RICKY L. DOUGHERTY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).
from the District Court of Laramie County The Honorable
Catherine R. Rogers, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel; and Eric M. Alden, Senior Assistant
Appellate Counsel. Argument by Mr. Alden.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne M. Martens, Senior Assistant Attorney General; and
Caitlin F. Young, Assistant Attorney General. Argument by Ms.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
After a jury convicted Ricky Lee Dougherty of one count of
child endangering/obscene act for exposing himself in front
of an eleven-year-old girl and then masturbating in a
Cheyenne park, Mr. Dougherty contends on appeal that the
district court did not properly instruct the jury as to the
definition of the word "presence" as it is used in
the charging statute, Wyo. Stat. Ann. § 6-4-403(b)(iii).
Also, Mr. Dougherty argues that the district court improperly
admitted evidence of his prior bad acts in the form of court
documents rather than testimony. We will reverse.
Mr. Dougherty presents two issues for our review:
1. The trial court erred in refusing to instruct the jury on
the meaning of "presence" in W.S. §
2. The trial court improperly admitted Exhibits 9A and 9B.
On July 1, 2014, eleven-year-old MT, her mother, and sisters
were fishing at Lions Park in Cheyenne. MT noticed Mr.
Dougherty pacing behind her, and when she turned around for
the last time, he was within two to four feet of her with his
hands in his pants and "playing with himself." MT
reported this to her mother who then observed that Mr.
Dougherty was partially exposed and masturbating. MT's
mother then reported the incident to police.
Mr. Dougherty denied any wrongdoing when questioned by law
enforcement – he only admitted that he was rubbing
himself because of sciatic pain. Nevertheless, Mr. Dougherty
was charged with one count of child endangering-obscene act
pursuant to Wyo. Stat. Ann. § 6-4-403(b)(iii)
(LexisNexis 2015). Under this statute, it is illegal to
"[c]ommit any indecent or obscene act in the presence of
a child." The State moved to join the instant case with
a previous charge on an unrelated incident in a different
park with a different victim where Mr. Dougherty allegedly
engaged in similar conduct. The district court granted the
Prior to trial the State also filed a notice of its intent to
introduce W.R.E. 404(b) evidence concerning Mr.
Dougherty's previous convictions for sexual misconduct
and other criminal activity, arguing that those prior
convictions showed proof of motive and intent. Mr. Dougherty
objected to the admission of the convictions citing concerns
with the age of the conviction, their relevance (not stemming
from sexual misconduct), and the prejudicial nature
outweighing the evidence's probative value. The court
ruled that the State could use a limited number of Mr.
Dougherty's convictions for similar behavior to
demonstrate motive, intent, and lack of mistake. Upon the
State's motion, the court also granted the State leave to
dismiss the companion case, in which the victim was an
At trial on the single remaining charge, the State admitted
evidence regarding Mr. Dougherty's prior bad acts but
limited that evidence to certified copies of two judgments
and sentences for convictions of child endangering-obscene
act crimes. Prior to the admission of the documents, Mr.
Dougherty expressed his concern with the documents but
ultimately did not object. However, at his request, the court
issued a limited instruction before the introduction of those
Prior to trial when filing his proposed jury instructions,
Mr. Dougherty requested the district court to give an
instruction defining the word "presence" used in
the charging statute, § 6-4-403(b)(iii). Citing a
Florida case, Mr. Dougherty requested that the term
"presence" be defined as "more than a child
merely being in the vicinity where an indecent or obscene act
occurs. A violation cannot occur unless a child sees or
senses that a[n] indecent or obscene act is happening."
In opposition to this request, the State voiced its concerns
about using a definition from a mid-level Florida court about
a word that was not otherwise "unconstitutionally
vague." After trial and after the dismissal of the
companion case, the court indicated that it would not provide
the definition of the word "presence." Mr.
Dougherty objected but the court decision was made. The court
stated that it did not feel that further instruction on the
definition of the word would help the jury to better do its
The jury returned a guilty verdict and the Court sentenced
Mr. Dougherty to serve four to five years in prison. This