Appeal from the District Court of Big Horn County, The Honorable Dan Spangler, Judge.
The opinion of the court was delivered by: Hill, Justice
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Appellant, Curtis Trumbull (Trumbull), was convicted of two counts of third degree sexual assault under Wyo. Stat. Ann § 6-2-304(a)(ii) (LexisNexis 2005). The victim of this crime was his own child. She was ten years old at the time the acts constituting the crimes occurred in June and early July of 2006. Trumbull was sentenced to two concurrent sentences of 4-6 years in the Wyoming State Penitentiary. In this appeal, he asserts that the evidence introduced at his trial before the district court sitting without a jury was insufficient to sustain the presiding judge‟s finding of guilt. He also contends that the district court erred because it did not indicate in the written sentence (or otherwise) that it had considered probation as a potential sentence. We will affirm Trumbull‟s convictions, but we reverse the sentences imposed and remand this matter to the district court for resentencing.
[¶2] Trumbull raises these issues:
I. Was there sufficient evidence to convict [Trumbull]?
II. Did the trial court err in sentencing when it did not consider probation?
The State rephrases those issues as follows:
I. Did the State present sufficient evidence for the trial court to conclude, beyond a reasonable doubt, that [Trumbull] was guilty of two counts of third degree sexual assault, a violation of Wyo. Stat. Ann. § 6-2-304(a)(ii)?
II. Did the district court properly consider probation thereby rendering harmless any error in pronouncing [Trumbull‟s] sentence?
[¶3] A couple of prefatory matters deserve brief mention. The record on appeal does not contain a document identified as a Judgment. See W.R.Cr.P. 32(b)(2). As a general rule, in a criminal case the trial court need not articulate detailed findings unless one of the parties requests it before the trial begins. W.R.Cr.P. 23(c). No such request was made in this case. The record does contain an "Order on July 2, 2008 Sentencing."
[¶4] Trumbull was charged with, and convicted of, two counts of sexual assault in the third degree, Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005):*fn1
(a) An actor commits sexual assault in the third degree if, under circumstances not constituting sexual assault ...