of the defendant’s status as a victim at the time of the offense from a federal, state or local government agency shall create a presumption that the defendant’s participation in the offense was a result of having been a victim, but shall not be required for granting a motion under this section.

History. Laws 2013, ch. 91, § 1.

Cross references. —

As to Children in Need of Supervision Act, see § 14-6-401 et seq.

As to Child Protection Act, see § 14-3-401 et seq.

§ 6-2-709. Victims' rights; services.

  1. As soon as possible after the initial encounter with a person who reasonably appears to a law enforcement agency, district or county and prosecuting attorneys’ office to be a victim of human trafficking, the agency or office shall:
    1. Notify the victim services division within the office of the attorney general that the person may be eligible for services under this article; and
    2. Make a preliminary assessment of whether the victim or possible victim of human trafficking appears to meet the criteria for certification as a victim of a severe form of trafficking in persons as defined in the Trafficking Victims Protection Act, 22 U.S.C. section 7105, or appears to be otherwise eligible for any federal, state or local benefits and services. If it is determined that the victim appears to meet such criteria, the agency or office shall report the finding to the victim and shall refer the victim to services available, including legal service providers. If the possible victim is a minor or is a vulnerable adult, the agency or office shall also notify the department of family services.
  2. The attorney general, a district or county and prosecuting attorney or any law enforcement official shall certify in writing to the United States Department of Justice or other federal agency, such as the United States Department of Homeland Security, that an investigation or prosecution under this article has begun and the individual who is a likely victim of a crime described in this article is willing to cooperate or is cooperating with the investigation to enable the individual, if eligible under federal law, to qualify for an appropriate special immigrant visa and to access available federal benefits. Cooperation with law enforcement shall not be required of victims of a crime described in this article who are minors. This certification shall be made available to the victim and the victim’s designated legal representative.
  3. Victims of human trafficking under W.S. 6-2-702 through 6-2-706 shall be informed of the rights enumerated in this section, the victim’s right to informed consent and the victim’s rights as a victim of crime. The victim shall also be informed of available housing, educational, medical, legal and advocacy services.
  4. Victims of human trafficking are entitled to restitution and forms of compensation under the Crime Victims Compensation Act.
  5. In a prosecution for an offense under this article, police and prosecuting agencies shall keep the identity of the victim and the victim’s family confidential. The prosecutor shall take reasonable steps to protect the victim and the victim’s family from being revictimized.

History. Laws 2013, ch. 91, § 1.

Cross references. —

As to Crime Victims Compensation Act, see § 1-40-101 et seq.

§ 6-2-710. Restitution.

  1. In addition to any other punishment prescribed by law, upon conviction for felony under this article, the court shall order a defendant to pay mandatory restitution to each victim as determined under W.S. 7-9-103 and 7-9-114 .
  2. If the victim of human trafficking to whom restitution has been ordered dies before restitution is paid, any restitution ordered shall be paid to the victim’s heir or legal representative provided that the heir or legal representative has not benefited in any way from the trafficking.
  3. The return of the victim of human trafficking to the victim’s home country or other absence of the victim from the jurisdiction shall not limit the victim’s right to receive restitution pursuant to this section.

History. Laws 2013, ch. 91, § 1.

§ 6-2-711. Asset forfeiture.

  1. The following are subject to forfeiture as permitted pursuant to subsections (c) through (j) of this section:
    1. All assets subject to the jurisdiction of the court:
      1. Used by a person while engaged in perpetrating a violation of this article;
      2. Affording a person a source of influence over a trafficked individual in violation of this article;
      3. Acquired or maintained by a person with the intent to, and for the purpose of supporting, conducting or concealing an act which violates this article; or
      4. Derived from, involved in or used or intended to be used to commit an act which violates this article.
    2. All books, records, products and materials which are used or intended for use in violation of this article;
    3. All conveyances including aircraft, vehicles or vessels, knowingly used or intended for use to transport victims or in any manner to knowingly facilitate transportation of victims for human trafficking in violation of this article are subject to forfeiture, provided:
      1. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless the owner or corporate officer is a consenting party or privy to a violation of this article;
      2. No conveyance is subject to forfeiture under this section by reason of any act committed without the knowledge or consent of the owner;
      3. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest if the secured party neither had knowledge of nor consented to the act.
    4. All buildings knowingly used or intended for use to further human trafficking in violation of this article if the owner has knowledge of or gives consent to the act of violation. A forfeiture of property encumbered by a bona fide security interest is subject to the interest if the secured party neither had knowledge of nor consented to the act;
    5. Any property or other thing of pecuniary value furnished in exchange for human trafficking in violation of this article including any proceeds, assets or other property of any kind traceable to the exchange and any money, securities or other negotiable instruments used to facilitate a violation of this article. Property used or furnished without the consent or knowledge of the owner is not forfeitable under this paragraph to the extent of the owner’s interest;
    6. Overseas assets of persons convicted of human trafficking under this article to the extent they can be retrieved by the state.
  2. Property subject to forfeiture under this article may be seized by any law enforcement officer of the state upon process issued by any district or circuit court having jurisdiction over the property. Seizure without process may be made if:
    1. The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant; or
    2. The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal, injunction or forfeiture proceeding based upon this article.
  3. Any person convicted of a violation of this article which is punishable by imprisonment for more than one (1) year shall be subject to forfeiture of property listed under subsection (a) of this section. The procedure for forfeiture shall be as provided in subsections (d) through (j) of this section.
  4. If the state seeks forfeiture of property:
    1. The indictment or information shall contain notice to the defendant that the state seeks forfeiture and shall specifically identify the property sought to be forfeited;
    2. All property shall be returned to the legal owner or person from whom it was seized unless there is a finding or verdict of guilt, an admission of guilt or a plea of nolo contendere to a felony under this act;
    3. After a finding or verdict of guilt, an admission of guilt or a plea of nolo contendere to a felony under this act is accepted, the court shall conduct a forfeiture hearing to determine if the property is subject to forfeiture under this section. If the court finds under a preponderance of evidence standard that property is subject to forfeiture, the court shall enter a preliminary order directing the forfeiture;
    4. The court may include in the preliminary order of forfeiture additional conditions reasonably necessary to preserve the property’s value pending any appeal.
  5. If the court makes a preliminary order of forfeiture of property, legal interests of persons other than a party to the criminal action shall be determined, subject to the following:
    1. Following an entry of a preliminary order of forfeiture, the state shall publish notice of the order in a newspaper of general circulation in the state once a week for two (2) weeks and shall provide written notice by first class mail to the last known address of any person who, after reasonable inquiry, appears to be a potential owner or lien holder in the property. The notice shall describe the forfeited property and shall advise that parties with a potential interest in the property may contest the forfeiture by filing a petition with the court not later than sixty (60) days after the date of the second published notice or, if notice is mailed under this paragraph, not later than thirty (30) days after mailing written notice;
    2. If a third party files a timely response asserting an interest in property subject to a preliminary order of forfeiture, the court shall conduct a hearing. The court may permit the parties to conduct discovery in accordance with the Wyoming Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. After the hearing, the court shall enter a final order of forfeiture by amending the preliminary order as necessary to account for any third party rights. If no third party files a timely petition, the preliminary order shall become the final order upon expiration of the time for filing a petition;
    3. If a defendant appeals from a conviction or a preliminary or final order of forfeiture, the court may stay the preliminary or final order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay shall not delay a hearing or a determination of a third party’s rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but shall not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record.
  6. An interest in property belonging to a third party shall not be forfeited to the extent that the third party establishes it has a perfected lien in the property or proves by a preponderance of evidence that he has a perfected security interest in the property or proves he is an innocent owner. For purposes of this subsection:
    1. With respect to a property interest in existence at the time the violation of this article took place, “innocent owner” means a person who held an interest in the property who neither had knowledge of nor consented to the violation;
    2. With respect to a property interest acquired after the violation of this article has taken place, the term “innocent owner” means a person who, at the time that person acquired the interest in the property:
      1. Was a bona fide purchaser or seller for value or a holder of a bona fide security interest in the property; and
      2. Did not know and was reasonably without cause to believe the property was used in connection with a violation of this article.
  7. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of and subject only to the orders and decrees of the court having jurisdiction over the proceedings. When property is seized under this section, the court shall place the property under seal or otherwise assure the property is maintained under conditions reasonably necessary to preserve the property’s value or may sell the property for value and hold the proceeds thereof until the forfeiture proceedings have become final as to all parties and all rights of appeal have been exhausted.
  8. A person’s interest in property is not subject to forfeiture to the extent that the forfeiture is grossly disproportionate to the gravity of the offense giving rise to the forfeiture. The state shall have the burden of demonstrating by a preponderance of the evidence that a forfeiture is not grossly disproportionate. Proportionality shall be decided by the court as follows:
    1. In determining whether a forfeiture is grossly disproportionate, the court shall consider:
      1. The extent to which the property was used or intended to be used in executing the underlying offense;
      2. The value of the property, including both its fair market and subjective value;
      3. The actions of the person involved in the activity giving rise to the forfeiture proceedings;
      4. The severity of the criminal sanctions associated with the actions of the person;
      5. Whether the property constitutes the person’s lawful livelihood or means of earning a living;
      6. Whether the offense or attempted offense has severe collateral consequences; and
      7. Any other factors the court deems necessary and relevant.
    2. If the court finds the forfeiture is grossly disproportionate to the offense, it shall reduce or eliminate the forfeiture as it finds appropriate.
  9. Within six (6) months after a final order of forfeiture is affirmed on appeal or the deadline to appeal passes without a notice of appeal being filed, the state shall, by public sale or auction, liquidate forfeited tangible property and distribute the total proceeds of the forfeiture as follows:
    1. Costs of forfeiture proceedings and the sale of forfeited property incurred by the state;
    2. Costs of storing and maintaining the forfeited property incurred by the court;
    3. The amount necessary to pay court ordered restitution shall be applied to pay that restitution;
    4. Civil judgments entered against the forfeiting defendant in favor of that defendant’s victim, already existing at the time proceeds are received, to the extent that such judgments cannot be satisfied out of the forfeiting defendant’s assets;
    5. If a remainder exists, to the public school fund of the respective counties as provided by article 7, section 5 of the Wyoming constitution.

History. Laws 2016, ch. 76, § 1.

Effective date. —

Laws 2016, ch. 76, § 2, makes the act effective July 1, 2016. Approved March 4, 2016.

§ 6-2-712. Penalties for subsequent human trafficking convictions.

  1. A person who is convicted of human trafficking under W.S. 6-2-702 or 6-2-703 shall be punished by imprisonment for not less than twenty-five (25) years or for life imprisonment without parole if:
    1. The victim in the instant case was a minor;
    2. The person has one (1) or more previous convictions for a violation of W.S. 6-2-702 , 6-2-703 or a criminal statute containing the same or similar elements as the crimes defined by W.S. 6-2-702 or 6-2-703 where the victim was a minor and which arose out of separate occurrences in this state or elsewhere; and
    3. The convictions were for offenses committed after the person reached eighteen (18) years of age.

History. Laws 2020, ch. 1, § 1.

Effective date. — Laws 2020, ch. 1, § 4, makes the act effective July 1, 2020.

Chapter 3 Offenses Against Property

Cross references. —

For constitutional provision that no person shall be imprisoned for debt except in cases of fraud, see art. 1, § 5, Wyo. Const.

As to limitation of action for relief on ground of fraud, see § 1-3-106 .

As to survival of causes of action for any deceit or fraud, see § 1-4-101 .

As to forging or exhibiting forged permit with reference to transporting animals and poultry by vehicle, see § 11-21-104 .

As to prohibition against fraudulent practices in securities sales and purchases, see § 17-4-101.

As to prohibition against fraudulent practices in securities advisory activities, see § 17-4-102.

As to false statements in documents or proceedings before the secretary of state under the Uniform Securities Act, see § 17-4-116.

As to rights where partnership dissolved for fraud or misrepresentation, see § 17-21-603.

As to recount of ballots in election where candidate alleges fraud or error, see § 22-16-110 .

As to obtaining unemployment compensation benefits by fraud, see § 27-3-702 .

As to forgery of certificate of title to motor vehicle, see § 31-4-102 .

As to forging notice under the Motor Vehicle Safety-Responsibility Act, see § 31-9-106 .

As to filing forged or fictitious diploma, certificate, license, etc., in connection with practice of veterinarian medicine, see § 33-30-101 .

As to the Uniform Fraudulent Conveyances Act, see §§ 34-14-201 et seq..

As to penalty for fraudulent negotiation in commercial transactions, see § 34-16-106 .

As to unauthorized signatures under the Uniform Commercial Code, see § 34.1-3-403.

As to alteration of signatures under the Uniform Commercial Code, see § 34.1-4-207.

As to counterfeit substance under the Controlled Substances Act, see § 35-7-1002 .

For penalty as to unlawful manufacture, delivery or possession of a counterfeit substance under the Controlled Substances Act, see § 35-7-1031 .

As to acquiring substance by misrepresentation or furnishing false or fraudulent information under the Controlled Substances Act, see § 35-7-1033 .

As to cancellation of leases of state lands for fraud, see § 36-5-113 .

As to false or fraudulent representations in registering a trademark with the secretary of state, see § 40-1-110 .

As to civil liability of one who counterfeits another's trademark, see § 40-1-111 .

For authority to bring injunction against fraudulent or unconscionable conduct under the Wyoming Uniform Consumer Credit Code, see § 40-14-611 .

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility of photographs of stolen property, 94 ALR3d 357.

Applicability of best evidence rule to proof of ownership of allegedly stolen personal property in prosecution for theft, 94 ALR3d 824.

Article 1. Arson and Related Offenses

Cross references. —

As to murder during the commission of arson, see § 6-2-101 .

As to the state fire marshal investigating the origin and circumstances of fires and arresting the suspected incendiary, see §§ 35-9-109 and 35-9-110 .

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “burning” to justify charge of arson, 28 ALR4th 482.

Pyromania and the criminal law, 51 ALR4th 1243.

§ 6-3-101. Arson; first degree; aggravated arson; penalties.

  1. A person is guilty of first-degree arson if he maliciously starts a fire or causes an explosion with intent to destroy or damage an occupied structure.
  2. First-degree arson is a felony punishable by:
    1. Imprisonment for not more than twenty (20) years;
    2. A fine of not more than the greater of twenty thousand dollars ($20,000.00) or two (2) times the face amount of the insurance if the fire was started to cause collection of insurance for the loss; or
    3. Both fine and imprisonment.
  3. A person is guilty of aggravated arson if he maliciously starts a fire or causes an explosion with intent to destroy an occupied structure, under circumstances evidencing reckless disregard for human life, and serious bodily injury or death occurs to another person, either at the scene or while in emergency response to the incident.
  4. Aggravated arson is a felony punishable by:
    1. Imprisonment for not more than thirty (30) years;
    2. A fine of not more than the greater of twenty thousand dollars ($20,000.00) or two (2) times the face amount of the insurance if the fire was started to cause collection of insurance for the loss; or
    3. Both fine and imprisonment.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1993, ch. 166, § 2.

Cross references. —

For definition of “occupied structure,” see § 6-1-104 .

As to prohibition against overinsurance, see § 26-23-101 .

As to insurance adjuster investigating the cause of fires and reporting same to the insurance commissioner, see § 26-23-102 .

Specific intent. —

District court properly convicted defendant of first-degree arson because, while he claimed that his intoxication excused his actions, he intentionally set fire in a store while it was occupied by customers and employees, he admitted to police that he started the fire because he was angry about the store's customer service, he had to make decisions and take actions that required some presence of mind, witnesses who spoke to him stated that he spoke clearly before and after he started the fire, he told his mother to say he was drunk when he started the fire, and the State presented evidence that he was not intoxicated to a level that prevented him from knowing what he was doing. Harnden v. State, 2016 WY 92, 378 P.3d 611, 2016 Wyo. LEXIS 101 (Wyo. 2016).

First-degree arson was not specific intent crime prior to revision of Criminal Code, effective July 1, 1983. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983).

Malice does not have to be directed toward another. —

In a prosecution for first-degree arson, where defendant threw his roommate out and threatened to set his mobile home on fire, the trial court did not err in refusing defendant's proposed jury instruction defining the term “maliciously” because to prove arson the State did not have to prove that the malicious act was directed toward another; the fact that defendant might not have felt actual hostility toward his roommate or toward the police did not mean that he was not guilty of arson because defendant's actions placed them all in great danger and his conduct was without legal justification or excuse. Keats v. State, 2003 WY 19, 64 P.3d 104, 2003 Wyo. LEXIS 21 (Wyo. 2003).

“Occupied structure” can be vacant. —

A structure “in which a person may reasonably be expected to be present” (see § 6-1-104(a)(v)(D)) is one that is intended to be “occupied”, as stated in subsection (a) of this section, and would be perceived by any reasonable person to be an occupied structure, although unoccupied at the time. Barnes v. State, 858 P.2d 522, 1993 Wyo. LEXIS 134 (Wyo. 1993).

Officials need no warrant to remain in building for reasonable time to investigate cause of blaze after it has been extinguished. And if the warrantless entry to put out the fire and determine its cause is constitutional, the warrantless seizure of evidence while inspecting the premises for these purposes also is constitutional. Shaffer v. State, 640 P.2d 88, 1982 Wyo. LEXIS 297 (Wyo. 1982).

Quoted in

State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984); Lewis v. State, 709 P.2d 1278, 1985 Wyo. LEXIS 619 (Wyo. 1985); Strickland v. State, 2004 WY 91, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (2004).

Stated in

Chorniak v. State, 715 P.2d 1162, 1986 Wyo. LEXIS 510 (Wyo. 1986).

Cited in

Strickland v. State, 2004 WY 91, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (2004); Szymanski v. State, 2007 WY 139, 166 P.3d 879, 2007 Wyo. LEXIS 151 (Aug. 29, 2007).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Criminal Procedure — The State's Right to Appeal in Criminal Cases. State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984),” see XX Land & Water L. Rev. 723 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Vacancy or nonoccupancy of building as affecting its character as “dwelling” as regards arson, 44 ALR2d 1456.

Burning of building by mortgagor as burning property of another so as to constitute arson, 76 ALR2d 524.

Admissibility of evidence of other fires, 87 ALR2d 891.

§ 6-3-102. Arson; second degree; penalties.

  1. A person is guilty of second-degree arson if he starts a fire or causes an explosion with intent to destroy or damage any property to cause collection of insurance for the loss.
  2. Second-degree arson is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than two (2) times the face amount of the insurance, or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Circumstantial evidence usual and sufficient. —

It is not unusual for all the evidence against an accused to be circumstantial and sufficient to sustain a finding of guilty because the very nature of the crime of arson ordinarily dictates that the evidence will be circumstantial. Vialpando v. State, 494 P.2d 939, 1972 Wyo. LEXIS 238 (Wyo. 1972).

Elements of offense. —

Origin of a fire is not a “necessary fact” because it is not one of the elements of the crime of second degree arson. Thus, in a second degree arson case, the State was not required to prove where the fire started. Montee v. State, 2013 WY 74, 303 P.3d 362, 2013 Wyo. LEXIS 77 (Wyo. 2013).

Intent. —

In a case in which defendant was convicted of second degree arson, the evidence was sufficient to allow a jury to determine beyond a reasonable doubt that defendant started the fire with intent to destroy or damage the home to cause collection of insurance for the loss. Montee v. State, 2013 WY 74, 303 P.3d 362, 2013 Wyo. LEXIS 77 (Wyo. 2013).

Applied in

State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984).

Quoted in

Wilcox v. State, 670 P.2d 1116, 1983 Wyo. LEXIS 374 (Wyo. 1983); Strickland v. State, 2004 WY 91, 94 P.3d 1034, 2004 Wyo. LEXIS 118 (2004).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Criminal Procedure — The State's Right to Appeal in Criminal Cases. State v. Heiner, 683 P.2d 629, 1984 Wyo. LEXIS 284 (Wyo. 1984),” see XX Land & Water L. Rev. 723 (1985).

§ 6-3-103. Arson; third degree; penalties.

  1. A person is guilty of third-degree arson if he intentionally starts a fire or causes an explosion and intentionally, recklessly or with criminal negligence:
    1. Places another in danger of bodily injury; or
    2. Destroys or damages any property of another which has a value of two hundred dollars ($200.00) or more.
  2. Third-degree arson is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.
  3. For purposes of this article, “property of another” means a building, or other property, whether real or personal, in which any person or entity other than the offender has an interest, including an insurance or mortgage interest, which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 1993, ch. 166, § 2.

Cross references. —

For definition of “criminal negligence,” see § 6-1-104 .

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-104. Arson; fourth degree; penalties.

  1. A person is guilty of fourth-degree arson if he intentionally starts a fire or causes an explosion and intentionally, recklessly or with criminal negligence destroys or damages any property of another as defined in W.S. 6-3-103(c) which has a value of less than two hundred dollars ($200.00).
  2. Fourth-degree arson is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 1993, ch. 166, § 2.

Cross references. —

For definition of “criminal negligence,” see § 6-1-104 .

Quoted in

KAA v. State, 2001 WY 24, 18 P.3d 1159, 2001 Wyo. LEXIS 27 (Wyo. 2001).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-3-105. Negligently burning grounds; penalties.

  1. A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he, without permission of the owner and acting with criminal negligence:
    1. Sets fire to any grounds or to anything on any grounds which is the property of another; or
    2. Allows a fire to pass from the owner’s property or grounds to the injury or destruction of any property of another.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2015, ch. 116, § 1.

Cross references. —

For definition of “criminal negligence,” see § 6-1-104 .

As to duty of the state forester to extinguish forest and range fires, see § 36-2-108 .

The 2015 amendment, effective July 1, 2015, in (a)(i), deleted “woods, prairie or” preceding “grounds”; and in (a)(ii), substituted “property” for “woods.”

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Library references. —

18 Nat. Resources & Env't Law Review 18.

Am. Jur. 2d, ALR and C.J.S. references. —

Liability of one negligently causing fire for injuries sustained by person other than firefighter, 91 ALR3d 1202.

§ 6-3-106. Failure to extinguish or contain fire outside; penalty.

A person is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) if he, outside of normal agronomic or forestry practices, lights a fire outdoors and leaves the vicinity of the fire without extinguishing it or containing it so it does not spread or conditions are such that the fire is not reasonably likely to spread.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2015, ch. 116, § 1.

The 2015 amendment, effective July 1, 2015, rewrote the section, which formerly read: “A person is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($ 750.00) if he lights a fire in any woods or on any prairie and leaves the vicinity of the fire without extinguishing it or containing it so it does not spread and is not likely to spread.”

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Library references. —

18 Nat. Resources & Env't Law Review 18.

§ 6-3-107. Throwing burning substance from vehicle; penalties.

A person who throws a burning substance from a vehicle is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-108. Definitions for W.S. 6-3-108 through 6-3-110.

  1. As used in W.S. 6-3-108 through 6-3-110 :
    1. “Authorized agency” means any of the following agencies or officials when authorized or required to investigate or prosecute alleged arson:
      1. The state fire marshal or his designee;
      2. A county and prosecuting or district attorney;
      3. The attorney general or his designee;
      4. A fire department;
      5. A county sheriff’s department, the Wyoming state highway patrol or municipal police department;
      6. The federal bureau of investigation or any other federal agency;
      7. The United States attorney’s office; and
      8. The state insurance commissioner or his designee.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1999, ch. 29, § 1.

Cross references. —

As to attorney general, see § 9-1-601 .

As to insurance commissioner, see § 26-2-102 .

As to state fire marshal, see § 35-9-104 .

Editor's notes. —

There is no paragraph (a)(ii) or subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-109. Information provided by insurers; notice of nonaccidental fires; release of information; immunity.

  1. Upon receipt of a written request from an authorized agency, an insurance company shall release to the authorized agency all information requested by the agency relating to a fire loss. The information may include:
    1. The application for the policy;
    2. Insurance policy information relevant to the insured;
    3. Policy premium payment records;
    4. The insured’s history of claims; and
    5. Material from an investigation of the loss, including statements, proof of loss and other relevant information.
  2. An insurance company which has reason to believe a fire loss was caused by other than accident shall notify an authorized agency in writing and upon request shall provide all information developed in the company’s inquiry into the fire loss. Notice to any authorized agency is sufficient notice under W.S. 6-3-108 through 6-3-110 .
  3. Upon request, an authorized agency may release to any other authorized agency information obtained pursuant to subsections (a) and (b) of this section.
  4. An insurance company which provided information to an authorized agency pursuant to subsections (a) and (b) of this section may request relevant information from an authorized agency. Within a reasonable time, the authorized agency may provide the requested information.
  5. Any insurance company or person acting in its behalf or authorized agency who releases information, whether oral or written, is immune from any liability arising out of a civil action or any penalty resulting from a criminal prosecution which occurs incident to the release of the information unless willful misstatement, attempted duress or malice is shown.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Immunity from civil rights actions. —

An insurer's supplying of information under this section concerning suspected arson to state authorities, standing alone, does not invest it with the requisite color of state law for purposes of civil rights actions under 42 USCS § 1983 since such behavior does not suggest any joint action with the state. Hatch v. State Farm Fire & Casualty Co., 842 P.2d 1089, 1992 Wyo. LEXIS 187 (Wyo. 1992).

Cited in

Hall v. State, 851 P.2d 1262, 1993 Wyo. LEXIS 88 (Wyo. 1993).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-110. Information to be held in confidence.

An authorized agency or insurance company which receives information pursuant to W.S. 6-3-108 through 6-3-110 shall hold the information in confidence except when release is authorized by the source of the information, by W.S. 6-3-108 through 6-3-110 or by a court of competent jurisdiction.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Applied in

Hatch v. State Farm Fire & Cas. Co., 930 P.2d 382, 1997 Wyo. LEXIS 9 (Wyo. 1996).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-111. Possession, manufacture, transportation and sale of explosives, improvised explosive device, or incendiary apparatus with unlawful intent prohibited; penalties; definition; exception.

  1. As used in this section:
    1. “Explosive” means any chemical or mechanical compound, substance or mixture that is commonly used or intended to cause an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packing that an ignition by fire, friction, concussion, percussion or by detonation of any part of the compound or mixture is likely to cause such a sudden generation of heated gases that the resultant gaseous pressures are capable of producing destructive effects on nearby objects, or of destroying life or limb;
    2. “Improvised explosive device” means any device, not commercially manufactured in the ordinary course of interstate commerce, which contains explosives as defined by paragraph (i) of this subsection;
    3. “Incendiary apparatus” means any fuse, accelerant, time delay ignition apparatus, mechanism, device or material or combination of materials designed, devised or reasonably calculated to cause, spread or accelerate the rate of burning of a fire, or to cause additional damage at or by a fire, or to cause an explosion in connection with a fire;
    4. The terms “explosive,” “improvised explosive device” and “incendiary apparatus” shall be construed to include and refer to any explosive, incendiary, bomb, grenade, rocket having a propellant charge of more than four (4) ounces, missile having an explosive or incendiary charge of more than one-quarter (1/4) ounce, mine or similar device containing or represented to contain any poison gas, nerve gas, biological agent or other chemical or substance capable of causing death or serious physical injury.
  2. Any person who possesses, manufactures, transports, sells or delivers to another person any explosive, improvised explosive device, or incendiary apparatus, with the intent unlawfully to endanger the life or physical well being of another, to commit assault or battery or to inflict bodily harm or injury upon the person of another, or with the intent to assist another person to do the same, is guilty of a felony. Upon conviction, he shall be punished by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. Any person who possesses, manufactures, transports, sells or delivers to another person any explosive, improvised explosive device, or incendiary apparatus, with the intent to cause injury or damage to the property of another as defined in W.S. 6-3-103(c), or with the intent to assist another person to do the same, is guilty of a felony. Upon conviction, he shall be punished by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.
  4. A person is guilty of intimidation by explosive device if he knowingly, and with the intent to threaten, intimidate or terrorize another person, uses any object or material and represents it to be an explosive, improvised explosive device or incendiary apparatus, and thereby places another person in reasonable fear of imminent physical harm. Upon conviction he shall be punished by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  5. Nothing contained in this section shall be construed to apply to any law enforcement officer if performed in the lawful performance of his official duties, nor to any person customarily engaged in the lawful business of manufacture, transportation, sale or use of such materials and devices, if performed in the ordinary course of business and without the criminal intent described in this section, nor to any person actually and lawfully engaged in demolition activity on a ranch, farm or construction site with the authority of the owner thereof, and acting without the criminal intent described in this section.

History. Laws 1993, ch. 166, § 1.

Evidence sufficient. —

Sufficient evidence was presented on each of the elements concerning the charge of possessing explosives with the intent to endanger another and to find that the blasting caps found in defendant's residence were explosives; defendant was identified as a certified blaster who was responsible for reviewing and keeping inventory of the explosives at his jobsite, defendant was without permission to remove any such explosive materials from the site, and a bomb squad officer testified and identified these blasting caps as being very effective and of high-grade quality. Manes v. State, 2004 WY 33, 86 P.3d 1274, 2004 Wyo. LEXIS 36 (Wyo. 2004).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-3-112. Preventing or obstructing extinguishment of fire; interference with firefighter; penalties.

  1. A person who willfully injures, destroys, removes or in any manner interferes with the use of any vehicle, tools, equipment, water supplies, hydrants, towers, buildings, communications facilities, or other instruments or facilities used in the detection, reporting, suppression or extinguishing of fire is guilty of a misdemeanor. Upon conviction, he shall be punished by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.
  2. A person who willfully and unreasonably hinders or interferes with a firefighter in the performance of his official duties, or attempts to do so with the intention of interfering with the firefighting effort, is guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.

History. Laws 1993, ch. 166, § 1.

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Article 2. Property Destruction and Defacement

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-201. Property destruction and defacement; grading; penalties; aggregated costs or values.

  1. A person is guilty of property destruction and defacement if he knowingly defaces, injures or destroys property of another without the owner’s consent.
  2. Property destruction and defacement is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the cost of restoring injured property or the value of the property if destroyed is less than one thousand dollars ($1,000.00);
    2. Repealed by Laws 1985, ch. 44, § 2.
    3. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the cost of restoring injured property or the value of the property if destroyed is one thousand dollars ($1,000.00) or more.
  3. If a series of injuries results from a single continuing course of conduct, a single violation of this section may be charged and penalties imposed based upon the aggregate cost or value of the property injured or destroyed.

History. Laws 1982, ch. 75, § 3; 1985, ch. 44, §§ 1, 2; 2004, ch. 126, § 1.

The 2004 amendment, effective July 1, 2004, in (b)(i) and (iii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

Constitutionality. —

The word “willfully” as used in former statute was not vague or ambiguous and did include and comprehend an unlawful and evil intent. It therefore was not violative of the due process standard of art. 1, § 6, Wyo. Const., as being vague or overbroad. Todd v. State, 566 P.2d 597, 1977 Wyo. LEXIS 271 (Wyo. 1977).

Burglary and property destruction separate offenses. —

Burglary requires unauthorized entry of a building or vehicle; property destruction does not. Property destruction requires unauthorized destruction or injury to property; burglary does not. Even though both violations can arise from the same incident, each has an element not found in the other; burglary and property destruction are defined by different statutes with different elements and provide separate penalties and, therefore, constitute two separate offenses. Longstreth v. State, 890 P.2d 551, 1995 Wyo. LEXIS 13 (Wyo. 1995).

Injury to property. —

Jury instruction did not impermissibly permit a conviction when property was injured, not destroyed, where the statutory language is disjunctive, permitting a conviction for defacing, injuring, or destroying property. Christian v. State, 883 P.2d 376, 1994 Wyo. LEXIS 132 (Wyo. 1994).

Broad measure of damages. —

Wyo. Stat. Ann. § 6-3-201(a) unambiguously provides the broad measure of damages, which was here the cost of restoring the victim's truck, and that it was up to the jury to decide the reasonable cost of restoring the truck, and as part of that decision to determine whether to use the cost of used glass or new for the truck windows, and whether the camper shell was part of the truck or a separate item. Roden v. State, 2007 WY 200, 173 P.3d 369, 2007 Wyo. LEXIS 213 (Wyo. 2007).

Evidence sufficient for conviction. —

In a trial for injuring or destroying property of another, the only element of the crime in issue was the identity of defendant, and the circumstantial evidence from which identity could be inferred consisted of defendant's prior statement that he was considering slashing the victim's tires and no one would be able to prove it, his continuing attitude of hostility directed toward interfering with adoption proceedings evidencing motive, his phone call that he was going to come and pick up the child on the night in which the damage occurred, testimony that he was in the area on that night until 1:30 in the morning which rebutted a hearsay alibi, the fact that no one else in the vicinity suffered damage at that time, and the failure to deny the conduct when victim asked him about it. When this evidence is examined in the light most favorable to the state, it justifies the inference of identity and the conclusion that the jury properly found defendant guilty beyond a reasonable doubt. Coleman v. State, 741 P.2d 99, 1987 Wyo. LEXIS 489 (Wyo. 1987).

State presented sufficient evidence to prove that the damages amounted to $1,000 or more because the victim and a manager from an automobile glass company testified that he paid $1,715 to fix the windows on the truck and the camper shell; defendant was allowed to present evidence suggesting that figure was too high and it was reasonable for the jury to determine that it was impractical, impossible, or unreasonable to replace the broken truck windows with used glass. Roden v. State, 2007 WY 200, 173 P.3d 369, 2007 Wyo. LEXIS 213 (Wyo. 2007).

Where defendant and his wife rented a home and garage, where defendant after arguing with his wife drove his pickup truck through the closed garage door and struck his wife's car, which was parked inside the garage, and where defendant did so a second time, this time driving his wife's car through the garage's rear wall, the trial court did not err in denying defendant's motion for a judgment of acquittal, and the evidence was sufficient to support defendant's conviction of felony property destruction under Wyo. Stat. Ann. § 6-3-201(a) because a person was guilty of property destruction if he knowingly defaced, injured, or destroyed another's property without the owner's consent. That defendant held a possessory interest in the property did not vest with him consent to destroy it; thus, defendant could be found guilty because he knowingly damaged or destroyed rented or leased property without the landlord's consent. Fuller v. State, 2010 WY 55, 230 P.3d 309, 2010 Wyo. LEXIS 57 (Wyo. 2010).

Defendant was not entitled to a judgment of acquittal under Wyo. Stat. Ann. § 6-3-201 (2017) because he only disassembled a motorcycle where it was intact when the victims left it, but was disassembled, lacking essential parts, and not functioning when it was located. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

Evidence was sufficient to convict defendant of property destruction as his voluntary and intentional conduct of eluding police in a high-speed chase and driving while under the influence of methamphetamine was the conduct that caused damage to a victim’s vehicle and the planter and tree owned by a city. Childers v. State, 2021 WY 93, 2021 Wyo. LEXIS 102 (Wyo. 2021).

Jury instructions. —

Even though it might have been appropriate for the trial court to insert the word “reasonable” in the jury instructions concerning the value of the victim's injured truck, given the court's conclusion that the jury could consider the reasonable cost of repair or restoration, it was not reversible error for the trial court to adhere to the language of Wyo. Stat. Ann. § 6-3-201(a) and the pattern jury instructions and to refuse the last-minute request to change the jury instructions. Roden v. State, 2007 WY 200, 173 P.3d 369, 2007 Wyo. LEXIS 213 (Wyo. 2007).

Prosecutorial misconduct. —

Defendant's conviction for felony property destruction was inappropriate because the prosecutor misstated the law during closing argument when she told the jury that all the State had to show was that defendant jumped on the car, and that it did not have to show that he intended to damage it; Wyo. Stat. Ann. § 6-3-201 required proof that defendant deliberately damaged the vehicle or intended that result. Considering the evidence that defendant was goofing around was running from a girl before sliding across the roof of the victim's car in the process, there was a reasonable probability that the verdict would have been more favorable to defendant but for the prosecutor's misstatement to the jury. Morris v. State, 2009 WY 88, 210 P.3d 1101, 2009 Wyo. LEXIS 96 (Wyo. 2009).

Probation Revocation. —

Upon defendant's plea of no contest to one count of property destruction, the district court sentenced defendant to a suspended term of imprisonment of four to seven years, placed him on four years of supervised probation under specified terms and conditions, and ordered him to pay restitution in the amount of $ 8,570.47. When defendant violated the terms of his probation by failing to pay restitution, the district court did not abuse its discretion by revoking his probation and reinstating his original prison sentence; the existence of other alleged violations did not taint the district court's decision. Foster v. State, 2010 WY 135, 240 P.3d 200, 2010 Wyo. LEXIS 143 (Wyo. 2010).

Quoted in

Bradley v. State, 635 P.2d 1161, 1981 Wyo. LEXIS 391 (Wyo. 1981).

Stated in

WJH v. State, 2001 WY 54, 24 P.3d 1147, 2001 Wyo. LEXIS 63 (Wyo. 2001).

Cited in

Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979); Keller v. State, 723 P.2d 1244, 1986 Wyo. LEXIS 604 (Wyo. 1986); Young v. State, 904 P.2d 359, 1995 Wyo. LEXIS 191 (Wyo. 1995); Grainey v. State, 997 P.2d 1035, 2000 Wyo. LEXIS 45 (Wyo. 2000); Wheaton v. State, 2003 WY 56, 68 P.3d 1167, 2003 Wyo. LEXIS 69 (Wyo. 2003); Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003); Gibbs v. State, 2008 WY 79, 187 P.3d 862, 2008 Wyo. LEXIS 82 (July 14, 2008); Landeroz v. State, 2011 WY 168, 267 P.3d 1075, 2011 Wyo. LEXIS 176 (Dec. 28, 2011); Grimes v. State, 2013 WY 84, 304 P.3d 972, 2013 Wyo. LEXIS 89 (Jul 11, 2013).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-202. Altering landmarks; penalties.

  1. A person is guilty of altering landmarks if, with intent to destroy or deface the mark on a monument, landmark or bearing-tree designating the corner or boundary of a tract of land, he knowingly:
    1. Displaces the monument or landmark;
    2. Defaces or alters the mark; or
    3. Breaks, cuts down or removes the monument, landmark or bearing-tree.
  2. Altering landmarks is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-203. Cruelty to animals; penalties; limitation on manner of destruction. [Repealed]

History. Laws 1982, ch. 75, § 3; 1985, ch. 174, § 1; 1987, ch. 91, §§ 1, 2; 1994, ch. 23, § 1; 2000, ch. 86, §§ 1, 2; 2003, ch. 165, § 1; 2008, ch. 19, § 1; 2011, ch. 177, § 1; 2017, ch. 141, § 1; 2018, ch. 108, § 1; 2019, ch. 181, § 1; Repealed by Laws 2021, ch. 30, § 3.

§ 6-3-204. Littering; penalties.

  1. A person is guilty of littering if he places, throws, scatters or deposits garbage, debris, refuse or waste material, objects or substances, including abandoned or junked vehicles, upon the property of another. Operators of motor vehicles are responsible under this section for the disposition or ejection of garbage, debris or other material from the vehicle while the vehicle is being operated on the roads or highways of this state.
  2. This section does not apply to discharges which are regulated, controlled or limited by air, land or water quality laws or regulations.
  3. Littering is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. Littering, involving the disposal of a container with body fluids along a highway right of way, is a misdemeanor punishable by imprisonment for not more than nine (9) months, a fine of not more than one thousand dollars ($1,000.00), or both. The court may suspend all or a part of a sentence imposed under this section and require the person convicted of littering to perform up to forty (40) hours of labor in the form of cleaning litter debris from public roads, parks or other public areas or facilities.
  4. In addition to any other peace officer, game and fish law enforcement personnel qualified pursuant to W.S. 9-1-701 through 9-1-707 are authorized to enforce the provisions of this section.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1985, ch. 44, § 1; 2004, ch. 70, § 1; 2008, ch. 35, § 1.

The 2004 amendment, effective July 1, 2004, inserted the second sentence in (c).

The 2008 amendment, effective July 1, 2008, added (d).

Actions by federal agents. —

Court of appeals affirmed the district court's judgment removing a criminal case the State of Wyoming filed in state court against a federal agent and a contractor who was working for the U.S. Government, which charged them with violating Wyo. Stat. Ann. §§ 6-3-303(a) and 6-3-204(a), and dismissing the charges, because activities the agent and contractor were conducting to locate gray wolves and place radio collars on them were authorized by federal regulations, and their conduct was objectively reasonable at the time they trespassed on private land. Wyoming v. Livingston, 443 F.3d 1211, 2006 U.S. App. LEXIS 8502 (10th Cir. Wyo.), cert. denied, 549 U.S. 1019, 127 S. Ct. 553, 166 L. Ed. 2d 409, 2006 U.S. LEXIS 8388 (U.S. 2006).

Publisher's free speech rights outweigh litter prohibition.—

Publisher of a free weekly newspaper distributed door to door and through newsracks did not violate the local littering ordinance as the burden on the town was extraordinarily minor and the burden on private property was trivial. The newspaper, as a noncommercial publication, is entitled to the full protection of the Constitution of the United States and Wyoming. A town may not place a complete ban on speech, a form of prior restraint, if that speech is in a form which may eventually be viewed as litter. Miller v. City of Laramie, 880 P.2d 594, 1994 Wyo. LEXIS 99 (Wyo. 1994).

Law reviews. —

For comment, “Hazardous Waste Cleanup in Wyoming: Legal Tools Available to the Private Citizen,” see XIX Land & Water L. Rev. 395 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 3. Burglary and Criminal Intrusion

Cross references. —

As to identification of vehicles and prevention of theft, see §§ 31-11-101 to 31-11-111 .

Law reviews. —

For article, “Burglary in Wyoming,” see XXXII Land & Water L. Rev. 721 (1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Burglary, breaking or entering of motor vehicle, 72 ALR4th 710.

Belief that burglary is in progress or has recently been committed as exigent circumstance justifying warrantless search of premises, 64 ALR5th 637.

§ 6-3-301. Burglary; aggravated burglary; penalties.

  1. A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit theft or a felony therein.
  2. Except as provided in subsection (c) of this section, burglary is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. Aggravated burglary is a felony punishable by imprisonment for not less than five (5) years nor more than twenty-five (25) years, a fine of not more than fifty thousand dollars ($50,000.00), or both, if, in the course of committing the crime of burglary, the person:
    1. Is or becomes armed with or uses a deadly weapon or a simulated deadly weapon;
    2. Knowingly or recklessly inflicts bodily injury on anyone; or
    3. Attempts to inflict bodily injury on anyone.
  4. As used in this section “in the course of committing the crime” includes the time during which an attempt to commit the crime or in which flight after the attempt or commission occurred.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1985, ch. 44, § 1; 2013, ch. 191, § 2.

Cross references. —

For definition of “occupied structure,” see § 6-1-104 .

As to committing murder during the course of a burglary, see § 6-2-101 .

As to breaking and entering a building declared a nuisance, see § 6-6-204 .

The 2013 amendment , effective July 1, 2013, substituted “theft” for “larceny” in (a).

Prosecution for burglary and larceny constitutional. —

The defendant's constitutional rights against double jeopardy were not denied when the state was allowed to prosecute him for burglary and the lesser included offense of larceny in the same prosecution. Eatherton v. State, 761 P.2d 91, 1988 Wyo. LEXIS 116 (Wyo. 1988).

Sentence proportionate.—

Defendant's sentence of 10 to 25 years for aggravated burglary was not extreme because it was within the range of 5 to 25 years specified in the statute; the sentencing court properly considered in fashioning an appropriate sentence that defendant stole a gun and practiced with it, and that he then broke into a house in the middle of the night and used that gun to shoot and kill the victim in his bed, in front of his wife. Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 Wyo. LEXIS 30 (Wyo.), cert. denied, 138 S. Ct. 225, 199 L. Ed. 2d 146, 2017 U.S. LEXIS 4668 (U.S. 2017).

There was no indication in the record that the district court did not consider the evidence relating to defendant youth in issuing the sentence for aggravated burglary or in imposing the entire sentencing package because the district court evaluated evidence relating to defendant's criminal history as a juvenile, his family and home environment, his mental and emotional development, and his potential for rehabilitation; after considering that evidence, the district court concluded that a life sentence without the possibility of parole was “inappropriate.” Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 Wyo. LEXIS 30 (Wyo.), cert. denied, 138 S. Ct. 225, 199 L. Ed. 2d 146, 2017 U.S. LEXIS 4668 (U.S. 2017).

Under former statute, finding that person was in lawful possession made unnecessary any inquiry into extent of authority delegated to that person by his employer. Beane v. State, 596 P.2d 325, 1979 Wyo. LEXIS 419 (Wyo. 1979).

Formation of intent to commit murder. —

The evidence supported the jury determination that defendant committed aggravated burglary when he entered the apartment with the intent to commit first degree murder or aggravated assault where defendant had called and threatened the victim repeatedly in the two weeks preceding the shooting, drove to Cody and parked on another street away from the apartment, made sure no one was in the apartment, and then entered the apartment armed with a crowbar which he traded for the gun that he found. Kenyon v. State, 2004 WY 100, 96 P.3d 1016, 2004 Wyo. LEXIS 128 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 149 (Wyo. Sept. 29, 2004), cert. denied, 543 U.S. 1175, 125 S. Ct. 1389, 161 L. Ed. 2d 158, 2005 U.S. LEXIS 1883 (U.S. 2005).

Establishment of felonious entry. —

Entry is established by the presence of the allegedly stolen tools at closing time and their absence when the building was reopened the next morning, not more than 14 hours later, and any reasonable mind must conclude that in order to effect removal of the tools, entry was necessary, and the larceny could not have been committed without a felonious entry. Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978).

Unlawful entry as element. —

The unlawful entry element is a crucial element for differentiating the crime of burglary from other crimes such as arson. Longstreth v. State, 832 P.2d 560, 1992 Wyo. LEXIS 68 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 78 (Wyo. June 24, 1992).

In a prosecution for burglary with intent to commit arson, the state incorrectly argued that when the felony involved is arson, evidence of unlawful entry is not required, and the unlawful entry can be inferred or assumed based on the fact of the burning alone. Longstreth v. State, 832 P.2d 560, 1992 Wyo. LEXIS 68 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 78 (Wyo. June 24, 1992).

Unlawful entry is made by putting through the place broken a hand, a foot or any instrument with which it is intended to commit a felony. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Burglary committed whether person present or not. —

The crime of burglary as defined by subsection (a) of this section cannot be committed by the unauthorized entry of any vehicle, whether a person is present or not, with the intent to commit larceny therein. Collins v. State, 854 P.2d 688, 1993 Wyo. LEXIS 105 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 126 (Wyo. July 20, 1993).

Meaning of “building.” —

In former statute, the phrase “any building” was held to include all structures. Ash v. State, 555 P.2d 221, 1976 Wyo. LEXIS 219 (Wyo. 1976), cert. denied, 434 U.S. 842, 98 S. Ct. 139, 54 L. Ed. 2d 106, 1977 U.S. LEXIS 3041 (U.S. 1977), reh'g denied, 560 P.2d 369, 1977 Wyo. LEXIS 325 (Wyo. 1977).

Storage trailer is a “building.” —

A semitrailer from which the wheels have been removed and which is used for storage at a construction site is a building within the meaning of subsection (a) of this section. Smith v. State, 902 P.2d 712, 1995 Wyo. LEXIS 173 (Wyo. 1995).

Separately secured or occupied portion of building. —

In order to qualify as “separately secured or occupied” within the meaning of the statute, a room or container must be large enough to be occupied by a human being. Paugh v. State, 9 P.3d 973, 2000 Wyo. LEXIS 173 (Wyo. 2000).

A locked three-foot fishing reel display case in a department store was not a “separately secured or occupied portion” of a building within the meaning of the statute as it was not large enough to be occupied by a human being. Paugh v. State, 9 P.3d 973, 2000 Wyo. LEXIS 173 (Wyo. 2000).

Burglary is crime requiring specific intent. It is as essential for the state to prove the intent to steal or commit another felony beyond a reasonable doubt as it is to prove the breaking and entering itself. Jennings v. State, 806 P.2d 1299, 1991 Wyo. LEXIS 30 (Wyo. 1991).

Burglary is crime requiring specific intent. —

In a burglary case, a jury could reasonably conclude that although defendant was not completely sober, he was able to form the requisite intent to steal. Wiese v. State, 2016 WY 72, 375 P.3d 805, 2016 Wyo. LEXIS 80 (Wyo. 2016).

Intent to commit felony, but not attempt, required for conviction. —

To be convicted of burglary with intent to commit third-degree sexual assault, a defendant need not attempt to commit the assault, a felony; he need only intend to do so. Sears v. State, 632 P.2d 946, 1981 Wyo. LEXIS 368 (Wyo. 1981).

Fact that nothing was taken from building does not destroy inference of intent to steal at the time of entry. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Direct evidence to prove intent is not necessary. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Inference of intent depends on circumstances. —

The circumstances from which a jury might properly have inferred the intent to steal are numerous and varied and the quantum of proof required necessarily depends upon the totality of the circumstances presented. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Knowledge of what a structure contains, coupled with an attempt to enter it, supports a rational inference of intent to steal whatever is of value within the building. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Where one breaks into the property of another in the nighttime, an inference may be drawn that he did so with the intent to commit larceny. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Flight or hiding will, under the proper circumstances, be sufficient evidence from which a jury might properly infer an intent to steal. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979); Leppek v. State, 636 P.2d 1117, 1981 Wyo. LEXIS 397 (Wyo. 1981).

Knowledge, attempt to enter, infer intent. —

Two factors, knowledge of the contents of a building and an attempt to enter the building, only support the inference that the defendant entered with the intent to steal; they do not mandate the conclusion that the defendant entered with the intent to steal. Bush v. State, 908 P.2d 963, 1995 Wyo. LEXIS 230 (Wyo. 1995).

Opportunity considered in establishing guilt. —

Where defendant was in the immediate vicinity of the building for a day or two before commission of the crime, he had the opportunity to commit the crime, and evidence of opportunity to commit the crime is a link which considered with other incriminating facts may establish the guilt of the defendant. Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978).

Possession strong evidence of guilt. —

The most significant and material evidence of defendant's guilt is his possession of the stolen property. Possession is a strong circumstance tending to show guilt, and only slight corroborative evidence of other inculpatory circumstances is required. Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978). See also, Newell v. State, 548 P.2d 8, 1976 Wyo. LEXIS 180 (Wyo. 1976).

There was sufficient evidence to convict defendant of eleven counts of burglary where defendant was found in possession of stolen items; there was slight corroborative evidence of other inculpatory circumstances based on the similarity of the crimes, a footprint found at the scene, and the fact that defendant was staying in the area. The crimes occurred late at night or early in the morning, the method of entry was the same in every case but one, items with very little value were always taken, and food was regularly eaten during the crimes. Ferguson v. State, 2007 WY 157, 168 P.3d 476, 2007 Wyo. LEXIS 169 (Wyo. 2007).

Defendant's dealing with property as his own, by sale, is a corroborating circumstance. Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978).

As is opportunity. Newell v. State, 548 P.2d 8, 1976 Wyo. LEXIS 180 (Wyo. 1976).

And flight. Newell v. State, 548 P.2d 8, 1976 Wyo. LEXIS 180 (Wyo. 1976).

Opportunity and possession sufficient for conviction. —

Placing defendant in the area of the scene of the crime, along with possession of the stolen goods, is sufficient to sustain a conviction. Downs v. State, 581 P.2d 610, 1978 Wyo. LEXIS 210 (Wyo. 1978).

Taking of information constitutes burglary. —

The defendant's unlawful entry of a dwelling to copy the victim's unlisted phone number, social security number and insurance policy number constituted burglary because such information can be considered property and its taking as larceny under § 6-3-402 .Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Unauthorized entry of unoccupied vehicle constitutes “burglary.” —

The crime of “burglary” as defined by subsection (a) can be committed by the unauthorized entry of any vehicle, whether a person is present or not, with the intent to commit larceny therein. Scott v. State, 856 P.2d 447, 1993 Wyo. LEXIS 120 (Wyo. 1993).

Under former statute, attempt to commit burglary was in fact burglary. State v. Lindsay, 77 Wyo. 410, 317 P.2d 506, 1957 Wyo. LEXIS 30 (Wyo. 1957); Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Burglary and criminal entry distinguished. —

Burglary and criminal trespass (now criminal entry) are, by design, separate and distinct violations of the law. The essential difference between the two crimes is the element of specific intent to steal or commit a felony therein, found in the burglary section. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Burglary and property destruction separate offenses. —

Burglary requires unauthorized entry of a building or vehicle; property destruction does not. Property destruction requires unauthorized destruction or injury to property; burglary does not. Even though both violations can arise from the same incident, each has an element not found in the other; burglary and property destruction are defined by different statutes with different elements and provide separate penalties and, therefore, constitute two separate offenses. Longstreth v. State, 890 P.2d 551, 1995 Wyo. LEXIS 13 (Wyo. 1995).

Self-induced intoxication entitles defendant to criminal-entry instruction. —

In a burglary prosecution, given the evidence on self-induced intoxication, which could have been considered to determine whether the defendant was capable of forming the specific intent necessary to steal or deprive a person of his property, the defendant was entitled to an instruction on the lesser included offense of criminal entry, and the court's failure to give it was reversible error. Eatherton v. State, 761 P.2d 91, 1988 Wyo. LEXIS 116 (Wyo. 1988).

The court was required to instruct the jury on the lesser included offense of criminal entry, where the jury could infer from the evidence that the defendant was too intoxicated to form the specific intent requisite for a conviction of the charge of burglary, but still could decide that he had committed the offense of unlawful entry. Keller v. State, 771 P.2d 379, 1989 Wyo. LEXIS 94 (Wyo. 1989).

Commission of defendant's burglary terminated when he was arrested and, for this reason, he was not acting “in the court of committing the crime” of aggravated burglary when he later assaulted the arresting peace officer. Simonds v. State, 762 P.2d 1189, 1988 Wyo. LEXIS 128 (Wyo. 1988).

Indictment. —

Burglary with intent to commit larceny and the larceny itself may be charged in one indictment. Ackerman v. State, 7 Wyo. 504, 54 P. 228, 1898 Wyo. LEXIS 18 (Wyo. 1898).

Where former statute provided that where entry is made “with intent to steal or commit a felony” a crime has been committed, if the entry had been to commit some other felony than stealing, then that felony would have to be described in the indictment. The use of the statutory word “felony” by itself would be insufficient in that it is a generic term. Gonzales v. State, 551 P.2d 929, 1976 Wyo. LEXIS 203 (Wyo. 1976).

The use of the word “feloniously” in an indictment carries the same import as the word “intentionally.” Criminal intent is implied from the use of the word “feloniously.” Gonzales v. State, 551 P.2d 929, 1976 Wyo. LEXIS 203 (Wyo. 1976).

Indictment. —

Amending defendant's information to charge aggravated burglary on the morning of trial did not deprive defendant of due process because (1) defendant had notice in the final information of all aggravated burglary elements, and an aggravated burglary prosecution on the same facts was barred, (2) defendant could prepare a defense because prior informations said aggravated burglary was charged, despite citing the wrong subsection and penalty, (3) a new allegation of causing bodily injury had been pled as to aggravated assault and battery, and (4) defendant's greater penalty did not prejudice defendant's substantial rights, since defendant still pled not guilty after being advised of the penalty. Albarran v. State, 2013 WY 111, 309 P.3d 817, 2013 Wyo. LEXIS 116 (Wyo. 2013).

Evidence held admissible. —

Where, in prosecution for burglary, it was claimed that defendant broke and entered prosecutor's cabin and stole an overcoat and a bridle from prosecutor's locked trunk, evidence that defendant was seen in vicinity about time of burglary, that he afterwards was discovered wearing the coat, that he had sold bridle, that cabin was destroyed by fire, and that lock of the trunk was found in the ashes, its hasp bent and twisted, was admissible to identify defendant as the person who entered the cabin, and as showing his felonious intent. Delmont v. State, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 7 (Wyo.), reh'g denied, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 8 (Wyo. 1907).

Based on evidence that defendant and his cohort forced a fellow gang member to burglarize the victim's home in retaliation for his renouncing his gang membership, defendant was convicted of burglary in violation of this section. The district court properly admitted evidence of defendant's gang affiliation to establish his motive for the burglary; the evidence was not received to show defendant's bad character or propensity to commit crimes. Lascano v. State, 2011 WY 144, 262 P.3d 1259, 2011 Wyo. LEXIS 150 (Wyo. 2011).

Evidence held sufficient. —

Evidence was sufficient to sustain defendant's aggravated burglary and kidnapping convictions because the victim testified that defendant was “jealous,” and if he got into the house, “he was going to be very upset,” and defendant violently broke in through the back door, smashing glass, and breaking parts of the door jamb; he carried a knife. He pursued the victim when she escaped, he forcibly returned her to the house, and held her in her basement bedroom. Counts v. State, 2012 WY 70, 277 P.3d 94, 2012 Wyo. LEXIS 75 (Wyo. 2012).

Evidence was sufficient to convict defendant of conspiracy to commit aggravated burglary, aggravated robbery, and aggravated assault and battery as the State presented evidence that defendant and the accomplice agreed to use the gun during the incident at the golf course because the golf course’s manager testified that after he hit defendant in the head with the flashlight, defendant turned and ran away; the manager then heard someone saying to shoot him; seconds later, the manager heard a gunshot and saw a muzzle flash; and it was reasonable for the jury to infer that the accomplice would have only said to shoot the manager if he knew defendant had a gun in his possession. Jordin v. State, 2018 WY 64, 419 P.3d 527, 2018 Wyo. LEXIS 68 (Wyo. 2018).

Evidence was sufficient to sustain defendant’s burglary conviction under Wyo. Stat. Ann. § 6-3-301(a) (2017) where he texted the victim a picture of a missing page from her personal journal, and his continuing focus on the victim and pursuit of a romantic relationship was evidence of his motive to take the journal page. Bittleston v. State, 2019 WY 64, 442 P.3d 1287, 2019 Wyo. LEXIS 64 (Wyo. 2019).

Corroboration of defendant's statements. —

Sufficient independent evidence was presented to corroborate defendant's extrajudicial statements and to convict him of aggravated burglary; the victims testified that no one had permission to enter their home or remove a pistol. Dennis v. State, 2013 WY 67, 302 P.3d 890, 2013 Wyo. LEXIS 71 (Wyo. 2013).

Error in refusing instruction. —

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, the trial court erred in refusing to give his proposed instruction regarding the meaning of the word “deprive” in § 6-3-401 , since there was evidence that defendant intended only to make temporary use of the vehicle. Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, the trial court erred in refusing to give his proposed instruction on self-induced intoxication, since there was competent evidence to support the instruction. Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

Instruction properly refused. —

Where in a prosecution for burglary the defendant's offered instruction would have directed the jury to return a verdict of guilty of the lesser included offense of criminal trespass (now criminal entry), even in the face of obviously sufficient evidence of intent to steal, it was properly refused. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

In burglary trial, trial court properly refused to give instructions on the lesser included offense of criminal entry where the defendant's theory of the case was that he never entered the burglarized vehicle at all. Collins v. State, 854 P.2d 688, 1993 Wyo. LEXIS 105 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 126 (Wyo. July 20, 1993).

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, where the prosecutor's argument and evidence was that the felony defendant intended to commit was larceny, the trial court did not err in refusing to give defendant's proffered instruction defining “felony.” Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, the trial court did not err in refusing to give defendant's proposed instruction defining the crime of unauthorized use of a vehicle. Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

Inebriation applicable to specific intent of aggravated burglary. —

The jury instructions adequately informed the jury that the inebriated condition of the defendant was to be considered only with respect to the specific intent crime of aggravated burglary, and not with respect to the lesser included general intent crime of aggravated assault. McDonald v. State, 715 P.2d 209, 1986 Wyo. LEXIS 497 (Wyo. 1986).

Defendant's taking and copying of victim's keys and calendar was larcenous and evidence of such an act was sufficient to sustain his burglary conviction even though he had returned the property. Although the owner may retain the original property, there has been nevertheless a deprivation of property when a copy is made and retained by another. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Evidence held sufficient. —

See Delmont v. State, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 7 (Wyo.), reh'g denied, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 8 (Wyo. 1907); Cantrell v. State, 564 P.2d 1193, 1977 Wyo. LEXIS 259 (Wyo. 1977); Jacobs v. State, 641 P.2d 197, 1982 Wyo. LEXIS 305 (Wyo. 1982); King v. State, 718 P.2d 452, 1986 Wyo. LEXIS 551 (Wyo. 1986); Cowell v. State, 719 P.2d 211, 1986 Wyo. LEXIS 552 (Wyo. 1986); Jennings v. State, 806 P.2d 1299, 1991 Wyo. LEXIS 30 (Wyo. 1991).

The combination of a specific opportunity to commit the crime, with other incriminating facts, was present to establish the defendant's guilt. Jozen v. State, 746 P.2d 1279, 1987 Wyo. LEXIS 560 (Wyo. 1987). See, also, Tageant v. State, 737 P.2d 764, 1987 Wyo. LEXIS 459 (Wyo. 1987).

The prosecution presented sufficient evidence to support a conviction of burglary where although no measurements were taken, the investigating officer who viewed the comparative sizes of the boots and the prints testified that the prints were consistent with the defendant's boots, where even though the bootprints were pointed-toed and the defendant's boots were squared-toed, the investigating officer testified that a person's gait could explain the disparity, and where with respect to the burglary tools, an expert from the state crime lab testified that paint found on the pry bar was physically and chemically consistent with the paint on the doorjamb at the burglary site, and metallic flakes on the tire iron were physically similar to the metal of the door's locking mechanism. Corson v. State, 766 P.2d 1155, 1988 Wyo. LEXIS 179 (Wyo. 1988).

Sufficient evidence supported defendant's conviction for accessory before the fact to burglary of junior high school. See Fales v. State, 908 P.2d 404, 1995 Wyo. LEXIS 214 (Wyo. 1995).

Evidence sufficient for jury to infer that defendant intended to commit larceny upon entering high school. See Fales v. State, 908 P.2d 404, 1995 Wyo. LEXIS 214 (Wyo. 1995).

The prosecution presented ample corroborating evidence which, when considered with the fact that defendant possessed the stolen items, supported the jury's conclusion that defendant burglarized residence. Sutherland v. State, 944 P.2d 1157, 1997 Wyo. LEXIS 122 (Wyo. 1997).

Evidence was sufficient to support the defendant's burglary conviction where: (1) a witness heard glass break and saw the defendant entering the victim's house, (2) the victim testified that a stud finder and pliers were missing from his garage, (3) the defendant had a stud finder and pliers in his possession when apprehended, and (4) the defendant had told two people he was trying to avoid the police because he had done something earlier that day. Williams v. State, 986 P.2d 855, 1999 Wyo. LEXIS 134 (Wyo. 1999).

Defendant's burglary conviction was supported by sufficient evidence where in addition to possessing and using the stolen items in the hours after the burglary occurred, the defendant checked into a motel room one block away from where the burglary occurred around the same time that the burglary occurred, and the defendant's vehicle contained tools, including two hammers capable of breaking the rear window of the victim's vehicle, indicating that defendant had both the opportunity and means to commit the burglary. McGarvey v. State, 2002 WY 149, 55 P.3d 703, 2002 Wyo. LEXIS 164 (Wyo. 2002).

There was sufficient evidence to convict defendant of two counts of aggravated burglary; the undisputed facts showed that $2 bills and silver coins had been reported missing, defendant was in possession of a large number of $2 bills and silver coins were discovered strewn on the floor at defendant's girlfriend's house, defendant's boots left a print in the snow similar to those found at both crime scenes, the modus operandi in both crimes was similar, firearms reported stolen were recovered in the same location, and defendant's alibi was not verified. Metzer v. State, 2002 WY 176, 59 P.3d 135, 2002 Wyo. LEXIS 207 (Wyo. 2002).

Defendant's assertion there was not a nexus between a larceny incident at a legion club, and a nearby home burglary, which occurred hours later, was rejected. Defendant's proximity to the home, which was in the direction defendant fled from the legion club, was a corroborating factor and, upon arrest, defendant attempted to flee, indicating consciousness of guilt. Cureton v. State, 2003 WY 44, 65 P.3d 1250, 2003 Wyo. LEXIS 54 (Wyo. 2003).

Evidence was sufficient to sustain a burglary of a vehicle conviction where the victim identified defendant as the only person who could have taken the checkbook from his pickup, a witness identified defendant as the person who retrieved a checkbook from a trash can, and defendant made statements that incriminated him in the larceny of the checkbook. Burkhardt v. State, 2005 WY 96, 117 P.3d 1219, 2005 Wyo. LEXIS 115 (Wyo. 2005).

Evidence sufficient to support conviction for aggravated burglary. —

See Rands v. State, 818 P.2d 44, 1991 Wyo. LEXIS 150 (Wyo. 1991).

Evidence insufficient to support conviction for aggravated burglary. —

Defendant's conviction for aggravated burglary under this section was reversed because the State failed to specify on which ground it was proceeding, either the intent to commit a felony or the intent to commit larceny, and there was insufficient evidence to support both grounds as required; while defendant broke into a house and stabbed two people, there was no evidence that defendant entered the house intending to steal anything. May v. State, 2003 WY 14, 62 P.3d 574, 2003 Wyo. LEXIS 18 (Wyo. 2003).

Evidence sufficient to support conviction for conspiracy to commit aggravated burglary.—

Sufficient evidence was presented to support defendant's conviction for conspiracy to commit aggravated burglary because the evidence established that defendant and an accomplice tacitly agreed to enter the victim's apartment without authority to commit a felony, were armed with a deadly weapon, and inflicted bodily injury on the victim by stabbing the victim numerous times. Johnson v. State, 2015 WY 118, 356 P.3d 767, 2015 Wyo. LEXIS 133 (Wyo. 2015).

Evidence of unlawful entry insufficient. —

A police officer's understanding based on hearsay that the defendant did not have permission to enter the building constituted insufficient evidence to prove the element of unlawful entry. Longstreth v. State, 832 P.2d 560, 1992 Wyo. LEXIS 68 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 78 (Wyo. June 24, 1992).

Verdict held sufficient. —

In prosecution for entering a building with intent to commit a felony, where court instructed on theory that defendant was either guilty or not guilty, a verdict, finding defendant “guilty of the charge of entering a building and attempting to commit a felony, to wit: robbery, as charged in the information,” was not of doubtful meaning. State v. Kusel, 29 Wyo. 287, 213 P. 367, 1923 Wyo. LEXIS 14 (Wyo. 1923).

Conviction of lesser included offense within verdict sustained. —

Even though the jury incorrectly concluded that the necessary elements were present to elevate the defendant's crime from burglary to aggravated burglary, an examination of the record disclosed there was sufficient finding that each of the elements of burglary was met. Therefore, the defendant's conviction for the crime of aggravated burglary was set aside, but his conviction was sustained as to the lesser included offense of burglary. Such an action was not a violation of the defendant's due process right under U.S. Const., amend. XIV, § 1 and Wyo. Const., art. 1, § 6, or of his right to a trial by jury under Wyo. Const., art. 1, § 9. Simonds v. State, 762 P.2d 1189, 1988 Wyo. LEXIS 128 (Wyo. 1988).

Trial judge fully understood lawful sentencing alternatives, including probation. See Cook v. State, 710 P.2d 824, 1985 Wyo. LEXIS 616 (Wyo. 1985).

Enhancement of sentence. —

This section defines burglary too broadly for a conviction obtained under its provisions to support enhancement of the sentence under Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607, 1990 U.S. LEXIS 2788 (1990), which attaches a more narrow definition of burglary to the Armed Career Criminal Act, 18 USCS, § 924 (1988). United States v. Barney, 955 F.2d 635, 1992 U.S. App. LEXIS 841 (10th Cir. Wyo. 1992).

Where defendant pled guilty to violating 21 U.S.C.S. §§ 841(a) and 846, and his sentence was enhanced under 21 U.S.C.S. § 841(b)(1)(A), the appellate court rejected defendant's argument that the district court's use of the probable cause affidavit was improper to determine if defendant's prior conviction for burglary under Wyo. Stat. Ann. § 6-3-301(a) was a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2, United States v. Rice, 110 Fed. Appx. 855, 2004 U.S. App. LEXIS 20896 (10th Cir. 2004).

Defendant, who pled guilty to being a felon in possession of a firearm, a violation of 18 U.S.C.S. §§ 922(g)(1), 924(a)(2), was properly sentenced to 180 months' imprisonment under the Armed Career Criminal Act (ACCA) as the statute under which he was convicted, Wyo. Stat. Ann. § 6-3-301(a), criminalized more than generic burglary; the federal court of appeals concluded that his burglaries of commercial buildings and a residence were generic burglaries, which constituted violent felonies for purposes of the ACCA. United States v. Roberts, 250 Fed. Appx. 843, 2007 U.S. App. LEXIS 23821 (10th Cir. 2007).

Wyo. Stat. Ann. § 6-3-301 (a) defined burglary more broadly than the United States Supreme Court's generic definition of the term: a person was guilty of burglary if, without authority, he entered or remained in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit a larceny or a felony therein, and therefore, the appellate court had to address the question whether, in the case of defendant, who was convicted under a nongeneric-burglary statute, the government could seek enhancement on the ground that he actually committed a generic burglary. The court found that defendant was convicted of burglary pursuant to Wyo. Stat. Ann. § 6-3-301 (a), and the plea colloquy overcame the categorical problem with Wyo. Stat. Ann. § 6-3-301, its inclusion of vehicles among the places that could have been burglarized; accordingly, the district court did not err in determining that defendant's Wyoming burglary conviction was a burglary for purposes of 18 U.S.C.S. § 924(e). United States v. Gonzales, 558 F.3d 1193, 2009 U.S. App. LEXIS 5371 (10th Cir. Wyo.), cert. denied, 558 U.S. 864, 130 S. Ct. 169, 175 L. Ed. 2d 107, 2009 U.S. LEXIS 5563 (U.S. 2009).

Three-to-10-year sentence for smashing vehicle window and stealing briefcase not abuse of discretion. —

A sentence of three to 10 years for smashing the window of a vehicle and stealing a briefcase because of an alleged debt owed by the vehicle owner, by a defendant with a fairly extensive prior criminal record, including a felony conviction, was not an abuse of discretion, despite the judge stating at a prior sentencing hearing that he would sentence the defendant to some “extra years” if he was lying about the preliminary hearing being waived without his permission, which statement was later withdrawn by the judge. Wright v. State, 703 P.2d 1102, 1985 Wyo. LEXIS 520 (Wyo. 1985).

Sentence not abuse of discretion. —

Although the district court failed to comply with W.R.Cr.P. 32, the sentence was well within the ten year maximum punishment for burglary; therefore, the sentence would not be set aside absent a clear abuse of discretion. Wayt v. State, 912 P.2d 1106, 1996 Wyo. LEXIS 32 (Wyo. 1996).

Guns taken as “loot” in burglary were “deadly weapons” within the meaning of subsection (c)(i). Britt v. State, 734 P.2d 980, 1987 Wyo. LEXIS 416 (Wyo. 1987).

Aggravating factors. —

If the legislature intended for a simulated firearm which cannot fire to satisfy the aggravation provision of this section, it intended for a real firearm, even when it is not loaded, to also satisfy that provision. Sutherland v. State, 944 P.2d 1157, 1997 Wyo. LEXIS 122 (Wyo. 1997).

District court may reduce defendant's sentence of incarceration to probation after defendant has served only two and one-half months of his sentence of five to eight years for aggravated burglary, in violation of subsections (a) and (c)(ii). State v. Knapp, 739 P.2d 1229, 1987 Wyo. LEXIS 473 (Wyo. 1987).

Aggravated burglary and aggravated assault and battery (§ 6-2-502 ) statutes do not proscribe same offense, and multiple punishments therefor do not violate the constitutional double jeopardy prohibition. Lauthern v. State, 769 P.2d 350, 1989 Wyo. LEXIS 37 (Wyo. 1989).

Convictions for burglary and battery not inconsistent. —

Verdict was not inconsistent, where the jury found the defendant guilty of burglary under Wyo. Stat. Ann. § 6-3-301 , acquitted him of aggravated assault under Wyo. Stat. Ann. § 6-2-502 , but found him guilty of the lesser included charge of battery under Wyo. Stat. Ann. § 6-2-501 ; in order to find defendant guilty of burglary, the jury only had to determine that the defendant entered the residence with the intent to commit the felony of aggravated assault. Moore v. State, 2003 WY 153, 80 P.3d 191, 2003 Wyo. LEXIS 183 (Wyo. 2003).

Double jeopardy.—

Defendant's sentence for the underlying felony, aggravated burglary, was to be vacated as the issuance of convictions for first-degree felony murder and for the underlying felony violated protections against double jeopardy. Schnitker v. State, 2017 WY 96, 401 P.3d 39, 2017 Wyo. LEXIS 97 (Wyo. 2017).

Applied in

Fullmer v. Meacham, 387 P.2d 1007, 1964 Wyo. LEXIS 71 (Wyo. 1964); Montez v. State, 573 P.2d 34, 1977 Wyo. LEXIS 306 (Wyo. 1977); De Herrera v. State, 589 P.2d 845, 1979 Wyo. LEXIS 354 (Wyo. 1979); Reinholt v. State, 601 P.2d 1311, 1979 Wyo. LEXIS 478 (Wyo. 1979); Jones v. State, 602 P.2d 378, 1979 Wyo. LEXIS 482 (Wyo. 1979); Mainville v. State, 607 P.2d 339, 1980 Wyo. LEXIS 242 (Wyo. 1980); Chapman v. State, 638 P.2d 1280, 1982 Wyo. LEXIS 284 (Wyo. 1982); Schuler v. State, 668 P.2d 1333, 1983 Wyo. LEXIS 359 (Wyo. 1983); Fife v. State, 676 P.2d 565, 1984 Wyo. LEXIS 255 (Wyo. 1984); MacLaird v. State, 718 P.2d 41, 1986 Wyo. LEXIS 533 (Wyo. 1986); Lessard v. State, 719 P.2d 227, 1986 Wyo. LEXIS 558 (Wyo. 1986); Heier v. State, 727 P.2d 707, 1986 Wyo. LEXIS 636 (Wyo. 1986); Roose v. State, 753 P.2d 574, 1988 Wyo. LEXIS 47 (Wyo. 1988); Roose v. State, 759 P.2d 478, 1988 Wyo. LEXIS 119 (Wyo. 1988); Darrow v. State, 824 P.2d 1269, 1992 Wyo. LEXIS 12 (Wyo. 1992).

Quoted in

State v. Stern, 526 P.2d 344, 1974 Wyo. LEXIS 231 (Wyo. 1974); Robinson v. State, 627 P.2d 168, 1981 Wyo. LEXIS 328 (Wyo. 1981); Jessee v. State, 640 P.2d 56, 1982 Wyo. LEXIS 290 (Wyo. 1982); Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982); Lewis v. State, 709 P.2d 1278, 1985 Wyo. LEXIS 619 (Wyo. 1985); Bigelow v. State, 768 P.2d 558, 1989 Wyo. LEXIS 25 (Wyo. 1989); Alexander v. State, 823 P.2d 1198, 1992 Wyo. LEXIS 5 (Wyo. 1992); Dice v. State, 825 P.2d 379, 1992 Wyo. LEXIS 13 (Wyo. 1992); Hankinson v. State, 2002 WY 86, 47 P.3d 623, 2002 Wyo. LEXIS 91 (Wyo. 2002); Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003).

Stated in

Collins v. State, 712 P.2d 368, 1986 Wyo. LEXIS 451 (Wyo. 1986); Boyd v. State, 747 P.2d 1143, 1987 Wyo. LEXIS 573 (Wyo. 1987); Lozano v. State, 751 P.2d 1326, 1988 Wyo. LEXIS 36 (Wyo. 1988); Marquez v. State, 754 P.2d 705, 1988 Wyo. LEXIS 55 (Wyo. 1988).

Cited in

Heberling v. State, 507 P.2d 1, 1973 Wyo. LEXIS 146 (Wyo. 1973); Stinner v. State, 516 P.2d 185, 1973 Wyo. LEXIS 190 (Wyo. 1973); McCutcheon v. State, 604 P.2d 537, 1979 Wyo. LEXIS 500 (Wyo. 1979); Ketcham v. State, 618 P.2d 1356, 1980 Wyo. LEXIS 320 (Wyo. 1980); Robbins v. State, 635 P.2d 781, 1981 Wyo. LEXIS 382 (Wyo. 1981); McCutcheon v. State, 638 P.2d 650, 1982 Wyo. LEXIS 281 (Wyo. 1982); Lopez v. State, 643 P.2d 682, 1982 Wyo. LEXIS 330 (Wyo. 1982); Grubbs v. State, 669 P.2d 929, 1983 Wyo. LEXIS 364 (Wyo. 1983); Bishop v. State, 687 P.2d 242, 1984 Wyo. LEXIS 310 (Wyo. 1984); Wright v. State, 718 P.2d 35, 1986 Wyo. LEXIS 532 (Wyo. 1986); City of Casper v. Cheatham, 739 P.2d 1222, 1987 Wyo. LEXIS 471 (Wyo. 1987); Mollman v. State, 800 P.2d 466, 1990 Wyo. LEXIS 113 (Wyo. 1990); Solis v. State, 851 P.2d 1296, 1993 Wyo. LEXIS 91 (Wyo. 1993); Wilkening v. State, 922 P.2d 1381, 1996 Wyo. LEXIS 124 (Wyo. 1996); Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000); United States v. Sparks, 2001 U.S. App. LEXIS 19785 , 265 F.3d 825 (9th Cir. 2001); Andrews v. State, 2002 WY 28, 40 P.3d 708, 2002 Wyo. LEXIS 47 (Wyo. 2002); Wilson v. State, 2003 WY 59, 68 P.3d 1181, 2003 Wyo. LEXIS 72 (Wyo. 2003); Deshazer v. State, 2003 WY 98, 74 P.3d 1240, 2003 Wyo. LEXIS 119 (Wyo. 2003); Major v. State, 2004 WY 4, 83 P.3d 468, 2004 Wyo. LEXIS 8 (Wyo. 2004); Koenig v. State, 2005 WY 135, 121 P.3d 780, 2005 Wyo. LEXIS 161 (2005); Gibbs v. State, 2008 WY 79, 187 P.3d 862, 2008 Wyo. LEXIS 82 (July 14, 2008); Budder v. State, 2010 WY 123, — P.3d —, 2010 Wyo. LEXIS 131 (Aug. 31, 2010); Yearout v. State, 2013 WY 133, 311 P.3d 180, 2013 Wyo. LEXIS 139 , 2013 WL 5728045 (Oct 22, 2013); Yearout v. State, 2013 WY 133, 311 P.3d 180, 2013 Wyo. LEXIS 139 , 2013 WL 5728045 (Oct 22, 2013).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For article, “Burglary in Wyoming,” see XXXII Land & Water L. Rev. 721 (1997).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Outbuildings or the like as part of “dwelling house,” 43 ALR2d 831.

Gambling or lottery paraphernalia as subject of burglary, 51 ALR2d 1396.

Definition of building or house, 78 ALR2d 778.

Burglary or breaking and entering of motor vehicle, 79 ALR2d 286.

Sufficiency of showing that burglary was committed at night, 82 ALR2d 643.

Breaking and entering of inner door of building as burglary, 43 ALR3d 1147.

Breaking into or taking money or goods from coin-operated machine, 45 ALR3d 1286.

What constitutes “exclusive” possession of stolen goods to support inference of burglary, 51 ALR3d 727.

Entry through partly opened door or window as burglary, 70 ALR3d 881.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481.

Liability of person furnishing, installing or servicing burglary or fire alarm system for burglary or fire loss, 37 ALR4th 47.

Maintainability of burglary charge, where entry into building is made with consent, 58 ALR4th 335.

What is “building” or “house” within burglary or breaking-and-entering statute, 68 ALR4th 425.

Minor's entry into home of parent as sufficient to sustain burglary charge, 17 ALR5th 111.

Use of fraud or trick as “constructive breaking” for purpose of burglary or breaking and entering offense, 17 ALR5th 125.

§ 6-3-302. Criminal entry; penalties; affirmative defenses.

  1. A person is guilty of criminal entry if, without authority, he knowingly enters a building, occupied structure, vehicle or cargo portion of a truck or trailer, or a separately secured or occupied portion of those enclosures.
  2. It is an affirmative defense to prosecution under this section that:
    1. The entry was made because of a mistake of fact or to preserve life or property in an emergency;
    2. The enclosure was abandoned;
    3. The enclosure was at the time open to the public and the person complied with all lawful conditions imposed on access to or remaining in the enclosure; or
    4. The person reasonably believed that the owner of the enclosure, or other person empowered to license access to the enclosure, would have authorized him to enter.
  3. Criminal entry is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

For meaning of “occupied structure,” see § 6-1-104 .

Burglary distinguished. —

Burglary and criminal trespass (now criminal entry) are, by design, separate and distinct violations of the law. The essential difference between the two crimes is the element of specific intent to steal or commit a felony therein found in the burglary section. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

Self-induced intoxication entitles burglary defendant to criminal-entry instruction. —

In a burglary prosecution, given the evidence on self-induced intoxication, which could have been considered to determine whether the defendant was capable of forming the specific intent necessary to steal or deprive a person of his property, the defendant was entitled to an instruction on the lesser-included offense of criminal entry, and the court's failure to give it was reversible error. Eatherton v. State, 761 P.2d 91, 1988 Wyo. LEXIS 116 (Wyo. 1988).

The court was required to instruct the jury on the lesser included offense of criminal entry, where the jury could infer from the evidence that the defendant was too intoxicated to form the specific intent requisite for a conviction of the charge of burglary, but still could decide that he had committed the offense of unlawful entry. Keller v. State, 771 P.2d 379, 1989 Wyo. LEXIS 94 (Wyo. 1989).

Instruction on lesser included offense properly refused. —

Where, in a prosecution for burglary, the defendant's offered instruction would have directed the jury to return a verdict of guilty of the lesser included offense of criminal trespass (now criminal entry), even in the face of obviously sufficient evidence of intent to steal, the instruction was properly refused. Mirich v. State, 593 P.2d 590, 1979 Wyo. LEXIS 402 (Wyo. 1979).

In burglary trial, trial court properly refused to give instructions on the lesser included offense of criminal entry where the defendant's theory of the case was that he never entered the burglarized vehicle at all. Collins v. State, 854 P.2d 688, 1993 Wyo. LEXIS 105 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 126 (Wyo. July 20, 1993).

Stated in

Boyd v. State, 747 P.2d 1143, 1987 Wyo. LEXIS 573 (Wyo. 1987); Foote v. State, 751 P.2d 884, 1988 Wyo. LEXIS 66 (Wyo. 1988); WJH v. State, 2001 WY 54, 24 P.3d 1147, 2001 Wyo. LEXIS 63 (Wyo. 2001).

Cited in

CSC v. State, 2005 WY 106, 118 P.3d 970, 2005 Wyo. LEXIS 130 (Aug 30, 2005).Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979); Andrews v. State, 2002 WY 28, 40 P.3d 708, 2002 Wyo. LEXIS 47 (Wyo. 2002); Young v. State, 2005 WY 136, 121 P.3d 145, 2005 Wyo. LEXIS 163 (2005).

Quoted in

Wiese v. State, 2016 WY 72, 375 P.3d 805, 2016 Wyo. LEXIS 80 (Wyo. 2016).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What is “building” or “house” within burglary or breaking-and-entering statute, 68 ALR4th 425.

§ 6-3-303. Criminal trespass; penalties.

  1. A person is guilty of criminal trespass if he enters or remains on or in the land or premises of another person, knowing he is not authorized to do so, or after being notified to depart or to not trespass. For purposes of this section, notice is given by:
    1. Personal communication to the person by the owner or occupant, or his agent, or by a peace officer; or
    2. Posting of signs reasonably likely to come to the attention of intruders.
  2. Criminal trespass is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  3. This section does not supersede W.S. 1-21-1003 .

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to duty of stock drover to prevent his livestock from trespassing upon the property of another, see § 11-20-119 .

As to penalty for trespass upon lands owned by state loan and investment board, see § 11-34-130 .

As to hunting and fishing on the property of another without permission, see § 23-3-305 .

As to penalty for trespass upon state lands after cancellation or expiration of lease, see § 36-9-116 .

As to right of power district to inspect and repair power lines without liability for trespass, see § 37-7-123 .

As to malicious trespass against electric utility poles or wires, see § 37-12-120 .

Editor's notes. —

Section 1-21-1003 , referred to in subsection (c), relates to notice required to an adverse party before commencement of an action for forcible entry or detainer.

This section was not designed to resolve civil property disputes. United States v. Miller, 659 F.2d 1029, 1981 U.S. App. LEXIS 17693 (10th Cir. Wyo. 1981).

The requirement of an intent to remain upon the lands of another without lawful authority causes this section to be inapplicable in determining the questions of title or right to possession where the act which was the subject of the prosecution was a good faith one under a claim of right. United States v. Miller, 659 F.2d 1029, 1981 U.S. App. LEXIS 17693 (10th Cir. Wyo. 1981).

Entry onto land by brand inspector consistent with statutoryauthority. —

An involuntary bailment was created when the parents took their daughter to live elsewhere but kept her horse, and the parents, as involuntary bailees, had an absolute duty to return the property when the daughter terminated the bailment; consequently, the brand inspector's action in entering the parents' land to retrieve the daughter's horse for transfer to the daughter's agent was consistent with his statutory authority under Wyo. Stat. Ann. §§ 11-20-203(a), 205(a), 214(a), and constituted neither criminal trespass nor larceny. Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219, 2002 Wyo. LEXIS 173 (Wyo. 2002), reh'g denied, 2002 Wyo. LEXIS 198 (Wyo. Nov. 5, 2002).

Entry by federal agents. —

Court of appeals affirmed the district court's judgment removing a criminal case the State of Wyoming filed in state court against a federal agent and a contractor who was working for the U.S. Government, which charged them with violating Wyo. Stat. Ann. §§ 6-3-303(a) and 6-3-204(a), and dismissing the charges, because activities the agent and contractor were conducting to locate gray wolves and place radio collars on them were authorized by federal regulations, and their conduct was objectively reasonable at the time they trespassed on private land. Wyoming v. Livingston, 443 F.3d 1211, 2006 U.S. App. LEXIS 8502 (10th Cir. Wyo.), cert. denied, 549 U.S. 1019, 127 S. Ct. 553, 166 L. Ed. 2d 409, 2006 U.S. LEXIS 8388 (U.S. 2006).

Quoted in

Salisbury Livestock Co. v. Colorado Cent. Credit Union, 793 P.2d 470, 1990 Wyo. LEXIS 68 (Wyo. 1990).

Cited in

Martin v. Struthers, 319 U.S. 141, 63 S. Ct. 862, 87 L. Ed. 1313, 1943 U.S. LEXIS 1188 (1943); Lascano v. State, 2011 WY 144, 262 P.3d 1259, 2011 Wyo. LEXIS 150 (Oct. 19, 2011); Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Trespass: state prosecution for unauthorized entry or occupation, for public demonstration purposes, of business, industrial or utility premises, 41 ALR4th 773.

Entry on private lands in pursuit of wounded game as criminal trespass, 41 ALR4th 805.

“Choice of evils,” necessity, duress, or similar defense to state or local criminal charges based on acts of public protest, 3 ALR5th 521.

§ 6-3-304. Possession of burglar's tools; penalties.

  1. A person is guilty of possession of burglar’s tools if he possesses an explosive, tool, instrument or other article adapted, designed or commonly used for committing or facilitating the commission of a crime involving forcible entry into buildings or occupied structures with intent to use the article possessed in the commission of such a crime.
  2. Possession of burglar’s tools is a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

For meaning of “occupied structure,” see § 6-1-104 .

Quoted in

State v. Stern, 526 P.2d 344, 1974 Wyo. LEXIS 231 (Wyo. 1974).

Cited in

Grubbs v. State, 669 P.2d 929, 1983 Wyo. LEXIS 364 (Wyo. 1983).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and application of statutes relating to burglars' tools, 33 ALR3d 798.

§ 6-3-305. Breaking, opening or entering of coin machine with intent to commit theft; penalties.

A person is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he breaks, opens or enters a coin machine with intent to commit theft.

History. Laws 1982, ch. 75, § 3; 2013, ch. 191, § 2.

Cross references. —

For meaning of “coin machine,” see § 6-1-104 .

The 2013 amendment , effective July 1, 2013, substituted “theft” for “larceny” at the end of the provision.

Cross references. —

For meaning of “coin machine,” see § 6-1-104 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-306. Forcible entry or detainer; penalty.

A person is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), if he violently takes or keeps possession of land without authority of law.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to jurisdiction and procedure of civil action of forcible entry or detainer, see §§ 1-21-1001 to 1-21-1016 .

As to jurisdiction of the circuit court relative to forcible entry or detainer, see § 5-9-128 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-307. Unlawful entry into an occupied structure; penalty.

  1. A person is guilty of unlawful entry into an occupied structure if, without authority, he enters or remains in an occupied structure and attempts to commit or commits battery as defined in W.S. 6-2-501 or domestic battery as defined in W.S. 6-2-511 .
  2. Unlawful entry into an occupied structure is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. As used in this section:
    1. “Occupied structure” means a structure, other than a vehicle, whether or not a person is actually present:
      1. Where any person lives; or
      2. Which is used for overnight accommodation or overnight shelter of persons.

History: Laws 2014, ch. 11, § 1.

Effective dates. —

Laws 2014, ch. 11, § 2 makes this act effective July 1, 2014.

Jurisdiction.—

In a case in which defendant pleaded no contest to child abuse and unlawful entry into an occupied structure after he entered the home where his estranged wife and teenage son (the victim) were residing and hit the victim with a wooden shovel handle, defendant waived his challenge to the unlawful entry charge when he pleaded no contest. An alleged defect in the information concerning the victim’s age was not jurisdictional because it did not involve the power of the State to bring defendant into court to answer the charge brought against him. Dahl v. State, 2020 WY 59, 462 P.3d 912, 2020 Wyo. LEXIS 62 (Wyo. 2020).

Article 4. Larceny and Related Offenses

Editor's notes. —

Laws 2020, ch. 90, § 2, provides: “With the amendments in Section 1 of this act, it is the intent of the legislature to define one (1) crime of theft and to incorporate therein the theft crimes previously listed in title 6, chapter 3, article 4 of the Wyoming statutes, thereby removing distinctions and technicalities that previously existed in the pleading and proof of such crimes.”

Law reviews. —

For article, “Burglary in Wyoming,” see XXXII Land & Water L. Rev. 721 (1997).

Am. Jur. 2d, ALR and C.J.S. references. —

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 ALR3d 689.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 ALR3d 822.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files or systems, 51 ALR4th 971.

Cat as subject of larceny, 55 ALR4th 1080.

What is “trade secret” so as to render actionable under state law its use or disclosure by former employee, 59 ALR4th 641.

What constitutes theft within automobile theft insurance policy — modern cases, 67 ALR4th 82.

What constitutes violation of 15 USC § 714m(c), proscribing larceny or conversion of property owned by or pledged to Commodity Credit Corporation, 109 ALR Fed 871.

§ 6-3-401. Definitions.

  1. As used in this article:
    1. Repealed by Laws 2013, ch. 191, § 3.
    2. “Deprive” means:
      1. To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or
      2. To dispose of the property so as to make it unlikely that the owner will recover it.
    3. Repealed by Laws 2019, ch. 186, §  2.
    4. “Property” means as defined in W.S. 6-1-104(a)(viii) and also includes services;
    5. “Services” includes, but is not limited to, electric, telephone, cable television, gas, water or sewer services.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2004, ch. 130, § 1; 2013, ch. 191, §§ 2, 3; 2019, ch. 186, § 2; 2020, ch. 90, § 1.

The 2004 amendment, in (a)(iii), substituted “6-3-411” for “6-3-409.”

Laws 2004, ch. 130, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 19, 2004.

The 2013 amendment , effective July 1, 2013, repealed former (a)(i) which read: “‘Bailee’ means a person other than the owner of property who rightfully possesses property” and substituted “6-3-413” for “6-3-411” in (a)(iii).

The 2019 amendment, effective July 1, 2019, repealed (a)(iii), which read: "`This article' means W.S. 6-3-401 through 6-3-413 ."

The 2020 amendment, effective July 1, 2020, added (a)(iv) and (a)(v).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Conflicting legislation. —

Laws 2004, ch. 130, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Evidence insufficient to find “bailee.” —

The evidence was insufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt that the defendant was a bailee where in all pertinent instances, the “owners” of the property at issue in the case gave “ownership,” not mere possession of the property to the defendant. Lahr v. State, 840 P.2d 930, 1992 Wyo. LEXIS 155 (Wyo. 1992).

Evidence sufficient to find “bailee.” —

Evidence was sufficient for jury to conclude that manager stood in status of a bailee, not a co-owner, with respect to bar owners. Wentworth v. State, 975 P.2d 22, 1999 Wyo. LEXIS 37 (Wyo. 1999).

“Deprive.” —

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, the trial court erred in refusing to give his proposed instruction regarding the meaning of the word “deprive” in this section, since there was evidence that defendant intended only to make temporary use of the vehicle. Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

Where customer was unable to use truck he purchased due to defendant's failure to provide him with proof of title for more than five months, defendant appropriated truck's economic value and thus had requisite “intent to deprive.” Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

Jury can reasonably find intent to deprive in instances of temporary deprivations. Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

In a prosecution for burglary of a vehicle, the trial court did not err in failing to provide the jury with the statutory definition of the word “deprive,” as provided in Wyo. Stat. Ann. § 6-3-401 . The definitions in § 6-3-401 apply to article 4, concerning larceny, not to article 3, concerning burglary. Burkhardt v. State, 2005 WY 96, 117 P.3d 1219, 2005 Wyo. LEXIS 115 (Wyo. 2005).

“Deprive.” —

Jury instructions were proper during defendant's trial for aggravated burglary because the instructions adequately informed the jury of the element of “burglary,” including the specific intent to commit larceny and the required intent to deprive for larceny. Dennis v. State, 2013 WY 67, 302 P.3d 890, 2013 Wyo. LEXIS 71 (Wyo. 2013).

Relation to felony larceny. —

Sufficient evidence supported a conviction for felony larceny because there was an intent to permanently deprive where defendant kept a vehicle for 3 months, lied about the owner of the truck, and made no effort to return the truck to the owner or advise him of its location. Defendant argued that his actions constituted joyriding or unauthorized use. Peña v. State, 2013 WY 4, 294 P.3d 13, 2013 Wyo. LEXIS 4 (Wyo. 2013).

Evidence was sufficient to convict defendant for felony theft because defendant possessed the requisite intent to deprive where he admitted that he intended to drive a vehicle until it ran out of gas and then abandon it. 2015 WY 86, 2015 Wyo. LEXIS 97 .

Evidence as to permissive use. —

Grand larceny defendant was entitled to testify about his girlfriend's out-of-court statement that truck owner had given them permission to use the truck; the statement was admissible to show its effect on the defendant's intent and subsequent conduct, rather than for the truth of the matter asserted. Kenyon v. State, 986 P.2d 849, 1999 Wyo. LEXIS 133 (Wyo. 1999).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-402. Theft; penalties.

  1. A person is guilty of theft if he knowingly takes, obtains, procures, retains or exercises control over or makes an unauthorized transfer of an interest in the property of another person without authorization or by threat or by deception, or he receives, loans money by pawn or pledge on or disposes of the property of another person that he knew or reasonably should have known was stolen, and he:
    1. Intends to deprive the other person of the use or benefit of the property;
    2. Knowingly uses, receives, conceals, abandons or disposes of the property in such manner as to deprive the other person of its use or benefit; or
    3. Demands anything of value to which he has no legal claim as a condition for returning or otherwise restoring the property to the other person.
  2. Repealed by Laws 2013, ch. 191 § 3.
  3. Except as provided in subsection (g) of this section, theft is:
    1. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property is one thousand dollars ($1,000.00) or more or if the property is a firearm, horse, mule, sheep, cattle, buffalo or swine regardless of value; or
    2. Repealed by Laws 1984, ch. 44, § 3.
    3. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of the property is less than one thousand dollars ($1,000.00).
  4. through (f) Repealed by Laws 2013, ch. 191 §  3.
  5. In addition to the penalties provided in subsection (c) of this section, any person convicted of a second or subsequent offense for theft of motor vehicle fuel offered for retail sale shall have his driver’s license suspended pursuant to W.S. 31-7-128(n). The court shall forward to the department of transportation a copy of the record pertaining to disposition of the arrest or citation.
  6. The amount of property involved in violations of this section committed pursuant to a common scheme or the same transaction, whether the property is taken from the same person or different persons, may be aggregated in determining the value of the property.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, § 2; 1985, ch. 2, § 1; 2004, ch. 126, § 1; 2007, ch. 68, § 1; 2013, ch. 191, §§ 2, 3; 2020, ch. 90, § 1; 2021, ch. 17, § 1.

Cross references. —

For definition of “bailee,” see § 6-3-401 .

As to embezzlement of estate before letters are granted, see §§ 2-7-411 through 2-7-414 .

As to taking and using horses and equipment without consent of owner, see § 11-30-109 .

As to appropriation of horse or mule on open range without permission, see § 11-30-110 .

For provision that dogs shall be deemed personalty and subject to larceny, see § 11-31-102 .

As to penalty for refusing to deliver military property, see § 19-8-105 .

As to punishment for wrongful selling, damaging, destroying or losing any military property, see § 19-12-110 .

As to identification of vehicles and prevention of theft, see §§ 31-11-101 to 31-11-111 .

As to stealing railroad equipment, see § 37-12-101 .

The 2004 amendment, effective July 1, 2004, in (c)(i) and (iii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

The 2007 amendment, effective July 1, 2007, added (f); and updated the internal references in the introductory language of (c).

The 2013 amendment, effective July 1, 2013, rewrote (a); deleted the exception at the beginning of (c); and repealed former (b) and (d) through (f).

The 2020 amendment, effective July 1, 2020, redesignated (a) as the introductory language of (a) and (a)(i); in the introductory language of (a)(i) substituted “takes, obtains, procures, retains or exercises control” for “takes or exercises unauthorized control” and “person without authorization or by threat or by deception, or he receives, loans money by pawn or pledge on or disposes of the property of another person that he knew or reasonably should have known was stolen, and he” for “person with the purpose of depriving”; in (a)(i) added “Intends to deprive” at the beginning and “the use or benefit of” preceding “the property”; added (a)(ii) and (a)(iii); in the introductory language of (c) added “Except as provided in subsection (g) of this section” at the beginning; in (c)(i) added “or if the property is a firearm, horse, mule, sheep, cattle, buffalo or swine regardless of value” at the end; and added (g) and (h).

The 2021 amendment added "or" at the end of (a)(ii).

Laws 2021, ch. 17, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 9, 2021.

I.General Consideration

Cross references. —

For definition of “bailee,” see § 6-3-401 .

As to embezzlement of estate before letters are granted, see §§ 2-7-411 through 2-7-414 .

As to taking and using horses and equipment without consent of owner, see § 11-30-109 .

As to appropriation of horse or mule on open range without permission, see § 11-30-110 .

For provision that dogs shall be deemed personalty and subject to larceny, see § 11-31-102 .

As to penalty for refusing to deliver military property, see § 19-8-105 .

As to punishment for wrongful selling, damaging, destroying or losing any military property, see § 19-12-110 .

As to identification of vehicles and prevention of theft, see §§ 31-11-101 to 31-11-111 .

As to stealing railroad equipment, see § 37-12-101 .

Elements of crime. —

Larceny is committed whenever a person wrongfully takes and carries away the personal goods of another, without any pretense of right, with the felonious intent to deprive the owner of them, or to appropriate them to his, the taker's, own use. Repkie v. State, 583 P.2d 1272, 1978 Wyo. LEXIS 231 (Wyo. 1978).

To sustain guilty verdict on charge of larceny by bailee, two elements must be present: An expressed or implied relationship of trust between the parties, and the accused must have converted the goods with an intent to steal. Epperson v. State, 600 P.2d 1051, 1979 Wyo. LEXIS 462 (Wyo. 1979).

Defendant does not need to personally exercise physical control over property in order to establish that a taking has occurred; rather, a taking may be accomplished by any means. It may be effected through an animate or inanimate agency, and if the taking is procured by an agent, it matters not whether the agent is innocent or guilty; likewise, an asportation may be accomplished by the defendant personally, by mechanical means, or by a human agent. In light of these rules, the majority of courts hold that, when a defendant sells property that he does not own to an innocent purchaser, the purchaser is the defendant's agent for purposes of the caption and asportation requirements, and the purchaser's taking and carrying away is attributable to the defendant. Jones v. State, 2011 WY 114, 256 P.3d 527, 2011 Wyo. LEXIS 117 (Wyo. 2011).

Jury instruction under Wyo. Stat. Ann. § 6-3-402(a) on the larceny portion of the crime of robbery that stated “taking or carrying” rather than the proper “taking and carrying” was harmless error; it was not disputed that defendant did “take and carry away” money. Jones v. State, 2012 WY 82, 278 P.3d 729, 2012 Wyo. LEXIS 88 (Wyo. 2012).

Court erred by accepting defendant's guilty plea without having a sufficient factual basis to establish he committed the charged crime of larceny because defendant deposited checks which were not valid and withdrew money; although he took money which rightfully belonged to the bank, he did so with its permission. Even though the bank's consent and release of the money to defendant might have been based upon a false representation, i.e., the checks were valid when he knew they were not, no trespassory nonconsensual taking occurred. Nguyen v. State, 2013 WY 50, 2013 Wyo. LEXIS 55 (Apr 30, 2013).

Prosecution for burglary and larceny constitutional. —

The defendant's constitutional rights against double jeopardy were not denied when the state was allowed to prosecute him for burglary and the lesser included offense of larceny in the same prosecution. Eatherton v. State, 761 P.2d 91, 1988 Wyo. LEXIS 116 (Wyo. 1988).

Applicability to burglary count. —

Argument of defendant, convicted on a felony charge of burglary of a vehicle, that the “larceny” he committed wasn't a felony because there was no proof that the value of the property exceeded $ 500.00, as required by Wyo. Stat. Ann. § 6-3-402(c) (2003) (since amended to $ 1,000 (2005)), was without merit. Burglary does not have a dollar limit akin to that of the larceny statute. Burkhardt v. State, 2005 WY 96, 117 P.3d 1219, 2005 Wyo. LEXIS 115 (Wyo. 2005).

Consent of victim. —

Where the owner of the stolen property placed the money in the parking lot for the purpose of attempting to apprehend defendant, he did not consent to, nor did he intend to, part with its title — only its possession — in which circumstances there was no consent to the taking. Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

Fraud vitiates the consent of the victim if the other elements of the crime are present. Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

Establishment of intent. —

Wrongful taking of another's property with no apparent intention of returning it, in the absence of any explanatory circumstances, evidences an intent to deprive the owner permanently of his property. Wells v. State, 613 P.2d 201, 1980 Wyo. LEXIS 287 (Wyo. 1980).

Jury could infer specific intent to steal or deprive owner of property by circumstantial evidence, such as conduct of defendant. Wentworth v. State, 975 P.2d 22, 1999 Wyo. LEXIS 37 (Wyo. 1999).

Grand larceny defendant was entitled to testify about his girlfriend's out-of-court statement that the truck owner had given them permission to use the truck; the statement was admissible to show its effect on the defendant's intent and subsequent conduct, rather than for the truth of the matter asserted. Kenyon v. State, 986 P.2d 849, 1999 Wyo. LEXIS 133 (Wyo. 1999).

Sufficient evidence supported defendant's felony theft conviction because defendant admitted an intent to drive a vehicle until the vehicle ran out of gas and then abandon the vehicle, making recovery unlikely. Toth v. State, 2015 WY 86, 2015 WY 86A, 353 P.3d 696, 2015 Wyo. LEXIS 104 (Wyo. 2015).

Selling estranged housemate's property evidences wrongful intent. —

An estranged housemate's notification to the sheriff's department that she had removed some of her personal items from her housemate's dwelling because to a domestic dispute, did not negate evidence of wrongful intent on her part where she offered to sell the next day via a newspaper advertisement several items of her housemate's property taken from the residence. Wetherelt v. State, 864 P.2d 449, 1993 Wyo. LEXIS 176 (Wyo. 1993).

It may not be larceny for bailee to retain possession of property, temporarily, under an honest belief in the right to do so, and without an “intent to steal.” Stapleman v. State, 680 P.2d 73, 1984 Wyo. LEXIS 278 (Wyo. 1984).

To prove larceny by bailee, state need not prove a trespassory taking. Wells v. State, 613 P.2d 201, 1980 Wyo. LEXIS 287 (Wyo. 1980).

Opportunity to commit crime, when linked with other incriminating facts, may establish guilt. Wells v. State, 613 P.2d 201, 1980 Wyo. LEXIS 287 (Wyo. 1980).

Possession of recently stolen property is material factor in determining the guilt or innocence of the defendant in a larceny case. Orcutt v. State, 366 P.2d 690, 1961 Wyo. LEXIS 133 (Wyo. 1961).

But defendant need not be found in possession of stolen property as long as he may be found to be closely related to its disappearance by some connecting evidence. Wells v. State, 613 P.2d 201, 1980 Wyo. LEXIS 287 (Wyo. 1980).

Improper to infer theft from possession alone. —

Instructing the jury regarding the permissible inference of theft from the unexplained possession of recently stolen property (i.e., cattle) was reversible error, where the time period (one month to one-and-a-half years) between the alleged thefts and defendant's later possession of the cattle was not so short as to render it reasonably certain that there could have not been an intermediate change of possession. Mendicoa v. State, 771 P.2d 1240, 1989 Wyo. LEXIS 100 (Wyo. 1989).

Sales receipt relevant evidence. —

In a prosecution for larceny by a bailee, a sales receipt is relevant evidence, although the question of the genuineness of the receipt is one for the trier of fact. Epperson v. State, 600 P.2d 1051, 1979 Wyo. LEXIS 462 (Wyo. 1979).

Larceny and obtaining property by false pretenses distinguished. —

One test for distinguishing between larceny and obtaining property by false pretenses is to determine whether the offender could confer good title upon another by sale and delivery of the property. If he could not, the offense is larceny. Neel v. State, 454 P.2d 241, 1969 Wyo. LEXIS 135 (Wyo. 1969).

In “larceny,” the owner of the property has no intention to part with title therein to the person taking it, although he may intend to part with possession; while, in “false pretenses,” the owner intends to part with both his possession and title, but such are obtained from him by fraud. Neel v. State, 454 P.2d 241, 1969 Wyo. LEXIS 135 (Wyo. 1969).

Where a person by trick or fraud obtains possession of property intending at the time of obtaining the property to convert it to his own use, and does so convert it, the fraud is the equivalent of a felonious taking and the offense is larceny, for if only the possession of the thing of value is obtained and it is then converted by the accused, the crime involved is larceny and not false pretenses. Neel v. State, 454 P.2d 241, 1969 Wyo. LEXIS 135 (Wyo. 1969); Otte v. State, 563 P.2d 1361, 1977 Wyo. LEXIS 255 (Wyo. 1977).

Taking of information constitutes larceny. —

The defendant's unlawful entry of a dwelling to copy the victim's unlisted phone number, social security number and insurance policy number constituted burglary because such information can be considered property and its taking as larceny under this section. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Defendant's taking and copying of victim's keys and calendar was larcenous and evidence of such an act was sufficient to sustain his burglary conviction even though he had returned the property. Although the owner may retain the original property, there has been nevertheless a deprivation of property when a copy is made and retained by another. Dreiman v. State, 825 P.2d 758, 1992 Wyo. LEXIS 15 (Wyo. 1992).

Value of goods. —

The test of value as an element of the crime of larceny is the value of the goods at the time and place where they are taken. Oldham v. State, 534 P.2d 107, 1975 Wyo. LEXIS 140 (Wyo. 1975); Buckles v. State, 622 P.2d 934, 1981 Wyo. LEXIS 279 (Wyo. 1981).

Value established by presenting retail price. —

The state established the market value of goods taken beyond a reasonable doubt merely by presenting evidence of retail price. Washington v. State, 751 P.2d 384, 1988 Wyo. LEXIS 60 (Wyo. 1988).

For calculation of value when larceny committed by several persons. —

See 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).

Owner may testify as to his opinion of market value of items stolen from him without having a particular expertise; the weight given to such testimony is left to the jury. Weathers v. State, 652 P.2d 970, 1982 Wyo. LEXIS 394 (Wyo. 1982).

Evidence held admissible. —

Defendant's claim that another person in stolen car with him stole the car and escaped gave video tape of defendant's flight from police in car substantial probative value where it showed no one exited the vehicle, and trial court did not abuse its discretion in determining tape was more probative than prejudicial. Prindle v. State, 945 P.2d 1180, 1997 Wyo. LEXIS 123 (Wyo. 1997), overruled, Vaughn v. State, 962 P.2d 149, 1998 Wyo. LEXIS 97 (Wyo. 1998).

Evidence held sufficient. —

Dalzell v. State, 7 Wyo. 450, 53 P. 297, 1898 Wyo. LEXIS 16 (Wyo. 1898); Cox v. State, 651 P.2d 1137, 1982 Wyo. LEXIS 389 (Wyo. 1982).

Sufficient evidence existed to convict defendant of crime of grand larceny. See Starr v. State, 888 P.2d 1262, 1995 Wyo. LEXIS 11 (Wyo.), overruled, Jones v. State, 902 P.2d 686, 1995 Wyo. LEXIS 150 (Wyo. 1995).

The evidence was sufficient for a conviction, where regularly kept business records of a travel agency were placed in evidence and those records demonstrated a negative proposition, i.e., that the traveler's checks which were spent by the defendant over a certain time period never showed up on the agency's sales records, nor was the money for them received or deposited in a bank by the agency. Seaton v. State, 811 P.2d 276, 1991 Wyo. LEXIS 79 (Wyo. 1991).

Where defendant wrote himself two checks on his employer's account without permission, then silently accepted payment which resulted in his being paid twice for the same month, evidence was sufficient to create a reasonable inference that defendant intended to steal property of another. Swanson v. State, 981 P.2d 475, 1999 Wyo. LEXIS 85 (Wyo. 1999).

Evidence was sufficient to support the defendant's conviction for larceny of a snowmobile, notwithstanding the defendant's contention that he found the snowmobile at the city dump, where (1) he gained possession of the snowmobile within days of its disappearance from a dealership, and (2) his story was not corroborated by the testimony of the friends who were supposedly with him when he found the snowmobile or by testimony of employees of the city dump, who testified that they had never seen the snowmobile nor the defendant at the dump. McFarlane v. State, 2001 WY 10, 17 P.3d 31, 2001 Wyo. LEXIS 9 (Wyo. 2001).

Sufficient evidence was presented to sustain a conviction under § 6-3-402(b) for felony larceny by a bailee beyond a reasonable doubt; although defendant asserted that he had a good faith belief he had been given ownership of the horses in question two additional witnesses supported the owner's assertion that defendant was merely a bailee with no ownership interest in the horses and the defendant told the owner that the first mare had died and that a veterinarian had put the other two down due to poor health, but the three mares were sold by the defendant for slaughter at a livestock commission auction at which the defendant listed himself as the owner of the horses and received a check from the sale in an amount in excess of the $500 felony limit. Willis v. State, 2002 WY 79, 46 P.3d 890, 2002 Wyo. LEXIS 81 (Wyo. 2002).

Evidence was sufficient to sustain defendant's felony larceny conviction, even in the absence of allegedly improper opinion testimony, where defendant was standing near a display case containing a necklace immediately before it was discovered to be missing and where his wife immediately thereafter observed an inch of gold chain in defendant's pocket that appeared very similar to the pictured stolen necklace. Brown v. State, 2004 WY 57, 90 P.3d 98, 2004 Wyo. LEXIS 69 (Wyo. 2004).

Where defendant sold a vehicle belonging to the victim to a third party, the evidence was sufficient to support defendant's conviction of larceny and specifically to establish the “taking” and “carrying” elements because, at the time the third party bought the vehicle from defendant, the victim was the owner of the car; consequently, the third party's purchase of the vehicle constituted a taking from the victim. With regard to the asportation element, evidence that the third party loaded the vehicle onto a trailer and transported it to his house was sufficient to establish that he carried the property away; both the taking and the carrying by the third party were attributable to defendant. Jones v. State, 2011 WY 114, 256 P.3d 527, 2011 Wyo. LEXIS 117 (Wyo. 2011).

Evidence was sufficient to convict defendant for felony theft because defendant possessed the requisite intent to deprive where he admitted that he intended to drive a vehicle until it ran out of gas and then abandon it. 2015 WY 86, 2015 Wyo. LEXIS 97 .

In a larceny case, the State met its burden of establishing the “taking and carrying away” element of the crime because unique tire tracks led to the conclusion that a certain truck was used to take and carry away the stolen equipment. Therefore, the evidence was sufficient to support the conviction. Pena v. State, 2015 WY 149, 361 P.3d 862, 2015 Wyo. LEXIS 166 (Wyo. 2015).

Evidence was sufficient to support defendant's forgery and theft convictions where the State presented the merchant copy of the receipts showing the alterations defendant made, the testimony of the customers confirming that their writing on the receipts had been altered, the restaurant's summary of sales showing that defendant was the server and the amount of the credit/debit card tip she was due was the amount inflated by the alteration, and labor reports showing that defendant signed off shortly after generating the report. Mraz v. State, 2016 WY 85, 378 P.3d 280, 2016 Wyo. LEXIS 95 (Wyo. 2016).

Because defendant's argument was limited to a claim that the evidence was insufficient to prove a taking of the cell phone that he gave the victim's daughter, and not the victim's cell phone, and the information was amended, charging defendant with taking the victim's cell phone, and an instruction consistent with that amendment was given, the evidence was sufficient to convict defendant of misdemeanor theft because defendant took the victim's cell phone after she made the 911 call during the course of events that led to his conviction for kidnapping. Dockter v. State, 2017 WY 63, 396 P.3d 405, 2017 Wyo. LEXIS 64 (Wyo. 2017).

Defendant was denied a judgment of acquittal as to the theft of two motorcycles where substantial evidence showed that the victims retained ownership when they left the vehicles in a locked storage after selling their repair business to defendant. Kuebel v. State, 2019 WY 75, 446 P.3d 179, 2019 Wyo. LEXIS 76 (Wyo. 2019).

Evidence held sufficient.—

Sufficient evidence supported a conviction for felony larceny because there was an intent to permanently deprive where defendant kept a vehicle for 3 months, lied about the owner of the truck, and made no effort to return the truck to the owner or advise him of its location. Defendant argued that his actions constituted joyriding or unauthorized use. Peña v. State, 2013 WY 4, 294 P.3d 13, 2013 Wyo. LEXIS 4 (Wyo. 2013).

Evidence held insufficient. —

Where the state was unable to prove that rolled coins in the defendant's possession actually came from a convenience store larceny, and relied heavily upon the fact that defendant had the opportunity to commit the crime, this and other incriminating evidence did not provide an adequate link between the defendant and the larceny and was insufficient to form a reasonable inference of the defendant's guilt beyond a reasonable doubt. Fischer v. State, 811 P.2d 5, 1991 Wyo. LEXIS 83 (Wyo. 1991).

The evidence was insufficient to form the basis for a reasonable inference of guilt beyond a reasonable doubt that the defendant was a bailee where in all pertinent instances, the “owners” of the property at issue in the case gave “ownership,” not mere possession of the property to the defendant. Lahr v. State, 840 P.2d 930, 1992 Wyo. LEXIS 155 (Wyo. 1992).

Evidence of opportunity to take money was not sufficient to prove circumstantially that defendant committed the crime of larceny by bailee because more corroborative evidence was required than her failure to disclose that she had been in the building earlier; opportunity evidence must be accompanied by evidence that the defendant possessed the stolen property, attempted to avoid apprehension by law enforcement, or was identified in some way as having possessed the stolen property. Mraz v. State, 2014 WY 73, 326 P.3d 931, 2014 Wyo. LEXIS 78 (Wyo. 2014).

Included offenses. —

A charge of malicious destruction of telephone line under § 37-12-121 is an included offense in a larceny charge under this section of stealing, taking and carrying away such line. Loddy v. State, 502 P.2d 194, 1972 Wyo. LEXIS 277 (Wyo. 1972), cert. denied, 414 U.S. 1134, 94 S. Ct. 877, 38 L. Ed. 2d 760, 1974 U.S. LEXIS 1493 (1974) (holding that the defendant should have been convicted and sentenced for larceny only).

The “minor in possession” offense described in subsection (b) of § 12-6-101 is not the same offense as “accessory before the fact” to larceny of whiskey under § 6-1-201 and this section, nor does it merge into or become an included offense. Mullin v. State, 505 P.2d 305, 1973 Wyo. LEXIS 134 (Wyo.), cert. denied, 414 U.S. 940, 94 S. Ct. 245, 38 L. Ed. 2d 166, 1973 U.S. LEXIS 1063 (U.S. 1973).

Larceny and failure to account merge. —

Where evidence of embezzlement by larceny is also evidence used to support the charge of a public official's failure to account, these offenses have merged. Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Offense must occur within state. —

Former offense of petit larceny had to occur within the state of Wyoming. United States v. Crawford, 466 F.2d 1155, 1972 U.S. App. LEXIS 7489 (10th Cir. Wyo. 1972).

Information adequately charged aiding and abetting. —

See 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).

Indictment for larceny as bailee held defective. —

Indictment for larceny as bailee, which alleged neither facts constituting defendant a bailee nor character of the bailment, was defective. Wilbur v. Territory, 3 Wyo. 268, 21 P. 698, 1889 Wyo. LEXIS 4 (Wyo. 1889).

Indictment for larceny as bailee held sufficient. —

It was clear that defendant had adequate notice of the charge for which he was convicted, one count of larceny by bailee in violation of Wyo. Stat. Ann. § 6-3-402(b) (2001), in comparing the charging documents with the trial court's oral ruling. The court did not see the amount of evidence presented as creating a problem with defendant's right to notice of the charges against him; it simply amounted to a failure of proof on the State's part; moreover, there was no prejudice to defendant as the trial court specifically rejected the State's contentions as to the other items. Barker v. State, 2006 WY 104, 141 P.3d 106, 2006 Wyo. LEXIS 110 (Wyo. 2006).

Unauthorized personal use of credit card.—

Defendant, an officer and director of the local chamber of commerce, was convicted of multiple counts of felony theft, following defendant’s use of the chamber’s credit cards to purchase personal items and services, because the value of available credit on the credit cards was intangible property, the credit cards were for chamber business purposes only, and defendant concealed the use of the credit cards by not maintaining monthly statements and often falsifying the explanations of personal charges to reflect a proper business expense. Fox v. State, 2020 WY 88, 467 P.3d 140, 2020 Wyo. LEXIS 99 (Wyo. 2020).

Instructions held proper. —

In prosecution for larceny by defendant as a bailee, where evidence as to whether there was sale of the goods to defendant on his false representations or a bailment was conflicting, the court's charge, not only on these two theories, but also on the hypothesis that defendant was a bona fide purchaser, was sufficiently favorable to defendant. Wilbur v. Territory, 3 Wyo. 268, 21 P. 698, 1889 Wyo. LEXIS 4 (Wyo. 1889).

It was not error for the court to fail to instruct on a credible and logical explanation of defendant's possession of recently stolen property, as supported by the evidence, when the defendant failed to offer an adequate instruction for this purpose. Benson v. State, 571 P.2d 595, 1977 Wyo. LEXIS 319 (Wyo. 1977).

In a larceny case, a jury instruction stating that the possession of recently stolen property, when supported by slight corroborative evidence, could have supported an inference that the possessor participated in the theft was properly given, and the instruction was not only applicable to burglary cases. Pena v. State, 2015 WY 149, 361 P.3d 862, 2015 Wyo. LEXIS 166 (Wyo. 2015).

Jury instructions were proper during defendant's trial for aggravated burglary because the instructions adequately informed the jury of the element of “burglary,” including the specific intent to commit larceny and the required intent to deprive for larceny. Dennis v. State, 2013 WY 67, 302 P.3d 890, 2013 Wyo. LEXIS 71 (Wyo. 2013).

Jury Instructions Inadequate. —

Plain error occurred when the trial court instructed the jury that the necessary elements of the crime of larceny were that defendant did steal the property of another valued at $1,000 or more because Wyo. Stat. Ann. § 6-3-402(a) provided that “a person who steals, takes and carries, leads or drives away property of another with intent to deprive the owner or lawful possessor is guilty of larceny”; thus, “taking” and “carrying” were essential elements of the offense of larceny. Defendant was prejudiced by the omission of the taking and carrying elements from the jury instructions because he contested those elements at trial; as such, reversible error occurred. Jones v. State, 2011 WY 114, 256 P.3d 527, 2011 Wyo. LEXIS 117 (Wyo. 2011).

Failure to note property value on verdict. —

In a conviction for former crime of petit larceny there was no absence of fundamental fairness in the procedural irregularity of failing to note the value of stolen property on the verdict where the evidence did show that without a doubt the petitioner stole gasoline, which has a monetary value. Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979).

A verdict form in a conviction for former offense of grand larceny needed only to state that personal goods worth over $100 were stolen. Weathers v. State, 652 P.2d 970, 1982 Wyo. LEXIS 394 (Wyo. 1982).

Probation revoked, despite failure to prove intent to permanently deprive another of property. —

The alleged failure of the state to prove beyond a reasonable doubt that the defendant, a probationer, had the intent to permanently deprive another of his property, a car battery, did not prevent the trial court from revoking his probation on the basis of his criminal conduct. Panesenko v. State, 706 P.2d 273, 1985 Wyo. LEXIS 566 (Wyo. 1985).

Trial court did not abuse discretion in imposing three-to-five-year penitentiary sentence upon defendant, a 64-year-old man without a prior criminal record, who received a large sum of money from an elderly, sick woman, which constituted her life savings, for the ostensible purpose of investing it for her, but who then diverted the money for his own purposes. Stoddard v. State, 707 P.2d 176, 1985 Wyo. LEXIS 580 (Wyo. 1985).

Order of restitution. —

Where defendant admitted in writing to defendant's employer that defendant stole cameras, CDs, and DVDs, but only the cameras were mentioned in the criminal proceeding for larceny, it was error to order restitution under Wyo. Stat. Ann. § 7-9-101(a)(i) for the DVDs and CDs because defendant did not admit to the crimes in the context of a criminal proceeding. Coleman v. State, 2005 WY 69, 115 P.3d 411, 2005 Wyo. LEXIS 81 (Wyo. 2005).

Entry onto land by brand inspector consistent with statutory authority. —

An involuntary bailment was created when the parents took their daughter to live elsewhere but kept her horse, and the parents, as involuntary bailees, had an absolute duty to return the property when the daughter terminated the bailment; consequently, the brand inspector's action in entering the parents' land to retrieve the daughter's horse for transfer to the daughter's agent was consistent with his statutory authority under Wyo. Stat. Ann. §§ 11-20-203(a), 205(a), 214(a), and constituted neither criminal trespass nor larceny. Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219, 2002 Wyo. LEXIS 173 (Wyo. 2002), reh'g denied, 2002 Wyo. LEXIS 198 (Wyo. Nov. 5, 2002).

Ineffectiveness of counsel. —

Defendant did not receive ineffective assistance of counsel in a larceny by bailee case based on the admission of certain letters because no prejudice was shown; the evidence was overwhelming that defendant stole or deprived the other heirs of funds from an estate in an amount in excess of $ 1,000. Hibsman v. State, 2015 WY 122, 355 P.3d 1240, 2015 Wyo. LEXIS 137 (Wyo. 2015).

Applied in

Kingen v. Kelley, 3 Wyo. 566, 28 P. 36, 1891 Wyo. LEXIS 15 , 15 L.R.A. 177 (1891); Bandy v. Hehn, 10 Wyo. 167, 67 P. 979, 1902 Wyo. LEXIS 7 (1902); State v. Reisch, 491 P.2d 1254, 1971 Wyo. LEXIS 274 (Wyo. 1971); Attletweedt v. State, 684 P.2d 812, 1984 Wyo. LEXIS 313 (Wyo. 1984); Naugher v. State, 685 P.2d 37, 1984 Wyo. LEXIS 344 (Wyo. 1984); Roose v. State, 759 P.2d 478, 1988 Wyo. LEXIS 119 (Wyo. 1988); Goodwine v. State, 764 P.2d 680, 1988 Wyo. LEXIS 163 (Wyo. 1988); Tennant v. State, 776 P.2d 761, 1989 Wyo. LEXIS 175 (Wyo. 1989); Reilly v. State, 2002 WY 156, 55 P.3d 1259, 2002 Wyo. LEXIS 177 (Wyo. 2002).

Quoted in

Vaupel v. State, 708 P.2d 1248, 1985 Wyo. LEXIS 627 (Wyo. 1985); Prime v. State, 767 P.2d 149, 1989 Wyo. LEXIS 7 (Wyo. 1989); Engle v. State, 774 P.2d 1303, 1989 Wyo. LEXIS 138 (Wyo. 1989); Justice v. State, 775 P.2d 1002, 1989 Wyo. LEXIS 145 (Wyo. 1989); Tennant v. State, 786 P.2d 339, 1990 Wyo. LEXIS 6 (Wyo. 1990); Price v. State, 807 P.2d 909, 1991 Wyo. LEXIS 33 (Wyo. 1991); Swackhammer v. State, 808 P.2d 219, 1991 Wyo. LEXIS 48 (Wyo. 1991); Kahlsdorf v. State, 823 P.2d 1184, 1991 Wyo. LEXIS 202 (Wyo. 1991); Hightower v. State, 901 P.2d 397, 1995 Wyo. LEXIS 153 (Wyo. 1995); Leiker v. State, 994 P.2d 917, 1999 Wyo. LEXIS 208 (Wyo. 1999); Williams v. State, 2004 WY 117, 99 P.3d 432, 2004 Wyo. LEXIS 152 (2004); Mabe v. State, 2007 WY 172, 169 P.3d 870, 2007 Wyo. LEXIS 183 (Oct. 31, 2007).

Stated in

Morgan v. State, 708 P.2d 1244, 1985 Wyo. LEXIS 606 (Wyo. 1985); Brown v. State, 2002 WY 61, 44 P.3d 97, 2002 Wyo. LEXIS 61 (Wyo. 2002).

Cited in

Murphy v. State, 592 P.2d 1159, 1979 Wyo. LEXIS 395 (Wyo. 1979); Phillips v. State, 597 P.2d 456, 1979 Wyo. LEXIS 497 (Wyo. 1979); Smith v. State, 598 P.2d 1389, 1979 Wyo. LEXIS 449 (Wyo. 1979); Six Feathers v. State, 611 P.2d 857, 1980 Wyo. LEXIS 276 (Wyo. 1980); Barnes v. State, 642 P.2d 1263, 1982 Wyo. LEXIS 343 (Wyo. 1982); Wright v. State, 718 P.2d 35, 1986 Wyo. LEXIS 532 (Wyo. 1986); City of Casper v. Cheatham, 739 P.2d 1222, 1987 Wyo. LEXIS 471 (Wyo. 1987); United States v. Maher, 1989 U.S. Dist. LEXIS 13872, 724 F. Supp. 1348 (D. Wyo. 1989); Cook v. State, 841 P.2d 1345, 1992 Wyo. LEXIS 164 (Wyo. 1992); Abell v. Dewey, 847 P.2d 36, 1993 Wyo. LEXIS 29 (Wyo. 1993); Abell v. Dewey, 870 P.2d 363, 1994 Wyo. LEXIS 32 (Wyo. 1994); Van Riper v. State, 882 P.2d 230, 1994 Wyo. LEXIS 108 (Wyo. 1994); Stowe v. State, 10 P.3d 551, 2000 Wyo. LEXIS 186 (Wyo. 2000); Sincock v. State, 2003 WY 115, 76 P.3d 323, 2003 Wyo. LEXIS 135 (Wyo. 2003); Major v. State, 2004 WY 4, 83 P.3d 468, 2004 Wyo. LEXIS 8 (Wyo. 2004); Condra v. State, 2004 WY 131, 100 P.3d 386, 2004 Wyo. LEXIS 171 (2004); Webster v. State, 2016 WY 76, 376 P.3d 488, 2016 Wyo. LEXIS 83 (Wyo. 2016); Bohling v. State, 2017 WY 7, 388 P.3d 502, 2017 Wyo. LEXIS 7 (Wyo. 2017).

Law reviews. —

For case note, “Receiving Stolen Property — The Doctrine of Recent Possession and Problems Associated with Defendant's Testimony, Defendant's Testimony. Russell v. State, 583 P.2d 690, 1978 Wyo. LEXIS 215 (Wyo. 1978),” see XIV Land & Water L. Rev. 291 (1979).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to bill of particulars, 5 ALR2d 444.

Gambling or lottery paraphernalia as subject of larceny, 51 ALR2d 1396.

Validity and construction of National Motor Vehicle Theft Act, 56 ALR2d 1309, 15 ALR Fed 856, 15 ALR Fed 888, 15 ALR Fed 919.

Cat as subject of larceny, 73 ALR2d 1032.

Taking, and pledging or pawning, another's property as larceny, 82 ALR2d 863.

Stolen property as subject of larceny, 89 ALR2d 1435.

Attempts to commit larceny by trick, confidence game, false pretenses and the like, 6 ALR3d 241.

Entrapment or consent, 10 ALR3d 1121.

Cotenant taking cotenancy property, 17 ALR3d 1394.

Inconsistency of criminal verdict as between different counts of indictment or information, 18 ALR3d 259.

Single or separate larceny predicated upon stealing property from different owners at the same time, 37 ALR3d 1407.

Criminal liability in connection with rental of motor vehicles, 38 ALR3d 949.

Purse snatching as theft, 42 ALR3d 1381.

Breaking into or taking money or goods from coin-operated machine, 45 ALR3d 1286.

What constitutes “exclusive” possession of stolen goods to support inference of felonious taking, 51 ALR3d 727.

Series of takings over a period of time as single or separate larcenies, 53 ALR3d 398.

Asportation of motor vehicle as necessary element of larceny, 70 ALR3d 1202.

What conduct amounts to an overt act or acts done toward commission of larceny so as to sustain charge of attempt to commit larceny, 76 ALR3d 842.

Retaking of money lost at gambling as robbery or larceny, 77 ALR3d 1363.

Where is embezzlement committed for purposes of territorial jurisdiction or venue, 80 ALR3d 514.

Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481.

Retailer's failure to pay to government sales or use tax funds as constituting larceny or embezzlement, 8 ALR4th 1068.

Elements and measure of damages recoverable from bailee for loss, destruction, or conversion of personal papers, photographs, or paintings, 9 ALR4th 1245.

Liability for loss of automobile left at parking lot or garage, 13 ALR4th 362.

Liability for damage to automobile left in parking lot or garage, 13 ALR4th 442.

Liability of hotel or motel for guest's loss of money from room by theft or robbery committed by person other than defendant's servant, 28 ALR4th 120.

Bank officer's or employee's misapplication of funds as state criminal offense, 34 ALR4th 547.

Liability of bank or safe-deposit company for its employee's theft or misappropriation of contents of safe-deposit box, 39 ALR4th 543.

Physician's use of patient's tissues, cells or bodily substances for medical research or economic purposes, 16 ALR5th 143.

Participation in larceny or theft as precluding conviction for receiving or concealing the stolen property, 29 ALR5th 59.

Consideration of sales tax in determining value of stolen property or amount of theft, 63 ALR5th 417.

II.Embezzlement.

Former embezzlement statute was not unconstitutional and void for vagueness as it set forth the facts and elements necessary in an indictment to apprise a defendant of the charges against him. Hovee v. State, 596 P.2d 1127, 1979 Wyo. LEXIS 431 (Wyo. 1979) (decided under former § 6-5-109 ).

Actual possession of public property not required. —

Although a person was not in actual possession of public funds or property, he might be deemed to have control of such funds or property for the purpose of former embezzlement statute where the money or property was under his discretion. Hovee v. State, 596 P.2d 1127, 1979 Wyo. LEXIS 431 (Wyo. 1979) (decided under former § 6-5-109 ).

Intent might be inferred from conduct of defendant and from circumstantial evidence. Hovee v. State, 596 P.2d 1127, 1979 Wyo. LEXIS 431 (Wyo. 1979) (decided under former § 6-5-109 ).

Misjoinder of embezzlement-related offense, and offense of submitting false voucher for battery, occurred as error of law. — See Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Trips to attend antique auctions did not support conclusion of “official purpose” for a county treasurer. Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-3-403. Wrongful taking or disposing of property; venue of indictment. [Repealed]

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-404. Shoplifting; altering or removing price tags and markers; penalties. [Repealed]

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-405. Reasonable detention and interrogation of persons suspected of shoplifting or altering price tag; defense in civil or criminal action.

  1. A peace officer, merchant or merchant’s employee who has reasonable cause to believe a person is violating W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store may detain and interrogate the person in regard to the suspected violation in a reasonable manner and for a reasonable time.
  2. In a civil or criminal action for slander, false arrest, false imprisonment, assault, battery or wrongful detention based upon a detention and interrogation pursuant to this section, it is a defense that the peace officer, merchant or merchant’s employee had reasonable cause to believe the person was violating W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store and the detention and interrogation were conducted in a reasonable manner and for a reasonable time.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2020, ch. 90, § 1.

Cross references. —

As to false imprisonment generally, see § 6-2-203 .

As to security against search and seizure, see art. 1, § 4, Wyo. Const.

As to arrest by persons other than officers upon reasonable grounds to believe a petit larceny or felony has been committed, see § 7-8-101 .

The 2020 amendment, effective July 1, 2020, in (a) and (b) substituted “W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store” for “W.S. 6-3-404 .”

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Principal's liability for punitive damages because of false arrest or imprisonment or malicious prosecution by agent or employee, 93 ALR3d 826.

Defendant's state of mind necessary or sufficient to warrant award of punitive damages in action for false arrest or imprisonment, 93 ALR3d 1109.

Excessiveness or inadequacy of compensatory damages for false imprisonment or arrest, 48 ALR4th 165.

§ 6-3-406. Defrauding an innkeeper; penalties; definitions. [Repealed]

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-407. Obtaining property by false pretenses; penalties. [Repealed]

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-408. Theft of services; penalties. [Repealed]

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 1985, ch. 149, § 2; 2004, ch. 126, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-409. Fraudulently obtaining telecommunications services deemed misdemeanor. [Repealed]

History. Laws 1961, ch. 126, § 1; W.S. 1957, § 37-259.1; W.S. 1977, § 37-12-123 ; Laws 1983, ch. 171, § 5; 1984, ch. 44, § 2; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-410. Value of property may be aggregated in certain cases. [Repealed]

History. Laws 1984, ch. 44, § 1; 2013, ch. 191, § 2; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-411. Unlawful use of theft detection shielding devices; penalty.

  1. A person commits unlawful use of a theft detection shielding device when he knowingly manufacturers, sells, offers for sale or distributes any laminated or coated bag or device peculiar to shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.
  2. A person commits unlawful possession of a theft detection shielding device when he knowingly possesses any laminated or coated bag or device peculiar to and designed for shielding and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor, with the intent to commit theft.
  3. A person commits unlawful possession of a theft detection device remover when he knowingly possesses any tool or device designed to allow the removal of any theft detection device from any merchandise without the permission of the merchant or person owning or holding the merchandise, with the intent to commit theft.
  4. A person commits the offense of unlawful removal of a theft detection device when he intentionally removes the device from a product prior to purchase without the permission of the merchant or person owning or holding the merchandise.
  5. A person who commits any of the offenses specified under subsections (a) through (d) of this section shall be guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 2001, ch. 168, § 1; 2002 Sp. Sess., ch. 3, § 1.

§ 6-3-412. Unlawful taking of motor vehicle fuel; penalties. [Repealed]

History. Laws 2013, ch. 191, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-413. Rustling; penalty. [Repealed]

History. Laws 2013, ch. 191, § 1; Repealed by Laws 2020, ch. 90, § 3.

§ 6-3-414. Trespassing to unlawfully collect resource data; unlawful collection of resource data.

  1. A person is guilty of trespassing to unlawfully collect resource data from private land if he:
    1. Enters onto private land for the purpose of collecting resource data; and
    2. Does not have:
      1. An ownership interest in the real property or, statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
      2. Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
  2. A person is guilty of unlawfully collecting resource data if he enters onto private land and collects resource data from private land without:
    1. An ownership interest in the real property or, statutory, contractual or other legal authorization to enter the private land to collect the specified resource data; or
    2. Written or verbal permission of the owner, lessee or agent of the owner to enter the private land to collect the specified resource data.
  3. A person is guilty of trespassing to access adjacent or proximate land if he:
    1. Crosses private land to access adjacent or proximate land where he collects resource data; and
    2. Does not have:
      1. An ownership interest in the real property or, statutory, contractual or other legal authorization to cross the private land; or
      2. Written or verbal permission of the owner, lessee or agent of the owner to cross the private land.
  4. Crimes committed under subsection (a), (b) or (c) of this section are punishable as follows:
    1. By imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both;
    2. By imprisonment for not less than ten (10) days nor more than one (1) year, a fine of not more than five thousand dollars ($5,000.00), or both, if the person has previously been convicted of trespassing to unlawfully collect resource data or unlawfully collecting resource data.
  5. As used in this section:
    1. “Collect” means to take a sample of material, acquire, gather, photograph or otherwise preserve information in any form and the recording of a legal description or geographical coordinates of the location of the collection;
    2. Repealed by Laws 2016, Ch. 117, Section 2.
    3. “Peace officer” means as defined by W.S. 7-2-101 ;
    4. “Resource data” means data relating to land or land use, including but not limited to data regarding agriculture, minerals, geology, history, cultural artifacts, archeology, air, water, soil, conservation, habitat, vegetation or animal species. “Resource data” does not include data:
      1. For surveying to determine property boundaries or the location of survey monuments;
      2. Used by a state or local governmental entity to assess property values;
      3. Collected or intended to be collected by a peace officer while engaged in the lawful performance of his official duties.
  6. No resource data collected on private land in violation of this section is admissible in evidence in any civil, criminal or administrative proceeding, other than a prosecution for violation of this section or a civil action against the violator.
  7. Resource data collected on private land in violation of this section in the possession of any governmental entity as defined by W.S. 1-39-103(a)(i) shall be expunged by the entity from all files and data bases, and it shall not be considered in determining any agency action.

History. Laws 2015, ch. 146, § 1; 2016, ch. 117, § 1.

The 2016 amendments. — The first 2016 amendment, by ch. 117 § 1, in the introductory language of (a), inserted “from private land” following “data”; in (a)(i) substituted “private” for “open” preceding “land”; in (a)(i)(A), substituted “enter the private land” for “enter or access the land” and inserted “the specified” preceding “resource data”; in (a)(ii)(B), substituted “enter the private land” for “enter or access the land”; in the introductory language of (b), deleted “open” preceding “land” and inserted “from private land” preceding “without”; in (b)(ii), inserted “private” preceding “land”; added present (c) and redesignated the remaining subsections accordingly; in present (d), substituted “Crimes committed under subsection (a), (b) or (c) of this section” for “Trespassing to unlawfully collect resource data and unlawfully collecting resource data”; in present (e)(i), substituted “and the recording of a legal description or geographical coordinates of the location of the collection” for “from open land which is submitted or intended to be submitted to any agency of the state or federal government”; in present (f), inserted “on private land” following “collected”; and in (g) inserted “on private land” following “collected.”

The second 2016 amendment, by ch. 117 § 2, repealed former (d)(ii), which read: “"Open land" means land outside the exterior boundaries of any incorporated city, town, subdivision approved pursuant to W.S. 18-5-308 or development approved pursuant to W.S. 18-5-403 .”

Laws 2016 ch. 117, § 3, makes the act effective upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 15, 2016.

Effective date. —

Laws 2015, ch. 146, § 1 makes the act effective March 5, 2015.

Constitutional.

Protected speech.

Constitutional.

Plaintiffs could not have maintained a Free Speech First Amendment challenge because the statutes did not regulate protected First Amendment activity, there was no constitutionally protected First Amendment right to enter upon the private lands of another for the purposes of collecting data, the statutes were not facially overbroad, and the court declined to conduct a facial analysis of the statutes' expungement provisions. Western Watersheds Project v. Michael, 196 F. Supp. 3d 1231, 2016 U.S. Dist. LEXIS 88843 (D. Wyo. 2016).

Statutes passed the rational basis test and therefore did not violate the Equal Protection Clause of the Fourteenth Amendment because the statutes were not promulgated out of animus toward a particular group, and did not burden a fundamental right because the statutes precluded trespassing to collect any resource data, regardless of whether that data was favorable or unfavorable to the owner, and the statutes rationally related to the interest of protecting private property rights. Western Watersheds Project v. Michael, 196 F. Supp. 3d 1231, 2016 U.S. Dist. LEXIS 88843 (D. Wyo. 2016).

Protected speech.

Wyo. Stat. Ann. §§ 6-3-414 , 40-27-101 (2016) regulated protected speech under First Amendment, and they were not shielded from constitutional scrutiny merely because they touched upon access to private property; although trespassing did not enjoy First Amendment protection, statutes targeted creation of speech by imposing heightened penalties on those who collected resource data. Western Watersheds Project v. Michael, 869 F.3d 1189, 2017 U.S. App. LEXIS 17279 (10th Cir. Wyo. 2017).

Article 5. Computer Crimes

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files or systems, 51 ALR4th 971.

What is computer “trade secret” under state law, 53 ALR4th 1046.

§ 6-3-501. Definitions.

  1. As used in this article:
    1. “Access” means to approach, instruct, communicate with, store data in, retrieve data from, or otherwise make use of any resources of a computer, computer system or computer network;
    2. “Computer” means an internally programmed, automatic device which performs data processing;
    3. “Computer network” means a set of related, remotely connected devices and communication facilities including more than one (1) computer system with capability to transmit data among them through communication facilities;
    4. “Computer program” means an ordered set of data representing coded instructions or statements which when executed by a computer cause the computer to process data;
    5. “Computer software” means a set of computer programs, procedures and associated documentation concerned with the operation of a computer system;
    6. “Computer system” means a set of related, connected or unconnected, computer equipment, devices or computer software;
    7. “Computer system services” means providing a computer system or computer network to perform useful work;
    8. “Financial instrument” means a check, draft, money order, certificate of deposit, letter of credit, bill of exchange, credit card or marketable security;
    9. “Intellectual property” means data, including programs;
    10. “Property” includes financial instruments, information, electronically produced data, computer software and programs in machine-readable or human-readable form;
    11. “Trade secret” means the whole or a portion or phase of a formula, pattern, device, combination of devices or compilation of information which is for use, or is used in the operation of a business and which provides the business an advantage or an opportunity to obtain an advantage over those who do not know or use it. “Trade secret” includes any scientific, technical or commercial information including any design, process, procedure, list of suppliers, list of customers, business code or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art and the level of skill in the business, art or field to which the subject matter pertains, when the owner of a trade secret takes measures to prevent it from becoming available to persons other than those selected by the owner to have access to it for limited purposes, the trade secret is considered to be:
      1. Secret;
      2. Of value;
      3. For use or in use by the business; and
      4. Providing an advantage or an opportunity to obtain an advantage to the business over those who do not know or use it.

History. Laws 1982, ch. 75, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Computer fraud, 70 ALR5th 647.

§ 6-3-502. Crimes against intellectual property; penalties.

  1. A person commits a crime against intellectual property if he knowingly and without authorization:
    1. Modifies data, programs or supporting documentation residing or existing internal or external to a computer, computer system or computer network;
    2. Destroys data, programs or supporting documentation residing or existing internal or external to a computer, computer system or computer network;
    3. Discloses or takes data, programs, or supporting documentation having a value of more than seven hundred fifty dollars ($750.00) and which is a trade secret or is confidential, as provided by law, residing or existing internal or external to a computer, computer system or computer network.
  2. A crime against intellectual property is:
    1. A felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both, except as provided in paragraph (ii) of this subsection;
    2. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the crime is committed with the intention of devising or executing a scheme or artifice to defraud or to obtain property.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1985, ch. 197, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Disclosure or use of computer application software as misappropriation of trade secret, 30 ALR4th 1250.

Copyright protection of computer programs under federal copyright laws, 70 ALR Fed 176.

§ 6-3-503. Crimes against computer equipment or supplies; interruption or impairment of governmental operations or public services; penalties.

  1. A person commits a crime against computer equipment or supplies if he knowingly and without authorization, modifies equipment or supplies used or intended to be used in a computer, computer system or computer network. A crime against computer equipment or supplies is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, except as provided in paragraph (ii) of this subsection;
    2. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the crime is committed with the intention of devising or executing a scheme or artifice to defraud or to obtain property.
  2. A person who knowingly and without authorization destroys, injures or damages a computer, computer system or computer network and thereby interrupts or impairs governmental operations or public communication, transportation or supplies of water, gas or other public service, is guilty of a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-504. Crimes against computer users; penalties.

  1. A person commits a crime against computer users if he knowingly and without authorization:
    1. Accesses a computer, computer system or computer network;
    2. Denies computer system services to an authorized user of the computer system services which, in whole or part, are owned by, under contract to, or operated for, on behalf of, or in conjunction with another.
  2. A crime against computer users is:
    1. A felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both except as provided in paragraph (ii) of this subsection;
    2. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the crime is committed with the intention of devising or executing a scheme or artifice to defraud or to obtain property.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-505. This article not exclusive.

This article shall not preclude the application of any other provision of the criminal law of this state which applies, or may apply, to any violation of this article, unless the provision is inconsistent with this article.

History. Laws 1982, ch. 75, § 3.

§ 6-3-506. Computer trespass; penalties.

  1. A person commits a computer trespass if he knowingly, with intent to damage or cause the malfunction of the operation of a computer, computer system or computer network and without authorization transfers or sends electronically into a computer, computer system or computer network or causes to be transferred or sent electronically into a computer, computer system or computer network any malware, or other data, program or other information which alters, damages or causes the malfunction of the operation of the computer, computer system or computer network or which causes the computer, computer system or computer network to disseminate sensitive information.
  2. A computer trespass is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the resulting damages are less than ten thousand dollars ($10,000.00);
    2. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the resulting damages are ten thousand dollars ($10,000.00) or more.
  3. Common carriers, internet service providers or other persons who supply the internet services over which the content is delivered shall not be prosecuted for violations under this section resulting from the acts of another.
  4. For purposes of this section, “malware” means, but is not limited to, viruses, worms, trojan horses, rootkits, keyloggers, backdoors, dialers, ransomware, spyware, adware, malicious browser helper objects, rogue security software and other malicious programs used or designed to disrupt a computer operation, gather sensitive information, steal sensitive information or otherwise gain unauthorized access to a computer, computer system or computer network.

History: Laws 2014, ch. 73, § 1.

Effective dates. —

Laws 2014, ch. 73, § 1, makes the act effective July 1, 2014.

6-3-507. Computer extortion; penalties.

  1. A person is guilty of computer extortion if he knowingly and without authorization introduces, attempts to introduce or directs or induces another to introduce, any ransomware into a computer, computer system or computer network which requires the payment of money or other consideration to remove the ransomware or repair the damage caused to the computer, computer system or computer network by the ransomware.
  2. Computer extortion is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. For purposes of this section:
    1. “Computer or data contaminant” means any virus, worm or other similar computer program designed to encrypt, modify, damage, destroy, record or transmit information within a computer, computer system or computer network;
    2. “Ransomware” means a computer or data contaminant, encryption or lock that restricts an owner’s access to a computer, computer data, computer system or computer network in any way. “Ransomware” does not include authentication required to upgrade or access purchased content.

History. Laws 2017, ch. 22, § 1.

Effective dates. —

Laws 2017, ch. 22, § 3, makes the act effective July 1, 2017.

Article 6. Fraud

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Landlord's fraud, deceptive trade practices and the like, in connection with mobile home owner's lease or rental of landsite, 39 ALR4th 859.

Liability of insurance agent or broker to insured for misrepresentation of cash surrender value or accumulated value benefits of life insurance policy, 44 ALR4th 1030.

Real-estate broker's liability to purchaser for misrepresentation or nondisclosure of physical defects in property sold, 46 ALR4th 546.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files or systems, 51 ALR4th 971.

Criminal liability of pharmacy or pharmacist for welfare fraud in connection with supplying prescription drugs, 16 ALR5th 390.

Use of fraud or trick as “constructive breaking” for purpose of burglary or breaking and entering offense, 17 ALR5th 125.

Determination of loss caused by crime involving fraud or deceit, under United States sentencing guidelines § 2F1.1 (18 USC Appx), 118 ALR Fed 585.

§ 6-3-601. “Writing” defined.

As used in this article “writing” means printing or any other method of recording information, money, coins, tokens, stamps, seals, credit cards, badges, trademarks, and other symbols of value, right, privilege or identification.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Applied in

Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-602. Forgery; penalties.

  1. A person is guilty of forgery if, with intent to defraud, he:
    1. Alters any writing of another without authority;
    2. Makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed; or
    3. Utters any writing which he knows to be forged in a manner specified in paragraphs (i) or (ii) of this subsection.
  2. Except as provided in subsection (c) of this section, forgery is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. Forgery is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the writing is a:
    1. Permit required by W.S. 11-21-102 through 11-21-104 ; or
    2. Number or check number placed on a car or pit car in or about a mine.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2007, ch. 105, § 1.

The 2007 amendment, effective July 1, 2007, substituted “11-21-102” for “11-21-101” in (c)(i).

Legislative intent was to create two separate crimes, forgery and check fraud. The forgery prohibition is against the making of a deceptive document per se, and that of the check fraud is against the making of a document having validity other than the fact that the funds against which it is drawn are “insufficient.” The defendant, who attempted to pass a check which was not genuine (i.e., it was signed by him under a fictitious name and was on a bank in which he did not have an account and in which there was no account under the fictitious name) was properly charged. Binger v. State, 712 P.2d 349, 1986 Wyo. LEXIS 444 (Wyo. 1986).

Defendant properly charged with forgery and attempted forgery, not credit card fraud. —

See Alonso v. State, 712 P.2d 355, 1986 Wyo. LEXIS 446 (Wyo. 1986).

Elements of forgery. —

Forgery requires that there be a false making or alteration of some instrument in writing, a fraudulent intent, and the instrument must be capable of effecting a fraud. Dixon v. Williams, 584 P.2d 1078, 1978 Wyo. LEXIS 236 (Wyo. 1978).

Wyo. Stat. Ann. § 6-3-602(a)(ii) criminalizes conduct by which a transfer causes a writing to purport to be the act of another because this interpretation gives the word “transfer” the plain and ordinary meaning of “to print or otherwise copy from one surface to another by contact,” and further requires that the result of such transfer is that the writing purports to be the act of another. Riddle v. State, 2017 WY 153, 407 P.3d 392, 2017 Wyo. LEXIS 160 (Wyo. 2017).

Making false instrument in name of fictitious person is forgery. Moncref v. State, 33 Wyo. 192, 236 P. 1037, 1925 Wyo. LEXIS 28 (Wyo. 1925).

As is false authorization to collect money. —

A false writing stating that one is authorized to collect money for a certain newspaper is forgery. Leslie v. State, 10 Wyo. 10, 65 P. 849, 1901 Wyo. LEXIS 2 (Wyo. 1901), reh'g denied, 10 Wyo. 10, 69 P. 2, 1902 Wyo. LEXIS 1 (Wyo. 1902).

Defendant committed crime of forgery by signing names of others on nomination petition. Forgery is accomplished if the instrument is such that, if it were genuine, it would serve as the foundation for legal liability and has the potential to injure or defraud. In the case at hand, the electors of the state would have been defrauded and the election system of the state had the potential to be compromised by the defendant's actions. Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 189 (Wyo. Dec. 4, 1991).

Procedure. —

There was nothing improper about sustaining convenience store clerk's forgery conviction even though the amended information did not identify the specific transaction constituting the basis of the charge where, although the state could have charged her with 15 counts of forgery, each of which would support a forgery conviction, she was convicted of one count that embraced all 15 acts, and she neither cited authority that this was improper nor contended that she was not aware of the basis of the charge against her or that her ability to defend herself was in any way compromised. Howard v. State, 2002 WY 40, 42 P.3d 483, 2002 Wyo. LEXIS 43 (Wyo. 2002).

No crime without fraudulent intent. —

Absent the required element of fraudulent intent, there is no crime or criminal activity established under this section. Dixon v. Williams, 584 P.2d 1078, 1978 Wyo. LEXIS 236 (Wyo. 1978).

Intent to defraud may be inferred. —

The intent to defraud is to be inferred from the deliberate commission of a forgery. Thus, knowingly passing a forged instrument as genuine is conclusive of an intent to defraud. Evidence that the advantage which the instrument, if genuine, would have given has been obtained, or that the injury which such an instrument could inflict has been accomplished, sufficiently shows an intent to defraud. State v. Grider, 74 Wyo. 88, 284 P.2d 400 (Wyo.), reh'g denied, 74 Wyo. 111, 288 P.2d 766 (Wyo. 1955); Channel v. State, 592 P.2d 1145, 1979 Wyo. LEXIS 391 (Wyo. 1979); Grable v. State, 649 P.2d 663, 1982 Wyo. LEXIS 371 (Wyo. 1982), overruled in part, Vlahos v. State, 2003 WY 103, 75 P.3d 628, 2003 Wyo. LEXIS 124 (Wyo. 2003).

Forgery inferred in wake of domestic dispute. —

The court reasonably inferred from the facts that the defendant wrote two contested checks without being authorized to do so by her estranged housemate, in the wake of a domestic dispute. Wetherelt v. State, 864 P.2d 449, 1993 Wyo. LEXIS 176 (Wyo. 1993).

Not necessary to establish intent to defraud particular person or entity. —

Proof of an intent to prejudice, damage, or defraud anyone will satisfy the requirements of this section, and it is not necessary to establish intent to defraud a particular person or entity. The identity of the victim(s) is not an essential element of the crime. Thomas v. State, 667 P.2d 658, 1983 Wyo. LEXIS 345 (Wyo. 1983).

Evidence sufficient to establish intent. —

The evidence was sufficient for the district court to draw the inference that defendant acted with the requisite specific intent to defraud the victim in cashing the victim's sales tax refund check, where he cashed the check contrary to the victim's specific directions, and kept for himself $250 more than the victim said she was going to give him. Schiefer v. State, 774 P.2d 133, 1989 Wyo. LEXIS 126 (Wyo. 1989).

Evidence was sufficient to support a conviction as it was adequate for the jury to find that the defendant was the person who issued unauthorized checks and that she did so with the intent to defraud. Nollen v. State, 12 P.3d 682, 2000 Wyo. LEXIS 210 (Wyo. 2000).

Evidence sufficient to sustain conviction. —

Convenience store clerk committed forgery when she entered the victim's credit card numbers into a machine and printed out a receipt that purported to be a record of a sale of goods to the victim, where the record conclusively demonstrated the clerk knew the victim had not given his permission for the transaction; the fact that the clerk was not the one who signed the receipt did not alter the fact that it was the clerk who created the document and thereby committed forgery. Howard v. State, 2002 WY 40, 42 P.3d 483, 2002 Wyo. LEXIS 43 (Wyo. 2002).

Although the State's handwriting expert testified that there were only “indications” that defendant had written the checks, other evidence was offered at trial that was sufficient to support defendant's conviction for check forgery, including that defendant was found in sole possession of the stolen checkbook, that she had a cash register receipt from the store where one of the forged checks was passed, and that she incorrectly spelled the victim's name when renting a room in the same manner in which the victim's name was misspelled on the check passed at the store. McGarvey v. State, 2002 WY 149, 55 P.3d 703, 2002 Wyo. LEXIS 164 (Wyo. 2002).

Sufficient evidence was presented from which a jury could conclude beyond a reasonable doubt that defendant forged the signature on the vehicle's title without authority to do so and with intent to defraud where the owner, who was asked to provide title to his automobile as collateral to obtain a loan, testified that he searched his home and could not find the title. Although the defendant helped the owner look for the title and spoke to the bank loan officer, she did not reveal that she previously removed the title from his home, represented the signature on the back as being his and had it notarized without the owner's authority. Lapp v. State, 2004 WY 142, 100 P.3d 862, 2004 Wyo. LEXIS 181 (Wyo. 2004).

Sufficient evidence supported defendant's forgery convictions under Wyo. Stat. Ann. § 6-3-602 because his intent to defraud could be inferred from circumstantial evidence that showed he had the opportunity to steal girlfriend's stepfather's credit card; he admitted that he used the card and signed the stepfather's name; and his girlfriend said that he stole it despite her later recantation. The credibility of witnesses is the exclusive province of the trier of fact, and although defendant's testimony admittedly conflicted with that given by the stepfather and his wife, the jury obviously resolved the resulting credibility issues against defendant. Davis v. State, 2005 WY 93, 117 P.3d 454, 2005 Wyo. LEXIS 113 (Wyo. 2005).

Evidence was sufficient to support defendant's forgery and theft convictions where the State presented the merchant copy of the receipts showing the alterations defendant made, the testimony of the customers confirming that their writing on the receipts had been altered, the restaurant's summary of sales showing that defendant was the server and the amount of the credit/debit card tip she was due was the amount inflated by the alteration, and labor reports showing that defendant signed off shortly after generating the report. Mraz v. State, 2016 WY 85, 378 P.3d 280, 2016 Wyo. LEXIS 95 (Wyo. 2016).

Evidence insufficient to sustain conviction.

Trial court erred by denying defendant's motion for judgment of acquittal on the forgery charge because the evidence was insufficient to prove beyond a reasonable doubt that she acted with the intent to defraud by sending letters written on her employer's stationary to the Wyoming Department of Family Services advising that seven of her patients did not require substance abuse treatment even though she did not treat those patients at her employer's facility but rather treated them on her own time and in her own home. Defendant did not sign the name of “another” to her letters and no person was defrauded because the patients involved were counseled by defendant, that fundamental representation was in all respects true, and the employer could not have signed the letters because it could not qualify for the license to do so. Ford v. State, 2011 WY 122, 259 P.3d 1178, 2011 Wyo. LEXIS 129 (Wyo. 2011).

Offering opportunity to commit forgery no defense. —

Mere fact that a defrauded company offered the defendant the opportunity to commit the crime of forgery is not a defense. State v. Grider, 74 Wyo. 88, 284 P.2d 400 (Wyo.), reh'g denied, 74 Wyo. 111, 288 P.2d 766 (Wyo. 1955).

Information sufficient to charge offense. —

See State v. Grider, 74 Wyo. 88, 284 P.2d 400 (1955), rehearing denied, 74 Wyo. 111, 288 P.2d 766 (1955). See also, Leslie v. State, 10 Wyo. 10, 65 P. 849, 1901 Wyo. LEXIS 2 (Wyo. 1901), reh'g denied, 10 Wyo. 10, 69 P. 2, 1902 Wyo. LEXIS 1 (Wyo. 1902).

Proper to refuse special eyewitness-identification instructions. —

In a forgery case, although the defendant's theory of the case was that he was not the man who passed the check to the drive-in teller, the court's refusal of tendered “Model Special Instructions on Identification” was proper. General instructions on reasonable doubt and credibility were sufficient. Pearson v. State, 811 P.2d 704, 1991 Wyo. LEXIS 81 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 106 (Wyo. June 14, 1991).

Evidence insufficient to sustain conviction. —

See Rowray v. Casper Mut. Bldg. & Loan Ass'n, 48 Wyo. 290, 45 P.2d 7, 1935 Wyo. LEXIS 35 (Wyo. 1935).

Three-to-seven year sentence not improper under conflicting-penalty provision. —

Inasmuch as the defendant's sentence was three to seven years, the sentence was within “the lesser” of the penalties provided for the crime of forgery under the present Criminal Code and the crime of forgery as defined when the crime was committed in 1982. Accordingly, the argument that § 6-1-101(c) (conflicting penalties) made improper the sentence was without merit. Binger v. State, 712 P.2d 349, 1986 Wyo. LEXIS 444 (Wyo. 1986).

Waiver of counsel. —

The record demonstrates that defendant knowingly waived his right to representation by the Public Defender and chose to represent himself, even though the inquiry by the court into the defendant's understanding of the issues may have been less than complete. Mapp v. State, 953 P.2d 140, 1998 Wyo. LEXIS 17 (Wyo. 1998).

Applied in

Newton v. State, 364 P.2d 993, 1961 Wyo. LEXIS 117 (Wyo. 1961); Phillips v. State, 553 P.2d 1037, 1976 Wyo. LEXIS 210 (Wyo. 1976).

Quoted in

Mills v. Campbell County Canvassing Bd., 707 P.2d 747, 1985 Wyo. LEXIS 588 (Wyo. 1985); Green v. State, 824 P.2d 1273, 1992 Wyo. LEXIS 18 (Wyo. 1992); Cross v. State, 2009 WY 154, 221 P.3d 972, 2009 Wyo. LEXIS 172 (Dec. 17, 2009).

Stated in

Rawson v. State, 900 P.2d 1136, 1995 Wyo. LEXIS 130 (Wyo. 1995).

Evidence insufficient to sustain conviction.—

Defendant’s forgery conviction under Wyo. Stat. Ann. § 6-3-602(a)(ii) was vacated because the plain meaning of the statutory term “transfer,” when interpreting the statute as a whole, meant causing a writing to purport to be the act of another, as interpreting the term to mean conveying from one person, place, or situation to another rendered “uttering,” under Wyo. Stat. Ann. § 6-3-602(a)(iii), redundant, and the State’s evidence did not show defendant’s “transfer” of a check resulted in the check’s purporting to be the act of another, as nothing showed defendant wrote the check, signed the check, or otherwise caused the check to be false. Riddle v. State, 2017 WY 153, 407 P.3d 392, 2017 Wyo. LEXIS 160 (Wyo. 2017).

Cited in

Santolini v. State, 6 Wyo. 110, 42 P. 746, 1895 Wyo. LEXIS 6 (1895); Hutchins v. State, 483 P.2d 519, 1971 Wyo. LEXIS 213 (Wyo. 1971); Parks v. State, 600 P.2d 1053, 1979 Wyo. LEXIS 461 (Wyo. 1979); Sanderson v. State, 649 P.2d 677, 1982 Wyo. LEXIS 372 (Wyo. 1982); City of Casper v. Cheatham, 739 P.2d 1222, 1987 Wyo. LEXIS 471 (Wyo. 1987); Billis v. State, 800 P.2d 401, 1990 Wyo. LEXIS 119 (Wyo. 1990); Gezzi v. State, 800 P.2d 485, 1990 Wyo. LEXIS 110 (Wyo. 1990); Reese v. State, 866 P.2d 82, 1993 Wyo. LEXIS 194 (Wyo. 1993); Pearson v. State, 866 P.2d 1297, 1994 Wyo. LEXIS 5 (Wyo. 1994); Black v. State, 869 P.2d 1137, 1994 Wyo. LEXIS 27 (Wyo. 1994); Jibben v. State, 901 P.2d 1099, 1995 Wyo. LEXIS 138 (Wyo. 1995); Bird v. Rozier, 948 P.2d 888, 1997 Wyo. LEXIS 140 (Wyo. 1997); Sinning v. State, 2007 WY 193, 172 P.3d 388, 2007 Wyo. LEXIS 209 (Dec. 11, 2007).

Jury instructions.—

Trial court did not plainly err by failing to provide a supplemental jury instruction after the jury asked for a definition of forgery where the elements instructions given mirrored his section and the question did not point to any particular part of the instructions or elements that was causing them confusion. Mraz v. State, 2016 WY 85, 378 P.3d 280, 2016 Wyo. LEXIS 95 (Wyo. 2016).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility, in forgery prosecution, of other acts of forgery, 34 ALR2d 777.

Forgery by use of fictitious or assumed name, 49 ALR2d 852.

Signing of credit charge or credit sales slip as forgery, 90 ALR2d 822.

Procuring signature by fraud as forgery, 11 ALR3d 1074.

Falsifying of money order as forgery, 65 ALR3d 1307.

Evidence of intent to defraud in state forgery prosecution, 108 ALR5th 593.

What constitutes forgery of signature of federal judge or of other officer of federal court, so as to violate 18 USC § 505, 71 ALR Fed 928.

§ 6-3-603. Possession of forged writings and forgery devices; penalties.

  1. A person is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, if he:
    1. Possesses a writing knowing it is forged in a manner specified in W.S. 6-3-602(a)(i) or (ii) and intending to utter or pass it to defraud another person;
    2. With intent to commit forgery, makes or knowingly possesses a die, plate, apparatus, paper, metal, machine or other thing used to forge writings.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Evidence of intent to defraud in state forgery prosecution, 108 ALR5th 593.

§ 6-3-604. Fraud against testamentary instruments and government records; penalties; “government record” defined.

  1. A person is guilty of a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if he fraudulently steals, alters, defaces, destroys or secretes:
    1. An executed will, codicil or other testamentary instrument; or
    2. A part or all of a government record.
  2. As used in this section, “government record” means a record, record book, docket or journal which is authorized by law or belongs or pertains to, or is filed with, a court of record, a circuit court or any governmental office or officer.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1.

The 2004 amendment, in (b), deleted “a justice of the peace” following “court of record, a circuit court.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Cross references. —

As to wills generally, see §§ 2-6-101 through 2-6-306 .

As to public records generally, see §§ 16-4-201 to 16-4-205 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes a public record or document within statute making falsification, forgery, mutilation, removal or other misuse thereof an offense, 75 ALR4th 1067.

What constitutes forgery of signature of federal judge or of other officer of federal court, so as to violate 18 USC § 505, 71 ALR Fed 928.

Government record.—

Evidence sufficient.—

Government record.—

Printed copy of an unsigned and unfiled bond form for defendant’s release which defendant altered to obtain more favorable terms of release qualified as a government record. Mathewson v. State, 2018 WY 81, 431 P.3d 1121, 2018 Wyo. LEXIS 85 (Wyo. 2018).

Evidence sufficient.—

Based on the evidence provided by the State of Wyoming and the irrelevance of defendant’s actions after defendant made an alteration to the bond order form for defendant’s release, it was reasonable for the finder of fact to conclude that defendant had the requisite specific intent to act fraudulently to secure an advantage to which defendant was not entitled when defendant altered the form to change the conditions for defendant’s pretrial release so that defendant could pay a smaller fee to a bail bondsman and gain defendant’s release. Mathewson v. State, 2018 WY 81, 431 P.3d 1121, 2018 Wyo. LEXIS 85 (Wyo. 2018).

§ 6-3-605. Operation of coin machine by slug or without required legal tender; manufacture or distribution of slugs; penalties; “slug” defined.

  1. A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if knowingly and without authorization, he:
    1. Operates a coin machine by use of a slug;
    2. Obtains property or services from a coin machine without depositing the amount of legal tender required by the owner of the coin machine for the property or service.
  2. A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he manufactures or distributes slugs knowing or reasonably believing they will be used for fraudulent or unlawful purposes.
  3. As used in this section, “slug” means an article or object which can be deposited in a coin machine as an improper substitute for a genuine coin, bill or token.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

For meaning of “coin machine,” see § 6-1-104 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-606. Impersonation of a peace officer; penalties.

A person is guilty of impersonation of a peace officer if he falsely represents himself to be a peace officer with intent to compel action or inaction by any person against his will. Impersonation of a peace officer is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability for false personation during stop for traffic infraction, 26 ALR5th 378.

§ 6-3-607. Defrauding creditors; penalties.

  1. A mortgagor of property or a debtor who has given a security interest in property is guilty of defrauding creditors if he:
    1. Transfers or conceals the property in derogation of the mortgagee’s or secured party’s interest with intent to deprive the mortgagee or secured party of his interest;
    2. Removes the property from the jurisdiction of the district court of the county where the mortgage or security interest was given with intent to deprive the mortgagee or secured party of his interest and without obtaining the written consent of the mortgagee or secured party prior to the removal; or
    3. Changes, alters, removes, substitutes, mutilates, covers up or defaces any brand, mark, number, name, letter, character, color or other characteristic used to identify the property with intent to deprive the mortgagee or secured party of his interest.
  2. Defrauding creditors is:
    1. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the mortgagee’s or secured party’s interest is of a value of one thousand dollars ($1,000.00) or more; or
    2. Repealed by Laws 1984, ch. 44, § 3.
    3. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the mortgagee’s or secured party’s interest is of a value of less than one thousand dollars ($1,000.00).
  3. The amount of the mortgagee’s or secured party’s interest involved in a violation of this section pursuant to a common scheme or the same transaction, whether from the same or a different mortgagee or secured party, may be aggregated in determining the value of the interest.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1.

The 2004 amendment, effective July 1, 2004, in (b)(i) and (iii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

Cross references. —

As to Uniform Fraudulent Conveyance Act, see § 34-14-201 et seq.

As to Uniform Fraudulent Transfer Act, see § 34-14-210 et seq.

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

False pretense or allied criminal fraud by partner with respect to partnership property, 43 ALR2d 1253.

Use of fictitious or assumed name, 49 ALR2d 852.

Admissibility of testimony of transferee as to his knowledge, purpose, intention or good faith on issue whether conveyance was in fraud of transferor's creditors, 52 ALR2d 418.

Evidence in prosecution for false pretense in obtaining money under promise of marriage, of similar attempts on other occasions, to establish fraudulent purpose or intent, 78 ALR2d 1359.

Procuring signature by fraud, 11 ALR3d 1074.

Rule denying recovery of property to one who conveyed to defraud creditors as applicable where the claim which motivated the conveyance was never established, 6 ALR4th 862.

Right of creditor to recover damages for conspiracy to defraud him of claim, 11 ALR4th 345.

Modern status of rule that crime of false pretenses cannot be predicated upon present intention not to comply with promise or statement as to future act, 19 ALR4th 959.

Elements and proof of crime of improper sale, removal, concealment or disposal of property subject to security interest under UCC, 48 ALR4th 819.

§ 6-3-608. Fraudulent use of materials; fraudulent obtaining of money by contractor; penalties.

  1. A contractor or subcontractor who purchases materials on credit and represents that they will be used in a designated building or improvement and who knowingly and with intent to defraud the seller uses the materials or allows them to be used in a building or improvement other than the one designated is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  2. Any contractor who receives money from an owner and provides the owner with an affidavit that all materialmen and subcontractors have been paid when he knows all materialmen and subcontractors have not been paid is guilty of a felony and shall be sentenced to not more than five (5) years in the penitentiary, fined not more than ten thousand dollars ($10,000.00), or both. Lien waivers signed by all materialmen, subcontractors and laborers are prima facie evidence that monies received from the owner were applied toward construction costs by the contractor.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Quoted in

Miller v. State, 732 P.2d 1054, 1987 Wyo. LEXIS 395 (Wyo. 1987).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-609. Sports bribery; definitions; penalties; venue; bonuses not prohibited.

  1. As used in this section:
    1. “Athletic contest” means a sports event for which an admission fee is charged or in which the participants or officials are compensated;
    2. “Bribe” means to confer a direct or indirect gift, emolument, money, thing of value, testimonial, privilege, appointment or personal advantage;
    3. “Official” means a referee, manager, umpire, coach or other official of an athletic club, team, league, association, institution or conference;
    4. “Participant” means a player in an athletic contest.
  2. A person is guilty of sports bribery if:
    1. He bribes or offers to bribe a participant or official in an athletic contest with the intent to:
      1. Induce a participant to lose or limit the margin of victory or defeat;
      2. Influence an official’s decision, opinion or judgment for the purpose of losing or limiting the margin of victory or defeat.
    2. He is a participant or official in an athletic contest and he:
      1. Accepts or agrees to accept a bribe given with the intentions proscribed in paragraph (i) of this subsection; or
      2. Commits a knowing act of omission or commission with intent to lose or limit the margin of victory or defeat for the purpose of material gain to himself.
  3. Sports bribery is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.
  4. To convict a person for violating this section it is not necessary that the participant or official be employed, appointed or selected at the time the bribe is conferred, offered or accepted, or that the participant or official actually play or participate.
  5. In prosecutions under this section, venue may be laid in the county where:
    1. The bribe was given, offered or accepted;
    2. The athletic contest occurred; or
    3. The acts referred to in this section were committed.
  6. Nothing in this section prohibits the giving or offering of a bonus or extra compensation to a participant or official to encourage a higher degree of skill, ability or diligence in the performance of his duties.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to bribery generally, see § 6-5-102 et seq.

As to bribery of horse racing officials, see § 11-25-109(a).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Bribery in athletic contests, 49 ALR2d 1234.

Venue in bribery cases where crime is committed partly in one county and partly in another, 11 ALR4th 704.

Recovery in tort for wrongful interference with chance to win game, sporting event or contest, 85 ALR4th 1048.

§ 6-3-610. Mislabeling merchandise; penalty.

A person commits a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) if, with intent to promote the purchase or sale of a commodity, he knowingly brands, labels, stamps or marks the commodity in a false, misleading or deceptive manner.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to misbranding foods and drugs, see § 35-7-111 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-3-611. False, misleading or deceptive advertising; penalty.

A person who disseminates to the public an advertisement which he knows is false, misleading or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment, is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).

History. Laws 1982, ch. 75, § 3.

Cross references. —

As to when advertising is an unlawful trade practice under the Wyoming Consumer Protection Act, see § 40-12-105 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes false, misleading or deceptive advertising subject to action by Federal Trade Commission, 65 ALR2d 225, 34 ALR Fed 507.

Reward for disproving commercial claim, 96 ALR3d 907.

Actionable nature of advertising impugning quality or worth of merchandise or products, 42 ALR4th 318.

§ 6-3-612. False written statements to obtain property or credit; penalties.

  1. A person is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00) or the amount of the credit sought or obtained, whichever is greater, or by both fine and imprisonment, if he knowingly makes or uses a false written statement of the financial condition of himself or another person with intent that the statement be relied upon to procure the delivery of property, the payment of cash, the making of a loan, the extension of credit, the discount of an account receivable or the making, acceptance, discount, sale or endorsement of a bill of exchange or promissory note for the benefit of himself or another person.
  2. A person is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00) or the amount of the credit sought or obtained, whichever is greater, or by both fine and imprisonment, if he knowingly makes or uses a false written statement to a pawnbroker with respect to the ownership of property with intent that the statement be relied upon to procure from the pawnbroker the payment of cash, the making of a loan, the extension of credit or the discount of an account receivable for the benefit of himself or another person.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1997, ch. 26, § 1; 1998, ch. 15, § 1.

Applied in

Hildebrand v. State, 491 P.2d 741, 1971 Wyo. LEXIS 271 (Wyo. 1971).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

False statement as to existing encumbrance on chattel in obtaining loan or credit as criminal false pretense, 53 ALR2d 1215.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 ALR4th 534.

§ 6-3-613. False representations of value of shares, bonds or property; penalties.

A person who knowingly and with intent to defraud makes or publishes, or permits to be made or published, any publication of or concerning the affairs, financial condition or property of a person which contains a statement which is false, exaggerated, or intended to give a less or greater value to the shares, bonds or property of the person than the shares, bonds or property in fact possess is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

For general corporation laws, see title 17.

Reliance not element of crime. —

Former § 6-3-105 made no mention of reliance as an element of the crime; there was no requirement under former § 6-3-105 to prove that a specific victim relied upon the defendant's financial statements before he could be convicted. Smith v. State, 721 P.2d 1088, 1986 Wyo. LEXIS 591 (Wyo. 1986).

Evidence was sufficient for conviction of the defendant under former § 6-3-105 , where, from testimony and reasonable inferences that might be drawn from it, the jury could have concluded that claimed payments for the purchase of land and preconstruction expenses were never made and, because the payments were not made, entries on financial statements gave greater apparent value to property held than actually existed. Smith v. State, 721 P.2d 1088, 1986 Wyo. LEXIS 591 (Wyo. 1986).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility to establish fraudulent purpose or intent, in prosecution for obtaining or attempting to obtain money or property by false pretenses, of evidence of similar attempts on other occasions, 78 ALR2d 1359.

Admissibility, in prosecution for obtaining money or property by fraud or false pretenses, of evidence of subsequent payments made by defendant to victim, 10 ALR3d 572.

§ 6-3-614. Defrauding drug and alcohol screening tests; penalties.

  1. A person is guilty of defrauding a drug and alcohol screening test if he:
    1. Manufactures, sells, gives away, distributes or markets synthetic or human substances or other products including, but not limited to urine, in this state or transports synthetic or human substances or other products including, but not limited to urine, into this state with the intent to defraud a drug or alcohol screening test;
    2. Attempts to foil or defeat a drug or alcohol screening test by the substitution or spiking of a sample with the intent to defraud an alcohol or drug screening test;
    3. Adulterates a hair follicle sample or a urine or other bodily fluid sample with the intent to defraud a drug or alcohol screening test;
    4. Possesses adulterants which are intended to be used to adulterate a urine or other bodily fluid sample for the purpose of defrauding a drug or alcohol screening test; or
    5. Sells adulterants which are intended to be used to adulterate a urine or other bodily fluid sample for the purpose of defrauding a drug or alcohol screening test.
  2. Instructions which provide a method for thwarting a drug-screening test and which accompany the sale, giving, distribution or marketing of synthetic or human substances or other products including, but not limited to urine, are prima facie evidence of intent under subsection (a) of this section.
  3. A person who violates any provision of subsection (a) of this section is guilty of:
    1. A misdemeanor for a first offense and, upon conviction, shall be subject to imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both;
    2. A misdemeanor for a second or subsequent offense and, upon conviction, shall be subject to imprisonment for not less than seven (7) days nor more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 2007, ch. 59, § 1.

Effective dates. —

Laws 2007, ch. 59, § 2, makes the act effective July 1, 2007.

§ 6-3-615. Use of false identity, citizenship or resident alien documents, penalty.

  1. Any person who intentionally uses false documents to conceal his true identity, citizenship or resident alien status to obtain access to public resources or services is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than one thousand dollars ($1,000.00), or both.
  2. An official who is presented with any document in connection with an application for a driver’s license or Wyoming identification card issued by the Wyoming department of transportation, and who has probable cause to believe that it is a false document in violation of subsection (a) of this section, is authorized to seize and retain the document. Upon seizure, the document shall be delivered to a law enforcement official having jurisdiction to investigate the violation as soon as reasonably possible. If the investigation shows that the document is not a false document, the document shall be returned to the person immediately.

History. Laws 2007, ch. 214, § 1.

Editor's notes. —

Laws 2007, ch. 214, § 1, enacted this section as § 6-3-614 . It has been redesignated as § 6-3-615 at the direction of the Legislative Service Office.

Effective dates. —

Laws 2007, ch. 214, § 2, makes the act effective July 1, 2007.

Article 7. Check Fraud

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

32 Am. Jur. 2d False Pretenses §§ 65 to 77.

Constitutionality of “bad check” statute, 16 ALR4th 631.

§ 6-3-701. Definitions.

  1. As used in this article:
    1. “Check” means a written unconditional order to pay a sum certain in money drawn on a bank payable on demand and signed by the drawer;
    2. “Knowingly issues” means issuing a check to obtain property or to pay a debt with intent to defraud or deceive any other person;
    3. “Drawee” means the bank or purported bank upon which a check is drawn;
    4. “Drawer” means a person either real or fictitious whose name appears on a check as the primary obligor whether the actual signature is that of himself or of a person authorized to draw the check in his behalf;
    5. “Insufficient funds” means when the drawer issues a check from the drawee and has no checking account with the drawee or has funds or credit in a checking account with the drawee in an amount less than the amount of the check plus the amount of all other checks outstanding at the time of issuance. A check dishonored for “no account”, “account closed” or “nonsufficient funds” shall also be deemed to be dishonored for “insufficient funds”;
    6. “Issue” means make, draw, deliver or pass a check.

History. Laws 1982, ch. 75, § 3; 1983, ch. 96, § 2; ch. 171, § 1; 1984, ch. 44, § 2; 1985, ch. 128, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Intent to defraud. —

Intent to defraud can be inferred under the circumstances, and crime is committed when check is furnished with the requisite intent. Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

Insufficient evidence. —

Defendant's check fraud conviction was reversed as the facts did not support a conviction for check fraud as defined under Wyoming law; defendant's name did not appear on the check as the primary obligor and the check was not an unconditional order to pay. Rodgers v. State, 2011 WY 158, 265 P.3d 235, 2011 Wyo. LEXIS 163 (Wyo. 2011).

Essential element is that check was knowingly issued. —

An essential element of check fraud, which state has the burden of proving beyond a reasonable doubt, is that check must have been knowingly issued, which statute defines as issued “with intent to defraud or deceive.” Cox v. State, 964 P.2d 1235, 1998 Wyo. LEXIS 127 (Wyo. 1998).

Quoted in

State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); Huff v. State, 992 P.2d 1071, 1999 Wyo. LEXIS 187 (Wyo. 1999).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-702. Fraud by check; penalties.

  1. Any person who knowingly issues a check which is not paid because the drawer has insufficient funds or credit with the drawee has issued a fraudulent check and commits fraud by check.
  2. Fraud by check is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the fraudulent check was for a sum of less than one thousand dollars ($1,000.00); or
    2. Repealed by Laws 1984, ch. 44, § 3.
    3. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the fraudulent check was for the sum of one thousand dollars ($1,000.00) or more, or if the offender is convicted of fraud by check involving two (2) or more checks issued within any sixty (60) day period in the state of Wyoming totaling one thousand dollars ($1,000.00) or more in the aggregate.
  3. Renumbered as 7-9-112 by Laws 1987, ch. 157, § 3.

History. Laws 1982, ch. 75, § 3; 1983, ch. 96, § 2; ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 1987, ch. 157, § 3; 2004, ch. 126, § 1.

Cross references. —

For present provisions relating to restitution following conviction for fraud by check, formerly contained in subsection (c), see § 7-9-112 .

The 2004 amendment, effective July 1, 2004, in (b)(i) and (iii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

Constitutionality. —

Former statute did not violate either the due process clause of U.S. Const., amend. 14, nor the due process clause of art. 1, § 6, Wyo. Const.State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982).

Former statute did not, on its face, unconstitutionally discriminate against indigents as a class on the grounds that only indigents cannot pay an insufficient funds check within 10 days of receiving notice of dishonor or nonpayment; thus, section did not violate the equal protection clause of U.S. Const., amend. 14. 14. State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982).

Since a criminal intent to deceitfully issue an insufficient funds check is an essential element of the crime, the statute does not violate art. 1, § 5, Wyo Const., prohibiting imprisonment for debt. State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982).

Legislative intent was to create two separate crimes, forgery and check fraud. The forgery prohibition is against the making of a deceptive document per se, and that of the check fraud is against the making of a document having validity other than the fact that the funds against which it is drawn are “insufficient.” The defendant, who attempted to pass a check which was not genuine (i.e., it was signed by him under a fictitious name and was on a bank in which he did not have an account and in which there was no account under the fictitious name) was properly charged. Binger v. State, 712 P.2d 349, 1986 Wyo. LEXIS 444 (Wyo. 1986).

Essential element is that check was knowingly issued. —

An essential element of check fraud, which state has the burden of proving beyond a reasonable doubt, is that check must have been knowingly issued, which statute defines as issued “with intent to defraud or deceive.” Cox v. State, 964 P.2d 1235, 1998 Wyo. LEXIS 127 (Wyo. 1998).

Obtaining property not necessary element of former statute.—

Obtaining property was never a necessary element of a violation of former check fraud statute, while the obtaining of property is always a necessary element of the false-pretenses statute. Barker v. State, 599 P.2d 1349, 1979 Wyo. LEXIS 451 (Wyo. 1979) (decided under former law).

No fatal variance between complaint and information allegingdifferent dates for checks. —

Both the complaint and information charged check by fraud, the only difference being a variance between some underlying facts, the complaint indicating that the checks relied on were issued on and after a certain date, while the information, together with the bill of particulars, indicated that the checks relied on were issued on and before that same date. There was no fatal variance between the complaint and information. Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985).

Bank's demand that overdraft balance be paid sufficient noticeof unpaid check. —

The former notice provision at the end of subsection (a), i.e., “unless the check is paid by the maker within five (5) days of receiving notice,” was minimally complied with under the following circumstances: the bank notified the defendant that her account had been closed because of “excessive overdraft activity,” and demanded payment of a substantial overdraft balance within 10 days, which balance was greater than a recent bad check that, together with other bad checks, totaled more than $500. In any case, the notice provision was a procedural requirement, not an element of the offense. Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985) (decided under facts existing prior to 1984 amendment).

No evidence of expectation that check would be paid. —

Where defendant failed to present any evidence of a reasonable expectation that his check would be paid on presentation, his conviction for check fraud was affirmed. Cox v. State, 964 P.2d 1235, 1998 Wyo. LEXIS 127 (Wyo. 1998).

Insufficient evidence of defendant's failure to pay check.—

Insufficient evidence was presented from which a jury could conclude beyond a reasonable doubt that defendant committed check fraud because the State presented insufficient evidence to show defendant failed to pay the checks within five days after receiving notice and demand for payment. Lapp v. State, 2004 WY 142, 100 P.3d 862, 2004 Wyo. LEXIS 181 (Wyo. 2004).

Insufficient evidence. —

Defendant's check fraud conviction was reversed as the facts did not support a conviction for check fraud as defined under Wyoming law; defendant's name did not appear on the check as the primary obligor and the check was not an unconditional order to pay. Rodgers v. State, 2011 WY 158, 265 P.3d 235, 2011 Wyo. LEXIS 163 (Wyo. 2011).

No constitutional violation with a permissive presumption.—

Although the words “prima facie” were excluded from the jury instruction that tracked the language of § 6-3-703 , defendant's rights were not violated because the instruction included a permissive presumption, not a mandatory presumption. Huff v. State, 992 P.2d 1071, 1999 Wyo. LEXIS 187 (Wyo. 1999).

As to review of sentence, within statutory limits, for clear abuse of discretion, see Hedge v. State, 696 P.2d 51, 1985 Wyo. LEXIS 453 (Wyo. 1985).

Applied in

Geiser v. State, 920 P.2d 1243, 1996 Wyo. LEXIS 100 (Wyo. 1996).

Quoted in

Milladge v. State, 900 P.2d 1156, 1995 Wyo. LEXIS 146 (Wyo. 1995).

Cited in

Black v. State, 869 P.2d 1137, 1994 Wyo. LEXIS 27 (Wyo. 1994); Pearl v. State, 996 P.2d 688, 2000 Wyo. LEXIS 25 (Wyo. 2000); Shaw v. State, 998 P.2d 965, 2000 Wyo. LEXIS 51 (Wyo. 2000); Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Constitutionality of “bad check” statute, 16 ALR4th 631.

§ 6-3-703. Prima facie evidence of intent that check not to be paid; evidence of knowledge of account balance.

  1. Any of the following is prima facie evidence that the person at the time he issued the check or other order for the payment of money intended that it should not be paid:
    1. Proof that at the time of issuance he did not have an account with the drawee;
    2. Proof that at the time of issuance he did not have sufficient funds with the drawee and that he failed to pay the check or other order within five (5) days after receiving notice of nonpayment or dishonor, personally given or sent to the address shown on the check or other order; or
    3. Proof that when presentment was made in a reasonable time the issuer did not have sufficient funds with the drawee and he failed to pay the check or other order within five (5) days after receiving notice of nonpayment or dishonor, personally given or sent to the address shown on the check or other order.
  2. Proof the drawer opened an account with the drawee on a certain date shall be considered evidence of the drawer’s knowledge of the account balance on that date.

History. Laws 1982, ch. 75, § 3; 1983, ch. 96, § 2; 1984, ch. 44, § 2.

No constitutional violation with a permissive presumption.—

Although the words “prima facie” were excluded from the jury instruction that tracked the language of this section, defendant's constitutional rights were not violated because the instruction included a permissive presumption, not a mandatory presumption. Huff v. State, 992 P.2d 1071, 1999 Wyo. LEXIS 187 (Wyo. 1999).

Applied in

Brown v. State, 703 P.2d 1097, 1985 Wyo. LEXIS 519 (Wyo. 1985).

Cited in

State v. Laude, 654 P.2d 1223, 1982 Wyo. LEXIS 415 (Wyo. 1982); Cox v. State, 964 P.2d 1235, 1998 Wyo. LEXIS 127 (Wyo. 1998).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “Collecting Debt in Wyoming: The Fair Debt Collection Practices Act as a Trap for the Unwary,” see XXXI Land & Water L. Rev. 731 (1996).

§ 6-3-704. Acquirer of right to check with insufficient funds may file complaint; deferred prosecution or probation and restitution on checks.

  1. Any person, having acquired rights with respect to a check which is not paid because the drawer has insufficient funds, may file a complaint under this act whether or not he is the payee, holder or bearer of the check.
  2. If deferred prosecution or probation is ordered, the court as a condition of supervision shall require the defendant to make restitution in an amount not to exceed twice the amount of the dishonored check on all checks issued by the defendant which are unpaid as of the date of commencement of the supervision in addition to other terms and conditions appropriate for the treatment or rehabilitation of the defendant.

History. Laws 1982, ch. 75, § 3; 1983, ch. 96, § 2.

Meaning of “this act.” —

See note under same catchline following § 6-1-101 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Restitutional sentencing under Victim and Witness Protection Act § 5 (18 USC §§ 3579, 3580 [ 18 USC §§ 3663, 3664]), 79 ALR Fed 724.

§ 6-3-705. Liability of drawee for release of information to payee, holder or official; liability of person committing fraud to holder.

  1. A drawee is not civilly or criminally liable for releasing the following information relating to the drawer’s account to any payee or holder of a check that has been dishonored for insufficient funds, upon the written request of any payee or holder:
    1. The status of the account, and whether the drawer had sufficient funds or credit with the drawee at the time the check was issued or presented for payment; and
    2. The current home and business addresses and telephone numbers of the drawer.
  2. A drawee is not civilly or criminally liable for releasing the following information relating to the drawer’s account to any law enforcement or prosecuting official or agent thereof who first certifies in writing that he is investigating a complaint against the drawer under this section:
    1. Documents relating to the opening of the account by the drawer;
    2. Correspondence between the drawer and the drawee relating to the status of the account;
    3. Periodic statements delivered to the drawer by the drawee for the two (2) periods prior to and subsequent to the issuance of any check which is the subject of such investigation;
    4. The current home and business addresses and telephone numbers of the drawer; and
    5. Copies of other documents showing examples of signatures of the drawer.
  3. Any person who commits fraud by check is liable to the holder of the check for the sum of the check plus interest, costs of collection and reasonable collection fees.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-706. Bank not liable for release of information on drawer's account after warrant issued.

After a warrant has been issued against a drawer, a bank is not civilly or criminally liable for releasing information relating to the drawer’s account to a sheriff, deputy sheriff, under sheriff, police officer, prosecuting attorney, assistant prosecuting attorney, deputy prosecuting attorney or authorized investigator or detective for a prosecuting attorney, sheriff’s office or police department investigating or prosecuting a charge under this article.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 8. Credit Card Fraud

Am. Jur. 2d, ALR and C.J.S. references. —

Credit card issuer's liability, under state laws, for wrongful billing, cancellation, dishonor or disclosure, 53 ALR4th 231.

Who is a “consumer” entitled to protection of state deceptive trade practice and consumer protection acts, 63 ALR5th 1.

21 C.J.S. Credit Reporting Agencies; Consumer Protection §§ 32 to 36, 65; 36A C.J.S. Forgery § 36; 52A Larceny § 3(7); 47 C.J.S. Interest and Usury; Consumer Credit §§ 348 to 351.

§ 6-3-801. “Credit card” defined.

  1. As used in this article:
    1. “Credit card” means an identification card or device issued by a business organization authorizing the person to whom issued to purchase or obtain property or services on credit.

History. Laws 1982, ch. 75, § 3.

Editor's notes. —

There is no paragraph (a)(ii) or subsection (b) in this section as it appears in the printed acts.

Cited in

Hutchins v. State, 483 P.2d 519, 1971 Wyo. LEXIS 213 (Wyo. 1971).

Quoted in

Temen v. State, 2009 WY 25, 201 P.3d 1139, 2009 Wyo. LEXIS 24 (Feb. 24, 2009).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-3-802. Unlawful use of credit card; penalties.

  1. A person is guilty of unlawful use of a credit card if, with the intent to obtain property or services by fraud, he:
    1. Uses a credit card, or the number or description of a credit card, issued to another person without the consent of that person;
    2. Uses a credit card which he knows has been revoked, cancelled or expired; or
    3. Knowingly uses a falsified, mutilated or altered credit card or the number or description thereof.
  2. Unlawful use of a credit card is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if the value of the property or services purchased or obtained is less than one thousand dollars ($1,000.00); or
    2. Repealed by Laws 1984, ch. 44, § 3.
    3. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the property or services purchased or obtained in violation of this section within any sixty (60) day period in the state of Wyoming totals one thousand dollars ($1,000.00) or more in the aggregate.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1984, ch. 44, §§ 2, 3; 2004, ch. 126, § 1.

The 2004 amendment, effective July 1, 2004, in (b)(i) and (iii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

Credit card fraud statute did not preclude conviction under forgery statute. Hutchins v. State, 483 P.2d 519, 1971 Wyo. LEXIS 213 (Wyo. 1971).

Defendant properly charged with forgery and attempted forgery,not credit card fraud. —

See Alonso v. State, 712 P.2d 355, 1986 Wyo. LEXIS 446 (Wyo. 1986).

Priorforgery conviction admissible. —

Defendant's convictions for robbery and misdemeanor credit card fraud in violation of Wyo. Stat. Ann. §§ 6-2-401(a)(i) and 6-3-802(a)(i) and (b)(iii) were appropriate because defendant's prior forgery conviction was admissible under Wyo. R. Evid. 404(b) to show that his use of the credit card was intentional and not the result of mistake or accident. The prior crime was also committed less than a year before the instant crime and defendant intended to deny any knowledge that the credit card was stolen or that he was otherwise involved in any of the crimes for which he was charged. Temen v. State, 2009 WY 25, 201 P.3d 1139, 2009 Wyo. LEXIS 24 (Wyo. 2009).

Quoted in

Martindale v. State, 2001 WY 52, 24 P.3d 1138, 2001 Wyo. LEXIS 67 (Wyo. 2001).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability for unauthorized use of credit card, 24 ALR3d 986.

Successful negotiation of commercial transaction as element of state offense of credit card fraud or false pretense in use of credit card, 106 ALR5th 701.

What constitutes violation of § 134 of Consumer Credit Protection Act (15 USC § 1644), prohibiting fraudulent use of credit card, 72 ALR Fed 65.

§ 6-3-803. Unlawful skimming of credit, debit or other electronic payment cards; penalties.

  1. As used in this section:
    1. “Authorized card user” means any person with the empowerment, permission or competence to act in the usage of any electronic payment card including, but not limited to, a credit card, charge card, debit card, hotel key card, stored value card or any other card that allows the user to obtain, purchase or receive goods, services, money or anything else of value from a merchant;
    2. “Electronic payment card” means a credit card, charge card, debit card, hotel key card, stored value card or any other card that is issued to an authorized card user and that allows the user to obtain, purchase or receive goods, services, money or anything else of value from a merchant;
    3. “Merchant” means an owner or operator of any retail mercantile establishment or his agent, employee, lessee, consignee, officer, director, franchisee or independent contractor who receives from an authorized user of an electronic payment card, or someone the person believes to be an authorized user, an electronic payment card or information from an electronic payment card, or what the person believes to be an electronic payment card or information from an electronic payment card, as the instrument for obtaining, purchasing or receiving goods, services, money or anything else of value from the person;
    4. “Re-encoder” means an electronic device that places encoded information from the magnetic strip or stripe of an electronic payment card onto the magnetic strip or stripe of a different electronic payment card;
    5. “Scanning device” means a scanner, reader or any other electronic device that is used to access, read, scan, obtain, memorize or store, temporarily or permanently, information encoded on the magnetic strip or stripe of an electronic payment card.
  2. A person is guilty of unlawful skimming if the person uses:
    1. A scanning device to access, read, obtain or memorize, temporarily or permanently, information encoded on the magnetic strip or stripe of an electronic payment card without the permission of the authorized user of the electronic payment card, with the intent to defraud the authorized user, the issuer of the authorized user’s electronic payment card or a merchant;
    2. A re-encoder to place information encoded on the magnetic strip or stripe of an electronic payment card onto the magnetic strip or stripe of a different card without the permission of the authorized user of the card from which the information is being re-encoded, with the intent to defraud the authorized user, the issuer of the authorized user’s electronic payment card or a merchant.
  3. Unlawful skimming is a felony:
    1. Punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both, for a first conviction;
    2. Punishable by imprisonment for not more than ten (10) years, a fine of not more than twenty-five thousand dollars ($25,000.00), or both, for a second or subsequent conviction.

History. Laws 2005, ch. 166, § 1.

Effective dates. —

Laws 2005, ch. 166, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 2, 2005.

Article 9. Theft of Identity

§ 6-3-901. Unauthorized use of personal identifying information; penalties; restitution.

  1. Every person who willfully obtains personal identifying information of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services or medical information in the name of the other person without the consent of that person is guilty of theft of identity.
  2. As used in this section “personal identifying information” means the name or any of the following data elements of an individual person:
    1. Address;
    2. Telephone number;
    3. Social security number;
    4. Driver’s license number;
    5. Account number, credit card number or debit card number in combination with any security code, access code or password that would allow access to a financial account of the person;
    6. Tribal identification card;
    7. Federal or state government issued identification card;
    8. Shared secrets or security tokens that are known to be used for data based authentication;
    9. A username or email address, in combination with a password or security question and answer that would permit access to an online account;
    10. A birth or marriage certificate;
    11. Medical information, meaning a person’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional;
    12. Health insurance information, meaning a person’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the person or information related to a person’s application and claims history;
    13. Unique biometric data, meaning data generated from measurements or analysis of human body characteristics for authentication purposes;
    14. An individual taxpayer identification number.
  3. Theft of identity is:
    1. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if no economic benefit was gained or was attempted to be gained, or if an economic benefit of less than one thousand dollars ($1,000.00) was gained or was attempted to be gained by the defendant; or
    2. A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if an economic benefit of one thousand dollars ($1,000.00) or more was gained or was attempted to be gained by the defendant.
  4. If a restitution plan is ordered pursuant to W.S. 7-9-101 through 7-9-115 , the court may include, as part of its determination of amount owed pursuant to W.S. 7-9-103 , payment for any costs incurred by the victim, including attorney fees, any costs incurred in clearing the credit history or credit rating of the victim or in connection with any civil or administrative proceeding to satisfy any debt, lien or other obligation of the victim arising as a result of the actions of the defendant.
  5. In any case in which a person willfully obtains personal identifying information of another person, and without the authorization of that person uses that information to commit a crime in addition to a violation of subsection (a) of this section, and is convicted of that crime, the court records shall reflect that the person whose identity was falsely used to commit the crime did not commit the crime.

History. Laws 1999, ch. 175, § 1; 2000, ch. 48, § 1; 2004, ch. 126, § 1; 2005, ch. 130, § 2; 2015, ch. 63, § 1.

Cross references. —

As to civil liability for the theft of identity, see § 1-1-128 .

The 2004 amendment, effective July 1, 2004, in (c)(i) and (ii), substituted “one thousand dollars ($1,000.00)” for “five hundred dollars ($500.00).”

The 2005 amendment, effective July 1, 2005, in (b), inserted “tribal identification card number.”

The 2015 amendment, effective July 1, 2015, rewrote (b), which formerly read: “As used in this section ‘personal identifying information,’ means the name, address, telephone number, driver's license number, social security number, place of employment, employee identification number, tribal identification card number, mother's maiden name, demand deposit account number, savings account number, or credit card number of an individual person.”

Misdemeanor conviction. —

Nothing supported a conclusion that defendant sought to enhance his financial well-being in the initial criminal case, and his conviction for felony identity theft could not stand; however, the felony conviction was set aside and the Wyoming Supreme Court ordered entry of a misdemeanor identity theft conviction, and remanded to the district court for resentencing. Rodgers v. State, 2011 WY 158, 265 P.3d 235, 2011 Wyo. LEXIS 163 (Wyo. 2011).

Cited in

Dave v. Valdez, 2012 WY 59, 275 P.3d 485, 2012 Wyo. LEXIS 62 (Apr. 13, 2012); Allaback v. State, 2014 WY 27, 2014 Wyo. LEXIS 28 (Feb 24, 2014); Allaback v. State, 2014 WY 27, 2014 Wyo. LEXIS 28 (Feb 24, 2014).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statutes relating to offense of identity theft, 125 A.L.R.5th 537.

§ 6-3-902. Unlawful impersonation through electronic means; penalties; definitions; civil remedies.

  1. A person is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than one (1) year, or both, if he knowingly and without consent intentionally impersonates another person through, or on, an internet website or by other electronic means, including, but not limited to spoofing, and:
    1. Causes or attempts to cause harm;
    2. Harasses or attempts to harass another person while using false self-identifying information related to the person impersonated; or
    3. Uses or attempts to use false self-identifying information related to the person impersonated as an unauthorized deceptive means to facilitate contact with another person.
  2. For purposes of this section:
    1. “Electronic means” includes opening an e-mail account or an account or profile on a site transmitted via the internet;
    2. “Internet” means as defined in W.S. 9-2-3219(a)(iii);
    3. “Spoofing” means falsifying the name or phone number appearing on caller identification systems.
  3. In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subsection (a) of this section may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief.

History. Laws 2011, ch. 180, § 1; 2018, ch. 116, § 1; 2021, ch. 56, § 3.

The 2018 amendment, effective July 1, 2018, rewrote the existing language, which read: “Any person who knowingly and without consent intentionally impersonates another actual person through, or on, an internet website or by other electronic means, including, but not limited to spoofing and causes or attempts to cause harm, is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than one (1) year, or both,” and redesignated it as (a); and added (a)(i) through (a)(iii).

The 2021 amendment substituted "9-2-3219(a)(iii)" for "9-2-1035(a)(iii)" in (b)(ii).

Laws 2021, ch. 56, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 1, 2021.

Effective date. —

Laws 2011, ch. 180, § 2, makes the act effective July 1, 2011.

Article 10 Animal Abuse

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1001. Definitions.

  1. As used in this article:
    1. “Costs of the animal’s impoundment” means all costs incurred by the impounding entity in providing necessary food and water, veterinary attention and treatment for any animal which is the subject of a violation of this article;
    2. “Household pet” means any privately owned dog, cat, rabbit, guinea pig, hamster, mouse, gerbil, ferret, bird, fish, reptile, amphibian, invertebrate or any other species of domesticated animal sold, transferred or retained for the purpose of being kept as a pet in or near a house. “Household pet” shall not include any livestock;
    3. “Livestock” means horses, mules and asses, rabbits, llamas, cattle, swine, sheep, goats, poultry, or other animal generally used for food or in the production of food or fiber, working animals and guard animals actively engaged in the protection or management of livestock. Bison are considered livestock unless otherwise designated by the Wyoming livestock board and the Wyoming game and fish commission.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1002. Cruelty to animals.

  1. A person commits cruelty to animals if the person:
    1. Knowingly overrides an animal or drives an animal when overloaded;
    2. Intentionally or knowingly, unnecessarily injures or beats an animal;
    3. Knowingly carries an animal in a manner that poses undue risk of injury or death;
    4. Has the charge and custody of any animal and under circumstances which manifest extreme indifference to the animal’s safety, health or life:
      1. Fails to provide it with proper food, drink or protection from the weather adequate for the species;
      2. Abandons the animal. Relinquishment of an animal to a public or private animal shelter or like facility is not a violation of this subparagraph;
      3. In the case of immediate, obvious, serious illness or injury to the animal, fails to provide the animal with appropriate care; or
      4. Keeps any household pet in a manner that results in chronic or repeated serious physical harm to the household pet.
    5. Owns, possesses, keeps or trains fowls or dogs with the intent to allow the dog or fowl to engage in an exhibition of fighting with another dog or fowl;
    6. For gain causes or allows any dog to fight with another dog or any fowl to fight with another fowl;
    7. Promotes any dog or fowl fighting;
    8. Knowingly permits any act prohibited under paragraphs (v) through (vii) of this subsection on any premises under the person’s charge or control; or
    9. Shoots, poisons or otherwise intentionally acts to seriously injure or destroy any livestock or domesticated animal owned by another person while the animal is on property where the animal is authorized to be present.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1003. Other misdemeanors involving animal abuse; prohibition on manner of destruction of animals; attending fowl or dog fights; keeping household pets in unsanitary conditions.

  1. A person shall not destroy an animal by the use of a high-altitude decompression chamber or a carbon monoxide gas chamber utilizing a gasoline engine. This subsection is uniformly applicable to all cities and towns.
  2. A person is guilty of a misdemeanor if he knowingly is present at any place where an exhibition of fighting of fowls or dogs is occurring for amusement or gain.
  3. A person is guilty of a misdemeanor if he keeps a household pet confined in conditions which constitute a public health hazard.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1004. Penalties, misdemeanor offenses.

  1. A first offense of cruelty to animals or of a violation of W.S. 6-3-1003 is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  2. A second or subsequent conviction, resulting from charges separately brought and arising out of separate occurrences within a five (5) year period:
    1. Of animal cruelty under W.S. 6-3-1002 is punishable by imprisonment for not more than six (6) months, a fine of not more than five thousand dollars ($5,000.00), or both;
    2. Under W.S. 6-3-1003 is a misdemeanor offense punishable by imprisonment for not more than six (6) months, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1005. Felony cruelty to animals; penalty.

  1. A person commits felony cruelty to animals if the person:
    1. Commits cruelty to animals as defined in W.S. 6-3-1002(a)(v) through (ix), that results in the death or required euthanasia of the animal; or
    2. Knowingly, and with intent to cause death or undue suffering, beats with cruelty, tortures, torments or mutilates an animal.
  2. Felony cruelty to animals is a felony punishable by:
    1. Permanent forfeiture of the animal or livestock animal; and
    2. Imprisonment for not more than two (2) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 2021, ch. 30, § 1; ch. 119, § 3.

The 2021 amendment, by ch. 119, § 3, effective July 1, 2021, deleted "aggravated" preceding "cruelty" in (a)(i); added (b)(i); added (b)(ii) designation and made related changes.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1006. Additional remedies, generally.

  1. In addition to the penalties for misdemeanor and felony offenses in W.S. 6-3-1004 and 6-3-1005 , the court may order any or all of the following:
    1. If the defendant is the owner of the animal, require the defendant to forfeit ownership of the animal. This paragraph shall not affect the interest of any secured party or other person who has not participated in the offense;
    2. Require the defendant to pay all reasonable costs of the animal’s impoundment, if the animal has been impounded;
    3. Impose continuing prohibitions or limitations on the defendant’s ownership, possession or custody of any animal.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1007. Separate counts.

Each animal affected by the defendant’s conduct may constitute a separate count for the purposes of prosecution, conviction, sentencing and penalties under this article.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1008. Use of agricultural and livestock management practices, wildlife management and humane destruction not prohibited.

  1. Nothing in this article may be construed to prohibit:
    1. A person humanely destroying an animal, including livestock;
    2. The use of industry accepted agricultural and livestock practices on livestock or another animal used in the practice of agriculture;
    3. Rodeo events, training for rodeo events or participating in rodeo events, whether the event is performed in a rodeo, fair, jackpot, agricultural exhibition or other similar event;
    4. The use of dogs in the management of livestock by the owner of the livestock, his employees or agents or other persons in lawful custody of the livestock;
    5. The use of dogs or raptors in hunting;
    6. The training of dogs or raptors or the use of equipment in the training of dogs or raptors for any purpose not prohibited by law;
    7. The hunting, capture, killing or destruction of any predatory animal, pest or other wildlife in any manner not otherwise prohibited by law.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1009. Household pet protection account continued; authorized uses of the account.

The cruelty to household pet animals protection account as originally created by W.S 6-3-203(o) is continued. Funds shall be credited to the account as provided by law. Funds in the account are continuously appropriated to the attorney general to reimburse county law enforcement agencies for eligible expenses regarding animal cruelty cases involving household pets under W.S. 6-3-1002(a)(iv)(D) or 6-3-1003(c). The attorney general shall develop rules and regulations to establish eligible expenses and to determine how county law enforcement agencies will be reimbursed for the costs of an animal cruelty case under W.S. 6-3-1002(a)(iv)(D) or 6-3-1003(c), in an amount not to exceed ninety percent (90%) in any particular case. Any reimbursement under this subsection shall be contingent upon available funding and upon a showing that the agency has made reasonable efforts to seek reimbursement from the offender of expenses incurred by the agency, as permitted by law. All funds in the account may be used for and are continuously appropriated for eligible expenses authorized to be made under this section. Notwithstanding W.S. 9-2-1008 and 9-4-207 funds in the account shall not lapse at the end of the fiscal period.

History. Laws 2021, ch. 30, § 1.

Effective date. —

Laws 2021, ch. 30, § 4, makes the act effective July 1, 2021.

§ 6-3-1010. Impounding and forfeiture hearing.

  1. Any person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 and who has probable cause to believe there has been a violation of this article may impound any animal treated cruelly. The following shall apply to impounding an animal under this subsection:
    1. If any animal is impounded under this subsection the following shall apply:
      1. Within the earlier of seventy-two (72) hours of impoundment or charges being filed, the circuit court shall hold a hearing to set a bond in an amount the circuit court determines is sufficient to provide for the animal’s reasonable costs of impoundment for at least ninety (90) days including the day on which the animal was impounded. At the request of the owner of the animal, the court may make a determination on the disposition of the animal at a hearing pursuant to this subparagraph;
      2. The bond shall be posted by the owner of the animal with the circuit court in the county where the animal was impounded within ten (10) days after the hearing required by this subparagraph.
    2. When the bond required by paragraph (i) of this subsection expires, if the owner of the animal desires to prevent disposition of the animal by the person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 , the owner shall post a new bond with the court as described in paragraph (i) of this subsection. The court may correct, alter or otherwise adjust the new bond before the expiration date of the previous bond;
    3. If a bond is not posted under paragraphs (i) or (ii) of this subsection, the person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 shall dispose of the animal. As used in this section, “dispose” means to place for adoption, sell, destroy or return to the owner. The owner of the animal shall be liable for all costs associated with the final disposition of the animal under this subsection. Posting of a bond shall not prevent the person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 from disposing of the impounded animal before the expiration of the period covered by the bond if during a disposition hearing pursuant to paragraph (vi) of this subsection the court orders the forfeiture of the animal to a person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 or the owner voluntarily forfeits the animal. No animal shall be forfeited pursuant to paragraph (vi) of this subsection without a hearing pursuant to paragraphs (vi) through (viii) of this subsection, regardless of whether a bond is posted, if the animal is connected to the livelihood or ability to make a living of the owner;
    4. If a bond has been posted in accordance with paragraph (i) or (ii) of this subsection, the person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 may draw from the bond the actual costs of the activities described in paragraph (i) of this subsection, from the date of initial impoundment to the date of final disposition of the animal;
    5. Upon the final disposition of the animal, any bond amount remaining that has not been expended in the impoundment and disposition of the animal shall be remitted to the owner of the animal;
    6. A person with authority to enforce this article or W.S. 11-29-101 through 11-29-115 or other participant in the criminal action may file a petition in the criminal action requesting the court issue an order providing for the final disposition of the animal if:
      1. The animal is in the possession of and being held by a person with authority to enforce this article or W.S. 11-29-101 through 11-29-115;
      2. The outcome of the criminal action charging a violation of this article is pending; and
      3. The final disposition of the animal has not occurred.
    7. Upon receipt of a petition pursuant to paragraph (vi) of this subsection, the court shall set a hearing on the petition for disposition of the animal. The hearing shall be conducted within seven (7) days after the filing of the petition or as soon as practicable thereafter. The hearing shall be limited to the question of the disposition of the animal;
    8. At a hearing conducted pursuant to paragraph (vii) of this subsection, the prosecutor shall have the burden of proving by a preponderance of the evidence that the animal was subjected to a violation of this article. After the hearing, if the court finds by a preponderance of the evidence that the animal was subjected to a violation of this article, the court may order immediate forfeiture of the animal to the person with authority to enforce this article or W.S. 11-29-101 through 11-29-115. If, after the hearing, the court finds by a preponderance of the evidence that the animal was not subjected to a violation of this article, the animal shall be returned to the owner of the animal and the owner shall not be responsible for any costs of the impoundment incurred after a finding that the animal was not subjected to a violation of this article unless the person later pleads guilty to or is found guilty of a violation of this article.

History. Laws 2021, ch. 119, § 1.

Effective date. —

Laws 2021, ch. 119, § 6, makes the act effective July 1, 2021.

Chapter 4 Offenses Against Morals, Decency and Family

Cross references. —

As to sexual assault generally, see article 3 of chapter 2 of this title.

As to encouraging persons under 16 years of age to engage in illicit sexual intercourse, see § 6-2-314 et seq.

As to taking immodest, immoral or indecent liberties with children or encouraging child with reference thereto, see § 6-2-319 .

As to child protective services, see §§ 14-3-201 through 14-3-215 .

As to general powers of cities and towns to regulate, prevent or suppress obscene or profane language, see § 15-1-103 .

Article 1. Prostitution

Cross references. —

As to prostitution being a nuisance, see § 6-6-201 .

As to a place of prostitution being a public nuisance, see § 6-6-209 .

For general powers of cities and towns to restrain and punish prostitutes, see § 15-1-103 .

As to authority of state, county and municipal health officers to use every proper means for the suppression of prostitution, see § 35-4-133 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Constitutionality of assault and battery laws limited to protection of females only or which provide greater penalties for males than for females, 5 ALR4th 708.

Liability of church or religious society for sexual misconduct of clergy, 5 ALR5th 530.

§ 6-4-101. Prostitution; penalties.

Except as provided in W.S. 6-2-701 through 6-2-710 , a person who knowingly or intentionally performs or permits, or offers or agrees to perform or permit an act of sexual intrusion, as defined by W.S. 6-2-301(a)(vii), for money or other property commits prostitution which is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2013, ch. 91, § 2.

The 2013 amendment, effective July 1, 2013, added “Except as provided in W.S. 6-2-701 through 6-2-710 .”

Cited in

Belondon v. City of Casper, 456 P.2d 238, 1969 Wyo. LEXIS 147 (Wyo. 1969).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Laws prohibiting or regulating “escort services,” “outcall entertainment” or similar services used to carry on prostitution, 15 ALR5th 900.

§ 6-4-102. Soliciting an act of prostitution; penalties.

Except as provided in W.S. 6-2-701 through 6-2-710 , a person is guilty of soliciting an act of prostitution if, with the intent that an act of sexual intrusion as defined by W.S. 6-2-301(a)(vii) be committed, that person knowingly or intentionally pays, or offers or agrees to pay money or other property to another person under circumstances strongly corroborative of the intention that an act of prostitution be committed. Soliciting an act of prostitution is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1996, ch. 117, § 1; 2013, ch. 91, § 2.

The 2013 amendment , effective July 1, 2013, added “Except as provided in W.S. 6-2-701 through 6-2-710 .”

Agreement transferring automobile in exchange for sexual favors unlawful and void. —

An agreement to transfer an automobile to a buyer in exchange for $100 and 100 sexual favors violated this section, was contrary to public policy, and was void and unenforceable. Hamburg v. Hansen, 683 P.2d 662, 1984 Wyo. LEXIS 302 (Wyo. 1984).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-4-103. Promoting prostitution; penalties.

  1. Except as provided in W.S. 6-2-701 through 6-2-710 , a person commits a felony if he:
    1. Knowingly or intentionally entices or compels another person to become a prostitute;
    2. Knowingly or intentionally procures, or offers or agrees to procure, a person for another person for the purpose of prostitution;
    3. Having control over the use of a place, knowingly or intentionally permits another person to use the place for prostitution; or
    4. Receives money or other property from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution.
  2. The felony defined by this section is punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both. However, the crime is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, under paragraph (i) of subsection (a) of this section if the person enticed or compelled is under eighteen (18) years of age.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1993, ch. 1, § 1; 2013, ch. 91, § 2.

Cross references. —

As to place of prostitution being a nuisance, see § 6-6-201 .

As to place of prostitution being a public nuisance, see § 6-6-209 .

As to general powers of cities and towns to suppress, restrain and prohibit houses of prostitution, see § 15-1-103 .

As to duty of health officers to enforce laws for suppression of prostitution, see § 35-4-133 .

The 2013 amendment , effective July 1, 2013, added “Except as provided in W.S. 6-2-701 through 6-2-710 ” in (a).

Evidence sufficient for conviction. —

Evidence, including testimony from a police officer and a former “employee” of the defendant, plus records and a telephone answering machine tape, was sufficient to support the defendant's conviction for procuring and receiving money from prostitution. See Osborne v. State, 806 P.2d 272, 1991 Wyo. LEXIS 20 (Wyo. 1991).

Condition of probation. —

Where a defendant entered Alford guilty pleas to violating Wyo. Stat. Ann. §§ 6-2-502 , 6-4-103 , 6-1-303 , and 6-2-302 , the district court did not abuse its discretion by imposing as a condition of his probation following his term of incarceration that he have no contact with his minor children. A no contact condition was reasonably related to the violent sexual crimes for which he was convicted and for which he was charged, and the provision did not impermissibly encroach on his fundamental right as a parent to raise his children. Perkins v. State, 2014 WY 11, 317 P.3d 584, 2014 Wyo. LEXIS 12 (Wyo. 2014).

Applied in

Stutsman v. City of Cheyenne, 18 Wyo. 499, 113 P. 322, 1911 Wyo. LEXIS 32 (1911); Konopisos v. State, 26 Wyo. 350, 185 P. 355, 1919 Wyo. LEXIS 24 (1919).

Cited in

State in Interest of C., 638 P.2d 165, 1981 Wyo. LEXIS 410 (Wyo. 1981).

Law reviews. —

For article, “Judicial Construction of the Mann Act,” see 10 Wyo. L.J. 198.

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction of provision of pandering statute as to placing a female in charge or custody of another, 54 ALR2d 1178.

Validity and construction of statute or ordinance proscribing solicitation for purposes of prostitution, lewdness, or assignation — modern cases, 77 ALR3d 519.

Separate acts of taking earnings of or support from prostitute as separate or continuing offenses of pimping, 3 ALR4th 1195.

Article 2. Public Indecency

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability of church or religious society for sexual misconduct of clergy, 5 ALR5th 530.

§ 6-4-201. Public indecency; exception; penalties.

  1. A person is guilty of public indecency if, while in a public place where he may reasonably be expected to be viewed by others, he:
    1. Performs an act of sexual intrusion, as defined by W.S. 6-2-301(a)(vii); or
    2. Exposes his intimate parts, as defined by W.S. 6-2-301(a)(ii), with the intent of arousing the sexual desire of himself or another person; or
    3. Engages in sexual contact, as defined by W.S. 6-2-301(a)(vi), with or without consent, with the intent of arousing the sexual desire of himself or another person.
  2. The act of breastfeeding an infant child, including breastfeeding in any place where the woman may legally be, does not constitute public indecency.
  3. Public indecency is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2007, ch. 166, § 1.

The 2007 amendment, effective July 1, 2007, added (b) and redesignated former (b) as (c).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “public place” within meaning of statutes prohibiting commission of sexual act in public place, 96 ALR3d 692.

Indecent exposure: what is “person,” 63 ALR4th 1040.

Regulation of exposure of female, but not male breasts, 67 ALR5th 431.

What constitutes “public place” within meaning of state statute or local ordinance prohibiting indecency or commission of sexual act in public place, 95 ALR5th 229.

Article 3. Obscenity

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

50 Am. Jur. 2d Lewdness, Indecency and Obscenity §§ 3 to 30.

Validity and construction of statutes or ordinances prohibiting profanity or profane swearing or cursing, 5 ALR4th 956.

Liability of church or religious society for sexual misconduct of clergy, 5 ALR5th 530.

Obscenity prosecutions: Statutory exemption based on dissemination to persons or entities having scientific, educational, or similar justification for possession of such materials, 13 ALR5th 567.

67 C.J.S. Obscenity § 1 et seq.

§ 6-4-301. Definitions.

  1. As used in this article:
    1. “Disseminate” means to sell, distribute, deliver, provide, exhibit or otherwise make available to another;
    2. “Material” includes any form of human expression or communication intended for, or capable of, visual, auditory or sensory perception;
    3. “Obscene” is material which the average person would find:
      1. Applying contemporary community standards, taken as a whole, appeals to the prurient interest;
      2. Applying contemporary community standards, depicts or describes sexual conduct in a patently offensive way; and
      3. Taken as a whole, lacks serious literary, artistic, political or scientific value.
    4. “Produce or reproduce” means to bring into being regardless of the process or means employed. Undeveloped photographs, films, molds, casts, printing plates and like articles may be obscene notwithstanding that further processing or other acts are necessary to make the obscenity patent or to disseminate or exhibit the obscene material;
    5. “Sexual conduct” means:
      1. Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated;
      2. Sado-masochistic abuse; or
      3. Patently offensive representations or descriptions of masturbation, excretory functions or lewd exhibitions of the genitals.

History. Laws 1982, ch. 75, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Jury instructions.—

District court did not abuse its discretion by refusing to give the defense’s requested instruction on the definition of obscene the definition of “obscene” for statutes that punished pure speech does not apply to criminal stalking, but instead, the word should be given its ordinary meaning. Dugan v. State, 2019 WY 112, 451 P.3d 731, 2019 Wyo. LEXIS 114 (Wyo. 2019), cert. denied, 140 S. Ct. 1298, 206 L. Ed. 2d 377, 2020 U.S. LEXIS 1610 (U.S. 2020).

"Obscene."—

District court’s refusal to require proof that defendant’s statements met the definition of “obscene” under Wyo. Stat. Ann. § 6-4-301 did not render Wyo. Stat. Ann. § 6-2-506 unconstitutional as applied to him; the punishment of obscenity under laws that regulate pure speech is much different than the punishment of harassing conduct which includes obscene statements. Dugan v. State, 2019 WY 112, 451 P.3d 731, 2019 Wyo. LEXIS 114 (Wyo. 2019), cert. denied, 140 S. Ct. 1298, 206 L. Ed. 2d 377, 2020 U.S. LEXIS 1610 (U.S. 2020).

There is no right of private action based on §§ 1-29-106 , 6-4-301 and 6-4-302 . Dworkin v. Hustler Magazine, Inc., 634 F. Supp. 727, 1986 U.S. Dist. LEXIS 26567 (D. Wyo. 1986).

Stated in

Dougherty v. State, 2010 WY 127, 239 P.3d 1176, 2010 Wyo. LEXIS 135 (Sept. 21, 2010).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Musical sound recording as punishable obscenity, 30 ALR5th 718.

§ 6-4-302. Promoting obscenity; penalties.

  1. A person commits the crime of promoting obscenity if he:
    1. Produces or reproduces obscene material with the intent of disseminating it;
    2. Possesses obscene material with the intent of disseminating it; or
    3. Knowingly disseminates obscene material.
  2. Promoting obscenity is a misdemeanor punishable upon conviction as follows:
    1. If to an adult, by a fine not to exceed one thousand dollars ($1,000.00) or by imprisonment for not to exceed one (1) year, or both;
    2. If to a minor, for each violation, by a fine not to exceed six thousand dollars ($6,000.00) or by imprisonment for not to exceed one (1) year, or both.
  3. This section shall not apply to any person who may produce, reproduce, possess or disseminate obscene material:
    1. In the course of law enforcement and judicial activities;
    2. In the course of bona fide school, college, university, museum or public library activities or in the course of employment of such an organization.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to age of majority, see § 14-1-101 .

As to an attorney being subjected to disciplinary action for inserting scandalous or indecent matter in pleadings, see Rule 11, W.R.C.P.

There is no right of private action based on §§ 1-29-106 , 6-4-301 and 6-4-302 . Dworkin v. Hustler Magazine, Inc., 634 F. Supp. 727, 1986 U.S. Dist. LEXIS 26567 (D. Wyo. 1986).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and effect of statutes or ordinances prohibiting the sale of obsence materials to minors, 93 ALR3d 297.

In personam or territorial jurisdiction of state court in connection with obscenity prosecution of author, actor, photographer, publisher, distributor or other party whose acts were performed outside the state, 16 ALR4th 1318.

Processor's right to refuse to process or return film or video tape of obscene subject, 18 ALR4th 1326.

Validity and application of statute exempting nonmanagerial, nonfinancially interested employees from obscenity prosecution, 35 ALR4th 1237.

Validity, construction, and application of state statutes or ordinances regulating sexual performance by child, 42 ALR5th 291.

Constitutionality of state statutes banning distribution of sexual devices, 94 ALR5th 497.

Validity and construction of 18 USC §§ 371 and 2252(a) penalizing mailing or receiving, or conspiring to mail or receive, child pornography, 86 ALR Fed 359.

Construction and application of United States Sentencing Guidelines § 2G2.1 et seq., pertaining to child pornography, 145 ALR Fed 481.

§ 6-4-303. Sexual exploitation of children; penalties; definitions.

  1. As used in this section:
    1. “Child” means a person under the age of eighteen (18) years;
    2. “Child pornography” means any visual depiction, including any photograph, film, video, picture, computer or computer-generated image or picture, whether or not made or produced by electronic, mechanical or other means, of explicit sexual conduct, where:
      1. The production of the visual depiction involves the use of a child engaging in explicit sexual conduct;
      2. The visual depiction is of explicit sexual conduct involving a child or an individual virtually indistinguishable from a child; or
      3. The visual depiction has been created, adapted or modified to depict explicit sexual conduct involving a child or an individual virtually indistinguishable from a child.
      4. Repealed by Laws 2005, ch. 70, § 2.
    3. “Explicit sexual conduct” means actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal, between persons of the same or opposite sex, bestiality, masturbation, sadistic or masochistic abuse or lascivious exhibition of the genitals or pubic area of any person;
    4. “Visual depiction” means developed and undeveloped film and videotape, and data stored on computer disk or by electronic means which is capable of conversion into a visual image.
  2. A person is guilty of sexual exploitation of a child if, for any purpose, he knowingly:
    1. Causes, induces, entices, coerces or permits a child to engage in, or be used for, the making of child pornography;
    2. Causes, induces, entices or coerces a child to engage in, or be used for, any explicit sexual conduct;
    3. Manufactures, generates, creates, receives, distributes, reproduces, delivers or possesses with the intent to deliver, including through digital or electronic means, whether or not by computer, any child pornography;
    4. Possesses child pornography, except that this paragraph shall not apply to:
      1. Peace officers, court personnel or district attorneys engaged in the lawful performance of their official duties;
      2. Physicians, psychologists, therapists or social workers, provided such persons are duly licensed in Wyoming and the persons possess such materials in the course of a bona fide treatment or evaluation program at the treatment or evaluation site; or
      3. Counsel for a person charged under this section.
  3. The sexual exploitation of a child pursuant to paragraphs (b)(i) through (iii) of this section is a felony punishable by imprisonment for not less than five (5) years nor more than twelve (12) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  4. The sexual exploitation of a child by possession of sexually exploitive material pursuant to paragraph (b)(iv) of this section is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  5. A second or subsequent conviction pursuant to paragraphs (b)(i) through (iv) of this section, or of a substantially similar law of any other jurisdiction, is a felony punishable by imprisonment for not less than seven (7) years nor more than twelve (12) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  6. Any person who is convicted of an offense under this section shall forfeit to the state the person’s interest in:
    1. Any visual depiction of a child engaging in explicit sexual conduct in violation of this section, or any book, magazine, periodical, film, videotape or other matter which contains any such visual depiction, which was produced, transported, mailed, shipped, possessed or received in violation of this section;
    2. Any property, real or personal, constituting or traceable to gross proceeds obtained from such offense;
    3. Any property, real or personal, used or intended to be used to commit or to promote the commission of such offense.

History. Laws 1999, ch. 180, § 1; 2005, ch. 70, §§ 1, 2; 2007, ch. 159, § 2.

Cross references. —

As to administrative subpoena authority for investigations of child exploitation, see § 9-1-640 .

The 2005 amendment, effective July 1, 2005, clarified that child pornography involves a visual depiction of a child or an individual virtually indistinguishable from a child rather than appears to be of a child engaging in explicit conduct in (a)(ii)(B) and (a)(ii)(C), and repealed former (a)(ii)(D), which read: “The visual depiction is advertised, promoted, described or distributed in a manner that conveys the impression that the material is, or contains, a visual depiction of a child engaging in explicit sexual conduct.”

The 2007 amendment, effective July 1, 2007, inserted “less than five (5) years nor” in (c); in (e), deleted “or any violation of this section involving child pornography depicting a child under the age of twelve (12) years,” following “law of any other jurisdiction” and inserted “less than seven (7) years nor.”

Constitutionality. —

Wyo. Stat. Ann. § 6-4-303 is not facially overbroad under the First Amendment. Even if at least two one of the definitions of child pornography in a federal statute paralleling § 6-4-303 were struck down as unconstitutional in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403, 2002 U.S. LEXIS 2789 (2002), at least one of the definitions in § 6-4-303 is constitutional because it defines child pornography as requiring the use of a real child, and any of the provisions in the Wyoming statute that could be found unconstitutional can be severed from the statute under the general rule of severability provided by Wyo. Stat. Ann. § 8-1-103(a)(viii).Rutti v. State, 2004 WY 133, 100 P.3d 394, 2004 Wyo. LEXIS 177 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 215 (Wyo. Dec. 14, 2004), cert. denied, 544 U.S. 1019, 125 S. Ct. 1990, 161 L. Ed. 2d 858, 2005 U.S. LEXIS 3781 (U.S. 2005).

Defendant's conviction for violating Wyo. Stat. Ann. § 6-4-303(a)(ii)(B) did not violate the First Amendment as defendant admitted that the images were child pornography and they were real children, not images virtually indistinguishable from children in accordance with 18 U.S.C.S. § 2256; thus, whether the statute was vague or overbroad had to be determined in a case where the image at issue was alleged to be that of an individual virtually indistinguishable from a child, but not actually a child. Jones v. State, 2007 WY 201, 173 P.3d 379, 2007 Wyo. LEXIS 217 (Wyo. 2007).

Actual victim not required. —

Where defendant engaged in conversation with an undercover detective in an internet chatroom and agreed to meet the person in an agreed-upon location for sexual activity, convictions for attempted sexual exploitation of a child and attempted solicitation to engage in illicit sexual relations in violation of Wyo. Stat. Ann. §§ 6-4-303(b)(ii) and 14-3-104 (repealed) were upheld; the State was not required to produce an actual child victim for crimes of attempt. Adams v. State, 2005 WY 94, 117 P.3d 1210, 2005 Wyo. LEXIS 117 (Wyo. 2005).

Cited in

Perkins v. State, 2014 WY 11, 2014 Wyo. LEXIS 12 (Jan 24, 2014).

Quoted in

Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Feb. 28, 2008).

§ 6-4-304. Voyeurism; penalties.

  1. Except as otherwise provided in this section, a person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he, without the consent of the person being viewed, commits the crime of voyeurism by looking in a clandestine, surreptitious, prying or secretive nature into an area where the person being viewed has a reasonable expectation of privacy, including, but not limited to:
    1. Restrooms;
    2. Baths;
    3. Showers;
    4. Dressing or fitting rooms;
    5. Bedrooms; or
    6. Under the clothing being worn by another person, regardless of whether the person is in a place where the person has a reasonable expectation of privacy.
  2. Except as otherwise provided in this section, a person is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, if he:
    1. Commits the offense specified in subsection (a) of this section by knowingly or intentionally capturing an image by means of a camera, a video camera or any other image recording device; or
    2. Uses a camera, video camera or any other image recording device:
      1. For the purpose of observing, viewing, photographing, filming, recording, livestreaming or videotaping the intimate areas of another person;
      2. Under clothing being worn by the other person; and
      3. Without the consent of the other person.
  3. A minor convicted of violating subsection (b) of this section shall be guilty of a status offense as defined in W.S. 7-1-107(b)(iii) and may be fined not more than two hundred fifty dollars ($250.00).
  4. A person who is eighteen (18) years of age or older who commits an offense as specified in this section for which the victim is less than eighteen (18) years of age shall be guilty of a felony punishable by imprisonment of not more than ten (10) years, a fine of not greater than five thousand dollars ($5,000.00), or both.
  5. If a person sentenced under subsection (a) of this section is placed on probation, the court may, notwithstanding any other provision of law, impose a term of probation exceeding the maximum imprisonment of six (6) months, provided the term of probation, including extensions, shall not exceed one (1) year.
  6. A person who is eighteen (18) years of age or older who commits an offense as specified in subsection (a) or (b) of this section who has previously been convicted as an adult of an offense under subsection (a) or (b) of this section or of a similar offense under the laws of another state shall be guilty of a felony punishable by imprisonment of not greater than five (5) years, a fine of not greater than five thousand dollars ($5,000.00), or both.
  7. As used in this section, “intimate area” means any portion of a person’s pubic area, buttocks, vulva, genitals, female breast or undergarments intended to cover those portions. “Intimate area” does not include intimate areas visible through a person’s clothing or intimate areas knowingly exposed in public.

History. Laws 2005, ch. 173, § 1; 2021, ch. 141, § 1.

The 2021 amendment, in (a), added "Except as otherwise provided in this section," at the beginning, deleted "enclosed" following "nature into an"; added (a)(v) and (a)(vi); in (b), added "Except as otherwise provided in this section," at the beginning, substituted "five (5)" for "two (2)"; rewrote (b)(ii), which read, "Uses a camera, video camera or any other image recording device for the purpose of observing, viewing, photographing, filming or videotaping another person under the clothing being worn by the other person where that other person has not consented to the observing, viewing, photographing, filming or videotaping"; added (c) through (g); and made related changes.

Laws 2021, ch. 141, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 7, 2021.

Effective dates. —

Laws 2005, ch. 173, § 2, makes the act effective July 1, 2005.

6-4-305. Dissemination or possession of a nude image of a minor by a minor; definitions; penalties.

  1. As used in this section:
    1. “Disseminate” means to sell, distribute, deliver, provide, publish, transmit, text, email, exhibit or otherwise make available to another person but does not include any action taken to notify a person in a position of authority of the existence of a nude image of a minor;
    2. “Juvenile detention facility” means as defined in W.S. 7-1-107(b)(i);
    3. “Minor” means an individual who is under the age of eighteen (18) years;
    4. “Nude image” means a photograph or video depicting a person’s genitalia, perineum, anus or pubic area or the breast of a female. The term does not include a depiction of explicit sexual conduct as defined in W.S. 6-4-303(a)(iii).
  2. A minor is guilty of dissemination or possession of a nude image of a minor in the third degree if he knowingly:
    1. Disseminates a nude image of himself; or
    2. Possesses a nude image of another minor who is at least eleven (11) years of age unless the minor inadvertently came into possession of the image and took reasonable steps to destroy the image or notify a person in a position of authority of its existence.
  3. A minor is guilty of dissemination of a nude image of a minor in the second degree if he knowingly disseminates a nude image of another minor who is at least eleven (11) years of age.
  4. A minor is guilty of dissemination or possession of a nude image of a minor in the first degree if, with the intent to coerce, intimidate, torment, harass or otherwise cause emotional distress to another minor, the minor:
    1. Disseminates or threatens to disseminate a nude image of another minor who is at least eleven (11) years of age; or
    2. Captures a nude image of another minor who is at least eleven (11) years of age without the knowledge of the depicted minor.
  5. A minor convicted of violating subsection (b) of this section is guilty of a status offense as defined in W.S. 7-1-107(b)(iii) and may be fined not more than two hundred fifty dollars ($250.00).
  6. A minor convicted of violating subsection (c) or (d) of this section is guilty of a misdemeanor punishable by:
    1. For a violation of subsection (c) of this section, a fine of not more than five hundred dollars ($500.00), imprisonment in a juvenile detention facility for not more than three (3) months, or both;
    2. For a violation of subsection (d) of this section, a fine of not more than seven hundred fifty dollars ($750.00), imprisonment in a juvenile detention facility for not more than six (6) months, or both.

History. Laws 2017, ch. 190, § 1.

Effective dates. —

Laws 2017, ch. 190, § 2, makes the act effective July 1, 2017.

§ 6-4-306. Unlawful dissemination of intimate images; definitions; penalties; exemptions from liability.

  1. As used in this section:
    1. “Displaying sexual acts” means displaying an image of sexual acts regardless of whether a person’s intimate parts are visible in the image;
    2. “Disseminate” means to sell, distribute, deliver, provide, exhibit, post on social media or otherwise make available to a third party, but shall not include displaying an intimate image in private to the person depicted in the image;
    3. “Image” means a photograph, film, videotape, recording, digital file or any other recording, including a computer generated image that purports to represent an identifiable person;
    4. “Intimate image” means an image of a person’s intimate parts or of a person engaging in sexual acts when the person depicted is identifiable from the image itself or from information displayed with or otherwise connected to the image;
    5. “Intimate parts” means the external genitalia, perineum, anus or pubic area of any person or the breast of a female person;
    6. “Sexual acts” means sexual intercourse, cunnilingus, fellatio, analingus, anal intercourse or any intrusion, however slight, by any object or any part of a person’s body into the genital or anal opening of another person’s body if the intrusion can reasonably be construed as being for the purpose of sexual arousal, gratification or abuse;
    7. “Social media” means any electronic medium, including an interactive computer service, telephone network or data network, that allows users to create, share, post or view user generated content, including but not limited to images, videos, still photographs, blogs, video blogs, podcasts, instant messages, electronic mail or internet website profiles.
  2. A person eighteen (18) years of age or older is guilty of the offense of disseminating an intimate image if the person:
    1. Disseminated an intimate image of another person;
    2. Knew or should have known that the depicted person had a reasonable expectation that the image would remain private and the depicted person did not expressly give consent for the image’s dissemination; and
    3. Intended:
      1. To humiliate, harm, harass, threaten or coerce another; or
      2. For sexual gratification or arousal of others or of the person disseminating the intimate image.
  3. Dissemination of an intimate image is a misdemeanor punishable by not more than one (1) year imprisonment, a fine of not more than five thousand dollars ($5,000.00), or both.
  4. Nothing in the section shall be construed to impose criminal liability on the provider of an interactive computer service as defined in 47 U.S.C. § 230, an information service as defined in 47 U.S.C. § 153 or a telecommunications service as defined in 47 U.S.C. § 153, for content provided by another person.

History. Laws 2021, ch. 85, § 1.

Effective date. —

Laws 2021, ch. 85, § 2, makes the act effective July 1, 2021.

Article 4. Offenses Against the Family

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-4-401. Bigamy; penalties; defense.

  1. A person commits bigamy if, being married and knowing that his spouse is alive, he marries again.
  2. It is a defense that the accused person reasonably believed that he was eligible to remarry.
  3. Bigamy is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3.

Cross references. —

For provision declaring marriage void when either party has a husband or wife living at the time of contracting, see § 20-2-101 .

Double jeopardy not created by existence of federal law. —

Fact that bigamy was punishable under the laws of the United States did not make the law of a territory punishing it unconstitutional, in that the person committing it would have been subject to two punishments. In re Murphy, 5 Wyo. 297, 40 P. 398, 1895 Wyo. LEXIS 24 (Wyo. 1895).

Quoted in

Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013); Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013).

Law reviews. —

For note, “Belief in Death of Absent Consort as a Defense to a Charge of Bigamy,” see 10 Wyo. L.J. 158.

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Mistaken belief in existence, validity or effect of divorce or separation as defense for prosecution for adultery, unlawful cohabitation, bigamy or allied offense, 56 ALR2d 915.

Validity of bigamy and polygamy statutes and constitutional provisions, 22 A.L.R.6th 1.

§ 6-4-402. Incest; penalties; disclosure or publication of identifying information; “minor victim”.

  1. A person is guilty of incest if he knowingly commits sexual intrusion, as defined by W.S. 6-2-301(a)(vii), or sexual contact, as defined by W.S. 6-2-301(a)(vi), with an ancestor or descendant or a brother or sister of the whole or half blood. The relationships referred to herein include relationships of:
    1. Parent and child by adoption;
    2. Blood relationships without regard to legitimacy; and
    3. Stepparent and stepchild.
  2. Incest is a felony punishable by imprisonment for not more than fifteen (15) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. Prior to the filing of an information or indictment charging a violation under this section, neither the name of the person accused or the victim nor any other information reasonably likely to disclose their identity shall be released or negligently allowed to be released to the public by any public employee, except as authorized by the judge with jurisdiction over the criminal charges. The name of the person accused may be released to the public to aid or facilitate an arrest.
  4. After the filing of an information or indictment and absent a request to release the identity of a minor victim by the victim or another acting on behalf of a minor victim, the trial court shall restrict the disclosure or publication of information reasonably likely to identify the minor victim.
  5. Any person who willfully violates subsection (c) or (d) of this section or who willfully neglects or refuses to obey any court order made pursuant thereto is guilty of contempt and, upon conviction, shall be fined not more than seven hundred fifty dollars ($750.00) or be imprisoned in the county jail not more than ninety (90) days, or both.
  6. A release of a name or other information to the public in violation of the proscriptions of subsection (c) or (d) of this section shall not stand as a bar to the prosecution of a defendant nor be grounds for dismissal of any charges against a defendant.
  7. As used in this section, “minor victim” means a person under the age of eighteen (18) years.

History. Laws 1982, ch. 75, § 3; 1983, ch. 155, § 3; ch. 171, § 1; 1985, ch. 44, § 1; 1993, ch. 1, § 1; 2004, ch. 42, § 1; 2005, ch. 129, § 1; 2007, ch. 12, § 1.

The 2004 amendment, in (c), deleted “or justice” following “authorized by the judge.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2005 amendment, effective July 1, 2005, rewrote (d) to prohibit release of minor victims' names to protect the welfare of the minor child except as specified.

The 2007 amendment, effective July 1, 2007, in (b), substituted “fifteen (15)” for “five (5)” and substituted “ten thousand dollars ($10,000.00)” for “five thousand dollars ($5,000.00).

Defendant's conviction, under § 6-2-303 , of sexually assaulting daughters not barred under this section. —

Section 6-2-303 (sexual assault), this section and § 14-3-105 (repealed) (taking indecent liberties with a minor) all concern sexual activities, but one cannot be said to be more specific than the others. Therefore, the defendant's convictions under §§ 6-2-303 and 14-3-105 were not barred under this section, even though the victims of his acts were his daughters, ages four and six years. Kallas v. State, 704 P.2d 693, 1985 Wyo. LEXIS 525 (Wyo. 1985).

Incest is lesser-included offense of first-degree sexual abuse. —

Defendant's conviction for incest, in violation of Wyo. Stat. Ann. § 6-4-402(a)(iii), was a lesser-included offense of the crime of first-degree sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-314(a)(ii), and constituted the “same offense” under a double jeopardy analysis. Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Wyo. 2013).

Incest does not merge into second-degree sexual assault. —

The incest statute requires that the sexual contact or intrusion be committed upon a relative of the accused. This family relationship element prevents the incest conviction from merging into the second-degree sexual assault conviction since a family relationship was not a necessary element for the sexual assault. Owen v. State, 902 P.2d 190, 1995 Wyo. LEXIS 154 (Wyo. 1995), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

Admission of testimony regarding defendant's conduct as described by the victim and her older sister was justified as proof of motive and was sufficiently similar to meet the relevancy requirements of the rules of evidence. Brown v. State, 736 P.2d 1110, 1987 Wyo. LEXIS 447 (Wyo. 1987).

Consecutive sentences violated double jeopardy provisions against multiple punishments for the same offense, where the defendant committed two acts of sexual intrusion at the same time and place, and the sentences imposed for those crimes were not required to be merged. Parker v. State, 882 P.2d 1225, 1994 Wyo. LEXIS 122 (Wyo. 1994).

Applied in

Young v. State, 678 P.2d 880, 1984 Wyo. LEXIS 272 (Wyo. 1984); In re Adoption of RHA, 702 P.2d 1259, 1985 Wyo. LEXIS 516 (Wyo. 1985); Craft v. State, 2013 WY 41, 2013 Wyo. LEXIS 45 (Apr 9, 2013).

Quoted in

Makinen v. State, 737 P.2d 345, 1987 Wyo. LEXIS 448 (Wyo. 1987).

Cited in

Smallwood v. State, 748 P.2d 1141, 1988 Wyo. LEXIS 13 (Wyo. 1988); Punches v. State, 944 P.2d 1131, 1997 Wyo. LEXIS 118 (Wyo. 1997); Hodge v. State, 2015 WY 103, 2015 Wyo. LEXIS 118 (Aug. 12, 2015).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Incest by one spouse as a crime against other spouse within statute relating to competency of husband or wife to testify against the other, 11 ALR2d 646.

Consent as element of incest, 36 ALR2d 1299.

Prosecutrix as accomplice or victim, 74 ALR2d 705.

Admissibility, in incest prosecution, of evidence of alleged victim's prior sexual acts with persons other than accused, 97 ALR3d 967.

Emotional or psychological “blocking” or repression as tolling running of statute of limitations, 11 ALR5th 588.

Sexual intercourse between persons related by half blood as incest, 34 ALR5th 723.

§ 6-4-403. Abandoning or endangering children; penalties; “child”; disclosure or publication of identifying information; “minor victim”.

  1. No parent, guardian or custodian of a child shall:
    1. Abandon the child without just cause; or
    2. Knowingly or with criminal negligence cause, permit or contribute to the endangering of the child’s life or health by violating a duty of care, protection or support.
  2. No person shall knowingly:
    1. Cause, encourage, aid or contribute to a child’s violation of any law of this state;
    2. Cause, encourage, aid or permit a child to enter, remain or be employed in any place or premises used for prostitution or for professional gambling;
    3. Commit any indecent or obscene act in the presence of a child;
    4. Sell, give or otherwise furnish a child any drug prohibited by law without a physician’s prescription;
    5. Conceal or refuse to reveal to the parent, guardian, lawful custodian or to a peace officer the location of a child knowing that the child has run away from a parent, guardian or lawful custodian, except when the action of the defendant is necessary to protect the child from an immediate danger to the child’s welfare; or
    6. Cause, encourage, aid or contribute to the endangering of a child’s health, welfare or morals, by using, employing or permitting a child:
      1. In any business enterprise which is injurious or dangerous to the health, morals, life or physical safety of the child;
      2. In any place for purposes of begging;
      3. To be exhibited for the purpose of displaying any deformity of a child, except to physicians, nurses or other health professionals; or
      4. In a place used for prostitution.
      5. Repealed by Laws 1999, ch. 180, § 3.
  3. A person violating this section is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both. A person convicted of a second violation of this section is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.
  4. As used in this section, “child” means a person under the age of sixteen (16) years.
  5. Paragraph (b)(ii) of this section does not apply to crimes chargeable under W.S. 6-4-103(a)(i). Paragraph (b)(iv) of this section does not apply to crimes chargeable under W.S. 35-7-1036 .
  6. Prior to the filing of an information or indictment charging a violation of W.S. 6-4-403(b)(ii), (iii) or (vi)(D), neither the name of the person accused or the victim nor any other information reasonably likely to disclose the identity of the victim shall be released or negligently allowed to be released to the public by any public employee, except as authorized by the judge with jurisdiction over the criminal charges. The name of the person accused may be released to the public to aid or facilitate an arrest.
  7. After the filing of an information or indictment and absent a request to release the identity of a minor victim by the victim or another acting on behalf of a minor victim, the trial court shall restrict the disclosure or publication of information reasonably likely to identify the minor victim.
  8. Any person who willfully violates subsection (f) or (g) of this section or who willfully neglects or refuses to obey any court order made pursuant thereto is guilty of contempt and, upon conviction, shall be fined not more than seven hundred fifty dollars ($750.00) or be imprisoned in the county jail not more than ninety (90) days, or both.
  9. A release of a name or other information to the public in violation of the proscriptions of subsection (f) or (g) of this section shall not stand as a bar to the prosecution of a defendant or be grounds for dismissal of any charges against a defendant.
  10. As used in subsection (g) of this section, “minor victim” means a person under the age of eighteen (18) years.

History. Laws 1982, ch. 75, § 3; 1983, ch. 155, § 3; ch. 171, § 1; 1985, ch. 44, § 1; 1999, ch. 180, §§ 2, 3; 2004, ch. 42, § 1; 2005, ch. 129, § 1; 2011, ch. 176, § 1; 2012, ch. 98, § 1; 2018, ch. 108, § 1.

Cross references. —

For prohibition against employment of children under 16 years in immoral pursuits, see § 27-6-114 .

The 2004 amendment, in (f), deleted “or justice” following “authorized by the judge.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2005 amendment, effective July 1, 2005, rewrote (g) to prohibit release of minor victims' names to protect the welfare of the minor child except as specified; and in (k) raised the age defining a minor victim from under sixteen years to under eighteen years.

The 2011 amendment, redesignated former (b)(vi) and (b)(v) as (b)(v) and (b)(vi); and made related changes.

Laws 2011, ch. 176, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2011.

The 2012 amendment, in (e), substituted “Paragraph” for “Subsection” twice.

Laws 2012, ch. 98 § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2012.

The 2018 amendment, effective July 1, 2018, in (f), substituted “W.S. 6-4-403(b)(ii), (iii) or (vi)(D)” for “W.S. 6-4-403(b)(ii), (iii) or (v)(D) or (E).”

Editor's notes. —

There is no subsection (i) in this section as it appears in the printed acts.

Constitutionality. —

Subdivision (a)(ii) of this section is not unconstitutionally vague because it does not enumerate kinds of prohibited conduct; it is necessarily broad to achieve legislative purpose of protecting children against conduct exposing a minor child's life or health to danger, and is sufficiently definite to give notice concerning criminal conduct prohibited. Campbell v. State, 999 P.2d 649, 2000 Wyo. LEXIS 55 (Wyo. 2000).

Subdivision (a)(ii) of this section was not unconstitutionally vague as applied to mother charged with child endangerment in connection with burn injuries to child, since mother could reasonably understand that delaying eight hours in seeking medical care, or failing to protect child from abusive boyfriend, was prohibited criminal conduct. Campbell v. State, 999 P.2d 649, 2000 Wyo. LEXIS 55 (Wyo. 2000).

Wyo. Stat. Ann. § 6-4-403(b)(iii) was not unconstitutionally vague, U.S. Const. amends. V, XIV, as a determination of what was obscene or indecent was made in the context of the presence of a person of fifteen years or under; the statute was not vague as applied to defendant's conduct. Dougherty v. State, 2010 WY 127, 239 P.3d 1176, 2010 Wyo. LEXIS 135 (Wyo. 2010).

Child abuse as lesser-included offense. —

Trial court was not required to give an instruction that child abuse was a lesser-included offense of second-degree murder or manslaughter if the evidence showed that the accused was either guilty or not guilty of the higher grade of the offense. Under certain circumstances, however, child abuse or some related offense, such as assault and battery, could properly be the subject of a lesser-included-offense instruction. Jones v. State, 580 P.2d 1150, 1978 Wyo. LEXIS 212 (Wyo. 1978).

In a prosecution for second-degree murder, it was not error not to give certain offered instructions on the offense of child abuse where there was no suggestion in the evidence that the cause of death of a child was anything but the burns that she suffered at the residence where she lived with defendant. Abeyta v. State, 592 P.2d 705, 1979 Wyo. LEXIS 388 (Wyo. 1979).

Trial court did not abuse its discretion in allowing five-year old victim to testify. —

See Smith v. State, 714 P.2d 1201, 1986 Wyo. LEXIS 489 (Wyo. 1986).

Jury instruction.—

In a case involving child endangering/obscene act, there was no error in the trial court's refusal to admit a proposed jury instruction defining “presence” after it initially ruled that it would; the trial court had first agreed to give the instruction based on a similar charge in a companion case that was dismissed because the alleged victim was an infant. Delivering the proposed instruction would not have helped the jury better do their job. Dougherty v. State, 2016 WY 62, 373 P.3d 427, 2016 Wyo. LEXIS 70 (Wyo. 2016).

Applied in

Marshall v. State, 646 P.2d 795, 1982 Wyo. LEXIS 346 (Wyo. 1982); Stowe v. State, 2014 WY 97, 2014 Wyo. LEXIS 113 (Aug 1, 2014).

Quoted in

In re Matter of GP, 679 P.2d 976, 1984 Wyo. LEXIS 269 (Wyo. 1984); CB v. State, 749 P.2d 267, 1988 Wyo. LEXIS 10 (Wyo. 1988); Yellowbear v. State, 2008 WY 4, 174 P.3d 1270, 2008 Wyo. LEXIS 5 (Jan. 14, 2008).

Cited in

Kruger v. State, 2012 WY 2, 268 P.3d 248, 2012 Wyo. LEXIS 2 (Jan. 5, 2012).

Law reviews. —

See “Observations and Suggestions Concerning Wyoming Statutes Relating to Adoption Based on Abandonment,” 8 Wyo. L.J. 218.

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case note, “Evidence — Child Abuse and the Medical Diagnosis or Treatment Exception to the Hearsay Rule. Goldade v. State, 674 P.2d 721, 1983 Wyo. LEXIS 396 (Wyo. 1983),” see XX Land & Water L. Rev. 735 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

Jurisdiction of courts over custody of child denied medical care by its parent or custodian, 30 ALR2d 1138, 52 ALR3d 1118, 97 ALR3d 421.

Effect of nonresidence of parent or child on jurisdiction and venue of criminal charge for child desertion or nonsupport, 44 ALR2d 886.

Father's criminal liability for desertion of or failure to support child where divorce decree awards custody to another, 73 ALR2d 960.

Criminal liability for excessive or improper punishment inflicted on child by parent, 89 ALR2d 396.

Application, to illegitimate children, of criminal statutes relating to abandonment, neglect and nonsupport of children, 99 ALR2d 746.

Power of court to order medical treatment over parental religious objections for child whose life is not immediately endangered, 52 ALR3d 1118.

Who has custody or control of child within terms of penal statute punishing cruelty or neglect by one having custody or control, 75 ALR3d 933.

Homicide: sufficiency of evidence of mother's neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 ALR4th 724.

Civil liability for tobacco sales to minors, 55 ALR4th 1238.

Power of court or other public agency to order medical treatment over parental religious objections for child whose life is not immediately endangered, 21 ALR5th 248.

Parents' criminal liability for failure to provide medical attention to their children,118 ALR 5th 253.

§ 6-4-404. Violation of domestic violence order of protection; penalty.

  1. Any person who willfully violates a protection order issued pursuant to W.S. 35-21-104 or 35-21-105 or valid injunction or order for protection against domestic violence as defined in W.S. 35-21-109(a), is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  2. Repealed by Laws 2018, ch. 97, §  2.

History. Laws 1988, ch. 86, § 1; 1997, ch. 169, § 1; 2000, ch. 54, § 2; 2018, ch. 97, §§ 1, 2.

The 2018 amendments. — The first 2018 amendment, by ch. 97, § 1, effective July 1, 2018, in the introductory language of (a), substituted “issued pursuant to W.S. 35-1-104 or 35-21-105 or valid injunction or order for protection against domestic violence” for “or valid foreign protection order” preceding “as defined in W.S. 35-21-109(a).”

The second 2018 amendment, by ch. 97, § 2, effective July 1, 2018, repealed former (b) which read: "For purposes of subsection (a) of this section, “protection order” means an order of protection issued pursuant to W.S. 35-21-104 or 35-21-105 or any injunction or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person, including temporary and final orders issued by civil and criminal courts, other than support or child custody orders, whether obtained by filing an independent action or as a pendente lite order in another proceeding so long as any civil order was issued in response to a complaint, petition or motion filed by or on behalf of a person seeking protection."

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Editor's notes. —

Laws 2018, ch. 97, § 3, provides: “This act shall apply to crimes committed and orders of protection issued on or after the effective date of this act.”

Relation to Stalking. —

Crime of violating a protection order as defined by Wyo. Stat. Ann. § 6-4-404 is not a lesser-included offense of the crime of stalking as defined by Wyo. Stat. Ann. § 6-2-506(b) because the elements of the former simply are not a subset of the elements of the latter. Snow v. State, 2009 WY 117, 216 P.3d 505, 2009 Wyo. LEXIS 128 (Wyo. 2009).

Cited in

Sam v. State, 2008 WY 25, 177 P.3d 1173, 2008 Wyo. LEXIS 26 (Mar. 6, 2008); Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012).

§ 6-4-405. Endangering children; controlled substances; penalty.

  1. Notwithstanding W.S. 6-4-403(b)(iv), no person shall knowingly and willfully cause or permit any child to:
    1. Absorb, inhale or otherwise ingest any amount of methamphetamine;
    2. Remain in a room, dwelling or vehicle where the person knows methamphetamine is being manufactured or sold; or
    3. Enter and remain in a room, dwelling or vehicle that the person knows is being used to manufacture or store methamphetamines, or the hazardous waste created by the manufacture of methamphetamines.
  2. No person having the care or custody of a child shall knowingly and willfully permit the child to remain in a room, dwelling or vehicle where that person knows that methamphetamine is possessed, stored or ingested.
  3. Any person who violates any of the provisions of subsection (a) or (b) of this section is guilty of endangering a child punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 2004, ch. 128, § 1; 2012, ch. 98, § 1.

The 2012 amendment, in (c), substituted “subsection” for “subsections.”

Laws 2012, ch. 98 § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2012.

Effective dates. —

Laws 2004, ch. 128, § 2, makes the act effective July 1, 2004.

Prosecutorial misconduct. —

Even though the prosecutor committed misconduct by incorrectly stating that defendant found the methamphetamine behind a freezer in the garage rather than in the house, defendant was not prejudiced because where defendant found the drugs was irrelevant to a determination of whether he was guilty of violating Wyo. Stat. Ann. § 6-4-405(b). Butz v. State, 2007 WY 152, 167 P.3d 650, 2007 Wyo. LEXIS 163 (Wyo. 2007).

Jury instructions. —

Trial court did not err by failing to give a jury instruction on the definition of “knowingly” under Wyo. Stat. Ann. § 6-4-405(b) because reasonable jurors familiar with the English language would understand the instruction in accordance with the ordinary meaning and use of the word. Butz v. State, 2007 WY 152, 167 P.3d 650, 2007 Wyo. LEXIS 163 (Wyo. 2007).

In defendant's trial for endangering a child by knowingly and willfully allowing the child to enter and remain in a dwelling where defendant knew methamphetamine was stored in violation of Wyo. Stat. Ann. § 6-4-405(a)(iii), trial court committed plain error in failing to instruct the jury on an essential element of the crime, namely that defendant must have been found to have permitted the child to “enter” the dwelling; because there was some evidence to support defendant's contention that she was not present when the child entered the dwelling, trial court's failure to instruct on the “enter” element of the offense resulted in prejudice to defendant, and defendant was entitled to a new trial. Granzer v. State, 2008 WY 118, 193 P.3d 266, 2008 Wyo. LEXIS 124 (Wyo. 2008).

Sufficient evidence. —

Evidence was sufficient to support defendant's conviction of endangering his children by knowingly and willfully allowing them to remain in a dwelling where he knew methamphetamine was possessed in violation of Wyo. Stat. Ann. § 6-4-405(b) because he admitted that he had found the packet of methamphetamine and placed it in a tobacco can, where it was found by police. The evidence also showed that defendant brought his daughters with him to his roommate's house in August 2005 and that they were still in the home when police officers arrived to execute the search warrant,Butz v. State, 2007 WY 152, 167 P.3d 650, 2007 Wyo. LEXIS 163 (Wyo. 2007).

At defendant's trial on a charge of endangering a child by knowingly and willfully allowing the child to enter and remain in a dwelling where defendant knew methamphetamine was stored, in violation of Wyo. Stat. Ann. § 6-4-405(a)(iii), evidence established that methamphetamine was stored in the dwelling; although defendant claimed that evidence only established that methamphetamine located in the house was for her personal use and not storage, when defendant tried to hide a bag of methamphetamine in a recliner, she was without question placing the drugs in a location for preservation or later use. Granzer v. State, 2008 WY 118, 193 P.3d 266, 2008 Wyo. LEXIS 124 (Wyo. 2008).

Sufficient evidence supported defendant's child endangerment conviction for knowingly and willfully permitting a child to enter and remain in a dwelling wherein methamphetamine was stored. The jury could have reasonably inferred from defendant's knowledge of the child's presence in the trailer that defendant had at least tacitly given permission for the child to visit and stay with her mother. Granzer v. State, 2010 WY 130, 239 P.3d 640, 2010 Wyo. LEXIS 140 (Wyo. 2010).

Merger. —

When appellant was convicted of possession of a controlled substance precursor with the intent to engage in a clandestine laboratory operation, conspiracy to engage in a clandestine laboratory operation, and two counts of child endangerment in violation of this section, appellant was sentenced to terms of six to eight years imprisonment on each of the first two counts, with the two sentences to run concurrently. He was sentenced to terms of eighteen to twenty-four months on each of the last two counts, with these two sentences to run concurrently, but consecutive to the sentences on the first two charges; the district court was not required to merge the different crimes for sentencing under the Blockburger test, because the offenses were different as each required proof of an element that the other did not. Baker v. State, 2011 WY 123, 260 P.3d 268, 2011 Wyo. LEXIS 127 (Wyo. 2011).

Applied in

Morris v. State, 2009 WY 88, 210 P.3d 1101, 2009 Wyo. LEXIS 96 (July 10, 2009).

Cited in

Abeyta v. State, 2007 WY 142, 167 P.3d 1, 2007 Wyo. LEXIS 154 (Sept. 5, 2007).

§ 6-4-406. Permitting house parties where minors are present; exceptions; penalties.

  1. No person who owns, rents, leases, subleases or has control of any residence or premises shall allow a house party to take place at the residence or premises if any alcoholic liquor, malt beverage or drug prohibited by law to be possessed by a minor is possessed or consumed at the residence or premises by any minor and the person knowingly permitted the residence or premises to be used for that purpose.
  2. The provision of this section shall not apply to:
    1. The furnishing or giving of any alcoholic liquor or malt beverage by an adult to any person under the age of twenty-one (21) years, if the recipient is the legal ward, medical patient or member of the immediate family of the adult furnishing or giving the alcoholic liquor or malt beverage;
    2. The consumption, use or possession of a drug pursuant to a lawful prescription issued for the drug;
    3. Religious observance or prescribed medical treatment;
    4. The possession of alcoholic liquor, malt beverage or lawfully prescribed drugs incidental to lawful employment.
  3. Any person violating any provision of this section is guilty of a misdemeanor and, upon conviction, shall be punished by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  4. For purposes of this section:
    1. “Minor” means as defined in W.S. 8-1-102(a)(iii)(B);
    2. “Premises” includes, but is not limited to, a rented, leased or donated hotel or motel room, a manufactured home or any other public or private facility that is not licensed under chapter 4, title 12 of the Wyoming statutes.

History. Laws 2005, ch. 45, § 1.

Effective dates. —

Laws 2005, ch. 45, § 2, makes the act effective July 1, 2005.

Article 5. Desecrating Graves and Bodies

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability of cemetery in connection with conducting or supervising burial services, 42 ALR4th 1059.

Dead bodies: liability for improper manner of reinterment, 53 ALR4th 394.

§ 6-4-501. Opening graves and removing bodies; penalty; exception.

  1. A person who opens a grave or tomb and removes a body or remains of a deceased person for any purpose without the knowledge and consent of near relations of the deceased commits a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00).
  2. This section does not prohibit exhumation if ordered by a court of competent jurisdiction or if performed in accordance with W.S. 7-4-106(c).

History. Laws 1982, ch. 75, § 3; 2019, ch. 59, § 2.

The 2019 amendment, effective July 1, 2019, in (b), substituted “competent jurisdiction or if performed in accordance with W.S. 7-4-106(c)” for “competent jurisdiction.”

Cross references. —

As to who may have bodies in their possession, see § 35-4-607 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and application of graverobbing statutes, 52 ALR3d 701.

Liability for wrongful autopsy, 18 ALR4th 858.

Liability for desecration of graves and tombstones, 77 ALR4th 108.

§ 6-4-502. Mutilation of dead human bodies; concealing a felony; penalties; exceptions.

  1. Except as provided in this section, a person who dissects or mutilates a dead human body is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  2. This section does not apply to:
    1. The state health officer acting pursuant to W.S. 35-1-241 , or a physician or surgeon acting on the order of a court of competent jurisdiction, a coroner or other qualified officer;
    2. Dissection to determine the cause of death when authorized by the nearest living kin of deceased, a court of competent jurisdiction or other qualified officer;
    3. Unclaimed dead human bodies delivered by state or county authorities to regularly chartered institutions for scientific research or persons certified by a state or local law enforcement agency to train search and rescue animals;
    4. The necessary mutilation incident to embalming a dead human body when authorized by nearest living kin, a court of competent jurisdiction or other qualified officer; or
    5. Conduct authorized by the Revised Uniform Anatomical Gift Act, W.S. 35-5-201 through 35-5-225 .
  3. A person who mutilates a dead human body or disposes of a dead human body in a hidden, undisclosed or transient location in order to conceal a felony offense is guilty of a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2003, ch. 83, § 2; 2006, ch. 114, § 1; 2009, ch. 97, § 2; 2011, ch. 93, § 1; 2017, ch. 81, § 1.

Cross references. —

As to use of dead human bodies by embalming school for dissecting or teaching, see § 33-16-107 .

As to delivery of unclaimed bodies for anatomical study, see § 35-4-601 .

As to when certain bodies will not be delivered for anatomical study, see § 35-4-602 .

As to unlawful use of unclaimed human bodies taken for scientific research, see § 35-4-603 .

As to penalty for officer refusing to deliver body, see § 35-4-604 .

As to burial or cremation of bodies after use, see § 35-4-605 .

As to rules and regulations by state board of health relative to the use of unclaimed human bodies, see § 35-4-606 .

As to who may have bodies in their possession, see § 35-4-607 .

As to safe disposal of corpses in emergency circumstances, see § 35-1-241 .

The 2006 amendment substituted “35-5-119” for “35-5-109” in (b)(v).

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2009 amendment, effective July 1, 2009, in (b)(v) inserted “Revised” preceding “Uniform” and substituted “35-5-201 through 35-5-225 ” for “35-5-101 through 35-5-119.”

The 2011 amendment, in (b)(iii), added “or persons certified by a state or local law enforcement agency to train search and rescue animals.”

Laws 2011, ch. 93, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 2, 2011.

The 2017 amendment , effective July 1, 2017, in (a), substituted “five (5) years” for “three (3) years” and “ten thousand dollars ($10,000.00)” for “five thousand dollars ($5,000.00)”; in (b)(ii), added “a court of competent jurisdiction or other qualified officer”; and added (c).

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Fetal Equality?: The Equality State's Response to the Challenge of Protecting Unborn Children,” see XXXII Land & Water L. Rev. 193 (1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of statutes making it a criminal offense to mistreat or wrongfully dispose of dead body, 81 ALR3d 1071.

Liability for wrongful autopsy, 18 ALR4th 858.

Article 6. Bestiality.

History. Laws 2021, ch. 39, § 1.

§ 6-4-601. Bestiality; penalty.

  1. As used in this section:
    1. “Actor” means the person accused of bestiality;
    2. “Sexual act with an animal” means any act, between a person and an animal involving direct physical contact between the genitals of one and the mouth, anus or genitals of the other. A sexual act with an animal may be proved without evidence of penetration.
  2. An actor commits the crime of bestiality if the actor knowingly:
    1. Engages in a sexual act with an animal;
    2. Causes, aids or abets another in engaging in a sexual act with an animal;
    3. Uses any part of the actor’s body or an object to sexually stimulate an animal; or
    4. For the purpose of sexual gratification, the actor visually records a person engaging in a sexual act with an animal.
  3. Bestiality is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.
  4. This section shall not apply to or prohibit normal, ordinary or accepted practices involved in animal husbandry, artificial insemination or veterinary medicine.

History. Laws 2021, ch. 39, § 1.

Effective date. —

Laws 2021, ch. 39, § 2, makes the act effective July 1, 2021.

Chapter 5 Offenses Against Public Administration

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability of attorney for tampering with evidence, 49 ALR5th 619.

Article 1. Offenses by Public Officials

Cross references. —

As to sports bribery, see § 6-3-609 .

For constitutional provision that the legislature shall punish members for bribery and that such punishment shall not be a bar to criminal prosecution for the same offense, see art. 3, § 12, Wyo. Const.

For constitutional provision as to bribery of legislators and solicitation of bribery, and as to expulsion of legislators for bribery or solicitation, see art. 3, § 42, Wyo. Const.

For constitutional provision as to offer to bribe, see art. 3, § 43, Wyo. Const.

For constitutional provision as to witnesses in bribery charges, see art. 3, § 44, Wyo. Const.

For constitutional provision that legislature shall define corrupt solicitation and provide punishment therefor, see art. 3, § 45, Wyo. Const.

For constitutional provision as to bribery or coercion of or by the governor, see art. 4, § 10, Wyo. Const.

As to bribery of horse racing officials, see § 11-25-109 .

As to offering a bribe as an offense under the Election Code, see § 22-26-109 .

As to accepting a bribe as an offense under the Election Code, see § 22-26-110 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 ALR3d 689.

Where is embezzlement committed for purposes of territorial jurisdiction or venue, 80 ALR3d 514.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 ALR3d 822.

Venue in bribery cases where crime is committed partly in one county and partly in another, 11 ALR4th 704.

§ 6-5-101. Definitions.

  1. As used in this article:
    1. “Government” includes any branch, subdivision or agency of the state of Wyoming or any city, town, county, school district or special district within it;
    2. “Governmental function” includes any activity which a public servant is legally authorized to undertake on behalf of a government;
    3. “Harm” means loss, disadvantage or injury;
    4. “Pecuniary benefit” is benefit in the form of property;
      1. through (C) Repealed by Laws 2015, ch. 82 §  2.
    5. “Public officer” means a person who holds an office which is created or granted authority by the constitution or the legislature and who exercises a portion of the sovereign power of the state;
    6. “Public servant” means any public officer, employee of government, or any person participating, as juror, witness, advisor, consultant or otherwise, in performing a governmental function.

History. Laws 1982, ch. 75, § 3; 2015, ch. 82, §§ 1, 2.

Cross references. —

For an exception to the definition of “pecuniary benefit” in this section, see § 6-5-118 .

The 2015 amendment, effective July 1, 2015, at the end of the introductory language of (a)(iv), deleted “but does not include”; repealed former (a)(iv)(A) through (a)(iv)(C), pertaining to property not included in “pecuniary benefit”; substituted “public officer, employee of government, or” for “officer or employee of government, including legislators and judges, and”; and made related changes.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Internal Revenue Code. —

The federal Internal Revenue Code, referred to in subsection (a)(iv)(B), appears as 26 U.S.C.

Constitutionality. —

Section was not unconstitutionally vague as applied to defendant where the facts of the case did not demonstrate arbitrary or discriminatory enforcement of the section in that the jury concluded that defendant was a public servant performing a governmental function while another jury might have concluded otherwise. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Section is not unconstitutionally vague because it adequately specifies the standard of conduct it proscribes; the section clearly specifies that the offense of bribery is committed when a public servant solicits, accepts or agrees to accept pecuniary benefit or personal advantage upon an agreement or understanding that his action as a public servant will be influenced thereby. The standard of conduct proscribed is the agreement or acceptance that the public servant's actions will be influenced by the promises of pecuniary benefit or personal advantage; the definition of public servant contained in the preceding provision provides adequate notice that any person participating in a legally authorized act on behalf of a government is subject to penalty for violating the statute; the statute is not so vague as to specify no standard of conduct at all. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Defendant was a “public servant.” —

Defendant was a public servant performing a governmental function at the time he solicited and accepted ‘persuasion money’ from a minor's mother, as required by this section, because defendant, as an employee of the counseling agency, was participating in court-ordered treatment of the minor resulting from his involvement in the juvenile justice system. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Who is public official within meaning of federal statute punishing bribery of public official (18 U.S.C. § 201), 161 ALR Fed 491.

§ 6-5-102. Bribery; penalties.

  1. A person commits bribery, if:
    1. He offers, confers or agrees to confer any pecuniary benefit, testimonial, privilege or personal advantage upon a public servant as consideration for the public servant’s vote, exercise of discretion or other action in his official capacity; or
    2. While a public servant, he solicits, accepts or agrees to accept any pecuniary benefit, testimonial, privilege or personal advantage upon an agreement or understanding that his vote, exercise of discretion or other action as a public servant will thereby be influenced.
  2. Bribery is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Constitutionality. —

Section was not unconstitutionally vague as applied to defendant where the facts of the case did not demonstrate arbitrary or discriminatory enforcement of the section in that the jury concluded that he was a public servant performing a governmental function while another jury might have concluded otherwise. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Section is not unconstitutionally vague because it adequately specifies the standard of conduct it proscribes; the section clearly specifies that the offense of bribery is committed when a public servant solicits, accepts or agrees to accept pecuniary benefit or personal advantage upon an agreement or understanding that his action as a public servant will be influenced thereby. The standard of conduct proscribed is the agreement or acceptance that the public servant's actions will be influenced by the promises of pecuniary benefit or personal advantage; the definition of public servant contained in the preceding provision provides adequate notice that any person participating in a legally authorized act on behalf of a government is subject to penalty for violating the statute; the statute is not so vague as to specify no standard of conduct at all. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Plea arguments. —

The statute does not preclude the use of plea agreements. Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000); Capshaw v. State, 10 P.3d 560, 2000 Wyo. LEXIS 190 (Wyo. 2000).

Wyoming law does not require evidence of bilateral agreement between the briber and the bribee; the phrase “as consideration for” does not require proof that an alleged briber offered a pecuniary benefit pursuant to an agreement by the alleged bribee to reciprocate in some illicit manner. United States v. Davis, 965 F.2d 804, 1992 U.S. App. LEXIS 15391 (10th Cir. Wyo. 1992), cert. denied, 507 U.S. 910, 113 S. Ct. 1255, 122 L. Ed. 2d 653, 1993 U.S. LEXIS 1126 (U.S. 1993).

Habeas petition was untimely. —

State prisoner's Fed. R. Civ. P. 60(b)(1) motion was properly denied because the record made clear that his § 2254 petition was not timely filed under 28 U.S.C.S. § 2244(d) in that the district court properly included the entire time from the filing of the state postconviction motion to the eventual denial of certiorari of his conviction for bribery under Wyo. Stat. Ann. § 6-5-102(a). An additional 45-days of statutory tolling was not required because the prisoner's appeal of the denial of postconviction relief was not the procedurally proper manner to seek review pursuant to Wyo. Stat. Ann. § 7-14-107 and Wyo. R. App. P. 13.01(a). Stanton v. Wyoming Ag, 2010 U.S. App. LEXIS 21199 (Oct. 14, 2010).

Evidence held sufficient. —

Evidence that the defendant had bribed a public official in hopes of obtaining more favorable regulations of the insurance business was held sufficient to support a conviction under this section. United States v. Davis, 965 F.2d 804, 1992 U.S. App. LEXIS 15391 (10th Cir. Wyo. 1992), cert. denied, 507 U.S. 910, 113 S. Ct. 1255, 122 L. Ed. 2d 653, 1993 U.S. LEXIS 1126 (U.S. 1993).

Defendant was a public servant performing a governmental function at the time he solicited and accepted ‘persuasion money’ from a minor's mother, as required by this section, because defendant, as an employee of the counseling agency, was participating in court-ordered treatment of the minor resulting from his involvement in the juvenile justice system. Stanton v. State, 2006 WY 31, 130 P.3d 486, 2006 Wyo. LEXIS 34 (Wyo. 2006).

Cited in

Blakeman v. State, 2004 WY 139, 100 P.3d 1229, 2004 Wyo. LEXIS 179 (2004).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Admissibility of evidence tending to show other bribery or acceptance of bribes, 20 ALR2d 1012.

Solicitation or receipt of funds by public officer or employee for political campaign expenses or similar purposes as bribery, 55 ALR2d 1137.

Entrapment to commit bribery or offer to bribe, 69 ALR2d 1397.

Criminal liability of corporation for bribery or conspiracy to bribe public official, 52 ALR3d 1274.

Furnishing public official with meals, lodging or travel, or receipt of such benefits, as bribery, 67 ALR3d 1231.

Whether lack of authority of state public officer or employee to perform the act for which the bribe was offered affects the criminal offense of bribery, 73 ALR3d 374.

Who is public official within meaning of federal statute punishing bribery of public official (18 U.S.C. § 201), 161 ALR Fed 491.

§ 6-5-103. Compensation for past official behavior; penalties.

  1. A person commits an offense if he solicits, accepts or agrees to accept any pecuniary benefit as compensation for having, as a public servant, given a decision or vote favorable to another, or for having otherwise exercised a discretion in his favor, or for having violated his statutory duties. For purposes of this section, “compensation” does not include mere acceptance of an offer of employment.
  2. Compensation for past official behavior is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cited in

Blakeman v. State, 2004 WY 139, 100 P.3d 1229, 2004 Wyo. LEXIS 179 (2004).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-104. Soliciting unlawful compensation; penalties.

  1. A public servant commits soliciting unlawful compensation if he solicits, accepts or agrees to accept a pecuniary benefit for the performance of an official action knowing that he was required to perform that action without compensation or at a level of compensation lower than that requested.
  2. Soliciting unlawful compensation is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-105. Unlawful designation of provider of services or goods; penalties; affirmative defense.

  1. No public servant shall require or direct a bidder or contractor to deal with a particular person in procuring any goods or service required in submitting a bid to or fulfilling a contract with any government.
  2. A provision in an invitation to bid or a contract document which violates this section is against public policy and voidable.
  3. It is an affirmative defense that the defendant was a public servant acting within the scope of his authority exercising the right to reject any material, subcontractor, service, bond or contract tendered by a bidder or contractor because it did not meet bona fide specifications or requirements relating to quality, availability, experience or financial responsibility.
  4. A violation of this section is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 2015, ch. 82, § 1.

The 2015 amendment, effective July 1, 2015, in (d), substituted “A violation of this section” for “Designating a supplier.”

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-106. Conflict of interest; penalties; disclosure of interest and withdrawal from participation.

  1. Except as provided by subsection (b) of this section, a public servant commits an offense if he requests or receives any pecuniary benefit, other than lawful compensation, on any contract, or for the letting of any contract, or making any appointment where the government employing or subject to the discretion or decisions of the public servant is concerned.
  2. If any public servant discloses the nature and extent of his pecuniary interest to all parties concerned therewith and does not participate during the considerations and vote thereon and does not attempt to influence any of the parties and does not act for the governing body with respect to the contracts or appointments, then the acts are not unlawful under subsection (a) of this section. Subsection (a) of this section does not apply to the operation, administration, inspection or performance of banking and deposit contracts or relationships after the selection of a depository.
  3. Violation of subsection (a) of this section is a misdemeanor punishable by a fine of not more than five thousand dollars ($5,000.00).

History. Laws 1982, ch. 75, § 3.

Cross references. —

For constitutional provision relative to interest of officer in contracts for supplies for legislature and departments, see art. 3, § 31, Wyo. Const.

As to other statutory provision relative to interest of officers in public contracts or public works, see § 16-6-118 .

Conflicting action nullified unless subsection (b) compliedwith. —

A person is not disqualified from holding an office or position that conflicts with other interests of that person if he complies with the requirements of the provisos of subsection (b). Otherwise, the contract or other action is a nullity and the person is subject to criminal prosecution. Coyne v. State, 595 P.2d 970, 1979 Wyo. LEXIS 424 (Wyo. 1979).

Qualified exception to prohibition did not eliminate questionof incompatibility. —

While the legislature intended to permit a qualified exception to conflict of interest prohibitions by amending former conflict of interest statute and § 16-6-118 , it would be an unwarranted construction of the amendatory legislation to hold that it had eliminated any question of incompatibility. Haskins v. State, 516 P.2d 1171, 1973 Wyo. LEXIS 192 (Wyo. 1973) (commented on in IX Land & Water L. Rev. 667 (1974)).

Incompatibility between office of member of board of trustees of a school district and employment as teacher in that district was not eliminated by qualified exception to conflict of interest prohibitions. Haskins v. State, 516 P.2d 1171, 1973 Wyo. LEXIS 192 (Wyo. 1973) (commented on in IX Land & Water L. Rev. 667 (1974)).

Spouse as school trustee compatible with spouse as school employee.—

Husband and wife do not constitute a single entity for the purpose of incompatibility of office and position which will prevent one of them, as trustee of a school district, from exercising impartial and independent judgment in the public interest on a matter in which the other is involved as an employee of the district. Coyne v. State, 595 P.2d 970, 1979 Wyo. LEXIS 424 (Wyo. 1979).

Contract with coroner to supply medicine and medical attendance to paupers of the county was not a contract within the provisions of the conflict of interest statute, though the office of coroner was a lucrative office. Baker v. Board of Comm'rs, 9 Wyo. 51, 59 P. 797, 1900 Wyo. LEXIS 2 (Wyo. 1900).

Quo warranto remedy inapplicable. —

Where the legislature has recognized the existence of conflicts of interest and has directed the procedure and remedies applicable thereto, the remedy of quo warranto is inapplicable. Coyne v. State, 595 P.2d 970, 1979 Wyo. LEXIS 424 (Wyo. 1979).

Law reviews. —

See case note, “Conflict of Interest — Legal Interests vs. Relational Interests. Coyne v. State ex rel. Thomas, 595 P.2d 970, 1979 Wyo. LEXIS 424 (Wyo. 1979),” XV Land & Water L. Rev. 349 (1980).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity and construction of enactments requiring public officers to disclose financial condition and relationships, 37 ALR3d 1338.

§ 6-5-107. Official misconduct; penalties.

  1. A public servant commits a misdemeanor punishable by a fine of not more than five thousand dollars ($5,000.00), if, with intent to obtain a pecuniary benefit or maliciously to cause harm to another, he knowingly:
    1. Commits an act relating to his official duties that the public servant does not have the authority to undertake;
    2. Refrains from performing a duty imposed upon him by law; or
    3. Violates any statute relating to his official duties.
  2. A public officer commits a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) if he intentionally fails to perform a duty in the manner and within the time prescribed by law.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2015, ch. 82, § 1.

The 2015 amendment, effective July 1, 2015, in the introductory language of (a), deleted “or public officer” following “public servant”; rewrote (a)(i), which formerly read: “Commits an unauthorized act relating to his official duties.”

Cited in

Bohling v. State, 2017 WY 7, 388 P.3d 502, 2017 Wyo. LEXIS 7 (Wyo. 2017).

Quoted in

Town of Upton v. Whisler, 824 P.2d 545, 1992 Wyo. LEXIS 4 (Wyo. 1992).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-108. Issuing false certificate; penalties.

  1. A public servant commits a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if he makes and issues an official certificate or other official written instrument which he is authorized to make and issue containing a statement which he knows to be false with intent to obtain a benefit or maliciously to cause harm to another.
  2. A public servant commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he makes and issues an official certificate or other official written instrument which he is authorized to make and issue containing a statement which he knows to be false.

History. Laws 1982, ch. 75, § 3.

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

As to notary acting after term expires, see § 32-1-109 .

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-109. [Repealed.]

Repealed by Laws 1984, ch. 44, § 3.

Cross references. —

For provisions as to larceny, see § 6-3-402 .

Editor's notes. —

This section, which derived from Laws 1982, ch. 75, § 3, related to embezzlement of public property.

§ 6-5-110. Wrongful appropriation of public property; penalties.

  1. A public servant who lawfully or unlawfully comes into possession of any property of any government and who, with intent temporarily to deprive the owner of its use and benefit, converts any of the public property to his own use or any use other than the public use authorized by law is guilty of wrongful appropriation of public property.
  2. Wrongful appropriation is a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both.
  3. This section shall not apply to limited use of government property or resources for personal purposes if the use does not interfere with the performance of a governmental function and either the cost or value related to the use is de minimis or the public servant reimburses the government for the cost of the use.

History. Laws 1982, ch. 75, § 3; 2015, ch. 82, § 1.

Cross references. —

For provision that no warrant shall be drawn by the auditor or paid by the treasurer unless funds have been previously appropriated for that purpose, see § 9-2-1005 .

For provision prohibiting state officers from creating expenses in excess of appropriation, see § 9-4-102 .

For provision that city treasurer shall keep all moneys belonging to the city separate and distinct from their own and not directly or indirectly use the city money for his own use and benefit, see § 15-3-210 .

As to misappropriation by county treasurer of funds derived from the sale of bonds, see § 18-4-506 .

As to penalty for misappropriation of school bond funds by trustees, see § 21-13-716 .

The 2015 amendment, effective July 1, 2015, added (c).

Cited in

State v. Faulkner, 75 Wyo. 104, 292 P.2d 1045, 1956 Wyo. LEXIS 3 (1956); Bohling v. State, 2017 WY 7, 388 P.3d 502, 2017 Wyo. LEXIS 7 (Wyo. 2017).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-111. Failure or refusal to account for, deliver or pay over property; penalties.

A public servant who fails or refuses to account for, deliver and pay over property received by virtue of the office, when legally required by the proper person or authority is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3.

Cross references. —

For provision that failure to account for money paid into and disbursed by the circuit court constitutes misconduct and cause for removal from office, see § 5-9-148 .

For provision requiring each circuit court to submit annual accounts to the director, see § 5-9-151 .

For provision requiring each state officer and employee receiving revenue on behalf of the state to pay to the state treasurer all such revenue, see § 9-1-409 .

For provision that all outgoing officials shall deliver all public records to their successors, see § 9-2-410 .

As to town treasurers' accounts, see § 15-2-203 .

For provision that failure of the city treasurer to render his account as cause for removal from office, see § 15-3-208 .

As to the city treasurer keeping accounts of all monies received, see § 15-3-209 .

For provision that violation of requirement that city treasurer keep city funds separate from his own funds shall subject him to removal from office, see § 15-3-210 .

For provision requiring sheriff to be accountable for monies and property coming into his office, see § 18-3-609 .

For provision requiring all county officials to pay over monies received to the county treasurer, and for penalty for failure to do so, see § 18-3-814 .

Larceny and failure to account merge. —

Where evidence of embezzlement by larceny is also evidence used to support the charge of a public official's failure to account, these offenses have merged. Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Demand for the money is required under the provisions of this section. Edelhoff v. State, 5 Wyo. 19, 36 P. 627, 1894 Wyo. LEXIS 14 (Wyo. 1894).

Demand for money not required. —

Any public office having regular responsibility for the receipt of public funds within the purview of this section is legally required to account as a designated responsibility of the position held, and further demand is not required. Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Presumption that funds collected by officer. —

In an embezzlement prosecution against a clerk of the district court, required to collect fees, it must be presumed the clerk performed that duty and had monies to account for. State v. Campbell, 42 Wyo. 252, 293 P. 365, 1930 Wyo. LEXIS 49 (Wyo. 1930), overruled, Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988).

Cited in

Roberts v. Board of County Comm'rs, 8 Wyo. 177, 56 P. 915, 1899 Wyo. LEXIS 7 (1899); State v. Faulkner, 75 Wyo. 104, 292 P.2d 1045, 1956 Wyo. LEXIS 3 (1956); Western Sur. Co. v. Town of Evansville, 675 P.2d 258, 1984 Wyo. LEXIS 245 (Wyo. 1984).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-112. Mistreating persons in institutions or mental hospital; penalties; no bar to other criminal action.

  1. A person commits a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both, if he:
    1. Is an employee of, or is responsible for the care of a person in, a reformatory, penal or charitable institution or a mental hospital and treats him with unnecessary severity, harshness or cruelty; or
    2. Is an officer required by law to perform an act with regard to persons in a reformatory, penal or charitable institution or a mental hospital and he intentionally refuses or neglects to perform the act.
  2. This section does not bar prosecution, under any other criminal statute, of a person responsible for the care of a person in a reformatory, penal or charitable institution or a mental hospital, even if he also violates this section.

History. Laws 1982, ch. 75, § 3.

Cross references. —

As to rights of patients in hospitals for the mentally ill, see § 25-10-120 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of state prison authorities to administer neuroleptic or antipsychotic drugs to prisoner without his or her consent—state cases, 75 ALR4th 1124.

Validity under federal law of prison regulations relating to inmates' hair length and style, 62 ALR Fed 479.

§ 6-5-113. Removal from office after judgment of conviction.

A judgment of conviction rendered under W.S. 6-5-102 through 6-5-112 and 6-5-117 against any public servant, except state elected officials, supreme court justices, district court judges and circuit court judges, shall result in removal from office or discharge from employment.

History. Laws 1982, ch. 75, § 3; 2000, ch. 24, § 4.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes conviction within statutory or constitutional provision making conviction of crime ground of disqualification for removal from, or vacancy in, public office, 10 ALR5th 139.

§ 6-5-114. Notarial officers; issuance of certificate without proper acknowledgment; penalties.

A notarial officer commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he signs and affixes his stamp to a certificate of acknowledgment when the party executing the instrument has not first acknowledged the execution of the instrument in the presence of, as defined in W.S. 32-3-102(a)(iii), the notarial officer, if by law the instrument is required to be recorded or filed and cannot be filed without a certificate of acknowledgment signed and sealed by a notarial officer.

History. Laws 1982, ch. 75, § 3; 2011, ch. 113, § 2; 2021, ch. 27, § 2.

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

As to acknowledgment of conveyances, see § 34-1-113 .

As to acknowledgment when conveyance is to be recorded, see § 34-1-118 .

For Wyoming Uniform Law on Notarial Acts, see § 34-26-101 et seq.

The 2011 amendment, effective July 1, 2011, substituted “notarial officer” for “notary public” throughout, and “in the presence of, as defined in W.S. 34-26-101(b)(xxi)” for “before.”

The 2021 amendment, effective July 1, 2021, substituted "stamp" for "seal" following "affixes his" and "32-3-102(a)(iii)" and "34-26-101(b)(xxi)."

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-115. Neglect or refusal of ministerial officer to perform duty in criminal case; unnecessary delay in serving warrant; penalties.

  1. A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than five hundred dollars ($500.00), or both, if he is:
    1. A clerk, sheriff, coroner or other ministerial officer who refuses or neglects to perform any duty he is required by law to perform in any criminal case or proceeding; or
    2. An officer who unnecessarily delays serving a warrant legally issued in any criminal case when it is his duty to execute and in his power to serve the warrant.

History. Laws 1982, ch. 75, § 3.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Sufficiency of indictment. —

See McCarthy v. Territory, 1 Wyo. 311, 1876 Wyo. LEXIS 18 (Wyo. 1876).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-116. Public officer acting before qualifying; penalty.

An elected or appointed public officer or his deputy commits a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00) if he performs any duty of his office without taking and subscribing the oath prescribed by law or before giving and filing the bond required by law. This section shall not apply to training and similar minor preparation for taking office.

History. Laws 1982, ch. 75, § 3; 2015, ch. 82, § 1.

The 2015 amendment, effective July 1, 2015, added the last sentence.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Evidence sufficient.—

Evidence was sufficient to sustain a conviction of performing duties of office before qualifying, Wyo. Stat. Ann. § 6-5-116 (2013) where a sheriff’s statutory duties pertaining to municipal fiscal procedures qualified as any duty of his office under § 6-5-116 , and the witness testimony showed that defendant had performed a sheriff’s duty by purchasing uniforms and that the purchase occurred before defendant was sworn in. Haskell v. State, 2018 WY 85, 422 P.3d 955, 2018 Wyo. LEXIS 90 (Wyo. 2018).

§ 6-5-117. Public officer demanding kickback from deputy; penalties.

A public officer who requires a deputy appointed by him to divide or pay back to the officer a part of the deputy’s salary or requires any type of compensation of any form in return for the deputy’s continued employment is guilty of a felony punishable by imprisonment for not more than three (3) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2015, ch. 82, § 1.

The 2015 amendment, effective July 1, 2015, substituted “deputy's salary or requires any type of compensation of any form in return for the deputy's continued employment” for “legal fees of the deputy.”

Cross references. —

As to blackmail generally, see § 6-2-402 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes offense of official oppression, 83 ALR2d 1007.

§ 6-5-118. Conflict of interest; public investments; disclosure required; penalty; definitions.

  1. No public servant who invests public funds for a unit of government, or who has authority to decide how public funds are invested, shall transact any personal business with, receive any pecuniary benefit from or have any financial interest in any entity, other than a governmental entity, unless he has disclosed the benefit or interest in writing to the body of which he is a member or entity for which he is working. Disclosures shall be made annually in a public meeting and shall be made part of the record of proceedings. The public servant shall make the written disclosure prior to investing any public funds in any entity, other than a governmental entity, which:
    1. Provides any services related to investment of funds by that same unit of government; or
    2. Has a financial interest in any security or other investment made by that unit of government.
  2. A violation of subsection (a) of this section is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  3. The definitions in W.S. 6-5-101 shall apply to this section except “pecuniary benefit” shall also include benefits in the form of services such as, but not limited to, transportation and lodging. As used in this section, “personal business” means any activity that is not a governmental function as defined in W.S. 6-5-101 (a)(ii).

History. Laws 1997, ch. 3, § 1; 2015, ch. 82, § 1.

The 2015 amendment, effective July 1, 2015, deleted “public officer or” preceding “public servant” near the beginning of the first and second sentences.

Article 2. Hindering Government Operations

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-5-201. Definitions.

  1. As used in this article:
    1. “Emergency” means a crime or a situation which could result in a public official responding in an authorized emergency vehicle or which could jeopardize public safety and could result in the evacuation of any area, building, structure, vehicle or other place people may enter;
    2. “Official detention” means arrest, detention in a facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or detention in any manner and in any place for law enforcement purposes. “Official detention” does not include supervision on probation or parole or constraint incidental to release on bail;
    3. “Relative” means a grandparent, grandchild, mother, father, husband, wife, sister, brother or child; and
    4. “Render assistance” means to:
      1. Harbor or conceal the person;
      2. Warn the person of impending discovery or apprehension, excluding an official warning given in an effort to bring the person into compliance with the law;
      3. Provide the person with money, transportation, weapon, disguise or other thing to be used in avoiding discovery or apprehension;
      4. By force, intimidation or deception, obstruct anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction or punishment of the person; or
      5. Conceal, destroy or alter any physical evidence that might aid in the discovery, detection, apprehension, prosecution, conviction or punishment of the person.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Credit for time spend in substance abuse treatment facility. —

Since defendant could not be charged with escape if he had left the inpatient substance abuse treatment facility, he was not entitled to credit for time spent there. Yearout v. State, 2013 WY 133, 311 P.3d 180, 2013 Wyo. LEXIS 139 (Wyo. 2013).

No “arrest” when merely intention to seize. —

In Wyoming, an arrest is effectuated when there is the taking, seizing or detaining of the person of another by touching or putting hands on him, or by any act which indicates an intention to take him into custody and which subjects him to the actual control and will of the person making the arrest, or by the consent of the person to be arrested. Such arrest must also be made under real or pretended legal authority and result in the actual or constructive seizure or detention of the person arrested or in his voluntary submission into custody. A person cannot be said to be under arrest when merely an intention or attempt to take, seize or detain him occurs, resulting in no seizure or control over the person. Phillips v. State, 760 P.2d 388, 1988 Wyo. LEXIS 106 (Wyo. 1988).

Resisting arrest, escaping detention, differentiated. —

Where the defendant escaped while police officers attempted to arrest him, he was entitled to an instruction which differentiated between resisting arrest and escaping detention following an arrest. Oien v. State, 797 P.2d 544, 1990 Wyo. LEXIS 85 (Wyo. 1990).

Temporary leave does not confer parole status. —

A prisoner committed “escape” for purposes of § 6-5-206 when he failed to return on time from a temporary leave granted him to talk with an attorney concerning a worker's compensation claim; his signing of a form captioned “Temporary Parole Agreement” before he was released did not convert his leave into parole under subsection (a)(ii). Westmark v. State, 864 P.2d 1031, 1993 Wyo. LEXIS 184 (Wyo. 1993).

Credit for time spent in Community Alternatives of Casper program. —

Following revocation of his probation, defendant was not entitled to presentence confinement credit for time served in a nonresident Community Alternatives of Casper program as a condition of his probation. White v. State, 934 P.2d 745, 1997 Wyo. LEXIS 53 (Wyo. 1997).

Credit for time spent in Surveillance and Treatment Program. —

Where defendant was placed on probation and ordered to participate in Surveillance and Treatment of Offender Program (S.T.O.P.), defendant was not eligible for credit for the time spent in the program when her probation was revoked, since the defendant could not be charged with escape from S.T.O.P., and S.T.O.P. was not a community correctional center. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

Because defendant's participation in the Surveillance and Treatment of Offenders Program (S.T.O.P.) was a condition of his probation and he was not subject to official detention, defendant was not entitled to be awarded a presentence confinement credit for the time that he was in the S.T.O.P. Blouir v. State, 950 P.2d 53, 1997 Wyo. LEXIS 155 (Wyo. 1997).

Credit for time in alcoholism treatment facility. —

When a probationer spends time at an alcoholism treatment facility as a condition of his probation, he is entitled to receive a credit for that time toward his sentence if a charge of escape from official detention will lie. Yellowbear v. State, 874 P.2d 241, 1994 Wyo. LEXIS 62 (Wyo. 1994).

Where defendant was arrested for felony attempted larceny and released from pretrial custody to participate in a residential substance abuse treatment facility, defendant was not in official detention for purpose of this section and was not subject to a charge of escape from official detention; therefore, defendant was not entitled to credit against his prison sentence for that time period. Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Wyo. 2012).

Jury not instructed prohibited conduct had to be undertaken voluntarily. —

Conviction for escape was reversed where cumulative effect of an instructional error and the prosecutor's misstatements Wyo. Stat. Ann. § 6-5-206(a)(i) created verdict that could not be trusted, because the jury had not been instructed that it had to find that appellant had acted voluntarily; even a general intent crime required a showing that the prohibited conduct was undertaken voluntarily. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Constraint incident to release on bail is not official detention. —

Credit for time served due to constraint incidental to release on bail has not been required by the Supreme Court of Wyoming, given the dictate of this section that such circumstances do not constitute “official detention.” Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Wyo. 2012).

Illegal sentence. —

Because Wyo. Stat. Ann. § 7-13-107(c) does not authorize the imposition of probation and detention at the same time, which are incompatible and mutually exclusive as indicated in this section and in Wyo. Stat. Ann. § 7-13-401(a)(x) as construed together, a sentence that deemed defendant both on probation and in detention during release from jail for alcohol treatment was illegal. Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 Wyo. LEXIS 76 (Wyo. 2010).

Applied in

Lee v. State, 2 P.3d 517, 2000 Wyo. LEXIS 68 (Wyo. 2000).

Quoted in

Stephens v. State, 734 P.2d 555, 1987 Wyo. LEXIS 413 (Wyo. 1987); Peper v. State, 768 P.2d 26, 1989 Wyo. LEXIS 22 (Wyo. 1989); Craig v. State, 804 P.2d 686, 1991 Wyo. LEXIS 11 (Wyo. 1991); Jenkins v. State, 2002 WY 107, 49 P.3d 1028, 2002 Wyo. LEXIS 113 (Wyo. 2002).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-202. Accessory after the fact; penalties.

  1. A person is an accessory after the fact if, with intent to hinder, delay or prevent the discovery, detection, apprehension, prosecution, detention, conviction or punishment of another for the commission of a crime, he renders assistance to the person.
  2. An accessory after the fact commits:
    1. A felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both, if the crime is a felony and the person acting as an accessory is not a relative of the person committing the crime;
    2. A misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if:
      1. The crime is a felony and the person acting as an accessory is a relative of the person committing the crime;
      2. The crime is a misdemeanor and the person acting as an accessory is not a relative of the person committing the crime; or
      3. The principal is a minor.
    3. No violation if the crime is a misdemeanor and the person acting as an accessory is a relative of the person committing the crime.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to harboring a sex offender, see § 7-19-308 .

As to age of majority, see § 14-1-101 .

Knowledge as element. —

Knowledge of whether the underlying crime is a felony is not an element of the crime of felony accessory after the fact. Bush v. State, 908 P.2d 963, 1995 Wyo. LEXIS 230 (Wyo. 1995).

Denying knowledge of principal's involvement. —

Merely denying knowledge of the principal's involvement in a crime will not give rise to a charge of accessory after the fact. Stephens v. State, 734 P.2d 555, 1987 Wyo. LEXIS 413 (Wyo. 1987).

Miranda warnings. —

Where defendant's post-Miranda, voluntary statement confirmed that defendant had provided false statements to the police with the intent to hinder, delay, or obstruct their investigation and render assistance to the assailant, the improper admission of defendant's unwarned statements did not have a substantial and injurious effect or influence on the jury, so the admission of the evidence was harmless error and defendant's conviction for accessory after the fact was affirmed. Lewis v. State, 2002 WY 92, 48 P.3d 1063, 2002 Wyo. LEXIS 97 (Wyo. 2002).

Sufficient evidence. —

There was sufficient evidence that a suspect killed a victim and that defendant assisted in the killing as an accessory after the fact pursuant to Wyo. Stat. Ann. § 6-5-202 . Due to defendant's lack of credibility, her inconsistent stories, and the fact that the suspect had motive, a rational trier of fact could have found beyond a reasonable doubt that the suspect committed the crime with defendant's help. Williams v. State, 2006 WY 131, 143 P.3d 924, 2006 Wyo. LEXIS 143 (Wyo. 2006).

Stated in

Jahnke v. State, 692 P.2d 911, 1984 Wyo. LEXIS 351 (Wyo. 1984).

Cited in

State v. Weekley, 40 Wyo. 162, 275 P. 122, 1929 Wyo. LEXIS 28 , 64 A.L.R. 420 (1929); Brown v. State, 953 P.2d 1170, 1998 Wyo. LEXIS 15 (Wyo. 1998); King v. State, 2002 WY 27, 40 P.3d 700, 2002 Wyo. LEXIS 28 (Wyo. 2002).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For case notes, “Constitutional Law—Double Jeopardy—A Constitutional Protection or a Formality to Sidestep in Successive Prosecutions? Harvey v. State, 835 P.2d 1074, 1992 Wyo. LEXIS 75 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 661 (1993).

Am. Jur. 2d, ALR and C.J.S. references. —

Acquittal of principal, or his conviction of lesser degree of offense, as affecting prosecution of accessory, or aider and abettor, 9 ALR4th 972.

§ 6-5-203. Compounding; penalties.

  1. A person commits compounding if, knowing of the actual commission of a crime or the violation of a statute for which a penalty or forfeiture is prescribed, he takes property or accepts an offer of property upon an agreement or understanding, express or implied, to:
    1. Compound or conceal the crime or violation;
    2. Abstain from prosecuting the crime or violation;
    3. Withhold evidence of the crime or violation; or
    4. Encourage or procure the absence of witnesses or testimony at the examination or trial of the crime or violation.
  2. A person commits compounding of a crime or a violation of a statute for which a penalty or forfeiture is prescribed if he takes property or accepts an offer of property upon an agreement or understanding, express or implied, to:
    1. Compound, discontinue or delay a pending prosecution for the crime or violation;
    2. Withhold evidence of the crime or violation; or
    3. Encourage or procure the absence of witnesses or other testimony at the examination or trial of the crime or violation.
  3. Compounding is:
    1. A misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than two thousand dollars ($2,000.00), or both:
      1. Under subsection (b) of this section;
      2. If a misdemeanor is compounded; or
      3. If a violation of a statute for which a penalty or forfeiture is prescribed is compounded.
    2. A felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both if a felony punishable by imprisonment is compounded;
    3. A felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both, if a felony punishable by death is compounded.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

No compounding of felony without proof of commission of felony.—

Crime of compounding a felony is a specific statutory crime, so that where no felony charges have been filed nor proof presented of the actual commission of a felony, no compounding of a felony can be found to exist. Dixon v. Williams, 584 P.2d 1078, 1978 Wyo. LEXIS 236 (Wyo. 1978).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-204. Interference with peace officer; disarming peace officer; penalties.

  1. A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he knowingly obstructs, impedes or interferes with or resists arrest by a peace officer while engaged in the lawful performance of his official duties.
  2. A person who intentionally and knowingly causes or attempts to cause bodily injury to a peace officer engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than ten (10) years.
  3. A person who intentionally and knowingly disarms a peace officer of his firearm while that peace officer is engaged in the lawful performance of his official duties is guilty of a felony punishable by imprisonment for not more than five (5) years.
  4. For the purposes of this section only, “peace officer” means as defined in W.S. 6-1-104(a)(vi) and also includes any person employed by the state department of corrections on a full-time basis as a probation and parole agent or supervisor to assess, supervise, monitor, track, visit or control persons who are released from incarceration under conditions of parole or who are sentenced under conditions of probation.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1995, ch. 130, § 1; 2008, ch. 103, § 1.

The 2008 amendment, effective July 1, 2008, added (d).

Subsection (a) is not unconstitutionally vague, although whether or not a particular action obstructs, impedes or interferes with the law enforcement officer in the performance of his duties is for the determination of the fact finder. Newton v. State, 698 P.2d 1149, 1985 Wyo. LEXIS 477 (Wyo. 1985).

General intent crime. —

Because an accused does not have to intend a further act or future consequence beyond the injury to a peace officer, the completed offense described in Wyo. Stat. Ann. § 6-5-204(b) is a general intent crime. Mowery v. State, 2011 WY 38, 247 P.3d 866, 2011 Wyo. LEXIS 42 (Wyo. 2011).

Highway patrolman empowered as peace officer. —

Section 24-12-103 clearly vests the powers of a peace officer in state highway patrolmen, and therefore any interference with a highway patrolman, while he is engaged in the lawful performance of his duty, is covered by the terms of this section. Tillett v. State, 637 P.2d 261, 1981 Wyo. LEXIS 400 (Wyo. 1981).

Legality of defendant's arrest is elemental to his alleged crime. Interference with a peace officer is not a crime unless the officer is “engaged in the lawful performance of his official duties.” Where the officer was not lawfully in the bar where the defendant worked, the defendant's conviction could not stand. Mickelson v. State, 906 P.2d 1020, 1995 Wyo. LEXIS 199 (Wyo. 1995).

Requisite intent to commit act can be inferred from the facts and totality of the circumstances existing at the time the criminal act is complete. Tillett v. State, 637 P.2d 261, 1981 Wyo. LEXIS 400 (Wyo. 1981).

Original intent irrelevant. —

Although defendant's original intent may have been to go to his mother in the courtroom and hug her, once the officers blocked his path and directed him to leave the courtroom and he lashed out at the deputy, swatting deputy's arm away, pushing him, swinging at him, and finally wrestling with the deputy, defendant's original intent was irrelevant. Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999).

Testimony as to prior bad acts admissible. —

Testimony of six police officers relating to prior bad acts of the defendant involving altercations with the officers was properly admitted to show intent and identity. Pena v. State, 780 P.2d 316, 1989 Wyo. LEXIS 199 (Wyo. 1989).

Use of actual, direct or threatened force is not indispensable to the commission of the crime of interfering with a police officer. Tillett v. State, 637 P.2d 261, 1981 Wyo. LEXIS 400 (Wyo. 1981).

But mere remonstrances or criticisms of officer are not ordinarily sufficient to sustain a charge of interference. Tillett v. State, 637 P.2d 261, 1981 Wyo. LEXIS 400 (Wyo. 1981).

Although verbal abuse alone may become sufficient to constitute the crime where its intensity, or the totality of several acts, is such as to amount to an inference with an officer in the performance of his duty. Tillett v. State, 637 P.2d 261, 1981 Wyo. LEXIS 400 (Wyo. 1981).

Conviction issued prior to request for competency evaluation.—

Defendant was properly convicted of interference with a peace officer because his conviction was issued prior to his request for a second competency evaluation; therefore, the trial court did not err in failing to suspend proceedings and order a second competency evaluation. Marshall v. State, 2016 WY 119, 385 P.3d 304, 2016 Wyo. LEXIS 132 (Wyo. 2016).

Evidence sufficient. —

Evidence was sufficient to sustain a conviction for interference with a peace officer where defendant used abusive language to the officer, told that officer that the officer could not investigate a disturbance complaint, and positioned himself between the stairs and the officer. Brown v. State, 2005 WY 37, 109 P.3d 52, 2005 Wyo. LEXIS 43 (Wyo. 2005).

Evidence, including deputy's testimony that defendant kicked him and testimony of defendant's roommate that defendant thrashed about and knocked a group down the stairs, was sufficient to convict defendant of felony interference with a peace officer in violation of this section. Regardless of which theory was asserted, defendant was adequately advised of the charge against him under U.S. Const. amend. VI and Wyo. Const. art. 1, § 10. Hulsy v. State, 2009 WY 81, 209 P.3d 901, 2009 Wyo. LEXIS 101 (Wyo. 2009).

Peace officer interfered with by giving of false information.—

A peace officer was interfered with in the lawful performance of his official duties by the giving of false information by a person stopped for speeding who, when asked for his name, address and date of birth, gave his brother's name and birth date. Newton v. State, 698 P.2d 1149, 1985 Wyo. LEXIS 477 (Wyo. 1985).

Person convicted of resisting arrest, even if warrant invalid.—

A uniformed peace officer is lawfully performing his official duty when he makes an arrest, even if it later appears that the arrest warrant is invalid. A person who resists such an arrest can be convicted under subsection (a). Roberts v. State, 711 P.2d 1131, 1985 Wyo. LEXIS 625 (Wyo. 1985).

But when officer makes arrest without explanation, or presentationof warrant, arrest invalid. —

When an officer makes an arrest without presenting a warrant to the arrestee and without telling the arrestee the reasons for the arrest, the arrestee's resistance is far more understandable than it would be if the only flaw were in the issuance of the warrant. Under these circumstances, the arrest might be invalid. Moreover, when executing an arrest that is invalid for this reason, an officer might be outside the ambit of his official duties and the arrestee could not be prosecuted under subsection (a). Roberts v. State, 711 P.2d 1131, 1985 Wyo. LEXIS 625 (Wyo. 1985).

Officer performing “official duties” while arresting for offense committed in his presence. —

A police officer had probable cause to believe that the defendant was committing a breach of peace as defined by a municipal ordinance. His arrest of the defendant was lawful, therefore, under § 7-2-103(a), because a criminal act was occurring in the presence of the officer. The bodily harm that the defendant inflicted on the officer while resisting the lawful arrest occurred while the officer was “in the performance of his official duties” and was properly punishable under subsection (b). Simmons v. State, 712 P.2d 887, 1986 Wyo. LEXIS 449 (Wyo. 1986).

Arrest outside jurisdiction. —

Defendant's conviction for interference with a municipal peace officer was reversed, where municipal police were not engaged in the “lawful performance” of their official duties when they arrested him outside their jurisdiction. Van Horn v. State, 802 P.2d 883, 1990 Wyo. LEXIS 160 (Wyo. 1990).

Interference with unlawful search not prohibited. —

When an officer is acting without his legal authority, i.e., in conducting an unlawful search, one opposing him is not guilty of obstructing an officer. Storms v. State, 590 P.2d 1321, 1979 Wyo. LEXIS 368 (Wyo. 1979).

General intent instruction, coupled with specific intent instruction, not error. —

In a jury trial for violating this section, the court did not err in instructing the jury “that people are considered by law to have intended the natural consequences of their acts” while also instructing it that the charged crime was a specific intent crime. While the second instruction was error, as this is a general intent crime, the first instruction relieved the prosecution of proving the element of specific intent and was proper for a general intent crime. Saldana v. State, 685 P.2d 20, 1984 Wyo. LEXIS 317 (Wyo. 1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848, 1985 U.S. LEXIS 1824 (U.S. 1985).

Instruction as to crime elements. —

Convictions for interference with a peace officer and causing bodily injury to a peace officer were affirmed because, inter alia, the instructions accurately informed the jury as to elements of Wyo. Stat. Ann. § 6-5-204(b) and the State's burden of proof, and provided a legal basis from which defendant could argue he was not guilty because he did not know an investigator was a peace officer. Iseli v. State, 2007 WY 102, 160 P.3d 1133, 2007 Wyo. LEXIS 111 (Wyo. 2007).

Self-induced intoxication instruction unavailable. —

During defendant's trial for felony interference with a peace officer, in violation of Wyo. Stat. Ann. § 6-5-204(b), the court did not err in refusing to instruct the jury on a self-induced intoxication defense because the completed offense described in § 6-5-204(b) was a general intent crime and thus the self-induced intoxication defense was not available. Mowery v. State, 2011 WY 38, 247 P.3d 866, 2011 Wyo. LEXIS 42 (Wyo. 2011).

Court properly denied submission to jury of following purported self-defense instruction: “You are instructed that there may be situations that … police activities are so provocative and resistance so understandable that it can only be concluded that the police were not engaged in the lawful performance of their official duties.” This instruction, which did not even allude to the defendant's self-defense theory, may have been adequate to apprise the court of the defendant's theory of the case, but was an insufficient statement of the law to give to the jury. Simonds v. State, 762 P.2d 1189, 1988 Wyo. LEXIS 128 (Wyo. 1988).

Self-defense —

Defendant who testified she resisted a police officer's attempt to arrest her for drunk driving because she wanted to be free to calm her children was not entitled to a self-defense instruction. Yetter v. Wyo., 987 P.2d 666, 1999 Wyo. LEXIS 143 (Wyo. 1999).

District court did not err by rejecting defendant's self-defense claim because the evidence did not show that the officer used excessive force in removing defendant from the vehicle. The record showed that the officer applied a compliance grip to defendant's wrist, which she testified hurt a little, and physically pulled her from the vehicle. Cg v. State, 2011 WY 28, 2011 Wyo. LEXIS 30 (Feb. 18, 2011).

Trial court did not err by refusing defendant's proffered theory of defense instructions, because the proffered self-defense instructions were either erroneous statements of the law, as they failed to indicate that excessive force could only be used against a peace officer if the officer used excessive force, or would have done no more than create confusion Tingey v. State, 2017 WY 5, 387 P.3d 1170, 2017 Wyo. LEXIS 6 (Wyo. 2017).

Lesser included offenses. —

In a criminal trial following defendant's charge of felony interference with a police officer, the court erred by failing to instruct the jury of the lesser included offense of misdemeanor resisting arrest. Mueller v. State, 2001 WY 134, 36 P.3d 1151, 2001 Wyo. LEXIS 160 (Wyo. 2001).

Resisting arrest, escaping detention, differentiated. —

Where the defendant escaped while police officers attempted to arrest him, he was entitled to an instruction which differentiated between resisting arrest and escaping detention following an arrest. Oien v. State, 797 P.2d 544, 1990 Wyo. LEXIS 85 (Wyo. 1990).

Evidence sufficient. —

Where a police officer identified himself as a police officer and ordered the defendant to stop when he fled from a house, and repeatedly told defendant that he was under arrest, and the defendant ran away from the officer after the officer's unsuccessful attempt to hold him, and struggled with the officer as the officer tried to secure the defendant's car keys, the entire sequence of events constituted a blatant example of knowing interference and resistance to a lawful arrest. Walter v. State, 811 P.2d 716, 1991 Wyo. LEXIS 89 (Wyo. 1991).

In a prosecution of defendant for felony interference with a peace officer, the State's evidence sufficiently supported its charge that defendant intentionally and knowingly caused bodily injury to a peace officer. The officer's testimony that a rather forceful kick from defendant struck the officer in the vicinity of his solar plexus, and that the impacted area of his body remained tender for a few days and hurt whenever his body armor contacted it was sufficient to establish that the officer suffered pain and bodily injury. Flores v. State, 2017 WY 120, 403 P.3d 993, 2017 Wyo. LEXIS 126 (Wyo. 2017).

Evidence was sufficient to support defendant's conviction of interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(a) because the officer was engaged in the performance of his community caretaker duties when he directed defendant out of the neighbor's vehicle and when he physically removed her from the vehicle. The record showed that defendant had refused to exit the vehicle despite numerous requests by her mother and the neighbor and the neighbor had requested the officer's assistance. Cg v. State, 2011 WY 28, 2011 Wyo. LEXIS 30 (Feb. 18, 2011).

Lawful performance of official duties. —

Where the officers knew of a phone call reporting a fight between a bartender and defendant who was identified by name, upon arrival defendant was standing by the bar having a heated verbal exchange with the bartender, there was broken glass on the floor, and defendant refused to comply with a request to speak with the officers outside and physically resisted removal, there was probable cause to arrest for breach of the peace under Wyo. Stat. Ann. § 6-6-102(a), and an officer was acting in the lawful performance of his duties when defendant kneed him in the groin, supporting defendant's conviction of felony interference with a peace officer in violation of this section. Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003).

“Lawful performance of official duties” not found. —

Where the police did not have reasonable grounds to demand entry to a bar pursuant to W.S. 12-2-304(c), and since the police did not have authority to demand entrance, appellant's refusal to admit them did not result in an interference with the performance of the officer's official duties. Mickelson v. State, 886 P.2d 247, 1994 Wyo. LEXIS 150 (Wyo. 1994).

Since the court found that the police could not lawfully enter a bar pursuant to W.S. 12-2-304(c), they were not “engaged in the lawful performance” of their official duties, and appellant could not have interfered with them. Mickelson v. State, 886 P.2d 247, 1994 Wyo. LEXIS 150 (Wyo. 1994).

Legality of officer's conduct. —

The legality of an officer's conduct is measured at the time the injury occurs; thus, where an initial inspection encounter between defendant and a game and fish warden had terminated, it was not relevant to whether the warden was acting lawfully at the time of a later incident leading to charges under this section. Nelson v. State, 960 P.2d 1011, 1998 Wyo. LEXIS 86 (Wyo. 1998).

Probable cause to arrest. —

Police officer had probable cause to arrest appellant for interference with a police officer under this section, because appellant gave the officer a false name and refused to show his driver's license to the officer while he was investigating a hit and run accident. Appellant hindered the officer's efforts by putting his wallet back in his pocket, nudging past the officer, and heading for his apartment. Vasco v. State, 2011 WY 100, 253 P.3d 515, 2011 Wyo. LEXIS 102 (Wyo. 2011).

In view of prior interpretation of statute suggesting that speech alone may rise to the level of interference with a police officer in the performance of his official duty, the officer could have held an objectively reasonable belief that plaintiff was interfering with his investigative detention of another individual in violation of Wyoming law. Culver v. Armstrong, 832 F.3d 1213, 2016 U.S. App. LEXIS 14583 (10th Cir. Wyo. 2016).

Qualified immunity barred an arrestee's claim that her warrantless arrest for interfering with a police officer was unlawful; it was not clearly established that the Fourth Amendment conveyed a valid privilege to actively resist an unlawful, warrantless search, and a reasonable officer could have believed that the arrestee violated this section by shutting the door to her home and telling the officer he could not follow her husband inside without a warrant. Starrett v. City of Lander, 699 Fed. Appx. 805, 2017 U.S. App. LEXIS 13935 (10th Cir. 2017).

Relationship to federal law.—

Where a defendant appealed his three-year sentence for violating 18 U.S.C.S. § 922(g)(1), his Wyoming conviction for felony interference with a peace officer in 2012, in violation of this section, was a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(1). United States v. Winder, 926 F.3d 1251, 2019 U.S. App. LEXIS 17907 (10th Cir. Wyo.), cert. denied, 140 S. Ct. 559, 205 L. Ed. 2d 364, 2019 U.S. LEXIS 7210 (U.S. 2019).

Evidence sufficient. —

Evidence was sufficient to support defendant’s conviction of misdemeanor interference with a peace officer because he prevented the deputy from performing his lawful duty under the search warrant, as the deputy advised defendant that if he refused or obstructed the warrant he would charged with interference and defendant refused to allow blood to be taken from him. Garza v. State, 2020 WY 32, 458 P.3d 1239, 2020 Wyo. LEXIS 34 (Wyo. 2020).

Jury instructions. —

Trial court did not err by refusing to give defendant’s proposed jury instruction that a mere remonstrance or criticism of an officer was insufficient to constitute interference because, while defendant made statements that he felt he was being discriminated against and did not trust the officers, the record contained no evidence that he was charged with interference in response to those statements. Garza v. State, 2020 WY 32, 458 P.3d 1239, 2020 Wyo. LEXIS 34 (Wyo. 2020).

Applied in

Saldana v. State, 728 P.2d 1121, 1986 Wyo. LEXIS 659 (Wyo. 1986); Croy v. State, 2014 WY 111, 2014 Wyo. LEXIS 127 (Sept. 8, 2014).

Quoted in

Phillips v. State, 760 P.2d 388, 1988 Wyo. LEXIS 106 (Wyo. 1988); Pope v. State, 2002 WY 9, 38 P.3d 1069, 2002 Wyo. LEXIS 9 (Wyo. 2002); Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013); Bowlsby v. State, 2013 WY 72, 302 P.3d 913, 2013 Wyo. LEXIS 76 (Jun 12, 2013).

Stated in

Griebel v. State, 763 P.2d 475, 1988 Wyo. LEXIS 143 (Wyo. 1988); Cardenas v. State, 925 P.2d 239, 1996 Wyo. LEXIS 151 (Wyo. 1996).

Cited in

Jessen v. State, 622 P.2d 1374, 1981 Wyo. LEXIS 283 (Wyo. 1981); Brown v. State, 944 P.2d 1168, 1997 Wyo. LEXIS 126 (Wyo. 1997); Mazurek v. State, 10 P.3d 531, 2000 Wyo. LEXIS 182 (Wyo. 2000); King v. State, 2002 WY 27, 40 P.3d 700, 2002 Wyo. LEXIS 28 (Wyo. 2002); Meadows v. State, 2003 WY 37, 65 P.3d 33, 2003 Wyo. LEXIS 41 (Wyo. 2003); Wheaton v. State, 2003 WY 56, 68 P.3d 1167, 2003 Wyo. LEXIS 69 (Wyo. 2003); C.L.C. v. State, 2004 WY 2, 82 P.3d 1235, 2004 Wyo. LEXIS 4 (Wyo. 2004); Beck v. State, 2005 WY 56, 110 P.3d 898, 2005 Wyo. LEXIS 64 (2005); Harris v. State, 2011 WY 70, 250 P.3d 163, 2011 Wyo. LEXIS 73 (Apr. 22, 2011); Matthews v. State, 2014 WY 54, 2014 Wyo. LEXIS 60 (Apr 23, 2014); Saunders v. Hornecker, 2015 WY 34, 2015 Wyo. LEXIS 39 (Mar. 5, 2015); Bd. of Prof'l Responsibility v. Haderlie, 2015 WY 90, 2015 Wyo. LEXIS 102 (July 2, 2015).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Effect of invalidity or irregularity of process on criminal liability for obstructing process, 10 ALR3d 1146.

Right to forcefully resist illegal arrest, 44 ALR3d 1078.

Right to resist excessive force used in accomplishing lawful arrest, 77 ALR3d 281.

When statute of limitations begins to run on charge of obstructing justice or of conspiring to do so, 77 ALR3d 725.

What constitutes obstructing or resisting officer, in absence of actual force, 66 ALR5th 397.

§ 6-5-205. Running manned roadblock; penalties.

A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he proceeds or travels through a roadblock which is supervised by a uniformed peace officer without stopping and obeying the instructions of the peace officer.

History. Laws 1982, ch. 75, § 3.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-206. Escape from official detention; penalties.

  1. A person commits a crime if he escapes from official detention. Escape is:
    1. A felony punishable by imprisonment for not more than ten (10) years, if the detention is the result of a conviction for a felony;
    2. A felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both, if the detention is the result of:
      1. A conviction for a misdemeanor; or
      2. An arrest or charge for a crime.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to escape of prisoners under the Western Interstate Corrections Compact, see § 7-3-401 .

As to escape from work release program, see § 7-16-309 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Specific intent. —

Supreme Court of Wyoming cannot find any indication in Wyo. Stat. Ann. §§ 6-5-206(a)(i) or 7-18-112 that the legislature intended there to be a specific intent element to the crime of escape; it is a general intent crime. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Resisting arrest, escaping detention, differentiated. —

Where the defendant escaped while police officers attempted to arrest him, he was entitled to an instruction which differentiated between resisting arrest and escaping detention following an arrest. Oien v. State, 797 P.2d 544, 1990 Wyo. LEXIS 85 (Wyo. 1990).

Escape from place other than jail building. —

This section proscribes escape by a person committed to the custody of the county jail. It is immaterial that an escape may actually be made from a place other than the building called the county jail, so long as the escapee was committed to the custody of the county jail at the time of the escape. Slaughter v. State, 629 P.2d 481, 1981 Wyo. LEXIS 349 (Wyo. 1981).

Participation in community correctional program does not constitute “supervision on probation or parole” that would preclude prosecution for the offense of escape from official detention. Peper v. State, 768 P.2d 26, 1989 Wyo. LEXIS 22 (Wyo. 1989).

Temporary leave does not confer parole status. —

A prisoner committed “escape” for purposes of this section when he failed to return on time from a temporary leave granted him to talk with an attorney concerning a worker's compensation claim; his signing of a form captioned “Temporary Parole Agreement” before he was released did not convert his leave into parole. Westmark v. State, 864 P.2d 1031, 1993 Wyo. LEXIS 184 (Wyo. 1993).

Prosecution not barred because of previous punishment imposedby prison. —

A criminal prosecution for prison escape is not barred by a plea of former jeopardy based on disciplinary punishment previously imposed by prison authorities for the same escape. Hamby v. State, 559 P.2d 1388, 1977 Wyo. LEXIS 230 (Wyo. 1977).

Credit for time spent in Surveillance and Treatment Program.—

Where defendant was placed on probation and ordered to participate in Surveillance and Treatment of Offender Program (S.T.O.P.), defendant was not eligible for credit for the time spent in the program when her probation was revoked, since the defendant could not be charged with escape from S.T.O.P., and S.T.O.P. was not a community correctional center. Kupec v. State, 835 P.2d 359, 1992 Wyo. LEXIS 101 (Wyo. 1992).

Credit for time in alcoholism treatment facility. —

When a probationer spends time at an alcoholism treatment facility as a condition of his probation, he is entitled to receive a credit for that time toward his sentence if a charge of escape from official detention will lie. Yellowbear v. State, 874 P.2d 241, 1994 Wyo. LEXIS 62 (Wyo. 1994).

Where defendant was arrested for felony attempted larceny and released from pretrial custody to participate in a residential substance abuse treatment facility, defendant was not in official detention for purpose of this section and was not subject to a charge of escape from official detention; therefore, defendant was not entitled to credit against his prison sentence for that time period. Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Wyo. 2012).

Dual sentences for aggravated assault and escape. —

The imposition of dual and consecutive sentences for aggravated assault (§ 6-2-502 ) and attempted escape (§§ 6-5-206 and 6-1-304 ) for a single violent escape attempt, which could have resulted in a single sentence under § 6-5-207 , did not violate double jeopardy constitutional provisions. Under the applicable statutory elements test, clearly different offenses were demonstrated, while the prosecutor had the requisite discretion to elect the charge or charges which could be brought based on the specific facts of the case. DeSpain v. State, 865 P.2d 584, 1993 Wyo. LEXIS 185 (Wyo. 1993).

Sufficient evidence to convict. —

Evidence supported conviction for escape from official detention when defendant ran from courtroom, accessed stairwell and raced down four flights of steps; fact that defendant was apprehended in a short time did not reduce defendant's actions to attempted escape. Capshaw v. State, 958 P.2d 387, 1998 Wyo. LEXIS 75 (Wyo. 1998).

Evidence was sufficient to support defendant's conviction for escape. Although there was no direct evidence of where defendant was during the hours he was missing from a work site, the circumstantial evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that defendant left his place of employment. Martin v. State, 2007 WY 2, 149 P.3d 707, 2007 Wyo. LEXIS 3 (Wyo. 2007).

Illegal sentence for underlying offense. —

While a 365-day sentence was clearly illegal as the maximum for defendant's third driving under the influence conviction was six months under Wyo. Stat. Ann. § 31-5-233(e), defendant had not yet served six months, the legal portion of his sentence, when he allegedly escaped. Thus, the prosecution on an escape charge under Wyo. Stat. Ann. § 6-5-206(a)(ii)(A) was acceptable. Crosby v. State, 2011 WY 44, 247 P.3d 876, 2011 Wyo. LEXIS 46 (Wyo. 2011).

Jury instructions. —

Defendant who was charged with attempting to escape from official detention, conspiring to escape from official detention, and felony murder during an attempt to escape from official detention, which were all based upon this section, was not entitled to a jury instruction defining “escape” and thus appellate counsel was not deficient in failing to raise the issue since nothing about the word “escape” or its usage in the statute suggests the word has a technical legal meaning, and there was nothing about the facts that would have confused the jury as to the word's import. 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).

Prosecutorial misconduct. —

Cumulative effect of an instructional error and the prosecutor's misstatements was prejudicial error, where it was not clear whether defendant was convicted just upon the evidence presented because, inter alia, the prosecutor told the jury panel during voir dire: (1) “I think” the evidence showed defendant was guilty; (2) that defendant “should” bring any exculpatory evidence into court and present it to the jury; and (3) the State did not have to prove any mens rea element of the crime. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Jury not instructed prohibited conduct had to be undertakenvoluntarily. —

Conviction for escape was reversed where cumulative effect of an instructional error and the prosecutor's misstatements Wyo. Stat. Ann. § 6-5-206(a)(i) created verdict that could not be trusted, because the jury had not been instructed that it had to find that appellant had acted voluntarily; even a general intent crime required a showing that the prohibited conduct was undertaken voluntarily. Seymore v. State, 2007 WY 32, 152 P.3d 401, 2007 Wyo. LEXIS 33 (Wyo. 2007), limited, Wyant v. State, 2020 WY 15, 458 P.3d 13, 2020 Wyo. LEXIS 14 (Wyo. 2020).

Applied in

Angerhofer v. State, 758 P.2d 1041, 1988 Wyo. LEXIS 104 (Wyo. 1988); Phillips v. State, 760 P.2d 388, 1988 Wyo. LEXIS 106 (Wyo. 1988); Smith v. State, 932 P.2d 1281, 1997 Wyo. LEXIS 26 (Wyo. 1997).

Quoted in

Jenkins v. State, 2002 WY 107, 49 P.3d 1028, 2002 Wyo. LEXIS 113 (Wyo. 2002); Harlow v. State, 2003 WY 47, 70 P.3d 179, 2003 Wyo. LEXIS 58 (Wyo. 2003); Hagen v. State, 2014 WY 141, 2014 Wyo. LEXIS 161 (Nov. 5, 2014).

Cited in

Young v. State, 904 P.2d 359, 1995 Wyo. LEXIS 191 (Wyo. 1995); Major v. State, 2004 WY 4, 83 P.3d 468, 2004 Wyo. LEXIS 8 (Wyo. 2004); Endris v. State, 2010 WY 73, 233 P.3d 578, 2010 Wyo. LEXIS 76 (June 3, 2010); Turner v. State, 2015 WY 29, 2015 Wyo. LEXIS 33 (Feb. 25, 2015).

Jones v. State, 2006 WY 40, 132 P.3d 162, 2006 Wyo. LEXIS 43 (Wyo. Apr. 6, 2006).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What justifies escape or attempt to escape or assistance in that regard, 70 ALR2d 1430.

Means employed to effect it as affecting escape or prison breach, 96 ALR2d 520.

Escape from public employee or institution other than correctional or law enforcement employee or institution as criminal offense, 69 ALR3d 625.

Duress, necessity or conditions of confinement as justification for escape from prison, 69 ALR3d 678.

Conviction for escape where prisoner fails to leave confines of prison or institution, 79 ALR4th 1060.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 ALR5th 141.

Effect of escape from state custody on petitioner's rights in federal habeas corpus proceedings, 61 ALR Fed 938.

Sufficiency of evidence of instigating or assisting escape from federal custody, under 18 USC § 752(a), 74 ALR Fed 816.

Excessiveness of sentence, under 18 USC § 751(a), for escape from federal custody, 77 ALR Fed 318.

What constitutes “custody” under 18 USC § 751(a) defining offense of escape from custody, 114 ALR Fed 581.

§ 6-5-207. Escape by violence or assault, or while armed; penalty.

A person commits a felony punishable by imprisonment for not more than ten (10) years if he escapes from official detention by violence or while armed with a deadly weapon or by assault upon a person in charge of the detention.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to assault and aggravated assault and battery, see §§ 6-2-501 and 6-2-502 .

As to weapons, see chapter 8 of this title.

Dual sentences for aggravated assault and escape. —

The imposition of dual and consecutive sentences for aggravated assault (§ 6-2-502 ) and escape (§§ 6-5-206 and 6-1-304 ) for a single violent escape attempt, which could have resulted in a single sentence under this section, did not violate double jeopardy constitutional provisions. Under the applicable statutory elements test, clearly different offenses were demonstrated, while the prosecutor had the requisite discretion to elect the charge or charges which could be brought based on the specific facts of the case. DeSpain v. State, 865 P.2d 584, 1993 Wyo. LEXIS 185 (Wyo. 1993).

Cited in

Rands v. State, 818 P.2d 44, 1991 Wyo. LEXIS 150 (Wyo. 1991).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Peace officer's liability or liability on his bond for killing or injuring in preventing escape, 60 ALR2d 873.

Duress, necessity, or conditions of confinement as justification for escape from prison, 54 ALR5th 141.

§ 6-5-208. Taking controlled substances or liquor into jails, penal institutions or mental hospitals; penalties.

Except as authorized by a person in charge, a person commits a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both, if that person takes or passes any controlled substance or intoxicating liquor into a jail, a state penal institution, the Wyoming boys’ school, Wyoming girls’ school, a correctional facility operated by a private entity pursuant to W.S. 7-22-102 or the state hospital.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1989, ch. 40, § 1; 1991, ch. 89, § 2; ch. 252, § 2; 1992, ch. 25, § 3; 1998, ch. 7, § 1.

Cross references. —

As to alcoholic beverages, see title 12.

As to state institutions, see § 25-1-201 .

As to controlled substances, see § 35-7-1001 et seq.

Applicability of act. —

Laws 1991, ch. 252, § 3, provides: “The powers and authority set forth in this act shall be in addition to such other powers and authority as may presently exist under the laws of the state of Wyoming relating to correctional facilities or jails, and the requirements set forth in this act (including in particular, requirements relating to the obtaining of necessary consents and approvals) shall be deemed to apply only to actions taken or to be taken under authority of this act and shall not apply to any such other powers or authority as may presently exist under the laws of the state of Wyoming.”

Applicability of act. —

This section applied to arrestees like defendant who carry controlled substances into the booking areas of jails. Barrera v. State, 2017 WY 123, 403 P.3d 1025, 2017 Wyo. LEXIS 129 (Wyo. 2017).

Section 35-7-1031 not a lesser included offense. —

Taking or passing controlled substances into a jail may be proven without necessarily proving possession of a controlled substance; therefore, possession of a controlled substance, in violation of § 35-7-1031(c), is not necessarily included in the offense of taking or passing a controlled substance into a jail in violation of § 6-5-208 .Paramo v. State, 896 P.2d 1342, 1995 Wyo. LEXIS 91 (Wyo. 1995).

Felony drug offense. —

Defendant's prior state conviction under this section for taking or passing a controlled substance into a jail qualified as a felony drug offense for purposes of the mandatory life sentence enhancement under 21 U.S.C.S. § 841(b)(1)(A); the fact that this section also prohibited passing liquor into a jail did not prevent defendant's conviction for bringing methamphetamine into a jail from being a felony drug offense. United States v. Yeley-Davis, 632 F.3d 673, 2011 U.S. App. LEXIS 1053 (10th Cir. Wyo.), cert. denied, 563 U.S. 969, 131 S. Ct. 2172, 179 L. Ed. 2d 951, 2011 U.S. LEXIS 3197 (U.S. 2011).

Relation to other statutes.—

District court did not err in denying defendant’s motion to dismiss a Wyo. Stat. Ann. § 6-5-208 charge where Wyo. Stat. Ann. § 6-5-213 did not repeal or clarify § 6-5-208 , but rather the two statutes were clearly intended to address different concerns. Farnsworth v. State, 2017 WY 137, 405 P.3d 1067, 2017 Wyo. LEXIS 143 (Wyo. 2017).

There is no manifest repugnancy or irreconcilable conflict between Wyo. Stat. Ann. §§ 6-5-208 and 6-5-213 , and they can be read in harmony and as part of an overall and uniform system of jurisprudence. Farnsworth v. State, 2017 WY 137, 405 P.3d 1067, 2017 Wyo. LEXIS 143 (Wyo. 2017).

Cited in

Lake v. State, 2013 Wyo. LEXIS 9 (Jan 17, 2013).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Nature and elements of offense of conveying contraband to state prisoner, 64 ALR4th 902.

Validity and construction of prison regulation of inmates' possession of personal property, 66 ALR4th 800.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 ALR5th 767.

§ 6-5-209. Taking deadly weapons into jails, penal institutions, mental hospitals or courtrooms; penalties.

  1. Except as authorized by a person in charge, a person commits a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if that person takes or passes a deadly weapon into a jail, a state penal institution, the Wyoming boys’ school, Wyoming girls’ school, a correctional facility operated by a private entity pursuant to W.S. 7-22-102 or the state hospital.
  2. Except as authorized by a presiding judge, a person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than five thousand dollars ($5,000.00), or both, if that person takes into a courtroom a deadly weapon. Any person convicted of a second or subsequent offense under this subsection within five (5) years of the first conviction shall be guilty of a felony punishable by a fine of not more than five thousand dollars ($5,000.00), imprisonment for not more than two (2) years, or both.
  3. Nothing in this section shall preclude a presiding judge from carrying a weapon or determining who may carry a weapon in the courtroom.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1991, ch. 89, § 2; ch. 252, § 2; 1992, ch. 25, § 3; 2013, ch. 160, § 1.

Cross references. —

As to state institutions, see § 25-1-201 .

The 2013 amendment , effective July 1, 2013, added (b) and (c), designating the provision as (a).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Nature and elements of offense of conveying contraband to state prisoner, 64 ALR4th 902.

Validity, construction, and application of state statute criminalizing possession of contraband by individual in penal or correctional institution, 45 ALR5th 767.

§ 6-5-210. False reporting to authorities; penalties.

  1. A person who knowingly reports falsely to a 911 emergency reporting system, law enforcement agency or a fire department that:
    1. A crime has been committed is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both;
    2. An emergency exists is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both;
    3. An emergency exists, when the false report results in any person suffering serious bodily harm, is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both;
    4. An emergency exists, when the false report results in the death of any person, is guilty of manslaughter punishable as provided in W.S. 6-2-105 .

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2013, ch. 81, § 1.

The 2013 amendment , effective July 1, 2013, added “911 emergency reporting system,” following “to a” in (a).

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-211. Injuring or killing a police dog, fire dog, search and rescue dog or police horse prohibited; penalties.

  1. Any person who knowingly, willfully and without lawful cause or justification permanently disables or inflicts death upon any animal defined in subsection (b) of this section shall be liable for restitution by order of a court and shall be guilty of a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  2. As used in this section:
    1. “Police dog” means any dog that is owned, or the service of which is employed, by a law enforcement or corrections agency for the principal purpose of aiding in the detection of criminal activity, enforcement of laws or apprehension of offenders;
    2. “Police horse” means any horse that is owned, or the service of which is employed, by a law enforcement or corrections agency for the principal purpose of aiding in the detection of criminal activity, enforcement of laws or apprehension of offenders;
    3. “Fire dog” means any dog that is owned, or the service of which is employed, by a fire department, a special fire district or the state fire marshal for the principal purpose of aiding in the detection of flammable materials or the investigation of fires;
    4. “Search and rescue dog” means any search and rescue dog that is owned, or the service of which is utilized, by a fire department, a law enforcement or corrections agency, a special fire district or the state fire marshal for the principal purpose of aiding in the detection of missing persons, including persons who are lost, who are trapped under debris as a result of a natural, manmade or technological disaster or who are drowning victims.

History. Laws 2001, ch. 205, § 1; 2007, ch. 69, § 1.

The 2007 amendment, effective July 1, 2007, in (a), substituted “permanently disables or inflicts death” for “inflicts serious bodily harm, permanent disability, or death,” and substituted “a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000), or both” for “a misdemeanor”; and in (b), substituted “law enforcement or corrections agency” for “law enforcement agency” in (i), (ii), and (iv).

§ 6-5-212. Interference with emergency calls; interference with emergency reporting system.

  1. A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he knowingly obstructs, prevents, hinders or otherwise interferes with the making or completion of a telephone call to a 911 emergency reporting system or other telephone or radio communication by another person to any law enforcement agency to request protection or other assistance from the law enforcement agency or to report the commission of a crime.
  2. A person commits a misdemeanor if he knowingly calls a 911 emergency reporting system for a purpose other than to report a situation that he reasonably believes requires prompt service in order to preserve or protect human life or health or property.
  3. For purposes of this article “911 emergency reporting system” means as defined by W.S. 16-9-102(a)(iv).

History. Laws 2004, ch. 48, § 1; 2013, ch. 81, § 1.

The 2013 amendment, effective July 1, 2013, added (b); redesignated former (b) as (c); and substituted “article” for “section” in (c).

Effective date. —

Laws 2004, ch. 48, § 2, makes the act effective July 1, 2004.

Cited in

Scott v. State, 2012 WY 86, 278 P.3d 747, 2012 Wyo. LEXIS 91 (June 18, 2012).

§ 6-5-213. Taking contraband into penal institutions or correctional facilities; definitions; penalties.

  1. Except as authorized by a person in charge, no person shall:
    1. Intentionally convey or attempt to convey contraband to a person confined in a penal institution or correctional facility; or
    2. Intentionally make, obtain or possess contraband if the person is officially confined in a penal institution or correctional facility.
  2. Any person who violates any provision of subsection (a) of this section is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than two thousand dollars ($2,000.00), or both.
  3. As used in this section:
    1. “Contraband” means:
      1. Cellular telephone or other unauthorized electronic communications device;
      2. Cigarette or other tobacco product;
      3. Money;
      4. Any tool or other item that may be used to facilitate escape from the custody of the penal institution or correctional facility; or
      5. Any other item that the person confined in the official custody of a penal institution or correctional facility is prohibited by law from making, obtaining or possessing.
    2. “Penal institution or correctional facility” means a jail, a state penal institution or a correctional facility operated by a private entity pursuant to W.S. 7-22-102 .

History. Laws 2007, ch. 70, § 1.

Effective dates. —

Laws, 2007, ch. 70, § 2, makes the act effective July 1, 2007.

Relation to other statutes.—

District court did not err in denying defendant’s motion to dismiss a Wyo. Stat. Ann. § 6-5-208 charge where Wyo. Stat. Ann. § 6-5-213 did not repeal or clarify § 6-5-208 , but rather the two statutes were clearly intended to address different concerns. Farnsworth v. State, 2017 WY 137, 405 P.3d 1067, 2017 Wyo. LEXIS 143 (Wyo. 2017).

There is no manifest repugnancy or irreconcilable conflict between Wyo. Stat. Ann. §§ 6-5-208 and 6-5-213 , and they can be read in harmony and as part of an overall and uniform system of jurisprudence. Farnsworth v. State, 2017 WY 137, 405 P.3d 1067, 2017 Wyo. LEXIS 143 (Wyo. 2017).

Article 3. Perjury and Criminal Falsification

Cross references. —

As to officers authorized to administer oaths, see § 1-2-102 .

For provision that persons conscientiously opposed to swearing or taking any oath may affirm, and shall be subject to the pains and penalty of perjury, as in the case of swearing or taking an oath, see § 1-2-103 .

As to false statements in connection with Wyoming retirement system, see § 9-3-429 .

As to false statements in documents or proceedings before the secretary of state under the Uniform Securities Act, see § 17-4-116.

As to perjury by surety in connection with affidavit required on bond of county officer, see § 18-3-102 .

As to false swearing after being challenged as a voter registration offense, see § 22-26-102 .

As to false swearing under the Election Code, see § 22-26-108 .

As to false swearing to procure a game or fish license or tag, see § 23-3-403 .

As to immunity from prosecution when testimony is compelled before the insurance commissioner, except for perjury, see § 26-2-124 .

As to one in charge of mine making false statements to the mine inspector regarding mine safety, see § 30-2-207 .

As to revocation of certificate issued to optometrist for perjury, see § 33-23-110 .

As to prohibition against use of compelled testimony before the public service commission in criminal prosecution, except for perjury, see § 37-2-209 .

As to perjury in statements under oath in connection with public utilities, see § 37-12-210 .

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability of attorney for tampering with evidence, 49 ALR5th 619.

§ 6-5-301. Perjury in judicial, legislative or administrative proceedings; penalties.

  1. A person commits perjury if, while under a lawfully administered oath or affirmation, he knowingly testifies falsely or makes a false affidavit, certificate, declaration, deposition or statement, in a judicial, legislative or administrative proceeding in which an oath or affirmation may be required by law, touching a matter material to a point in question.
  2. Perjury is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Purpose of this section with respect to a judicial proceeding is to keep the process of justice free from the contamination of false testimony. It is for the wrong done to the judicial system and the administration of justice that punishment is provided. Edwards v. State, 577 P.2d 1380, 1978 Wyo. LEXIS 290 (Wyo. 1978).

Charge of perjury requires proof of three elements: (1) The materiality of the perjured evidence upon the issue in the trial in which it was given; (2) that the defendant testified as alleged; and (3) that his testimony (evidence) was knowingly and corruptly false. Edwards v. State, 577 P.2d 1380, 1978 Wyo. LEXIS 290 (Wyo. 1978); Smith v. State, 721 P.2d 1088, 1986 Wyo. LEXIS 591 (Wyo. 1986).

“Material” statement defined. —

To be “material,” a statement made must have some weight and reference to the determination of an issue before the court. Although its actual effect has no bearing on materiality, the statement must be one which could influence a tribunal, even if only upon a collateral or circumstantially material point. Edwards v. State, 577 P.2d 1380, 1978 Wyo. LEXIS 290 (Wyo. 1978).

Fear and duress no defense. —

Where defendant urges that his prior testimony cannot be found willfully and corruptly false since he was testifying out of fear and duress based on threats of physical harm, such compulsion cannot excuse perjury in a court, for, in a courtroom, the witness is surrounded by all the protection a court can muster. Edwards v. State, 577 P.2d 1380, 1978 Wyo. LEXIS 290 (Wyo. 1978).

High quantum of proof necessary for conviction of perjury.—

See Edwards v. State, 577 P.2d 1380, 1978 Wyo. LEXIS 290 (Wyo. 1978).

Jury instruction held deficient. —

See State v. Shinovich, 40 Wyo. 174, 276 P. 172, 1929 Wyo. LEXIS 29 (Wyo. 1929).

Evidence insufficient to sustain conviction. —

See Cerns v. Territory, 3 Wyo. 269, 3 Wyo. 270, 21 P. 699, 1889 Wyo. LEXIS 5 (Wyo. 1889).

Quoted in

State ex rel. Hopkinson v. District Court, 696 P.2d 54, 1985 Wyo. LEXIS 455 (Wyo. 1985); Harmon v. Star Valley Med. Ctr., 2014 WY 90, 2014 Wyo. LEXIS 99 (Jul 16, 2014).

Cited in

Reavis v. State, 6 Wyo. 240, 44 P. 62, 1896 Wyo. LEXIS 9 (1896); Cooney v. White, 845 P.2d 353, 1992 Wyo. LEXIS 205 (Wyo. 1992).

Law reviews. —

For discussion of Fed. R. Evid. 410, relating to inadmissibility of pleas, offers of pleas, and related statements, see XII Land & Water L. Rev. 601 (1977).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Privilege against self-incrimination as affecting admissibility and prosecution for perjury of testimony given before grand jury, 38 ALR2d 225.

False oath or account as bar to discharge in bankruptcy proceedings, 59 ALR2d 791.

Recantation as defense in perjury prosecution, 64 ALR2d 276.

Statement of belief or opinion as perjury, 66 ALR2d 791.

Conviction of perjury where one or more of the elements is established solely by circumstantial evidence, 88 ALR2d 852.

Perjury as contempt, 89 ALR2d 1258.

Invalidity of statute or ordinance giving rise to proceedings in which false testimony was received as defense to prosecution for perjury, 34 ALR3d 413.

Offense of perjury as affected by lack of jurisdiction of court or government body before which false testimony was given, 36 ALR3d 1038.

Incomplete, misleading or unresponsive but literally true statement as perjury, 69 ALR3d 993.

Perjury conviction as affected by notary's nonobservance of formalities for administration of oath to affiant, 80 ALR3d 278.

Propriety of sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial, 34 ALR4th 888.

Materiality of testimony forming basis of perjury charge as question for court or jury in state trial, 37 ALR4th 948.

Admonitions against perjury or threats to prosecute potential defense witness, inducing refusal to testify, as prejudicial error, 88 ALR4th 388.

Right of defendant in prosecution for perjury to have the “two witnesses, or one witness and corroborating circumstances,” rule included in charge to jury — state cases, 41 ALR5th 1.

Criminal liability of attorney for tampering with evidence, 49 ALR5th 619.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 ALR5th 639.

Determination of “materiality” under 18 USC § 1623, penalizing false material declarations before grand jury or court, 60 ALR Fed 76.

§ 6-5-302. Proof of solicitation of perjury.

In a trial for soliciting perjury, no conviction shall be had on the evidence of the person solicited, unsupported by other testimony.

History. Laws 1982, ch. 75, § 3.

Cited in

Blakeman v. State, 2004 WY 139, 100 P.3d 1229, 2004 Wyo. LEXIS 179 (2004).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Criminal liability of attorney for tampering with evidence, 49 ALR5th 619.

§ 6-5-303. False swearing in nonjudicial or nonadministrative proceeding; false claims or vouchers; penalties.

  1. A person commits a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if, while under a lawfully administered oath or affirmation in a matter where an oath is authorized by law, he knowingly makes a false certificate, affidavit, acknowledgment, declaration or statement other than in a judicial or administrative proceeding.
  2. A person is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if he knowingly submits a false claim or voucher with intent to defraud.
  3. A person who knowingly makes a false certification under W.S. 1-2-104 is guilty of a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2007, ch. 199, § 2.

The 2007 amendment, effective July 1, 2007, added (c).

Section does not violate art. 1, § 6, Wyo. Const., for reasons of vagueness. Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

Common-law crime enacted. —

This section brings into the body of this state's law the common-law crime of false swearing, and the definition contained in the common law will be applied. Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

Word “false” as used in this section means “intentionally untrue.” Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

So penalty for clerical error not intended. —

Because of the legislative reference to the words “false swearing” in enacting this section and the widely used criminal definition of “false,” it is impossible to ascribe to the legislature any intention to penalize a person for making an innocent clerical error or mistake. Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

Perjury and false swearing distinguished. —

See Nimmo v. State, 603 P.2d 386, 1979 Wyo. LEXIS 485 (Wyo. 1979).

Misjoinder of embezzlement-related offense, and offense of submitting false voucher for battery, occurred as error of law. — See Howard v. State, 762 P.2d 28, 1988 Wyo. LEXIS 117 (Wyo. 1988), reh'g denied, 1988 Wyo. LEXIS 158 (Wyo. Nov. 7, 1988).

Evidence sufficient.—

Evidence was sufficient to sustain a false claim conviction, Wyo. Stat. Ann. § 6-5-303(b) (2017) where defendant ordered the sheriff uniforms and related items on behalf of the county and to be paid by the county, he intentionally had order dates changed on invoices to falsely indicate he ordered the items after he was sworn in as sheriff, he told representatives of one of the companies he needed to change dates on the invoices because the county commissioners were mad at him, he ordered the shredding of original invoices, and he he knew the dates were false on vouchers submitted to the commissioners for payment. Haskell v. State, 2018 WY 85, 422 P.3d 955, 2018 Wyo. LEXIS 90 (Wyo. 2018).

Cited in

Heggen v. State, 800 P.2d 475, 1990 Wyo. LEXIS 111 (Wyo. 1990); Bohling v. State, 2017 WY 7, 388 P.3d 502, 2017 Wyo. LEXIS 7 (Wyo. 2017).

Quoted in

Harmon v. Star Valley Med. Ctr., 2014 WY 90, 2014 Wyo. LEXIS 99 (Jul 16, 2014).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

False swearing as contempt, 89 ALR2d 1258.

Criminal liability under state laws in connection with application for, or receipt of, public welfare payments, 22 ALR4th 534.

§ 6-5-304. Offering mining claims for filing without meeting legal prerequisites; penalties.

A person commits a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if he offers a location certificate for a placer mining claim or a lode claim or an affidavit of assessment work to be filed with a county clerk’s office knowing the claim, certificate or affidavit was not preceded by a proper location of the claim physically upon the ground by establishing a proper notice of claim and designating the surface boundaries as required by law.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to prerequisites to filing mine location certificates, see § 30-1-103 .

As to affidavit of assessment work for any mining claim, see § 30-1-115 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-305. Influencing, intimidating or impeding jurors, witnesses and officers; obstructing or impeding justice; penalties.

  1. A person commits a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both, if, by force or threats, he attempts to influence, intimidate or impede a juror, witness or officer in the discharge of his duty.
  2. A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if, by threats or force, he obstructs or impedes the administration of justice in a court.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Application of subsection (a). —

The provisions of subsection (a) of this section applied to a situation in which an assault and battery was committed upon a witness after the trial had concluded, and he had been released from his subpoena. Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995).

“Witness” status maintained through affirmation of conviction.—

The potential of post-conviction relief does not justify maintaining the status of a “witness” beyond the affirmation of a conviction on direct appeal; up until that point in finality, however, a person who is a “witness” will remain a “witness,” and the provisions of subsection (a) of this section will protect that person. Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995).

Statute applies where proceedings not final. —

This section does apply in an instance in which the proceedings have not become final after appeal, and therefore the trial judge did not abuse his discretion when he overruled the defendant's hearsay objection and properly admitted the testimony concerning statements by a co-conspirator under Rule 801(d)(2)(E), W.R.E. Smith v. State, 902 P.2d 1271, 1995 Wyo. LEXIS 161 (Wyo. 1995).

Relationship between this section and court's inherent powerto punish for contempt. —

See Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (Wyo. 1901).

Quoted in

English v. State, 982 P.2d 139, 1999 Wyo. LEXIS 91 (Wyo. 1999); GGV v. JLR, 2002 WY 19, 39 P.3d 1066, 2002 Wyo. LEXIS 18 (Wyo. 2002).

Cited in

John v. State, 6 Wyo. 203, 44 P. 51, 1896 Wyo. LEXIS 6 (1896); Elmer v. State, 463 P.2d 14, 1969 Wyo. LEXIS 171 (Wyo. 1969); Coen v. Runner, 854 F.2d 374, 1988 U.S. App. LEXIS 11229 (10th Cir. 1988); Ochoa v. State, 848 P.2d 1359, 1993 Wyo. LEXIS 67 (Wyo. 1993).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statutes imposing criminal penalties for influencing or tampering with witness, 8 ALR4th 769.

Impeachment of verdict by juror's evidence that he was coerced or intimidated by fellow juror, 39 ALR4th 800.

Intentional spoliation of evidence, interfering with prospective civil action, as actionable, 70 ALR4th 984.

Admonitions against perjury or threats to prosecute potential defense witness, inducing refusal to testify, as prejudicial error, 88 ALR4th 388.

Criminal liability of attorney for tampering with evidence, 49 ALR5th 619.

Duty of prosecutor to present exculpatory evidence to state grand jury, 49 ALR5th 639.

Defenses to state obstruction of justice charge relating to interfering with criminal investigation or judicial proceeding, 87 ALR5th 597.

Negligent spoliation of evidence, interfering with prospective civil action, as actionable, 101 ALR5th 61.

Meaning of term “corruptly” for purposes of 18 USC § 1503 making it a federal offense to corruptly endeavor to influence, intimidate, impede, or injure witness, juror or officer in federal court, or to obstruct the due administration of justice, 62 ALR Fed 303.

Validity, construction, and application of federal witness tampering statute, 18 U.S.C.A. § 1512(b), 183 ALR Fed 611.

§ 6-5-306. Refusal to appear or testify; avoidance of service; penalties; summary proceedings for contempt.

  1. A person is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he:
    1. Refuses or intentionally fails to obey a lawful subpoena or citation which has been served upon him;
    2. Secretes himself or leaves his residence to avoid being served with a subpoena; or
    3. Refuses to take an oath or affirmation or, being sworn or affirmed, refuses to answer a question required by the court or presiding officer.
  2. This section shall not prevent summary proceedings for contempt.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to contempt of court for failure to obey a subpoena, see Rule 17(g), W.R. Cr. P.

As to criminal contempt generally, see Rule 42, W.R. Cr. P.

Court may punish for contempt disobeying of summons or subpoena, though such offense is indictable. Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (Wyo. 1901).

And order committing contemner to prison until he obeys certain order is not affected by this section, which fixes a definite punishment for witnesses who refuse to be sworn or answer questions and which expressly provides that “this section shall not prevent summary proceedings for contempt.” Ex parte Bergman, 3 Wyo. 396, 26 P. 914, 1890 Wyo. LEXIS 13 (Wyo. 1890).

Court to explain contempt's nature and effect. —

Where a witness, who had been offered full use immunity, was cursorily warned in chambers that he would be found in contempt if he refused to testify the following day, but no attempt was made to fully explain either the nature or the effect of a finding of contempt, and the next day the district court made no attempt to question the witness about his refusal to be sworn or his understanding of the consequences of that refusal and, instead, the court angrily slapped him with a contempt charge and dismissed him from the courtroom, it was held that, at the very least, the district court should have asked witness (whose counsel was not present) if he was attempting to assert his fifth amendment privilege and, if so, first to be sworn and then claim the privilege on the record; because the totality of the circumstances demonstrated that the court failed to adequately inform the witness of the nature and effect of a finding of contempt, the contempt judgment could not stand. In re Haselhuhn, 740 P.2d 387, 1987 Wyo. LEXIS 478 (Wyo. 1987).

Cited in

John v. State, 6 Wyo. 203, 44 P. 51, 1896 Wyo. LEXIS 6 (1896).

Am. Jur. 2d, ALR and C.J.S. references. —

Privilege of newsgatherer against disclosure of confidential sources or information, 99 ALR3d 37.

§ 6-5-307. Usurpation; penalties.

A person is guilty of usurpation if he falsely represents himself to be a public servant with the intent to induce anyone to submit to the pretended official authority or to act in reliance upon the pretense to his detriment. Usurpation is a misdemeanor punishable by imprisonment for not to exceed six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-5-308. Penalty for filing false document.

  1. A person commits a felony punishable by imprisonment for not more than two (2) years, a fine of not more than two thousand dollars ($2,000.00), or both, if he files with the secretary of state and willfully or knowingly:
    1. Falsifies, conceals or covers up by any trick, scheme or device a material fact;
    2. Makes any materially false, fictitious or fraudulent statement or representation; or
    3. Makes or uses any false writing or document knowing the same to contain any materially false, fictitious or fraudulent statement or entry.

History. Laws 2008, ch. 91, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Effective dates. —

Laws 2008, ch. 91, § 4, makes the act effective January 1, 2009.

Article 4 Interference with Public Contracting

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-401. Definitions.

  1. As used in this article:
    1. “Governmental entity” means any unit of state or local government or any branch, subdivision or agency thereof or any school district or special district;
    2. “Kickback” means any money, fee, commission, credit, gift, gratuity, thing of value or compensation of any kind that is provided, directly or indirectly, to any public official, public servant, prime contractor, prime contractor employee, subcontractor or subcontractor employee for the purpose of improperly obtaining or rewarding favorable treatment in connection with a prime contract or in connection with a subcontract relating to a prime contract;
    3. “Prime contractor” means any person who has entered into a public contract;
    4. “Prime contractor employee” means any officer, partner, employee or agent of a prime contractor;
    5. “Public contract” means any contract for goods, services or construction awarded to any person with or without bid by any governmental entity, regardless of any procedures for the bid or contract process that are required by law;
    6. “Public officer” means as defined by W.S. 6-5-101(a)(v);
    7. “Public servant” means as defined by W.S. 6-5-101(a)(vi);
    8. “Subcontract” means a contract or contractual action entered into by a prime contractor or subcontractor for the purpose of obtaining goods, services or construction of any kind under a public contract;
    9. “Subcontractor” means any person, except for the prime contractor, who offers to furnish or furnishes any goods, services or construction of any kind under a public contract or a subcontract entered into in connection with a public contract. “Subcontractor” shall include any person who offers to furnish or furnishes goods, services or construction to the prime contractor or a higher-tier subcontractor;
    10. “Subcontractor employee” means any officer, partner, employee or agent of a subcontractor.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-402. Bid rigging; penalties; prohibitions.

  1. A person commits bid rigging when he knowingly conspires with any other person who is or would be a competitor to any submitted or not submitted bid to a governmental entity with the intent that the bid submitted or not submitted will result in the award of a public contract to the person or to another person and the person:
    1. Provides the other person or receives from the other person or another person information concerning the price or a material term of any bid that would otherwise not be disclosed to a competitor in an independent, non-collusive submission of bids; or
    2. Submits a bid that is of such price or other material term that he does not intend the bid to be accepted.
  2. Bid rigging is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-403. Bid rotating; penalties; prohibitions.

  1. A person commits bid rotating when, pursuant to any collusive scheme, plan or agreement with another, he engages in a pattern of submitting sealed bids to governmental entities with the intent that the award of those bids rotates or is distributed among persons that submit bids on a substantial number of the same or similar public contracts. For purposes of this subsection, a pattern of submitting sealed bids shall include not less than three (3) contract bids within a period of ten (10) years.
  2. Bid rotating is a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-404. Acquisition or disclosure of bidding information by a public servant.

  1. A public servant who knowingly opens a sealed bid at a time or place other than that designated in the invitation to bid or as otherwise provided for by state law or local ordinance, or who knowingly opens a bid outside of the presence of witnesses if required by state law or local ordinance, is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  2. Any public servant who knowingly discloses to any interested person any information related to the terms of a sealed bid, except when the information is obtained as provided by law or if the disclosure is necessary to the public servant’s responsibilities relating to the bid, is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both. This subsection shall not apply to any public servant who makes any disclosure of information related to a sealed bid when that disclosure would otherwise be made available to the public upon request.
  3. This section shall apply only to public contracts for which sealed bids are submitted.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-405. Interference with contract submission and award by a public servant.

  1. A public servant who knowingly conveys, either directly or indirectly and outside of the publicly available official invitation to bid or pre-qualify to bid or solicitation for contracts, any information concerning the specifications for a contract or the identity of any specific potential prime contractors or subcontractors, when disclosure of that information is intended to influence the likelihood of acceptance of a bid or offer, is guilty of a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both. This subsection shall not apply to a public servant who conveys information intended to clarify plans or specifications regarding a public contract where disclosure of that information is also made available to the public upon request.
  2. A public servant who, either directly or indirectly, knowingly informs a bidder or offeror that the bid or offer will be accepted or executed only if specified persons are included as subcontractors is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both.
  3. Any public servant who knowingly awards a public contract based on criteria that were not publicly disseminated via an invitation to bid that is published pursuant to law, a pre-bid or pre-qualification conference or any other lawful procedure for soliciting contracts is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than ten thousand dollars ($10,000.00), or both. This subsection shall not apply to any public servant who provides a person a copy of the transcript or other summary of any pre-bid or pre-qualification conference where the transcript or summary would otherwise be made available to the public upon request.
  4. This section shall apply only to public contracts for which sealed bids are submitted.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-406. Kickbacks; penalties; civil action.

  1. A person is guilty of providing or accepting kickbacks when he knowingly:
    1. Provides, attempts to provide or offers to provide any kickback;
    2. Solicits, accepts or attempts to accept any kickback; or
    3. Includes, either directly or indirectly, the amount of any kickback in the contract price charged by a subcontractor to a prime contractor or a higher-tier subcontractor or includes, either directly or indirectly, in the contract price the amount of any kickback in the contract price charged by a prime contractor to a governmental entity for a public contract.
  2. Providing or accepting kickbacks is a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than one (1) year, or both.
  3. A governmental entity may file a civil action to recover a civil penalty of two (2) times the amount of each kickback from any person who knowingly engages in conduct prohibited by paragraph (a)(iii) of this section. This subsection shall not be construed to limit any governmental entity from seeking to recover damages as authorized by any other law. A civil action shall not be commenced under this subsection after six (6) years of the later of the date on which:
    1. The conduct establishing the civil action occurred; or
    2. The governmental entity knew or should have known that the conduct establishing the civil action occurred.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-407. Bribery of an inspector employed by a contractor.

  1. A person commits bribery of an inspector when:
    1. He offers to any person any property or other thing of value with the intent to obtain a wrongful certification or approval of the quality or completion of any goods, services or construction supplied or performed in the course of performing the obligations of a public contract; or
    2. He is employed by a prime contractor or subcontractor to work pursuant to a public contract and he accepts any property or other thing of value knowing that the property or thing of value was intentionally offered for the purpose of influencing the certification or approval of the quality or completion of any goods, services or construction supplied or performed under a subcontract and he issues a wrongful certification.
  2. Bribery of an inspector is a felony punishable by imprisonment for not more than ten (10) years, a fine of not more than five thousand dollars ($5,000.00), or both.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

§ 6-5-408. Prohibitions for bidding.

  1. Any person convicted of any offense under this article or of any substantially similar offense under federal law or the laws of another state shall be barred for three (3) years from the date of conviction from contracting with any governmental entity.
  2. No partnership, company or corporation shall be barred under this section if an employee of the partnership, company or corporation is convicted under this section if the employee is no longer employed by the partnership, company or corporation and the partnership, company or corporation:
    1. Has been found not guilty or the case against the partnership, company or corporation has been dismissed if charged under this section; or
    2. Demonstrates to the satisfaction of the governmental entity with which it seeks to contract that the employee’s offense was not authorized, requested, commanded or performed by a director or officer of the partnership, company or corporation.

History. Laws 2021, ch. 36, § 2.

Effective dates. —

Laws 2021, ch. 36, § 3, makes the act effective July 1, 2021.

Chapter 6 Offenses Against Public Peace

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 1. Disturbances of Public Order

Cross references. —

For constitutional provision prohibiting the importation of armed force to suppress violence, with certain exceptions thereto, see art. 19, § 6, Wyo. Const.

As to general powers of cities and towns to regulate, prevent or suppress riots and disturbances, see § 15-1-103 .

For provision prohibiting bodies of men other than national guard troops or troops of the United States from parading with arms without license of the governor, see § 19-8-104 .

As to authority of the governor to order the national guard to repeal or suppress riots, invasions or insurrection, see § 19-9-206 .

As to authority of the governor to order the state militia to aid in preserving order and public safety in time of emergency, see § 19-9-207 .

Am. Jur. 2d, ALR and C.J.S. references. —

Prosecutions of inmates of state or local penal institutions for crime of riot, 39 ALR4th 1170.

§ 6-6-101. Fighting in public; penalties.

A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if, by agreement, he fights with one (1) or more persons in public.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Probable cause to arrest for breach of the peace. —

Where the officers knew of a phone call reporting a fight between a bartender and defendant who was identified by name, upon arrival defendant was standing by the bar having a heated verbal exchange with the bartender, there was broken glass on the floor, and defendant refused to comply with a request to speak with the officers outside and physically resisted removal, there was probable cause to arrest for breach of the peace under Wyo. Stat. Ann. § 6-6-102(a), and an officer was acting in the lawful performance of his duties when defendant kneed him in the groin, supporting defendant's conviction of felony interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b). Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Sufficiency of evidence to establish criminal participation by individual involved in gang fight or assault, 24 ALR4th 243.

What constitutes sufficiently violent, tumultuous, forceful, aggressive or terrorizing conduct to establish crime of riot in state courts, 38 ALR4th 648.

§ 6-6-102. Breach of the peace; penalties.

  1. A person commits breach of the peace if he disturbs the peace of a community or its inhabitants by unreasonably loud noise or music or by using threatening, abusive or obscene language or violent actions with knowledge or probable cause to believe he will disturb the peace.
  2. Breach of the peace is a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1996, ch. 63, § 1.

Cross references. —

For general powers of cities and towns to regulate, prevent or suppress noises, disturbances or disorderly assemblies, see § 15-1-103 .

Probable cause. —

Where the officers knew of a phone call reporting a fight between a bartender and defendant who was identified by name, upon arrival defendant was standing by the bar having a heated verbal exchange with the bartender, there was broken glass on the floor, and defendant refused to comply with a request to speak with the officers outside and physically resisted removal there was probable cause to arrest for breach of the peace under this section, and an officer was acting in the lawful performance of his duties when defendant kneed him in the groin, supporting defendant's conviction of felony interference with a peace officer in violation of Wyo. Stat. Ann. § 6-5-204(b). Mascarenas v. State, 2003 WY 124, 76 P.3d 1258, 2003 Wyo. LEXIS 149 (Wyo. 2003).

Federal gun permit denied based on conviction for breach ofpeace. —

The department of criminal investigation (DCI) did not err when it denied a concealed gun permit under 18 U.S.C.S. § 922(g) to an applicant who had been convicted of breach of the peace involving an altercation with his spouse; the “violent action” language in the Wyoming breach of peace statute is included in the federal statute which prohibits those convicted of “domestic violence” from possessing firearms. King v. Wyo. Div. of Crim. Investigation, 2004 WY 52, 89 P.3d 341, 2004 Wyo. LEXIS 63 (Wyo. 2004).

Applied in

Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (1915).

Quoted in

Salisbury Livestock Co. v. Colorado Cent. Credit Union, 793 P.2d 470, 1990 Wyo. LEXIS 68 (Wyo. 1990).

Cited in

Snyder v. Hausheer, 268 F. 776, 1920 U.S. App. LEXIS 2365 (8th Cir. 1920); Jessen v. State, 622 P.2d 1374, 1981 Wyo. LEXIS 283 (Wyo. 1981).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Misuse of telephone as breach of peace, 97 ALR2d 503.

Participation of student in demonstration on or near campus as warranting imposition of criminal liability, 32 ALR3d 551.

Insulting words addressed directly to police officer as breach of peace or disorderly conduct, 14 ALR4th 1252.

Civil liability for insulting or abusive language — modern status, 20 ALR4th 773.

What constitutes sufficiently violent, tumultuous, forceful, aggressive or terrorizing conduct to establish crime of riot in state courts, 38 ALR4th 648.

Validity, construction, and effect of “hate crimes” statutes, “ethnic intimidation” statutes, or the like, 22 ALR5th 261.

Validity, construction, and operation of Federal disorderly conduct regulation (36 C.F.R. § 2.34), 180 ALR Fed 637.

§ 6-6-103. Telephone calls; unlawful acts; penalties; communicating a threat of bodily injury or death; place of commission of crime.

  1. A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if he telephones another anonymously or under a false or fictitious name and uses obscene, lewd or profane language or suggests a lewd or lascivious act with intent to terrify, intimidate, threaten, harass, annoy or offend.
  2. A person commits a misdemeanor punishable by imprisonment for not more than one (1) year, a fine of not more than one thousand dollars ($1,000.00), or both, if:
    1. By repeated anonymous telephone calls, he disturbs the peace, quiet or privacy of persons where the calls were received; or
    2. He telephones or otherwise electronically or in writing communicates with a person and threatens to:
      1. Inflict death to the person, to the person’s immediate family or to anyone at the school in which the person is a student or employee; or
      2. Inflict injury or physical harm to the person, to the person’s immediate family or to property of the person.
  3. A crime under this section is committed at the place where the calls or other electronic or written communications either originated or were received.
  4. For purposes of this section, “immediate family” means a spouse, parent, sibling, child or other person living in the person’s household.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2013, ch. 136, § 1.

The 2013 amendment , rewrote the introductory language in (b)(ii), added “or other electronic or written communications” in (c), and added (b)(ii)(A), (B) and (d).

Laws 2013, ch. 136, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Article 4, Section 8 of the Wyoming Constitution. Approved March 13, 2013.

Constitutionality. —

This section is not unconstitutionally void for vagueness, or unconstitutionally overbroad. Brock v. State, 981 P.2d 465, 1999 Wyo. LEXIS 73 (Wyo. 1999).

Section not lesser included crime of terrorist threats. —

This section (threatening telephone calls) is not a lesser included crime of § 6-2-505 (terrorist threats). For example, if the state proves that a person threatened a violent felony in reckless disregard of the risk of causing an evacuation, they have proved the elements of § 6-2-505 but not the elements of this section, because there is no proof that the threat was telephoned. Therefore, the elements of this section are not identical to, nor a subset of, the elements of § 6-2-505, and this section is not a lesser included crime. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Sentence was within authority granted by section. —

Where the defendant pled guilty to seven distinct offenses and was given a term of incarceration within the legislatively authorized limit for each offense, and the district court chose to impose consecutive terms, as was in its discretion, the sentence was not beyond the authority granted in this section. Tilley v. State, 912 P.2d 1140, 1996 Wyo. LEXIS 42 (Wyo. 1996).

Cited in

Coleman v. State, 741 P.2d 99, 1987 Wyo. LEXIS 489 (Wyo. 1987); Garton v. State, 910 P.2d 1348, 1996 Wyo. LEXIS 16 (Wyo. 1996).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Forum state's jurisdiction over nonresident defendant in action based on obscene or threatening telephone call from out of state, 37 ALR4th 852.

Telephone calls as nuisance, 53 ALR4th 1153.

§ 6-6-104. Unlawful automated telephone solicitation; exceptions; penalties.

  1. No person shall use an automated telephone system or device for the selection and dialing of telephone numbers and playing of recorded messages if a message is completed to the dialed number, for purposes of:
    1. Offering any goods or services for sale;
    2. Conveying information on goods or services in soliciting sales or purchases;
    3. Soliciting information;
    4. Gathering data and statistics; or
    5. Promoting or any other use related to a political campaign.
  2. This section shall not prohibit the use of an automated telephone system or device described under subsection (a) of this section for purposes of informing purchasers of the receipt, availability or delivery of goods or services, any delay or other pertinent information on the status of any purchased goods or services or responding to an inquiry initiated by any person, or the use of an automated telephone dialing system as authorized by W.S. 40-12-303 .
  3. Any person violating subsection (a) of this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1987, ch. 224, § 1; 2001, ch. 163, § 2.

Cited in

Blakeman v. State, 2004 WY 139, 100 P.3d 1229, 2004 Wyo. LEXIS 179 (2004).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction, and application of state statute or law pertaining to telephone solicitation, 44 ALR5th 619.

Validity, construction and application of Telephone Consumer Protection Act (47 USCS § 227), 132 ALR Fed 625.

§ 6-6-105. Unlawful protesting at a funeral; penalties.

A person commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both, if he protests, pickets, or otherwise causes a breach of the peace within nine hundred (900) feet of a cemetery, church, building or other facility at which a funeral or memorial service is being conducted, and if the protest, picket or other action occurs within one (1) hour prior to, during or within one (1) hour after the funeral or memorial service and the protest, picket, or breach of the peace is directed at the funeral or memorial service.

History. Laws 2007, ch. 53, § 1; 2011, ch. 80, § 1.

The 2011 amendment, effective July 1, 2011, substituted “nine hundred (900)” for “three hundred (300),” and added “and the protest, picket, or breach of the peace is directed at the funeral or memorial service” at the end.

Effective dates

Laws 2007, ch. 53, § 2, makes the act effective July 1, 2007.

Article 2. Nuisances

Cross references. —

As to gambling devices being subject to seizure, see § 6-7-103 .

As to abatement of actions for nuisances upon death of either or both parties, see § 1-4-102 .

As to recovery of cost in actions for nuisances, see § 1-14-125 .

As to general powers of cities and towns to declare and abate nuisances, see § 15-1-103 .

As to all outdoor advertising not conforming with the Outdoor Advertising Act constituting public nuisances, see § 24-10-102 .

For provision that display of unauthorized signs shall constitute a nuisance and as to removal thereof without notice, see § 31-5-406 .

As to operation of a crematorium in violation of statutes or regulations as constituting a public nuisance, see § 33-16-409 .

As to junkyards which do not conform to the Junkyard Control Act as public nuisances, see § 33-19-102 .

As to injunctions to abate junkyards which are nuisances, see § 33-19-107 .

As to penalty for failure to remove nuisance after notice, see § 35-1-105 .

As to powers and duties of director of public health relative to abatement of nuisances, see § 35-1-240 .

As to certain structures declared nuisances, see § 35-9-111 .

For duty of county commissioners as to abatement of nuisances in unincorporated cities or towns, see § 35-9-406 .

As to disposing of garbage so as to constitute a nuisance, see § 35-10-101 .

For provision declaring the violation of § 35-10-302 , relative to the storage of explosives, a nuisance, see § 35-10-303 .

For provision declaring the obstructing or injuring of highways, bridges, streams, and sewers a nuisance, see § 35-10-401 .

For additional authority of cities and towns to regulate nuisances in connection with public health and safety, see § 35-10-408 .

As to holding an assembly of people as constituting a public nuisance, see § 35-15-111 .

As to cancellation of leases in connection with Hot Springs state park for refusal or failure to comply with statutes or orders defining and publishing nuisances, see § 36-8-309 .

Cited in

Weiss v. State ex rel. Cardine, 455 P.2d 904, 1969 Wyo. LEXIS 145 (Wyo. 1969).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Massage parlor as nuisance, 80 ALR3d 1020.

Bells, carillons and the like as nuisance, 95 ALR3d 1268.

Windmill as nuisance, 36 ALR4th 1159.

Telephone calls as nuisance, 53 ALR4th 1153.

Legal aspects of speed bumps, 60 ALR4th 1249.

Encroachment of trees, shrubbery or other vegetation across boundary line, 65 ALR4th 603.

Business interruption, without physical damage, as actionable, 65 ALR4th 1126.

What constitutes special injury that entitles private party to maintain action based on public nuisance — modern cases, 71 ALR4th 13.

§ 6-6-201. “Nuisance” defined.

Whoever maintains, uses, owns or leases any structure, boat or vehicle for the purpose of lewdness, assignation, prostitution or gambling, or for manufacture, possession, sale or disposition of intoxicating liquor or any controlled substance in violation of law, is guilty of a nuisance, and the structure, boat or vehicle and the ground upon which the structure is situated and the furniture, fixtures, musical instruments, gambling devices, and instruments of every kind or nature, and contents, are also declared a nuisance, and shall be enjoined and abated.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to houses of ill fame and prostitution generally, see § 6-4-103 .

As to gambling and lotteries generally, see §§ 6-7-102 , 6-7-103 .

As to alcoholic beverages generally, see title 12.

As to controlled substances, see § 35-7-1001 et seq.

To constitute place common nuisance because of liquor being kept there, it had to be kept for sale. State v. Crump, 35 Wyo. 41, 246 P. 241, 1926 Wyo. LEXIS 5 (Wyo. 1926).

Control required over alleged nuisance. —

Although defendant's name remained on the liquor license of a lounge, the undisputed facts demonstrated that the defendants neither owned, controlled, maintained nor leased the lounge at the time plaintiff was injured, and because the defendants had sold the lounge under a contract, they would have had to resort to legal proceedings to assert any significant control over the establishment; therefore, no action in nuisance would lie against the defendants because they had no control over the alleged nuisance. Dubray v. Howshar, 884 P.2d 23, 1994 Wyo. LEXIS 133 (Wyo. 1994).

Applied in

Weiss v. State ex rel. Leimback, 435 P.2d 280, 1967 Wyo. LEXIS 189 (Wyo. 1967).

Cited in

State ex rel. Cone v. Bernweiser, 39 Wyo. 314, 271 P. 13, 1928 Wyo. LEXIS 98 (1928).

Am. Jur. 2d, ALR and C.J.S. references. —

Sale and use of intoxicating liquors at public dance as nuisance, 44 ALR2d 1381.

Admissibility of evidence of general reputation of premises, 68 ALR2d 1300.

Saloons or taverns as nuisance, 5 ALR3d 989.

Exhibition of obscene motion pictures as nuisance, 50 ALR3d 969.

Pornoshops or similar places disseminating obscene materials as nuisance, 58 ALR3d 1134.

§ 6-6-202. Abatement by injunction; suit by county attorney or citizen; petition; temporary injunction; notice to defendant; issuance and effect of injunction.

Whenever a nuisance exists as defined in this article, the county attorney or any citizen of the county may maintain an action in the name of the state of Wyoming upon the relation of the county attorney or citizen, to perpetually enjoin the nuisance, the person maintaining the nuisance, and the owner or agent of the building or ground upon which the nuisance exists. In the action, the court shall, upon the presentation of a petition alleging that the nuisance complained of exists, allow a temporary writ of injunction without bond, if it appears to the satisfaction of the court by evidence in the form of affidavits, depositions, oral testimony or otherwise. Three (3) days notice in writing shall be given the defendant of the application, and, if then continued at his instance, the writ as prayed shall be granted as a matter of course. When an injunction has been granted, it shall be binding on the defendant throughout the judicial district in which it was issued, and any violation of the provisions of injunction shall be a contempt.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to injunctions generally, see Rule 65, W.R.C.P. and §§ 1-28-101 through 1-28-111 .

Purpose of temporary injunction. —

Purpose of a temporary injunction is to preserve the status quo until the merits of an action can be determined. Weiss v. State, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

Award of temporary injunction is extraordinary remedy which will not be granted except upon a clear showing of probable success and possible irreparable injury to the plaintiff, lest the proper freedom of action of the defendant be circumscribed when no wrong has been committed. Weiss v. State, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

Temporary injunction rests upon alleged existence of emergency, or a special reason for such an order, before the case can be regularly heard. Weiss v. State, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

Applied in

State ex rel. Patterson v. Longpre & Cameron, 35 Wyo. 482, 251 P. 468, 1926 Wyo. LEXIS 28 (1926); State ex rel. Cone v. Bernweiser, 39 Wyo. 314, 271 P. 13, 1928 Wyo. LEXIS 98 (1928); Weiss v. State ex rel. Leimback, 435 P.2d 280, 1967 Wyo. LEXIS 189 (Wyo. 1967).

Cited in

Bird v. State, 36 Wyo. 532, 257 P. 2, 1927 Wyo. LEXIS 56 (1927).

Law reviews. —

For comment, “Hazardous Waste Cleanup in Wyoming: Legal Tools Available to the Private Citizen,” see XIX Land & Water L. Rev. 395 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of employee to injunction preventing employer from exposing employee to tobacco smoke in workplace, 37 ALR4th 480.

§ 6-6-203. Trial; evidence of general reputation; dismissal or prosecution of action; substitution of complainant; costs.

The action, when brought, shall be triable at the first term of court after due and timely service of the notice has been given. In the action evidence of the general reputation of the place is admissible for the purpose of proving the existence of the nuisance. If the complaint is filed by a citizen, it shall not be dismissed except upon a sworn statement made by the complainant and his attorney, setting forth the reason why the action should be dismissed, and the dismissal approved by the county attorney in writing or in open court. If the court finds the action ought not to be dismissed, he may direct the county attorney to prosecute the action to judgment. If the action is continued more than one (1) term of court, any citizen of the county or the county attorney may be substituted for the complaining party and prosecute the action to judgment. If the action is brought by a citizen and the court finds there was no reasonable ground or cause for the action, the costs may be taxed to the citizen.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Applied in

Weiss v. State ex rel. Danigan, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

§ 6-6-204. Order of abatement; removal and sale of movable property; closing of building; breaking and entering closed building; fees.

If the existence of the nuisance is established in an action as provided in this article, or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case. The order shall direct the removal from the building or place of all fixtures, furniture, musical instruments or movable property contained therein used in conducting the nuisance, and shall direct the sale thereof in the manner provided for the sale of personal property under execution, and shall order the closure of the structure or place against the use for a period specified by the court. If any person breaks and enters or uses a structure or place directed to be closed, he shall be punished as provided in W.S. 6-6-208 . For removing and selling the movable property, the officer shall be entitled to receive the same fees as he would for levying upon and selling like property on execution. For closing the premises and keeping them closed, a reasonable sum shall be allowed by the court.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to executions and stay of executions, see §§ 1-17-101 through 1-17-210 .

As to enforcement of lien of judgment by execution, see §§ 1-17-301 through 1-17-345 .

As to proceedings in aid of execution, see §§ 1-17-401 through 1-17-418 .

As to enforcement of foreign judgments, see §§ 1-17-701 through 1-17-707 .

Applied in

Weiss v. State ex rel. Danigan, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

§ 6-6-205. Disposition of proceeds of sale.

The proceeds of the sale of the personal property, as provided in W.S. 6-6-204 , shall be applied in payment of the costs of the action and abatement, and the balance, if any, shall be paid to the defendant.

History. Laws 1982, ch. 75, § 3.

§ 6-6-206. Cancellation of closing order and release of property upon payment of costs, filing of bond and promised abatement of nuisance; effect of release.

If the owner appears and pays all costs of the proceeding, and files a bond with sureties to be approved by the clerk in the full value of the property, as specified by the court, conditioned that he will immediately abate the nuisance and prevent recurrence of the nuisance for a time specified by the court, the court may, if satisfied of his good faith, cancel the order of abatement as it relates to the property. The release of the property under this section shall not release it from any judgment, lien or liability to which it may be subject by law.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Stated in

Weiss v. State ex rel. Danigan, 434 P.2d 761, 1967 Wyo. LEXIS 188 (Wyo. 1967).

§ 6-6-207. Assessment of tax when permanent injunction issues; collection; continuing liability for other penalties.

Whenever a permanent injunction issues against any person for maintaining a nuisance or against the owner or agent of any building kept or used for the purposes prohibited by this article, there shall be assessed against the building and the ground upon which it is located and against the person or persons maintaining the nuisance, and the owner or agent of the premises, a tax of three hundred dollars ($300.00). The assessment of the tax shall be made by the assessor of the county in which the nuisance exists and shall be made within three (3) months from the date of granting of the permanent injunction. If the assessor fails or neglects to make the assessment, it shall be made by the sheriff of the county and a return of the assessment shall be made to the county treasurer. The tax may be enforced and collected in the manner prescribed for the collection of taxes under the general revenue laws and shall be a perpetual lien upon all property, both personal and real used for the purpose of maintaining the nuisance. The payment of the tax does not relieve the person or building from any other penalties provided by law and when collected shall be applied and distributed in the manner prescribed by law for the application and distribution of monies arising from the collection of fines and penalties in criminal cases.

History. Laws 1982, ch. 75, § 3.

Cross references. —

As to disposition of fines, see § 6-10-108 .

As to assessment, levy and collection of taxes generally, see chapters 11 and 13 in title 39.

§ 6-6-208. Contempt proceedings for violation of injunction; commencement; trial; penalties.

If any injunction granted under this article is violated, the court may summarily try and punish the offender. The proceedings shall be commenced by filing with the clerk of the court an information under oath, setting out the alleged facts constituting the violation, upon which the court shall cause a warrant to issue, under which the defendant shall be arrested. The trial may be had upon affidavits, or either party may demand the production and oral examination of the witnesses. A party found guilty of contempt under this section shall be punished by a fine of not more than one thousand dollars ($1,000.00), or by imprisonment in the county jail not more than six (6) months, or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to criminal contempt, see Rule 42, W.R. Cr. P.

Contempt proceeding is summary in nature and sui generis in character. Weiss v. State, 455 P.2d 904, 1969 Wyo. LEXIS 145 (Wyo. 1969), cert. denied, 398 U.S. 927, 90 S. Ct. 1815, 26 L. Ed. 2d 89, 1970 U.S. LEXIS 1748 (U.S. 1970).

And not “criminal case.” —

Proceeding against defendant in connection with a citation for contempt was not a “criminal case” within the meaning of that term as used in art. 1, § 9, Wyo. Const.Weiss v. State, 455 P.2d 904, 1969 Wyo. LEXIS 145 (Wyo. 1969), cert. denied, 398 U.S. 927, 90 S. Ct. 1815, 26 L. Ed. 2d 89, 1970 U.S. LEXIS 1748 (U.S. 1970).

Single violation of injunction order makes defendant liable for contempt. Tucker v. State, 35 Wyo. 430, 251 P. 460, 1926 Wyo. LEXIS 27 (Wyo. 1926).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-6-209. “Public nuisance” defined; maintenance thereof; penalty.

Every structure, boat or vehicle used and occupied as a house of ill fame, or for purposes of prostitution or gambling, or for the purpose of manufacture, possession, sale or disposition of intoxicating liquor or any controlled substance in violation of law shall be held and deemed a public nuisance. Any person owning, or having the control of the property, and knowingly leasing or subletting the property, in whole or in part, for the purpose of keeping a house or place of ill fame, prostitution or gambling, or for the purpose of manufacture, possession, sale or disposition of intoxicating liquor or any controlled substance in violation of law, or knowingly permitting the property to be used or occupied for that purpose, or using or occupying the property for that purpose, shall for every offense be fined not exceeding seven hundred fifty dollars ($750.00) or be imprisoned in the county jail not to exceed six (6) months.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to houses of ill fame and prostitution generally, see § 6-4-103 .

As to gambling generally, see §§ 6-7-102 , 6-7-103 .

As to alcoholic beverages, see title 12.

As to controlled substances, see § 35-7-1001 et seq.

Control required over alleged nuisance. —

Although defendant's name remained on the liquor license of a lounge, the undisputed facts demonstrated that the defendants neither owned, controlled, maintained nor leased the lounge at the time plaintiff was injured, and because the defendants had sold the lounge under a contract, they would have had to resort to legal proceedings to assert any significant control over the establishment; therefore, no action in nuisance would lie against the defendants because they had no control over the alleged nuisance. Dubray v. Howshar, 884 P.2d 23, 1994 Wyo. LEXIS 133 (Wyo. 1994).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 3. Unlawful Conduct Within Governmental Facilities

Cross references. —

As to disruption of government agency meetings, see § 16-4-406 .

Am. Jur. 2d, ALR and C.J.S. references. —

12 Am. Jur. 2d Breach of the Peace and Disorderly Conduct §§ 7, 29; 53A Am. Jur. 2d Mobs and Riots §§ 6 to 40; 75 Am. Jur. 2d Trespass §§ 162 to 199.

67 C.J.S. Obstructing Justice or Governmental Administration §§ 9, 11; 77 C.J.S. Riot § 1 et seq.

§ 6-6-301. Definitions.

  1. As used in W.S. 6-6-301 through 6-6-307 :
    1. “Governing body” means any elected or appointed commission, board, agency, council, trustees or other body created or authorized by the laws of this state and vested with authority to perform specified governmental, educational, proprietary or regulatory functions;
    2. “Facilities” means any lands, buildings or structures.

History. Laws 1971, ch. 136, § 1; W.S. 1957, § 9-718; W.S. 1977, § 9-16-101 ; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 6-6-302. Obstructive or disruptive conduct within governmental facilities prohibited.

  1. No person, acting either singly or in concert with others, shall go into or upon facilities owned by, or under the control of, a governing body and obstruct or disrupt, by force, violence or other conduct which is in fact obstructive or disruptive, the activities conducted therein or thereon or the uses made thereof under the authority of the governing body. Obstructive or disruptive activities include restricting lawful:
    1. Freedom of movement on or within a facility;
    2. And designated use of a facility;
    3. Ingress or egress on or within a facility.

History. Laws 1971, ch. 136, § 2; W.S. 1957, § 9-719; W.S. 1977, § 9-16-102 ; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-6-303. Refusing to desist or remove oneself from facilities.

No person within or upon the facilities of a governing body shall refuse to desist from a course of conduct or to remove himself from the facilities upon request by an authorized representative of the governing body, after having been notified that the conduct or the presence of the person is contrary to or in violation of established policies, rules or regulations of the governing body which are reasonably related to the furtherance of the lawful purposes of the governing body and incident to the maintenance or orderly and efficient use of its facilities for the purposes for which acquired or designated.

History. Laws 1971, ch. 136, § 3; W.S. 1957, § 9-720; W.S. 1977, § 9-16-103 ; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-6-304. Freedom of speech, press or assembly not abridged.

Nothing in W.S. 6-6-301 through 6-6-307 prevents, denies or abridges the freedom of speech or of the press, or the right of the people peaceably to assemble to consult for the common good, to make known their opinions, and to petition for the redress of grievances.

History. Laws 1971, ch. 136, § 4; W.S. 1957, § 9-721; W.S. 1977, § 9-16-104; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Cross references. —

As to freedom of speech and press, see art. 1, § 20, Wyo. Const.

As to right to petition and peaceably assemble, see art. 1, § 21, Wyo. Const.

§ 6-6-305. Penalties for violations of article.

Any person violating any provision of W.S. 6-6-301 through 6-6-307 is guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than seven hundred fifty dollars ($750.00), or by imprisonment in the county jail for a period not to exceed sixty (60) days, or both.

History. Laws 1971, ch. 136, § 5; W.S. 1957, § 9-722; W.S. 1977, § 9-16-105; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-6-306. Identification may be required; ejectment from facilities when presence unlawful or prohibited.

Every governing body, acting through its officers and employees, may require identification of any person within or upon its facilities and eject any person from the facilities upon his refusal to leave peaceably upon request, when his presence in a facility is unlawful or otherwise prohibited by the governing body.

History. Laws 1971, ch. 136, § 6; W.S. 1957, § 9-723; W.S. 1977, § 9-16-106; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-6-307. No restriction on powers of governing body.

Nothing within W.S. 6-6-301 through 6-6-307 is intended, nor shall operate, to limit or restrict each governing body from carrying out its purposes and objectives through the exercise of powers otherwise granted by law nor shall preclude a governing body from taking disciplinary action against those violating W.S. 6-6-301 through 6-6-307 who are subject to its disciplinary authority.

History. Laws 1971, ch. 136, § 7; W.S. 1957, § 9-724; W.S. 1977, § 9-16-107; Laws 1982, ch. 62, § 2; 1983, ch. 171, § 2.

Chapter 7 Offenses Against Public Policy

Editor's notes. —

There is no article 2 of this chapter as it appears following the 1982-1983 revision of this title.

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and application of statutes or ordinances involved in prosecutions for possession of bookmaking paraphernalia, 51 ALR4th 796.

Validity, construction and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking, 53 ALR4th 801.

Private contests and lotteries: entrants' rights and remedies, 64 ALR4th 1021.

Validity, construction and application of statute or ordinance prohibiting or regulating use of messenger services to place wagers in pari-mutuel pool, 78 ALR4th 483.

Validity of statute or ordinance prohibiting or regulating bookmaking or pool selling, 80 ALR4th 1079.

Civil action for damages under 18 USC § 1964(c) of the Racketeer Influenced and Corrupt Organizations Act (RICO, 18 USC §§ 1961 et seq.) for injuries sustained by reason of racketeering activity, 70 ALR Fed 538.

Article 1. Gambling

Cross references. —

As to definition of nuisance to include a place of gambling or containing gambling devices, see § 6-6-201 .

As to using a place for the purpose of gambling as constituting a public nuisance, see § 6-6-209 .

For provision declaring gambling contracts void, see § 1-23-106 .

As to gambling being prohibited at state fair, see § 11-10-107 .

As to pari-mutuel wagering on horse racing generally, see §§ 11-25-101 through 11-25-113 .

As to prohibition against gambling in places where alcoholic and malt beverages are sold, see § 12-5-204 .

As to general powers of cities and towns to suppress, restrain or prohibit gambling games or devices and destroy all instruments or devices used for the purpose of gambling, see § 15-1-103 .

As to prohibition against gambling in Hot Springs state park, see § 36-8-314 .

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-7-101. Definitions. [Effective until September 1, 2021]

  1. As used in this article:
    1. “Calcutta wagering” means wagering on the outcome of amateur contests, cutter horse racing, dog sled racing, professional rodeo events or professional golf tournament in which those who wager bid at auction for the exclusive right to “purchase” or wager upon a particular contestant or entrant in the event and when the outcome of the event has been decided the total wagers comprising the pool, less a percentage “take-out” by the event’s sponsor, is distributed to those who “purchased” or wagered upon the winning contestants or entrants;
    2. “Gain” means the direct realization of winnings;
    3. “Gambling” means risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include any of the following:
      1. Bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries. This exception shall not include skill based amusement games;
      2. Bona fide business transactions which are valid under the law of contracts;
      3. Other acts or transactions now or hereafter expressly authorized by law;
      4. Bingo games conducted, or pull tabs sold, by charitable or nonprofit organizations where the tickets for the bingo are sold only in this state and the pull tabs are sold only on the premises owned or occupied by the charitable or nonprofit organization provided that:
        1. Bingo games and pull tab games shall only be conducted by charitable or nonprofit organizations, which have been in existence in this state for at least three (3) years and, commencing July 1, 2020, are licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct bingo or pull tab games;
        2. In conducting bingo games and pull tab games the organization shall use only volunteers who are bona fide members of the charitable or nonprofit organization or employees or contractors who are paid by the organization to assist in the operation of the game;
        3. Players of bingo games or pull tab games shall be eighteen (18) years or older;
        4. At least sixty-five percent (65%) of all gross sales shall be redeemed as winnings each month. The net proceeds after payment of winnings shall be restricted as follows:
          1. No more than forty percent (40%) of net proceeds shall be paid to distributors or manufacturers of supplies or equipment necessary to conduct the game; and
          2. Seventy-five percent (75%) of the net proceeds remaining after payment for all costs and supplies shall be donated within one (1) year by the organization to a bona fide charitable or benevolent purpose.
        5. The charitable or nonprofit organization conducting the bingo game or pull tab game may purchase supplies or equipment necessary to conduct the game from a distributor or manufacturer at a price based on a per card or pull tab basis subject to the limitations provided in subdivision (D)(IV)(1) of this paragraph.
      5. Any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only, and in which no person is participating, directly or indirectly, in professional gambling;
      6. Calcutta wagering on contests or events conducted by a bona fide nationally chartered veterans’, religious, charitable, educational or fraternal organization or nonprofit local civic or service club organized or incorporated under the laws of this state and, commencing July 1, 2020, licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct calcutta wagering on contests or events, provided that:
        1. The contest or event is conducted solely in this state;
        2. Any rules affecting the contest or requirements for participants are clearly posted;
        3. The total prizes or prize money paid out in any one (1) contest or event does not exceed ninety percent (90%) of the total wagers;
        4. A minimum of ten percent (10%) of the total wagers on each contest or event is donated within one (1) year by the sponsoring organization to a bona fide charitable or benevolent purpose;
        5. No separate organization or professional person is employed to conduct the contest or event or assist therein;
        6. The sponsoring organization before conducting the contest or event gives thirty (30) days written notice of the time and place thereof to the governing body of the county or municipality in which it intends to conduct the contest or event and the governing body does not pass a resolution objecting thereto;
        7. The sponsoring organization has complied with the relevant sections of the internal revenue code of 1954, as amended, relating to taxes on wagering.
      7. Display or private use of antique gambling devices in the owner’s residence;
      8. Raffles conducted for charitable purposes;
      9. Any lottery game authorized and run by the Wyoming lottery corporation pursuant to W.S. 9-17-101 through 9-17-128 ;
      10. The hunting license raffle provided by W.S. 23-1-302(p);
      11. Activities authorized by the Wyoming gaming commission under title 11, chapter 25 of the Wyoming statutes.
    4. “Gambling device” means any device, machine, paraphernalia or equipment except an antique gambling device that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine;
    5. “Gambling premise” means any building, room, enclosure, vehicle, vessel or other place, whether open or enclosed, used or intended to be used for professional gambling. Any place where a gambling device is found is presumed to be intended to be used for professional gambling;
    6. “Gambling proceed” means all money or property at stake or displayed in or in connection with professional gambling;
    7. “Gambling record” means any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling;
    8. “Professional gambling” means:
      1. Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or
      2. Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one (1) or more of the other participants.
    9. “Profit” means benefit other than a gain, which is realized or unrealized and direct, including benefits from unequal advantage in a series of transactions but does not include benefits of proprietorship or management of a business wherein a game, wager or transaction described in W.S. 6-7-101(a)(iii)(E) occurs;
    10. “Antique gambling device” means a mechanically or electronically operated slot machine that is at least twenty-five (25) years old and used only for display or personal amusement in the owner’s residence, in public and private museums, in possession of a dealer or distributor of lawful gaming equipment or displayed at state or local historic sites;
    11. “Charitable or nonprofit organization” means an organization recognized as a charitable or nonprofit organization under Wyoming statutes and which possesses a valid exemption from federal income tax issued by the Internal Revenue Service under the provisions of 26 U.S.C. § 501(c) and political parties organized under the law of Wyoming and exempt from federal income tax issued by the Internal Revenue Service under the provisions of 26 U.S.C. § 527;
    12. Repealed by Laws 2007, ch. 52, § 1.
    13. “Skill based amusement game” means as defined by W.S. 11-25-102(a)(xix).

History. Laws 1982, ch. 75, § 3; 1983, ch. 105, § 1; 1985, ch. 14, § 1; 1987, ch. 105, § 1; 1991, ch. 215, § 1; 1996, ch. 115, § 1; 2006, ch. 114, § 1; 2007, ch. 51, § 1; ch. 52, § 1; 2011, ch. 176, § 1; 2013, ch. 55, § 1; ch. 200, § 2; 2020, ch. 114, § 2; 2021, ch. 100, § 2; ch. 109, § 2.

The 2006 amendment made a stylistic change in (a)(viii)(B).

Laws 2006, ch. 114, § 5, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2006.

The 2007 amendments. —

The first 2007 amendment, by ch. 51, § 1, effective July 1, 2007, rewrote (a), inserting (iii)(D)(I) through (V); adding (H)(xi) through (xii); and making related and stylistic changes.

The second 2007 amendment, by ch. 52 § 1, effective July 1, 2007, repealed (a)(xii), as added by 2007 ch. 51, § 1, which pertained to the definition of “‘Bingo game.’”

While neither act gave effect to the other, both have been set out above.

The 2011 amendment, in the introductory language of (a)(iii), added “any of the following”; and deleted “or” at the end of (a)(iii)(E).

Laws 2011, ch. 176, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2011.

The 2013 amendments. —

The 2013 amendment, by ch. 55, § 1, effective July 1, 2013, added (a)(iii)(J) (renumbered as (a)(iii)(K)).

The 2013 amendment, by ch. 200, § 2, effective July 1, 2013, added (a)(iii)(J).

This section is set out as reconciled by the Wyoming legislative service office.

The 2020 amendment, in (a)(iii)(A) added the last sentence; in (a)(iii)(D)(I) added “and, commencing July 1, 2020, are licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct bingo or pull tab games” at the end; in the introductory language of (a)(iii)(F) substituted “this state and, commencing July 1, 2020, licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct calcutta wagering on contests or events, provided that” for “this state provided that”; added (a)(iii)(M); and added (a)(xiii).

Laws 2020, ch. 114, § 6, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 17, 2020.

The 2021 amendments. —

The first 2021 amendment, by ch. 100, § 2, effective September 1, 2021, added (a)(iii)(N) and (a)(iii)(O).

The second 2021 amendment, by ch. 109, § 2, substituted "under title 11, chapter 25 of the Wyoming statutes" for "pursuant to law" in (a)(iii)(M); added "and political parties organized under the law of Wyoming and exempt from federal income tax issued by the Internal Revenue Service under the provisions of 26 U.S.C. § 527" in (a)(xi); and substituted "means as defined by W.S. 11-25-102(a)(xix)" for "means a game played in exchange for consideration of cash, credit or other thing of value on a fixed, commercial electrical gaming device in which the bona fide skill of the player, determined by an individual's level of strategy and skill, is a factor in determining the outcome and for which the player may be awarded a prize or other thing of value for a successful outcome" in (a)(xiii).

Laws 2021, ch. 109, § 7, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 5, 2021.

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Laws 2007, Ch. 52, § 2 states: “It is the intent of the legislature by passage of this act that bingo, as authorized by Wyoming law, including 2007 Senate Enrolled Act 5, shall be limited to those bingo games held to be authorized by the Wyoming Supreme Court in Fraternal Order of Eagles Sheridan Aerie No. 186, Inc. v. State of Wyoming, 2006 WY 4 (Wyo. 2006) and that those games found to be prohibited in that case shall remain unlawful.”

Internal Revenue Code. —

The federal Internal Revenue Code, referred to in subsection (a)(iii)(F)(VII), appears in 26 U.S.C.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “[A]ny other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Construction nonprecedential. —

Order granting rehearing was vacated as improvidently granted; the panel opinion was premised on State admission that casino gambling was allowed if conducted in a bona fide social relationship, and when the State reversed its position, the en banc court decided that the panel opinion interpreting this section was law of the case, but otherwise nonprecedential. N. Arapaho Tribe v. Wyoming, 429 F.3d 934, 2005 U.S. App. LEXIS 24668 (10th Cir. Wyo. 2005).

Constitutional to prosecute book-making operation. —

The statutory definition of “professional gambling” was not unconstitutionally vague as applied to the defendant, who was involved in a book-making operation. Hobbs v. State, 757 P.2d 1008, 1988 Wyo. LEXIS 101 (Wyo. 1988).

Following items were “gambling devices,” and they could not be saved by the claimed exception for “games of chance known as raffles or bingo conducted by charitable or nonprofit organizations” contained in former § 6-9-111: “shawnee” games, electronic bingo game, blackjack tables, crap tables, “pickle cards” and vending machine, poker chips, and cards. 37 Gambling Devices (Cheyenne Elks Club & Cheyenne Music & Vending, Inc.) v. State, 694 P.2d 711, 1985 Wyo. LEXIS 436 (Wyo. 1985).

Instant racing. —

Instant racing, a patented computerized system offering pari-mutuel wagering on horse races run in the past, is not lawful in Wyoming. Instant racing terminals are illegal gambling devices prohibited by Wyo. Stat. Ann. § 6-7-101(a)(iv). Wyoming Downs Rodeo Events v. Company V., 2006 WY 55, 134 P.3d 1223, 2006 Wyo. LEXIS 65 (Wyo. 2006).

Law reviews. —

For article, “Pinball Machines Which Award Free Games as Gambling Devices,” see 11 Wyo. L.J. 163.

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Coin-operated or slot machine which may be played for amusement only or which confines winner's award to privilege of additional play or other form of amusement, as within antigambling statutes, 89 ALR2d 815.

Bridge as within gambling laws, 97 ALR2d 1420.

Paraphernalia or appliances used for recording gambling transactions or receiving or furnishing gambling information as gaming “devices” within criminal statute or ordinance, 1 ALR3d 726.

Gambling in private residence as prohibited or permitted by antigambling laws, 27 ALR3d 1074.

Construction and application of enactments relating to policy or numbers games, 70 ALR3d 897.

Validity and construction of statute or ordinance regulating commercial video game enterprises, 38 ALR4th 930.

Validity, construction and application of statute or ordinance prohibiting or regulating use or occupancy of premises for bookmaking or pool selling, 82 ALR4th 356.

§ 6-7-101. Definitions. [Effective September 1, 2021]

  1. As used in this article:
    1. “Calcutta wagering” means wagering on the outcome of amateur contests, cutter horse racing, dog sled racing, professional rodeo events or professional golf tournament in which those who wager bid at auction for the exclusive right to “purchase” or wager upon a particular contestant or entrant in the event and when the outcome of the event has been decided the total wagers comprising the pool, less a percentage “take-out” by the event’s sponsor, is distributed to those who “purchased” or wagered upon the winning contestants or entrants;
    2. “Gain” means the direct realization of winnings;
    3. “Gambling” means risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include any of the following:
      1. Bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries. This exception shall not include skill based amusement games;
      2. Bona fide business transactions which are valid under the law of contracts;
      3. Other acts or transactions now or hereafter expressly authorized by law;
      4. Bingo games conducted, or pull tabs sold, by charitable or nonprofit organizations where the tickets for the bingo are sold only in this state and the pull tabs are sold only on the premises owned or occupied by the charitable or nonprofit organization provided that:
        1. Bingo games and pull tab games shall only be conducted by charitable or nonprofit organizations, which have been in existence in this state for at least three (3) years and, commencing July 1, 2020, are licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct bingo or pull tab games;
        2. In conducting bingo games and pull tab games the organization shall use only volunteers who are bona fide members of the charitable or nonprofit organization or employees or contractors who are paid by the organization to assist in the operation of the game;
        3. Players of bingo games or pull tab games shall be eighteen (18) years or older;
        4. At least sixty-five percent (65%) of all gross sales shall be redeemed as winnings each month. The net proceeds after payment of winnings shall be restricted as follows:
          1. No more than forty percent (40%) of net proceeds shall be paid to distributors or manufacturers of supplies or equipment necessary to conduct the game; and
          2. Seventy-five percent (75%) of the net proceeds remaining after payment for all costs and supplies shall be donated within one (1) year by the organization to a bona fide charitable or benevolent purpose.
        5. The charitable or nonprofit organization conducting the bingo game or pull tab game may purchase supplies or equipment necessary to conduct the game from a distributor or manufacturer at a price based on a per card or pull tab basis subject to the limitations provided in subdivision (D)(IV)(1) of this paragraph.
      5. Any game, wager or transaction which is incidental to a bona fide social relationship, is participated in by natural persons only, and in which no person is participating, directly or indirectly, in professional gambling;
      6. Calcutta wagering on contests or events conducted by a bona fide nationally chartered veterans’, religious, charitable, educational or fraternal organization or nonprofit local civic or service club organized or incorporated under the laws of this state and, commencing July 1, 2020, licensed by the Wyoming gaming commission under W.S. 11-25-104(n) to conduct calcutta wagering on contests or events, provided that:
        1. The contest or event is conducted solely in this state;
        2. Any rules affecting the contest or requirements for participants are clearly posted;
        3. The total prizes or prize money paid out in any one (1) contest or event does not exceed ninety percent (90%) of the total wagers;
        4. A minimum of ten percent (10%) of the total wagers on each contest or event is donated within one (1) year by the sponsoring organization to a bona fide charitable or benevolent purpose;
        5. No separate organization or professional person is employed to conduct the contest or event or assist therein;
        6. The sponsoring organization before conducting the contest or event gives thirty (30) days written notice of the time and place thereof to the governing body of the county or municipality in which it intends to conduct the contest or event and the governing body does not pass a resolution objecting thereto;
        7. The sponsoring organization has complied with the relevant sections of the internal revenue code of 1954, as amended, relating to taxes on wagering.
      7. Display or private use of antique gambling devices in the owner’s residence;
      8. Raffles conducted for charitable purposes;
      9. Any lottery game authorized and run by the Wyoming lottery corporation pursuant to W.S. 9-17-101 through 9-17-128 ;
      10. The hunting license raffle provided by W.S. 23-1-302(p);
      11. Activities authorized by the Wyoming gaming commission under title 11, chapter 25 of the Wyoming statutes;
      12. Online sports wagering regulated under W.S. 9-24-101 through 9-24-106 ;
      13. Fantasy sports contests as defined in W.S. 9-24-101 (a)(iv).
    4. “Gambling device” means any device, machine, paraphernalia or equipment except an antique gambling device that is used or usable in the playing phases of any professional gambling activity, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine;
    5. “Gambling premise” means any building, room, enclosure, vehicle, vessel or other place, whether open or enclosed, used or intended to be used for professional gambling. Any place where a gambling device is found is presumed to be intended to be used for professional gambling;
    6. “Gambling proceed” means all money or property at stake or displayed in or in connection with professional gambling;
    7. “Gambling record” means any record, receipt, ticket, certificate, token, slip or notation given, made, used or intended to be used in connection with professional gambling;
    8. “Professional gambling” means:
      1. Aiding or inducing another to engage in gambling, with the intent to derive a profit therefrom; or
      2. Participating in gambling and having, other than by virtue of skill or luck, a lesser chance of losing or a greater chance of winning than one (1) or more of the other participants.
    9. “Profit” means benefit other than a gain, which is realized or unrealized and direct, including benefits from unequal advantage in a series of transactions but does not include benefits of proprietorship or management of a business wherein a game, wager or transaction described in W.S. 6-7-101(a)(iii)(E) occurs;
    10. “Antique gambling device” means a mechanically or electronically operated slot machine that is at least twenty-five (25) years old and used only for display or personal amusement in the owner’s residence, in public and private museums, in possession of a dealer or distributor of lawful gaming equipment or displayed at state or local historic sites;
    11. “Charitable or nonprofit organization” means an organization recognized as a charitable or nonprofit organization under Wyoming statutes and which possesses a valid exemption from federal income tax issued by the Internal Revenue Service under the provisions of 26 U.S.C. § 501(c) and political parties organized under the law of Wyoming and exempt from federal income tax issued by the Internal Revenue Service under the provisions of 26 U.S.C. § 527;
    12. Repealed by Laws 2007, ch. 52, § 1.
    13. “Skill based amusement game” means as defined by W.S. 11-25-102(a)(xix).

History. Laws 1982, ch. 75, § 3; 1983, ch. 105, § 1; 1985, ch. 14, § 1; 1987, ch. 105, § 1; 1991, ch. 215, § 1; 1996, ch. 115, § 1; 2006, ch. 114, § 1; 2007, ch. 51, § 1; ch. 52, § 1; 2011, ch. 176, § 1; 2013, ch. 55, § 1; ch. 200, § 2; 2020, ch. 114, § 2; 2021, ch. 100, § 2; ch. 109, § 2.

§ 6-7-102. Gambling; professional gambling; penalties.

  1. A person who engages in gambling commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.
  2. A person who engages in professional gambling commits a felony punishable by imprisonment for not more than three (3) years, a fine of not more than three thousand dollars ($3,000.00), or both.

History. Laws 1982, ch. 75, § 3.

Editor's notes. —

Laws 2020, ch. 114, § 1, provides: “(a) Notwithstanding W.S. 6-7-102 , skill based amusement games operating in the state prior to the effective date of this section shall be allowed to continue operation until June 30, 2021 in accordance with the requirements of this section.

“(b) Any skill based amusement game that does not meet the requirements of this section shall be removed from the state by the operator.

“(c) Within sixty (60) days of the effective date of this section a skill based amusement game that meets the requirements of this section shall be approved by the commission to continue operating in the state or it shall be removed from the state by the operator.

“(d) Each operator shall provide for a nationally recognized, independent gaming laboratory approved by the commission to directly submit to the commission a general functional evaluation laboratory report regarding the software installed on each skill based amusement game indicating whether the skill based amusement game is in compliance with this section. Any skill based amusement game that does not meet the requirements of this section as indicated by the laboratory report shall immediately be removed from the state by the operator.

“(e) Skill based amusement games that meet the requirements of this section shall bear a commission issued decal that identifies the operator of the game. No skill based amusement game shall be operational unless it bears a commission issued decal. The commission shall charge a fee of fifty dollars ($50.00) for a decal. Each decal shall include the bucking horse and rider emblem. Fees collected shall be deposited to the commission gaming account, which is hereby created. For the period from the effective date of this section through June 30, 2021, funds within the account are continuously appropriated to the commission to pay for reasonable expenses incurred to administer this section.

“(f) No skill based amusement game shall allow a game play of more than three dollars ($3.00) per play.

“(g) No skill based amusement game shall allow a payout of more than three thousand dollars ($3,000.00) per play.

“(h) No establishment shall have more than four (4) skill based amusement games at any one (1) time. Only an establishment that had a skill based amusement game operating within the establishment as of the effective date of this section may continue to have a skill based amusement game operating pursuant to this section.

“(j) An establishment shall not locate a skill based amusement game in an area of the establishment into which a person under the age of twenty-one (21) years may enter. An establishment shall conspicuously mark each area of the establishment with a skill based amusement game as an ‘age restricted area.’ The establishment shall not allow a person under the age of twenty-one (21) years to play a skill based amusement game.

“(k) An establishment shall pay the commission a fee of two hundred fifty dollars ($250.00) to continue to have skill based amusement games in the establishment until June 30, 2021. Operators of skill based amusement games shall pay the commission a fee of two thousand five hundred dollars ($2,500.00) to operate skill based amusement games until June 30, 2021. Fees paid pursuant to this subsection shall be deposited into the commission gaming account.

“(m) Taxes shall be calculated and paid on a weekly basis based on the net proceeds earned during the prior week on skill based amusement games. On a weekly basis, an operator shall remit to the commission an amount equivalent to twenty percent (20%) of the net proceeds earned during the prior week on the operator's skill based amusement games. The commission shall deposit these monies to the commission gaming account. The commission shall report on amounts received under this subsection to the joint appropriations committee quarterly. Once the commission gaming account reaches one million dollars ($1,000,000.00), on a weekly basis, an operator shall remit to the commission an amount equivalent to twenty percent (20%) of the net proceeds earned during the prior week on the operator's skill based amusement games and of the twenty percent (20%), the commission shall remit these monies to the state treasurer for distribution as follows:

“(i) Forty-five percent (45%) to the county and the city or town in which the skill based amusement game is located, in equal shares, or to the county alone if the skill based amusement game is not located within the boundaries of a city or town;

“(ii) Forty-five percent (45%) to the school foundation program account;

“(iii) Ten percent (10%) to the commission gaming account.

“(n) The commission may promulgate any necessary rules to implement and administer this section.

“(o) This section shall not apply to pari-mutuel wagering on events that have previously occurred.

“(p) As used in this section:

“(i) ‘Commission’ means the commission created under W.S. 11-25-101 ;

“(ii) ‘Establishment’ means a single physical place of business;

“(iii) ‘Net proceeds’ means all revenue less payments to the player;

“(iv) ‘Operator’ means a person that possesses and operates skill based amusement games for profit;

“(v) ‘Skill based amusement game’ means a game played in exchange for consideration of cash, credit or other thing of value on a fixed, commercial electrical gaming device in which the bona fide skill of the player, determined by an individual's level of strategy and skill, rather than any inherent element of chance, is the primary factor in determining the outcome and for which the player may be awarded a prize or other thing of value for a successful outcome.

“(q) Any person who violates any provision of this section is guilty of a misdemeanor and shall be fined not more than ten thousand dollars ($10,000.00), imprisoned for not more than six (6) months, or both. Each violation of this section shall constitute a separate offense.

“(r) This section is repealed effective July 1, 2021.”

For decisions upholding constitutionality of former gambling statutes. —

See State ex rel. Hynds v. Cahill, 12 Wyo. 225, 75 P. 433, 1904 Wyo. LEXIS 2 (Wyo. 1904); State ex rel. Smith v. Gillespie, 12 Wyo. 284, 75 P. 1135, 1904 Wyo. LEXIS 9 (Wyo. 1904); State v. Tobin, 31 Wyo. 355, 226 P. 681, 1924 Wyo. LEXIS 32 (Wyo. 1924).

Act providing for licensing of gambling may be repealed without impairing obligation of contract or taking property without due process of law. Littleton v. Burgess, 14 Wyo. 173, 82 P. 864, 1905 Wyo. LEXIS 35 (Wyo. 1905).

Conducting gambling game distinguished from permitting it. —

Under former law, acquittal of conducting gambling game known as “21” did not preclude conviction for permitting it. Tobin v. State, 36 Wyo. 368, 255 P. 788, 1927 Wyo. LEXIS 42 (Wyo. 1927).

Cashing certificates of deposit for one engaged in gambling. —

Where certificates of deposit were cashed by keeper of a gambling room for the owner of the certificates who was engaged in gambling, and who at the time was not indebted for past losses, and most of it was thereafter lost in gambling, cashing such certificates was not brought within former statute. Kinney v. Hynds, 7 Wyo. 22, 49 P. 403, 1897 Wyo. LEXIS 7 (Wyo. 1897), reh'g denied, 7 Wyo. 22, 52 P. 1081, 1898 Wyo. LEXIS 1 (Wyo. 1898).

Information held sufficient. —

See State v. Tobin, 31 Wyo. 355, 226 P. 681, 1924 Wyo. LEXIS 32 (Wyo. 1924).

It was not error to admit testimony that when defendant charged with permitting gambling game known as “21” was arrested, poker and other games were being conducted. Tobin v. State, 36 Wyo. 368, 255 P. 788, 1927 Wyo. LEXIS 42 (Wyo. 1927).

Instruction held error. —

An instruction that, if defendant “distributed said chips and said things of value to the participants in said game, and collected money for the same from the loser, … he conducted and carried on a gambling game,” was erroneous as submitting the case, not on offense charged in the information as identified by prosecuting witness who was first witness called by prosecution, but on facts testified to by other witnesses concerning other games. State v. Wells, 29 Wyo. 335, 212 P. 1099, 1923 Wyo. LEXIS 10 (Wyo. 1923).

Applied in

State v. Branney, 62 Wyo. 40, 160 P.2d 972, 1945 Wyo. LEXIS 26 (1945).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Entrapment to commit offense with respect to gambling or lotteries, 31 ALR2d 1212.

Admissibility of evidence of other acts of gambling, 64 ALR2d 823.

Criminal liability of member or agent of private club or association, or of owner or lessor of its premises, for violation of state or local liquor or gambling laws thereon, 98 ALR3d 694.

Construction and application of statute or ordinance prohibiting or regulating bookmaking or pool selling, 84 ALR4th 740.

§ 6-7-103. Gambling devices, gambling records, gambling proceeds subject to seizure; disposition thereof; antique gambling devices protected.

All gambling devices, gambling records and gambling proceeds are subject to seizure by any peace officer and shall be disposed of in accordance with law. An antique gambling device as defined by W.S. 6-7-101(a)(x) shall not be subject to seizure unless it is used in any way in violation of this article.

History. Laws 1982, ch. 75, § 3; 1991, ch. 215, § 1.

Cross references. —

As to gambling places and devices being declared nuisances, see §§ 6-6-201 , 6-6-209 .

As to disposition of seized property, see § 7-2-105 .

As to general power of cities and towns to destroy gambling devices, see § 15-1-103 .

Actual use of gambling device not required. —

This section does not give the slightest suggestion that gambling device or paraphernalia such as is described in the section must be in actual use for purpose of gambling before it may be seized and disposed of. State v. Branney, 62 Wyo. 40, 160 P.2d 972, 1945 Wyo. LEXIS 26 (Wyo. 1945).

Burden of proof. —

Intervening claimant who sought to prevent destruction of alleged gambling paraphernalia had burden of showing that questioned machines were not of the character denounced by section. State v. Branney, 62 Wyo. 40, 160 P.2d 972, 1945 Wyo. LEXIS 26 (Wyo. 1945).

Applied in

Hobbs v. State, 757 P.2d 1008, 1988 Wyo. LEXIS 101 (Wyo. 1988).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Forfeiture of property used in connection with gaming before trial of individual offender, 3 ALR2d 738.

Forfeiture of money used in connection with gambling or seized by officers in connection with an arrest or search on premises where such activity took place, 19 ALR2d 1228.

Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 ALR3d 473.

Constitutionality of statute providing for destruction of gambling devices, 14 ALR3d 366.

Validity of state or local gross receipts tax on gambling, 21 ALR5th 812.

§ 6-7-104. Advertising of allowable gambling activities or events.

Nothing in this chapter prohibits the advertising of any gambling activity or event excluded from gambling under W.S. 6-7-101(a)(iii) and conducted by or for any charitable or nonprofit organization or conducted as a promotional activity by a private business entity which is clearly occasional and ancillary to the primary business of that entity.

History. Laws 1991, ch. 211, § 1.

Chapter 8 Weapons

Cross references. —

For constitutional provision as to right to bear arms, see art. 1, § 24, Wyo. Const.

As to authority of peace officers to confiscate deadly weapons, see § 7-2-104 .

As to military organizations other than the national guard or troops of the United States parading with arms, see § 19-8-104 .

As to types of firearms permitted for hunting, see §§ 23-3-110 , 23-3-111 .

As to prohibition against use of machine gun or silencer for hunting purposes, see § 23-3-112 .

As to prohibition against using explosives or poison to kill fish, see § 23-3-204 .

As to prohibition against firearms and explosives in state parks, see § 36-8-104 .

Am. Jur. 2d, ALR and C.J.S. references. —

Statutory presumption of possession of weapon by occupants of place or vehicle where it was found, 87 ALR3d 949.

Handgun manufacturer's or seller's liability for injuries caused to another by use of gun in committing crime, 44 ALR4th 595.

Article 1. Weapons Offenses

Cross references. —

As to simple assault, see § 6-2-501 .

As to aggravated assault and battery, see § 6-2-502 .

Am. Jur. 2d, ALR and C.J.S. references. —

Fact that gun was unloaded as affecting criminal responsibility, 68 ALR4th 507.

Fact that gun was broken, dismantled or inoperable as affecting criminal responsibility under weapons statute, 81 ALR4th 745.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USCS § 5861, 133 ALR Fed 347.

§ 6-8-101. Use of firearm while committing felony; subsequent convictions; penalties; applicability of provisions.

  1. A person who uses a firearm while committing a felony shall be imprisoned for not more than ten (10) years in addition to the punishment for the felony. For a second or subsequent conviction under this section a person shall be imprisoned for not more than twenty (20) years in addition to the punishment for the felony.
  2. Subsection (a) of this section does not apply to those felonies which include as an element of the crime the use or possession of a deadly weapon.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Double jeopardy. —

Even though the offense of use of a firearm while committing a felony has different elements than the offense of attempted second-degree murder, and the state was entitled to charge defendant with both offenses, where the jury convicted defendant on both offenses, the charges merged and only one sentence should have been imposed. Bilderback v. State, 13 P.3d 249, 2000 Wyo. LEXIS 218 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 221 (Wyo. Dec. 5, 2000), modified, 2000 Wyo. LEXIS 231 (Wyo. Dec. 15, 2000), overruled in part, Sweets v. State, 2013 WY 98, 307 P.3d 860, 2013 Wyo. LEXIS 103 (Wyo. 2013).

“Use.” —

Entire tenor of the supplemental jury instruction indicated that the “use” contemplated by Wyo. Stat. Ann. § 6-8-101 had to be in the context of actually facilitating the crime; the record was clear that defendant “used” the gun in accordance with both the general meaning of the term and the “active employment” definition. Daves v. State, 2011 WY 47, 249 P.3d 250, 2011 Wyo. LEXIS 50 (Wyo. 2011).

Cited in

Beck v. State, 2005 WY 56, 110 P.3d 898, 2005 Wyo. LEXIS 64 (2005); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “use” of firearm for purposes of 18 USC § 924(c)(1), providing penalty for use of firearm during drug trafficking crime or crime of violence, 125 ALR Fed 545.

§ 6-8-102. Use or possession of firearm by person convicted of certain felony offenses; penalties; exception.

  1. Any person who has previously pleaded guilty to or been convicted of committing or attempting to commit a violent felony or a felony under W.S. 6-5-204(b), and has not been pardoned and who uses or knowingly possesses any firearm is guilty of a felony punishable by imprisonment for not more than three (3) years, a fine of not more than five thousand dollars ($5,000.00), or both.
  2. As used in this section “firearm” does not include an “antique firearm” as defined in W.S. 6-8-403(a)(viii).

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1993, ch. 64, § 1; 2017, ch. 185, § 1.

The 2017 amendment , effective July 1, 2017, added the designation (a) and added (b).

Section held legitimate exercise of state police power. —

Former similar section, which had for its purpose the prevention of the use of firearms in connection with violent crimes, was a legitimate exercise of the police power of the state and was not unreasonable. Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

And not unconstitutionally vague. —

Former statute was not unconstitutionally vague since, in order for there to be an unlawful possession of a firearm by a convicted felon, the accused had to know that he had possession of the firearm. Carfield v. State, 649 P.2d 865, 1982 Wyo. LEXIS 373 (Wyo. 1982).

In a case in which defendant, a violent felon, was convicted of unlawful possession of a firearm in violation of Wyo. Stat. Ann. § 6-8-102 , defendant failed to provide even one situation where the application of the statute was uncertain, much less that it was vague in all of its applications, as he was required to do. Harris v. State, 2006 WY 76, 137 P.3d 124, 2006 Wyo. LEXIS 81 (Wyo. 2006).

Knowledge of status as a convicted felon. —

A defendant need not know his specific status as a convicted felon when pleading guilty to being a felon in possession of a firearm; the factual basis provided by defendant and the State adequately supported findings that defendant knowingly possessed a firearm and that he was a convicted felon who had not been pardoned therefore, a sufficient factual basis existed for his plea of guilty. Poole v. State, 2007 WY 33, 152 P.3d 412, 2007 Wyo. LEXIS 34 (Wyo. 2007).

“Possession,” for purposes of section, is physical control or custody of weapon, or immediate access to it. Additionally, any such possession of a weapon by persons convicted of violent felonies must be knowing to be unlawful. McInturff v. State, 808 P.2d 190, 1991 Wyo. LEXIS 37 (Wyo. 1991).

Definition of firearm. —

Muzzle-loading black powder rifle that was purchased by defendant, who was a violent felon, fell within the definition of “firearm” as contemplated by Wyo. Stat. Ann. § 6-8-102 . The statute, by its plain terms, prohibited an unpardoned violent felon from possessing any firearm. Harris v. State, 2006 WY 76, 137 P.3d 124, 2006 Wyo. LEXIS 81 (Wyo. 2006).

Effect of setting aside prior felony conviction. —

Although the defendant's felony conviction was set aside and the accusations or information dismissed pursuant to California's § 1203.4 (completion of probation), that did not preclude its use against the defendant. The grace extended to the defendant by the state of California did not go so far as to extinguish his conviction for all purposes. Since the California felony existed for purposes of this section, there existed no plausible reason for the defendant to withdraw his guilty plea. Reay v. State, 800 P.2d 499, 1990 Wyo. LEXIS 129 (Wyo. 1990).

Not error to fail to instruct jury that firearm operability essential element of offense. —

Absent the introduction of some evidence that the firearm in question was inoperable, it was not error to fail to instruct the jury that operability is an essential element of the offense of being a felon in possession of a firearm. Benson v. State, 640 P.2d 83, 1982 Wyo. LEXIS 296 (Wyo.), cert. denied, 456 U.S. 1006, 102 S. Ct. 2297, 73 L. Ed. 2d 1301, 1982 U.S. LEXIS 2339 (U.S. 1982).

Sentence not abuse of discretion. —

A sentence of not less than two nor more than three years imposed upon the defendant, who had a problem with alcohol, which was involved in his prior convictions and in the case at hand, was not an abuse of discretion, although two character witnesses testified that they believed that the defendant was a good person and that he posed no danger to the public. Aldrich v. State, 706 P.2d 271, 1985 Wyo. LEXIS 567 (Wyo. 1985).

Applied in

Broussard v. State, 2017 WY 73, 396 P.3d 1016, 2017 Wyo. LEXIS 73 (Wyo. 2017).

Quoted in

Small v. State, 623 P.2d 1200, 1981 Wyo. LEXIS 295 (Wyo. 1981).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 ALR4th 1168.

Sufficiency of evidence as to nature of firearm in prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying or using firearms, 37 ALR4th 1179.

Fact that weapon was acquired for self-defense or to prevent its use against defendant as defense in prosecution for violation of state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying or using firearms or weapons, 39 ALR4th 967.

Sufficiency of prior conviction to support prosecution under state statute prohibiting persons under indictment for, or convicted of, crime from acquiring, having, carrying or using firearms or weapons, 39 ALR4th 983.

What amounts to “control” under state statute making it illegal for felon to have possession or control of firearm or other dangerous weapon, 66 ALR4th 1240.

What constitutes “constructive possession” of unregistered or otherwise prohibited weapon under state law, 88 ALR5th 121.

Receipt, possession or transportation of multiple firearms as single or multiple offense under 18 USC Appx § 1202(a)(1) [Repealed], making it federal offense for convicted felon to receive, possess or transport any firearm, 62 ALR Fed 829.

What constitutes receipt of firearm, under 18 USC § 922(h), prohibiting certain persons from receiving any firearm which has been shipped or transported in interstate or foreign commerce, 74 ALR Fed 486.

State restoration of federal felon's civil rights as nullification of conviction under 18 USCS § 921(a)(20) which defines conviction for purposes of penalizing possession of weapon by convicted felon pursuant to 18 USCS § 922(g)(1), 117 ALR Fed 247.

§ 6-8-103. Possession, manufacture or disposition of deadly weapon with unlawful intent; penalties.

A person who knowingly possesses, manufactures, transports, repairs or sells a deadly weapon with intent to unlawfully threaten the life or physical well-being of another or to commit assault or inflict bodily injury on another is guilty of a felony punishable by imprisonment for not more than five (5) years, a fine of not more than one thousand dollars ($1,000.00), or both.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

For definition of “deadly weapon,” see § 6-1-104 .

Sufficiency of evidence. —

Evidence was sufficient to support defendant's conviction of possession of deadly weapon with intent to unlawfully threaten, where he was angry over dismissal of his civil case against city attorney, he intentionally armed himself for his trip to city attorney's office, and he served assistant city attorney with a “Declaration of War” while resting his hand on stock of Uzi-type semiautomatic pistol strapped to his shoulder. Taylor v. State, 7 P.3d 15, 2000 Wyo. LEXIS 129 (Wyo. 2000).

Applied in

Harries v. State, 650 P.2d 273, 1982 Wyo. LEXIS 376 (Wyo. 1982); Lansing v. State, 669 P.2d 923, 1983 Wyo. LEXIS 365 (Wyo. 1983); Ventling v. State, 676 P.2d 573, 1984 Wyo. LEXIS 261 (Wyo. 1984).

Quoted in

Jackson v. State, 2009 WY 82, 209 P.3d 897, 2009 Wyo. LEXIS 91 (June 19, 2009); Winsted v. State, 2010 WY 139, 241 P.3d 497, 2010 Wyo. LEXIS 148 (Oct. 26, 2010).

Cited in

Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008); Cohen v. State, 2008 WY 78, 2008 Wyo. LEXIS 83 (July 14, 2008).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Forfeiture of weapon unlawfully carried, before trial of individual offender, 3 ALR2d 738.

Fact that gun was unloaded as affecting criminal responsibility for carrying weapon, 79 ALR2d 1412.

Validity and construction of regulations governing carrying, possession or use of tear gas or similar chemical weapons, 30 ALR3d 1416.

Admissibility in criminal case, of results of residue detection test to determine whether accused or victim handled or fired gun, 1 ALR4th 1072.

What constitutes a “bludgeon,” “blackjack,” or “billy” within meaning of criminal possession statute, 11 ALR4th 1272.

Validity of state statute proscribing possession or carrying of knife, 47 ALR4th 651.

What constitutes “constructive possession” of unregistered or otherwise prohibited weapon under state law, 88 ALR5th 121.

Cigarette lighter as deadly or dangerous weapon, 22 A.L.R.6th 533.

§ 6-8-104. Wearing or carrying concealed weapons; penalties; exceptions; permits.

  1. A person who wears or carries a concealed deadly weapon is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00), imprisonment in the county jail for not more than six (6) months, or both for a first offense, or a felony punishable by a fine of not more than two thousand dollars ($2,000.00), imprisonment for not more than two (2) years, or both, for a second or subsequent offense, unless:
    1. The person is a peace officer;
    2. The person possesses a permit under this section;
    3. The person holds a valid permit authorizing him to carry a concealed firearm authorized and issued by a governmental agency or entity in another state that recognizes Wyoming permits and is a valid statewide permit; or
    4. The person does not possess a permit issued under this section, but is a resident of the United States and otherwise meets the requirements specified in paragraphs (b)(ii) through (vi), (viii) and (ix) of this section and possession of the firearm by the person is not otherwise unlawful.
  2. The attorney general is authorized to issue permits to carry a concealed firearm to persons qualified as provided by this subsection. The attorney general shall promulgate rules necessary to carry out this section no later than October 1, 1994. Applications for a permit to carry a concealed firearm shall be made available and distributed by the division of criminal investigation and local law enforcement agencies. The permit shall be valid throughout the state for a period of five (5) years from the date of issuance. The permittee shall carry the permit, together with valid identification at all times when the permittee is carrying a concealed firearm and shall display both the permit and proper identification upon request of any peace officer. The attorney general through the division shall issue a permit to any person who:
    1. Is a resident of the United States and has been a resident of Wyoming for not less than six (6) months prior to filing the application. The Wyoming residency requirements of this paragraph do not apply to any person who holds a valid permit authorizing him to carry a concealed firearm authorized and issued by a governmental agency or entity in another state that recognizes Wyoming permits and is a valid statewide permit;
    2. Is at least twenty-one (21) years of age;
    3. Does not suffer from a physical infirmity which prevents the safe handling of a firearm;
    4. Is not ineligible to possess a firearm pursuant to 18 U.S.C. section 922(g) or W.S. 6-8-102 ;
    5. Has not been:
      1. Committed to a state or federal facility for the abuse of a controlled substance, within the one (1) year period prior to the date on which application for a permit under this section is submitted;
      2. Convicted of a felony violation of the Wyoming Controlled Substances Act of 1971, W.S. 35-7-1001 through 35-7-1057 or similar laws of any other state or the United States relating to controlled substances and has not been pardoned; or
      3. Convicted of a misdemeanor violation of the Wyoming Controlled Substances Act of 1971, W.S. 35-7-1001 through 35-7-1057 or similar laws of any other state or the United States relating to controlled substances within the one (1) year period prior to the date on which application for a permit under this section is submitted.
    6. Does not chronically or habitually use alcoholic liquor and malt beverages to the extent that his normal faculties are impaired. It shall be presumed that an applicant chronically and habitually uses alcoholic beverages to the extent that his normal faculties are impaired if the applicant has been involuntarily committed, within the one (1) year period prior to the date on which application for a permit under this section is submitted, to any residential facility pursuant to the laws of this state or similar laws of any other state as a result of the use of alcohol;
    7. Demonstrates familiarity with a firearm. A legible photocopy of a certificate of completion of any of the courses or classes or a notarized affidavit from the instructor, school, club, organization or group that conducted or taught the course or class attesting to the completion of the course or class by the applicant or a copy of any document which shows completion of the course or class or evidences participation of firearms competition, shall constitute evidence of qualification under this paragraph. Any one (1) of the following activities listed in this paragraph shall be sufficient to demonstrate familiarity with a firearm:
      1. Completion of any certified firearm safety or training course utilizing instructors certified by the National Rifle Association or the Wyoming law enforcement academy;
      2. Completion of any law enforcement firearms safety or training course or class offered for security guards, investigators, special deputies, or any division of law enforcement or security enforcement;
      3. Experience with a firearm through participation in an organized handgun shooting competition or military service;
      4. Completion of any firearms training or safety course or class conducted by a state certified or National Rifle Association certified firearms instructor;
      5. Be certified as proficient in firearms safety by any Wyoming law enforcement agency under procedures established by that agency; or
      6. Honorable retirement as a federal or state peace officer who has a minimum of ten (10) years of service.
    8. Is not currently adjudicated to be legally incompetent; and
    9. Has not been committed to a mental institution.
  3. The division may deny a permit if the applicant has been found guilty of or has pled nolo contendere to one (1) or more crimes of violence constituting a misdemeanor offense within the three (3) year period prior to the date on which the application is submitted or may revoke a permit if the permittee has been found guilty of or has pled nolo contendere to one (1) or more crimes of violence constituting a misdemeanor offense within the preceding three (3) years.
  4. Except as provided in subsection (cc) of this section, the application shall be completed, under oath, on a form promulgated by the attorney general to include:
    1. The name, address, place and date of birth of the applicant;
    2. A statement that, to the best of his knowledge, the applicant is in compliance with criteria contained within this section;
    3. A statement that the applicant has been furnished a copy of this section and is knowledgeable of its provisions;
    4. A conspicuous warning that the application is executed under oath and that a materially false answer to any question or the submission of any materially false document by the applicant may result in denial or revocation of a permit and subjects the applicant to criminal prosecution under W.S. 6-5-303 .
  5. The applicant shall submit to the division through the sheriff’s office in the county of the applicant’s residence:
    1. A completed application as described in subsection (d) of this section or, if applicable, subsection (cc) of this section;
    2. A nonrefundable permit fee of fifty dollars ($50.00), if he has not previously been issued a statewide permit, or a nonrefundable permit fee of fifty dollars ($50.00) for renewal of a permit;
    3. A full set of fingerprints of the applicant administered by a law enforcement agency. The actual cost of processing the set of fingerprints required in this paragraph shall be borne by the applicant;
    4. A photocopy of a certificate or an affidavit or document as provided by paragraph (b)(vii) of this section;
    5. If applicable, the items listed in subsection (cc) of this section.
  6. The sheriff’s office shall forward items received under subsection (e) of this section but shall retain ten dollars ($10.00) of each original permit fee and five dollars ($5.00) of each renewal permit fee. The division, upon receipt of the items listed in subsection (e) of this section, shall process the full set of fingerprints of the applicant for any criminal justice information. The division shall submit a fingerprint card to the federal bureau of investigation for a national background check. The cost of processing the fingerprints shall be payable to the division.
  7. The sheriff of the applicant’s county of residence shall submit a written report to the division containing any information that he feels may be pertinent to the issuance of a permit to any applicant. The written report shall state facts known to the sheriff which establish reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to himself or others, or to the community at large as a result of the applicant’s mental or psychological state, as demonstrated by a past pattern or practice of behavior, or participation in incidents involving a controlled substance, alcohol abuse, violence or threats of violence as these incidents relate to criteria listed in this section. The written report shall be made within thirty (30) days after the date the sheriff receives the copy of the application. The sheriff of the applicant’s county of residence shall notify the chief of police, if any, of the applicant’s place of residence of the application for a concealed firearm permit by the applicant. The chief of police shall submit written comments to the division under the guidelines prescribed in this section. Submitted comments shall not be considered a public record.
  8. The sheriff of the applicant’s county of residence may, at his discretion, submit a written report to the division recommending immediate issuance of a concealed firearm permit prior to the mandatory fingerprint processing. The written recommendation shall specifically state that the sheriff has personal knowledge that the applicant is qualified to be issued a permit.
  9. The sheriff of the applicant’s county of residence may, at his discretion, submit a written report to the division recommending the issuance of a concealed firearm permit to an applicant between eighteen (18) and twenty-one (21) years of age who meets the requirements specified in this section. The written recommendation shall specifically state that the sheriff has personal knowledge of the applicant’s situation or circumstances which warrant the issuance of a concealed firearm permit. The division may issue a permit to carry a concealed firearm to those individuals between eighteen (18) and twenty-one (21) years of age under circumstances that a reasonable, prudent person would believe warrant the issuance of a permit to carry a concealed firearm. The decision to issue a concealed firearm permit shall be based on the satisfactory completion of the requirements of this section and any voluntary written report offered by the sheriff of the county of the applicant’s residence which shall clearly state the reasons the applicant should be issued a permit. The applicant may submit a written report containing relevant facts for consideration by the division.
  10. An applicant shall pay the cost of fingerprinting services for one (1) set of fingerprints and shall not be charged for any additional services necessary to obtain a legible set of fingerprints.
  11. The division shall, within sixty (60) days after the date of receipt of the items listed in subsection (e) of this section, either:
    1. Issue the permit; or
    2. Deny the application based on the ground that the applicant fails to qualify under the criteria listed in this section or upon reasonable grounds for denial specified under subsection (g) of this section. If the division denies the application, it shall notify the applicant in writing, stating the grounds for denial and informing the applicant of a right to submit, within thirty (30) days, any additional documentation relating to the grounds of denial. Upon receiving any additional documentation, the division shall reconsider its decision and inform the applicant within twenty (20) days of the result of the reconsideration. The applicant shall further be informed of the right to seek review of the denial in the district court pursuant to the Wyoming Administrative Procedure Act, W.S. 16-3-101 through 16-3-115 . No person who is denied a permit under this section shall carry a concealed firearm under a permit issued in another state, so long as he remains a resident of this state, and he remains ineligible for a permit in this state.
  12. The division shall maintain an automated listing of permit holders and pertinent information, and the information shall be available on-line, upon request, at all times to all Wyoming law enforcement agencies.
  13. Within thirty (30) days after the changing of a permanent address, or within thirty (30) days after the loss or destruction of a permit, the permittee, including any permittee under paragraph (a)(iii) of this section, shall so notify the division. Violation of this subsection may result in cancellation or revocation of the permit.
  14. In the event that a permit is lost or destroyed, the permit shall be automatically invalid, and the person to whom the same was issued may, upon payment of a five dollar ($5.00) fee to the division, obtain a duplicate, upon furnishing a notarized statement to the division that the permit has been lost or destroyed.
  15. A permit issued under this section shall be revoked by the division:
    1. If the permittee becomes ineligible to be issued a permit under the criteria set forth in this section; or
    2. For any conviction of any offense involving a controlled substance, alcohol abuse while carrying a concealed weapon or any crime of violence or a plea of nolo contendere to any of these crimes.
  16. Repealed by Laws 1995, ch. 147, § 1.
  17. The permittee may renew his permit on or before the expiration date by filing with the sheriff of the applicant’s county of residence the renewal form, a notarized affidavit stating that the permittee remains qualified pursuant to the criteria specified in this section, and the required renewal fee. The permit shall be renewed to a qualified applicant upon receipt of the completed renewal application, appropriate payment of fees and the division shall verify that the criminal history information available to the division does not indicate that possession of a firearm by the applicant would constitute a violation of state or federal law. A permittee who fails to file a renewal application on or before its expiration date shall renew his permit by paying a late fee of ten dollars ($10.00), but no late fee shall be charged for permits renewed by deployed armed force members through the additional renewal period under subsection (cc) of this section. Subject to subsection (cc) of this section, no permit shall be renewed six (6) months or more after its expiration date, and the permit shall be deemed to be permanently expired. A person whose permit has permanently expired may reapply for a permit pursuant to subsections (b) through (e) of this section.
  18. No person authorized to carry a concealed weapon pursuant to paragraphs (a)(ii) through (iv) of this section shall carry a concealed firearm into:
    1. Any facility used primarily for law enforcement operations or administration without the written consent of the chief administrator;
    2. Any detention facility, prison or jail;
    3. Any courtroom, except that nothing in this section shall preclude a judge from carrying a concealed weapon or determining who will carry a concealed weapon in the courtroom;
    4. Any meeting of a governmental entity;
    5. Any meeting of the legislature or a committee thereof;
    6. Any school, college or professional athletic event not related to firearms, except as provided in W.S. 21-3-132 ;
    7. Any portion of an establishment licensed to dispense alcoholic liquor and malt beverages for consumption on the premises, which portion of the establishment is primarily devoted to that purpose;
    8. Repealed by Laws 2018, ch. 85, §  1.
    9. Any elementary or secondary school facility, except as provided in W.S. 21-3-132 ;
    10. Any college or university facility without the written consent of the security service of the college or university; or
    11. Any place where the carrying of firearms is prohibited by federal law or regulation or state law.
  19. All monies collected pursuant to this section shall be deposited in the general fund.
  20. All funds received by the sheriff pursuant to the provisions of this section shall be deposited into the general fund of the county.
  21. As used in this section:
    1. “Division” means the division of criminal investigation within the office of the attorney general;
    2. “Firearm” means any pistol, revolver or derringer, designed to be fired by the use of a single hand.
  22. By March 1 of each year, the division shall submit a statistical report to the governor and to the joint judiciary interim committee indicating the number of permits issued, revoked, suspended and denied.
    1. The items listed in subsection (d) of this section;
    2. Proof of residency in a form acceptable to the attorney general that shows the applicant meets the requirements specified in subsection (b) of this section;
    3. Certification of the applicable person’s active military service outside the state;
    4. A notarized affidavit from the applicant testifying in writing that the statements in the application are true and accurate. The affidavit required by this paragraph subjects the applicant to criminal prosecution under W.S. 6-5-303 ; and
    5. Any other information required by rule and regulation of the attorney general, including proof of the marriage of the military spouse and the person in active military service outside the state, if applicable.
  23. Notwithstanding the provisions of W.S. 1-39-105 through 1-39-112 , the attorney general and members of the division of criminal investigation are immune from personal liability for issuing, for failing to issue and for revoking any concealed firearms permit under this section. A sheriff, police chief, employee of a sheriff or police chief’s office shall not be personally liable for damages in a civil action arising from any information submitted pursuant to subsections (g) through (j) of this section. Nothing in this section shall relieve any governmental entity of any liability pursuant to W.S. 1-39-101 through 1-39-120 .
  24. No list or other record maintained by the division or other law enforcement agency pursuant to this section, which identifies an individual applicant or permittee shall be considered a public record. Applications, listings and other records maintained pursuant to this section which identify an individual shall be made available to other law enforcement agencies for purposes of conducting official business. The statistical report provided pursuant to subsection (z) of this section shall be a public record.
  25. The attorney general shall by rule and regulation provide a procedure under which a person who is in active military service outside the state of Wyoming, or who is a military spouse as defined by rule of the attorney general residing with a person in active military service outside the state, but otherwise meets the requirements specified in subsection (b) of this section may apply for a permit or a renewal of a permit to carry a concealed firearm under this section without appearing in Wyoming. An application for a permit or renewal under this subsection shall be filed with the division of criminal investigation and accepted during active military service outside the state. Members of the armed forces who are deployed outside the United States and whose permits expire during their term of deployment shall be permitted to renew their permits through the deployment period and not later than six (6) months after returning to the United States after deployment. An expired permit which is not renewed prior to the end of the extended period provided in this subsection shall be deemed to be permanently expired as provided in subsection (s) of this section. Except as provided in this subsection, requirements for applications for all renewals under this subsection shall be the same as those required for non-late renewals under subsection (s) of this section, together with verification of active military status, deployment outside the United States, termination of deployment outside the United States and marital status, all as applicable and as required by rule of the attorney general. Applications, other than renewals, under this subsection shall require:

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1994, ch. 41, § 1; 1995, ch. 147, § 1; 1997, ch. 31, § 2; ch. 106, § 1; 2001, ch. 63, § 1; 2003, ch. 141, § 1; 2010, ch. 23, § 1; 2011, ch. 84, § 1; 2016, ch. 49, § 1; 2017, ch. 114, § 1; ch. 209, § 2; 2018, ch. 85, § 1; 2020, ch. 129, § 1; 2021, ch. 113, § 1.

Cross references. —

For definition of “deadly weapon,” see § 6-1-104 .

The 2010 amendment, deleted “and the state has laws similar to the provisions of this section, as determined by the attorney general, including a proper background check of the permit holder” at the end of (a)(iii) and (b)(i); in (b)(v), added the (b)(v)(A) and (b)(v)(B) designations; in (b)(v)(A), inserted “within the one (1) year period prior to the date on which application for a permit under this section is submitted”; in (b)(v)(B), inserted “felony” and “and has not been pardoned; or”; added (b)(v)(C); in (b)(vi), inserted “within the one (1) year period prior to the date on which application for a permit under this section is submitted”; and made stylistic changes.

Laws 2010, ch. 23 § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 4, 2010.

The 2011 amendment, effective July 1, 2011, in introductory language of (a), inserted “for a first offense, or a felony punishable by a fine of not more than two thousand dollars ($2,000.00), imprisonment for not more than two (2) years, or both, for a second or subsequent offense”; added (a)(iv); rewrote the introductory language of (t) for the former language which read: “No permit issued pursuant to this section or any permit issued from any other state shall authorize any person to carry a concealed firearm into”; and made related changes.

The 2016 amendment, effective July 1, 2016, added “Except as provided in subsection (cc) of this section” at the beginning of (d); added “or, if applicable, subsection (cc) of this section” at the end of (e)(i); added (e)(v) and (cc).

The 2017 amendments. — The first 2017 amendment, by ch. 114, § 1, in (cc), substituted “a person” for “an applicant”, added “or who is a military spouse as defined by rule of the attorney general residing with a person in active military service outside the state”; in (cc)(iii), substituted “applicable person’s” for “applicant’s”; in (cc)(v), added “including proof of the marriage of the military spouse and the person in active military service outside the state, if applicable”; and made related changes.

Laws 2017, ch. 114, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wy. Const. Approved Mar. 2, 2017.

The second 2017 amendment, by ch. 209, § 2, effective July 1, 2017, in (t)(vi) added “except as provided in W.S. 21-3-132 ” at the end and in (t)(ix) added “except as provided in W.S. 21-3-132 ” at the end; and made related changes.

The 2018 amendment, effective July 1, 2018, repealed former (t)(viii), which read: “Any place where persons are assembled for public worship, without the written consent of the chief administrator of that place.”

The 2020 amendment, in (s) substituted “ten dollars ($10.00), but no late fee shall be charged for permits renewed by deployed armed force members through the additional renewal period under subsection (cc) of this section. Subject to subsection (cc) of this section, no permit” for “ten dollars ($10.00). No permit”; and in (cc) substituted “permit or a renewal of a permit to carry” for “permit to carry,” added the second through fifth sentences, and added “other than renewals” following “Applications” in the last sentence.

Laws 2020, ch. 129, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 24, 2020.

The 2021 amendment, effective July 1, 2021, in (a)(iv), added "is a resident of the United States and" and substituted "(b)(ii)" for "(b)(i)."

Editor's notes. —

There is no subsection (i), (l), (v), or (x) in this section as it appears in the printed acts.

Subsection (a) is not unconstitutional infringement upon right of citizens to bear arms in defense of themselves. State v. McAdams, 714 P.2d 1236, 1986 Wyo. LEXIS 658 (Wyo. 1986).

Legislative intent. —

This section demonstrates a legislative intent to rely heavily upon expertise of local law enforcement officials in making judgments about individuals who seek concealed firearm permits. Mecikalski v. Office of the AG, 2 P.3d 1039, 2000 Wyo. LEXIS 110 (Wyo. 2000).

Procedure. —

This section does not provide for discovery or formal hearing with regard to information provided by local law enforcement officials pursuant to subsection (g). Mecikalski v. Office of the AG, 2 P.3d 1039, 2000 Wyo. LEXIS 110 (Wyo. 2000).

Danger to self or others. —

Court is not required to construe language contained in subsection (g) solely in light of definition of “dangerous to himself or others” set out in § 25-10-101(a)(ii). Mecikalski v. Office of the AG, 2 P.3d 1039, 2000 Wyo. LEXIS 110 (Wyo. 2000).

Grounds for denial of permit. —

A single instance in which an applicant manifested danger to himself or others is a reasonable ground for denial of a permit to carry a concealed firearm. Griess v. Office of the AG, Div. of Crim. Investigation, 932 P.2d 734, 1997 Wyo. LEXIS 14 (Wyo. 1997).

A single isolated incident of an applicant threatening suicide is a reasonable ground to deny an application for a permit to carry a concealed firearm. Griess v. Office of the AG, Div. of Crim. Investigation, 932 P.2d 734, 1997 Wyo. LEXIS 14 (Wyo. 1997).

Permit denied for breach of peace conviction. —

The department of criminal investigation (DCI) did not err when it denied a concealed gun permit under 18 U.S.C.S. § 922(g) to an applicant who had been convicted of breach of the peace involving an altercation with his spouse; the “violent action” language in the Wyoming breach of peace statute is included in the federal statute which prohibits those convicted of “domestic violence” from possessing firearms. King v. Wyo. Div. of Crim. Investigation, 2004 WY 52, 89 P.3d 341, 2004 Wyo. LEXIS 63 (Wyo. 2004).

Twenty-day response period. —

The 20-day response period found in paragraph (m)(ii) is directory and not mandatory; this section does not provide that time is of the essence and contains no language that would negate the exercise of authority after the prescribed time period. Griess v. Office of the AG, Div. of Crim. Investigation, 932 P.2d 734, 1997 Wyo. LEXIS 14 (Wyo. 1997).

No prejudice in lengthy delay. —

The delay experienced by the applicant in the division of criminal investigation's failure to deny a permit to carry a concealed weapon within 60 days after the date of receipt of the application did not justify reversing the denial of his application, as there was no showing of prejudice to the applicant's personal rights or the public's interest. King v. Wyo. Div. of Crim. Investigation, 2004 WY 52, 89 P.3d 341, 2004 Wyo. LEXIS 63 (Wyo. 2004).

Disclosure of records. —

Trial court erred in ordering the director of a state agency to turn over lists of holders of concealed weapons permits within a certain county to a newspaper when the legislative intent indicated that it was the legislature's desire to limit access to such lists. Pagel v. Franscell, 2002 WY 169, 57 P.3d 1226, 2002 Wyo. LEXIS 190 (Wyo. 2002).

Cited in

Capellen v. State, 2007 WY 107, 161 P.3d 1076, 2007 Wyo. LEXIS 117 (July 12, 2007); Saunders v. Hornecker, 2015 WY 34, 2015 Wyo. LEXIS 39 (Mar. 5, 2015).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Offense of carrying concealed weapon as affected by manner of carrying or place of concealment, 43 ALR2d 492.

Exception in statute forbidding carrying of weapons, as to person on his own premises, 57 ALR3d 938.

Article 2. Firearms Regulation

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

79 Am. Jur. 2d Weapons and Firearms § 32.

Validity and construction of gun control laws, 28 ALR3d 845.

Liability of one who provides, by sale or otherwise, firearm or ammunition to adult who shoots another, 39 ALR4th 517.

When has applicant for license under Gun Control Act of 1968 “willfully” violated statute or regulations within meaning of 18 USC § 923(d)(1)(C), 59 ALR Fed 254.

What constitutes actual or constructive possession of unregistered or otherwise prohibited firearm in violation of 26 USC § 5861, 133 ALR Fed 347.

94 C.J.S. Weapons §§ 3 to 8.

§§ 6-8-201 and 6-8-202. [Repealed.]

Repealed by Laws 1997, ch. 21, § 2.

Editor's notes. —

These sections, which derived from Laws 1982, ch. 75, § 3, related to the information required to be kept in a firearms register.

§ 6-8-203. Firearms information to be kept in place of business; inspection by peace officer.

The information required by federal law to be maintained on firearms shall be kept by every wholesaler, retailer, pawnbroker and dealer in firearms in the place of business of the wholesaler, retailer, pawnbroker or dealer, and shall be subject to inspection by any peace officer at all reasonable times.

History. Laws 1982, ch. 75, § 3; 1997, ch. 21, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of state gun control legislation under state constitutional provisions securing the right to bear arms, 86 ALR4th 931.

§ 6-8-204. [Repealed.]

Repealed by Laws 1997, ch. 21, § 2.

Editor's notes. —

This section, which derived from Laws 1982, ch. 75, § 3, related to the penalties for failure to comply with the firearm register requirements.

Article 3. Rifles and Shotguns

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part one), see XIX Land & Water L. Rev. 107 (1984).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

79 Am. Jur. 2d Weapons and Firearms §§ 7, 34.

Liability of one who provides, by sale or otherwise, firearm or ammunition to adult who shoots another, 39 ALR4th 517.

When has applicant for license under Gun Control Act of 1968 “willfully” violated statute or regulations within meaning of 18 USCS § 923(d)(1)(C), 59 ALR Fed 254.

94 C.J.S. Weapons §§ 3 to 8, 49.

§§ 6-8-301 through 6-8-303. [Repealed.]

Repealed by Laws 2003, ch. 66, § 1.

Editor's notes. —

These sections, which derived from Laws 1982, ch. 75, § 3, related to the delivery, sale or purchase of rifles and shotguns to or from persons residing in contiguous states.

Article 4. Regulation by State

§ 6-8-401. Firearm, weapon and ammunition regulation and prohibition by state.

  1. The Wyoming legislature finds that the right to keep and bear arms is a fundamental right. The Wyoming legislature affirms this right as a constitutionally protected right in every part of Wyoming.
  2. Repealed by Laws 2010, ch. 108, § 3.
  3. The sale, transfer, purchase, delivery, taxation, manufacture, ownership, transportation, storage, use and possession of firearms, weapons and ammunition shall be authorized, regulated and prohibited by the state, and regulation thereof is preempted by the state. Except as authorized by W.S. 15-1-103(a)(xviii) and 21-3-132 , no city, town, county, political subdivision or any other entity shall authorize, regulate or prohibit the sale, transfer, purchase, delivery, taxation, manufacture, ownership, transportation, storage, use, carrying or possession of firearms, weapons, accessories, components or ammunition except as specifically provided by this chapter. This section shall not affect zoning or other ordinances which encompass firearms businesses along with other businesses. Zoning and other ordinances which are designed for the purpose of restricting or prohibiting the sale, purchase, transfer or manufacture of firearms or ammunition as a method of regulating firearms or ammunition are in conflict with this section and are prohibited.

History. Laws 1995, ch. 53, § 1; 2010, ch. 108, §§ 2, 3; 2017, ch. 209, § 2.

The 2010 amendment, added present (a); repealed former (b) which read: “As used in this article, ‘firearm’ means any weapon which will or is designed to expel any projectile by the action of an explosive”; redesignated former (a) as (c); and in (c), substituted “county, political subdivision or any other entity shall authorize” for “county shall authorize,” substituted “carrying or possession of firearms, weapons, accessories, components or” for “or possession of firearms, weapons and,” and made related changes.

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

The 2017 amendment , effective July 1, 2017, in (c), added “and 21-3-132 ” toward the beginning of the second sentence.

§ 6-8-402. Short title; applicability.

  1. This act shall be known and may be cited as the “Wyoming Firearms Freedom Act”.
  2. This act shall apply to firearms, firearm accessories and ammunition that are manufactured in Wyoming.

History. Laws 2010, ch. 108, § 1.

Effective date. —

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 6-8-403(a)(vii).

§ 6-8-403. Definitions.

  1. As used in this act:
    1. “Ammunition” means any projectile expelled by action of an explosive from a firearm but shall not include any projectile designed to pierce armor;
    2. “Borders of Wyoming” means the boundaries of Wyoming as described in Section 2 of the Act of Admission of the state of Wyoming, 26 United States Statutes at Large, 222, chapter 664;
    3. “Firearm” means any weapon which will or is designed to expel a projectile by the action of an explosive. “Firearm” shall not include any fully automatic weapon or any weapon designed to fire a rocket propelled grenade or any explosive projectile;
    4. “Firearms accessories” means items that are used in conjunction with or mounted upon a firearm but are not essential to the basic function of a firearm, including, but not limited to, telescopic or laser sights, magazines, folding or aftermarket stocks and grips, speedloaders, ammunition carriers, optics for target identification and lights for target illumination;
    5. “Generic and insignificant parts” includes, but is not limited to, springs, screws, nuts and pins;
    6. “Manufactured” means that a firearm, a firearm accessory or ammunition has been created from basic materials for functional usefulness, including, but not limited to forging, casting, machining, molding or other processes for working materials;
    7. “This act” means W.S. 6-8-401 through 6-8-406 ;
    8. “Antique firearm” means:
      1. Any muzzleloading firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system manufactured in or before 1898;
      2. Any replica of any firearm described in subparagraph (A) if such replica is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition; or
      3. Any muzzleloading rifle, muzzleloading shotgun or muzzleloading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition. For purposes of this paragraph, the term “antique firearm” shall not include any weapon that incorporates a firearm frame or receiver, any firearm that is converted into a muzzleloading weapon or any muzzleloading weapon that can be readily converted to fire fixed ammunition by replacing the barrel, bolt, breechblock, or any combination thereof.

History. Laws 2010, ch. 108, § 1; 2017, ch. 185, § 1.

The 2017 amendment , effective July 1, 2017, added (a)(viii).

Effective date. —

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 6-8-404. Regulation by state of firearms, firearms accessories, ammunition and antique firearms manufactured in Wyoming; exceptions.

  1. A personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming is not subject to federal law, federal taxation or federal regulation, including registration, under the authority of the United States congress to regulate interstate commerce. It is declared by the Wyoming legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory or ammunition that is manufactured in Wyoming from basic materials and that can be manufactured without the inclusion of any significant parts imported from another state or foreign country. Generic and insignificant parts that have other manufacturing or consumer product applications are not firearms, firearms accessories or ammunition, and their importation into Wyoming and incorporation into a firearm, firearm accessory or ammunition manufactured in Wyoming does not subject the firearm, firearm accessory or ammunition to federal regulation. It is declared by the Wyoming legislature that basic industrial materials, such as, but not limited to, polymers, unmachined metal, ferrous or nonferrous, bar stock, ingots or forgings and unshaped wood, are not firearms, firearms accessories or ammunition and are not subject to congressional authority to regulate firearms, firearms accessories and ammunition under interstate commerce as if they were actually firearms, firearms accessories or ammunition. The authority of the United States congress to regulate interstate commerce in basic materials does not include authority to regulate firearms, firearm accessories and ammunition made within Wyoming borders from those materials. Firearms accessories that are imported into Wyoming from another state and that are subject to federal regulation as being in interstate commerce do not subject a firearm to federal regulation under interstate commerce because the firearm accessory is attached to or used in conjunction with a firearm in Wyoming.
  2. A firearm manufactured or sold in Wyoming under this act shall have the words, “made in Wyoming” clearly stamped, inscribed or otherwise marked on a central part of the firearm, such as the receiver or frame.
  3. To possess a firearm covered by this section a person shall:
    1. Not have been convicted of any felony in any state, territory or other jurisdiction of the United States. This paragraph shall not apply to antique firearms;
    2. Not currently be adjudicated to be legally incompetent; and
    3. Not have been committed to a mental institution.
  4. To purchase a firearm covered by this section a person shall:
    1. Be at least:
      1. Twenty-one (21) years of age if the firearm is a handgun;
      2. Eighteen (18) years of age if the firearm is a shotgun or rifle.
    2. Not have been convicted of any felony in any state, territory or other jurisdiction of the United States. This paragraph shall not apply to antique firearms;
    3. Not currently be adjudicated to be legally incompetent; and
    4. Not have been committed to a mental institution.

History. Laws 2010, ch. 108, § 1; 2017, ch. 185, § 1.

The 2017 amendment , effective July 1, 2017, in (c)(i) added the last sentence; in (d)(ii) added the second sentence; and made related changes.

Effective date. —

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

Meaning of “this act.” —

For the definition of “this act,” referred to in this section, see § 6-8-403 .

§ 6-8-405. Offenses and penalties; defense of Wyoming citizens.

  1. No public servant as defined in W.S. 6-5-101 , or dealer selling any firearm in this state shall enforce or attempt to enforce any act, law, statute, rule or regulation of the United States government relating to a personal firearm, firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming.
  2. Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a misdemeanor and, upon conviction, shall be subject to imprisonment for not more than one (1) year, a fine of not more than two thousand dollars ($2,000.00), or both.
  3. The attorney general may defend a citizen of Wyoming who is prosecuted by the United States government for violation of a federal law relating to the manufacture, sale, transfer or possession of a firearm, a firearm accessory or ammunition manufactured and retained exclusively within the borders of Wyoming.

History. Laws 2010, ch. 108, § 1.

Effective date. —

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

§ 6-8-406. Legislative findings and declaration of authority.

  1. The legislature declares that the authority for W.S. 6-8-402 through 6-8-406 is the following:
    1. The tenth amendment to the United States constitution guarantees to the states and their people all powers not granted to the federal government elsewhere in the constitution and reserves to the state and the people of Wyoming certain powers as they were understood at the time that Wyoming was admitted to statehood in 1890. The guaranty of those powers is a matter of contract between the state and people of Wyoming and the several states comprising the United States as of the time the Act of Admission was agreed upon and adopted by Wyoming and the several states comprising the United States in 1889;
    2. The ninth amendment to the United States constitution guarantees to the people rights not granted in the constitution and reserves to the people of Wyoming certain rights, as they were understood at the time Wyoming was admitted to statehood in 1890. The guaranty of those rights is a matter of contract between the state and people of Wyoming and the several states comprising the United States as of the time the Act of Admission was agreed upon and adopted by Wyoming and the United States in 1889;
    3. The regulation of intrastate commerce is vested in the states under the ninth and tenth amendments to the United States constitution, particularly if not expressly preempted by federal law pursuant to article 1, section 8 of the United States constitution. The United States congress has not expressly preempted state regulation of intrastate commerce pertaining to the manufacture on an intrastate basis of firearms, firearms accessories and ammunition;
    4. The second amendment to the United States constitution reserves to the people the right to keep and bear arms as that right was understood at the time the original states ratified the bill of rights to the United States constitution, and the guaranty of the right is a matter of contract between the state and people of Wyoming and the United States as of the time the Act of Admission was agreed upon and adopted by Wyoming and the United States in 1889;
    5. Article 1, section 24, of the Wyoming constitution secures the right of citizens the right to keep and bear arms and this right shall not be denied. This right predates the United States constitution and the Wyoming constitution and is unchanged from the 1890 Wyoming constitution, which was approved by congress and the people of Wyoming, and the right exists, as it was agreed upon and adopted by Wyoming and the United States in the Act of Admission;
    6. Article 1, section 1, of the Wyoming constitution provides that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety and happiness; for all the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper;
    7. Article 1, section 7, of the Wyoming constitution provides that absolute, arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority;
    8. Article 1, sections 1 and 7, of the Wyoming constitution clearly provide that the people of the state have the sole and exclusive right of governing themselves as a free, sovereign and independent state, and do so and forever hereafter shall exercise and enjoy every power, jurisdiction and right, pertaining thereto, which is not, or may not hereafter be, by them expressly delegated to the United States of America;
    9. The declaration of independence clearly provides that government derives its power directly from the consent of the governed and Wyoming affirms the language of the second paragraph of the declaration of independence which states “We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain inalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed...”.

History. Laws 2010, ch. 108, § 1.

Effective date. —

Laws 2010, ch. 108, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 11, 2010.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Chapter 9 Miscellaneous Offenses

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 1. Discrimination

Cross references. —

For constitutional provision as to discrimination between pupils in schools, see art. 7, § 10, Wyo. Const.

For constitutional provision prohibiting discrimination by railroads and telegraph lines, see art. 10, § 12, Wyo. Const.

As to a child's right to attend public school regardless of sex, race or religion, see § 21-4-303 .

As to fair employment practices, see §§ 27-9-101 through 27-9-106 .

As to discrimination in trade and commerce generally, see §§ 40-4-101 through 40-4-123 .

As to discrimination against citizens of this state by charging higher and more inequitable rates for music licenses, see § 40-13-104 .

Am. Jur. 2d, ALR and C.J.S. references. —

15 Am. Jur. 2d Civil Rights § 1 et seq.; 45A Am. Jur. 2d Job Discrimination §§ 1 et seq.

14 Supp. C.J.S. Civil Rights § 1 et seq.

§ 6-9-101. Equal enjoyment of public accommodations and facilities; penalties.

  1. All persons of good deportment are entitled to the full and equal enjoyment of all accommodations, advantages, facilities and privileges of all places or agencies which are public in nature, or which invite the patronage of the public, without any distinction, discrimination or restriction on account of race, religion, color, sex or national origin.
  2. A person who intentionally violates this section commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Exclusion of one sex from admission to or enjoyment of equal privileges in places of accommodation or entertainment as actionable sex discrimination under state law, 38 ALR4th 339.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 ALR5th 467.

§ 6-9-102. Discrimination prohibited; penalties.

  1. No person shall be denied the right to life, liberty, pursuit of happiness or the necessities of life because of race, color, sex, creed or national origin.
  2. A person who violates this section commits a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 1982, ch. 75, § 3.

Cross references. —

As to equality of all, see art. 1, § 2, Wyo. Const.

As to equal political rights, see art. 1, § 3, Wyo. Const.

Statutes of this state fail to make any distinction as to religious belief and prohibit such distinction from being made. Wilson v. Wilson, 473 P.2d 595, 1970 Wyo. LEXIS 190 (Wyo. 1970).

Law reviews. —

For note on civil rights in Wyoming, see 13 Wyo. L.J. 76 (1958).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Race or religious belief as permissible consideration in choosing tenants or purchasers of real estate, 14 ALR2d 153.

Businesses or establishments falling within state civil rights statute prohibiting discrimination, 87 ALR2d 120.

Discrimination in provision of municipal services or facilities as civil rights violation, 51 ALR3d 950.

Racial or religious discrimination in furnishing of public utilities, services or facilities, 53 ALR3d 1027.

What constitutes private club or association not otherwise open to public that is exempt from state civil rights statute, 83 ALR5th 467.

Attorney's liability under 42 USC § 1983 for improperly instituting or pursuing legal procedure, 72 ALR Fed 724.

When is eviction of tenant by private landlord conducted “under color of state law” for purposes of 42 USC § 1983, 73 ALR Fed 78.

“Redlining,” consisting of denial of home loans or insurance coverage in certain neighborhoods, as discrimination in violation of §§ 804 and 805 of Fair Housing Act (42 USC §§ 3604, 3605), 73 ALR Fed 899.

Construction and application of § 804(f) of Fair Housing Act (42 U.S.C. § 3604(f)), prohibiting discrimination in housing because of individual's disability, 148 ALR Fed 1.

§ 6-9-103. Charging for public toilet facilities; penalty.

A person commits a misdemeanor punishable by a fine of not more than one hundred dollars ($100.00) if he charges for use of toilet facilities which are generally available to the public.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Article 2. Other

§ 6-9-201. Trespass on closed or unsafe areas within ski areas; penalty; exceptions.

  1. A person is guilty of a misdemeanor punishable by a fine of not more than one hundred dollars ($100.00) if he:
    1. Skis on a slope or trail that has been posted as “closed”;
    2. Knowingly enters upon public or private lands from an adjoining ski area when the lands have been closed by the owner and posted as closed by the owner or by the ski area operator; or
    3. Intentionally enters state or federal land leased and in use as a ski area, knowing:
      1. The lessee of the premises has designated the land as an unsafe area; or
      2. The land has been posted with warning signs, prohibiting entry, which are reasonably likely to come to the attention of the public.
  2. This section does not apply to peace officers, national park or forest service officers, or persons authorized by the lessee of the premises.

History. Laws 1982, ch. 75, § 3; 1989, ch. 202, § 1.

Law reviews. —

For article, “Recreational Injuries and Inherent Risks: Wyoming's Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for injury or death from ski lift, ski tow or similar device, 95 ALR3d 203.

Ski resort's liability for skier's injuries resulting from condition of ski run or slope, 55 ALR4th 632.

§ 6-9-202. Neglect to close fences; penalty.

A person is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) if he opens and neglects to close a gate or replace bars in a fence which crosses a private road or a river, stream or ditch.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to fences and cattle guards generally, see §§ 11-28-101 through 11-28-108 .

As to construction and repair of fences by the state highway department, see § 24-1-112 .

As to railroad fire guards and fences, see §§ 37-9-301 through 37-9-312 .

Easement action. —

The trial court did not err by ruling that cattle guards did not materially increase the burden upon a servient estate and that requiring the gates to be closed would be overly burdensome and would deprive the holders of the essential use of their easement where the court found that when the gates were open, the owner's cattle did not routinely escape over cattle guards; in contrast, when the gates were closed, in order to reach their property, the easement holders were required to stop their vehicle at the first cattle guard and walk across it, open the gate, walk back across the cattle guard, reenter the vehicle, drive across the cattle guard, exit the vehicle again, and close the gate. White v. Allen, 2005 WY 72, 115 P.3d 8, 2005 Wyo. LEXIS 85 (Wyo. 2005).

Cited in

White v. Allen, 2003 WY 39, 65 P.3d 395, 2003 Wyo. LEXIS 46 (Wyo. 2003).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

§ 6-9-203. Unlawful use of toxic substances; penalty.

  1. A person commits the offense of unlawful use of a toxic substance if he inhales or ingests or possesses with the purpose to inhale or ingest, for the purpose of altering his mental or physical state, any toxic substance that is not manufactured for human consumption or inhalation.
  2. As used in this section “toxic substance” means:
    1. Volatile solvents including, but not limited to, paint thinner, gasoline, correction fluid, felt-tip markers, nail polish remover and glue;
    2. Aerosols containing propellants and solvents such as toluene including, but not limited to, spray paint, deodorant, hair products, cooking products and fabric protectors;
    3. Gases including, but not limited to, butane, refrigerants and organic hydrocarbons not created for human ingestion, inhalation or injection; and
    4. Nitrates including, but not limited to cyclohexyl nitrate, amyl nitrate and butyl nitrate.
  3. The provisions of subsection (a) of this section do not apply to a bona fide institution of higher education conducting research with human volunteers pursuant to guidelines adopted by the institution or any federal or state agency.
  4. A violation of this section is punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

History. Laws 2005, ch. 46, § 1.

Effective dates. —

Laws 2005, ch. 46, § 2, makes the act effective July 1, 2005.

Article 3. Skier Safety

§ 6-9-301. Skier safety; skiing while impaired; unsafe skiing; collisions; penalties.

  1. No person shall move uphill on any passenger tramway or use any ski slope or trail while such person’s ability to do so is impaired by the consumption of alcohol or by the use of any illicit controlled substance or other drug as defined by W.S. 35-7-1002 .
  2. No person shall ski in reckless disregard of his safety or the safety of others.
  3. No skier involved in a collision with another person in which an injury results shall leave the vicinity of the collision before giving his name and current address to an employee of the ski area operator or a member of the ski patrol except for the purpose of securing aid for a person injured in the collision, in which event the person leaving the scene of the collision shall give his name and current address as required by this subsection within twenty-four (24) hours after securing aid.
  4. Any person violating this section is guilty of a misdemeanor punishable by imprisonment for not more than twenty (20) days, a fine of not more than two hundred dollars ($200.00), or both.

History. Laws 1989, ch. 202, § 2.

Law reviews. —

For article, “Recreational Injuries and Inherent Risks: Wyoming's Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Products liability: skiing equipment, 76 ALR4th 256.

Skier's liability for injuries to or death of another person, 75 ALR5th 583.

Chapter 10 Sentencing

Article 1. Generally

Court without jurisdiction to sentence person to state hospital.—

Jurisdiction has not been given to the trial court to sentence a person to the Wyoming state hospital as part of the penalty for criminal activity. Dean v. State, 668 P.2d 639, 1983 Wyo. LEXIS 354 (Wyo. 1983) (decided prior to 1983 revision).

Am. Jur. 2d, ALR and C.J.S. references. —

Power of court to increase severity of unlawful sentence — modern status, 28 ALR4th 147.

Sentencing: permissibility of sentence to a fine only, under statutory provision for imprisonment or imprisonment and fine, 35 ALR4th 192.

Validity, construction, and application of concurrent sentence doctrine — state cases, 56 ALR5th 385.

§ 6-10-101. “Felony” and “misdemeanor” defined.

Crimes which may be punished by death or by imprisonment for more than one (1) year are felonies. All other crimes are misdemeanors.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1.

Cross references. —

As to expungement of misemeanor records, see § 7-13-1501 .

Instruction properly refused. —

In a prosecution for burglary based on defendant's entering and driving a vehicle without permission, where the prosecutor's argument and evidence was that the felony defendant intended to commit was larceny, the trial court did not err in refusing to give defendant's proffered instruction defining “felony.” Brett v. State, 961 P.2d 385, 1998 Wyo. LEXIS 114 (Wyo. 1998).

Applied in

Hukoveh v. Alston, 25 Wyo. 122, 165 P. 988, 1917 Wyo. LEXIS 12 (1917); Orcutt v. State, 366 P.2d 690, 1961 Wyo. LEXIS 133 (Wyo. 1961).

Quoted in

Wyoming. Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 1950 Wyo. LEXIS 19 (1950); State ex rel. Hoke v. Owens, 733 P.2d 240, 1987 Wyo. LEXIS 396 (Wyo. 1987).

Stated in

Town of Jackson v. Shaw, 569 P.2d 1246, 1977 Wyo. LEXIS 288 (Wyo. 1977); Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Law reviews. —

For article, “Disinheriting a Murderer of an Ancestor,” see 8 Wyo. L.J. 132.

For article, “Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change,” see XI Land & Water L. Rev. 525 (1976).

For comment, “Miranda and Misdemeanors,” see XIV Land & Water L. Rev. 521 (1979).

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Voluntary absence of accused when sentence is pronounced, 59 ALR5th 135.

§ 6-10-102. Imposition of fine for any felony; maximum fine where not established by statute; court automation fee; indigent civil legal services fee.

The court may impose a fine as part of the punishment for any felony. If the statute does not establish a maximum fine, the fine shall be not more than ten thousand dollars ($10,000.00). The court shall impose a court automation fee of forty dollars ($40.00) in every criminal case wherein the defendant is found guilty, enters a plea of guilty or no contest or is placed on probation under W.S. 7-13-301 . The fee shall be remitted as provided by W.S. 5-3-205 . In addition to the court automation fee the court shall impose an indigent civil legal services fee of ten dollars ($10.00) in every criminal case wherein the defendant is found guilty, enters a plea of guilty or no contest or is placed on probation under W.S. 7-13-301 or 35-7-1037 . The indigent civil legal services fee shall be remitted as provided in W.S. 5-3-205 (a)(ii).

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2000, ch. 25, § 2; 2010, ch. 109, § 2; 2017, ch. 105, § 1; 2020, ch. 66, § 1.

The 2010 amendment, effective July 1, 2010, added the present last two sentences.

The 2017 amendment , effective July 1, 2017, substituted “a court automation fee of twenty-five dollars ($25.00)” for “a court automation fee of ten dollars ($10.00)” in the second sentence.

The 2020 amendment, effective July 1, 2020, substituted “forty dollars ($40.00)” for “twenty-five dollars ($25.00).”

Amended Sentence.—

District court had the authority on remand to amend defendant's sentence because the amended sentence was consistent with the district court's original sentence and merely reconfirmed that the statutorily-mandated fees remained part of defendant sentence; the statutory assessments were imposed because defendant had been convicted of a crime, and on remand, he still was convicted of a crime. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Construction.—

Statutes indicate that the fees are imposed as a result of being convicted in a criminal case, not as part of the sentence for any particular crime; the statutes envision that sentencing courts impose the mandated fees separately as part of the overall sentence, rather than as part of the sentence for an individual charge. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Sentence Not Illegal.—

District court properly denied defendant's motions to correct an illegal sentence because there was no increase in punishment and no violation of his double jeopardy protections; all of the fees imposed upon defendant's conviction were mandated by statute, and thus, it was unnecessary for the district court to attach the fees to the stalking charge in the initial sentence. Hawes v. State, 2016 WY 30, 368 P.3d 879, 2016 Wyo. LEXIS 32 (Wyo.), reh'g denied, 2016 WY 30, 2016 Wyo. LEXIS 44 (Wyo. 2016).

Waiver. —

When defendant entered a plea of guilty to felony attempted larceny, he did not raise a claim in the district court challenging the assessment of an indigent civil legal services fee under this section; therefore, the issue could not be considered on appeal under Wyo. R. Crim. P. 11(b)(1)(C). Morrison v. State, 2012 WY 41, 272 P.3d 321, 2012 Wyo. LEXIS 44 (Wyo. 2012).

Death sentence and fine. —

A court may impose a fine upon a defendant in addition to sentence of death, and such sentence does not amount to cruel and unusual punishment. Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (Wyo.), reh'g denied, 22 Wyo. 34, 135 P. 749, 1913 Wyo. LEXIS 36 (Wyo. 1913).

Stated in

McGarvey v. State, 2014 WY 66, 2014 Wyo. LEXIS 71 (May 28, 2014).

Cited in

Griswold v. State, 994 P.2d 920, 1999 Wyo. LEXIS 200 (Wyo. 1999).

Applied in

Chapman v. State, 2013 WY 57, 2013 Wyo. LEXIS 62 (May 10, 2013).

Law reviews. —

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of applying cash bail to payment of fine, 42 ALR5th 547.

§ 6-10-103. Penalties for misdemeanors where not prescribed by statute; court automation fee; indigent civil legal services fee.

Unless a different penalty is prescribed by law, every crime declared to be a misdemeanor is punishable by imprisonment in the county jail for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both. The court shall impose a court automation fee of forty dollars ($40.00) in every criminal case wherein the defendant is found guilty, enters a plea of guilty or no contest or is placed on probation under W.S. 7-13-301 . The fee shall be remitted as provided by W.S. 5-3-205 . In addition to the court automation fee the court shall impose an indigent civil legal services fee of ten dollars ($10.00) in every criminal case wherein the defendant is found guilty, enters a plea of guilty or no contest or is placed on probation under W.S. 7-13-301 . The indigent civil legal services fee shall be remitted as provided in W.S. 5-3-205 (a)(ii).

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2000, ch. 25, § 2; 2010, ch. 109, § 2; 2017, ch. 105, § 1; 2020, ch. 66, § 1.

Cross references. —

As to maximum fine and imprisonment permitted in municipal courts of cities of the first class, see § 5-6-210 .

As to maximum fine and imprisonment permitted in municipal courts in incorporated towns, see § 5-6-301 .

As to payment of costs of prosecution, see § 7-11-505 .

For provision that the defendant may be absent during arraignment, plea and imposition of sentence for offenses punishable by fine or imprisonment of not more than one year, see Rule 43, W.R. Cr. P.

The 2010 amendment, effective July 1, 2010, added the present last two sentences.

The 2017 amendment , effective July 1, 2017, substituted “a court automation fee of twenty-five dollars ($25.00)” for “a court automation fee of ten dollars ($10.00)” in the second sentence.

The 2020 amendment, effective July 1, 2020, substituted “forty dollars ($40.00)” for “twenty-five dollars ($25.00).”

Quoted in

State ex rel. Hoke v. Owens, 733 P.2d 240, 1987 Wyo. LEXIS 396 (Wyo. 1987).

Law reviews. —

For comment, “Miranda and Misdemeanors,” see XIV Land & Water L. Rev. 521 (1979).

For comment, “The Institutional Transfer Statute: Three Challenges to the Imprisonment of Juvenile Offenders,” see XVII Land & Water L. Rev. 643 (1982).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-10-104. Court to fix punishment within prescribed limits.

Within the limits prescribed by law, and subject to W.S. 7-13-108 , the court shall determine and fix the punishment for any felony or misdemeanor, whether the punishment consists of imprisonment, or fine, or both.

History. Laws 1982, ch. 75, § 3; 1992, ch. 25, § 3.

Cross references. —

As to the prohibition on importing tobacco products in violation of federal law, see § 35-7-1502 .

Sentence must be within limits of minimum and maximum punishment prescribed by statute for the particular offense, and a sentence within such limits will not be disturbed absent a clear abuse of discretion. Williams v. State, 692 P.2d 233, 1984 Wyo. LEXIS 352 (Wyo. 1984).

Review of sentence for abuse of discretion. —

The common-law rule that a sentence is not subject to appellate review if it is within the limits set by the legislature is not followed in Wyoming; instead, a sentence may be reviewed for abuse of discretion. Wright v. State, 670 P.2d 1090, 1983 Wyo. LEXIS 373 (Wyo. 1983), reh'g denied, 707 P.2d 153, 1985 Wyo. LEXIS 575 (Wyo. 1985).

Illegal Sentence. —

A requirement that defendant serve his term of incarceration concurrent with a sentence for which he was presently incarcerated, as well as consecutive to a probationary period that had yet to begin was improper because it was impossible to meet both those requirements, and because the sentence as pronounced would require the period of incarceration to be interrupted by a period of probation. Thus, the sentence was illegal. Cothren v. State, 2012 WY 102, 281 P.3d 352, 2012 Wyo. LEXIS 109 (Wyo. 2012).

Applied in

Hopkinson v. State, 704 P.2d 1323, 1985 Wyo. LEXIS 542 (Wyo. 1985).

Cited in

Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (1913); Nicholson v. State, 24 Wyo. 347, 157 P. 1013, 1916 Wyo. LEXIS 35 (1916); State v. Faulkner, 75 Wyo. 104, 292 P.2d 1045, 1956 Wyo. LEXIS 3 (1956); Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 1957 Wyo. LEXIS 6 , 65 A.L.R.2d 839 (1957); Jones v. State, 2003 WY 154, 79 P.3d 1021, 2003 Wyo. LEXIS 184 (Wyo. 2003).

Law reviews. —

For article, “The Operation of Wyoming Statutes on Probation and Parole,” see 7 Wyo. L.J. 104.

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Right to credit on state sentence for time served under sentence of court of separate jurisdiction where state court fails to specify in that regard, 90 ALR3d 408.

Defendant's right to credit for time spent in halfway house, rehabilitation center, or other restrictive environment as condition of probation, 24 ALR4th 789.

Computation of incarceration time under work-release or “hardship” sentences, 28 ALR4th 1265.

Propriety of sentencing judge's consideration of defendant's perjury or lying in pleas or testimony in present trial, 34 ALR4th 888.

Propriety of applying cash bail to payment of fine, 42 ALR5th 547.

Downward departure under state sentencing guidelines based on extraordinary family circumstances, 106 ALR5th 377.

Excessiveness of sentence, under 18 USC § 751(a), for escape from federal custody, 77 ALR Fed 318.

Downward departure from United States Sentencing Guidelines (USSG §§ 1A1.1 et seq.) based on vulnerability to abuse in prison, 155 ALR Fed 327.

Downward departure from United States Sentencing Guidelines (U.S.S.G. § 1A1.1 et seq.) based on aberrant behavior, 164 ALR Fed 61.

§ 6-10-105. Commitment for refusal to pay fine or costs; rate per day.

A person committed to jail for willfully refusing to pay a fine or costs may be imprisoned if the court determines that the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay, until the imprisonment, at the rate of fifteen dollars ($15.00) per day, equals the amount of the fine or costs, or the amount shall be paid or secured to be paid when he is discharged.

History. Laws 1982, ch. 75, § 3; 2011, ch. 129, § 101.

Cross references. —

As to imprisonment for debt, see art. 1, § 5, Wyo. Const.

As to commitment until fine and costs paid, see § 7-11-504 .

The 2011 amendment, effective July 1, 2011, inserted “willfully” and “if the court determines that the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to pay.”

Section unconstitutional as applied to indigents. —

This section and §§ 5-6-211 , 7-11-504 and 7-16-128 (repealed) are unconstitutional as applied to an indigent person who lacks the means to pay a fine; however, imprisonment is not precluded as an enforcement method when alternative means are unsuccessful despite the defendant's reasonable efforts to satisfy the fines by those means. Whiteplume v. City of Riverton, Civ. No. C81-068K (D. Wyo. 1981).

Cited in

In re MacDonald, 4 Wyo. 150, 33 P. 18, 1893 Wyo. LEXIS 7 (1893); Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 1901 Wyo. LEXIS 23 (1901); Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (1913).

Law reviews. —

For note on the assessment and collection of the costs of a criminal prosecution in Wyoming, see 13 Wyo. L.J. 178 (1959).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-10-106. Rights lost by conviction of felony; restoration.

  1. A person convicted of a felony is incompetent to be an elector or juror or to hold any office of honor, trust or profit within this state, unless:
    1. His conviction is reversed or annulled;
    2. He receives a pardon;
    3. His rights are restored pursuant to W.S. 7-13-105(a); or
    4. His rights as an elector are restored pursuant to W.S. 7-13-105(b) and (c), in which case the person shall remain incompetent to be a juror or to hold any office of honor, trust or profit within this state.

History. Laws 1982, ch. 75, § 3; 1987, ch. 157, § 2; 2003, ch. 132, § 1.

Cross references. —

For constitutional provision disqualifying persons convicted of infamous crimes from voting, unless restored to civil rights, see art. 6, § 6, Wyo. Const.

For provision that a person who has been convicted of malfeasance in office or of any felony or other high crime shall not be competent to act as a juror, see § 1-11-102 .

As to commission and conviction of a crime involving moral turpitude or constituting a breach of oath of office as creating vacancies in elective office, see § 22-18-101 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Laws 2003, ch. 132, § 2, provides: “The intent of this act is to provide an opportunity to restore voting rights lost by persons convicted of felonies other than violent felonies regardless of when the conviction occurred. Nothing in this act shall be construed to affect the governor's powers under W.S. 7-13-105 to restore any rights lost pursuant to W.S. 6-10-106 .”

Section is not unconstitutional. Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985).

District court order dismissing inmates' complaint brought under 42 USCS § 1983, challenging Wyo. Stat. Ann. § 6-10-106 , which denied them, as convicted felons, the right to vote, was upheld on appeal. Woodruff v. Wyoming, 49 Fed. Appx. 199, 2002 U.S. App. LEXIS 21060 (10th Cir. Wyo. 2002).

Prisoner not under legal disability. —

Under Wyo. Stat. Ann § 1-3-107 (2005), imprisonment is not a “legal disability other than minority” that suspends the running of the statute of limitations, because a convicted felon is not “legally dead” in Wyoming, and both convicted felons and prisoners have the right to file lawsuits. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

Convicted felon allowed to run for office. —

Article 6, § 6, Wyo. Const., and this section provide that a person who has been convicted of a felony is prohibited from holding public office. They do not say such person is prohibited from running for office. Hamburg v. State, 820 P.2d 523, 1991 Wyo. LEXIS 166 (Wyo. 1991), reh'g denied, 1991 Wyo. LEXIS 189 (Wyo. Dec. 4, 1991).

Quoted in

Blake v. Rupe, 651 P.2d 1096, 1982 Wyo. LEXIS 383 (Wyo. 1982).

Law reviews. —

For note on indirect legal consequences of a conviction for a felony, see 13 Wyo. L.J. 62 (1958).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-10-107. Minimum term of imprisonment.

The minimum term of imprisonment in any state penal institution is not less than one (1) year.

History. Laws 1982, ch. 75, § 3; 1992, ch. 25, § 3.

Cross references. —

As to sentence and imprisonment, see §§ 7-13-101 through 7-13-915 .

As to sentence and judgment, see Rule 32, W.R. Cr. P.

Applied in

Evanson v. State, 546 P.2d 412, 1976 Wyo. LEXIS 171 (Wyo. 1976).

Stated in

Daugherty v. State, 2002 WY 52, 44 P.3d 28, 2002 Wyo. LEXIS 53 (Wyo. 2002).

Cited in

Jenkins v. State, 22 Wyo. 34, 134 P. 260, 1913 Wyo. LEXIS 35 (1913).

Law reviews. —

For article, “Disparity and the Sentencing Process in Wyoming District Courts: Recommendations for Change,” see XI Land & Water L. Rev. 525 (1976).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

§ 6-10-108. Disposition of fines.

An officer who collects a fine, unless otherwise required by law, shall pay the fine into the general fund of the county in which the fine was assessed within thirty (30) days of receipt. The officer shall obtain duplicate treasurer’s receipts and deposit one (1) with the county clerk.

History. Laws 1982, ch. 75, § 3.

Cross references. —

For constitutional provision as to fines and penalties belonging to the public school fund, see art. 7, § 5, Wyo. Const.

For provision as to fines collected by a judge of a circuit court to be paid into the general fund of the city or town whose ordinance was violated, see § 5-9-106 .

For provision as to paying all fines under the general laws of the state into the county treasury to the credit of the public school fund of the county, see § 5-9-106 .

For provision requiring judge of the circuit court to deposit fine with the county or state treasurer and penalty for not so doing, see § 5-9-146 .

For provision that the county attorney shall bring suit to collect fines, see § 5-9-152 .

For provision requiring sheriff to pay and account for all monies coming into his office, see § 18-3-609 .

For provision as to county officials paying over fines to the county treasurer, see § 18-3-814 .

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Propriety of applying cash bail to payment of fine, 42 ALR5th 547.

§ 6-10-109. Sentences for felonies.

Wherever in this or in any other title of the Wyoming statutes a statute makes reference to a term of imprisonment or a sentence to the penitentiary, or other references to incarceration in a state penal institution, such references shall include the Wyoming state penitentiary, the Wyoming women’s center or any other state penal institution created by law for the incarceration of convicted felons. The place of incarceration of a convicted felon shall be determined as provided by W.S. 7-13-108 .

History. Laws 1982, ch. 75, § 3; 1992, ch. 25, § 3.

Cross references. —

As to state institutions, see § 25-1-201 .

§ 6-10-110. [Renumbered.]

Renumbered by Laws 1987, ch. 157, § 3.

Cross references. —

For present provisions relating to restitution, see § 7-9-102 .

Article 2. Habitual Criminals

Trial court's determination that sentence under article was inappropriate effectively nullified jury's determination that the defendant was an habitual criminal. Pote v. State, 695 P.2d 617, 1985 Wyo. LEXIS 445 (Wyo. 1985).

§ 6-10-201. “Habitual criminal” defined; penalties.

  1. A person is an habitual criminal if:
    1. He is convicted of a violent felony; and
    2. He has been convicted of a felony on two (2) or more previous charges separately brought and tried which arose out of separate occurrences in this state or elsewhere.
  2. An habitual criminal shall be punished by imprisonment for:
    1. Not less than ten (10) years nor more than fifty (50) years, if he has two (2) previous convictions;
    2. Life, if he has three (3) or more previous convictions for offenses committed after the person reached the age of eighteen (18) years of age.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 2013, ch. 18, § 1.

Cross references. —

As to identification of criminals and keeping information on same, see §§ 9-1-623 through 9-1-627 .

The 2013 amendment , effective July 1, 2013, added “offenses committed after the person reached the age of eighteen (18) years of age” in (b)(ii).

Equal protection not violated. —

The inclusion of involuntary manslaughter in the definition of violent crimes and the exclusion of aggravated vehicular homicide is not an arbitrary and capricious classification in violation of equal protection. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985); Bell v. State, 693 P.2d 769, 1985 Wyo. LEXIS 425 (Wyo. 1985).

No ex post facto violation. —

Habitual criminal enhancement statute does not violate constitutional prohibition against ex post facto laws. Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Wyo. 2009).

Victim's compensation surcharge. —

Imposing a victim's compensation surcharge did not make the habitual offender statute unconstitutional under prohibitions against double jeopardy and enacting ex post facto laws because the surcharge was statutorily authorized. Bird v. State, 2015 WY 108, 356 P.3d 264, 2015 Wyo. LEXIS 123 (Wyo. 2015).

No separate sentences for felony and habitual offender status. —

Sentencing a defendant for a felony and then sentencing him again for his status as an habitual offender would violate the double jeopardy prohibition. Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

Being an habitual criminal is not a crime — it is a status. —

To be an habitual criminal under this section simply changes the sentencing process so that the sentence which could be imposed for the crime charged (if less than life imprisonment) becomes enhanced to a mandatory life sentence. Schuler v. State, 668 P.2d 1333, 1983 Wyo. LEXIS 359 (Wyo. 1983).

Habitual criminal statute does not punish a defendant for his previous offenses but for his persistence in crime; hence, the use of defendant's prior convictions to enhance his aggravated assault convictions did not violate his right against double jeopardy. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

Remand for habitual criminal proceeding not double jeopardy. —

Since an habitual criminal proceeding is not for a criminal offense, a remand for additional proceedings therein do not constitute double jeopardy in violation of an accused's constitutional right. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980).

Increasing sentence on remand prohibited. —

See Simonds v. State, 799 P.2d 1210, 1990 Wyo. LEXIS 126 (Wyo. 1990).

Section not impermissible usurpation of judicial powers or prerogatives. —

This section is not an impermissible legislative usurpation of the court's prerogatives, is not an unconstitutional encroachment on the power of the judiciary and does not violate the separation of powers clause of the constitution. Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

Rationale supporting habitual criminal statutes. —

See Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

“Violent felony.” —

Indecent liberties is not a “violent felony” as that phrase is defined by Wyoming law. Cooley v. State, 885 P.2d 875, 1994 Wyo. LEXIS 159 (Wyo. 1994).

The initially imposed sentences following the defendant's conviction for child abuse were illegal as a matter of law given that the habitual criminal statute applies only to “violent felonies” and that the statutory definition of violent felonies does not include felony child abuse. Rodgriguez v. State, 917 P.2d 172, 1996 Wyo. LEXIS 74 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 88 (Wyo. June 11, 1996).

Aggravated robbery is a “violent felony” within the meaning of this section. — While the legislature, in § 6-1-104(a)(xii), has defined “violent felony” to include robbery, and while aggravated robbery is not listed separately, it does not logically follow that the legislature would conclude that robbery is a violent felony while aggravated robbery is not. Oakley v. State, 715 P.2d 1374, 1986 Wyo. LEXIS 512 (Wyo. 1986).

Section requires previous conviction, not previous crime. —

This section does not require that a crime be previously committed, only that there is a previous conviction. Green v. State, 784 P.2d 1360, 1989 Wyo. LEXIS 254 (Wyo. 1989).

Sentence enhancement requires separate charges and occurrences. —

The ordinary and plain meaning of the terms “separately brought” and “separate occurrences” required for sentence enhancement refers to more than just the conviction. These terms refer as well to charges and occurrences separate from each other. Green v. State, 784 P.2d 1360, 1989 Wyo. LEXIS 254 (Wyo. 1989).

But statute allows enhancing sentences for multiple convictions arising from same occurrence. —

The purpose of this section is to provide additional punishment for people who have not been deterred by previous penalties, and that purpose applies regardless of whether the habitual criminal commits more than one felony during a single occurrence or more than one felony in separate occurrences; hence, a trial court did not abuse its discretion when it enhanced each sentence for each of defendant's convictions of a violent felony arising out of his attempted escape from police by car and on foot and his shooting at police. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

Where the evidence showed that the defendant subjected the victim to both vaginal and anal sexual penetration, these acts constituted separate, forcible sexual intrusions on the victim and proof of different facts was required to establish the elements of each crime, creating a record showing that the defendant's convictions were for separate and distinct crimes. It was, therefore, appropriate for the district court to consider the defendant's convictions as separate and distinct crimes for the purpose of imposing consecutive life sentences pursuant to the habitual criminal statute. Brown v. State, 2004 WY 119, 99 P.3d 489, 2004 Wyo. LEXIS 156 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 182 (Wyo. Nov. 16, 2004), cert. denied, 544 U.S. 966, 125 S. Ct. 1743, 161 L. Ed. 2d 612, 2005 U.S. LEXIS 3057 (U.S. 2005).

Two consecutive life sentences proper. —

In a sexual assault case, the defendant, a felony recidivist, was properly sentenced to two consecutive life sentences where defendant subjected the victim to both vaginal and anal sexual penetration, in violation of Wyo. Stat. Ann. § 6-2-302 .Daniel v. State, 2003 WY 132, 78 P.3d 205, 2003 Wyo. LEXIS 162 (Wyo. 2003), cert. denied, 540 U.S. 1205, 124 S. Ct. 1476, 158 L. Ed. 2d 127, 2004 U.S. LEXIS 1455 (U.S. 2004).

Out-of-state convictions. —

The fact that a criminal defendant's previous felony convictions in other states may not be felonies in Wyoming is immaterial to the application of this section. Gunderson v. State, 925 P.2d 1300, 1996 Wyo. LEXIS 149 (Wyo. 1996), reh'g denied, 1996 Wyo. LEXIS 157 (Wyo. Oct. 29, 1996).

District court properly sentenced defendant to life in prison because a rational trier of fact could have concluded that he committed a felony offense in Ohio and that he was the individual who committed first-degree sexual assault and third-degree sexual abuse of a minor; the testimony of a court clerk from Ohio showed that defendant was convicted of a felony in Ohio, and the State proved that defendant committed all three crimes being used against him to prove he was a habitual offender. Rogers v. State, 2015 WY 48, 346 P.3d 934, 2015 Wyo. LEXIS 54 (Wyo. 2015).

Burden of proof. —

A defendant mounting a constitutional challenge to an underlying conviction in an habitual offender proceeding must make a prima facie showing that one or more of his underlying convictions was not obtained in accordance with his constitutional rights. Once the defendant makes this showing, the prosecution has the burden of establishing, by a preponderance of the evidence, that the conviction was constitutionally obtained. Johnston v. State, 829 P.2d 1179, 1992 Wyo. LEXIS 53 (Wyo. 1992).

Sentence enhancement requires separate charges and occurrences.—

District court properly enhanced the penalties for defendant’s aggravated assault and battery convictions because defendant had been convicted of two prior felonies separately brought and tried even though they were resolved in a single plea agreement and judgment and sentence. Thompson v. State, 2018 WY 3, 408 P.3d 756, 2018 Wyo. LEXIS 3 (Wyo. 2018).

Improper for judge to consider probation upon fourth felony. —

Under this section, the life sentence for the fourth felony is mandatory, and it is improper for the trial judge to consider probation. Schuler v. State, 668 P.2d 1333, 1983 Wyo. LEXIS 359 (Wyo. 1983).

Ten-to-20 year sentence for armed robbery constitutional, even though defendant used nonfunctional gun. —

A 10-to-20 year sentence for a third felony conviction (armed robbery) is not cruel and unusual punishment, violative of either the eighth amendment to the United States constitution, or art. 1, § 14 of the Wyoming constitution, even though the defendant allegedly deliberately chose to use a nonfunctional gun, unloaded and absent a firing pin, to consciously avoid violence and harm. Oakley v. State, 715 P.2d 1374, 1986 Wyo. LEXIS 512 (Wyo. 1986).

And humane. —

The trial judge imposed a 10-to-20 year sentence for armed robbery under this section with the humane principles of reformation and prevention required by art. I, § 15, Wyo. Const. (humane penal code) foremost in mind. Prior to imposing sentence, the trial judge heard testimony from a psychiatrist regarding the defendant's personality disorder, and reviewed, in the presence of the defendant, counsel and the jury, the defendant's history of drug abuse, his unhappy family history, the culpability of his past crimes, and the fact that he used an unloaded weapon in the aggravated robbery. Oakley v. State, 715 P.2d 1374, 1986 Wyo. LEXIS 512 (Wyo. 1986).

Prejudicial error. —

Where defendant fired two shots at police officers and was subsequently convicted of aggravated assault with a deadly weapon, even assuming, for purposes of defendant's appeal of the habitual offender charge, validity of alleged errors that he was denied due process and a fair trial, that his pretrial motion to dismiss the habitual offender charge was improperly denied, and that there was prosecutorial misconduct, defendant failed to show that he was prejudiced by those errors; his belief that his sentence would have been more lenient if he pled guilty was purely speculative, ignored the district court's duty to consider the crime and its circumstances, and disregarded the fact that the officers' testimony would have come before the district court at sentencing even if defendant had pled guilty to the aggravated assault charge. Hopson v. State, 2006 WY 32, 130 P.3d 494, 2006 Wyo. LEXIS 35 (Wyo. 2006).

Record authenticity. —

Sufficient evidence supported a habitual offender conviction, despite objections to the level of authenticity of some conviction records, because this issue related to the weight of the evidence. Lopez v. State, 2006 WY 97, 139 P.3d 445, 2006 Wyo. LEXIS 96 (Wyo. 2006).

Applied in

Scherer v. Wyoming, 278 F.2d 469, 1960 U.S. App. LEXIS 4850 (10th Cir. 1960); Orcutt v. State, 366 P.2d 690, 1961 Wyo. LEXIS 133 (Wyo. 1961); Whiteley v. State, 418 P.2d 164, 1966 Wyo. LEXIS 163 (Wyo. 1966); Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971); Connor v. State, 537 P.2d 715, 1975 Wyo. LEXIS 147 (Wyo. 1975); Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979); Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983); Simonds v. State, 762 P.2d 1189, 1988 Wyo. LEXIS 128 (Wyo. 1988); Rich v. State, 899 P.2d 1345, 1995 Wyo. LEXIS 132 (Wyo. 1995).

Quoted in

Wyoming. Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 1950 Wyo. LEXIS 19 (1950); Jones v. State, 771 P.2d 368, 1989 Wyo. LEXIS 87 (Wyo. 1989); Keene v. State, 812 P.2d 147, 1991 Wyo. LEXIS 101 (Wyo. 1991); Heinemann v. State, 12 P.3d 692, 2000 Wyo. LEXIS 214 (Wyo. 2000); Skinner v. State, 2001 WY 102, 33 P.3d 758, 2001 Wyo. LEXIS 124 (Wyo. 2001); Kearns v. State, 2002 WY 97, 48 P.3d 1090, 2002 Wyo. LEXIS 103 (Wyo. 2002); DeLoge v. State, 2002 WY 155, 55 P.3d 1233, 2002 Wyo. LEXIS 175 (Wyo. 2002).

Stated in

Allman v. State, 677 P.2d 832, 1984 Wyo. LEXIS 264 (Wyo. 1984); Smith v. State, 715 P.2d 1164, 1986 Wyo. LEXIS 514 (Wyo. 1986); Price v. State, 716 P.2d 324, 1986 Wyo. LEXIS 508 (Wyo. 1986).

Cited in

Grubbs v. State, 669 P.2d 929, 1983 Wyo. LEXIS 364 (Wyo. 1983); Evans v. State, 892 P.2d 796, 1995 Wyo. LEXIS 55 (Wyo. 1995); Bird v. State, 901 P.2d 1123, 1995 Wyo. LEXIS 155 (Wyo. 1995); Garton v. State, 910 P.2d 1348, 1996 Wyo. LEXIS 16 (Wyo. 1996); Wilson v. State, 14 P.3d 912, 2000 Wyo. LEXIS 234 (Wyo. 2000); Spinner v. State, 2003 WY 106, 75 P.3d 1016, 2003 Wyo. LEXIS 133 (Wyo. 2003); Lacey v. State, 2003 WY 148, 79 P.3d 493, 2003 Wyo. LEXIS 179 (Wyo. 2003); Hannon v. State, 2004 WY 8, 84 P.3d 320, 2004 Wyo. LEXIS 12 (2004); Evenson v. State, 2008 WY 24, 177 P.3d 819, 2008 Wyo. LEXIS 25 (Mar. 5, 2008); Cohen v. State, 2008 WY 78, 2008 Wyo. LEXIS 83 (July 14, 2008); Chapman v. State, 2013 WY 57, 2013 Wyo. LEXIS 62 (May 10, 2013).

Law reviews. —

For a criticism of the Wyoming Habitual Criminal Act, see 6 Wyo. L.J. 311.

For comment on procedure requisite to accepting a guilty plea in Wyoming, see XI Land & Water L. Rev. 607 (1967).

For article, “The Changing Structure of Criminal Sentencing,” see XVIII Land & Water L. Rev. 591 (1983).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

For comment, “Reforming Criminal Sentencing in Wyoming,” see XX Land & Water L. Rev. 575 (1985).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes former “conviction” within statute enhancing penalty for second or subsequent offense, 5 ALR2d 1080.

Necessity of proof of identity for purposes of statute as to enhanced punishment in case of prior conviction, 11 ALR2d 870.

Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statute, 24 ALR2d 1247.

Pardon as affecting consideration of earlier conviction in applying habitual criminal statute, 31 ALR2d 1186.

Propriety, under statute enhancing punishment for second or subsequent offense, of restricting new trial to issue of status as habitual criminal, 79 ALR2d 826.

Convictions under Dyer Act (National Motor Theft Act) as ground for enhancement of penalty under state habitual criminal statutes, 65 ALR3d 586.

Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 ALR4th 227.

Propriety of using single prior felony conviction as basis for offense of possessing weapon by convicted felon and to enhance sentence, 37 ALR4th 1168.

Chronological or procedural sequence of former convictions as affecting enhancement of penalty under habitual offender statutes, 7 ALR5th 263.

Pardoned or expunged conviction as “prior offense” under state statute or regulation enhancing punishment for subsequent conviction, 97 ALR5th 293.

§ 6-10-202. Penalties not affected.

  1. Nothing in this article shall abrogate or affect:
    1. The punishment of death in crimes for which the death penalty is imposed;
    2. The punishment of life imprisonment without parole in cases in which that penalty is imposed.

History. Laws 1982, ch. 75, § 3; 1983, ch. 171, § 1; 1996, ch. 73, § 2.

Cross references. —

As to execution of death sentence, see § 7-13-901 et seq.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Rationale supporting habitual criminal statutes. —

See Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

Applied in

Scherer v. Wyoming, 278 F.2d 469, 1960 U.S. App. LEXIS 4850 (10th Cir. 1960); Orcutt v. State, 366 P.2d 690, 1961 Wyo. LEXIS 133 (Wyo. 1961); Boggs v. State, 484 P.2d 711, 1971 Wyo. LEXIS 216 (Wyo. 1971); Connor v. State, 537 P.2d 715, 1975 Wyo. LEXIS 147 (Wyo. 1975); Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979).

Law reviews. —

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 ALR4th 227.

§ 6-10-203. Information or indictment; trial; prima facie evidence of previous convictions.

  1. An information or indictment which charges a person as an habitual criminal shall set forth the charged felony and allege the previous convictions.
  2. The trial on the charged felony shall proceed as in other cases, but the jury shall not be informed of the previous convictions. If the defendant is convicted of the charged felony and does not plead guilty to the charge of the previous convictions, he shall be tried immediately by the same jury or judge on the charge of the previous convictions.
  3. In a trial under this article, a duly authenticated copy of the record of previous convictions and judgments against the defendant of any court of record are prima facie evidence of the previous convictions and may be used in evidence against the defendant.

History. Laws 1982, ch. 75, § 3.

Previous convictions need not precede commission of offense charged; rather, the state is only required to allege and prove two prior convictions under the habitual criminal statutes. Wyoming. Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 1950 Wyo. LEXIS 19 (Wyo. 1950).

Prior convictions required to be set forth in information.—

A defendant's claim that paragraphs in the information which described prior convictions should be deleted from the information is without merit since this section expressly requires the prior convictions to be set forth in the information. This section makes the prior conviction a part of the description and character of the offense intended to be punished. Wyoming. Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 1950 Wyo. LEXIS 19 (Wyo. 1950).

Proof of prior conviction. —

In a criminal prosecution wherein the defendant is accused of a prior conviction, two questions of fact are presented. The first is whether the prior judgment has been rendered. The second is whether the person named in the prior judgment is the same person now accused of that prior conviction. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980).

Sufficient evidence of prior conviction. —

In view of the certificates of the conviction of the clerk of a United States district court and the admission of the defendant that he had been arrested for bank robbery, a judgment of conviction in that court has been sufficiently shown. Orcutt v. State, 366 P.2d 690, 1961 Wyo. LEXIS 133 (Wyo. 1961).

But concordance of names of accused and of person previously convicted is not sufficient to establish prima facie evidence of identity for the purpose of a habitual criminal charge. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980).

Admission of court files and records not unconstitutional.—

The admission into evidence of court files and records on the issue of the defendant's habitual criminal status did not violate his constitutional right to confront witnesses against him. Amin v. State, 695 P.2d 1021, 1985 Wyo. LEXIS 449 (Wyo. 1985).

No preliminary hearing on habitual criminal allegations. —

As the habitual criminal statute is a vehicle for enhancing a sentence upon a conviction for crime and is not a separate crime, a defendant is not entitled to a preliminary hearing on habitual criminal allegations. Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983).

Absence of charge from original complaint not fatal where adequatenotice. —

Where the defendant has timely and adequate notice of an habitual criminal allegation, it is not error to deny his motion to strike the habitual criminal charge from the information on the ground it was not included in the original complaint. Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983).

No right to jury trial with respect to prior misdemeanor convictions.—

The Wyoming habitual criminal statutes do not by their terms encompass misdemeanor convictions for driving while under the influence of intoxicating liquor. With respect to such sentence enhancement proceedings under the state statute or a similar city ordinance, unless the statutory language so requires, a right to a jury trial with respect to the existence of prior convictions does not exist. Jaramillo v. Green River, 719 P.2d 655, 1986 Wyo. LEXIS 560 (Wyo. 1986).

Use of prior convictions for impeachment only. —

This section does not bar the use of prior felony convictions, when used for impeachment purposes and where the following procedures are employed: the court allows the defendant to be impeached at the trial on the underlying felony by permitting his cross-examination on prior convictions; the court then immediately gives the jury a limiting instruction to the effect that testimony regarding prior convictions is to be considered only for the purpose of impeachment and not as any evidence of guilt; and, at the trial on the defendant's status as an habitual criminal, the state proves the prior convictions independently of the defendant's admissions under cross-examination, so that his prior admissions are not used against him in this phase of the trial. Montez v. State, 670 P.2d 694, 1983 Wyo. LEXIS 371 (Wyo. 1983).

Notice required before sentence enhanced for prior drivingwhile intoxicated. —

The statutory requirement that the sentence to be imposed for driving while intoxicated be more severe as the number of prior convictions of the defendant increases makes said statute a habitual criminal act. Before the sentence of a defendant can be so enhanced, he must have notice of the fact that such is contemplated; generally, the notice must be contained in the information or charge under which he is prosecuted. State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 1983 Wyo. LEXIS 394 (Wyo. 1983).

Jury trial applicable where remand for sentencing. —

The provisions of subsection (b) relative to a jury trial should be followed insofar as possible upon remand for further proceedings relative to sentencing on the issue of habitual criminality. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980).

Waiver of right. —

Defendant knowingly and voluntarily waived his right to have jury panel discharged and new jury impaneled after the judge mistakenly read the habitual criminal charge, which included information regarding his previous felony convictions; a defendant may waive the right to not have a jury be informed of prior convictions for purposes of the habitual criminal statute until the habitual criminal phase of the trial. Kearns v. State, 2002 WY 97, 48 P.3d 1090, 2002 Wyo. LEXIS 103 (Wyo. 2002).

Consideration of mitigating circumstances not constitutionallyrequired. —

There is no constitutional infirmity in the habitual criminal statutes because of the lack of a procedure, similar to that in the death penalty statutes, for presenting mitigating circumstances. Small v. State, 689 P.2d 420, 1984 Wyo. LEXIS 342 (Wyo. 1984), cert. denied, 469 U.S. 1224, 105 S. Ct. 1215, 84 L. Ed. 2d 356, 1985 U.S. LEXIS 1062 (U.S. 1985).

Irrelevant defenses. —

The defenses of mitigating evidence, good character and nonhabitual conduct are matters not ordinarily relevant in the factual determinations made during a proceeding under the habitual criminal statutes. Evans v. State, 655 P.2d 1214, 1982 Wyo. LEXIS 417 (Wyo. 1982).

Applied in

Bandy v. Hehn, 10 Wyo. 167, 67 P. 979, 1902 Wyo. LEXIS 7 (1902); Spiker v. State, 427 P.2d 858, 1967 Wyo. LEXIS 154 (1967); Munoz v. Maschner, 590 P.2d 1352, 1979 Wyo. LEXIS 375 (Wyo. 1979); Bird v. State, 939 P.2d 735, 1997 Wyo. LEXIS 84 (Wyo. 1997); Skinner v. State, 2001 WY 102, 33 P.3d 758, 2001 Wyo. LEXIS 124 (Wyo. 2001).

Cited in

Spinner v. State, 2003 WY 106, 75 P.3d 1016, 2003 Wyo. LEXIS 133 (Wyo. 2003).

Law reviews. —

For comment on procedure requisite to accepting a guilty plea in Wyoming, see XI Land & Water L. Rev. 607 (1967).

For article, “Goodbye 3-Card Monte: The Wyoming Criminal Code of 1982” (part two), see XIX Land & Water L. Rev. 509 (1984).

Am. Jur. 2d, ALR and C.J.S. references. —

Form and sufficiency of allegations as to time, place or court of prior offenses or convictions, under habitual criminal act, 80 ALR2d 1196.

Adequacy of defense counsel's representation of criminal client regarding prior convictions, 14 ALR4th 227.

Article 3. Life Sentence Without Parole

§ 6-10-301. Life imprisonment without parole; life imprisonment.

  1. Pursuant to article 3, section 53 of the Wyoming constitution, a sentence of life imprisonment without parole is created for specified crimes designated in the Wyoming Criminal Code.
  2. A person sentenced to life imprisonment without parole shall not be eligible for parole and shall remain imprisoned under the jurisdiction of the department of corrections during the remainder of his life unless pardoned by the governor.
  3. Any sentence other than a sentence specifically designated as a sentence of life imprisonment without parole is subject to commutation by the governor. A person sentenced to life imprisonment for an offense committed after the person reached the age of eighteen (18) years is not eligible for parole unless the governor has commuted the person’s sentence to a term of years. A person sentenced to life imprisonment for an offense committed before the person reached the age of eighteen (18) years shall be eligible for parole after commutation of his sentence to a term of years or after having served twenty-five (25) years of incarceration, except that if the person committed any of the acts specified in W.S. 7-13-402(b) after having reached the age of eighteen (18) years the person shall not be eligible for parole.

History. Laws 1996, ch. 73, § 1; 2010, ch. 69, § 207; 2013, ch. 18, § 1.

The 2010 amendment, effective July 1, 2010, in (a), deleted “of 1982” at the end.

The 2013 amendment, effective July 1, 2013, rewrote (c).

Sentence not de facto life sentence. —

Defendant’s sentence 12 to 50 years for aggravated robbery was not an unconstitutional de facto life sentence because the age on the date of his earliest possible release was 60, which was younger than the 61-years threshold adopted by the Wyoming Supreme Court. Davis v. State, 2020 WY 122, 472 P.3d 1030, 2020 Wyo. LEXIS 141 (Wyo. 2020).

Individualized sentencing hearing.—

Defendant’s 1992 sentence, which was imposed when defendant was a juvenile, was not a de facto life sentence entitling him to an individualized sentencing hearing under Miller v. Alabama. Defendant’s sentence would render him eligible for parole after serving a minimum of 43 years, at which point he would be 58-years old. Wiley v. State, 2020 WY 49, 461 P.3d 413, 2020 Wyo. LEXIS 52 (Wyo. 2020).

Life sentence. —

District court correctly applied the law and did not abuse its discretion in denying an inmate's motion for relief because it properly disposed of the inmate's civil rights suit; the district court concluded that the inmate's life sentence did not fall within the exemption for inmates under a death sentence or a sentence of “life without the possibility of parole” because it was not designated as a sentence of life without parole, which was the type of life sentence addressed in the exemption Nicodemus v. Lampert, 2014 WY 135, 336 P.3d 671, 2014 Wyo. LEXIS 150 (Wyo. 2014).

Although the aggregate sentences imposed on defendant for crimes committed as a juvenile did not deprive the parole board of its statutory authority to consider parole of a juvenile after 25 years, the sentence exceeded the limits imposed by Miller v. Alabama and Bear Cloud v. State. Sam v. State, 2017 WY 98, 401 P.3d 834, 2017 Wyo. LEXIS 99 (Wyo. 2017), cert. denied, 138 S. Ct. 1988, 201 L. Ed. 2d 248, 2018 U.S. LEXIS 3049 (U.S. 2018).

Aggregate sentence not de facto life sentence.—

Defendant's aggregate sentence, which would require defendant to serve at least 35 years before he became parole eligible, was not a de facto life sentence and did not violate the Eighth Amendment because defendant would be eligible for parole when he was approximately 50 years old; defendant failed to establish that the sentence did not provide him a meaningful opportunity for release. Sen v. State, 2017 WY 30, 390 P.3d 769, 2017 Wyo. LEXIS 30 (Wyo.), cert. denied, 138 S. Ct. 225, 199 L. Ed. 2d 146, 2017 U.S. LEXIS 4668 (U.S. 2017).

Instructions about the availability of clemency or parole. —

With respect to the future dangerousness considerations of sentencing, it is not unconstitutional for a court to tell the jury about the possibility of executive clemency or parole, but the jury should be clearly informed about a defendant's statutory ineligibility for parole. Olsen v. State, 2003 WY 46, 67 P.3d 536, 2003 Wyo. LEXIS 57 (Wyo. 2003).

Cited in

Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014).

Quoted in

Booth v. State, 2008 WY 3, 174 P.3d 171, 2008 Wyo. LEXIS 3 (Jan. 10, 2008); Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014); Nicodemus v. State, 2017 WY 34, 392 P.3d 408, 2017 Wyo. LEXIS 34 (Wyo. 2017).

Am. Jur. 2d, ALR and C.J.S. references. —

Revocation of order commuting state criminal sentence, 88 ALR5th 463.