Appeal from the District Court of Campbell County. The Honorable John R. Perry, Judge.
For Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.
For Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General.
Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.
[¶1] A jury convicted John Wayne Butler of one count of second-degree sexual abuse of a minor. He appeals, arguing there was insufficient evidence to sustain the conviction, the district court abused its discretion in sentencing him to incarceration instead of probation, and the district court considered inappropriate factors in its sentencing decision. We affirm.
[¶2] 1. Was there sufficient evidence presented to sustain Mr. Butler's conviction?
2. Did the district court abuse its discretion when it denied Mr. Butler probation and sentenced him to serve time in prison?
3. Did the district court commit plain error by considering inappropriate factors in its sentencing decision?
[¶3] In June 2010, Mr. Butler drove his fifteen-year-old niece, H.H., to an eye doctor appointment. H.H. testified that she and Mr. Butler arrived at the appointment and " [c]hatted for a bit" while they waited in the car. Mr. Butler asked " if he could show [her] something," and she replied " yes." Mr. Butler began massaging H.H.'s breasts and touching her vaginal area over her pants. Telling her to relax, Mr. Butler put his hand under H.H.'s jeans and " inside of [her] genitals." Mr. Butler asked her " if it felt good" and told her " he'd like to teach [her] some more things later" before she left the car to go to her appointment. After H.H.'s appointment, Mr. Butler drove her home. H.H. did not report the abuse until February 2014, explaining that she " was embarrassed" and scared of her uncle.
[¶4] Mr. Butler was charged with second-degree sexual abuse of a minor, and following a jury trial, he was found guilty of the charged crime. At sentencing, the district court judge referenced his judicial experience stating, " I've done this now for a very long time[,]" and after reviewing the Presentence Investigation Report (PSI) " very carefully[,]" the judge expressed his belief " experientially" that the PSI's finding of a low risk of re-offense was " wrong." The district court considered community placement options as well as probation, but agreed with the PSI's recommendation that Mr. Butler was " not an appropriate candidate" for either, and sentenced ...