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Dougherty v. State

Supreme Court of Wyoming

June 22, 2016

RICKY L. DOUGHERTY, Appellant (Defendant),
THE STATE OF WYOMING, Appellee (Plaintiff).

         Appeal 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. Young.

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          HILL, Justice.

         [¶1] 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.


         [¶2] 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. § 6-4-403(b)(iii).
2. The trial court improperly admitted Exhibits 9A and 9B.


         [¶3] 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.

         [¶4] 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 State's motion.

         [¶5] 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 infant.

         [¶6] 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 documents.

         [¶7] 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 job.

         [¶8] The jury returned a guilty verdict and the Court sentenced Mr. Dougherty to serve four to five years in prison. This ...

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