§ 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, effective July 1, 2013; 2014 ch. 12, § 1, effective July 1, 2014; 2014 ch. 13, § 2, effective July 1, 2014; 2018 ch. 88, § 1, effective July 1, 2018; 2020 ch. 90, §§ 1, 3, effective July 1, 2020; 2020 ch. 105, § 2, effective July 1, 2020; 2020 ch. 114, § 2, effective March 17, 2020; 2020 ch. 121, § 1, effective July 1, 2020; 2021 ch. 30, § 2, effective July 1, 2021; 2021 ch. 116, § 1, effective July 1, 2021.

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.

Laws 2022, Ch. 48, §§ 1 and 2, state as follows:

“Section 1.

“(a) The legislature finds that:

“(i) As a result of the 2021 General Session of the Wyoming Legislature, 2021 Wyoming Session Laws, Chapter 109 (original 2021 Senate File 56) (‘2021 Act’) became law. The 2021 Act intended to repeal Section 1 of 2020 Wyoming Session Laws, Chapter 114 (original 2020 House Bill 171) (‘2020 Act’) and to codify and otherwise address all issues contained in Section 1 of the 2020 Act;

“(ii) The 2021 Act was not intended to repeal the 2020 Act in its entirety. However, due to a scrivener's error, the 2021 Act omitted a reference to ‘Section 1’ in Section 6, the ‘repealer section’ and instead stated, ‘2020 Wyoming Sessions Laws, Chapter 114 is repealed[;]’;

“(iii) Repeal of the entire 2020 Act was not intended by the legislature in the 2021 Act;

“(iv) The legislature finds it necessary to clarify its intent and to enact into law appropriate legislation, as contained in this act.

“Section 2. 2021 Wyoming Session Laws, Chapter 109, Section 6 is amended to read:

“Section 6. 2020 Wyoming Session Laws, Chapter 114, Section 1 is repealed.”

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.

§ 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), aff'd in part, 866 F.2d 1185, 1989 U.S. App. LEXIS 613 (10th Cir. Wyo. 1989).

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, effective July 1, 2018.

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. 2020 ch. 16, § 1, effective March 9, 2020.

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.

§ 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).

In a case in which defendant appealed his conviction for felony attempted interference with a peace officer, the Supreme Court concluded the evidence was sufficient to support the jury’s finding that a police officer was lawfully engaged in the performance of his official duties because defendant was a danger to himself, and that tackling defendant was not excessive force under the circumstances. In addition, the jury could reasonably infer from the evidence that defendant acted with the requisite specific intent when he attempted to disarm the officer by pulling on the officer’s gun with both hands. Latham v. State, 2021 WY 29, 480 P.3d 527, 2021 Wyo. LEXIS 36 (Wyo. 2021).

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).

State presented sufficient evidence at trial to show the liquid found near the broken side window was an accelerant (gasoline) and therefore that defendant took a “substantial step” toward the commission of first-degree arson. Esquibel v. State, 2022 WY 89, 513 P.3d 148, 2022 Wyo. LEXIS 88 (Wyo. 2022).

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).

§ 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, effective July 1, 2013; 2021 ch. 116, § 1, effective July 1, 2021.

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.
• II. Purpose, Premeditation and Malice.
• III. Felony Murder.

§ 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), aff'd in part, 866 F.2d 1185, 1989 U.S. App. LEXIS 613 (10th Cir. Wyo. 1989).

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. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003), cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 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. 2003), reh'g denied, 2003 Wyo. LEXIS 85 (Wyo. May 20, 2003), cert. denied, 540 U.S. 970, 124 S. Ct. 438, 157 L. Ed. 2d 317, 2003 U.S. LEXIS 7776 (U.S. 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, effective July 1, 2021.

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.
• II. Purpose.
• III. Malice.

§ 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, effective July 1, 2021.

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).

§ 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. 1992), reh'g denied, 1992 Wyo. LEXIS 85 (Wyo. July 8, 1992), cert. denied, 506 U.S. 1022, 113 S. Ct. 661, 121 L. Ed. 2d 586, 1992 U.S. LEXIS 7732 (U.S. 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.

§ 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, effective July 1, 2018; 2019 ch. 186, § 2, effective July 1, 2019.

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 supported the conclusion defendant juvenile committed a delinquent act based on the testimony of nine witnesses, and the victim testified in detail about the events leading up to the sexual assault; when describing the sexual assault, the victim testified that she woke up to find defendant’s hand down her shorts, and his fingers were inside of her vagina. JP v. State, 2022 WY 94, 2022 Wyo. LEXIS 94 (Wyo. 2022).

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. 1992), reh'g denied, 1992 Wyo. LEXIS 85 (Wyo. July 8, 1992), cert. denied, 506 U.S. 1022, 113 S. Ct. 661, 121 L. Ed. 2d 586, 1992 U.S. LEXIS 7732 (U.S. 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, effective July 1, 2014; 2017 ch. 199, § 1, effective July 1, 2017; 2018 ch. 80, §§ 2, 3, effective July 1, 2018.

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, effective July 1, 2017.

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), reh'g denied, 2005 Wyo. LEXIS 84 (Wyo. June 29, 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, effective July 1, 2013.

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).

Jury instruction on reasonable doubt proper. —

Trial court did not err by instructing the jury on the definition of reasonable doubt because in doing so it did not remove defendant’s subjective belief that the victim was 16 years of age or older from the jury’s consideration and the instruction followed the language of this section requiring defendant’s belief to be reasonable. 2021 WY 90, 2021 Wyo. LEXIS 98 .

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, effective July 1, 2019.

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), reh'g denied, 2005 Wyo. LEXIS 84 (Wyo. June 29, 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), reh'g denied, 2005 Wyo. LEXIS 84 (Wyo. June 29, 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, effective July 1, 2015.

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 July 1, 2020.

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.

§ 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, effective July 1, 2013; 2020 ch. 90, § 1, effective July 1, 2020.

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.), op. withdrawn, 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).

§ 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, effective July 1, 2014; 2017 ch. 41, § 1, effective July 1, 2017.

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, effective July 1, 2020.

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).

Displaying a knife while advancing on a police officer while insisting he was not going back to jail was sufficient for a jury to rationally conclude defendant threatened to use the knife on the officer, and the lack of a direct verbal threat was not determinative, so evidence was sufficient to convict defendant of aggravated assault and battery. Cotney v. State, 2022 WY 17, 503 P.3d 58, 2022 Wyo. LEXIS 17 (Wyo. 2022).

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, effective July 1, 2015.

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. 2003), reh'g denied, 2003 Wyo. LEXIS 29 (Wyo. Feb. 18, 2003), cert. denied, 540 U.S. 841, 124 S. Ct. 108, 157 L. Ed. 2d 74, 2003 U.S. LEXIS 5710 (U.S. 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;
   4. Using any electronic, digital or global positioning system device or other electronic means to place another person under surveillance or to surveil another person’s internet or wireless activity without authorization from the other person; or
   5. 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, effective July 1, 2018; 2018 ch. 97, § 1, effective July 1, 2018; 2022 ch. 98, § 1, effective July 1, 2022.

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.

The 2022 amendment, effective July 1, 2022, deleted “or” at the end of (b)(iii); added (b)(iv); and redesignated former (b)(iv) as (b)(v).

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."

Factual basis for guilty plea existed. —

District court did not violate a clear and unequivocal rule of law when it accepted defendant’s guilty plea to stalking and strangulation of a household member because there was a sufficient factual basis for the plea where defendant testified he placed his hand on the victim’s neck or throat to stop her from yelling and screaming and believed his action impeded her breathing or blood flow. Beeson v. State, 2022 WY 86, 512 P.3d 986, 2022 Wyo. LEXIS 87 (Wyo. 2022).

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, effective July 1, 2020.

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, effective July 1, 2018.

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).

District court did not violate a clear and unequivocal rule of law when it accepted defendant’s guilty plea to stalking and strangulation of a household member because there was a sufficient factual basis for the plea where defendant testified he placed his hand on the victim’s neck or throat to stop her from yelling and screaming and believed his action impeded her breathing or blood flow. Beeson v. State, 2022 WY 86, 512 P.3d 986, 2022 Wyo. LEXIS 87 (Wyo. 2022).

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. 2014 ch. 13, § 1, effective July 1, 2014; 2017 ch. 172, § 1, effective July 1, 2017; 2018 ch. 88, § 1, effective July 1, 2018.

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.