from the District Court of Laramie County The Honorable
Thomas T.C. Campbell, Judge
Representing Appellant: Office of the State Public Defender:
Diane Lozano, State Public Defender; Tina N. Olson, Chief
Appellate Counsel. Argument by Ms. Olson.
Representing Appellee: Peter K. Michael, Wyoming Attorney
General; David L. Delicath, Deputy Attorney General;
Christyne Martens, Senior Assistant Attorney General;
Jonathan C. Coppom, Assistant Attorney General. Argument by
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant Russell Robinson Jr. disagrees with a district
court's decision to revoke his probation. He contends
that the district court erred at both the adjudicatory and
dispositional phases of the probation revocation process. We
affirm the revocation and imposition of his sentences.
Appellant raises three issues, which we have rephrased to
more precisely reflect the record and determinations of the
1. Did the district court abuse its discretion during the
adjudicatory phase of the probation revocation hearings by
concluding that Robinson had violated several conditions of
2. Was it plain error to receive hearsay evidence during the
adjudicatory phase of the probation revocation process?
3. Did the district court err in not reinstating
Robinson's probation during the dispositional phase of
the probation revocation process?
Pursuant to a plea agreement, Robinson pled no contest to one
count of sexual battery, a misdemeanor, in violation of Wyo.
Stat. Ann. § 6-2-313 (LexisNexis 2015) and to one count
of false imprisonment, also a misdemeanor, in violation of
Wyo. Stat. Ann. § 6-2-203(a) (LexisNexis 2015). Because
the plea was one of no contest, Robinson was not required to
provide a factual basis himself.
Robinson was sentenced to one year incarceration on each
count, to be served consecutively, but the district court
suspended execution of that sentence in favor of one year of
supervised probation on each count, which would result in two
years of probation. The probation conditions of the judgment
and sentence required Robinson to sign a probation agreement,
remain employed, submit to a sex offender evaluation, and
complete any subsequently recommended sex offender
Robinson also signed a sex offender probation agreement with
the Wyoming Department of Corrections. It contained greater
detail concerning the conditions in the judgment and
sentence. It stated in pertinent part that he would:
16. . . . [S]ubmit to sex offender evaluation by a Sex
Offender Therapist approved by my Agent and will successfully
complete any recommended treatment at my own expense. I will
comply with all requirements and actively participate in
treatment until released by my treatment provider.
Furthermore, I will not miss individual or group therapy
without the prior permission of my Agent or Sex Offender
18. . . . [S]ubmit to, participate in, and pay for sex
offender assessment including, but not limited to, polygraph
examinations at the request of my Agent or Sex Offender
22. . . . [R]emain gainfully employed and support my
dependents in an occupation determined appropriate by my
Agent, in conjunction with my Sex Offender Therapist, unless
approved otherwise due to a disability or other
23.. . . [W]ill not begin new employment or change existing
employment until given prior approval by my Agent and I will
immediately notify my Agent if I am disciplined, terminated
or dismissed from work for any reason.
initialed each provision of the agreement, and signed it at
A few months later, the State filed a petition to revoke
Robinson's probation. In support of the petition, an
affidavit from Robinson's probation agent, Salli
Perryman, was attached. The affidavit asserted, inter
alia, that Robinson (1) "failed to report loss of
employment to his [probation agent], " (2) "failed
to submit to, participate in and pay for a polygraph
examination" and (3) "failed to enroll in Sex
Offender Treatment." Robinson denied the allegations set
forth in the petition.
In accordance with W.R.Cr.P. 39(a)(5), an adjudicative
hearing was held, and the State called Ms. Perryman as its
only witness. She explained Robinson's failures
concerning the sex offender evaluation, submitting to a
polygraph test, and confirming his employment. With respect
to Robinson's sex offender evaluation, Ms. Perryman
Q. [Prosecutor] What gave rise to the allegation wherein you
assert that he has failed to complete his sex offender
A. [Ms. Perryman] When he came in to meet with me on July
9th, he denied his offense, so I referred him to
our sex offender therapist, Chuck Mueller.
Q. And who completes a sex offender treatment program, if you
will, with an individual defendant?
A. Who completes it?
Q. Who signs them up for that, does an evaluation?
A. I make the referral, and then Chuck Mueller does the
Q. Okay. So did the evaluation take place?
Q. Okay. And what part of the process, as alleged in
paragraph 4 of the affidavit wherein you allege he failed to
enroll in sex offender treatment, why do you assert that?
A. I assert that because he went and met with Chuck Mueller.
He denied that he committed the offense. Because he denied
that he committed his offense, Chuck Mueller has nothing to
treat, so because of that, he cannot enroll in sex offender
Q. Okay. So that's the basis - that part of his sentence,
his judgment and sentence is at a standstill in other words?
Q. And you had recited that that was a condition of his
judgment and sentence that was signed by this Court?
Because Robinson denied committing the offenses he had pled
to, and could not therefore enroll in sex offender treatment,
he was referred for a polygraph examination, as expressly
provided for in the probation agreement. See supra,
¶5. Ms. Perryman explained:
Q. [Prosecutor] Okay. What steps do you take as a probation
agent in an instance like this wherein somebody does not
successfully enroll in sex offender treatment?
A. [Ms. Perryman] What we do is re-refer them for an instant
offense polygraph, which is a polygraph over their offense,
and then based on the outcome of that, we take a step either
to return ...