Appeal from the District Court of Sheridan County. The Honorable Robert E. Skar, Judge.
For Appellant: Kevin K. Kessner and Christopher M. Sherwood, Yonkee & Toner, LLP, Sheridan, Wyoming. Argument by Mr. Kessner.
For Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
BURKE, Chief Justice.
[¶1] Appellant, Christopher Yager, challenges his conviction of third-degree sexual assault. He contends Wyoming's sexual assault statute does not apply to sexual contact between probation officers and probationers. We affirm.
[¶2] Appellant presents one issue which we have restated:
Is a probation officer an " employee . . . of a state . . . correctional system" under Wyo. Stat. Ann. § 6-2-303(a)(vii)?
[¶3] Appellant was employed as a probation and parole agent by the Wyoming Department of Corrections, Division of Field Services. In that capacity, Appellant supervised probationers and parolees. In May 2011, Appellant began supervising M.C. as a result of her participation in a drug court treatment program. Appellant's supervision of M.C. ceased after her completion of the treatment program in August 2012. M.C.'s probation was scheduled to expire on April 27, 2013. However, on April 11, M.C. tested positive for methamphetamine, and the State moved to revoke her probation. After a hearing, the district court found she had violated the terms of her probation. As a result, the court revoked M.C.'s probation and re-imposed her original sentence of 18 to 24 months. The court imposed an additional 45-day term in jail and suspended the balance of the sentence in favor of 18 months probation conditional on M.C.'s re-application to and completion of the drug court program.
[¶4] Appellant continued to have contact with M.C. after she completed her initial drug treatment program and the two began a romantic relationship in January 2013. Appellant visited M.C. at her residence to " hang out." In February 2013, Appellant and M.C. began a sexual relationship. At least one of their sexual encounters occurred in Appellant's office. Appellant's sexual relationship with M.C. ended in May 2013. Although Appellant was not M.C.'s supervising agent during the period of their sexual relationship, he was aware that she was under the supervision of another agent employed by the Wyoming Department of Corrections.
[¶5] M.C. reported her relationship with Appellant to her probation officer. That report ultimately resulted in the State charging
Appellant with second-degree sexual assault pursuant to Wyo. Stat. Ann. § 6-2-303(a)(vii) (LexisNexis 2011). That statute provided as follows:
§ 6-2-303. Sexual assault in the second degree.
(a) 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:
. . .
(vii) 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, secure treatment facilities or work release 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[.]
Appellant moved to dismiss the charge under W.R.Cr.P. 12(b)(2), asserting that the statute does not apply to probation officers or probationers. Following a ...